Tribunal Criminal Tribunal for the Former Yugoslavia

Page 20807

1 Thursday, 23 February 2006

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.35 a.m.

5 JUDGE ORIE: Good morning to everyone.

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

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

8 IT-00-39-T, the Prosecutor versus Momcilo Krajisnik.

9 JUDGE ORIE: Thank you, Mr. Registrar. And first of all, the

10 Chamber -- I apologise for the late start but a traffic jam caused me a

11 delay of more than 30 minutes this morning. I highly regret.

12 We have a housekeeping session today. I see Mr. Harmon and

13 Mr. Margetts present for the Prosecution, and Mr. Stewart and Mr. Josse

14 for the Defence assisted by their team members.

15 An agenda was distributed yesterday among the parties. Did you

16 receive those -- the agenda?

17 MR. STEWART: Yes, we have, Your Honour, on the Defence side,

18 thank you.

19 MR. HARMON: We have for the Prosecution, Your Honour.

20 JUDGE ORIE: Yes. One second.

21 [Trial Chamber confers]

22 JUDGE ORIE: I think there is one point to add [French coming over

23 English channel].

24 But I think it's already corrected.

25 There is one point to add in relation to what is now under item

Page 20808

1 15. We will come to that at a later stage.

2 The agenda. Point 1, exhibits of which we now have received

3 translations and where we have received no objections regarding their

4 admission, and that is, I slowly read, Prosecution P954, P968, P969, P971

5 to P973, P975 to P978, P992, P1009 to 1011, P1017 to P1019, P1034, P1050,

6 P1051, P1054, P1058, P1061 to P1064, P1067 to P1071.

7 Defence exhibits D100, D130 to D132, D136, D137 and D140.

8 Whenever I said "to," that would include the second number.

9 Any matters to be raised? If not, the Chamber will decide to

10 admit these exhibits into evidence.

11 I do not hear anything from the parties which means that the

12 exhibits I just mentioned are now admitted into evidence.

13 There are still a number of exhibits which are waiting for

14 translation or for completion of the translation provided until now.

15 That's Prosecution P970, P1072, and P1073. Mr. Harmon?

16 MR. HARMON: Your Honour, we have completed the translations of

17 P970 and 1073 and we are prepared to distribute those this morning.

18 JUDGE ORIE: Yes.

19 MR. HARMON: P1072 is still in translation and we are not prepared

20 to -- on that today.

21 JUDGE ORIE: Yes. Then the Defence will have an opportunity until

22 next Tuesday, to raise any objections against P970 and P1073. Then

23 Defence exhibits, D84, D106, D113, D114, D123, D133, D138, D139 and last

24 one, D141.

25 Mr. Stewart. Or Mr. Josse?

Page 20809

1 MR. JOSSE: Primarily I'm dealing with these matters, Your Honour.

2 Secondly, as Your Honour can see, Mr. Stewart is having some technical

3 difficulties with his LiveNote reception.

4 Your Honour, the Defence aren't in a position to inform the Court

5 when these translations will be ready for filing.

6 JUDGE ORIE: Yes. Is there any news about them or you just gave

7 them for translation and didn't see them back.

8 MR. JOSSE: I'm sure some have been done. In fairness, I have not

9 asked the person on our team who is responsible for marrying up B/C/S with

10 English, just to oversee that task. I'm happy for the Court to impose

11 some sort of time limit to do that.

12 JUDGE ORIE: The Defence is invited to inform by e-mail Chamber

13 staff about any document which -- of which the translation is by now

14 ready. And also inform whether the translation has been provided to the

15 Prosecution by -- I would say just inventory by tomorrow, close of

16 business.

17 MR. JOSSE: That's fine, thank you.

18 JUDGE ORIE: So that would be Friday, 4.00.

19 Then the next item on the agenda is the dates for Prosecution

20 exhibits. Yes, I think it's mainly a matter of putting it on the record.

21 These are the two, what I understand 1994 interviews. That's P1012 and

22 P1013. I think that information it is already available but it's not yet

23 on the record.

24 MR. HARMON: Yes, Your Honour. We were in contact with BBC. BBC

25 informed us that in respect of the interview of Mr. Krajisnik, Prosecution

Page 20810

1 Exhibit 1012, the date of the interview was 21 September 1994. In respect

2 of P1013, the interview of Mr. Izetbegovic, the date of the interview was

3 4 October 1994.

4 JUDGE ORIE: Yes. The information coming from a well-known

5 British broadcasting organisation, is there any need for the Defence to

6 further -- then the Registrar is instructed to add these dates as the

7 dates of the interview on the exhibit list, and I do understand the dates

8 are not challenged by the Defence.

9 Then we come to -- the next item is the admission of Exhibit

10 P1008.

11 We needed some time for the translation and then there was some

12 e-mail exchange in which Mr. Josse, I think you already expressed to us

13 your view that you might be late with any other objection apart from

14 objections caused by the translation. Did --

15 MR. JOSSE: I did basically concede that, Your Honour.

16 JUDGE ORIE: Yes.

17 MR. JOSSE: That is true. Could I make this observation? I'm not

18 saying it's not there. I was unable to find the passage in the transcript

19 where the admissibility of this document had been discussed, and then

20 raised. If I'm wrong about that I'm certainly not going to waste any more

21 time on this issue.

22 JUDGE ORIE: As a matter of fact, the only matter ever raised was

23 about translations not being available. I have a full list of the

24 transcripts sources on the matter if you could like to consult them, I

25 could even consider to -- but then I have to first to review whether there

Page 20811

1 are any notes on it.

2 MR. JOSSE: Of course.

3 JUDGE ORIE: So the Chamber is inclined to say that you're late

4 with any other objections but before giving a final decision during the

5 first break the Chamber staff will provide you with all the relevant

6 numbers and, to the extent possible, with copies.

7 MR. JOSSE: I would be grateful. I undoubtedly raised a concern

8 at the time the exhibit was first put to the witness in question. My

9 second observation is the objection that is I wish to make now will take

10 no more than a minute. So perhaps the Court would bear that in mind.

11 JUDGE ORIE: One minute, I think it would add to the fair

12 administration of justice, so unless Mr. Harmon you would oppose, we would

13 grant that one minute to Mr. Josse. Mr. Josse.

14 MR. JOSSE: In the e-mail correspondence that Your Honour is

15 referring to I alluded to two grounds. In fact, realistically I'm only

16 pursuing one and that is ground that the Court will hear me repeat on a

17 number of occasions in relation to a number of documents today.

18 This document was put to the witness. The witness was not in a

19 position to confirm or for that matter to deny the veracity of any of its

20 contents. Therefore, Your Honour, in my submission it can't be admitted

21 because the witness simply was unable to assist as to the truth of its

22 contents in any way whatsoever.

23 JUDGE ORIE: Isn't it true that the witness confirmed that the

24 document originated from the organisation he was working for?

25 MR. JOSSE: No. That was Mr. Harmon's assertion that this had

Page 20812

1 come from the association. The witness knew nothing about that. He, like

2 the Defence, was prepared to accept what Mr. Harmon says about that. That

3 came out rather worse than it was meant to. We, of course, accept Mr.

4 Harmon's assertion that it came from that particular association but that

5 doesn't help the matter at all, I contend.

6 JUDGE ORIE: Mr. Harmon?

7 MR. HARMON: Your Honour the only other objection that I recall

8 raising is this particular exhibit was there was no proper showing as to

9 how the data was collected, from whom, by which methods, et cetera. I

10 have informed the Court and the Court officer and the Defence by e-mail

11 the manner in which it was collected. I referred the Court to the

12 testimony of a witness from that organisation who testified over one or

13 two pages as to how they collected that data. That was the objection that

14 was made at the time and that was then referred to counsel specifically,

15 those passages, so we are prepared to stand on that information as to the

16 reliability of the information provided to us.

17 JUDGE ORIE: Mr. Josse?

18 MR. JOSSE: As I made clear, in my e-mail there were two grounds.

19 That was the second ground of objection. I'm not pursuing that. I accept

20 what Mr. Harmon says, not necessarily accept that what he's saying in that

21 regard is the truth but I'm prepared to concede that it's sufficient for

22 the admission of the document. My grounds are a different one, that is

23 the witness simply couldn't shed any light object the document at all, in

24 my submission.

25 JUDGE ORIE: Yes, then it would not necessarily be inadmissible

Page 20813

1 evidence but it would then perhaps be an exhibit which is introduced but

2 then perhaps not appropriately done so through the witness but could be

3 introduced by other ways.

4 MR. JOSSE: Well, that's an issue that the Court is going to have

5 to grapple with later on in the agenda, and I'm going to make some

6 submissions about them in general but that is -- as a broad proposition

7 that is a possibility, I accept.

8 JUDGE ORIE: Yes. Where I allowed you to further expound on

9 the -- on your objections that did not automatically include that we --

10 that the Chamber has considered the objection as being done in due time.

11 So we have the two matters. First of all, whether there is still --

12 whether you're late or not and then second if you're not late then we have

13 heard your objection.

14 MR. JOSSE: Well I'm grateful for being allowed the minute or so.

15 Thank you.

16 JUDGE ORIE: Yes. Then that's P1008. Let's move on and the next

17 issue is that the Defence has expressed its intention to oppose the

18 admission of quite a number of Prosecution exhibits introduced through

19 the -- during the testimony of the Witness Savkic. I mentioned the

20 numbers P1055 to P1057, P1059, P1060, P1065 and P1066. I'd like to give

21 an opportunity to the Defence to raise the objection and to make

22 submissions in that respect it deems useful. Please proceed.

23 MR. JOSSE: Starting with P1055, when this was put to the witness,

24 not only did he deny any knowledge of it but he said unequivocally that it

25 was a forgery. That raises the issue as to its provenance but even if its

Page 20814

1 provenance was demonstrated by the Prosecution, that is, they were able to

2 show where they found it, by whom, in what circumstances, so on and so

3 forth, which there is not a jot of evidence in relation to at this

4 particular juncture. Even if they were able to demonstrate that the

5 Defence would still maintain this objection bearing in mind the witness

6 again said it was a forgery and he was, I repeat, unable to shed any light

7 on it at all save for the fact it was simply not true.

8 So far as P1056 is concerned, I actually have the reference for

9 that in the transcript. At about page 20667, the witness denied any

10 knowledge of that document or its contents. So the point that I've

11 already made in relation, for example, to P1008 applies here.

12 The same applies in the Defence submission to P1057. My note says

13 that that is found at page 20676 of the transcript. So far as P1059 was

14 concerned, again, the witness said he had no knowledge of the document, he

15 didn't even acknowledge that that particular document was genuine. And it

16 therefore goes that bit further.

17 So far as P1060 is concerned, the witness said he had no knowledge

18 of its contents or of its accuracy. That's found at approximately page

19 20684.

20 So far as P1065 is concerned, that appears at the evidence at page

21 20697. The witness said that that too was a forgery, the same two points

22 apply, forgery, lack of knowledge.

23 And so far as P1066 is concerned, which is found at page 20703,

24 the witness denied any knowledge of the contents of the document and

25 indeed didn't accept the truth of the contents. Those are my submissions.

Page 20815

1 JUDGE ORIE: Yes. Thank you, Mr. Josse.

2 Mr. Harmon? Or Mr. Margetts, I see you're on your feet so please

3 proceed.

4 MR. MARGETTS: Yes, Your Honour. Thank you. Your Honours will

5 recall this particular witness and you will recall that we put a number of

6 documents to this witness, some of which the Defence are contesting and

7 some of which they are not contesting. It is our submission that in

8 regard to each of the Prosecution exhibits we put to this witness, the

9 witness failed to deal with those documents either credibly or reliably or

10 in any adequate manner. The documents that the Defence object to are a

11 sample of those documents that the witness failed to deal with. The

12 general manner in which the Defence has dealt with those documents, and

13 the reaction of the witness to those documents, can be, with the greatest

14 of respect to my learned friend, improved upon. It is not the fact in

15 respect of Appeals Chamber of these that he denied knowledge of the

16 contents of many of them. In fact some of his comments authenticated the

17 content. Well, corroborated the events described in them, and accordingly

18 this corroboration can be utilised for the authentication of the document.

19 I'll deal with each of the documents in turn.

20 The first document was Exhibit P1055 and I don't know whether

21 Your Honours have the advantage of that document being before you.

22 JUDGE ORIE: I don't have them in front of me but that's the

23 document, the first one, about the -- that's the fake document according

24 to the witness in which the monetary streams are -- it's the unsigned

25 document.

Page 20816

1 MR. MARGETTS: Yes, Your Honour. This is a document that -- first

2 of all, it was the witness's position which was expressed very clearly at

3 pages 20602, of the transcript, that the Crisis Staff never existed, never

4 functioned. Furthermore, the witness said that he was never a member of

5 the Crisis Staff or was never informed he was, and asked to detail his

6 positions that he held throughout the relevant period, at pages 20634 to

7 pages 20637, furthermore and pages 20644 through to pages 20646, he failed

8 to include the position of president of the Crisis Staff as one of those

9 positions he held. This document directly impeached him on a critical

10 matter. Now, this document didn't stand alone. Other documents that we

11 produced corroborated the existence of the Crisis Staff. In fact the

12 other documents the Defence object to --

13 JUDGE ORIE: Mr. Margetts, if I just may interrupt you, the

14 position of the Defence and position of the witness in relation to 1055 is

15 that it's a forgery. Does a forgery -- if it's true that it's a forgery,

16 it could well be -- this document could well be understood as

17 corroborating the witness's evidence that the Crisis Staff never existed

18 because documents that are produced are forgeries. If, however, the --

19 it's -- it very much depends on whether it's a forgery, yes or no. If

20 it's a forgery then it might support the witness views. If it's not a

21 forgery, it's -- well, it is likely to corroborate the Prosecution's view.

22 But you're now presenting it as it should be admitted because it

23 demonstrates that the witness was not telling us the truth when the Crisis

24 Staff -- that the Crisis Staff did not exist.

25 MR. MARGETTS: Yes, Your Honour. We say that that is a relevant

Page 20817

1 matter to be taken into account, in light of the totality of this

2 witness's evidence and the Court's opportunity to assess his demeanour,

3 and his reaction to this document, the Court is in a position to assess

4 why that reaction was so vehement and the nature of that reaction but I'll

5 deal with the issue of how the witness alleged it was a forgery and we say

6 on its face the manner in which he dealt with it demonstrated that that

7 allegation had no substance.

8 JUDGE ORIE: But is it for the witness to demonstrate that it's a

9 forgery or is it for the Prosecution to demonstrate that it's an authentic

10 document?

11 MR. MARGETTS: Well in our submission the Defence is relying on

12 this witness's evidence that it was a forgery and in our submission the

13 Court can reject that evidence because of the various factors that I'll be

14 pleased if I could enumerate before the Trial Chamber.

15 JUDGE ORIE: Please proceed.

16 MR. MARGETTS: Those factors are that the first thing was that he

17 asserted that the substance of the document was to alleviate an obligation

18 to a republican authority for tax liability. There is no logical sense in

19 that. First of all the document on its face was about directing funds

20 received to the municipal assembly budget so it appeared on its face to be

21 an internal document not directed to a third party's liability. The

22 second point on that issue is that the document was merely a municipal

23 level document. A municipal body cannot in any way affect a liability to

24 a republican organ and accordingly any obligation to a republican organ

25 would still subsist regardless of this document so the document did not

Page 20818

1 establish what he said it established. Thirdly we've had the opportunity

2 of reviewing exhibit P52. One of the people whom this witness said had

3 persecuted his life was the author of P52, and Your Honours will recall

4 that's a facsimile from a Mr. Rajko Dukic to Mr. Krajisnik and to

5 Mr. Karadzic wherein Mr. Rajko Dukic at paragraph 2 details the aid he has

6 provided, the contributions he has made, and the discharge of his taxation

7 liability to the republican authorities.

8 Thirdly, he says that this was done in order to be a credible

9 document, a forgery that was meant to affect a belief in those that read

10 it that in fact there had been a genuine change of the obligations of

11 parties obliged to pay tax. It does not make sense that the person who

12 made that forgery would refer to a body that did not exist at the time, to

13 perpetrate that forgery because the error in the document would be

14 immediately apparent and its lack of authenticity would immediately

15 apparent. And remember that was the critical issue we were discussing,

16 whether or not the Crisis Staff existed.

17 JUDGE ORIE: Yes, Mr. Margetts may I take it that the second time

18 you said thirdly that you meant fourthly.

19 MR. MARGETTS: Yes, Your Honour, my apologies. My notes only

20 detail four points, one of the initial points occurred to me whilst I was

21 on my feet.

22 JUDGE ORIE: Could you refresh my memory. You're now saying that

23 it's -- the testimony of the witness is illogic. Did you put all these --

24 all the illogical parts and it's not clearly in my mind anymore to the

25 witness to the witness which would be appropriate to do.

Page 20819

1 MR. MARGETTS: The situation was this, Your Honour. When the

2 witness was initially confronted with this document he was given ample

3 opportunity to clarify why he said it was a forgery and I -- and memory

4 serves me -- if memory serves me correctly, Your Honour in fact questioned

5 him to gain clarity as to why he said it was a forgery and at page 20659

6 of the transcript, Your Honour concluded that it was unclear to you still

7 what he was attempting to allege, yet that you invited me to proceed with

8 the examination and I did so also indicating to the Court that the

9 explanation did not make sense despite the time afforded to the witness to

10 explain it.

11 Secondly a long discussion about there allegation proceeded at

12 pages 20775 through to pages 20778 whereupon Your Honour again undertook

13 the questioning to clarify what it was this witness was trying to allege.

14 At the end of that questioning, Your Honour said, "Yes, well, now, it is

15 clear to me what you're saying." And in that circumstance, it wasn't in

16 our view going to assist matters or to attempt to clarify it further. The

17 witness was given ample opportunity on two occasions to put specifically,

18 to explain very clearly to the Court what he was saying. At that stage we

19 accepted he had done so fully and with full opportunity and despite these

20 logical inconsistencies we didn't see that it would be beneficial at that

21 stage to pursue the issue further.

22 So any way, the other issue that he rose was the stamp on the

23 document and that was he said it was inappropriate for the municipal

24 authorities to -- the stamp of the municipal authority to be on a Crisis

25 Staff document. In our submission, Your Honours have received evidence

Page 20820

1 that that in fact is an appropriate stamp, given that the Crisis Staff

2 step into, so to speak, the shoes of the municipal assembly when they're

3 exercising their functions. So that's our submission on the allegation

4 it's a forgery. We say it doesn't make sense. On its face it can be

5 disregarded. It was a desperate effort for -- made by this witness to

6 escape from a document that directly impeached him.

7 The provenance of this document, Your Honour, is that it was

8 delivered to the Office of the Prosecutor by a representative of the

9 Republika Srpska government in October 2002.

10 MR. JOSSE: I take objection to this.

11 JUDGE ORIE: Yes, Mr. Josse?

12 MR. JOSSE: My learned friend can't start making statements like

13 that without giving some notice to the Defence.

14 JUDGE ORIE: It was on my mind, Mr. Margetts, to ask you whether

15 you had provided this information to the Defence, because if the Defence

16 wants to challenge that or to not to challenge that they should at least

17 know what the origin of these documents in the view of the Prosecution is.

18 MR. MARGETTS: Your Honour, we have submissions in regard to the

19 provenance in relation to each of the documents that are listed that have

20 been objected to and we had intended to present that material to the Court

21 today. Obviously, we apologise for not having done so at an earlier

22 opportunity, and given the Defence an ability to respond to that. So it

23 may be better if the --

24 JUDGE ORIE: To delay that.

25 MR. MARGETTS: To delay.

Page 20821

1 JUDGE ORIE: Yes. That would be -- Mr. Josse, at least, the least

2 Mr. Margetts could offer, I take it, in your view.

3 MR. JOSSE: With respect I agree with that. I've had issues of

4 this sort with Mr. Harmon in the past. He has provided me with the

5 information and I've withdrawn that aspect of objections.

6 JUDGE ORIE: Yes. Then I expect, Mr. Margetts, that you'll inform

7 Mr. Josse in full on the provenance of these documents prior to raising

8 the matter again and informing the Chamber and then we'll learn whether

9 there is any challenge by the Defence of the provenance of these

10 documents. Yes. Mr. Margetts, anything else?

11 MR. MARGETTS: Your Honour, I take it then that we will have

12 further submissions on those documents once the Defence has been --

13 JUDGE ORIE: What we could do is we could for the time being say

14 that we now invite Mr. Josse to comment on what you said, apart from the

15 provenance part, and because part of it was the totality of the documents,

16 the logic of it, but if Mr. Josse would prefer to delay those responses as

17 well to after a moment where he has been informed about the provenance, I

18 would give him leave to wait.

19 MR. JOSSE: I would take that option, in conjunction with a

20 preference to reply to my learned friend's objections as a whole after

21 he's been through all these various documents.

22 JUDGE ORIE: So we first wait until you, Mr. Margetts, have

23 provided Mr. Josse with the information on the provenance of the documents

24 and then we will hear from Mr. Josse his response to your response to the

25 objection in its totality rather than in split up portions.

Page 20822

1 MR. MARGETTS: So, if I may, Your Honour, other than the issue of

2 provenance I'm in a position to put the position of the Prosecution

3 regarding each of the other documents as well.

4 JUDGE ORIE: Then perhaps it's good that we hear it and Mr. Josse

5 will take his time to answer to it.

6 MR. JOSSE: I would be very grateful, thank you.

7 JUDGE ORIE: Please proceed, Mr. Margetts.

8 MR. MARGETTS: Your Honour, this -- the second document was

9 exhibit P1056, you recall the issues that that document addressed. This

10 was a document dated the 30th of May 1992 and it was a document signed by

11 a gentleman, Lalovic, who was, according to the evidence of the witness,

12 the president of the municipal assembly. This document abolished the

13 Crisis Staff and replaced the Crisis Staff with a military command and a

14 War Presidency. This document again directly impeached the witness and I

15 point to the impeachment for the purpose of saying, well, this was the

16 motivation what -- that was behind the witness's attempt to escape from

17 the impact of this document. It impeached the witness because, again, it

18 showed that there was a Crisis Staff functioning, a Crisis Staff that was

19 in fact abolished. It impeached the witness because the witness had

20 failed to acknowledge that a War Presidency had taken over the conduct of

21 the municipality and alleged to the contrary that the municipal assembly

22 had been the functioning and authoritative body, and I again refer to

23 pages 20062 of the transcript.

24 Mr. Josse's submitted that the witness denied knowledge of this

25 document or its content; not the case. At pages 20602 prior to this

Page 20823

1 document being presented, the witness had said the Crisis Staff was

2 abolished on the 30th of May 1992. In other words, he volunteered express

3 knowledge of the contents of this document. Furthermore, when presented

4 with this document he didn't doubt its authenticity. He said in fact

5 Mr. Lalovic was a bureaucrat and he abolished something that had never

6 existed. Again, we point to the illogic of that explanation by the

7 witness.

8 We also have a submission in regard to the provenance of that

9 document.

10 In regard to Exhibit P1057, again, the witness denied knowledge of

11 this document. There was no reason he should have had knowledge of the

12 document. This was a report of 27 May 1992, that -- once again contrary

13 to the Defence's submissions he did not deny knowledge of the content of

14 this document. This document was a report to the chief of police of the

15 Milici police station and the document addressed the issue of the sabotage

16 or the attack on a convoy that was driving from the Boksit mine through

17 Konjevic Polje. The attack on the convoy occurred on the 27th of May,

18 1992, and the witness gave evidence to that effect. At pages 20561

19 through to 20564 of the transcript, specifically citing an incident at

20 page 20564, so accordingly the witness's evidence corroborated this

21 document as to date and event. The witness's, we say, feeble attempt to

22 escape the implications of this document was to say, well, where it says a

23 report about this event was made to the Crisis Staff, that's a mistake.

24 They meant something else. The fact is that the three documents we've

25 just referred to do refer to the existence of a Crisis Staff, do

Page 20824

1 corroborate each other and do directly impeach the witness and his vain

2 attempts to escape the impact of that impeachment resulted in the

3 illogical and unfounded evidence he gave in relation to these documents.

4 The next document was Exhibit P1059. The witness again was

5 directly impeached. The witness was asked by Defence counsel what

6 occurred after the 14th of April 1992, when he, according to him, left the

7 Vlasenica city after the negotiations as he described them had not

8 succeeded. And he was asked, "When did the violence in the municipality

9 break out?" His answer was the violence broke out when there was

10 sabotages on the roads from 21 May 1992.

11 Your Honour correctly interjected and said to him, well, the Trial

12 Chamber has heard evidence that a takeover took place, that there was a

13 JNA unit, that there were -- there was actually military action in the

14 municipality on the evening of the 20th, morning of the 21st of April

15 1992. Now, he didn't acknowledge that happened. This document that was

16 presented to him was a retrospective account from a member of the 1st

17 Vlasenica Infantry Brigade that detailed in fact that the Crisis Staff had

18 in conjunction with the JNA deployed units that were involved in the

19 takeover of the city. The witness consistent with his efforts to avoid

20 mentioning this issue in his examination-in-chief simply said that's not

21 correct. He didn't doubt the authenticity of the document. He just

22 disputed the fact that the events described therein had occurred in the

23 manner that they are described there and in the manner that witnesses or

24 evidence that's been received by this Court corroborates.

25 Again, we have a submission on the provenance of the document.

Page 20825

1 The next document is P1060. And this was a document dated 8

2 December 1992, and it was a document that set out the minutes of a meeting

3 of the War Presidency of Milici. So we've dealt with that issue before.

4 He didn't acknowledge the existence of a War Presidency. This document

5 directly impeached him. Later in his evidence, he sought to avoid in what

6 we said -- what we say was a very clumsy manner the fact that he it was

7 the commander of a battalion and this document clearly set out that there

8 were two battalions in existence at December 1992, the Derventa Battalion

9 and the Milici Battalion, and again this document impeached him on his

10 evidence regarding to the existence of those battalions. So again, he was

11 motivated to avoid the impact of this document.

12 Now, again it's not the case that his evidence doesn't in a manner

13 assist the Court in arriving at a conclusion as to the authenticity of

14 this document. His Honour Judge Hanoteau questioned the witness at page

15 20685 as to whether he was aware of problems with commander Petkovic which

16 was the major subject of this document. The witness said yes he was aware

17 of the problems with commander Petkovic that were described in this

18 document. So he actually corroborated the content of this document and we

19 say that that can assist the Court in establishing the authenticity of

20 this document. Furthermore, Exhibits P892, Ewan Brown tab 13.1, and P892,

21 Ewan Brown tab 14, corroborate the existence of a battalion known as the

22 Milici Battalion, and again impeached this witness and again corroborate

23 the -- this document and its authenticity.

24 Again, we have submissions on the provenance of this document.

25 Document P1065 addresses the witness's broad and sweeping evidence

Page 20826

1 as to what occurred in the municipality of Milici and the surrounds in

2 Vlasenica and Srebrenica. This evidence is set out at pages 20572 through

3 to 20583 of the transcript, and fails to acknowledge that any crimes at

4 all were perpetrated against Muslim victims and refers in a -- in our

5 submission, a biased and unhelpful way, to reports composed by the Serb

6 chief of police Rade Bilanovic in regard to Serb -- incidents where there

7 were Serb victims and charges that were to be brought against the Muslim

8 commander, Naser Oric. In this context the witness was asked questions in

9 relation to the Susica camp which was a massive enterprise and the Court

10 has received evidence in relation to it.

11 The witness, whilst not being consistent, claimed that he didn't

12 have knowledge of the Susica camp at the time it existed. But at pages

13 20697 of the transcript he slipped up. He said, I myself didn't ask at

14 that time as to what -- how many prisoners were in the Susica camp.

15 Your Honour asked a follow-up -- Your Honour, president of the Court asked

16 a follow-up question in relation to that to which he backed away from what

17 had already been a statement relating to his contemporaneous knowledge of

18 the camp.

19 In that context, the Exhibit P1065 was put to him showing that 800

20 persons in this small area were in fact detained in the Susica camp and we

21 say that that document, by its very nature and substance, impeaches the

22 witness in regard to his knowledge of that camp. Secondly, also under the

23 command of the brigade that he was subordinate to. In our submission

24 there were a large number of people detained in Zvornik who were

25 subsequently massacred. This report referred to those people, and we put

Page 20827

1 it to him that he knew of the -- those people as well. This document

2 doesn't stand alone. We have other exhibits which corroborate this

3 document, P872 and P874 also referred to a massive number of people, 650

4 and 600 respectively detained in the Susica camp in June 1992.

5 Furthermore, Exhibit P678 again corroborates the information that was

6 contained in this document relating to the VR's involvement in the

7 detention of the people in Zvornik. Again we have a submission in regard

8 to the provenance of that document.

9 The final document that was addressed by the Defence was Exhibit

10 P1066. This is an order for the cleansing of the enemy from the areas of

11 Birac dated 7 June 1992. Again I refer to the witness's evidence at pages

12 20572 to 20583 where he provided, as I say in our submission, a biased

13 account of what was occurring in the area and failed to mention that there

14 were proactive cleansing operations being conducted by the East Bosnia

15 Corps and the units that he was involved with. He doubted the

16 authenticity of this document. We say that the document and the cleansing

17 orders are corroborated by Exhibits P874 and P892, tabs 13.1 and 14, and

18 also the orders that we've seen from the commander Svetozar Andric of 28

19 May 1992 and 31 May 1992, and we again say that this was a self-interested

20 denial which had no credibility. He in the course of his evidence at

21 pages 20577 to 20578 said that all Serb villages were burnt down and all

22 the population that Muslims could possibly slaughter were slaughtered. He

23 was questioned by Your Honour at pages 20580 to 20581 in relation to

24 whether there were investigations in relation to crimes against the Muslim

25 population. He sought desperately to avoid an answer to Your Honour's

Page 20828

1 questions, and eventually it can be made out that he wasn't -- he said

2 there were criminal charges regardless of whether there were Muslim or

3 Serb casualties. Quite clearly these documents show a positive campaign

4 by the Serb army to cleanse these villages and areas of Muslims and we say

5 that impeaches the witness. Again we have a submission on the provenance

6 of that document and we will notify the Defence in due course. Thank you,

7 Your Honour.

8 JUDGE ORIE: Thank you, Mr. Margetts.

9 Mr. Josse, may I take it that you would save your response for a

10 later moment or if there is -- is there anything you would like to

11 immediately now already submit to the Chamber?

12 MR. JOSSE: No. I'll reserve the Defence's position, if I may.

13 JUDGE ORIE: Yes. You may.

14 Then we move to our -- now we move to the next item on the agenda

15 which is the documentation regarding the death of Husein Hotic, a Muslim

16 from Japra Valley, and the Chamber asked for further information, and we

17 have -- we understand that the Defence opposes the introduction of the

18 documentation that has been gathered now by Mr. Harmon.

19 Mr. Harmon, would it not be a good idea that before we invite to

20 you provide this information, to first hear from Mr. Josse what the

21 objections are and then see whether the objections are of a kind which

22 would not even require the Chamber to look to the documents or whether we

23 would perhaps pursue the matter further and receive the documentation in

24 order to decide on the admissibility of it?

25 MR. HARMON: Your Honour, I'm satisfied to proceed that way. I

Page 20829

1 could summarise briefly if Your Honours wish what we have done and what we

2 have prepared and --

3 JUDGE ORIE: Yes. Of course, what I'd like to avoid is that in

4 your presentation, that already a lot of information comes to us if we

5 would decide at a later stage to the objections by Mr. Josse should result

6 in not gaining any knowledge of it. So therefore I'd briefly invite

7 Mr. Josse first of all to explain to us the nature of his objection.

8 MR. JOSSE: They are basically procedural, Your Honour, rather

9 than substantive. I reserve the Defence position so far as the

10 substantive issues are concerned. Mr. Harmon has been very helpful, if I

11 may say, in this regard, and he will correct me if I'm wrong but in

12 relation to these Hotic documents, I think they have only been provided in

13 B/C/S to the Defence. But I'll be corrected if I'm wrong on that.

14 JUDGE ORIE: Mr. Harmon.

15 MR. HARMON: Your Honour, that's correct and I also provided the

16 Defence a summary that I was provided, I provided an oral summary of their

17 contents to Mr. Josse as well so he and I sit in the same position. We

18 have B/C/S documents. They have been looked at by my interpreters. I had

19 provided Mr. Josse with a summary of the contents and I gave them to him

20 so that he could confer with his language assistants as well.

21 MR. JOSSE: Could I make it clear, Your Honour, that were the

22 Court really against the submission I'm going to make now, then, of

23 course, the issue of substance is one that I reserve, albeit, frankly, I

24 suspect that will not detain the Court very long. But our fundamental

25 objection, and it's the real objection, is the way this is being done.

Page 20830

1 This is not, we contend, the point in the case for the Prosecution to

2 adduce more evidence because that is what the Prosecution are seeking to

3 do. They wish to put before the Court evidence in the middle of the

4 Defence case. The Rules, we submit, do not provide for that eventuality.

5 Common sense, we submit, do not provide for that eventuality. And we

6 contend the Rules do provide, and common sense for that matter provides

7 an appropriate time for the Prosecution to do this, and that is at a

8 later stage in the case.

9 By the same token, the difficulty with the exercise that my

10 learned friend wishes to undertake, and it illustrates the very point, the

11 procedural point that I'm making, is how is this going to be done?

12 Presumably, a significant number of documents, but for this purpose in

13 fact it doesn't matter whether it's one or more documents, are going to be

14 handed to the Court, and, of course, be translated because they've got to

15 be, but the Defence can't challenge them, the Defence can't cross-examine

16 anyone about them, the Defence can't do anything other than to say, we do

17 accept the documents, we don't accept the documents. That frankly would

18 be comment any way. And in my submission, this is a completely

19 inappropriate procedure to adopt at this particular juncture of the case

20 and the Court shouldn't countenance it.

21 JUDGE ORIE: Mr. Harmon?

22 MR. HARMON: Your Honour, first off, the issue of Mr. Hotic was

23 not raised by the Prosecutor in its examination of this witness. I will

24 direct Your Honour's and counsel's attention to pages 19707 through 19711.

25 The context in which the Hotic murder came up was when Mr. Josse was

Page 20831

1 asking questions of his witness and he was referring to an interview of

2 Mr. Pasic that had been specifically taken earlier, prior to the

3 proceedings, and specifically he asked questions -- he quoted from the

4 interview by Mr. Resch asking him about the murder of Husein Hotic. And

5 then Pasic then claimed to the murder of Husein Hotic rebutted the

6 proposition that there had been no proceedings had taken place where Serb

7 perpetrators had not been punished and he, Mr. Pasic, said there was a

8 record of that trial, and he used the word "trial.". At 19711, lines 18

9 through 23, Your Honour Judge Orie stated that you were very much

10 interested in the events of the Japra Valley and asked where Husein Hotic

11 was killed.

12 Now, following -- so the Prosecution didn't attempt to lead the

13 evidence of Husein Hotic. It was clearly a result of questions that were

14 asked by Mr. Josse, and then the Court made an inquiry, and we, following

15 that inquiry by the Court, made efforts to and did obtain, we contacted

16 the president of the basic court in Novi Grad, and obtained the file. And

17 we are in a position to answer Your Honour's specific question as to where

18 Husein Hotic was killed. I have not had these documents translated. As I

19 say I have given them to my colleagues from the Defence so they could

20 review them. The procedural point is that the Court in our submission can

21 ask for any evidence it wants at any time it wants and the parties should

22 be in a position to assist the Court if it is so directed. It's our

23 submission that we were directed through the inquiry of the Court, to find

24 out the answer to that question. And we have endeavoured to do so. We

25 have done so. And we are prepared to introduce that evidence that was the

Page 20832

1 result of, as I say, precipitated by the questions of Mr. Josse, the

2 answers of the Defence witness, and, as I say, Your Honour, these -- this

3 matter, we can answer the question, we have -- the complete file. I can

4 summarise the contents of the file. I won't do so unless I'm directed to

5 at this moment. That is our submission, Your Honour.

6 JUDGE ORIE: Thank you, Mr. Harmon.

7 Mr. Josse, Mr. Harmon responded to your argument that the

8 Prosecution is now presenting any further evidence whereas it also is my

9 recollection that the Court wanted to find out, could serve several

10 evidentiary purposes to find out what actually happened on matters the

11 witness described. And we asked, I think we did not immediately rely upon

12 Rule 98 but we asked the Prosecution to further explore whether there was

13 material which could assist the Chamber, and if not, presented by one of

14 the parties, could be -- by the Chamber could ask that material to be

15 produced.

16 That's one issue I'd like to hear your comment on.

17 The second issue is that you say what can the Defence do? Well,

18 let me just raise a few suggestions. The Defence could challenge the

19 authenticity of the documents and either ask leave to call further

20 witnesses to further explore that matter or to invite the Court to ask for

21 further details on the provenance of these documents. Or even suggest to

22 the Court that, if the Court is interested to look at these documents,

23 that since the Defence has its doubts on authenticity, that it invites the

24 Chamber also to ask for the production of further evidence on the

25 authenticity. I mean, there are a lot of ways I think, technical ways, in

Page 20833

1 dealing with it. So therefore where you're more or less helpless and what

2 could the Defence do any more, I would trigger your inventiveness and see

3 whether you would agree with me that there is no reason yet to raise your

4 hands in feeling totally helpless.

5 Mr. Josse?

6 MR. JOSSE: Well, Your Honour's last paragraph, as it appears in

7 LiveNote is very helpful, if I may respectfully say, and one that the

8 Defence, I'm sure, will consider extremely carefully in relation to

9 authenticity, the possibility of calling further witnesses to explore the

10 matter. That's an issue that I'll discuss both with Mr. Stewart and

11 indeed with Mr. Krajisnik in due course. So far as the procedural is

12 concerned, and I appreciate that this Court may not want to get too

13 heavily bogged down in the Rules, we contend that Rule 85 is clear as to

14 the presentation of Rule 98 evidence. It sets out the presentation of

15 evidence as, in the following sequence, one, evidence for the Prosecution,

16 2, evidence for the Defence, 3 Prosecution evidence in rebuttal, 4,

17 Defence evidence in rejoinder and then, 5, evidence ordered by the Trial

18 Chamber pursuant to Rule 98. And in our submission, Rule 98 material only

19 applies at that stage of the case.

20 JUDGE ORIE: Wouldn't you agree with me that the heading of Rule

21 85(A) says that unless otherwise directed by the Trial Chamber in the

22 interests of justice, evidence at the trial shall be presented in the

23 following sequence? Because then I would really like you to go to the

24 substance of it. I mean, we hear the evidence of a witness on whether or

25 not investigations in relation to the death of Mr. Hotic were conducted --

Page 20834

1 I mean that's an issue at that moment. Should we now -- is it really your

2 submission that the Chamber should now -- well, of course, unless you say

3 at this moment, of course, we'll come with a lot of evidence on that

4 matter so please wait for a while, but the Chamber, of course, now and

5 then seeks to form its opinion on matters of reliability and credibility

6 not only by hearing witness A says this, Witness B says that, but also to

7 see whether there is any source by which you can verify the, or at least

8 to make a better assessment, to form a better opinion on the credibility

9 and the reliability.

10 For example, just to give you one example, if you ask yourself

11 what you can see from a certain point, of course, you could call five

12 witnesses and say, "I can see from point A, a church," I can -- the next

13 one says, "you can't see that." Of course, very often a photograph will

14 be very helpful to see what you can see from point A or from point B or

15 what you can't see. So therefore, the Chamber is aware of -- that

16 witnesses may make mistakes, that witnesses may not have a full knowledge

17 of every detail of something they did not -- dealt with personally that's

18 true, for Defence witnesses, that's true for Prosecution witnesses, and

19 seeks then further material which can assist it in forming its opinion on

20 reliability and credibility of the witness. Is it really your submission

21 that, apart from whether you would like to come back to this point and the

22 Chamber did not have that impression until now, that we should wait until

23 the very, very end to ask the parties to see whether there is any material

24 which could assist the Chamber in this way or would you consider it

25 possible that the Chamber would direct otherwise under Rule 85, in the

Page 20835

1 interests of justice.

2 MR. JOSSE: Your Honour, I know that this morning we have a

3 tendency to put matters off but the issues that Your Honour has just

4 raised in my opinion, using the word "opinion" I hope advisedly are of

5 real procedural importance. It's an issue I would like to discuss with

6 Mr. Stewart. We have discussed the matter briefly prior to the submission

7 I first made this morning but I would like to consult with him further if

8 I would be permitted.

9 JUDGE ORIE: Yes, you'll have an opportunity to do so.

10 Mr. Josse, perhaps we could use the next break for that.

11 MR. JOSSE: Yes.

12 JUDGE ORIE: And perhaps if there is anything Mr. Harmon would

13 like to raise now so that you can include that in your further

14 consultations.

15 MR. JOSSE: The only thing is, Your Honour, the next break we are

16 both -- we need to have a consultation with our client about item 15 on

17 the agenda because we haven't had the reports prior to this morning.

18 JUDGE ORIE: We received them relatively late as well, yesterday.

19 MR. JOSSE: And one is not in my client's language so we've

20 already earmarked that time to go and see him.

21 JUDGE ORIE: Then perhaps it's not of such an urgency but I'll

22 first give an opportunity to Mr. Harmon to raise whatever he wants to

23 raise in this respect so that you can include that in your further

24 internal discussions and second I'd like to know from Mr. Harmon, since

25 he's working on the basis of a summary, how much material is there? Are

Page 20836

1 we talking about 20 pages, 100 pages or 500 pages?

2 MR. HARMON: Your Honour, that's why I was holding this file in my

3 hands. I'll display it to the Court. I would say it's 45 to 50 pages,

4 and that was going to be the point of my question. I have given this to

5 the Defence sometime ago so they could examine. I have identified the

6 source of this to the Defence. I have had an opportunity to inform them

7 of the conclusions that we have reached based on the interpretation. I

8 don't particularly care to have this much work done by the language

9 assistants if counsel and I can agree that certain facts are evident in

10 this particular file. So my suggestion, Your Honour, would be that

11 counsel had this for a considerable period of time before I embarked on

12 having this whole file translated, that we see if we can reach a number of

13 agreed facts from it and certainly, the fact that Your Honour inquired

14 about, where Mr. Hotic was killed, is clear. It's revealed in this file.

15 So perhaps we can approach it in that manner.

16 [Trial Chamber confers]

17 JUDGE ORIE: First of all, Mr. Josse, the Chamber gives you an

18 opportunity to further consult on the matter with Mr. Stewart. There is

19 another matter. If either on the basis of the position the Defence will

20 take after the consultations, or if the Chamber would order the

21 Prosecution to provide the Chamber with the information, the Chamber would

22 like you also very much to see if there is any way of agreeing with the

23 Prosecution on the content of that material. I mean, the questions are

24 clear. The Chamber wants to see to what extent there is material which

25 supports or does not support the evidence of the witness Pasic.

Page 20837

1 And the Chamber -- I mean, we know that if you're talking about

2 court proceedings, that you get a lot of other stuff in it which, of

3 course, is not the core interest of the Chamber to know. So would you

4 please then include in your conversation with Mr. Stewart also the

5 practical way of dealing with the matter, which could be that there is an

6 agreed summary of the core content of this material, as far as relevance,

7 in relation to the questions the Chamber raised.

8 MR. JOSSE: I assure the court that we will do that.

9 JUDGE ORIE: Do you have any idea when you could -- perhaps there

10 is even a second break. I do not know. Let's --

11 MR. JOSSE: I would quite like to try and resolve this matter this

12 morning.

13 JUDGE ORIE: Yes. Then we also could -- I mean usually the first

14 break is half an hour. We could have -- we perhaps could make the break

15 longer.

16 MR. JOSSE: Great minds think alike, Your Honour. Mr. Stewart

17 said exactly the same to me at the moment Your Honour was uttering those

18 words.

19 JUDGE ORIE: Yes. Thank you. Then we'll hear from you at a later

20 stage this morning. We are close at the moment to a break but let's just

21 see whether there is -- yes, then we have the, I would say, although not

22 exactly the same but the parties were invited to meet and to see whether

23 they could agree on a method of introducing the evidence on

24 Prosecution's -- in Court of Novi Grad and Banja Luka. An agreement could

25 not be reached and the Chamber would now like to hear from the parties

Page 20838

1 briefly their objections or their opinions on, positive opinions, on

2 admission of that evidence. Let's take the same procedure here again that

3 we will first hear from you, Mr. Josse, that you first explain to us the

4 basics of your objection and then to see whether we should ask the

5 Prosecution to provide us with the material before making a final

6 determination.

7 MR. JOSSE: I rise, Your Honour, because I think I stand to be

8 corrected by Mr. Harmon, the issue is identical, absolutely identical.

9 JUDGE ORIE: Absolutely identical. Yes. Here the same, the

10 Judges asked for it so you say identical, that's the issue that under Rule

11 85, evidence called by the Chamber should be -- it's also a matter for you

12 to discuss with Mr. Stewart.

13 MR. JOSSE: Precisely.

14 JUDGE ORIE: Yes, that's quite clear. Then we'll hear from you

15 after perhaps a prolonged break. Unless there's any matter, Mr. Harmon,

16 you would like to raise at this moment?

17 MR. HARMON: No, Your Honour, I think the procedural point is the

18 same.

19 JUDGE ORIE: Yes. Okay. Then we'll hear from you. Perhaps we

20 try to finish the agenda on part A, then have the break, and then move on

21 to part B, other matters on the agenda.

22 For the next agenda item, that's agenda item 8, we should turn

23 into private session.

24 [Private session]

25 (redacted)

Page 20839

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2

3

4

5

6

7

8

9

10

11 Pages 20839-20844 redacted. Private session.

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Page 20845

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 [Open session]

15 THE REGISTRAR: We are in open session, Your Honours.

16 JUDGE ORIE: Yes. Thank you, Mr. Registrar. First of all I would

17 like to ask Mr. Josse and Mr. Stewart whether the -- their conversation

18 has changed in any way, I would say, the 98/85 issue that is evidence

19 requested by the Chamber, and Mr. Josse, perhaps there is no need but

20 since it also covers number -- let me see, I think it's number 8 on the

21 agenda, I'd like you to take care that nothing is said which would violate

22 any protective measures.

23 MR. JOSSE: Your Honour, we didn't spend a lot of time on the

24 issue, for reasons I've already explained. Our discussion indicated that

25 we would like to have another opportunity to discuss it before I make

Page 20846

1 further submissions to the Court.

2 JUDGE ORIE: Yes.

3 MR. JOSSE: So at the next break would be convenient for us.

4 JUDGE ORIE: Yes. If there will be a next break. Perhaps there

5 will be a short break. Yes, we'll grant you that opportunity.

6 MR. JOSSE: I'm very grateful.

7 JUDGE ORIE: Then we continue with the agenda. We are now in part

8 B.

9 Mr. Harmon, item 9 on the agenda deals with that portion of the

10 testimony which told about an attack on a convoy. Could you please inform

11 the Chamber?

12 MR. HARMON: Yes, Your Honour. Thank you. I became aware of this

13 issue when I got the agenda. I looked at the transcript last night and I

14 am in a position to inform the Court that we do have videos that we will

15 provide to the Defence.

16 JUDGE ORIE: Yes. And then the Defence could decide whether they

17 want to use that video, and I take it then since it's your video that it

18 could be introduced even without recalling Mr. Mikic?

19 MR. HARMON: Yes, Your Honour. That's fine. Or it could be

20 introduced by the Defence and we would have no objection. It's video

21 footage from a commercial television station.

22 MR. STEWART: In fact, we believe, Your Honour, it's Mr. Micic,

23 this particular witness.

24 JUDGE ORIE: Yes.

25 MR. STEWART: Just say thank you and noted, Your Honour, we'll

Page 20847

1 look at that.

2 JUDGE ORIE: So the material is now available. We first leave it

3 to the Defence. If finally the Chamber would -- if the Defence takes no

4 action, if the Chamber would like to see it, then we'll let you know and

5 then both parties have in their possession a copy.

6 So then we move to item 10 on the agenda. That is about exemplars

7 of contracts where the Chamber, as you may have noticed, wanted to find a

8 little bit how widespread, how common it was. Mr. Harmon?

9 MR. HARMON: Yes, Your Honour, I think the issue in terms of its

10 final resolution today might be a little premature. I say that for the

11 following reasons. The information that I had available to me, I shared

12 with the Defence. We were supposed to get back together again to discuss

13 it. We have not had the occasion to do so. But let me in the meantime

14 inform the Court what I have collected, and I have access to additional

15 information and I seek the guidance of the Chamber in this respect.

16 We have gone through our archival materials and we have copies of

17 a number of municipal decisions regulating the departure of moving out of

18 people from municipalities in the ARK region. I specifically referred to

19 Kljuc, Petrovac, Sanski Most, Bosanska Krupa, Prnjavor, Bosanski Novi, so

20 we have the copy of the legislative framework from those decisions.

21 Second of all we have very few exemplars of the type that gave

22 rise to this issue, which was P340. We have some but we have very few.

23 We -- much of that material, and -- that relates to that exhibit and

24 similar types of decisions that were imposed on people leaving are found

25 in witness statements. It's clear to me that our investigators didn't

Page 20848

1 collect a great deal of that material; however, we do have access, I'm

2 told, to that material. I'm told that my investigators have been in

3 contact with the authorities in Bosnia and there are literally thousands

4 of these types of reports. I have been forewarned from having my

5 investigator go collect those until I find out approximately how many of

6 those or what kind of guidance I can receive from the Trial Chamber in

7 that respect. I'm told we can get access to those. So I'm at your

8 disposal, Your Honours. I can provide you -- therefore I can provide with

9 you a legislative framework materials, I can provide you with some limited

10 number of exemplars, and I have access to other exemplars of the type.

11 JUDGE ORIE: Do they originate from several municipalities?

12 MR. HARMON: Yes.

13 JUDGE ORIE: The exemplars, how many municipalities would it

14 cover?

15 MR. HARMON: I have not received that information yet. What I

16 have received is that there is an agency in Bosnia that has 3600 reports

17 dealing with claims, property claims, approximately 70 per cent of those

18 are dealing with housing issues. So I'm assuming based on this limited

19 information that I have, those are the types of reports.

20 JUDGE ORIE: Yes, of course, yes. I can imagine that if you

21 reclaim your property, that a file will be established, which perhaps not

22 necessarily contains the document which was used once the property was

23 abolished. So therefore, the Chamber, of course, has heard some evidence

24 on the procedures established later to return and to claim again any

25 property which is -- was lost or was supposed to be lost or by whatever

Page 20849

1 means but the Chamber, of course, is specifically speaking for the

2 documents signed or drafted at the moment when persons were leaving the

3 municipality under circumstances which could at least raise the issue to

4 what extent it was voluntarily.

5 MR. HARMON: Your Honour as I say I have a very limited number of

6 those exemplars and I could certainly ask my investigator to collect other

7 exemplars from this agency that allegedly has them. I've not been in

8 touch personally with that agency but I'm informed they have those types

9 of documents.

10 JUDGE ORIE: Yes.

11 [Trial Chamber confers]

12 JUDGE ORIE: The Chamber would like to give you the following

13 guidance, Mr. Harmon. What the Chamber would like to see is examples of

14 it and if that agency could, for example, say, this is a typical example

15 of municipality X, we have 65 similar documents, but we give you one or

16 two or three examples. If there are different types of documents, then we

17 would like to receive copies of each of these types, and again, we would

18 like to be informed how many of those documents are there. We don't have

19 to see them all. Perhaps, of course, it is of importance if similar

20 documents would be signed by all ethnicities, to be informed about that as

21 well, whether it's a mono-ethnic enterprise or just Muslims or just Croats

22 or just Serbs or just two or three of these groups. We would like to know

23 that. We would like to know how many there would be available, and we

24 would like to have a typical examples of those documents for the various

25 municipalities.

Page 20850

1 MR. HARMON: Yes, Your Honour, I've noted that. I'll proceed in

2 that fashion.

3 JUDGE ORIE: Unless, since the Chamber asked the Prosecution to

4 engage in this effort, if there is any wish by the Defence to have this,

5 to make it a bit wider, then, of course, please raise it so that we could

6 invite the Prosecution to include that in their efforts.

7 MR. STEWART: Your Honour, such questions were going through our

8 minds and rather a number of questions are raised by what Mr. Harmon has

9 very fairly informed us all about this morning. Your Honour, we, with

10 respect, would be content to proceed as Your Honour has just outlined to

11 the Prosecution. The question then of whether any broadening needs to be

12 done or where we go from there we suggest can be then faced at that point.

13 JUDGE ORIE: Yes, but if, of course, we could already see at this

14 moment that for example if you'd like to know, I want the size of the

15 property to be known as well, better ask it now so that we don't have to

16 go into a second round, if you would consider that very important.

17 MR. STEWART: Your Honour, if anything had immediately struck us,

18 to be added, we would have said so, and, Your Honour, it doesn't straight

19 away so may we maybe leave it on that footing?

20 JUDGE ORIE: I take it that within the next 36 hours if something

21 would come to your mind you would inform Mr. Harmon and he would be kind

22 enough to include that in his request to his investigators.

23 MR. STEWART: Indeed, Your Honour, there are two separate things,

24 whether more or less immediately within the next day we think of things

25 that we would like to be introduced straight away here in this exercise,

Page 20851

1 then there still remains the question of when this first stage has been

2 done, what then needs to be done.

3 JUDGE ORIE: Of course.

4 MR. STEWART: But Your Honour we are perfectly content with that

5 basis.

6 JUDGE ORIE: Then let's move to our next issue. The next issue on

7 the agenda, under 11, is Prosecution wanted to make observations on the 65

8 ter summaries provided by the Defence. Mr. Harmon?

9 MR. HARMON: I won't be long on this, Your Honour. Our

10 observations on this point are what I have said on numerous occasions.

11 There is a practice in this Court in respect of 65 ter summaries, they

12 have to be factual, they have to be provided within a certain period of

13 time, as do exhibits and we only reiterate our need to have that guidance

14 complied with so we can properly organise our work.

15 JUDGE ORIE: Yes. You'd say I emphasise again that timing and

16 quality is considered to be insufficient still at this moment, Mr. Harmon?

17 MR. HARMON: The timing is certainly giving us some difficulties

18 Your Honour, and given the manner in which we work, we need the time that

19 is allotted by the guidance to complete our work properly.

20 JUDGE ORIE: Yes. Then may I, Mr. Stewart, especially if you

21 would soon examine a witness which takes considerable time, take at the

22 same time care that any 65 ter summaries for witnesses that would come

23 after that would be provided in the accepted quality and within the time

24 limits, and as early as possible to the Prosecution.

25 MR. STEWART: Your Honour, we take on board both what Mr. Harmon

Page 20852

1 has said and, of course, Your Honour's observation.

2 JUDGE ORIE: Yes. Then we move to item 12 on the agenda, which

3 has been requested by the Defence, and that's the application of Rule 68.

4 MR. JOSSE: Your Honour, I can deal with this extremely briefly.

5 JUDGE ORIE: Yes, Mr. Josse.

6 MR. JOSSE: We want to say this: That the Defence have been in

7 correspondence with the Prosecution on this issue. The Prosecution for

8 the most part have answered most of the questions that we have hitherto

9 raised. As a result of a lengthy letter from Mr. Harmon, we are going to

10 respond to that in due course. I hope that the matter can be resolved

11 between the parties but if not clearly we will have to bring it to the

12 attention of the Court by way of motion. That's all I think I can

13 usefully say this morning.

14 JUDGE ORIE: Can you perhaps tell us whether your discussion is

15 about 68 (i) or (ii)? Is it about exculpatory material or is it a wider,

16 well, let's say the electronic disclosure which we find in the second

17 paragraph of Rule 68?

18 MR. JOSSE: It's basically in relation to exculpatory material.

19 That's the area that the Defence are pursuing.

20 JUDGE ORIE: Of course that's always is a very sensitive issue

21 also for the Chamber so the Chamber also hopes that the parties will

22 resolve the matter. If not, of course, we'll hear from you, Mr. Josse.

23 MR. JOSSE: Thank you.

24 JUDGE ORIE: Then we have now at item 14 on the agenda.

25 We would like to clarify what the position is in relation to

Page 20853

1 experts, because we -- two fields of expertise have been indicated by the

2 Defence as fields in which they would like to produce expert reports. I

3 think the Chamber did not find on the last list any experts, any more,

4 which is perhaps not surprising because whether experts should be called

5 or not depends on whether the other party accepts the report, yes or no,

6 and whether they insist on cross-examination so I can imagine that you

7 leave these experts out of the list because you assume that the other

8 party would accept the report but it could also be that you don't want to

9 present any expert reports, and especially since the Chamber I think said

10 that the names should be disclosed to the other party already earlier this

11 month, the Chamber is not aware of whether this has been done and whether

12 there are still experts -- expert reports to be expected. Mr. Stewart?

13 MR. STEWART: First of all, Your Honour, has item 13 been omitted

14 for the same reason that sometimes football teams don't have a 13 player

15 or airlines don't have a number 13 seat? Or are -- have we just missed

16 it?

17 JUDGE ORIE: I made a mistake in that respect, Mr. Stewart. I'm

18 not that familiar with what happens on football teams.

19 MR. STEWART: It's the number 13, Your Honour.

20 JUDGE ORIE: The only thing I know is that Johann Cruijff always

21 had number 14. That's --

22 MR. STEWART: As did [inaudible], Your Honour.

23 JUDGE ORIE: We will deal with that after the experts.

24 MR. STEWART: Your Honour the position is in fact quite different

25 than anything Your Honour has supposed. It is bluntly this: In our

Page 20854

1 assessment of our work and our examination of our work, and our

2 consideration of what was required, particularly for counsel's work, let

3 alone the support team, we faced -- well, have faced consistently but at

4 the time when the question of responding and meeting directions in

5 relation to expert evidence arose, we had such a massive deficit in terms

6 of the time and hours available to do the work that required the hours it

7 required, that we took one of the more robust decision that is we have

8 been compelled to take in this case, and decided to cease any further

9 exploration of the issue of expert evidence.

10 JUDGE ORIE: Yes.

11 MR. STEWART: So we just struck them off the list. It's

12 regrettable, Your Honour, because although -- I stand by what I indicated

13 some weeks ago now, Your Honour, that this Defence team, acting on

14 Mr. Krajisnik's behalf is not particularly wedded to the notion that

15 excessive expert evidence is going to help anybody, but, Your Honour, we

16 certainly would have preferred to reach a considered conclusion, but we

17 haven't. Time is too short. Life is too short. We have been encouraged

18 to take a robust approach. This is a far more robust approach than we

19 would have wished, but we have adopted it. And that's the reason,

20 Your Honour, they were deliberately taken off the list because there is

21 frankly nothing we could do about it.

22 JUDGE ORIE: At least that clarifies the issue, Mr. Stewart. I

23 tend to agree with you that time is short. How long life will be, I don't

24 know that yet but we will find that out as well.

25 So we turn to 13, 92 bis witnesses. We find some 92 bis witnesses

Page 20855

1 on the list. We also find some 92 bis witnesses on the list who have--

2 deceased. Could we hear from the Defence how they -- because we have not

3 heard at this moment of any appointment of officers who would fulfil the

4 formalities attached to the living 92 bis witnesses. We have not received

5 any request on the admission of witnesses under 92 bis(D). So therefore

6 the Chamber wonders what to expect.

7 MR. STEWART: Your Honour, may we say it's a perfectly fair

8 inquiry, Your Honour. If at some point we do put forward any 92 bis

9 statement with an application for admission, then obviously that will be

10 because we consider it important enough to do that. But in general,

11 Your Honour, in relation to the not very many but few witnesses who have

12 been identified on our list as candidates for 92 bis it is simply from our

13 point of view no where near the top of the list of our priorities. We

14 recognise that if we are going to make any application under 92 bis it's

15 got to come at a time allowing it to be considered and in relation to

16 those witnesses who are still alive obviously to consider the question of

17 whether they may be asked to attend for cross-examination as a condition

18 of admissibility but Your Honour that is the position. We are not -- we

19 recognise that there comes a point at which it simply is in practice too

20 late to make such an application but that's our position, Your Honour.

21 JUDGE ORIE: It came into my mind, Mr. Stewart, when I read that

22 some witnesses under 92 bis were also 92 bis(D) witness as well, it will

23 certainly not take any court time because cross-examination of witnesses

24 who are deceased seems to be impossible so therefore it doesn't take any

25 court time. It might add to the evidence you can present, present for the

Page 20856

1 Defence case, so therefore we wondered, I mean, it's not a very complex

2 matter. Of course, you have to look at the transcript of the -- or the

3 statement given by the deceased witnesses but it's not a very complex

4 matter to submit that to the Chamber. It doesn't take any court time.

5 MR. STEWART: No, no, Your Honour, as far as -- let's put it in

6 those two categories. So far as the deceased witnesses are concerned

7 cross-examination either doesn't apply or it's ineffective. The --

8 Your Honour, so far as those witnesses are concerned Your Honour is

9 absolutely right. There is no more to be got from them obviously. But

10 there may be, well, there is, perhaps a little bit of further background

11 investigation that may require to be done but, Your Honour, I believe I

12 can assure you that isn't going to be a problem. There is either going to

13 be some 92 bis material from the deceased witnesses in the next week or so

14 or there isn't. So far as the living witnesses are concerned, well,

15 Your Honour is aware that that may not just potentially require more court

16 time but the careful prepare significance of a 92 bis witness can take

17 rather a lot of Defence team time, sometimes even more than viva voce

18 witnesses to be confident that it can safely be put in.

19 JUDGE ORIE: We just draw the attention to this matter because if

20 it's not five minutes to 12 then at least it's close to 12 if it's perhaps

21 not ten minutes or quarter to 12 then we are approaching 12 o'clock. The

22 Chamber is also interested to see that as much relevant evidence reaches

23 the Chamber but, of course, at the same time the Chamber has set some time

24 limits and so therefore you could consider this to be an encouragement,

25 not to leave the Chamber without sources of information which might be

Page 20857

1 relatively easily available.

2 MR. STEWART: Yes, we'll accept it in that spirit, Your Honour.

3 JUDGE ORIE: Yes. Then the next item, 15, on the agenda, unless

4 the Defence would insist on open session, I would first go into private

5 session because it might be an appropriate way of dealing with it, not

6 necessarily but I leave it to the Defence and to Mr. Krajisnik.

7 MR. STEWART: Well, Your Honour, before Mr. Haider makes the call,

8 in fact the Defence's position is that with just a small qualification,

9 which we submit is not at all difficult, we would ask for it to be in

10 public, open session.

11 JUDGE ORIE: Okay.

12 MR. STEWART: The qualification is only this, Your Honour, that we

13 would invite everybody and we have complete confidence in all those

14 dealing with the matter to use discretion as to the precise treatment that

15 Mr. Krajisnik is receiving which in fact is not detailed very much any way

16 in the material before the Court. But Mr. Krajisnik otherwise is -

17 JUDGE ORIE: Of course a motion was filed confidentially and

18 therefore the Chamber takes caution.

19 MR. STEWART: Your Honour is absolutely right. Of course, it was

20 our initiative to do that but Mr. Krajisnik, of course, is no more

21 enthusiastic than any other human being to have such matters aired

22 publicly. He is, after all, already here on trial for these charges in a

23 public court so he would prefer it to be dealt with in that way.

24 JUDGE ORIE: Then I leave it up to you, Mr. Stewart, in further

25 arguing the matter to what extent you would give any further details. At

Page 20858

1 this moment, I just mention that a confidential motion was filed and that

2 as a result of that confidential motion, the Chamber has asked for some

3 further medical information with the consent of the Accused to give this

4 information to the Chamber, which is not exactly the same as this

5 information to be filed and how to be filed but that's a matter perhaps

6 you could raise at a later moment. I'll leave it to you at this moment to

7 introduce the matter in this open session and add whatever you would like

8 to add to your motion and also to pay attention to the reports we received

9 yesterday, to the extent you deem that useful.

10 MR. STEWART: Thank you, Your Honour. While I'm introducing

11 Your Honour, may I say I should have done it perhaps earlier but it's

12 customary to introduce new members of our team. May I introduce Ms. Sarah

13 Sheffield who is unhappily for us only temporarily but nevertheless very

14 valuably assisting us in this case. If there were an Australian quota on

15 the Defence team we are doing our best to keep it up.

16 JUDGE ORIE: Yes, welcome in this courtroom, Ms. Sheffield.

17 Please proceed, Mr. Stewart.

18 MR. STEWART: Your Honour, the -- we -- of course, it's just today

19 that we've had a chance to consider the reports and discuss them briefly

20 with Mr. Krajisnik. The two reports without any -- no intended

21 disparagement at all of the general practitioner attending to

22 Mr. Krajisnik, the two reports are that they are largely one report

23 because he for practical purposes says, well, yes, I endorse the -- and go

24 along with the report received from the forensic psychiatrist who has sent

25 him her report from Belgrade. Your Honour, our submission is that this

Page 20859

1 report has certainly addressed specifically and helpfully the particular

2 questions which Your Honour, on behalf of the Trial Chamber, framed and

3 referred to the medical practitioners and it's a valuable and helpful step

4 in resolving this matter.

5 So far as the motion is concerned, what the report doesn't

6 address, because in entire fairness it wasn't asked to address at this

7 point, is particularly, if we look at paragraph 10 of our motion, C, the

8 effect of his condition on ability to deal with the rigors of the case.

9 Of course there are some implicit comments and some implicit guidance on

10 these matters in the report but it's not a question specifically

11 addressed. A, B, and D are for practical purposes quite closely

12 addressed. So is E, present, prospective capability of working on his

13 case. There is quite a lot of material in the report addressing that. It

14 doesn't -- the reports were not asked to and therefore don't specifically

15 address F, which is really critically important and also it ties in, of

16 course, with the whole scheduling question, G, the prospect, desirability,

17 and ability of Mr. Krajisnik to give evidence for, well, what is normally

18 contemplated, about four hours a day, five days a week, for what on

19 everybody's expectation would be a period of at least five consecutive

20 weeks. Well, that's certainly the expectation as it stood when the motion

21 was filed.

22 So, Your Honour, we do welcome this report as a first step, but we

23 do then, in the light of this report, which is positive, of course, in

24 relation to the effects of the treatment, that it's clear that happily the

25 treatment has been having some clear, beneficial effect and, Your Honour,

Page 20860

1 it wouldn't be out of place here, without usurping anybody's function, to

2 acknowledge that that is consistent with the Defence team's own

3 observations, because we have thought it our responsibility and we did

4 some considerable time ago alert the Registry to such observations as we

5 were clearly able to make and certainly Your Honour that is consistent

6 with our own observations over the very recent past.

7 But, Your Honour, we nevertheless submit that the matter is of

8 sufficient importance and significance that this most helpful report from

9 Dr. Petrovic should be regarded now as justifying and requiring a further

10 specific examination rather than a retrospective report of examinations

11 already conducted, which addresses the precise matters in the motion and

12 brings the matter right up to date. Your Honour, we, so far as the

13 identity of the person conducting the report is concerned, we would have

14 absolutely no difficulty whatever with it being a further examination and

15 report by Dr. Petrovic, as soon as that can conveniently be arranged.

16 That would seem in many ways to be absolutely the most practical and

17 helpful thing to do rather than chopping and changing from one person to

18 another. But we do suggest that this retrospective report of relatively

19 brief examinations and we don't think that there is any special contest

20 about that although it is a very helpful report, should lead on to the

21 full examination which we do request in the motion.

22 JUDGE ORIE: Thank you, Mr. Stewart.

23 Mr. Harmon, perhaps before I give an opportunity to you,

24 Mr. Harmon, Mr. Krajisnik, is there anything you would like to add to what

25 Mr. Stewart just raised? Because, of course, this is a matter on which

Page 20861

1 not the knowledge of the law or even the knowledge of the facts is of

2 vital importance but, of course, you're the one who is best able to add

3 whatever you think it is you want to add.

4 THE ACCUSED: [Interpretation] I am very unwilling to discuss this

5 subject, but I think that Mr. Stewart, basically, said everything that

6 matters. I had come to the very end, to so speak, and that is why I

7 sought the assistance of the doctors and they really helped me in a

8 comprehensive manner. The situation is better now. Not everything has

9 been resolved though. There are many things that need to be done in

10 addition to what has already been done in order to bring this to an end.

11 JUDGE ORIE: If you say many things have been done which need to

12 be done but there are still other things to be done to bring this to an

13 end, do you -- do you refer to medical attention? Perhaps psychological,

14 psychiatric attention to be paid to your present condition, or were you

15 referring to what happens in this courtroom?

16 MR. STEWART: Well, Your Honour, so far as it's the latter,

17 perhaps the -- with respect, Mr. Krajisnik's participation at this point

18 could be confined to the former because the latter is another item on the

19 agenda, connected, of course, in various obvious ways.

20 JUDGE ORIE: Yes, but if Mr. Krajisnik speaks a sentence, at least

21 I would like to know -- I'm not asking him to elaborate on it but I just

22 wanted to be sure that I understood his last portion of his observation

23 rightly. That means whether he was referring to mainly medical condition

24 and what has to be done in that area or whether he, with that sentence,

25 also referred to what happens in this courtroom.

Page 20862

1 THE ACCUSED: [Interpretation] Specifically, what I had in mind was

2 that the situation, the way I understand it, as a lay person, and that

3 contributed to my condition, is the fact that for over two years I slept

4 in storage, basically, and now some measures have been taken, will

5 contribute to making the premises more fitting. I believe the doctors on

6 the other hand are fair and that they will do the right things. I find

7 this embarrassing but I have to say that as I lived in this storage room

8 among these archives, I would sweat six times during the night. Now I

9 sweat only twice. So I don't have to get up all the time to change. I

10 believe that would be sufficient. The doctors are going to take measures.

11 I know what the situation is like. The doctors will deal with it

12 professionally. I need these archives so I need these things, but then I

13 agree with what Mr. Stewart said as well, as for the rest. So that is

14 basically what I had in mind.

15 JUDGE ORIE: Yes.

16 [Trial Chamber confers]

17 JUDGE ORIE: Then, Mr. Krajisnik, I would like to give an

18 opportunity to Mr. Harmon to respond to the motion. Please be seated.

19 Mr. Harmon?

20 MR. HARMON: Your Honour, we have very little to say about this

21 motion. We reviewed the reports that we received today --

22 JUDGE ORIE: Perhaps if I may interrupt you, Mr. Harmon. I should

23 have put on the record that apart from the medical information we

24 received, that we also received information about some developments in

25 the, well, let's say, the housing of Mr. Krajisnik and the housing of his

Page 20863

1 files. I take it that the parties got copies of that information in

2 exactly the same form as we received that.

3 MR. HARMON: Yes, Your Honour.

4 JUDGE ORIE: Yes, please proceed.

5 MR. HARMON: We have very little to say about this motion,

6 Your Honour. Our principal concern is that we proceed with this case in a

7 proper fashion, and that we proceed as quickly as is desirable on this

8 case. I have just reviewed this report. I have looked at counsel's

9 motions, under F and G, those points specifically do not appear to be

10 addressed in the report. I think that if there is -- if the Court is

11 inclined to have the doctors revisit these two issues, our only concern is

12 that it be done very, very quickly, obviously within the framework of a

13 proper forensic examination but it be done very quickly. Those are our

14 only submissions, Your Honour.

15 JUDGE ORIE: Thank you, Mr. Harmon.

16 [Trial Chamber confers]

17 JUDGE ORIE: Mr. Stewart, the Chamber considers it wiser at this

18 moment to first take some time for reflection. Whether that would still

19 be today or tomorrow is another matter. But we want to exchange our views

20 in order to form the opinion of the Chamber on whether your request for a

21 further psychiatric examination, as you said, what was there is the first

22 step, whether that's really the first step or the last step, we'll

23 consider that, and give as soon as possible a decision on it. And it's

24 clear that you said that F and G were not -- and C were not specifically

25 included, and I emphasise specifically included in the report.

Page 20864

1 MR. STEWART: Yes, may I emphasise Your Honour that while we

2 recognise that a number of these elements in paragraph 10 of the motion

3 have, as I said, by implication been at least partly covered, Your Honour,

4 we do certainly adhere to our submission that it isn't just a question of

5 specifically. Those points are not covered in the report in any

6 substantial way.

7 JUDGE ORIE: Yes. Then we move on to the next item on the agenda.

8 No, there is one issue which needs some attention, and I again address

9 Mr. Krajisnik.

10 Mr. Krajisnik, you gave your consent for the Chamber to be

11 informed.

12 MR. STEWART: I can answer this, Your Honour, because I have

13 discussed it specifically with Mr. Krajisnik. It was understood and is

14 confirmed, if there is any doubt, that the consent extended to anybody in

15 the Trial Chamber and the Prosecution, in the registry, and, of course,

16 Mr. Krajisnik's own defence team having free access to these medical

17 reports.

18 JUDGE ORIE: Yes. That it would mean that filing, but

19 confidential filing would then be appropriate for these reports.

20 MR. STEWART: Your Honour, we suggest that it would. That such

21 information as has inevitably been revealed in this public session.

22 JUDGE ORIE: But not the details.

23 MR. STEWART: Indeed, Your Honour.

24 JUDGE ORIE: Then the Chamber instructs the Registry to -- would

25 that -- I take it -- just include the medical reports and not the report

Page 20865

1 on new storage facilities? I mean --

2 MR. STEWART: Your Honour, the -- we suggest that the filing

3 cabinets at this institution don't need to be cluttered up with further

4 copies about stuff about filing cabinets.

5 JUDGE ORIE: Yes. You would seem to fill the filing cabinets on

6 reports on cabinets.

7 MR. STEWART: It could go on forever, couldn't it, Your Honour.

8 JUDGE ORIE: So then the Registrar is instructed to file

9 confidentially the reports made by Mr. Falke dated the 21st of February

10 2006 and the report by Dr. Vera Petrovic, a neuropsychiatrist, dated the

11 18th of February 2006. Filing should take place confidentially. Yes,

12 that's what I said already.

13 Then we come to our final -- the last point on the agenda which is

14 scheduling of Defence witnesses and practical matters related to the

15 accused's testimony. Perhaps just for the record there has been a request

16 by the Defence to delay the beginning of the testimony to be given by

17 Mr. Krajisnik until next Wednesday, the 1st of March. The Chamber has

18 denied that request, but at the same time has moved the next Monday,

19 that's the 27th of February, hearing to the afternoon, giving in this way,

20 at least an opportunity to -- for some communication between Defence

21 counsel and the Accused before the testimony would start. Then the

22 Chamber has received an information that the Defence had decided to call

23 two witnesses to give testimony first, starting on the 27th of February,

24 and the Chamber has then decided the parties are informed about that, that

25 this rescheduling of the -- well, that was not -- the information the

Page 20866

1 parties received is that the Chamber decided that the victims and

2 witnesses section should not take any further action at this moment on

3 getting these witnesses in The Hague, for the apparent reason that the

4 Chamber expected Mr. Krajisnik to be the next witness to be examined and

5 that such a change in the programme would at least have needed the prior

6 consent of the Chamber.

7 I take it, Mr. Stewart, that the issue is primarily of importance

8 to you, although, of course, it's also important for the Prosecution and

9 the Chamber so I would like to give you an opportunity first to submit

10 whatever you would like to submit in this respect to the Chamber.

11 MR. STEWART: Your Honour, the issue is of absolutely central

12 importance to everybody.

13 JUDGE ORIE: That's what I said but most of all for you, yes.

14 Please proceed.

15 MR. STEWART: Well, Your Honour, yes and no, in a sense. It is,

16 of course, it's -- for Mr. Krajisnik, when you say you mean Mr. Krajisnik,

17 in effect, and us representing them. I understand that, Your Honour.

18 Yes, of course, for Mr. Krajisnik it's most important of all because he's

19 the man on trial but it is of central importance to everybody, by which I

20 mean everybody beyond this court, that this matter is approached with the

21 utmost care and conscientious by all concerned. The position is this:

22 Mr. Krajisnik wishes to give evidence in his own defence. That has been

23 his unequivocal position since -- well, as far as I recall, the beginning,

24 very beginning of the trial. It's been reiterated on a number of

25 occasions. I don't believe that there has ever been any suggestion or

Page 20867

1 contradiction of that emanating from the Defence or Mr. Krajisnik included

2 in that definition, of course.

3 He quite naturally wishes to give evidence when he is and feels

4 adequately prepared to do that. And unsurprisingly, that position is 100

5 per cent endorsed and supported, as it must be, by his counsel and the

6 rest of his Defence team.

7 I professionally, on this -- I have the overall conduct of the

8 case on Mr. Krajisnik's behalf. Many decisions are decisions which are

9 for me to take after appropriate consultation with Mr. Krajisnik. The

10 decision whether Mr. Krajisnik gives evidence or not is his, and I

11 naturally, loyally implement that decision, and I've indicated again

12 clearly to Your Honour on behalf of Mr. Krajisnik, which way in principal

13 that decision goes. Nevertheless it is my professional responsibility to

14 Mr. Krajisnik, and as a matter of fact, to the Court, and all concerned,

15 not to take the initiative to put Mr. Krajisnik in the witness box at a

16 point where he is not in, I'll say "our" because the team of two counsel

17 presenting this case, not in our professional judgement, ready and

18 adequately prepared to do himself justice by his own evidence.

19 And that, in exactly the same way that we loyally and

20 professionally give 100 per cent support to Mr. Krajisnik's decision

21 whether or not to give evidence, he gives and has indicated to us, 100 per

22 cent support for our professional judgement on that particular matter.

23 Your Honour, it is our professional judgement that Mr. Krajisnik

24 is not near ready. We, as a team, I'll put it that way, because it is --

25 there is no difference, there is no point in drawing -- no value in

Page 20868

1 drawing any division or distinction, we are Mr. Krajisnik for these

2 purposes. We work with him. We are a team. Mr. Krajisnik is the central

3 person in that team. We, as a team, are not adequately prepared to put

4 Mr. Krajisnik in the witness box in the confidence that he is anywhere

5 near ready to do himself justice. Therefore, Your Honour, we cannot do

6 that.

7 The -- we wish to achieve that as soon as we can. It is apparent,

8 whatever else happens at the next stage, but it is apparent that the

9 matters which have been dealt with in the report under the previous item

10 in the agenda, will not have made that task any easier. In fact, it's

11 blindingly obvious that they will have made it harder. But that isn't the

12 key. They have made, of course, harder what was already a hard and, in

13 practice, impossible task, to meet the target and constantly moving

14 target. The 1st of February date almost put forward in desperation,

15 Your Honour, but then anxiously reconsidered, with our coming to the

16 conclusion which I have just summarised for Your Honours. So Your Honour

17 may I --

18 JUDGE ORIE: The 1st of February, you're referring to, there was a

19 question of delaying, making the 27th of February the -- what we

20 understood to be the 1st of March but --

21 MR. STEWART: I have constantly slipped. I'm afraid that I made a

22 slip in -- I made that slip in writing and it's embedded in my head. I'll

23 try to disembed it. The 1st of March, absolutely right, Your Honour,

24 thank you. Yes, the 1st -- everything I said applies mutatis mutandis the

25 1st of March. We gave it, and we is all of us, anxious consideration and

Page 20869

1 have come to the conclusion which I have just summarised for Your Honours.

2 In the -- in that light, having felt the absolute need a few weeks ago, I

3 forget exactly when, to stop the relentless flow of defence witnesses,

4 with the massive call that that makes, massive drain it makes all the time

5 on the resources of this small Defence team, we felt the need to stop that

6 flow and work on Mr. Krajisnik's evidence, with all the difficulties

7 inherent in the current situation. We recognised that the Court had

8 directed to the case should -- well, must, it was what the Court was

9 ordering -- evidence should restart on the 27th. The Court order strictly

10 speaking did not include a direction or order that it should restart with

11 Mr. Krajisnik.

12 JUDGE ORIE: We checked that carefully, Mr. Stewart. The Chamber

13 was informed that the next witness that would be called would be Mr.

14 Krajisnik, and on that basis the Chamber did not need it necessary to

15 include the name of Mr. Krajisnik in that because the Chamber would expect

16 the Defence to indicate any change of order before it would decide that --

17 at least to approach the Chamber before changing the order which was so

18 clearly focusing on Mr. Krajisnik to be the next witness. That has been

19 said again and again and again. So therefore the Chamber felt no need to

20 expressly make that a part of its order.

21 MR. STEWART: All right, Your Honour. I note that, Your Honour.

22 We read and did read the order, but that's -- Your Honour, that's the

23 way -- whatever the underlying reasons and thinking, the way the order is

24 expressed is, I do submit, as I have just summarised it. But,

25 Your Honour, perhaps we should just move on any way, with respect.

Page 20870

1 We, based on whatever understanding we had, we understood the

2 Court was ordering that evidence should resume on the 27th. So not being

3 remotely ready, properly, to put Mr. Krajisnik in the witness box, the

4 only way we could comply with that was by bringing urgently other

5 witnesses. And that is what we did. And that is what we arranged. And

6 we arranged witnesses who are from within the group, that we have notified

7 to both the Trial Chamber and the Prosecution recently as our -- if you

8 like, our priority list for the immediate future. And so we did arrange

9 that. And, well, Your Honour knows the position was the Court wished

10 those arrangements to be unscrambled. The Prosecution agreed with the

11 Trial Chamber that those arrangements should be unscrambled. I was

12 specifically asked the other morning whether I would agree to the

13 immediate unscrambling of the arrangements to which we had given such

14 careful consideration and urgent attention on the Defence side. Not

15 surprisingly, I did not agree. And that was where we were. But within a

16 very short time the Court made that direction any way and effectively

17 overrode our arrangements and told the Victims and Witnesses Unit not to

18 bring the witnesses we had arranged to bring. Your Honour, may we simply

19 observe we don't fully, with respect, see why that was necessary, given

20 that there would have been ample time to call those witnesses after this

21 morning's hearing any way. They weren't travelling for another couple of

22 days, and Your Honour, we have no wish to cause unnecessary inconvenience

23 to any witness on the Defence side and hope that we haven't done that.

24 But Your Honour, any way, be that as it may, we are now in the

25 position where the Trial Chamber has called off those witnesses for next

Page 20871

1 week. We do not have witnesses for next week. Your Honour, we are not on

2 the Defence side, professionally and responsibly willing to subject

3 Mr. Krajisnik to evidence at this point. We regard it as a breach of our

4 professional duty to do such a thing.

5 JUDGE ORIE: What were the preparation is insufficient? You'll

6 understand, Mr. Stewart, that the claim was quite surprised that -- I

7 think it's only two weeks ago that you said that the 27th would not be the

8 right date but two days later.

9 MR. STEWART: I tried to explain that.

10 JUDGE ORIE: Yes, yes. You said you did it in a desperate mood.

11 MR. STEWART: I can explain it more fully. Your Honour encouraged

12 me to be brief about such things.

13 JUDGE ORIE: I asked you -- I asked you whether -- I said, as a

14 matter of fact, that you would understand that we were a bit surprised by

15 it.

16 MR. STEWART: That I do understand, Your Honour, yes, I

17 acknowledge that.

18 JUDGE ORIE: And now to hear that Mr. Krajisnik is not near or

19 that the Defence is not near to be ready, it's not entirely clear to me.

20 I take it that a witness testifies on the basis of his recollection of

21 facts about which he is asked. I also take it that Defence counsel need

22 to discuss and to study what are the relevant areas on which evidence

23 should be given. It's not entirely clear to me at this moment whether the

24 Defence counsel are not sufficiently prepared to formulate questions or

25 whether there is any other reason why the Defence, which is counsel and

Page 20872

1 the Accused, would not be ready after two years of hearing this case now

2 to tell us what is relevant for us to hear.

3 MR. STEWART: Well, Your Honour, I'm afraid I can't do that right

4 now because if Your Honour really wants the full account of the reasons

5 and the background and why over two years we have got to this point, that

6 is, A, going to take a very long time, and, B, is more suitably the

7 subject of a formal application by the Defence. But, Your Honour, the --

8 may -- let's be realistic, please, may we, I ask rhetorically. This Trial

9 Chamber has imposed, for a very long time, a deadline or date on the

10 Defence, which has been extended, I forget precisely when it was extended

11 sometime around November, last November, extended by seven weeks, so

12 that's how we got to the 28th of April, so since before the new year, the

13 28th of April has been the date.

14 The Defence was, and I'm talking about before that notification to

15 the Trial Chamber of the 1st of March, that it remains the position, in

16 effect, the Defence is faced with this. We have a client who wishes

17 fervently, to give evidence in his own defence before the Defence case

18 closes. We have a client whose evidence does, despite what Your Honour

19 has just said, require the most careful and thorough and detailed

20 preparation, and apart from anything else it requires such preparation if

21 it's going to be given remotely efficiently within the time that anybody

22 would hope it to be presented in.

23 We have then to work back, unless and until that date is changed,

24 we have to work back from the date of the 28th of April, to try to allow

25 for adequate time to present Mr. Krajisnik's evidence-in-chief, and it's

Page 20873

1 perfectly clear under the rules that is our job and that's what we do. Of

2 course, to make allowance for Judges' questions that may come from time to

3 time along the way or at the end of examination by counsel and the

4 application we do and can only assume for the purposes of all our

5 assessment and calculation of the 60 per cent guideline about which the

6 Trial Chamber has tended to become firm, for cross-examination by the

7 Prosecution. In addition to that, we have to accommodate the reasonable

8 need, and I should add the very strong wish, of Mr. Krajisnik that a

9 number of other witnesses on our list should come and give evidence in his

10 support. Also, of course, trying to keep in mind the necessity to review

11 in the light of Mr. Krajisnik's own evidence what are then the top

12 priorities in terms of that other evidence.

13 This task, given the number of witnesses remaining on the very

14 reduced Defence list, is an extremely daunting task. But central to that

15 task remains the essential point that it is not right, it is not fair, we

16 do not do our proper duty as Mr. Krajisnik's counsel if we take the

17 initiative ourselves to put him in the witness box when in our judgement

18 he's not ready. I'm repeating myself now, Your Honour, but that is the

19 position. So we wished then, noting the Court's order that we should

20 restart, we wished to use those days. We wished to call some of that

21 other evidence that Mr. Krajisnik and we, for that matter, on his behalf,

22 Mr. Krajisnik wishes to be called on his behalf. But, Your Honour,

23 exploration of the reasons why we are not ready -- well, Your Honour, if

24 the Trial Chamber does wish to conduct a full investigation and inquiry

25 into that matter, well, with respect it should do it. And it should look

Page 20874

1 at every aspect of the history of this case and it should look at

2 everything that has led up to this point, and not be selective about it.

3 Your Honour, one thing I should say frankly is that the Defence

4 has already decided that it cannot live with the deadline of the 28th of

5 April. Your Honour, we will abide by court orders. This is not a -- this

6 is not a civil disobedience, Your Honour. We are responsible counsel. In

7 the end, what is ordered by this Court, we will do, and if those orders

8 are unscrambled by the Appeals Chamber at any point, we will do whatever

9 the Appeals Chamber orders we should do. It doesn't mean, though,

10 Your Honour, that we are not going to firmly take whatever steps in our

11 professional judgement we consider are proper to take on Mr. Krajisnik's

12 behalf when in our judgement the position does not allow us and him

13 adequately to present his defence. That is our judgement, Your Honour.

14 Your Honours make the ultimate subject, the Appeals Chamber's make the

15 ultimate judgements in the legal framework on these matters. We make our

16 professional judgement about what steps to take, and, Your Honour, that is

17 about as clearly and fairly as we can manage to put it this morning.

18 [Trial Chamber confers]

19 JUDGE ORIE: Mr. Stewart, let me just see whether I and the

20 Chamber understood you well. What you're saying is the Defence is not

21 ready to call Mr. Krajisnik at this moment. When Mr. Krajisnik wants to

22 testify in his own case, when he will be ready, we'll learn that somewhere

23 in the future, we'll abide by your orders, but we know already that we are

24 not in a position to finish the case by the 28th of April, and if you

25 order, as you did until now, that Mr. Krajisnik would start his testimony

Page 20875

1 next Monday, we'll strike him from the list? Is that a correct

2 understanding? Because we consider him not to be ready, it's our

3 responsibility, and despite the fact that you indicated in the beginning

4 that you would call him, which is, I think, fully in accordance with the

5 tradition you come from, we would call him as the first witness.

6 MR. STEWART: It's too late for that, Your Honour, isn't it? With

7 respect. That point has gone a very long time ago.

8 JUDGE ORIE: Do you really, Mr. Stewart, when I refer to this,

9 want to explain to me that he could not be called any more as the first

10 witness? Mr. Stewart, do you really think that this Chamber would not

11 understand that without your comment?

12 MR. STEWART: No, Your Honour --

13 JUDGE ORIE: Mr. Stewart, I was --

14 MR. STEWART: I've envisioned the question --

15 JUDGE ORIE: Mr. Stewart, Mr. Stewart, I want you first now to

16 listen. I was speaking. I was referring to your tradition, in which the

17 Accused testifies first, and then you considered it necessary to interrupt

18 me to tell the Chamber that calling Mr. Krajisnik as the first witness was

19 not possible any more. You should have refrained from doing that, and

20 I'll continue where I was.

21 I was asking myself -- I was pointing -- putting it to you whether

22 we did understand the Defence's position well, despite the fact that you

23 indicated, in the very beginning, that you would call him as the first

24 witness, which, as far as this Chamber understands, but if I'm wrong, you

25 may respond to that at a later stage, that is in accordance with the

Page 20876

1 tradition you come from, and that later on, the moment on which Mr.

2 Krajisnik would testify has been delayed several times, I didn't learn

3 them by heart but I remember there was after the Christmas recess several

4 dates in February were mentioned or late January, then the proposal was

5 let's delay it from the 27th of February until the 1st of March, and now

6 your latest announcement is "we are not ready and when we will be ready

7 it's something we do not know yet, and if we feel that we are not ready,

8 we cannot possibly call Mr. Krajisnik to the stand," which at first I

9 would be understood, that is if the Chamber would insist on continuing

10 this trial next Monday and would insist on Mr. Krajisnik to be the next

11 witness, that you would strike him from the list? That's a question,

12 whether that's a correct understanding. I'm just verifying whether we

13 understood your position well. You may comment on that.

14 MR. STEWART: Yes, Your Honour. May I first of all -- may I

15 apologise if I was abrupt and hasty and --

16 JUDGE ORIE: Apology accepted.

17 MR. STEWART: -- in interrupting Your Honour? May I also explain

18 with respect, though, that my comment was with respect a little bit more

19 subtle than Your Honour seems to believe. I was not being so insolent as

20 simply to point out to the Trial Chamber that somebody who hadn't been

21 called as the first witness could no longer be called as the first

22 witness. With respect, Your Honour, I wouldn't insult Your Honour's

23 intelligence or my own for that matter with such an observation. The

24 point about it was this, Your Honour: That once the opportunity has been

25 lost of Mr. Krajisnik being the first witness, with advantages to his case

Page 20877

1 as well, because that means that, as I would understand it, is one of the

2 reasons for this convention, that then because the accused has to be in

3 court to hear the other witnesses, he then gives his evidence before

4 hearing those other witnesses and can, in effect, submit, well, I gave my

5 evidence clean, as it were, without seeing those other witnesses, once

6 that advantage has been lost so that we have -- and once the advantage of

7 being able to review what other witnesses come along in the light of his

8 evidence, it's really pretty marginal then whether he comes as witness

9 number 16, witness number 18, witness number 19. That was my only point

10 there, Your Honour, that it's water under the bridge there, so

11 Your Honour's reference to our wishing to call him first, which would have

12 been our earnest wish, we are now in a position where, of course, that

13 can't be done but the same considerations simply don't arise. Now, we are

14 faced with overwhelming different considerations which are far more

15 important. May I also say that some of the ways in which Your Honour then

16 seeks to summarise and then paraphrase what I've said make what I've said,

17 with respect, sound rather more dismissive and rather more cavalier than

18 they are intended to be. In fact they are not intended to be cavalier or

19 dismissive at all. They are intended to be carefully considered.

20 What the Defence -- the -- the one thing the Trial Chamber cannot

21 do, with respect, it cannot tell Mr. Krajisnik to go into the witness box.

22 JUDGE ORIE: That's clear. Mr. Krajisnik, it's his own choice

23 whether he wants to remain silent or whether he want to testify in his own

24 case that's without any question.

25 MR. STEWART: Yes, Your Honour.

Page 20878

1 JUDGE ORIE: The order of presenting evidence, however, is under

2 the direction of the Chamber.

3 MR. STEWART: Well, let's -- Your Honour has really upped the ante

4 in effect because Your Honour is directly questioning me on this and

5 seeing where we go and you're saying, well, if, as I understand it, and I

6 hesitate if I'm inaccurately paraphrasing or representing what Your Honour

7 says, then of course I stand to be immediately corrected. Your Honour is

8 saying, what if we the Trial Chamber tell you, having called off these

9 other witnesses, what -- we tell you that if you must call Mr. Krajisnik,

10 if you're going to call him at all, you must call him next Monday, and

11 Your Honour is supposing we then have the choice, do we call him next

12 Monday or are we compelled to strike him off the list.

13 There are other options, Your Honour. We can say, no, I'm afraid

14 we cannot call Mr. Krajisnik because he isn't ready. In our judgement, he

15 isn't ready, it is not safe to put him in the witness box, then we have to

16 apply, formally, properly, and comprehensively for whatever extensions are

17 necessary for Mr. Krajisnik's case to be properly presented, thoroughly

18 presented, an adequate number of witnesses to be called and for

19 Mr. Krajisnik to be fitted it properly in that programme. Your Honour,

20 that is what we will do.

21 Your Honour, it goes beyond Mr. Krajisnik's evidence. It is

22 perfectly clear in our submission that this -- and I'm not making the

23 application today, Your Honour, because I'm not going, with respect, I'm

24 not going to be put in a position of having to make an application in

25 about two sentences which the Court can then brush aside. This

Page 20879

1 application, as and when an application or an extension is made is going

2 to have to be done properly because we have seen what happens if

3 applications are not done thoroughly and if the opportunity is given for

4 the matter not to be thoroughly and completely considered. Your Honour,

5 this timetable, we have -- one thing we have been absolutely consistent

6 about, we have said that this timetable will not work. Your Honour, I did

7 tell the Court, and that's also true, that we have made our plans and we

8 have worked to try to make it work. We have done that. We have not made

9 our plans, done our scheduling, we've not done it on some blythe

10 assumption that we could ignore the date of the 28th of April. We have

11 absolutely -- that's why, in the end, and I say desperation, it's why we

12 were driven to just try to put forward this date. We know how much Mr.

13 Krajisnik wants to give evidence in his own case. How on earth are we

14 going to fit that in is the problem we've been facing. How on earth are we

15 going to fit that in with other witnesses? The position is we really

16 can't as things stand, and Your Honour, with respect, Your Honour, we do

17 question, how in the circumstances the Court feels that it could even

18 contemplate the sort of procedure which Your Honour has just alluded to,

19 without fully considering and resolving the issue under item 14 in the

20 agenda on which the Court -- 15, I beg your pardon, on which Your Honour

21 has made it expressly clear that the Trial Chamber has not reached a

22 decision, and Your Honours need to discuss it among yourselves. We, with

23 respect, don't clearly understand and see how those matters fit together.

24 But, Your Honour, you can -- you can question how it is that after two

25 years Mr. Krajisnik is not ready to give evidence. All I can tell you, I

Page 20880

1 can't tell you in a sentence as a fact, Your Honour, all I can tell you is

2 in our professional judgement is, he is no where near. And whatever the

3 reasons. If in the end you want to say it's money, it's incompetence,

4 it's laziness, it's idleness, it is disorganisation, it's whatever it is,

5 it is possible that it is the impossible schedule imposed by this Court

6 and those involved with this Court in determining what scheduling apply to

7 these cases. It is possible, Your Honour, and we are likely very soon

8 urgently to require this with respect to ask this Trial Chamber to

9 consider that as the real cause of the difficulty we are in. And I

10 started by saying it goes far beyond Mr. Krajisnik because if Mr.

11 Krajisnik's case is not done properly, if he's not able to give his

12 evidence fairly when he's ready to give it, if he doesn't therefore

13 receive a fair Defence, then what is this institution here for?

14 JUDGE ORIE: Mr. Stewart, Judge Hanoteau would like to put a

15 question to you.

16 MR. STEWART: Of course, Your Honour.

17 JUDGE HANOTEAU: [Interpretation] Yes, Mr. Stewart, allow me to ask

18 you a rather pragmatic question, of a very practical nature. When you say

19 that you aren't ready, or that your client, Mr. Krajisnik, is not ready to

20 give evidence, is -- when you state this, I feel rather concerned. When

21 is one actually ready? At what point in time do you think he will be

22 ready? Can you leave the Bench hanging in the air like that? How long

23 will it take? Six months? One year? Two years? Do you understand that

24 we would like to know?

25 MR. STEWART: Your Honour, I can understand that very well. We

Page 20881

1 would like to know as well, and always would have done. It's a very

2 anxious question for us. Your Honour's question is entirely fair. I

3 don't reject it as an entirely fair question.

4 Your Honours will forgive me if I always show a certain

5 nervousness about giving estimates and dates, just based on the concern

6 that they are understood to be what they are, that they are estimates and

7 that we struggle to know ourselves. Your Honour, the question familiar to

8 every lawyer, when is one actually ready, a bit like doing an exam, you're

9 never ready in the sense that would you'd always like to have more time

10 somewhere. Your Honour, we are -- between us, these counsel, we do have

11 rather a lot of experience. We are familiar with that question. We are

12 familiar with that feeling. It is a matter of professional judgement.

13 You'll never be perfectly ready. We have indicated this morning the type

14 of robust decision which this Defence team is willing and able to take,

15 and more robust, we submit, than a lot of lawyers might feel comfortable

16 with, and we have made many very robust decisions along the way in

17 relation to this case.

18 But so far as this is concerned, it is a matter of judgement.

19 Your Honours, we are not going to -- we assure you this much -- we are not

20 going to err on the side of some sort of excessive wish to cover all bases

21 of some sort of perfectionism. No client likes to hear his lawyers say

22 they are not perfectionists but Mr. Krajisnik will understand if we

23 acknowledge that some realistic balance has to be adopted. We are not

24 going to adopt that approach. But we are -- we simply know, as a matter

25 of professional judgement, we simply know that we are not at that point.

Page 20882

1 It's -- you can't define an elephant as easily as you can recognise it and

2 we can recognise that. So that's the position.

3 So far as estimates are concerned, if we are remaining, and at the

4 moment the cutoff date is the 28th of April, if we are able to do nothing

5 whatever about that, in the sense that after we had gone through all

6 procedurals and we don't want to waste time on that but I'm sure

7 Your Honours will also understand that any application of that nature also

8 takes enormous amount of time away from the other task and that is a real,

9 real practical problem but if we end up, as a matter of judgement and if

10 they are involved, the Appeals Chamber, if we end up with the 28th of the

11 April as the end of the Defence case, then I will be frank, Mr. Krajisnik

12 does wish to give evidence. But we are not going to call him on the 27th

13 of April to give ludicrous evidence for four hours and then say, well, the

14 Prosecution is has two hours, 40 minutes, or whatever it is, it's not

15 exactly that, it's 2.4 hours or something. We're not going to say that,

16 tempting but we are not going to do it.

17 On the other hand there may very well be an assessment on our part

18 of the balance from our point of view of when we are properly ready to

19 call Mr. Krajisnik to give evidence and what ground we can cover, how much

20 time we can cover, always bearing in mind that it is true that more

21 preparation time we take the more efficiently we can shorten the

22 examination-in-chief, and I do assure Your Honour that very serious

23 practical steps have been taken, are continuing to be taken, in the --

24 what we aim to be with all the difficulties, as streamlined an approach to

25 evidence as we can manage with certainly serious use of such electronic

Page 20883

1 means as are available to stop paper being distributed all over the Court

2 in a wasteful way. So we are working on it, Your Honour.

3 I can say in answer to His Honour Judge Hanoteau's question, we

4 are not saying six months, we wouldn't mind six months, we've seen how

5 massively this case can expand, even things we've referred to this morning

6 in relation to these reports on movements of population indicate how much

7 this case has of serious stuff which is still not within the vast quantity

8 of material before the Court. But, Your Honour, what we wish to do is we

9 wish to make our own, in the -- what in a sense the normal way. We wish

10 to make our own professional judgements about which witnesses we call and

11 when we call them, in Mr. Krajisnik's interests, if the case is to finish

12 on the 28th of April then it will finish on the 28th of April. If we make

13 an application and if Your Honours do see that in the interests of justice

14 there ought to be an extension, well, that will give us the opportunity,

15 no doubt, to cover Mr. Krajisnik's own evidence thoroughly and to call

16 more of the still-material and relevant witnesses who are on our reduced

17 witness list. But, Your Honour, we are not in a -- we are not in a mode

18 of blatant non-cooperation in relation to this. We just want

19 Mr. Krajisnik to be able to do himself justice when he gives his evidence.

20 It's really no more and no less than that.

21 JUDGE HANOTEAU: [Interpretation] I beg of you not to mention the

22 date of the 28th of April. Please, do not mention the date of the 28th of

23 April. I would just like to ask you to answer this question: When can

24 you start with the examination of Mr. Krajisnik? Just like that. Because

25 you said you needed some time to prepare his examination, as you call it.

Page 20884

1 When will you be ready? When can you start? We should not mention any

2 other dates or anything else. When can you actually start? Is this a

3 clear question? If you can't answer, don't answer. I'm just putting this

4 question to you.

5 MR. STEWART: I can answer. Mr. Krajisnik has a view. I have a

6 view. Mr. Josse has a view which on last talking was not significantly

7 different from my own. But -- well, I -- I will answer Your Honour's

8 question but may I have a short while to discuss it, up to date, with

9 Mr. Josse and Mr. Krajisnik, and any other member of my team, because my

10 support team come into this in a serious way?

11 JUDGE ORIE: Yes. Although it's surprising that you need to

12 consult at this moment on this very question.

13 MR. STEWART: Well, not really, with respect, Your Honour, because

14 it's -- I'm being asked -- I know what I'm being asked. I am being asked

15 something that you will hold me to it.

16 JUDGE ORIE: Mr. Stewart, it's surprising to us. Please take your

17 time.

18 MR. STEWART: May I comment, Your Honour, on that because I

19 have --

20 JUDGE ORIE: No, Mr. Stewart. Please take your time to do what

21 you said you would need to do? Would we have to withdraw for five

22 minutes?

23 MR. STEWART: It's not something I can really conveniently discuss

24 with Mr. Krajisnik and Mr. Josse in the corner of the courtroom.

25 JUDGE ORIE: Okay, then. How much time?

Page 20885

1 MR. STEWART: 15 minutes, Your Honour, please. I see the time.

2 Well, it's 25 past 1.00. Well, ten minutes, if we go straight through to

3 see Mr. Krajisnik, Your Honour.

4 JUDGE ORIE: You've got your ten minutes, Mr. Stewart. We will

5 adjourn until 25 minutes to two.

6 --- Recess taken at 1.24 p.m.

7 --- On resuming at 1.36 p.m.

8 JUDGE ORIE: Mr. Stewart, I am aware that our generosity is not

9 always very impressive in your mind but after these 12 minutes could you

10 please answer the question.

11 MR. STEWART: I'll take two minutes wherever I can get them Your

12 Honour, thank you. It's Judge Hanoteau's question but I'm quite sure it

13 effectively comes from the entire Trial Chamber.

14 Your Honour, we had a four-person discussion with Mr. Karganovic

15 our case manager who is an interpreter. Your Honour, if we -- we would

16 have to make one or two assumptions. If we assume that there is no

17 significant problem arising out of the issue under number 15 on the

18 agenda, we have to make an assumption, if we assume that we do not

19 continue with other witnesses, so that we are, apart from absolutely

20 essential other tasks, we are working on preparing Mr. Krajisnik's

21 evidence, then, with also these assurances, Your Honour, the answer to

22 Your Honour's question is not grossed up for negotiating purposes, it has

23 absolutely no fat built into it by comparison with the genuine opinions of

24 the people concerned, if we start with Mr. Krajisnik's view, just for

25 purposes of presentation. Mr. Krajisnik's own personal view is that we

Page 20886

1 cannot be adequately ready for his evidence --

2 [Trial Chamber confers]

3 MR. STEWART: Cannot be adequately ready to begin his evidence

4 until the 1st of May. That coincided, not endorsed by, for practical

5 purposes within a day really exactly coincided with the view of one of the

6 counsel, and was barely significantly different from the view of the other

7 counsel. I don't believe it would be necessary or appropriate then to go

8 into further detail about those internal discussions but that is the

9 position, Your Honour. We -- that's the -- Your Honour asked us. We take

10 the question in the spirit of absolutely genuine inquiry and we accept

11 Your Honour's invitation to put the 28th of April for the purposes of

12 answering this question absolutely on one side. That's the answer,

13 Your Honour. I hope and trust that that is helpful.

14 JUDGE ORIE: Mr. Harmon?

15 MR. HARMON: Your Honour, the Defence has indicated that

16 Mr. Krajisnik wishes to give evidence when he feels he is adequately

17 prepared to give evidence. Has there been sufficient time for him to get

18 adequately prepared to give evidence? It's our submission, Your Honour,

19 that the test is an objective test and the factors that I would point to

20 Your Honour's consideration in assessing this test are the following:

21 There has been a lengthy and costly investigation pre-trial, before the

22 opportunity for Mr. Stewart to take the case, presumably Mr. Krajisnik

23 studied the results carefully of that investigation. The second factor is

24 he has sat through this case for two years. He has received copies of all

25 of the Prosecution exhibits and he has at his disposal, as we know, a

Page 20887

1 considerable archives that he's had an opportunity over two years, since

2 the commencement of this case and frankly before, to review to prepare

3 himself for this case. He has had the indictment for a considerable

4 period of time, so he knows the type of a case to meet, and he's had our

5 pre-trial brief so he knows what type of days he has to meet. Three, he

6 has had many breaks specifically designed for preparing for his evidence.

7 There have been gaps of weeks so he can prepare for his evidence. Those

8 are the objective factors that we submit, Your Honour, should be

9 considered, and the test for us is an objective test. Has there been

10 sufficient time for him to objectively -- adequately prepare to give

11 evidence? Our answer to that question is yes, based on the objective

12 criteria that I've set forth. I want to put aside obviously the medical

13 issue that has arisen that we've discussed but the objective assessment in

14 our view is there has been sufficient time for Mr. Krajisnik to be

15 adequately prepared to take the witness stand and to give evidence. Those

16 are our submissions, Your Honour.

17 JUDGE ORIE: Mr. Stewart, any need to respond to what Mr. Harmon

18 said?

19 MR. STEWART: In a sense, Your Honour, Mr. Harmon is giving a

20 summarised version of an answer to an application that we haven't yet

21 made. Your Honour, that's my only comment.

22 [Trial Chamber confers]

23 JUDGE ORIE: Before we close this session, if Mr. Krajisnik, who

24 has at various occasions told us that he would like to be actively

25 involved in his defence, and his the different positions, although almost

Page 20888

1 the same, have been presented to us, including the one of Mr. Krajisnik, I

2 would like to give an opportunity to Mr. Krajisnik to add, if there is

3 anything he would like to add, what has been said until now.

4 Mr. Krajisnik. I'm not urging you to do so but I'm just giving

5 you the opportunity to add anything you would like to add.

6 THE ACCUSED: [Interpretation] Your Honours, you have heard what

7 Mr. Stewart had to say. We had an objective conversation about the best

8 way to approach my testimony. I'm afraid that there might have been a

9 mistake that might have slipped in due to language problems, because both

10 the lawyer and the Accused must prepare accordingly and you yourselves are

11 aware of that. That's all I have to add. And I fully support my Defence

12 team and I'm very grateful for the fact that they summoned up the courage

13 to say, as they have said, that my Defence would not be adequate at this

14 stage for a whole range of reasons that I wouldn't like to elaborate on at

15 the moment because I'm afraid it might be redundant.

16 Thank you very much for your attention and I do agree with the

17 Defence team.

18 There is something else, I apologise, there maybe a point which

19 may have been skipped or something, something that should have been on the

20 agenda. I think it was item 15 and I'm extremely grateful for the fact

21 that it figures on the agenda in the first place.

22 JUDGE ORIE: Yes, we have not dealt with the second portion of

23 agenda item 15 or 16? No, let me just -- you said 15.

24 [Trial Chamber confers]

25 JUDGE ORIE: Mr. Krajisnik, it's good that you remind us. We

Page 20889

1 expressly wanted to give you an opportunity. We would rather do that once

2 we finish 16 and then go back to that specific part of 15.

3 Mr. Stewart, I have a similar short question. To the extent

4 possible, could you please give as short an answer as possible.

5 Judge Hanoteau has asked you about the day when you would expect the

6 Defence to be ready to call Mr. Krajisnik as a witness in his own case.

7 Until now, we have been provided with a number of 175 hours and then later

8 on we had different numbers, less than 70 or more than 70, or -- and you

9 may have noticed that the Chamber in its scheduling order used different

10 figures. What is the present position of the Defence in that respect?

11 And, of course, I'm asking you for an estimate again or that you say that

12 you stick to the 175 and don't be afraid to become nervous if you have to

13 give estimates because the Chamber becomes just as nervous if -- when it

14 hears your estimates. So please, could you please tell us whether we are

15 still at the 175 or at 70 or at -- or whether you would accept the time

16 scheduled by the Chamber?

17 MR. STEWART: Your Honour, we are still around 175, unable to see

18 a concrete basis for a significant change, but I would say this,

19 Your Honour: The overwhelming likelihood is that we will be able to

20 reduce that estimate rather than increase it on this basis. That's -- I'm

21 really confident that with adequate preparation time we would be able to

22 do that.

23 JUDGE ORIE: That practically would mean that in your position,

24 let's just assume that you would start -- given all the other matters you

25 would start on the 1st of May, then for 175 hours, and let me take it very

Page 20890

1 optimistically that would bring us examination-in-chief only until the end

2 of June, and then it would take us another five weeks for

3 cross-examination, and perhaps the Chamber might have a few questions for

4 Mr. Krajisnik as well. That brings us well into December -- in September,

5 far into September, and then one of the conditions was that we would

6 not -- that no other testimony would be heard before Mr. Krajisnik starts.

7 Then let's just assume that there would be another 10, 20 witnesses, let's

8 take it very optimistically again, each witness four hours, which is below

9 the average, cross-examination, well, all together another 60, 70 hours,

10 well, let's say another four weeks so half October, then the question

11 becomes whether the Chamber would be in a position to deliver judgement

12 before Christmas. Is that a realistic approach as I present it to you

13 now?

14 MR. STEWART: Your Honour, it does flow from my realistic answer

15 to Judge Hanoteau's realistic question. These consequences would appear

16 to flow.

17 JUDGE ORIE: Yes. That's clear and short.

18 The next issue, then, unless there is anyone who would like to

19 raise anything under the heading of 16 again, I think the Chamber in one

20 of the messages to the parties explained that it would like to hear, if

21 Mr. Krajisnik considers that relevant to him or about his concerns about

22 his concerns about the French case. I immediately add to that that this

23 Chamber, of course, has no competence in any way to interfere with a

24 domestic jurisdiction in civil matters, but nevertheless, since it was

25 raised as a matter of concern which was at the basis of the confidential

Page 20891

1 motion, of course, the Chamber would like to know if there is anything,

2 any update that would make us better understand the causes of the concerns

3 of Mr. Krajisnik. We would like to hear from him.

4 I don't know whether it's you, Mr. Krajisnik, you are yes, you

5 reminded me that it's -- it was still on the agenda. So whether it's you

6 or counsel who will inform us, I leave that up to you.

7 MR. STEWART: Yes, Your Honour, I think it is Mr. Krajisnik on

8 this.

9 JUDGE ORIE: If there would be any need to go into private session

10 for the matter then -- I mean, it's -- we are now in open session and I

11 don't know whether the other parties in the civil procedure are listening.

12 MR. STEWART: I should think, Your Honour, that we would start

13 with Mr. Krajisnik just having very clearly in mind that we are in public

14 so that if at any point he felt that there was something he wanted to say

15 which shouldn't be public, he would be alert to mention that.

16 JUDGE ORIE: Yes, and Mr. Krajisnik should be aware that among the

17 public may be the claimants in the case.

18 MR. STEWART: Yes, well, Your Honour is in effect warning to Mr.

19 Krajisnik that he should take great care.

20 JUDGE ORIE: That he doesn't damage his own interest.

21 MR. STEWART: Indeed, Your Honour, counsel, we will help as much

22 as we can but it is primarily for Mr. Krajisnik.

23 JUDGE ORIE: Mr. Krajisnik, please tell us when -- if and when you

24 want to go into private session and you may proceed.

25 THE ACCUSED: [Interpretation] The last time around, you advised me

Page 20892

1 that it would be better to have it in private session, so I'm going to

2 heed that message and ask for a private session this time as well.

3 JUDGE ORIE: Let's turn into private session.

4 [Private session]

5 (redacted)

6 (redacted)

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Page 20893

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Page 20897

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5 [Open session]

6 JUDGE ORIE: I was informed that since there will be no session in

7 this courtroom this afternoon and since we had a late start that we have a

8 little bit more time than usual. I'm looking at the interpreters and they

9 are nodding yes. Wherever the Chamber sometimes lacks flexibility, at

10 least the interpreters and the technicians always show a level of

11 flexibility, which is highly appreciated and admired.

12 There is one remaining issue which is part of -- that is 16, the

13 matters related to the accused's testimony. So apart from when and before

14 Christmas or after Christmas but the issue of practicalities. I would

15 like to see whether the parties have developed any opinion about that,

16 such as communication with the then witness, although still being accused,

17 and if there are any other matters. I don't know how the Defence

18 understands the position to be once the testimony of Mr. Krajisnik would

19 have started.

20 MR. STEWART: We had assumed, Your Honour, that we would be unable

21 to communicate with him but with this caveat that we suppose that if there

22 were some practical matter that was really not related to his evidence,

23 that we would approach the Prosecution and if necessary the Trial Chamber

24 and we would seek appropriate clearance ad hoc to deal with that,

25 Your Honour. That's what we had thought was the position.

Page 20898

1 JUDGE ORIE: Yes.

2 MR. HARMON: Your Honour, we had the same assumptions.

3 JUDGE ORIE: Well, then, since the parties do agree --

4 [Trial Chamber confers]

5 JUDGE ORIE: And since the Chamber does not oppose to this

6 approach, we don't have to discuss it at this very moment any more. If

7 there would be at any time any other practical matter related to you, Mr.

8 Stewart, and you, Mr. Josse, being counsel of both accused and witness at

9 that time, then the Chamber would like to hear about it. But as far as

10 communication is concerned, the approach adopted by both parties is

11 supported by the Chamber.

12 MR. STEWART: Thank you, Your Honour.

13 [Trial Chamber confers]

14 JUDGE ORIE: We will adjourn, as is said in good Latin, I think,

15 sine die. I think the parties should be prepared to continue next Monday

16 in the afternoon, the originally scheduled date. It has not been changed

17 at this moment but the parties will be informed in advance of that. So

18 that means not later than by tomorrow, whether we really expect them to

19 appear at a quarter past 2 next Monday, the 27th of February, in this same

20 courtroom.

21 --- Whereupon the hearing adjourned at 2.10 p.m.,

22 sine die.

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