Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                          Monday, 26 March 2007

 2                          [Status Conference]

 3                          [Open session]

 4                          [The appellant entered court]

 5                          --- Upon commencing at 2.29 p.m.

 6            JUDGE SCHOMBURG:  Please be seated.

 7            Good afternoon to everybody, both behind the scenes and in the

 8    courtroom, assisting us today in the case.

 9            May I ask Mr. Registrar to please call the case.

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

11    IT-00-39-A, the Prosecutor versus Momcilo Krajisnik.

12            JUDGE SCHOMBURG:  I thank you.

13            May I have the appearances, please, starting with the Prosecution.

14            MS. McCALL:  Good afternoon, Your Honour.  Shelagh McCall is my

15    name.  With me is Christine Dahl and our case manager, Lourdes Galicia.

16            JUDGE SCHOMBURG:  Thank you.

17            For the Defence.

18            MR. NICHOLLS:  Colin Nicholls, QC, for the Defence, on my own.

19            JUDGE SCHOMBURG:  Thank you.

20            And I can see another person in the area of the Defence.  May I

21    ask for your name, please.

22            MR. KARGANOVIC:  Certainly, Your Honour.  Stefan Karganovic.

23            JUDGE SCHOMBURG:  May I ask you which standing do you have in this

24    case?

25            MR. KARGANOVIC:  Interpreter.

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 1            JUDGE SCHOMBURG:  May I hear the Prosecution on this.  I think we

 2    have an interpreter's booth.  Is there any need for you, Mr. Nicholls, to

 3    communicate via a specific interpreter, in particular with the gentleman

 4    who just has introduced himself, to communicate with Mr. Krajisnik?

 5            MR. NICHOLLS:  Yes, it may be necessary for us to communicate

 6    immediately between the interpreter, Mr. Karganovic and Mr. Krajisnik and

 7    then indirectly to me.

 8            JUDGE SCHOMBURG:  Okay.  Therefore, it would be an advantage for

 9    you.

10            MR. NICHOLLS:  Yes, it would.

11            JUDGE SCHOMBURG:  You would cooperate together and you have no

12    objections.  Then the question for you has become moot.

13            Then finally the question, Mr. Krajisnik:  Can you hear me?  Can

14    you follow the proceedings in a language that you understand?  And at the

15    same time, you're already on your feet, may I ask you, is there anything

16    we have to discuss as regards your health condition?  Do you have any

17    complaints about the detention conditions?

18            THE APPELLANT: [Interpretation] I am receiving the interpretation.

19    As far as my health is concerned, it's not necessary for me to discuss

20    this issue, but there are other issues that I feel are necessary to

21    discuss.

22            JUDGE SCHOMBURG:  Thank you for this.  No doubt a number of issues

23    have to be discussed today and to alert all participants already now, let

24    me state that there is a substantial likelihood that this Status

25    Conference will take us longer than expected and therefore, Mr. Registrar,

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 1    if you could be kind enough to alert me when the tape is running out.

 2    Thank you.

 3            We have a number of motions, letters, received in the past.

 4    Unfortunately, it was not yet possible to finally decide on the motion of

 5    Mr. Krajisnik to defend himself.  As things stand now, the Registrar has

 6    assigned, as requested, Mr. Nicholls as Defence counsel.  This decision

 7    was contested.  The President, in his decision, stated, however, that

 8    Mr. Nicholls was properly assigned as Defence counsel.  As he stated in

 9    his decision, it does not follow in his jurisdiction to decide whether, on

10    appeal, the appellant, Mr. Krajisnik, can or might defend himself.  The

11    right to self-representation on appeal is at stake.  The Appeals Chamber

12    has, until now, never ruled on this question.  But in all decisions

13    beforehand, it was stated that such a request to self-representation must

14    be informed, unequivocal, and intelligent.

15            For this reason, I had asked the Registrar to present one of the

16    representatives to this Status Conference today, that we are clear about

17    the consequences of three scenarios.  I will highlight the scenarios in a

18    minute.  If you could be so kind and introduce yourself from the -- as a

19    representative of the Registrar.

20            MR. PETROV:  Sure, Your Honour.  Martin Petrov, head of the Office

21    for Legal Aid and Detention matters.

22            JUDGE SCHOMBURG:  Thank you.

23            First, a request has to be unequivocal.  From the very beginning,

24    there was a discussion whether or not Mr. Alan Dershowitz, from the United

25    States, would be counsel for Mr. Krajisnik.  We have heard for a long

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 1    period of time nothing on this issue; however, most recently, in a letter

 2    sent directly to me, a letter of 3 March, Mr. Krajisnik referred to

 3    Professor Alan Dershowitz de novo in saying that "the issues need to be

 4    resolved because conditions have not yet been created for Professor Alan

 5    M. Dershowitz to join the appeal preparation as my attorney, and until he

 6    does, I wish to work on the appeal myself."

 7            So we have still an unequivocal -- we miss an unequivocal

 8    decision.  So may I ask you:  What is the situation after having discussed

 9    this matter for about six months with Mr. Dershowitz?  Will he be able to

10    defend yourself or not, Mr. Krajisnik?  If you could be so kind and answer

11    this question with a clear yes or no.

12            THE APPELLANT: [Interpretation] At this point in time, he can't,

13    but I'm firmly convinced that it will soon be possible for him to do so.

14            JUDGE SCHOMBURG:  Can you tell us why you have this impression,

15    that it's only a question of time, that in the future, he might be able

16    to -- and also willing, to defend you?

17            THE APPELLANT: [Interpretation] The situation is very simple.

18    Mr. Dershowitz has, in principle, agreed to represent me.  There is no

19    doubt about that.  But he has said that certain conditions should be met.

20    Certain funds provided by the Registry are not sufficient, he says, in

21    order to ensure that the Defence can act properly.  And this is why I

22    would like certain other preconditions to be met so that he can represent

23    me at the appeal stage.

24            What are these additional conditions?  He has to carry out

25    numerous investigations that weren't carried out in the course of the

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 1    trial, and he requires funds for this, either from sponsors or from other

 2    sources.  Perhaps someone should do this and then he would have fewer

 3    commitments and he would be able to satisfy himself with the funds

 4    provided by the Registry.

 5            So I have been working on this continually in order to ensure that

 6    he can represent me.  That is also why I believe that I still need some

 7    time to make sure that Mr. Dershowitz can participate in these

 8    proceedings.

 9            JUDGE SCHOMBURG:  Thank you for this.  I must tell you that I'm

10    only afraid that I heard the same, if not the similar, story already

11    during the last Status Conference, and apparently it's a question of money

12    or funds to be given to Mr. Dershowitz.  Therefore, my question goes

13    directly to the Registry.

14            Do you have still contacts with Mr. Dershowitz?  And what is the

15    actual situation?  Will the Registry, under the conditions and under the

16    Rules of our Tribunal, be able to fund Mr. Dershowitz so that he is

17    satisfied?

18            MR. PETROV:  Thank you, Your Honour.  The last time I have

19    personally spoken to Mr. Dershowitz was on the 15th of January, 2007.  At

20    that point I asked him for maybe the third consecutive time if he was

21    willing to take the case of Mr. Krajisnik on appeal, and while, as

22    indicated by Mr. Krajisnik, he said -- confirmed that he was interested in

23    principle, he was not prepared to take an assignment by the Registrar at

24    that time.

25            Since the 15th of January, we have not been in contact with

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 1    Mr. Dershowitz, neither has Mr. Dershowitz -- nor has Mr. Dershowitz

 2    attempted to contact the Registry.  I am not aware of any attempt he has

 3    made to communicate with the Registry, and if Mr. Krajisnik has been in

 4    contact with him in the meantime, I'm certainly not aware of that.

 5            In terms of the reasons why he was not prepared to take an

 6    assignment by the Registrar, Mr. Dershowitz indicated to me, more or less,

 7    what Mr. Krajisnik said, that he was not prepared to take the case at the

 8    rates of remuneration offered by the Tribunal.  However, Mr. Krajisnik is

 9    receiving legal aid and there is a specific provision in the Directive on

10    the Assignment of Counsel which prohibits counsel remunerated by the

11    Registrar to receive remuneration from a third source.

12            Mr. Krajisnik indicated to me in a meeting we had at the Detention

13    Unit sometime in November, I believe, or December of last year, that,

14    according to his calculations, he had a certain amount of money to

15    contribute still to the cost of his defence and I understand that in

16    addition to that, he also offered to Mr. Dershowitz support in terms of

17    securing the employment of pro bono investigators and support staff, which

18    I understand from my conversations with Mr. Krajisnik has been a condition

19    imposed by Mr. Dershowitz.

20            Mr. Dershowitz told me personally very clearly last time I spoke

21    to him on the phone that if he is to be responsible for this case, he

22    needs to be in full control of the Defence team and all members of it

23    working for him.  And apparently, my understanding, based on my

24    conversations with Mr. Krajisnik and with Mr. Dershowitz, is that they

25    have not reached an agreement to that effect in any event.

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 1            And for these reasons, the Registry made a submission before the

 2    President in reply to Mr. Krajisnik's request for review of the assignment

 3    decision, and as you mentioned already, the President upheld the

 4    Registrar's decision finding no impropriety in the process of reaching

 5    that decision.

 6            JUDGE SCHOMBURG:  Thank you.  Can you give us concrete figures

 7    that are at stake or expected on the part of Mr. Dershowitz?

 8            MR. PETROV:  He never mentioned any specific figures, Your Honour.

 9    What I have explained to him is the Tribunal's legal aid system and how it

10    operates.  I've also explained the three different levels of complexity of

11    the cases and the maximum remuneration counsel is provided by the Registry

12    for each of the levels of complexity.  And in terms of discussing the

13    money, this has been the only conversation I've had with him.

14            JUDGE SCHOMBURG:  Thank you.  Had there been any other obstacles

15    in the past?  Was Mr. Dershowitz ready and willing to sign the usual

16    commitment as counsel appearing before this Tribunal?

17            MR. PETROV:  As the Registry has explained in one of its

18    submissions submitted before the Appeals Chamber and before the President,

19    the Registry has never been in a position to assign Mr. Dershowitz because

20    he did not fulfil at least one -- as a matter of fact, two of the specific

21    conditions, preconditions, for assignment, and that is, first, to be

22    placed on the so-called Rule 45 list of counsel eligible for assignment to

23    indigent suspects and accused.  As a matter of fact, he never applied for

24    admission to that list.  And second of all, the expression of consent, his

25    consent to be assigned as counsel to Mr. Krajisnik.

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 1            Despite numerous efforts made by the Registry to accommodate

 2    Mr. Krajisnik's wish to have Mr. Dershowitz assigned, we have been unable

 3    to date, but certainly prior to the assignment decision, to make sure that

 4    Mr. Dershowitz fulfils those -- those requirements.

 5            JUDGE SCHOMBURG:  Thank you.  Of course, I have to ask the

 6    Prosecution if you want to make any remarks on this current situation?

 7            MS. McCALL:  No, thank you, Your Honour.

 8            JUDGE SCHOMBURG:  Thank you.

 9            Then as it reads in all our decisions on self-representation

10    during trial, the decision has to be an informed one.  In this case, I

11    would ask the Registrar to clarify, before Mr. Krajisnik, in open court,

12    what are the conditions possible under the Rules and regulations of this

13    Tribunal.

14            We would have to discuss three scenarios; one scenario in which

15    Mr. Krajisnik is defending himself.  The second would be -- I anticipate a

16    motion we have to discuss later on.  In case there would be an amicus

17    curiae assigned as requested by Defence and certain -- and the third

18    scenario would be what about a mixed Defence.  Because I have, in order to

19    have a better understanding, for the parties and those following these

20    proceedings, in the already-mentioned letter of 3 March, Mr. Krajisnik

21    wanted to know the following, and I want -- I know it's difficult for you,

22    but if you could go through these three scenarios that Mr. Krajisnik is

23    really informed when finally asked what is his final request.

24            He asks to put on the agenda of this Status Conference

25    that "Stefan Karganovic assist me in the appeal as a translator."  Would

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 1    this be -- would there be any problem in relation to this?

 2            MR. PETROV:  Thank you, Your Honour.  In relation to

 3    Mr. Karganovic, I need to specify the following.  Mr. Karganovic has been

 4    designated to assist the assigned counsel, Mr. Colin Nicholls, as an

 5    interpreter every time Mr. Nicholls attends court hearings and visits

 6    Mr. Krajisnik at the Detention Unit, so he acts in a limited capacity for

 7    the Defence counsel currently assigned.

 8            I understand, however, from Mr. Krajisnik's letter - and let me

 9    just say that Mr. Krajisnik has sent a similar letter to the Registrar of

10    the Tribunal - that Mr. Krajisnik wishes to have Mr. Karganovic assist him

11    in his capacity as a self-represented accused.  The same applies to a

12    request Mr. Krajisnik has made for two other individuals to --

13            JUDGE SCHOMBURG:  Let's go, please, step by step.

14            MR. PETROV:  Okay.  Sorry about that.

15            With respect to Mr. Karganovic, the Registry has obviously no

16    objection to him assisting Mr. Nicholls in the limited capacity that I

17    have already mentioned.  When it comes to Mr. Karganovic assisting

18    Mr. Krajisnik in his capacity as a self-represented accused, then the

19    Registry believes that there is a problem, because as far as the Registrar

20    is concerned, Mr. Krajisnik is currently represented by counsel.

21            And in a letter the Registrar addressed to Mr. Krajisnik on the

22    22nd of March, a copy of which has been provided to the Chamber, the

23    Registrar takes the position that unless individuals like Mr. Karganovic

24    or others have been approved by the counsel currently assigned, the

25    Registry is not in a position to authorise Mr. Krajisnik to have

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 1    privileged communications with them, including Mr. Karganovic, because

 2    under the Rules, and more specifically, the Directive on the Assignment of

 3    Counsel and the Code of Professional Conduct for Defence counsel, the

 4    assigned counsel, lead counsel in this case, Mr. Nicholls, bears the full

 5    responsibility for all aspects of the Defence.  And the Registrar is

 6    concerned that the involvement of individuals who do not form part of the

 7    Defence team may actually result in a prejudice to Mr. Krajisnik's own

 8    interests and may undermine the strategy adopted by Defence counsel.

 9            For this reason, the Registrar is not in a position to allow

10    Mr. Karganovic to have privileged communications with Mr. Krajisnik and to

11    work with him on the appeal, as the request has been formulated.

12            Maybe just for the clarity of the record, I should make the

13    following statement:  Mr. Karganovic was allowed to assist Mr. Krajisnik

14    with some translation tasks for the purposes of Mr. Krajisnik submitting a

15    notice of appeal.  This was done on an exceptional basis.  It covered a

16    period of a few days only and it was done with the consent of

17    Mr. Nicholls.  So this is the reason why that situation is different from

18    the current request, which is, the way we understand it, for

19    Mr. Karganovic to be assisting Mr. Krajisnik on a continuous basis.

20            JUDGE SCHOMBURG:  Thank you.  Obviously this follows the

21    fundamental rule that it is for assigned lead counsel to create their own

22    team, including investigator.

23            May I therefore ask you, Mr. Nicholls, would there be any obstacle

24    for you to work together with Mr. Karganovic in the capacity as a member

25    of your team as a translator?

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 1            MR. NICHOLLS:  Not as a translator, but so -- well, as an

 2    interpreter, yes.  Not as a translator.  I wish to have him as a

 3    interpreter but not as a translator, unless I gave him some specific task.

 4            JUDGE SCHOMBURG:  Thank you for this very specific clarification.

 5    It's helpful to make this distinction between translator and interpreter.

 6    Thank you.  That's the first point.

 7            The second point was that Mr. Krajisnik requested that "I be

 8    enabled to send and receive documents in electronic form to and from my

 9    Defence team."  Here, the first question goes, of course, to Mr. Krajisnik

10    himself.  On the one-hand side, you are requesting to defend yourself; on

11    the other hand, you're speaking about your Defence team.  May I ask, what

12    do you understand personally when using the term "my Defence team"?

13            THE APPELLANT: [Interpretation] Your Honour, the investigators who

14    were involved in the trial proceedings are still working on this case and

15    they provide me with documents when I ask for them, and this then makes it

16    possible for me to analyse them and to prepare myself for the appeal.

17    That's what I'm talking about.  And there are two pro bono staff members

18    and one who is being paid.

19            JUDGE SCHOMBURG:  Those persons, are they already on the list of

20    counsel that are able to appear before this Tribunal pursuant to Rule 44

21    of the Rules of Procedure and Evidence?

22            THE APPELLANT: [Interpretation] They were in Mr. Stewart's team

23    and they acted as investigators.  They have continued working throughout

24    this period of time, so they were investigators in the first team that was

25    defending me.  Now Mr. Nicholls has engaged other investigators whose

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 1    identity I'm not familiar with.

 2            JUDGE SCHOMBURG:  You're speaking about investigators, this

 3    meaning that you don't -- are looking for Defence counsel in the sense

 4    that they would, also from a legal point of view, assist you.  The

 5    question, to put it more directly, is it only as regards the factual basis

 6    or also as regards the legal basis of the submissions you want to make?

 7            THE APPELLANT: [Interpretation] With your permission, I'd like to

 8    clear up something that is a little ambiguous, Your Honour.  At the moment

 9    there are investigators who were members of the first team and there are

10    certain items for which we would have to engage two Defence lawyers who

11    would analyse, in professional terms, the appeal.  I cannot do this myself

12    and it would be necessary for me to have the possibility of receiving

13    e-mail for both the Defence lawyers and for the investigators.

14            JUDGE SCHOMBURG:  So it is your submission that you can't exercise

15    your defence yourself.  Am I correct in reading this on the transcript?

16            THE APPELLANT: [Interpretation] No, no.  Your Honour, I am

17    convinced that I can defend myself in a more professional way than the

18    team that I currently have could do, but I believe that the appeal

19    procedure is specific and I would need counsel's assistance to deal with

20    this appeals procedure.  So when I'm defending myself, I would like to

21    have a very experienced lawyer as a member of the Defence team.

22            JUDGE SCHOMBURG:  Am I right in assuming that these persons are

23    those where you sought authorisation for, namely, Mr. Stefan Karganovic,

24    Professor Zoran Stojanovic, and Mr. Dejan Brasic?

25            THE APPELLANT: [Interpretation] Yes, those are the three

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 1    individuals, and in addition, there would be the investigators who have

 2    been working on the case so far.  That would be my Defence team, the team

 3    that would assist me, and with which I would prepare for the appellate

 4    proceedings.

 5            JUDGE SCHOMBURG:  Thank you for this clarification.

 6            Mr. Petrov, would you please be so kind and inform Mr. Krajisnik

 7    on the question whether, given the possible scenario, the motion to

 8    represent himself by Mr. Krajisnik would fly?  That in this scenario, what

 9    would be the situation of Mr. Krajisnik?  Would the Registry also pay the

10    United Nations and the international communities taxpayer's money in order

11    to support a Defence team, let's call it, the Defence team behind the

12    team, in order to avoid the term "undercover Defence team"?

13            MR. PETROV:  Your Honour, it is the Registry's position that a

14    self-represented accused can receive advice, legal advice, from persons

15    who are not necessarily designated by the Tribunal, but when it comes to

16    the remuneration of such persons, it is the Registry's position that

17    Article 21 of the Statute affords an accused with three alternative

18    rights; the first one being the right to represent him or herself; second

19    one, to have counsel of his own choosing and therefore paid for by the

20    accused himself; and a third right, and that is to have counsel assigned

21    to him by the Registrar and paid for by the Tribunal where the accused has

22    no -- doesn't have sufficient means to remunerate counsel.

23            In other words, the Tribunal will not be in a position to bear the

24    costs of engaging legal advisors or any other support staff which

25    Mr. Krajisnik may wish to engage in his capacity as a self-represented

Page 34

 1    accused.

 2            JUDGE SCHOMBURG:  Let's turn to a third scenario in case a motion

 3    would be granted in that, as requested by Mr. Nicholls himself, he would

 4    be appointed amicus curiae.  Would this change the situation as regards

 5    the remuneration of the aforementioned Defence team acting behind the

 6    scenes?

 7            MR. PETROV:  Well, as we stated in the beginning of this Status

 8    Conference, Mr. Nicholls has been assigned as a regular counsel to

 9    represent Mr. Krajisnik under the applicable provisions of the Rules and

10    the Directive on the Assignment of Counsel.  Should his status change to

11    that of an amicus curiae, then, of course, first of all, his own

12    remuneration will change in terms of the -- he will no longer receive

13    legal aid funds, but this will be an assignment pursuant to an order by

14    the Chamber to assign an amicus curiae to assist the Chamber.

15            When it comes to the persons who might be assisting Mr. Krajisnik

16    as a self-represented accused, this would have no bearing on the issue of

17    financing such members of his potential future team because, as I said,

18    the Registry -- there is no legal provision based on which the Registrar

19    can assume such costs.

20            JUDGE SCHOMBURG:  Thank you.

21            Another request by Mr. Krajisnik was, I quote, "that I be enabled

22    to send and receive documents in electronic form to and from my Defence

23    team."  Would this be possible?

24            MR. PETROV:  Yes, with a clarification which Mr. Krajisnik just

25    made, and that is that he's talking about the persons assisting him in his

Page 35

 1    capacity as a self-represented accused, I'm afraid this is not possible

 2    and I will explain this as follows.

 3            The procedure for importing and exporting material electronically

 4    to and from the United Nations Detention Unit is strictly regulated.  The

 5    norm is that no such material can be imported or exported.  There is one

 6    important example -- exception to that rule and that is the possibility

 7    for an accused to exchange material electronically with his counsel.  It

 8    has to do with the safety and security of the Detention Unit, but it also

 9    has to do with the privileged status of the information exchanged and the

10    confidentiality of the documents contained in those CDs or DVDs which the

11    accused may exchange with their counsel.

12            I am informed that Mr. Krajisnik and Mr. Nicholls have signed the

13    relevant agreement to that effect in order to be able to exchange such

14    electronic material.  This, unfortunately, will not be possible for

15    Mr. Krajisnik -- it will not be possible -- it will not be possible, I'm

16    sorry, for Mr. Krajisnik to exchange material electronically with any

17    other person apart from his counsel.

18            JUDGE SCHOMBURG:  Only -- to address only this issue.  I think you

19    gave already the answer.  The search request was that I could -- "that I

20    be allowed a visit by two attorneys of my choice, one attorney and one

21    professor, with who I would discuss their engagement on the preparation of

22    my appeal, and that the expenses of their visits covered -- be covered by

23    the Registry of the Tribunal."

24            Would this be a possibility?

25            MR. PETROV:  As you've mentioned, Your Honour, I think I've

Page 36

 1    answered this question in a way.  I -- in terms of recognising these

 2    people as working or assisting Mr. Krajisnik in the preparation of his

 3    appeal, what I said about Mr. Karganovic applies to them as well.  In

 4    other words, the Registry will not be in a position to allow them to have

 5    privileged communications with Mr. Krajisnik.

 6            With respect to the payment of any costs that such individuals may

 7    incur in relation to any assistance they may be providing to

 8    Mr. Krajisnik, the Registry is not in a position to cover such expenses

 9    for the reasons that I've mentioned.

10            JUDGE SCHOMBURG:  Thank you.

11            Number 4, Mr. Krajisnik requests that, I quote, "that the Registry

12    of the Tribunal provide me with electronic versions of all transcripts

13    from my trial and all documents tendered into evidence in my case."

14            Would this be possible, and within which time frame and in which

15    language?

16            MR. PETROV:  Yes, Your Honour, as you may be aware, on the 22nd of

17    March, 2007, the Registrar responded to a letter sent by Mr. Krajisnik

18    earlier that month in which the same requests had been made, and the

19    Registry and the United Nations Detention Unit have been making a real

20    effort to assist Mr. Krajisnik as much as possible until the issue of his

21    self-representation is resolved by the Appeals Chamber.  In doing so, we

22    have, indeed, provided Mr. Krajisnik with all exhibits from the trial on

23    DVDs and we have also provided all transcripts of the hearings in English,

24    as Mr. Krajisnik had requested in his letter to the Registrar.  In

25    addition, we have also provided three judgements which Mr. Krajisnik had

Page 37

 1    requested, two of which, the Stakic and Brdjanin judgements were provided

 2    in B/C/S, and the judgement in his own case, the Krajisnik judgement, has

 3    been provided in English.

 4            JUDGE SCHOMBURG:  Thank you.

 5            And then the last and fifth request was, I quote, "that the

 6    Registry of the Tribunal provide me with a number of sessions from my

 7    trial, video-recordings on DVDs, for which I will submit a separate

 8    request."

 9            Would this be possible, and in which time frame?  And what about

10    the costs of such an effort?

11            MR. PETROV:  Thank you, Your Honour.  This is, unfortunately, more

12    difficult to accomplish than the other requests, simply because the time

13    it will take to double all the recordings, the video-recordings, of the

14    hearings, not including the ex parte -- any ex parte hearings and closed

15    sessions, will take approximately ten months, if the audio-visual service

16    does just that, nothing else.  And it seems that the request, as

17    formulated at least, is going to be very difficult to address and to meet

18    Mr. Krajisnik's requirements.

19            I believe that my colleagues in the Court Management Section of

20    this Tribunal will be communicating with Mr. Krajisnik directly to see if

21    he can narrow down his request to specific court hearings, and then we

22    will have to reassess the feasibility of providing Mr. Krajisnik with

23    those recordings.

24            JUDGE SCHOMBURG:  Thank you.

25            I hope that I have addressed all your concerns and your questions

Page 38

 1    you raised in your letter of 3 March this year.  Are there any additional

 2    questions you would have directly to the representative of the Registry?

 3    Of course, I don't want to deprive Mr. Nicholls first to address any

 4    issues, but as we have before us a direct letter, I think it's most

 5    appropriate first to allow Mr. Krajisnik to ask any questions to the

 6    Registry, if you should have any.  Please.

 7            THE APPELLANT: [Interpretation] Thank you, Your Honour.  The

 8    representative of the Registry has provided me with a very correct answer.

 9    The letter preceded certain things for which I'm grateful.  I've received

10    the transcripts; I've received the judgements.

11            Now I have another request, Mr. President, if I may.  I have CDs

12    containing documents that I received from my investigators.

13    Mr. Karganovic and Mr. Nicholls have those.  They could not hand those

14    over to me because nobody knows what is inside.  I accept that these be

15    re-recorded so that I can receive them, because Mr. Nicholls doesn't know

16    how to hand these CDs over to me.

17            Another thing.  I received a judgement in one form and among these

18    documents is also a copy of the judgement that can be used in Word, which

19    I find much more convenient.  My request would be whether a way could be

20    found for the CDs that are now in the hands of Mr. Nicholls to reach me.

21            And I would like to thank you in advance for your attention to

22    this matter.

23            JUDGE SCHOMBURG:  Thank you.  If I'm not wrong, this question goes

24    primarily to Mr. Nicholls and then it may -- you may assist, Mr. Nicholls,

25    if need may be.

Page 39

 1            Mr. Nicholls, is it only because of protective measures that you

 2    can't automatically forward the content of these CDs, or is there any

 3    other reason?

 4            MR. NICHOLLS:  I learned of these -- these disks --

 5            THE INTERPRETER:  Microphone, Mr. Nicholls, please.

 6            MR. NICHOLLS:  Sorry.  I learned of these disks this morning, and

 7    I was not in a position to let Mr. Karganovic hand over the disks because

 8    I did not know their content.  They had come, apparently, from

 9    investigators who are not investigators on any team of mine.  And I have

10    the responsibility for those disks if perchance they have something on

11    them which they shouldn't have.  So I had no alternative to break the

12    course of action I did this morning and, regrettably, refuse

13    Mr. Krajisnik's request.

14            There may have been a misunderstanding earlier.  To avoid any

15    misunderstanding, Mr. Stewart obviously had investigators for the purposes

16    of the trial.  I have not sought the assignment of any investigators for

17    my staff, support staff, at this stage.  I have a limited staff.  It is

18    strictly limited, for obvious reasons.  It does not yet extend to any

19    matters of investigation.  It probably will have to in due course, but

20    that's something to be met when the time comes.

21            JUDGE SCHOMBURG:  Thank you.

22            Mr. Petrov, do you want to add something from your point of view?

23            MR. PETROV:  Thank you, Your Honour.  I will perhaps just

24    reiterate what I've said before.  In order for Mr. Krajisnik to be able to

25    receive material in an electronic format, it should only come from his

Page 40

 1    counsel.  So I respect the position of Mr. Nicholls.  That's the only

 2    thing I can say.

 3            This doesn't mean, however, that Mr. Krajisnik cannot receive

 4    letters or mail from other persons, persons not assigned by the Registrar

 5    or otherwise forming part of his Defence team, but it has to be clear that

 6    such mail will not be covered by the client-counsel privileged, and as

 7    such, it will be opened at the Detention Unit once received, and it can

 8    only be provided on paper.  Thank you.

 9            JUDGE SCHOMBURG:  May I ask the Prosecution:  Are there any

10    questions on the part of the Prosecution to the Registry?

11            MS. McCALL:  No, Your Honour.  Thank you.

12            JUDGE SCHOMBURG:  Thank you.

13            Then I have to thank you, Mr. Petrov, for providing us with all

14    these informations, sitting there where usually witnesses or experts are

15    sitting.  But I'm extremely grateful that you provided us in open court

16    with all these useful informations.  You're excused.  Thank you.

17            MR. PETROV:  Thank you, Your Honour.

18            JUDGE SCHOMBURG:  Before asking finally Mr. Krajisnik what his

19    ultimate request is, let me allow to give the floor on the question of

20    self-representation on appeal, which is a matter that has to be assessed

21    maybe distinct from self-representation during trial; in particular, in

22    the one decision I already mentioned during the last Status Conference,

23    where it was held in the US Supreme Court in a decision of, if I'm not

24    totally wrong, 1999.  Let me just find it.  In the Martinez, where the

25    Court of Appeal of California, in a decision of October 1991, number

Page 41

 1    98/7801, decided January 12th, 2000.  I don't want to read out all this,

 2    but it reads finally in the summary that:

 3            "Because a lay appellant's right to participate in appellate

 4    proceedings have long been limited by the well-established conclusion that

 5    he has no right to be present during appellate proceedings or to present

 6    oral argument."

 7            I think we all are aware of the jurisprudence applicable in the

 8    territory of former Yugoslavia where mandatory defence would be in place

 9    in a case like this, in particular, during appellate proceedings.  But may

10    I hear the parties on this general question.  Again, that it might help

11    the Appeals Chamber to come to a fair conclusion, taking into account,

12    primarily, that all these human rights instruments are aimed at providing

13    a fair trial to an appellant.

14            Mr. Nicholls, if you want to address this in a more general way.

15    Thanks.

16            MR. NICHOLLS:  I can't really add anything to the jurisprudence.

17    So far as the United Kingdom is concerned, England and Wales are

18    concerned, the jurisprudence on this aspect of the matter is very limited.

19    The question is difficult, really, and I don't think that I can add

20    anything further at this stage, no.

21            JUDGE SCHOMBURG:  But you might help us in that, what about cases

22    heard before your highest courts or tribunals?  Would it be possible that

23    an accused represents him or herself, say, before the House of Lords?

24            MR. NICHOLLS:  The position in England really is this:  That there

25    is a right of self-representation.  But what the court does where a person

Page 42

 1    who is self-representing needs assistance is to provide an amicus curiae.

 2    And so if you have -- if there are legal issues, and indeed of course

 3    there are before the Superior Court, the House of Lords, then the accused

 4    is -- or the appellant is not denied the right of self-representation, but

 5    the court will appoint or permit a hearing by an amicus.  And one has it

 6    in many cases, the most -- I suppose the classic illustration recently, of

 7    course, is in the Pinochet case in the House of Lords, where there were

 8    various amicus briefs and also in the recent torture case in the House of

 9    Lords.  And so the highest tribunals receive the legal assistance they

10    need and the person self-representing is not denied his right.

11            JUDGE SCHOMBURG:  Could you please be kind enough to provide us

12    with legal sources for this?  Because, for example, I'm not aware that in

13    the recent Pitcairn Islands case in the House of Lords, the presence of an

14    accused -- well, the accused rapist were allowed at all.

15            MR. NICHOLLS:  Can I provide the Chamber with the appropriate

16    material within, shall we say, seven days?

17            JUDGE SCHOMBURG:  I would be extremely grateful for this and the

18    faster the better because we all need clarity in this case.

19            MR. NICHOLLS:  Of course.  By the end of the week.

20            JUDGE SCHOMBURG:  Thank you so much.

21            May I hear the Prosecution on this legal problem?

22            MS. McCALL:  Your Honour, the Prosecution chose not to respond to

23    any of the motions filed in relation to the issue of Mr. Krajisnik's

24    self-representation, and unless specifically instructed to do so, the

25    Prosecution does not intend to respond to those issues.

Page 43

 1            JUDGE SCHOMBURG:  Don't you regard it as a noble -- nobile

 2    officium to act proprio motu?  In particular, in a party-driven system,

 3    isn't it your obligation also to present your views as a party, as it

 4    would be in a civil law system mandatory, even more so in a party-driven

 5    system?

 6            MS. McCALL:  Your Honour, the Prosecution considers that it does

 7    have an obligation to respond to the issues involved if it perceives them

 8    to affect Mr. Krajisnik's fair trial rights.  And can I say that the

 9    Prosecution did do some preliminary research to see if it could assist the

10    Chamber on whether there was a common-state practice in this respect and

11    our research revealed that there is not, nor is there even similarity

12    amongst common law jurisdictions and civil law jurisdictions within

13    themselves.  And in these circumstances, the Prosecution did not perceive

14    any risk at this point to Mr. Krajisnik's fair trial rights and chose not

15    to respond.

16            JUDGE SCHOMBURG:  As I asked, because you can imagine that also

17    the Appeals Chamber is trying to find out what, in a comparative analysis,

18    domestic laws shows us or what is possible or not possible before

19    international tribunals.  Did you actually find any domestic legal system

20    or any system of an international tribunal where, in the overarching

21    interests of a fair trial, it was not possible to assign counsel in the

22    interests of justice?

23            MS. McCALL:  Your Honour, our research was directed at identifying

24    systems which do or do not allow self-representation on appeals, so if you

25    like, it came from the opposite side, as opposed to looking from systems

Page 44

 1    that enforce assignment of counsel in the interests of justice.  And we

 2    found systems that do allow self-representation on appeal and systems that

 3    do not.

 4            JUDGE SCHOMBURG:  Could you please help me with this:  Where did

 5    you find systems allowing for self-representation on appeal?

 6            MS. McCALL:  Your Honour, of the ten countries which we

 7    considered, Your Honour will appreciate it was a relatively limited

 8    exercise given the time involved, but of those ten countries, we found

 9    self-representation was allowed in Canada, in the United Kingdom and that

10    would extend to England and Wales as Mr. Nicholls has mentioned and also

11    to Scotland, Australia, New Zealand, and France, but with some exceptions

12    where self-representation is not allowed and I'm afraid I can't elaborate

13    on those exceptions at the moment, Your Honour.

14            JUDGE SCHOMBURG:  Fair enough.  I thank you for these submissions.

15            I think if there are no other submissions in relation to this

16    point, I first want to deal now with the question brought forward by the

17    learned Mr. Nicholls in requesting to be appointed as amicus curiae.

18            Let me first ask Mr. Nicholls, because it's his appeal, what is

19    your opinion on the idea of having Mr. Nicholls appointed as amicus

20    curiae?

21            MR. NICHOLLS:  There is a situation in this appeal where the

22    counsel and support team have not really been involved in the trial.

23    There is one exception in particular in that one member of the support

24    staff was in the latter end of the trial.  But generally, the team does

25    not have the full assistance or the necessary assistance of those who were

Page 45

 1    involved in a very complex trial from a factual and also from a legal

 2    point of view.

 3            Mr. Krajisnik, during the course of the trial, complained strongly

 4    on many occasions that his legal team, led by Mr. Stewart, was not

 5    sufficiently acquainted with the facts of the matter because Mr. Stewart

 6    had taken over at short notice from Mr. Brasic and there were problems in

 7    the handover of the material.  Mr. Krajisnik, I feel quite sure that I can

 8    say, is unhappy in that there is a new team and obviously feels that it is

 9    difficult for the new team to grasp the matters that are essential to a

10    successful appeal, those matters, so for as he's concerned, involving

11    complex matters of fact.

12            So there are, in an appeal, factual matters and legal matters, and

13    the legal matters are matters which can essentially be dealt with by an

14    advocate or a lawyer in the place of an amicus.  As Your Honour knows from

15    the documents, at this present moment I have virtually no instructions

16    from Mr. Krajisnik.  That situation is continuing.  And in the motions

17    which we have placed before the Chamber, we have referred -- I have

18    referred to myself and our team as a de facto amicus, a comment which has

19    drawn some comment from the Prosecution.  But in fact, that is the

20    position in which I find myself with my team at this moment.

21            The advantage of Mr. Krajisnik being able to self-represent in the

22    same way as he wrote his own notice of appeal is that he can bring the

23    matters he wants to before the Chamber.  The disadvantage may be that what

24    he writes in his notice of appeal, his final brief, his representations

25    made after that, are different from those which an amicus will present and

Page 46

 1    indeed they may even conflict.

 2            But if there were the solution that one had self-representation

 3    because an appeal is mainly on paper, if one had self-representation and

 4    an amicus, perhaps justice might be done more expeditiously and

 5    Mr. Krajisnik will be in a position where he could say he has had his day

 6    in court, he has been able to make all the representations that he wants

 7    to.  And so there is that advantage in the position of -- the mixed

 8    position, an amicus and self-representation, limited as it is in an

 9    appeal.  And of course it's much more difficult in a trial.

10            And so there are advantages and disadvantages in the mixed system.

11    The problem, of course, always comes with the investigations which

12    Mr. Krajisnik wants made on his behalf.  Those investigations are not so

13    easily made by an advocate in the position of an amicus.  That would need

14    to be very carefully worked out.  The calling of additional evidence might

15    or might not be appropriate for an advocate in the position of an amicus.

16    And so there are those problems.  Whether they could be resolved or not, I

17    don't know.

18            But in the final analysis, where the Chamber has an accused who

19    wants, within proper limits, his day in court, the position of an amicus

20    and self-representation might be workable.

21            JUDGE SCHOMBURG:  Thank you for this in-depth comment.

22            This leads me to the following question:  You're apparently

23    acquainted with the system having self-representation on the one hand and,

24    at the same time, amicus curiae.  You may understand that even though I'm

25    now here in this Tribunal for about six years, coming from a civil law

Page 47

 1    jurisdiction, I have my difficulties to understand that.

 2            There are two parties.  How can an amicus curiae represent the

 3    interests of one party?  I don't speak about the factual submissions but

 4    about legal submissions.  How can an amicus curiae replace a full-fledged

 5    Defence counsel who plays his role in favour of his own party, in favour

 6    of his own client, whereas an amicus curiae, for me, seems to be one who

 7    is assisting the Court, as the Latin phrase already says?

 8            And I have to emphasise already now that it is disputable whether

 9    at all Rule 74 allows for the permanent appointment of an amicus curiae,

10    because it reads that it is for the purpose of granting nations,

11    organisations, and also persons to be -- to appear before this Tribunal,

12    but on certain issues.  If you read carefully Rule 74, it seems -

13    therefore this question - it seems to hint only on certain situations

14    where the -- where the Bench would need the assistance of a friend of the

15    Court.

16            But this is a different question that has to be decided - of

17    course we have to hear also the Prosecution on this - has to be decided by

18    the full Bench, whether or not also on appeal, Rule 74 may serve as a

19    legal basis.

20            But coming back to the initial question:  What about the conflict

21    of interest, on the one hand, to be a friend of the Bench, and on the

22    other hand, to represent the legal interests of an accused, and better an

23    appellant, in this case?

24            MR. NICHOLLS:  The position of amicus, obviously, is the position

25    of a friend of the Court and therefore it is the function of an amicus to

Page 48

 1    assist the Court in all ways in which the amicus considers appropriate,

 2    particularly on matters of law.  The difficulty of an amicus, I accept

 3    immediately, is that an amicus is not in a position where he can

 4    positively go out and obtain evidence, investigate and obtain evidence.

 5    That would inevitably be left entirely to the accused.  I appreciate that

 6    straight away.  That is the position.

 7            I think there cannot really be -- if the amicus is a friend of the

 8    Court, then he is not Defence counsel, and so, although an amicus

 9    obviously pursues the matters that he believes are appropriate and on

10    which the Court would require assistance, he can't really go further than

11    that.

12            If, in this case, I remain as assigned counsel, there are lots of

13    positive things that I can do.  If I am solely amicus, I cannot do those

14    positive things.  That must be said.

15            JUDGE SCHOMBURG:  Thank you.

16            May I hear the Prosecution on the motion of Mr. Nicholls to have

17    the assistance of Mr. Nicholls in a position as amicus curiae instead of

18    the situation he finds himself now, namely, the one of an assigned

19    full-fledged Defence counsel?

20            MS. McCALL:  Your Honour, again, Mr. Nicholls' motion to be

21    appointed as amicus curiae is one to which the Prosecution chose not to

22    respond.  But the conversation which Your Honour and Mr. Nicholls have

23    just had highlights a concern already raised by the Prosecution in one of

24    its filings relating to Mr. Nicholls' current status, as he described it,

25    as a de facto amicus, and that is for counsel to walk the middle ground

Page 49

 1    rather than to be entirely representative of one party or the other, so to

 2    truly be a friend to the Court.

 3            Your Honour, it seems to me that there are a number of predicates

 4    to the question that the Court is posing.  The first is, and I don't think

 5    we have an answer to this yet, whether Mr. Krajisnik has in fact made an

 6    unequivocal election for self-representation.

 7            The second problem, if he has, is whether the Appeals Chamber will

 8    consider that self-representation on appeal is appropriate and allowed and

 9    consistent with Article 21 of the Statute.

10            The third question, then, is if self-representation is appropriate

11    and allowed, whether it is in the interests of justice or appropriate in

12    this case to appoint an amicus.

13            Those are a series of complex and difficult questions and I don't

14    think that the answer to the last one can be stated in isolation.  But if

15    Your Honour wishes the Prosecution to make some submissions about the role

16    of an amicus in general in appellate proceedings, then the Prosecution can

17    file something in writing, perhaps within seven days, in the time frame

18    that Mr. Nicholls has set out for providing the authorities he referred to

19    earlier.

20            JUDGE SCHOMBURG:  I think the entire Bench would appreciate your

21    comments on this specific issue.  Of course, not hindering you at all also

22    to elaborate on the more general question whether the right to fair trial

23    overrides the right of self- -- to self-representation or the other way

24    around.  I think this is a core question we have before us.

25            MS. McCALL:  Then we will seek to assist Your Honour.

Page 50

 1            JUDGE SCHOMBURG:  Thank you so much.

 2            I think we have to have a break in a second, but let me first ask

 3    Mr. Krajisnik on this, because for the time being, we are discussing, more

 4    or less, in a vacuum, something you yourself have never addressed.  Would

 5    you accept, when representing yourself under the conditions highlighted by

 6    Mr. Petrov, would you yourself accept that Mr. Nicholls would act, based

 7    on his own motion, as an amicus curiae in this case?

 8            THE APPELLANT: [Interpretation] I would only have to have a

 9    discussion with Mr. Nicholls because I would like to know what he would be

10    doing exactly and I would strive to ensure that he was appointed to such a

11    position.  But I have firmly decided to represent myself because this kind

12    of a defence is contrary to my interests and contrary to the rights of an

13    accused to a fair trial.

14            So if I may put it this way:  When I discuss the matter with him,

15    I would try to accept his assignment as amicus curiae.  I don't know what

16    he would be doing.  If he is doing what he is doing now, I'd be against

17    that.  In that case, I wouldn't agree.  But if he could assist me, then I

18    would agree to this option.

19            JUDGE SCHOMBURG:  This answer brings me to another question.

20    Apparently you have already thought about who would best represent

21    yourself as counsel both in terms of the fact-finding mission and the

22    legal assessment of these facts.  Would you yourself see a possibility

23    that those persons, that are persons of your own trust, that if they would

24    act together with Mr. Nicholls acting as a Defence counsel, as it was --

25    as it is a custom for about ten years in this Tribunal that one has on the

Page 51

 1    one-hand side persons of own trust, speaking their own language, being

 2    aware of the conditions in the former Yugoslavia, and a person -- and I

 3    think it's very, very important to have at the same time a real Defence

 4    counsel acting solely in your own interests, but being aware about the

 5    difficulties and the hurdles of the predominantly custom -- common law

 6    orientated system we have in our Rules of Procedure and Evidence?

 7            To put it short, would you see the possibility to work together,

 8    that your representatives or the Defence team, as you call it, would work

 9    together with Mr. Nicholls in one Defence team?  But I don't want you to

10    answer this question because you yourself asked, more or less, for a break

11    to discuss, first, the question whether you would accept Mr. Nicholls in

12    the capacity of maybe amicus curiae, but I would kindly ask you also to

13    address this question with -- and discuss it in full with Mr. Nicholls,

14    whether you could accept a common team.

15            For these reasons, I adjourn this session now for 40 minutes,

16    meaning that we will reconvene at half past 4.00.  If you, in the

17    interests of coming to a solution already today, would need more time,

18    please let me know and then we'll break a little bit longer.

19            The Status Conference stands adjourned.

20                          --- Recess taken at 3.49 p.m.

21                          --- On resuming at 5.02 p.m.

22            JUDGE SCHOMBURG:  Please be seated.

23            Mr. Nicholls, you are on your feet.  I take it --

24            MR. NICHOLLS:  I'm very grateful to you for the time, the extended

25    time that Your Honour has given us to consider this matter.

Page 52

 1            I think the best way I can deal with it is to indicate to you what

 2    Mr. Krajisnik wants from me and what he wants is that I should deal with

 3    the legal issues, not the factual issues, and that I should consult with

 4    him, to the extent permitted by the Chamber, to deal with the factual

 5    situation as it emerges.  And so the Chamber, obviously, in considering

 6    the application or the motion that I should be appointed as an amicus

 7    would understand clearly what it is what Mr. Krajisnik has in his mind as

 8    the function of an amicus that he would accept.  And so rather than define

 9    the function of an amicus, what I've done is indicated to Your Honour what

10    it is that Mr. Krajisnik wants from me.  And in considering that, Your

11    Honour will obviously have in mind the extent to which the consulting with

12    an accused is part of the function of an amicus.

13            JUDGE SCHOMBURG:  Let me read it carefully.  Where is the

14    distinction to be made between amicus curiae and Defence counsel?  Because

15    in case you would act as Defence counsel -- and of course it's not for the

16    Chamber to intervene which part, the legal part or the factual part,

17    you're dealing with, we have no say to address this issue and to limit

18    your functions.  What would be the difference of the appointment of an

19    amicus curiae as opposed to a Defence counsel under the prevailing

20    circumstances and, in particular, the applicable limitations when

21    self-represented, however, having the assistance of not paid, not entitled

22    to all the rights of counsel, acting counsels behind the scene?  What is

23    the real difference?  Why -- maybe you are not the right addressee of this

24    question.  Where do you see the difference between amicus curiae and

25    counsel?

Page 53

 1            MR. NICHOLLS:  Well, the function of an amicus curiae is normally

 2    to assist the Court, not to take instructions from the client but to read,

 3    listen to the arguments advanced by others and to put forward such

 4    arguments as the amicus considers are appropriate.  Those arguments may be

 5    on the -- in the interests of the client or may be against the interests

 6    of the client.  That is the normal position of an amicus curiae.

 7            JUDGE SCHOMBURG:  So you would submit that it might even happen

 8    that you, acting as an amicus curiae, would have to act when exercising

 9    your work conscientiously, also to act against the interests of

10    Mr. Krajisnik?

11            MR. NICHOLLS:  As amicus curiae, yes.  As Defence counsel, of

12    course, totally different situation.  And of course a Defence counsel

13    would be taking instructions -- taking instructions which it would partly

14    be by means of consultation.

15            JUDGE SCHOMBURG:  Thank you.  Did you also discuss the possibility

16    of having a combined Defence team, you acting as lead counsel together

17    with the other counsel, to have a clear party-driven system without all

18    these ifs and buts and without the limitations you have just indicated in

19    favour of a fair trial?

20            MR. NICHOLLS:  I have indicated to Mr. Krajisnik that I am

21    prepared to work only with a team that I have chosen.  There are in this

22    case or in this appeal, without my pointing to the issues, indications

23    that I would not be able to work with certain persons named.

24            JUDGE SCHOMBURG:  Fair enough.  Thank you for --

25            MR. NICHOLLS:  But I have made absolutely clear to Mr. Krajisnik

Page 54

 1    from the start that I choose the team.

 2            JUDGE SCHOMBURG:  Which, of course, would be your right.

 3            MR. NICHOLLS:  Thank you.

 4            JUDGE SCHOMBURG:  Thank you for your submission.

 5            Before I ask Mr. Krajisnik, any further submissions from the

 6    Prosecution?

 7            MS. McCALL:  Your Honour, just one or two observations from the

 8    Prosecution's perspective.  In our submission, it would be inappropriate

 9    for Mr. Krajisnik to dictate the role of amicus curiae.  That's clearly

10    defined in the Rules.  The purpose of that and the functions of an amicus

11    are ordinarily limited to a particular purpose.

12            When Mr. Nicholls says that an amicus would be obliged to make

13    arguments in the interests of the client or against the interests of the

14    client, one has to obviously remember, and it may be a slip of the tongue,

15    that there's no client; the amicus acts as a friend of the Court.

16            In our submission, the notion of a divide between factual issues

17    and legal issues on the appeal and who is responsible for those is an

18    entirely artificial one.  Those are part and parcel of a defence appeal.

19            JUDGE SCHOMBURG:  I have to thank you for this.

20            Might I just for a moment correct myself.  I was misled by Rule

21    108 and, consequently during this afternoon, I referred to Rule 108

22    instead of Rule 74, which no doubt is a serious matter of the possibility

23    of appointing amicus curiae.  Therefore, I would kindly ask those

24    responsible for the transcripts, whenever I refer to Rule 108, to replace

25    it, please, by Rule 74.  Thank you so much and I apologise for the

Page 55

 1    inconvenience.

 2            Now, the one who is primarily, if I may say so, with all respect

 3    to the appeal also filed by Prosecution who's primarily filing the appeal,

 4    and we have two obvious different notices of appeal, both in quality and

 5    obeying in part and obeying in part not the underlying Rules, may I ask

 6    you, Mr. Krajisnik:  Having now heard all the time the arguments, let me

 7    first state that the question of whether Mr. Dershowitz may show up once

 8    upon a time when he's ready -- might be ready to defend you, this is not

 9    the time to discuss this issue because currently it's -- he's unavailable.

10    Currently, he's unavailable and this is undisputed and I see you nodding.

11    Therefore, this is no question for the time being.  In case the Appeals

12    Chamber should decide that you are able to represent yourself and this

13    would not be the detriment of a fair trial, then of course you could all

14    the time ask Mr. Dershowitz as Defence counsel during the entire appeal.

15            Also another scenario.  In case the Appeals Chamber comes to the

16    solution that the obligation, as Judge Reinhardt said in his opinion

17    appended to the aforementioned case of the Supreme Court of the United

18    States, that one cannot waive the right to a fair trial and thereby it's a

19    must to be represented by an experienced counsel on appeal.  In case the

20    Trial Chamber -- the Appeals Chamber would come to this conclusion, you

21    can always move for exchange of counsel, showing of course good cause for

22    doing so.

23            So let's leave the question of Mr. Dershowitz aside for a moment.

24            You have been informed now about the pros and cons, and in

25    particular, you are informed that in case you're in favour -- still in

Page 56

 1    favour of self-representation, of the possibilities, in particular, the

 2    reimbursement of your, as you call it, Defence team would be extremely

 3    limited.

 4            You have discussed with your counsel the question of amicus

 5    curiae, and without anticipating the ruling of the Appeals Chamber, I

 6    doubt whether the Appeals Chamber wouldn't come to the same conclusion as

 7    indicated by Prosecution.

 8            So, therefore, knowing about the limited means you have at hand

 9    when defending yourself, is it still your request to represent yourself,

10    or not?

11            THE APPELLANT: [Interpretation] Yes, I am still making such a

12    request, Your Honour.

13            JUDGE SCHOMBURG:  No doubt it would assist the Appeals Chamber if

14    you could give us some reasons why you prefer to defend yourself, having

15    said already in the beginning of this Status Conference that no doubt you

16    would need, both for factual issues and for legal issues, which no doubt I

17    agree with Prosecution are intertwined, what are the reasons bringing you

18    to the result not to ask the Registry to assign those counsel you want to

19    have as your Defence team as properly assigned counsel, with all the

20    entitlements and with all the access to the documents, in a far more

21    unlimited way, to put it briefly?  I think Mr. -- the representative of

22    the Registry, Mr. Petrov, was very clear on this.

23            Could you please give us a reason, in order to assist us, why you

24    are favouring this instead of asking for this counsel to be assigned as

25    formal Defence counsel?

Page 57

 1            THE APPELLANT: [Interpretation] Your Honour, to provide you with

 2    an answer to the question for which we had a brief break, for that issue,

 3    I accept to have Mr. Nicholls acting as amicus curiae in accordance with

 4    the established procedure.  I asked him what he would be involved in

 5    exactly.  He said he would be involved in legal matters and that's why

 6    there's some confusion now, or there was some confusion a minute ago.

 7            And now to answer your question.  I wanted to have Mr. Dershowitz

 8    assigned as counsel, and until I solve that issue - and perhaps I will

 9    never manage to solve it - I would like to represent myself and I will

10    engage professionals to assist me in my defence.  Why?  In the course of

11    the trial there were certain procedures that I did not agree with.  There

12    were many faults that were committed and unfortunately the same procedure

13    is being repeated with Mr. Nicholls.  I can't find a means of

14    communication with Mr. Nicholls.

15            You asked me why I wasn't asking for the replacement of counsel.

16    In any event, if you give me the possibility of looking for some other

17    solution during a ten-day period, perhaps such a solution will be

18    possible, too.  But I must be clear at this point in time, when we're

19    deciding about self-representations, I must say that I'm quite sure that I

20    could file a better appeal or I could defend myself in a better way and

21    that is the main reason for which I have decided to defend myself.  I

22    think I'm more competent to do so.

23            JUDGE SCHOMBURG:  On the one hand, you state you're more competent

24    to do so, and on the other hand, it reads on page 37, line 16, "... and I

25    will engage professionals to assist me in my defence."  And please allow

Page 58

 1    me the question:  Why don't you ask that these professionals are properly

 2    assigned as your Defence counsel, if you need them?

 3            THE APPELLANT: [Interpretation] I wouldn't exclude such a

 4    possibility in the course of the proceedings.  But given the current

 5    situation, I believe that it would be best to opt for the solution I have

 6    suggested and that is why I'm claiming that it would be preferable for me

 7    to defend myself.

 8            JUDGE SCHOMBURG:  I think it's the first and foremost obligation

 9    of the Bench and I think it is undisputable to grant a fair trial.  I have

10    already told you that for the time being Mr. Dershowitz is a no-go because

11    he is not available; however, should he be available, you can ask for a

12    replacement.  In the meantime, however, it should be, in all fairness, be

13    possible for you to ask for assignment of counsel of your own trust.  You

14    already mentioned in your submissions three; one of them apparently a

15    professor of law, I take it.  And I think this is reason enough.

16            If you are seriously thinking about a request for replacement by a

17    person -- by a Defence team of your own trust, to suspend and postpone the

18    decision until you have decided, but please understand that we can't wait

19    indefinitely.  You are entitled to a fair trial, the notion of fair trial

20    also including an expeditious trial.  And furthermore there are others

21    waiting for a decision on their appeals and therefore we must bring this

22    to an end as soon as possible.

23            If you tell me today that you see a chance to file a request

24    within the next - Easter is immediately before us - file a request no

25    later than the Wednesday before Easter - sorry, I don't have my calendar

Page 59

 1    with me - then we could convene another Status Conference on the Thursday

 2    before Easter.

 3            May I ask you, therefore, again:  In your opinion, is there a

 4    substantial likelihood that in this time frame you could decide this

 5    question?

 6            THE APPELLANT: [Interpretation] Your Honour, Easter is soon.  If I

 7    could have time until after Easter, on Wednesday after Easter, that would

 8    perhaps be more appropriate for me.  It would give me time to consult.

 9            JUDGE SCHOMBURG:  I think Mr. Nicholls, the Prosecution, they have

10    shown that in fact time is of essence and they immediately said within

11    seven days an answer would be ready, so I think it's not overstretching

12    your time when I would ask you to be ready for such a decision by next

13    Thursday, meaning the Thursday before Easter, because then a courtroom

14    would be available.  But I have to tell you, we can't postpone it until an

15    indefinite time.

16            THE APPELLANT: [Interpretation] I agree, Your Honour.  Thank you

17    very much.

18            JUDGE SCHOMBURG:  So I take it that you will seriously consider

19    this issue until next Thursday.  And I've already taken care that a

20    courtroom will be available and I will convene this meeting immediately.

21    Maybe we can, in order to avoid unnecessary filings, have a short break

22    and I can ask the legal officer in the meantime to find out at which point

23    in time next Thursday a courtroom will be available, in the morning of

24    course.

25            We'll have a break until ten minutes -- twenty minutes to 6.00.

Page 60

 1                          --- Break taken at 5.26 p.m.

 2                          --- On resuming at 5.39 p.m.

 3            JUDGE SCHOMBURG:  Please be seated.

 4            Before announcing the date of our next Status Conference, I think

 5    it's my obligation first to hear, are there any observations to be made by

 6    any of the parties before having heard this discussion?

 7            Please.

 8            MS. McCALL:  Thank you, Your Honour.  Two matters.  One is simply

 9    of form at page 37, line 3 of the transcript.  Your Honour suggested that

10    Mr. Petrov was a representative of the Prosecution and --

11            JUDGE SCHOMBURG:  Already corrected.

12            MS. McCALL:  Thank you.  The second one, Your Honour, is as we

13    understand it, the Status Conference is to be reconvened and, in the

14    interim, Mr. Krajisnik is to consider making a request for a change of

15    counsel.  It's not entirely clear to us who is proposed to be that

16    different counsel, but mention was made earlier of one counsel Dejan

17    Brasic, and it appears to us that Mr. Krajisnik has previously requested

18    that counsel and that request was refused by the Registry.  That's in a

19    letter.  I'm afraid it's not dated.  It's a letter by Mr. Krajisnik to the

20    Registry and it's filed as an appendix to a request for review by the

21    President of the decisions of the Registry in relation to the assignment

22    of counsel, dated 27th December 2006.  So clear the Prosecution is anxious

23    to avoid Mr. Krajisnik asking again for a counsel who's previously been

24    rejected and we simply wanted to draw that to Your Honour's attention.

25            JUDGE SCHOMBURG:  Thank you very much.  You are referring to the

Page 61

 1    letter dated 22nd March 2007.  I think I already -- have already quoted

 2    this part where Mr. Holthuis, the Registrar himself, wrote:  "In

 3    particular you sought authorisation for Mr. Stefan Karganovic, Professor

 4    Zoran Stojanovic and Mr. Dejan Brasic."  Would it be the latter one you

 5    have some concerns with?

 6            MS. McCALL:  Your Honour, for clarity, I'm not referring to that

 7    letter.  The Prosecution doesn't have a copy of that letter, I don't

 8    think.  But Mr. Krajisnik himself filed through Mr. Nicholls the earlier

 9    letter requesting Dejan Brasic in the filing I mentioned.

10            JUDGE SCHOMBURG:  Sorry, I should know better, but maybe you have

11    in mind what was the reason why Mr. Dejan Brasic was rejected?

12            MS. McCALL:  Your Honour, the Prosecution's understanding is that

13    Mr. Brasic was not at that time on the Rule 45 list and recently there was

14    a decision relating to disciplinary matters against Mr. Brasic in this

15    Tribunal.

16            JUDGE SCHOMBURG:  Thank you.

17            Mr. Nicholls, you have something to add?

18            THE INTERPRETER:  Microphone for Mr. Nicholls, please.

19            MR. NICHOLLS:  I have one additional matter but at an appropriate

20    time.

21            JUDGE SCHOMBURG:  Okay.  With this reservation in mind that it

22    might not be possible for the reasons mentioned by the Prosecution to

23    assign Mr. Dejan Brasic as lead counsel; however, there seems to be no

24    obstacle in relation to Mr. Stefan Karganovic and Professor Zoran

25    Stojanovic.  You are still prepared to consider this issue and to submit

Page 62

 1    any request until next Thursday, hopefully already in the afternoon of

 2    Wednesday so that we can think about it because I think all the issues are

 3    tabled and it's only to decide your request and to hear maybe even more

 4    reasons for your request.

 5            Are you in agreement with this procedure?  I see you nodding.

 6            Then the Status Conference -- we have to briefly address some

 7    other issues today, but the Status Conference for the near purpose, to

 8    decide whether or not the -- those persons you qualify until now as your

 9    Defence team should be properly assigned Defence counsel, and taking into

10    account what the Prosecution just now has said, now I recall --

11            THE APPELLANT: [Interpretation] If I may.

12            JUDGE SCHOMBURG:  Please.  Yes, please.

13            THE APPELLANT: [Interpretation] Can I be allowed to have a word

14    with Mr. Stojanovic on Monday, Tuesday, or Wednesday, or somebody else if

15    Mr. Dejan Brasic cannot come?  I would have to meet up with them.  They

16    can come, but somebody has to approve their arrival.  In other words, can

17    their arrival be approved?  I need to have a word.

18            JUDGE SCHOMBURG:  I think nobody can bear the costs.  However,

19    having worked as a Defence counsel myself, if there is no objection by the

20    Prosecution, I think it's common views in all countries that for answering

21    the question whether or not you request the assignment of counsel, you are

22    allowed to have a short conversation limited to, say, 15 minutes to decide

23    on whether or not this is a person to be assigned or not without any

24    observation.  Any other -- any further discussion would have to follow the

25    ordinary Rules prevailing or applicable in case of an ordinary visitor in

Page 63

 1    the Detention Unit.

 2            If the Prosecution would see no obstacle to have such a short

 3    meeting without any observation and maybe afterwards an observed meeting,

 4    I would be prepared to grant this possibility.  But first I have to hear

 5    your opinion.

 6            MS. McCALL:  If we may confer, Your Honour.

 7                          [Prosecution counsel confer]

 8            MS. McCALL:  Thank you, Your Honour.  The Prosecution's position

 9    is that there's no difficulty with a meeting to discuss representation,

10    but the Prosecution shares concerns raised by Mr. Petrov earlier about any

11    transmission of confidential material to prospective counsel who are not

12    properly assigned.

13            JUDGE SCHOMBURG:  Right.  But I think this is a matter we can

14    easily resolve in that both Mr. Krajisnik and also the professor sign a

15    commitment to follow the obligations of the Tribunal as any other Defence

16    counsel and accused, or here appellant, would do.  And this would, no

17    doubt, here correct the prerequisite for allowing a visit just to find out

18    whether or not to ask for the assignment of such counsel.  Would you be in

19    agreement with such a solution, when we have this commitment of both

20    parties?

21            MS. McCALL:  Yes, Your Honour.

22            JUDGE SCHOMBURG:  Thank you.

23            So it would be, if need may be, the Registry may contact me in my

24    capacity as pre-appeal Judge, that such a meeting with Professor Zoran

25    Stojanovic, however, only for the aforementioned reasons, with Professor

Page 64

 1    Zoran Stojanovic could be -- can be arranged before the Status Conference

 2    next Thursday.

 3            I see you nodding and thereby agreeing to this proceedings.  You

 4    want --

 5            THE APPELLANT: [Interpretation] I agree and I thank you.

 6            JUDGE SCHOMBURG:  I see Mr. Nicholls wants to take the floor.

 7            MR. NICHOLLS:  I think that I have nothing to add at all.

 8            JUDGE SCHOMBURG:  The future will show.

 9            So on Thursday, we'll reconvene at 8.00.  Unfortunately, we have

10    only time until 8.30, but I think this should not be a problem because we

11    have had a lengthy debate on the questions today.  This would be in

12    courtroom III.  I have to ask Mr. Nicholls, would you be available at this

13    time?

14            MR. NICHOLLS:  Yes, I shall.

15            JUDGE SCHOMBURG:  Okay.

16            MR. NICHOLLS:  Yes.

17            JUDGE SCHOMBURG:  I thank you.

18            MR. NICHOLLS:  Your Honour, there was one additional matter.  Is

19    this an appropriate moment or not?

20            JUDGE SCHOMBURG:  If it is not related to other pending motions.

21            MR. NICHOLLS:  Well, it does.  All I really wanted to mention is

22    this:  That Your Honour has a motion before you where we're asking for an

23    extension of time to file the notice -- to file the appeal brief.  We were

24    given until the 30th of April.

25            JUDGE SCHOMBURG:  Yes.

Page 65

 1            MR. NICHOLLS:  But that motion is before the Chamber --

 2            JUDGE SCHOMBURG:  Yes.

 3            MR. NICHOLLS:  -- and it obviously would be of great assistance to

 4    us if we could know the position as soon as possible.  It's a difficult

 5    one, but it's very difficult for us at the moment, one not knowing what

 6    we're going to be doing.

 7            JUDGE SCHOMBURG:  This Tribunal is an ad hoc Tribunal and this

 8    meeting shows that we're still an ad hoc Tribunal and are always entering

 9    uncharted waters and have to find new solutions.  Therefore, I think we

10    have to go step by step, first, to decide who has the standing to file the

11    notice of appeal.  I take it that the two approaches will be merged and

12    maybe leave -- there will be a request for leave to add the one or other

13    reason of appeal, but this is only later; we can only later decide on

14    this.

15            Also, the motion to appoint amicus curiae is still not yet

16    decided, and of course you can see the interaction between that what we

17    have to expect next Thursday.

18            And also the Defence motion for extension of time for filing of

19    the appeal brief after translation of judgement into B/C/S.  There are two

20    different motions, but may I ask the parties already now, please, only

21    present reasonable motions because a motion requiring 270 days, I can

22    plainly say, is not reasonable at all, taking into account the fairness of

23    the trial both vis-a-vis Mr. Krajisnik and the others waiting for the

24    appeals to be heard.  But it's not for me to decide this motion; it's for

25    the entire Bench to decide it.  So it also depends who finally has the

Page 66

 1    standing to file a motion for extension of time and we have two different

 2    motions before us.

 3            Also, this depends on who finally will act as Defence counsel and

 4    I'm -- on a very personal note, I have to tell you, Mr. Nicholls, that I

 5    regret it -- that I deeply regret that you are in this uncomfortable, very

 6    new situation where you really don't know where you are.  Somewhere

 7    between amicus curiae, Defence counsel, and yes, maybe at the end of the

 8    day replaced by another counsel.

 9            But as we have no rules to that extent, we have to find the law

10    and hopefully it will be done as soon as possible.  So I'm awfully sorry

11    that I can't give a clear answer to your clear request today.

12            MR. NICHOLLS:  I shall supply Your Honour, as quickly as I can,

13    with the information you require as to the right of self-representation in

14    the United Kingdom.

15            JUDGE SCHOMBURG:  Yes.

16            MR. NICHOLLS:  I have in mind at the moment the limitations in the

17    Privy Council, but I'll give it to you all at one time.

18            JUDGE SCHOMBURG:  Thank you.

19            Finally we have for a moment to go in private session, please.

20                          [Private session]

21  (redacted)

22  (redacted)

23  (redacted)

24  (redacted)

25  (redacted)

Page 67











11    Pages 67-68 redacted. Private session















Page 69

 1  (redacted)

 2  (redacted)

 3  (redacted)

 4  (redacted)

 5  (redacted)

 6                          [Open session]

 7            THE REGISTRAR:  We're in open session, Your Honour.

 8            JUDGE SCHOMBURG:  Yes.  What about any other reasons, issues?

 9                          [Trial Chamber and registrar confer]

10            THE APPELLANT: [Interpretation] Your Honour, if I may, just a

11    brief question.

12            JUDGE SCHOMBURG:  Please.

13            THE APPELLANT: [Interpretation] First of all, I would like to

14    thank you and I apologise for taking your time.  Could we please find a

15    modality for me to receive CDs from Mr. Nicholls.  He is supposed to hand

16    over CDs to me, applying the appropriate procedure, but he doesn't know

17    how to do that.  These CDs contain documents that would be of a paramount

18    importance for my defence, whatever the decision, the final decision may

19    be.  So is there any way you can assist me in this particular matter?

20            JUDGE SCHOMBURG:  To be very clear on this, no, I can't because I

21    can't interfere in the defence, whoever finally may conduct the defence.

22    It is the ethical obligation of Mr. Nicholls to decide what to do with

23    these CDs.  He has got them as Defence counsel, having signed the

24    commitment, and it would be -- in case the Appeals Chamber would come to

25    the conclusion that you have shown good reasons for replacement of counsel

Page 70

 1    of your own choosing, that then - and this is only a question of one

 2    week - then of course it has to be discussed between counsel, maybe new

 3    counsel and the Registrar how best to deal with this.  But this is not a

 4    matter for the Appeals Chamber to intervene.

 5            MR. NICHOLLS:  May I just say, for the record, I don't have the

 6    CDs.  They are currently in the hands of Mr. Karganovic and he received

 7    them from somebody else.

 8            JUDGE SCHOMBURG:  As we have already stretched the time, I don't

 9    want to go into details of the source, but thank you for having clarified

10    the record.

11            May I ask you, are there any other issues today?

12            MS. McCALL:  No other issues, Your Honour.  No.

13            JUDGE SCHOMBURG:  Thank you.

14            This concludes today's Status Conference.  We will meet again on

15    the 5th of April, Thursday, April 5, in courtroom III, at 8.00, concluding

16    at 8.30 sharp.  Thank you, and have a nice evening.

17                          --- Whereupon the Status Conference adjourned

18                          at 6.06 p.m.