Tribunal Criminal Tribunal for the Former Yugoslavia

Page 22837

1 Tuesday, 11 April 2006

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 1.40 p.m.

5 JUDGE ORIE: Good afternoon to everyone.

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

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

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

9 JUDGE ORIE: Thank you, Mr. Registrar.

10 I think the parties are informed that the Chamber would prefer to

11 deal with procedural matters first and then to continue with the witness.

12 One procedural matter which is not really mine but has got something to do

13 with the audio equipment is the following: Since the installment of the

14 new audio equipment in the courtrooms, interpreters have been experiencing

15 problems with the quality of the sound which is, in turn, affecting the

16 quality of the interpretation. Speakers who stand are less audible than

17 before, and even the slightest incidental noise is picked up. Court

18 reporters, too, are experiencing similar problems with the new equipment.

19 Until a solution is found to remedy the situation, all

20 participants in the proceedings are kindly requested to make sure that

21 they speak directly into the microphone, keep the lectern and/or papers

22 away from the microphone, switch off the microphone as soon as they stop

23 speaking, to the extent possible keep all typing to a minimum, avoid

24 shuffling papers, clicking pens, et cetera. And the technicians are

25 requested to switch off any of the microphones inadvertently left open.

Page 22838

1 And the interpreters thank you for the understanding.

2 Then we have a few items. First is oral submissions on the

3 proposed procedure for Chamber witnesses. I -- unless the Prosecution

4 would oppose, perhaps Defence first making any submissions. There has

5 been reserved a limited number of minutes for that. Mr. Stewart, do you

6 have any observations, any submissions? And if so, how much time you

7 would need.

8 MR. STEWART: Well, Your Honour, I've got about -- I think I have

9 about ten or a dozen points. I could make each of them in absolute

10 summary form and that would take about six or seven minutes probably.

11 JUDGE ORIE: Okay. You have seven minutes. Please proceed.

12 MR. STEWART: Yes, Your Honour. We have some observations and

13 some questions in effect, so I will go through them very quickly. On

14 paragraph 1 of the annex to the order, it said that a final decision by

15 the Chamber on whether to call persons to testify as Chamber witnesses

16 will be made at the close of the Defence case. Our question on that, Your

17 Honour: Is it the position that we might not or we will not know the name

18 or names of particular witnesses before?

19 JUDGE ORIE: You will know the names before.

20 MR. STEWART: Thank you, Your Honour.

21 JUDGE ORIE: But whether we call them, that's decided at that very

22 moment.

23 MR. STEWART: We understand that, Your Honour.

24 Paragraph 2, therefore, Your Honour, follows, in effect. Our

25 observation on that is -- where it says: "The parties or their agents are

Page 22839

1 not to have any contact with the perspective Chamber witnesses from that

2 time." I won't elaborate it, Your Honour, but I will simply say that the

3 Defence submission is that that is not a proper and reasonable

4 restriction.

5 I have no comment on paragraph 3, Your Honour.

6 On paragraph 4, we raise the question whether the -- under (b),

7 the telephone conference is to be audio recorded but not transcribed, and

8 we are asking whether and when either the recording -- I'm sorry, whether

9 and when the recording is made available or is available to the Defence.

10 Paragraph (c), we make the observation the reference "... to

11 determine the prospective witness's availability and initial reaction ..."

12 we take it that "initial reaction" is only intended to refer to the simple

13 indication by the witness of willingness or unwillingness to come to The

14 Hague. If it goes further than that, we may need to come back to that.

15 Under (d), Your Honour, the last sentence and the last line: "...

16 the Chamber may decide to subpoena the witness ..." This is an

17 observation we make in relation to a number of points here, that that is a

18 judicial decision involving judicial discretion and should therefore at

19 least provide the opportunity for submissions by the parties.

20 Your Honour, there's just a question as between 4 and 5. We take

21 it that before we move from step 4 to step 5, at least in some

22 circumstances a report to the Trial Chamber is needed from the Legal

23 Officer. We ask whether that report is to be disclosed to the parties.

24 Number 7, same point about judicial decision. The Chamber may

25 order the production of the record of the interviews.

Page 22840

1 8 and 9, we have a question, in effect, whether those are separate

2 steps. They're presented as separate steps here in the procedure. Under

3 step 8 it's expressly said that the parties have no role. If they are

4 distinct steps, do we infer that the parties do have a role at step 9?

5 I have no comment on step 10.

6 Step 11 raises, really, a particularly important point, Your

7 Honour, which is this: The Legal Officer or a Legal Officer in Your

8 Honour's Chamber has a central role here. We, Your Honour, of course are

9 not clear in absolute detail about the workings of Your Honours' Trial

10 Chamber, but we have always supposed - and in principle we acknowledge and

11 see - we have always supposed that Legal Officers in Your Honours' Trial

12 Chamber have a role in drafting of documents, have a role in drafting of

13 documents, have a role in preparing memoranda, will have some role in

14 discussions with Your Honours. Ultimately, the decisions are Your

15 Honours', but we do suppose they have a significant role. Your Honour, we

16 do register a fundamental objection to a Legal Officer being involved in

17 this sort of interview with a witness or a prospective interview if he or

18 she is then to have any further role in the case at all.

19 JUDGE ORIE: Have you thought about an alternative in that

20 respect?

21 MR. STEWART: Well, Your Honour could appoint a Legal Officer --

22 Your Honours could appoint a Legal Officer from another Trial Chamber

23 altogether, but the difficulty there, Your Honour, is background knowledge

24 of the case and how far somebody is equipped to do it. So we have tried

25 to think of alternatives, Your Honour, but the -- possibly the only

Page 22841

1 practical alternative is for that Legal Officer to have that job and to

2 have no further job on the case.

3 JUDGE ORIE: The problem is not the Chamber's Legal Officer but

4 the Chamber's Legal Officer involved in the Krajisnik case.

5 MR. STEWART: Indeed, Your Honour.

6 JUDGE ORIE: Thank you.

7 MR. STEWART: Yes, Your Honour is right.

8 Your Honour, as far as (b) is concerned, then more detailed points

9 on 11(b). The question is whether there is to be a transcript of that

10 preliminary interview and whether it's to be supplied to the parties.

11 I have no comment on the next few paragraphs, (c), (d), (e), (f).

12 "(G) The Legal Officer is to compile the witness's translated answers to

13 questions into a statement ..." Your Honour, if your answer to the

14 previous question, we're going to get the transcript of the interview, is

15 yes, then we have no problem with that because we -- then we assume --

16 well, we do get that statement anyway, we see that, but we do submit that

17 it's proper for us to receive or have available to it --

18 JUDGE ORIE: Mr. Stewart, already for your information, the

19 compilation of the transcript and the statement is also to save on

20 unnecessary costs for translation. For example, if you would have the

21 whole of the transcript, that means, "Good morning" and the explanation of

22 how it works, et cetera, whereas the statement, of course, comes down to

23 what the witness tells the interviewer on the substance of the case and to

24 leave out all the remainder which also saves a lot of translation costs.

25 MR. STEWART: Your Honour, we would accept and support that point,

Page 22842

1 with respect, and under (b), therefore, if the answer were yes we could be

2 supplied with the audio recording, or on request could be supplied with

3 the audio recording, then that meets both points, in effect. That covers

4 Your Honour's observation just made which we would, with respect, endorse.

5 It could be wasteful, otherwise.

6 14 -- I have no particular comment on 12 -- or no comment on 12,

7 13. 14: Seven days, Your Honour, we submit is too short. I just flag it

8 in that summary form.

9 15, it says: "Chamber witnesses will not normally be proofed by

10 the Chamber staff prior to giving testimony." Your Honour, our question

11 is: Not normally? In what circumstances will it happen, according to

12 what criteria? And also, although we loosely know what is meant by

13 "proofing," it's important to understand what precisely is meant by

14 "proofing" in the context of a Chamber's officer or Chamber's staff doing

15 that exercise.

16 Your Honour, there is an important point then on 16(d), the scope

17 of cross-examination. Two points, Your Honour. They're related, but

18 under (c) the Chamber is able to ask the witness questions - second

19 line - "... in relation to other matters raised by answers elicited by

20 the Chamber." We submit that an equivalent opportunity should be given to

21 the parties in cross-examination and also that the specific opportunity

22 provided by Rule 90: "... and, where the witness is able to give evidence

23 relevant to the case for the cross-examining party, to the subject-matter

24 of that case," that that should also be added. Your Honour, those are our

25 summary comments, questions, submissions.

Page 22843

1 JUDGE ORIE: You were quoting from 90(H)?

2 MR. STEWART: I was, Your Honour. I didn't give a subparagraph.

3 Your Honour is absolutely right. Those are our initial submissions, Your

4 Honour.

5 JUDGE ORIE: Thank you, Mr. Stewart.

6 Mr. Harmon, any observations in view of the proposed procedure?

7 MR. HARMON: We have some observations, Your Honour, very few.

8 Our first observation relates to the paragraph 11(b) which says that the

9 preliminary interview will be audio recorded, and also applies to 14 which

10 says that the witness's statement will be provided essentially to us. Our

11 question in our interest is to see and receive a copy of the audio

12 recorded interview.

13 My second observation --

14 JUDGE ORIE: You would say a copy of the tape?

15 MR. HARMON: Yes, a copy of the tape.

16 My second observation is on page 8 of the guidelines, subpart 7.

17 It's an observation based on experience. The subpart 7 says that:

18 "In those cases where the preliminary interview is not being conducted at

19 the Tribunal, in conditions of simultaneous interpretation, the Legal

20 Officer will arrange for the interpreter to translate one sentence at a

21 time."

22 Based on our experience, we make a submission that it's better to

23 have the witness complete his or her thoughts rather than going one

24 sentence at a time and that will, I think, disable perhaps the interview

25 from flowing as smoothly and as coherently as could otherwise be the case.

Page 22844

1 JUDGE ORIE: I take it that that will be practically applied,

2 because some people would speak one sentence which takes approximately one

3 and a half page, whereas others would do with 20 words. And I -- most

4 important there is that that frequently you'll stop, have the translation

5 first, so as in order not to wait until the very end, because otherwise

6 the translator might lose some of the information. But it's -- I do

7 understand it's rather a suggestion based on your experience.

8 MR. HARMON: Yes. Thank you.

9 JUDGE ORIE: Thank you. No further submissions. Now --

10 MR. TIEGER: Your Honour, I'm sorry.

11 JUDGE ORIE: Yes, Mr. Tieger.

12 MR. TIEGER: One more small matter, and that's in respect of

13 paragraph 11(f) with respect to displaying a document under seal to the

14 witness. I think, as we've discovered in most circumstances, that that

15 doesn't run any meaningful risk of undermining the protective measures

16 that resulted in the document being under seal in the first place. But I

17 think the Legal Officer needs to be attentive to that, and under

18 circumstances where there is such risk, presumably the better course would

19 be to refer more generally to the contents of the documents in order to

20 elicit a meaningful response rather than run a risk of undercutting the

21 protective measures that were applied in the first place.


23 Could I invite you also to give your view on some of -- I would

24 say some of the major matters raised by the Defence. Interview to be

25 conducted by a Legal Officer of the Chamber who is working in this case.

Page 22845

1 Would you support the objections made by the Defence?

2 [Prosecution counsel confer]

3 MR. TIEGER: Your Honours, it's not difficult to, in essence, see

4 both sides of this issue, which were raised, in fairness, by Mr. Stewart,

5 and that is that it's almost impossible to conceive of someone being

6 brought in from outside the case to meaningfully participate in this

7 manner in the process. And on the other hand the concern raised I

8 understand to be - and maybe there is another underlying concern that I'm

9 not fully appreciating - that the process of being involved with the

10 investigation somehow affects the objectivity of the participant in such a

11 way that he or she might not be suitable to continue in his or her Legal

12 Officer functions. I understand that to be a fairly predictable

13 perspective arising from the common-law system. I'm not - and I don't

14 think Mr. Harmon is either - sure that we fully share it, but given the

15 fact that we understand where it comes from, I frankly would like to have

16 a little more time to consider it. All I can say is it's not something

17 that we fully support at the outset without additional consideration.

18 That's about the most I can say at this point, other than to acknowledge

19 that I think I understand the point of view.

20 JUDGE ORIE: Thank you, Mr. Tieger.

21 Mr. Stewart.

22 MR. STEWART: Your Honour, yes.

23 JUDGE ORIE: First, do you have any responses to the concerns

24 raised by the Prosecution?

25 MR. STEWART: Only, Your Honour, in case it adds or gives a bit of

Page 22846

1 clarification. I rather think Mr. Tieger and Mr. Harmon do fully

2 understand my point, but just in case. One aspect of the Legal Officer's

3 involvement is the Legal Officer will then have been involved in

4 questioning of a witness him or herself. That witness then -- assuming

5 the person appears then as a witness, is subsequently seen by the Trial

6 Chamber. The Trial Chamber has to assess the witness, the Trial Chamber

7 has to assess the credibility of that witness, but we would understand

8 that normally - and we would understand that, Your Honour - normally the

9 Legal Officer is involved in some way in the drafting of a judgement and

10 in consideration of the case. And that's -- it's -- that's a particular

11 pointed example of where the problem lies.

12 JUDGE ORIE: Yes. Your concern is that -- and I'm just trying to

13 fully grab the argument. You say if you have conducted such an interview,

14 you would be influenced in what way that could do harm at a later stage?

15 Because that is what we are talking about.

16 MR. STEWART: Your Honour, let's suppose -- we don't know exactly

17 how it works behind the scenes, Your Honour, but let's suppose that the

18 Legal Officer is involved in drafting the judgement, which involves

19 consideration of a particular witness's evidence, and the evidence given

20 by that witness will have been given in court. But at the same time, that

21 Legal Officer will have had an extra opportunity -- or before will have

22 had a separate session with that witness without the Judges, who are the

23 Judges, will have, inevitably being a lawyer and being human - it's a

24 necessary combination for these purposes - will have formed some sort of

25 impression. And if one tested a different way, supposing -- it's not

Page 22847

1 quite the same situation, but supposing after a witness had been giving

2 evidence a Legal Officer had a further interview of some sort with the

3 witness. In our submission, Your Honour, it is actually, on analysis,

4 obviously objectionable.

5 JUDGE ORIE: Yes. Well, there might be -- without going into

6 details as to how the Chamber uses the support of its legal staff, where

7 you said let's suppose that the Legal Officer involved in drafting the

8 judgement, which involves consideration of a particular witness's

9 evidence, I would be tempted to say that it's just the other way around,

10 that the Legal Officer follows the -- the way in which the Judges consider

11 the evidence and work on instructions to the extent that the Judges will

12 inform the staff on how they interpret, how they assess, how they -- the

13 evidence given by a witness. So there -- but we'll consider it. I'm

14 trying to understand what your argument is. We'll certainly take at least

15 a bit more time to consider the argument.

16 MR. STEWART: Well, Your Honour, if further explanation of my

17 argument is required -- but I'll keep it very, very short, then, Your

18 Honour. First of all, yes, of course, whatever precise use Your Honours

19 make of legal staff, it is ultimately Your Honours' decision.


21 MR. STEWART: That's clearly correct. But, Your Honour, there is

22 in reality, without knowing exactly how it works, it is not quite as

23 simple as that, Your Honour. If senior, qualified Legal Officers are to

24 have the sort of input which we expect they have, then the lines are, in

25 practice, blurred. And I must say, Your Honour, the indications that

Page 22848

1 we've received as to the workings of the Trial Chamber from Your Honours'

2 previous Senior Legal Officer do suggest - and we don't criticise this -

3 do suggest that it isn't as simple as that. And we add, Your Honour,

4 justice really must be seen to be done here. And without impugning -- and

5 we're not impugning. Of course, Your Honour, we take a practical,

6 pragmatic view of how a Trial Chamber must work. It is very important

7 that these lines are clearly drawn.

8 JUDGE ORIE: And you're not afraid that a similar risk exists if

9 the Legal Officers hear the testimony here in court or from their desks?

10 MR. STEWART: No, Your Honour, because Your Honours hear exactly

11 the same testimony.

12 JUDGE ORIE: Okay. I do understand you. By the way, I'd

13 forgotten to finish my last question to the Prosecution, that is whether

14 they take any position as far as the scope of cross-examination under Rule

15 90(H) is concerned.

16 [Prosecution counsel confer]

17 MR. TIEGER: Yeah, it's certainly our preliminary view on that,

18 Your Honours, that we would support the view that the general terms of

19 90(H) should be met in this case and that the parties should be able to

20 inquire about issues relevant to the party's case, as noted earlier.

21 JUDGE ORIE: Yes, at the same time, of course, the Chamber

22 witnesses will be heard after both parties have presented their case. So

23 of course you could then -- the situation is not exactly the same as

24 normally under examination-in-chief and cross-examination.

25 MR. STEWART: Your Honour, may I just make one comment on that

Page 22849

1 last observation of Your Honour's?


3 MR. STEWART: These witnesses are called after the parties have

4 presented their evidence?


6 MR. STEWART: Not after they have presented their case?

7 JUDGE ORIE: Yes, yes -- no, of course. That says, of course,

8 final briefs, final arguments, of course, still are to be. But

9 presentation of evidence by the parties has at that stage been finished.

10 Now, I apologise for using the -- certainly the wrong word.

11 Mr. Harmon.

12 MR. HARMON: Your Honour, one other observation that relates to

13 Mr. Stewart's concerns, but it sprang to mind when Mr. Stewart was

14 discussing the use of a Legal Officer to conduct the preliminary interview

15 as per Rule 11. There is always the risk that the Legal Officer could

16 become a witness in this case and would therefore have to be examined by

17 either one of the parties if an issue comes up. Now, I recognise that

18 under 11(A) the interview, the preliminary interview, is conducted in the

19 presence of a court officer, and it could well be that, first of all,

20 there's a tape-recording that is -- that will ameliorate that risk; two,

21 one could call the court officer. My only observation is I would urge the

22 Court to take whatever steps it can, if it embarks on this procedure, to

23 ensure that the court officer is not in a situation where he or she is

24 going to be called by one of the parties in respect of the statement

25 that's been given.

Page 22850

1 I can give you some examples that have happened with respect to

2 the Office of the Prosecutor. The tape recorder malfunctions and suddenly

3 there's questions that arise in respect of that. A practical suggestion,

4 obviously, is to have two tape recorders present. But those are the kinds

5 of issues that could give rise to a very awkward situation, and I urge the

6 Court to consider that and take whatever steps it deems necessary to avoid

7 that awkward situation for both the parties.

8 JUDGE ORIE: Yes, we'll pay proper attention to it.

9 Any further observations in respect of procedures? Then we'll

10 continue.

11 The next issue I would like to raise is the letter Mr. Krajisnik

12 has sent to the Chamber. Mr. Josse, we briefly discussed that recently,

13 and if there's any further submission to be made so as to whether we

14 should read the letter, whether you intend to file the letter and/or the

15 attachment to it, could you please inform us what the stand of the Defence

16 is.

17 MR. JOSSE: Your Honour, we've agreed between ourselves that

18 Mr. Stewart is going to deal with this.

19 JUDGE ORIE: Mr. Stewart.

20 MR. STEWART: Your Honour, the simple answer to Your Honour's

21 question is: No, we are not proposing to file the letter or any

22 attachment. Thank you.

23 Yes, Your Honour, again, very briefly may I just indicate what the

24 Defence say ought, with respect, to be the procedure. Your Honour, it's

25 four points, very quickly.

Page 22851

1 First of all, we, as Mr. Krajisnik's counsel - and we are his

2 counsel - we have no possible objection to Mr. Krajisnik writing to the

3 Registry at any time on anything he likes. We wouldn't presume to

4 obstruct that, nor do we think we have the right to, as it happens.

5 Secondly, normally what goes to the Registry, we would expect

6 normally, would be inappropriate to go to the Trial Chamber at all. There

7 are lots of matters that might arise between Mr. Krajisnik and the

8 Registry.

9 Thirdly, if the Registry then think that something should go to

10 the Chamber, they should consult counsel first, save in exceptional

11 circumstances. As usual, one doesn't go into what those circumstances

12 might be, but by definition they'll be exceptional.

13 Fourthly, if the Registry either does view the matter as one of

14 those exceptional cases where they should refer to the Trial Chamber or,

15 after discussion with counsel, they consider that the matter should

16 nevertheless go to the Trial Chamber, that it should go direct to Your

17 Honours, the Judges, and then -- well, it's in Your Honours' hands then,

18 and Your Honours are the Judges and we take it from there.


20 MR. STEWART: But otherwise, Your Honour, we do -- and we act on

21 Mr. Krajisnik's behalf in Mr. Krajisnik's interests, so whatever -- of

22 course we do. Your Honour, we do oppose direct communication in writing

23 between Mr. Krajisnik and the Trial Chamber.

24 JUDGE ORIE: And it's not entirely clear to me whether the subject

25 -- again, we have not read the letter, although we know approximately

Page 22852

1 what it is about. The Defence was invited to give further information on

2 a matter that was earlier raised by Mr. Krajisnik, his concerns about

3 witnesses. Will we receive any further submissions on that then by the

4 Defence, even if it would not be a copy of this letter?

5 MR. STEWART: Well, Your Honour, the answer to that is possibly

6 yes. And, Your Honour, that's not intended to be unhelpful. Your Honour,

7 when we -- when we really have had sufficient opportunity to consider --

8 Your Honour, I'll be absolutely blunt: The letter is a mixture of points

9 which we, counsel, absolutely do not consider should be submitted to the

10 Trial Chamber.


12 MR. STEWART: Matters which maybe should be, and so on. It's not

13 that easy, Your Honour. And of course we respect and -- our client's

14 wishes. We consult him. When we have those different elements of the

15 letter, there may be quite a lot of discussion to take place. Not easy

16 over the last week, anyway, Your Honour, with a programme of witnesses

17 when Mr. Krajisnik gets involved as well. The answer is a maybe, Your

18 Honour, but not an unconstructive maybe.

19 JUDGE ORIE: It means that the matter raised by Mr. Krajisnik in

20 this letter is subject to further discussions or further consultations

21 between counsel and Mr. Krajisnik, or is Mr. Krajisnik not -- no. Perhaps

22 it --

23 MR. STEWART: Well, Your Honour, I make it clear we do not brush

24 aside -- of course we don't. We do not brush aside such letters from

25 Mr. Krajisnik. He is our client and we give them the most proper and

Page 22853

1 serious consideration. But, Your Honour, we do ask that filing

2 submissions, contact with the Trial Chamber, Mr. Krajisnik could have

3 represented himself before this trial started. Your Honours pointed out

4 some of the drawbacks of that in considering some of the matters last

5 summer, but, Your Honour, he doesn't. And the problem is endless

6 confusion if either somebody is represented by counsel or they're not.

7 And we have, with respect, seen in the past what happens if those lines

8 are blurred. Nobody really knows quite where they are.

9 [Trial Chamber confers]

10 JUDGE ORIE: Mr. Krajisnik, I noticed that when Mr. Stewart was

11 speaking that some of your body language went in another direction as

12 Mr. Stewart's words. The Chamber doesn't want to now hastily without

13 having properly thought about it now either give you the floor at this

14 moment or not give you the floor to decide that matter, but rather take

15 time in the next break to consider whether, in view of the words spoken by

16 Mr. Stewart, in view of the procedure I explained to you as to what would

17 be appropriately addressed directly to the Chamber, not whether at this

18 moment.

19 And also in view of the information we received -- again, we have

20 not read that letter. We have been informed that one word or perhaps two

21 words about the content of it, so therefore we know what it is

22 approximately about. Our information was also that it was not mainly or

23 primarily - but that's always difficult to assess if you have not read the

24 letter - but it's not really stuff that should be appropriately addressed

25 directly to the Chamber. It's not in this exceptional category. Whether

Page 22854

1 or not we would like to give you an opportunity to add something to what

2 Mr. Stewart said, we would like to take a couple of minutes to discuss

3 that and not hear whispering with each other. We will let you know after

4 the first break whether you get an opportunity to further respond to that.

5 Then I have a decision on protective measures, and I'm not

6 following the agenda -- yes, I did. Yes. Time was asked to make oral

7 submissions on especially D167 and exhibits introduced through witness

8 Bjelica. I think, Mr. Josse, you asked to further --

9 [Trial Chamber and legal officer confer]

10 JUDGE ORIE: Mr. Josse, we prepared another decision, oral

11 decision, on exhibits, which is not ready at this very moment to be read,

12 and it's in this decision that you'll be granted additional time for D167,

13 that's Bjelica.

14 MR. JOSSE: The position is simple, Your Honour.


16 MR. JOSSE: My learned friend Mr. Margetts wants to object to

17 admission of part of that document. Clearly you'll have to hear a

18 submission from him, which he has told the Chamber in writing will take

19 two minutes. My response will be no more than two minutes as well.

20 JUDGE ORIE: Let's hear it then.

21 Yes, Mr. Margetts.

22 MR. HARMON: Your Honour, at the outset you've been advised, I

23 understand, by e-mail that Mr. Josse's objection in respect of P1163 has

24 been resolved and there was a proposal in regard to that issue. If you

25 don't need us to address that any further, I'll proceed on to D167.

Page 22855

1 JUDGE ORIE: 167, please.

2 MR. MARGETTS: Your Honours will recall Exhibit D167. That was a

3 report prepared by at Federal Republic of Yugoslavia relating to what was

4 in the title described as preparations by Muslim and Croats for forcible

5 secession. We consent to the admission of part of this document, and we

6 object to the admission of the rest of the document. The parts that we

7 consent to are those parts that were specifically referred to by the

8 witness in the course of his evidence, and those parts are part one,

9 titled "Patriotic League," paragraphs 1.1 to 1.6, referred to at pages

10 22657 to 660, and paragraph 2.6, which the witness adopted at page 22658.

11 We object to the admission of the rest of the document for the simple

12 reason that the document appears on its face to be merely a compilation of

13 multiple hearsay by an interested party.

14 Furthermore, the witness had no involvement in the preparation of

15 this document, and he could give no evidence as to the nature of the

16 sources utilised in compiling the document. And those are our

17 submissions.

18 JUDGE ORIE: Thank you.

19 Mr. Josse.

20 MR. JOSSE: The Defence, Your Honour, would invite the Chamber to

21 look at the relevant part of the transcript when this document was

22 introduced at the beginning of the proceedings on the 7th of April. And

23 in our submission, sufficient groundwork was established by the Defence

24 for the admission of the whole of this document, though only specific

25 parts were referred to specifically. The witness adopted the document, in

Page 22856

1 our submission, and said that the government of the Federal Republic of

2 Yugoslavia established a committee on collection of data on crimes. He

3 says that he, the witness, has a lot of information about war crimes, and

4 that, in our submission, is sufficient for the admission of the whole of

5 this document. The fact that only parts were referred to in evidence is

6 the usual reason; namely, time constraints, and it would not be right to

7 exclude the evidence on the basis that the Prosecution contend.

8 JUDGE ORIE: Yes. Perhaps one further question. Again, a report

9 on -- I'll just read it. I don't know how to stop my LiveNote anymore

10 because I've got a new version of the programme. So it's -- when I talk

11 it continues moving. Yes, I found it.

12 A report relating to what was described as preparation by Muslim

13 and Croats for forcible secession. Yes. Could I ask what role this

14 report would play in the Defence case. I mean, how should we understand

15 that report? To say that they prepared for war, okay, is that a

16 circumstance? Does that undermine other portions of the -- I'm just

17 trying to understand what exactly the position of this report would be in

18 the Defence case.

19 MR. JOSSE: Your Honour asked me a similar question last week --


21 MR. JOSSE: -- in relation to another aspect of the evidence, and

22 my reply will be the same again: Namely, to some extent it undermines, we

23 submit, what Prosecution witnesses say; to some extent it explains what

24 happened and the behaviour of Serb individuals, Serb politicians, so on

25 and so forth; and finally, if it's a different point, it should be read

Page 22857

1 contextually in the sense of the general events at the time and putting a

2 different gloss, if I could use that word, on the events at the time,

3 different to what the Prosecution assert was actually happening.

4 JUDGE ORIE: Yes. I do understand that you are -- you're hesitant

5 to be more precise at this moment. Of course, one of the things I'm very

6 much interested in to hear is are we talking about what preparations were

7 made for war? Because as such -- the war as such and any responsibility

8 for that directly is, of course, not a crime charged against

9 Mr. Krajisnik.

10 MR. JOSSE: Well, Your Honour is asking me, if I understand what

11 Your Honour is saying correctly, a very big question.


13 MR. JOSSE: My understanding is this: That a not inconsiderable

14 amount of time has been spent by the Prosecution asserting that my client

15 and his cohorts were warmongers. Evidence that rebuts that assertion is

16 important. That's putting it very simply. If I'm completely missing the

17 point, then no doubt the Court will tell me, and perhaps Mr. Stewart will

18 tell me as well, and perhaps Mr. Krajisnik will have an opportunity to

19 give me instructions on the issue later.

20 But if the Prosecution -- the Court's heard a lot of evidence on

21 this, as I understand it. And Your Honour knows why I use the expression

22 "as I understand it," because I wasn't here.

23 JUDGE ORIE: Yes. Perhaps we should give it some more thought.

24 Any further observations to be made, Mr. Margetts?

25 MR. MARGETTS: No, Your Honour.

Page 22858

1 JUDGE ORIE: Then we move on to -- our decision will follow. I'd

2 like to read our decision on protective measures in relation to Witness

3 D24 because that still has to be pronounced in open session. Therefore,

4 the Chamber will now deliver its reasons for its decision on the Defence's

5 confidential application for protective measures for Witness D24.

6 On the 27th of March, 2006, the Defence filed a request for an

7 order permitting Witness D24 to testify in closed session for the duration

8 of the witness's testimony before the Tribunal. On the 28th of March -

9 and I refer to transcript pages 22153 through 22155 - the Chamber

10 requested further information regarding the content of the witness's

11 expected testimony and the basis of the witness's fears. On the 31st of

12 March, the Prosecution filed its response to the motion. The parties made

13 final submissions in closed session on the 10th of April.

14 The parties seeking protective measures for a witness - in this

15 case the Defence - must demonstrate an objectively grounded risk to the

16 security or welfare of the witness or the witness's family, should it

17 become known that the witness has given evidence before the Tribunal.

18 This standard can be satisfied by showing that a threat was made against

19 the witness or the witness's family or by demonstrating a combination of

20 the following three factors: One, the witness's testimony may antagonise

21 persons who reside in a specific territory; two, the witness or his or her

22 family live or work in that territory, have property in that territory, or

23 have concrete plans to return to live in the territory; and three, there

24 exists an unstable security situation in that territory, which is

25 particularly unfavourable to witnesses who appear before the Tribunal.

Page 22859

1 Witness D24 stated that the witness feared that if it became

2 publicly known that the witness gave evidence on behalf of Mr. Krajisnik,

3 the witness or the witness's family would be subject to harm. The Defence

4 stated in its filing that the witness, moreover, feared negative

5 employment and economic consequences as a result of testifying. The

6 Chamber finds that the witness's expected testimony may antagonise persons

7 in close proximity to the witness or the witness's family. The Chamber

8 accepts that the witness's fear is genuine and objectively based, and that

9 there is a risk that if the testimony of the witness were to be made

10 public, physical, psychological, or economic harm might result to the

11 witness or the witness's family.

12 The Chamber also takes into account the UNHCR report of January

13 2005 which demonstrates a climate unfavourable to persons willing to

14 testify before this Tribunal. There is no more recent information before

15 the Chamber showing a change in these circumstances.

16 Therefore, the Chamber finds that the Defence has adequately

17 demonstrated an objectively grounded risk to the security or welfare of

18 the witness. The Defence requested that the witness testify in closed

19 session for the entire duration of the witness's testimony in order to

20 protect the witness's identity. The Chamber finds that the witness's

21 evidence is likely to be of a sufficiently detailed and distinctive nature

22 as to repeatedly expose the witness to the risk of identification should

23 the witness testify in open session. The Chamber therefore granted the

24 Defence's request for identity protection and closed session.

25 This concludes the Chamber's decision.

Page 22860

1 Mr. Stewart, the Chamber has invited the parties - I think it was

2 on the 8th of March - to make further submissions related to the testimony

3 of Mr. Krajisnik, to be filed two weeks prior to the commencement of the

4 accused's testimony. Well, that's over now, but if there would be any

5 matter you would like to submit to us at this moment, please do so. And

6 in addition to that, you also earlier asked to be given a possibility to

7 comment on scheduling of filing of pre-trial [sic] briefs. You have an

8 opportunity to do so at this very moment on both subjects.

9 MR. STEWART: Yes, Your Honour. On the -- on the first matter --

10 yes, this is a separate matter from, I think, an 89(F) statement in

11 relation to Mr. Krajisnik, but it -- maybe it's appropriate to indicate to

12 Your Honours and to the prosecuting counsel that we are proposing to let

13 the Prosecution have a -- in effect, it's a draft until confirmed in the

14 witness box, but an 89(F) statement within, we hope, the next 48 hours.

15 It won't cover, of course, a vast amount of his evidence.

16 Your Honour, our main concern about Mr. Krajisnik's evidence is

17 not directly to the evidence itself - that will come - but the issue that

18 was canvassed a few weeks ago about guidelines for any essential contact

19 with Mr. Krajisnik during the long time that he's going to be in the

20 witness box. The -- clearly he remains our client. We know that we

21 mustn't, and we have explained again to Mr. Krajisnik, in fact this

22 morning, what the normal restrictions are on a -- contact between a

23 witness.

24 Your Honour, so far as that is concerned, would we -- I have to

25 ask the question: Would we be permitted to arrange to go and see counsel

Page 22861

1 -- of course, it can only be counsel present or counsel with support

2 staff. Would we be permitted to go and see Mr. Krajisnik at the United

3 Nations Detention Unit on -- obviously on a professional undertaking that

4 we do not discuss his evidence? That's question number one.

5 And question number two, and this is a question properly submitted

6 from Mr. Krajisnik but through me, is what contact is he permitted to have

7 with any other members of the Defence team? Because Your Honour will

8 appreciate that Mr. Krajisnik is able, not without some practical

9 difficulty, he is able to have contact with members of the Defence team

10 out in Republika Srpska.

11 Your Honour, the basic restriction on discussion of any of his

12 evidence, we don't submit that that can be relaxed. That isn't our

13 submission, Your Honour. However, his case continues, he continues to be

14 the defendant, he continues to wish and need to have such contacts. Those

15 are our practical concerns about what inevitably is going to be really

16 rather a long time of otherwise -- well, being incommunicado with

17 Mr. Krajisnik.

18 JUDGE ORIE: Thank you for those observations.

19 Any submissions in relation to that matter by the Prosecution?

20 MR. TIEGER: I have a submission in connection with a related

21 matter but not specifically addressed to the comments of Mr. Stewart.

22 JUDGE ORIE: Yes. Then -- I have to re-read the transcript of

23 when we discussed it, because at that time the -- I don't know exactly

24 what we said about what exceptions could be made, but it -- my first

25 impression of your present submission is that it goes further than what

Page 22862

1 was said at that time. I'll check first.

2 MR. STEWART: It may do, Your Honour. That was a very brief

3 discussion. I will say there was at least an indication from the

4 Prosecution that they weren't going to be rigidly inflexible, recognising

5 some of the practical difficulties, but I'm not suggesting that they did

6 any more than that or that we explored the matter in any detail.

7 JUDGE ORIE: I'll -- we'll re-read what we said at that time. We

8 also will briefly discuss the matter amongst the Judges, and we'll let you

9 know.

10 MR. STEWART: Yes. Certainly from a practical point of view, of

11 course -- although in principle it isn't any different. Of course there

12 is the opportunity to see Mr. Krajisnik briefly when he is in this

13 building, and in principle there isn't a lot of difference whether we see

14 him in one place or another place, but I thought I would raise the

15 discussion in terms of --

16 JUDGE ORIE: I would say it naturally limits the time for such

17 communication. But let's first read it over, let's again think it over,

18 and then see what guidance we'll give you. Yes.

19 About the scheduling of filing trial briefs, Mr. Stewart --

20 MR. STEWART: Your Honour, yes. Your Honour, may I ask, I haven't

21 found it easy to get this information, surprisingly, because there's lots

22 of other information there. May I ask a simple question? We're not clear

23 when the recess begins. Is it after Friday, the 20th of July?

24 JUDGE ORIE: The 14th of July.

25 MR. STEWART: The 14th. That's most helpful, Your Honour, because

Page 22863

1 the two candidate dates in my head didn't include that at all. That's

2 helpful. I didn't appreciate it could be that early.

3 Your Honour, on the current directions, and the latest scheduling

4 directions in effect are those contained in the transcript of the 24th of

5 March at page 21944 of the transcript, Mr. Krajisnik's evidence -- Your

6 Honour, I've taken it that Mr. Krajisnik's evidence in chief would close

7 on the 19th of May. There have been some e-mail correspondence about

8 whether there's a certain confusion about the 16th, 17th, 18th, and

9 whether it's 20 days or 21 days --

10 JUDGE ORIE: I think it was the 18th. Start on the 20th of April,

11 finishing on -- that's a Thursday. Four weeks would finish on Wednesday,

12 the 17th, but since Monday, the 1st of May, is a UN holiday, it would be

13 fair to add -- well, four weeks means then four times five days in court,

14 so that would bring us to the 18th of May, and start of cross-examination

15 would then be on the 19th of May.

16 MR. STEWART: Well, Your Honour, that does follow from 20 days,

17 but, Your Honour, remember -- Your Honour must, I suppose, have seen my

18 e-mail to the Trial Chamber about the -- this detailed -- this detailed

19 matter of exactly how many days there were, in the order of 27th of

20 February, and so on because it -- Anyway, Your Honour, may I for my

21 working purposes, not discerning what Your Honour has said and not wishing

22 to contradict it, in effect, just take it that Mr. Krajisnik's evidence in

23 chief will finish on Friday, the 19th of May, just because it's easier to

24 work in terms of weeks and if there's an adjustment of one day to be done

25 somewhere --

Page 22864

1 JUDGE ORIE: Well, the Chamber works in days, Mr. Stewart.

2 MR. STEWART: Well, Your Honour, it was the Chamber's order of the

3 27th of February which has caused a certain amount of confusion because

4 the calculation seemed to be wrong. That's all, and I was helpfully

5 trying to -- yesterday, trying to clear that up.

6 JUDGE ORIE: That's about Queen's Day, do you mean?

7 MR. STEWART: No, Your Honour, it was the 20 days referred to in

8 the order of the 27th of February, are in fact 21 days. The dates gave 21

9 days. It was called 20 days.

10 JUDGE ORIE: Is that a mistake? The Chamber had 20 days in mind.

11 MR. STEWART: In that case, all right, I'll adjust back, then. So

12 it's Thursday, the 18th of May -- So everything becomes a Thursday rather

13 than a Friday, then, Your Honour. Thursday, the 18th of May, end of

14 Mr. Krajisnik's evidence in chief. According to the directions on the

15 24th of March, Thursday the 8th of June the Defence case -- well, I say

16 the Defence case closes. Your Honour's directions refer to

17 cross-examination and Judges' questions. Your Honour, perhaps the most

18 convenient thing -- may I do this, Your Honour, with respect, may I just

19 add back that day notionally for re-examination at the moment, and then it

20 means we can work Friday to Friday?

21 JUDGE ORIE: Yes. Of course it very much depends, but until now

22 we have scheduled three weeks for, let's say, what follows, and that is

23 therefore cross-examination, questions by the Chamber, and we had

24 re-examination in mind as well, but that might take also the 9th. I

25 couldn't say that for certain at this moment. It's also very difficult to

Page 22865

1 give a real assessment, Mr. Stewart, because we're talking in terms of

2 weeks and weeks of evidence. Of course at a certain moment the Chamber

3 might decide that after we've heard one week of cross-examination by the

4 Prosecution that we've heard enough, or that we say after three and a half

5 weeks of examination of the accused to say it -- the relevance is

6 insufficient to continue for another week, so you have another three or

7 four days. We'll closely monitor what's happening, and of course we'll

8 adapt the schedule to it. But as it stands now it's 20 days and then

9 another 15 days for Prosecution, Chamber, and re-examination.

10 MR. STEWART: Very well, Your Honour. I was just trying to clear

11 some of the lines there and try to have us go from Friday to Friday, but

12 it doesn't really matter, Your Honour, because we have -- for these

13 purposes we have essentially one simple submission which is what we should

14 look at is how long is needed for filing of final trial briefs after

15 everything else is finished.

16 JUDGE ORIE: Yes, after we've heard all the evidence.

17 MR. STEWART: After we've heard -- yes, Your Honour, after all the

18 evidence, Chamber's witnesses, witnesses on issues of sentencing or

19 whatever. After the final hearing, and then we adjourn for filing of

20 final briefs.


22 MR. STEWART: Your Honour, I've discussed with all the relevant

23 members of my team, of course, and considered the matter, I also -- Your

24 Honour, I have to take account what weight and what relevance the Trial

25 Chamber attaches to it, I have to take account of the fact, Your Honour,

Page 22866

1 that the additional funding offered by the Registry ran out at the end of

2 March and is not renewed. I am, therefore, operating with the basic

3 funding and without Mr. Krajisnik's contribution, as lead counsel for this

4 team. I, therefore, have to assess the resources which I have at my

5 disposal for this purpose. What Your Honours do with that information is

6 another matter, but from my point of view, I have to adopt that approach.

7 Your Honour, in any case, I am informed by a member of my team who at the

8 moment has the immediate practical responsibility for work on the final

9 brief, though of course it's going to fall back to Mr. Josse and myself

10 when we have time to do any work at all on that, but I am informed that

11 from that last day of hearing of evidence, six weeks would be needed to do

12 the final brief. And a comparison - a simple comparison, admittedly - is

13 that in the Oric case 15 days were allowed, in the I think it's Limaj and

14 others, the defendants, 23 days were allowed. Neither of those cases,

15 with respect to whatever difficulties there were involved in the case and

16 whatever importance to those involved, neither of those cases were

17 anywhere near the scale and complexity and volume of material of this

18 case. And, Your Honour, I don't simply accept and adopt information like

19 that from other members of my team without sifting it and considering it

20 myself, Your Honour, but my submission is that that is an entirely

21 realistic and fair assessment of how long is going to be needed. We are

22 going to be up to about something like 25, 26.000 pages of transcript,

23 something like that, by the time we finish. We're going to be up to a

24 thousand-plus exhibits. And, Your Honour, the ability of this Defence

25 team to do this work as we go along is zero for all practical purposes,

Page 22867

1 Your Honour. Just zero. We're not able, even, to keep up with the tasks

2 that are to be done as we go along.


4 MR. STEWART: So, Your Honour, in a way, it's a simple formula.

5 We do say, Your Honour, that we do need a minimum of six weeks from that

6 last day for the filing of briefs.

7 I don't know if Your Honour wants me then to go on to the question

8 of oral argument and a gap between final briefs and oral argument. Your

9 Honour, so far as that is concerned -- perhaps I will, Your Honour. So

10 far as that is concerned, if we do have that period for the filing of the

11 briefs, then what is needed after that is sufficient time, of course, for

12 the parties to consider each other's briefs and prepare their submissions.

13 So I'm leaving entirely out of the equation at the moment, Your Honour, as

14 really a completely practical matter, the question of recess. In fact,

15 I'm not counting that in these submissions. Just leaving that on one

16 side, if we're just talking about weeks and days, Your Honour, we would

17 submit that six weeks therefore for the filing of final briefs and that

18 three weeks then gap to prepare final oral submissions.

19 JUDGE ORIE: Yes. This is far from anything in the previous

20 scheduling orders, as you may be aware, Mr. Stewart. The Chamber was

21 thinking in quite different terms.

22 MR. STEWART: Well, Your Honour, a matter of which we had not

23 really made submissions. That is really rather precisely the point.

24 JUDGE ORIE: No. Yes. Then there is another matter I would like

25 to briefly raise. It relates to scheduling. I said that the presentation

Page 22868

1 of evidence, at least by the parties, would finish on the 8th of June.

2 The Chamber does not know whether it will call any Chamber witnesses,

3 neither does the Chamber know, if it will decide to do so, how much time

4 that would take. Just for -- without having any details available, we

5 have not even spoken to the witnesses, as you are aware. We provisionally

6 scheduled some two weeks for that. Whether that will be enough or not,

7 that we'll know only at a later stage.

8 There is another matter, and that's the following: Mr. Stewart,

9 you rightly have drawn our attention to miscalculations as far as the time

10 spent by the Defence and the Prosecution is concerned. The Chamber admits

11 that such mistakes were made. You pointed out one or two of them, and the

12 Chamber of course is very embarrassed by having made these mistakes and

13 considered it necessary to review all of it so that we have a full new set

14 of numbers.

15 The Chamber also considered whether additional time based on these

16 miscalculations should be given. The Chamber decided to give three

17 additional days to the Defence. This is not just a matter of calculation.

18 The three additional days were triggered by the miscalculations, but we

19 have taken into consideration a lot of elements which finally led us to

20 grant three additional days. It's still for the Defence to decide whether

21 they would say: We would like to have these three days for further

22 preparation, which would delay the beginning of the testimony of

23 Mr. Krajisnik from Thursday, the 20th, until the Tuesday, the week after

24 that; or that you would say: We would like to have three more days for

25 the testimony of Mr. Krajisnik. I mean, there are several solutions which

Page 22869

1 the Chamber at this moment does not want to ask you for suggestions how to

2 use these additional three days so that we could approve the use of it and

3 then proceed.

4 MR. STEWART: Yes, Your Honour, that's -- presumably it's a matter

5 on which Your Honours would -- would rather welcome an early response,

6 because if one of those options is chosen, then it --

7 JUDGE ORIE: Especially --

8 MR. STEWART: -- affects next week.

9 JUDGE ORIE: -- if it would -- if you would choose to delay the

10 beginning of the testimony of Mr. Krajisnik for three days, then of course

11 we would like to know as soon as possible. At the same time, we are aware

12 that we -- first of all, it was our mistake, so therefore we should not

13 push you too much to make up your mind within half an hour. Where we made

14 the mistakes, we should give you reasonable time to consider it. But once

15 you would know it, and of course especially if your mind goes in the

16 direction of -- in the direction of the delaying the start of examination

17 of -- the testimony of Mr. Krajisnik, then of course we would like to know

18 as soon as possible.

19 MR. STEWART: Well, Your Honour, it's very gracious of Your Honour

20 and we appreciate the acknowledgment. We will seek to take no advantage

21 of that by delaying our decision, and we will let Your Honours know as

22 soon as we possibly can.

23 JUDGE ORIE: Yes. Then the parties will be provided with a few

24 sheets being the pre-revision times for both Defence and OTP and the

25 post-revision times so that the parties are fully informed about what are

Page 22870

1 the real figures.

2 Yes, Mr. Tieger.

3 MR. TIEGER: Your Honour, if the Court is moving on to a subject

4 completely separate the scheduling of or any aspects related to

5 Mr. Krajisnik's testimony, I have one matter to raise in connection with

6 that.

7 JUDGE ORIE: Yes, please let me just first consult with the Legal

8 Officer.

9 [Trial Chamber and legal officer confer]

10 JUDGE ORIE: Yes, Mr. Tieger.

11 MR. TIEGER: It's just this, Your Honour: I wanted to bring the

12 Court's attention to what the Prosecution regards and what Mr. Stewart

13 knows we regard as a very unsatisfactory state of affairs with respect to

14 the 65 ter summary. The backdrop, quickly, is that some time ago -

15 approximately two or three weeks - we contacted Mr. Stewart, advised him

16 of our assessment that the 65 ter summary provided was topical and lacking

17 facts. At that time we believed that we'd reached -- we did reach an

18 agreement that a supplemental 65 ter summary would be provided in light of

19 the current 65 ter summary's deficiencies. Having not received one, I

20 contacted Mr. Stewart over the weekend. He contacted me yesterday,

21 advising that while he still agreed about the nature of the 65 ter

22 summary, that it had become his view that under these circumstances a more

23 factually based 65 ter summary was not necessary, or at least should give

24 way to the need -- his need to invest his time in preparing his client.

25 I'm not suggesting in any way that this is intended to blunt the

Page 22871

1 effectiveness of the Prosecution's efforts to prepare for

2 cross-examination by having us focus far too broadly and with wild

3 imprecision, but that is in fact its effect.

4 I don't have a specific remedy to propose at this moment except to

5 note that whether it's a request that the commencement of the

6 cross-examination be delayed or some other approach to address this

7 problem, I can certainly anticipate that possibility, and I felt I needed

8 to raise it at this point.

9 JUDGE ORIE: Yes, yes. That's clear. The history of the last

10 couple of weeks came into my mind when Mr. Stewart said that seven days

11 was not enough under the new -- under the proposed procedure, but let's --

12 as you said, I do not propose any -- it's more kind of a signal that what

13 might happen very -- in the very near future that this -- in the coming

14 couple of hours. Of course then after that, I would say the difficulties

15 the parties had in providing or receiving the 65 ter summaries may be

16 over, more or less. The Chamber does understand -- does both understand

17 what it takes to prepare and also what it takes not to be provided in

18 time, as ordered by the Chamber, with these 65 ter summaries.

19 If there's nothing else in procedural terms on the agenda, but,

20 Mr. Stewart, you're --

21 MR. STEWART: I do have one other matter, Your Honour.

22 JUDGE ORIE: Yes, please.

23 MR. STEWART: Your Honour, I am -- I am troubled and I frankly

24 have to face the fact that in relation to the Nielsen issue, the two weeks

25 that Your Honour indicated for a response from the Defence, have expired.

Page 22872

1 Your Honour, I have to be absolutely blunt about this, Your Honour: We

2 cannot find time to do this task, we simply cannot. I neither have

3 anybody to whom I can delegate it nor do I have the time I can find myself

4 to do it. Your Honour, we've raised the question -- I don't know when

5 we'll find time, we'll have to find time sometime, Your Honour, but I

6 raise the question whether it is in fact a matter of such compelling

7 urgency for the Trial Chamber or anybody else that it's not possible to

8 give us more time to deal with that matter. Otherwise, Your Honour, it

9 simply will have to be undealt with. We can't handle it.

10 JUDGE ORIE: Yes. Well, at least in your priorities it was not

11 given such time that it -- yes.

12 MR. STEWART: That's one way of putting it, Your Honour, but what

13 it is is that in the list of priorities things drop off the bottom as

14 impossible to do. So it isn't just a question of prioritising, it's a

15 question of they simply have to drop off. And if Your Honours, in the

16 end, take the view that in all the circumstances the Defence being able to

17 deal with it just has to drop off the scale, that is Your Honour's

18 decision, but I am just frankly putting the position to Your Honours on

19 that.

20 JUDGE ORIE: Well, that's put in a way which is -- it's -- you

21 make the Chamber responsible at this moment for all this, and that's a

22 matter which should not be discussed at this moment.

23 MR. STEWART: No, Your Honour, no. With respect, I am allocating

24 the responsibilities properly where they are. We are not able to do it.

25 We have failed to do it. Describe it any way one likes. It is then -- we

Page 22873

1 accept that. It is then for the Chamber to make such decisions in the

2 light of what we submit and what we present to the Chamber. That is the

3 allocation of responsibilities among us.


5 Mr. Tieger.

6 MR. TIEGER: Yes, Your Honour, I -- just to, I hope, bring some

7 clarity to the situation, and there may have been some communication lag

8 between the members of the Defence, but I believe that the review to which

9 Mr. Stewart is referring was intended to be the review of the binders

10 which the Prosecution provided containing reports from the MUP to the

11 Presidency, reports from the MUP to the government, and daily bulletins.

12 And I had indicated previously that there were a small number of reports

13 to the Presidency, a small number of reports to the government, and I

14 think in the order of 20 or more daily bulletins relevant to the Court's

15 inquiry. Now, after a period of time had elapsed and there was no

16 response, presumably for the reasons Mr. Stewart indicated, then the Court

17 did make a decision and indicated to the parties that it simply wanted the

18 Prosecution to submit the reports to the Presidency. We have those. I

19 advised the Legal Officer in response to a request - indeed an order - by

20 the Court some days ago that we would be providing them this afternoon and

21 we're prepared to do so at this time.


23 MR. TIEGER: But that's the status as I understand it, and I think

24 that's accurate. And I think it obviates the review that Mr. Stewart was

25 referring to.

Page 22874

1 [Trial Chamber confers]

2 JUDGE ORIE: We'll decide on the matter but will not receive it,

3 Mr. Tieger, this afternoon. So we know it's ready, it's there.

4 MR. TIEGER: Of course. Your Honour, that didn't mean to

5 circumvent any decision the Court will make. We were prepared to submit

6 all the documents we had assembled, including numerous daily bulletins,

7 but whatever the Court decides, of course is fine.

8 JUDGE ORIE: Yes. I am looking at the clock. We are at the first

9 break. Since there are no further procedural matters, Mr. Josse, I think

10 we invited you to finish with the witness in the next hour, isn't it?

11 MR. JOSSE: You gave me an hour.


13 MR. JOSSE: And I haven't pursued any more time. In other words,

14 I will take no more than an hour.


16 The Prosecution is invited to see whether they can finish the

17 witness today, since otherwise she will be here, we will have one week of

18 not sitting. We'll adjourn until 3.30 and then resume in closed

19 session --

20 MR. STEWART: Excuse me, Your Honour.


22 MR. STEWART: There's a matter that was left over in relation to

23 Mr. Krajisnik, depending on how Your Honours are going to deal with that.

24 There was a question of whether you were going to give Mr. Krajisnik an

25 opportunity to --

Page 22875

1 JUDGE ORIE: Yes, we'll discuss that during the break.

2 MR. STEWART: Would Your Honours then -- depending on what

3 happens, would Your Honours deal with that immediately after the first

4 break?

5 JUDGE ORIE: If we can conclude our deliberations on the matter,

6 we'll deal with that immediately; if not, it will have to wait until the

7 next break.

8 MR. STEWART: Thank you, Your Honour.


10 --- Recess taken at 3.05 p.m.

11 --- On resuming at 3.42 p.m.

12 JUDGE ORIE: I would like to address a few matters raised before

13 the break. We have to prioritise. That means that there are more and

14 less important issues raised. We'll decide on all of them, but there are

15 a few matters which need immediate attention.

16 First of all, Mr. Krajisnik, we said we would consider what -- we

17 would give you an opportunity now to address the Chamber. We are not

18 going to do that, but I add to that the following: The Judges have not

19 read your letter, as you know. We were informed by our Legal Officers

20 that there is nothing in the letter that should be appropriately addressed

21 directly to the Chamber; therefore, the way to do it would be through

22 counsel. We're also informed that the letter, although mixing up with

23 other things we were not aware of, perhaps argumentative, or -- but

24 contains other matters as well. But among other matters, also deals with

25 the information we invited the Defence to provide to us. Now, if there's

Page 22876

1 any information about witnesses who had negative consequences upon their

2 return, the Chamber would like to receive that information. Therefore,

3 the proper way of doing that is through counsel. If finally, after

4 consultation with Mr. Stewart, you would -- got stuck in a disagreement

5 that would be a lasting disagreement on the matter, Mr. Stewart perhaps

6 arguing that it would not benefit you to give that information, and if

7 that's the case or not to give it in the way you have suggested it to be

8 given, then finally, it's Mr. Stewart's duty to advise you not to submit

9 it. If, however, an adult experienced man decides that he considers it

10 more important to give the information and says: If it's stupid, okay,

11 that's your opinion; in my opinion it's not stupid. Finally -- and that's

12 of course a bit of a -- a bit of a collision of traditions. Since you are

13 dependent on Mr. Stewart and since the Chamber asked for that information,

14 if you would finally not agree on how to deal with the matter, you could

15 address the Chamber again, and then of course not mixed up with any other

16 matters, but then the Chamber would consider to receive information you

17 consider to be vital that it reaches the Chamber, information the Chamber

18 has asked for but where you could not reach any agreement with

19 Mr. Stewart.

20 Where -- the Chamber is not saying that Mr. Stewart is not

21 performing his duties. It may be his duty - of course I do not know the

22 content of it - but it could be his duty to say better not do it, do it in

23 another way. But if finally you say I would like to inform the Chamber

24 about it and Mr. Stewart says: It would damage you and therefore I'm not

25 the one to do it for you because it would run counter to what I find my

Page 22877

1 duties, then finally, whether Mr. Stewart under those circumstances should

2 follow your wish or not is not a matter on which the Chamber does not

3 pronounce at this moment but at least then we would then seriously

4 consider to receive it directly from you. That's the matter about the

5 letter. We will not give you at this moment a further opportunity to

6 raise the matter with the Chamber.

7 The second issue, which would be very urgent, is any contact

8 between Defence and Defence team and potential Chamber witnesses. No, no,

9 I'm making a mistake. No, it's not about -- it's not about Chamber

10 witnesses. It's about communication between you, Mr. Krajisnik, and the

11 Defence team during your testimony.

12 Mr. Stewart, on the -- I said I would re-read the transcript in

13 this respect. I do not have the exact date in front of me, but it's page

14 20897. You said: "We had assumed, Your Honour, that we would be unable

15 to communicate with him but with this caveat that we suppose that if there

16 were some practical matter that was really not related to his evidence,

17 that we would approach the Prosecution and if necessary the Trial Chamber

18 and we would seek appropriate clearance ad hoc to deal with that, Your

19 Honour. That's what we had thought was the position."

20 And Mr. Harmon, one line later, says: "Your Honour, we had the

21 same assumptions." And I then said: "And since the Chamber does not

22 oppose to this approach, we don't have to discuss it at this very moment

23 any more." The Chamber would like to stick to this. It was suggested by

24 you. It was agreed by the Prosecution. The Chamber agreed as well. We

25 leave it to that and it would be valid for the whole of the Defence team.

Page 22878

1 Then two matters as far as the -- two matters as far as the

2 potential Chamber witnesses are concerned. First of all, we have

3 carefully considered your submissions in relation to a Legal Officer

4 conducting the interview. We will proceed on the basis of a Legal Officer

5 conducting this interview. We have -- if I would have to formulate the

6 reasons at this moment, I would likely make mistakes, both in terms of

7 language not precise enough. But we have discussed the matter and the

8 Chamber unanimously decided that it was the Legal Officer that would

9 conduct the interview, but we will give further reasons for this course of

10 preparing potential Chamber witnesses in due course. We can't do that

11 this week, we might not do it next week, but it's fair for you to be

12 informed that at this moment we will proceed not in accordance with what

13 you suggested in this respect.

14 Then another matter, whether or not you could contact any Chamber

15 witnesses, potential Chamber witnesses. We further have to discuss that

16 matter. We are not able to do that extensively over the next week. You

17 may understand that usually there's one week off in spring. The Chamber

18 decided to use the Easter weekend so that we are losing as -- that at

19 least the days in court lost are minimal. That means -- so therefore, you

20 should at this moment proceed on the basis that you should not contact any

21 potential Chamber witnesses. If that would change -- This is a

22 provisional result of our discussions. If that would change, because we

23 might discuss it, we might continue to discuss it on from the 20th of

24 April, then you'll hear from us. But for the time being you're instructed

25 not to contact any potential Chamber witnesses.

Page 22879

1 By the end of this day I'll give you, in private session,

2 confidentially, the names of those witnesses so that these potential

3 witnesses -- not knowing anything about -- even not being sure whether

4 they'd all be still alive because, I mean, the Chamber invites you to give

5 any information to the Chamber as to their whereabouts or whether they're

6 still alive or not. Then -- yes, these are the matters I think were of

7 such urgency that I should address them immediately.

8 We'll now turn to --

9 MR. STEWART: Your Honour, there's one tiny question that arises

10 out of that.


12 MR. STEWART: Mr. Krajisnik will need to at least initiate -- if

13 we are to speak to him about a practical matter, it will presumably at

14 least start off with Mr. Krajisnik wanting to indicate to somebody -

15 perhaps it could just be to Your Honours - that he wishes to have such

16 a --

17 JUDGE ORIE: We'll develop a procedure for that. I do understand

18 that if you can have no contact then you even don't have any possibility

19 of communicating that there's a need to have a contact on a specific

20 matter.

21 MR. STEWART: A small point, Your Honour, but I thought I would

22 register it now.

23 JUDGE ORIE: Yes. We'll provide you with the relevant

24 information.

25 MR. STEWART: Thank you, Your Honour.

Page 22880

1 JUDGE ORIE: By the way, when I just quoted you, Mr. Stewart, it

2 was the 23rd of February, 2006, when you spoke those words.

3 MR. STEWART: Oh, thank you, Your Honour.

4 JUDGE ORIE: If there's no other matter at this moment, we turn

5 into closed session.

6 [Closed session]

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Page 22881











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

4 JUDGE ORIE: We will adjourn until Thursday, the 20th of April,

5 quarter past 2.00 in the afternoon, Courtroom III.

6 --- Whereupon the hearing adjourned at 6.33 p.m.,

7 to be reconvened on Thursday, the 20th day of

8 April, 2006, at 2.15 p.m.