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
25 MR. KARGANOVIC: Interpreter.
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
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
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,
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
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
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
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
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
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.
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.
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
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
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
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?
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
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
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
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
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
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
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
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
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
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
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
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.
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
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
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.
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
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.
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
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
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
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
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
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
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
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
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
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
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
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.
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
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.
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
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
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
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
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
1 favour of self-representation, of the possibilities, in particular, the
2 reimbursement of your, as you call it, Defence team would be extremely
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?
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
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
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
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
25 We'll have a break until ten minutes -- twenty minutes to 6.00.
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?
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
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
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
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
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
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
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
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
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.
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
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
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]
11 Pages 67-68 redacted. Private session
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
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.