1 Thursday, 5 April 2007
2 [Status Conference]
3 [Open session]
4 [The appellant entered court]
5 --- Upon commencing at 8.03 a.m.
6 JUDGE SCHOMBURG: A very good morning to everybody. Behind the
7 scenes, in particular when it's that early, but we read that we must have
8 another Status Conference before Easter.
9 May I ask you, Mr. Registrar, please call the case.
10 THE REGISTRAR: Good morning, Your Honour. This is case number
11 IT-00-39-A, the Prosecutor versus Momcilo Krajisnik.
12 JUDGE SCHOMBURG: Thank you very much. And may I ask the
13 appearances, please for the Prosecution first.
14 MS. DAHL: May it please the Court I am Christine Dahl and with me
15 today is Shelagh McCall.
16 JUDGE SCHOMBURG: Thank you.
17 MR. NICHOLLS: And I am Colin Nicholls for Mr. Krajisnik.
18 JUDGE SCHOMBURG: Mr. Nicholls, and as usual we have as
19 interpreter ...
20 MR. NICHOLLS: Mr. Karganovic, Stefan Karganovic.
21 MR. KARGANOVIC: Good morning, Your Honours, Stefan Karganovic.
22 JUDGE SCHOMBURG: May I turn immediately to you, Mr. Krajisnik,
23 with two questions first. Can you follow the proceedings in a language
24 you understand and at the same time do you have any complaints as regards
25 your health situation or the situation in the Detention Unit?
1 THE APPELLANT: [Interpretation] Your Honour, I can follow the
2 proceedings in my own language, and I don't have any complaints about my
3 health situation or the situation in the Detention Unit.
4 JUDGE SCHOMBURG: Thank you. The number of motions and documents
5 before the Appeals Chamber is increasing, so let's try not to forget
6 anything and to have some order.
7 First of all, let me say that I'm extremely grateful for both
8 parties having brought submissions, Prosecution in relation to the
9 question of self-representation on appeal. Prosecution requested that the
10 Appeals Chamber substitute the attached brief in full. That was the brief
11 of the 3rd of April, 2007. This is so granted.
12 Then we also got the submissions by Mr. Nicholls on the question
13 of amici curiae or amicus curiae in the concrete case on the higher level.
14 I'm also grateful for this.
15 And then finally, admittedly a little bit out of surprise,
16 yesterday late in the evening I received a letter dated Monday, 2 April
17 2007, from Mr. Krajisnik himself where it reads in the subject, "Complaint
18 concerning self-representation."
19 Mr. Krajisnik, may I ask you, when did you send this letter to the
21 THE APPELLANT: [Interpretation] On Monday I wrote the letter, and
22 I intended to give it to Mr. Karganovic to translate it, for you to
23 receive it translated. In the Detention Unit they would not allow me to
24 do that, and they told me that I could send the letter directly to you.
25 The day before yesterday, i.e., on Tuesday, I gave the letter to somebody
1 to send it to you, and I fully expected that you would receive the letter
2 on the same day, on Tuesday.
3 JUDGE SCHOMBURG: I did not and I'm not quite sure whether the
4 parties did. We tried to do it by e-mail yesterday. The one sent to
5 Mr. Nicholls came back. May I ask the registrar, please, to distribute
6 copies of this letter dated Monday, the 2nd of April, 2007, in its English
7 version to all participants.
8 MS. DAHL: Your Honour, I provided Mr. Nicholls a copy of this
9 morning given that he's here from out of town.
10 JUDGE SCHOMBURG: Okay. Thank you for --
11 MR. NICHOLLS: [Microphone not activated]
12 THE INTERPRETER: Microphone for the counsel, please.
13 JUDGE SCHOMBURG: I can see the party-driven system has also some
14 advantages, and thank you very much for this. But to go into the details.
15 The question before us today and the same question was before us
16 already during the last Status Conference that we know unambiguously what
17 is your desire, to represent yourself, or to be represented by your
18 Defence team in an open way, or whether you would opt for Mr. Nicholls as
19 continued assigned counsel.
20 The last time I recall, you said that you would contact Mr. --
21 Professor Stojanovic from Belgrade to take over the appeals proceedings.
22 May I ask, in which way did you contact Professor Stojanovic?
23 THE APPELLANT: [Interpretation] Immediately after the end of the
24 Status Conference, on several occasions I tried and finally managed to get
25 hold of Professor Stojanovic over the phone. To my deep regret, he was
1 not able to come to The Hague, and he was not able to accept the role of
2 the lead counsel in this case.
3 In my letter, I have quoted his reasons for which he has decided
4 not to be the lead counsel and while he accepted to be a member of my team
5 should I decide to represent myself, I can give you those reasons briefly.
6 The first reason is that after our last conversation which took
7 place in March when he was willing to come and discuss the terms of him
8 taking over the case, I had to call him after that and tell him that he
9 couldn't come because this was not in compliance with the provisions laid
10 out by the Registry. In the meantime, he has taken over some other
11 obligations because he's an a full-time professor.
12 The second reason why he couldn't be here even for one day is
13 twofold. The first one is the fact that a his visa has expired, and the
14 second reason is that immediately prior to our conversation his mother had
15 a brain stroke and he has to look after her.
16 So, Your Honour, this would be my answer to your question.
17 JUDGE SCHOMBURG: Let me ask you, did you request for a supervised
18 telephone call or was it an open phone call, an uncontrolled phone call?
19 THE APPELLANT: [Interpretation] The telephone conversation was an
20 uncontrolled phone call. I didn't use the privileges of a supervised
21 call. Truth be told, I -- it never even occurred to me to ask for a
22 privileged line with Mr. Stojanovic.
23 JUDGE SCHOMBURG: As we discuss the last time, you got the
24 specific allowance of to have a discussion unsupervised for about 15
25 minutes in the Detention Unit itself, but apparently you were allowed to
1 have an uncontrolled telephone call with a member, as you call it yourself
2 in the letter, a member of your Defence team.
3 So -- but in conclusion as regards Professor Stojanovic, he's
4 unable to appear as your Defence right now; correct?
5 THE APPELLANT: [Interpretation] This is correct.
6 JUDGE SCHOMBURG: Is it furthermore correct that then later on you
7 tried to engage the services of Mr. Dejan Brasic also over the phone?
8 THE APPELLANT: [Interpretation] A minor correction if I may,
9 please. When I arrived -- may I proceed, Your Honour?
10 JUDGE SCHOMBURG: Yes, please.
11 THE APPELLANT: [Interpretation] When I arrived in the Detention
12 Unit, I received a decision by the Registry in English that the
13 Prosecution announced preventing Mr. Brasic from being engaged as my
14 Defence counsel. I called him also in an uncontrolled manner, on an
15 uncontrolled line, and since I knew that he could not be engaged, I
16 expressed my regret for possibly having contributed to his fine by asking
17 for him to be my Defence counsel. We finished this conversation with an
18 understanding that he could not act as my Defence counsel because of the
19 obstacles posed by the Registry. And I repeat again, this conversation
20 was also an uncontrolled one.
21 JUDGE SCHOMBURG: Thank you. But was it already clarified during
22 the last Status Conference that Mr. Brasic is not able for the reasons we
23 all know to be -- to appear before this Tribunal any longer?
24 THE APPELLANT: [Interpretation] Yes. Yes. The Prosecution stated
25 that, and the decision on the -- serve to confirm that this was not
1 possible. I understood it last time that a decision had been reached, but
2 I did not receive it myself until a few days ago.
3 JUDGE SCHOMBURG: I don't want to go into details of the
4 background, why Mr. Brasic can't appear any longer. It's a decision taken
5 by the Registry and by a Trial Chamber as regards the fine.
6 In conclusion, I have to ask you, Mr. Krajisnik, whenever you want
7 to address the Chamber, please don't do it personally in addressing a
8 letter to me myself but to the entire Chamber. As it is custom in our
9 Tribunal, let it be filed. And you have also an assigned -- properly
10 assigned counsel, Mr. Nicholls, and Mr. Nicholls would take care of this
11 in order to avoid any delay.
12 However, having heard your submissions, I expect a report from the
13 Registrar no later than 12th of April on two issues. First, how is it
14 possible that Mr. Krajisnik had contact with two members of his so-called
15 Defence team from the United Nations Detention Unit without any control,
16 without any monitoring.
17 And second, why is it that the letter arrived only by the end of
18 office hours yesterday, because having had the letter beforehand, I could
19 have taken the appropriate steps and prepared this Status Conference in a
20 totally different way. This letter is extremely short, and I think within
21 10 or 15 minutes with the assistance of a translator I could at least have
22 got a gist of that, of what is included. So I'm -- was only able to
23 respond or to think about the content of this letter late yesterday
25 So now we have the situation Mr. Dershowitz is not available.
1 Mr. Brasic can't defend you. Professor Stojanovic, for at least the time
2 being, is not - in part able, in part willing - to take over your defence.
3 May I therefore ask you, and I think if I'm wrong please correct
4 me, you know the conditions of self-representation as highlighted in all
5 detail in the last Status Conference by Mr. Petrov to you. Is it correct
6 that you know all the conditions, or shall I repeat them?
7 THE APPELLANT: [Interpretation] I would be grateful to you if you
8 could go over these conditions again. One thing still remains unclear to
9 me, and this thing has to do with the remuneration of the Defence team.
10 I'm grateful, Your Honour.
11 JUDGE SCHOMBURG: I think it was made abundantly clear that in
12 this case, as things stand now, you have an assigned counsel and this
13 counsel is paid by the international taxpayer, if you would decide to
14 defend yourself, then it would really mean that you have to defend
15 yourself. There would be no financial support from the side of the
16 Tribunal. In particular, costs for legal advisors, investigators, and so
17 on will not be covered.
18 As regards the question of privileged access to confidential
19 information and to enjoy unsupervised visits, in particular -- and all the
20 other means emanating from the right to have uncontrolled visits by
21 counsel, the so-called counsel/client privilege, this has to be decided on
22 a case-by-case basis, and primarily this person would have to fulfil
23 certain criteria listed in the code of conduct for Defence counsel. But
24 as I said in the beginning, the Tribunal will not tolerate so-called
25 undercover defence. We fight or searching -- we are searching for the
1 truth and searching for justice by open means, with open weapons, and not
2 in a disguised way.
3 I think it's clear enough. Defending yourself means at the same
4 time if you would want to invoke this right and the -- of course the
5 Appeals Chamber would have to decide on this, all the costs have to be
6 borne by you yourself.
7 And to be abundantly clear, today is the last opportunity after, I
8 think, more than six months that you finally decide whether you request to
9 represent yourself during appeal or not. I'm not prepared to continue
10 with the same game we had with Mr. Alan Dershowitz and now with,
11 unfortunately, Professor Stojanovic, but we need an immediate and final
12 and, first of all, unequivocal decision on your part.
13 May I ask, do you have any further questions before you give a
14 clear answer to this clear question?
15 THE APPELLANT: [Interpretation] Your Honour, in my letter I have
16 also concluded a request which I may explain with regard to
17 Mr. Dershowitz, and I'm going to give you a clear answer as regards my
19 At this moment, I wish to represent myself, and I cannot accept
20 Mr. Nicholls as representing me in this appeals case.
21 JUDGE SCHOMBURG: Mr. Krajisnik, may I come back to the last
22 Status Conference of Monday, 26 March 2007. In the English version of the
23 not official, not corrected transcript it reads at page 32, Mr. Krajisnik,
24 you said, I quote as from line 8: "At the moment there are investigators
25 who were members of the first team, and there are certain items for which
1 we would have to engage two Defence lawyers who would analyse in
2 professional terms the appeal. I cannot do this myself, and it would be
3 necessary for me to have the possibility of receiving e-mail for both the
4 Defence lawyers and for the investigators."
5 Then you continue -- end of this quote. You continue on line 16:
6 "I'm convinced that I can defend myself in more professional way than the
7 team that I currently have could do, but I believe that the appeal
8 procedure is specific, and I would need counsel's assistance to deal with
9 this appeals procedure. So when I'm defending myself, I would like to
10 have a very experienced lawyer as a member of the Defence team."
11 We are still in a situation -- end of quote. We are still in the
12 situation that you, on the one hand, cite, claim, that you want to defend
13 yourself, but on the other hand, you claim that you need a Defence team
14 for these purposes, in particular, a very experienced lawyer as a member
15 of the Defence team, in particular with a view to the difficulties of the
16 appeals proceedings.
17 And you continue on page 33 of the same transcript, lines 2 to
18 4 -- or 1 to 4: "There are three individuals, and in addition there would
19 be the investigators who have been working on the case so far. That would
20 be my Defence team, the team that would assist me and with which I would
21 prepare for the appellate proceedings."
22 So do you believe that you are able to defend yourself, as you
23 stated in your letter, or do you believe that you have to rely on a
24 Defence team as you said, in particular, a "very experienced lawyer" for
25 your assistance? What is correct?
1 THE APPELLANT: [Interpretation] Your Honour, at this Tribunal and
2 with the Judges and the lawyers, the problem is always the same. The
3 problem is that the freedom of expression -- one's freedom of expression
4 is restricted. My freedom of expression is restricted.
5 I'll be very clear now. I'm now stating that I want to represent
6 myself. I want to defend myself because I believe this is the best and
7 most efficient way me to establish what the truth is. I have already said
8 that I cannot accept Mr. Nicholls as counsel. I can provide you with an
9 explanation but I would rather not do so.
10 As far as my statement is concerned, the statement I made last
11 time we had a Status Conference. This case represents an enormous
12 workload and one person alone cannot deal with this workload. Even if
13 other lawyers were involved this couldn't be done. I believe that I need
14 a number of individuals to help me in these appellate proceedings, and if
15 I am to engage someone, in that case I would like to engage someone who is
16 professional, someone who can deal with the procedural matters here and
17 can help in drafting and submitting an appeal. I don't want to involve
18 Mr. Dershowitz in this now, but I can explain to you what I had in mind
19 last time. I can explain how my initial position has evolved a bit. I'm
20 repeating that I believe that it would be far more efficient for me to
21 defend myself. I can file an appeal. I can become involved in the
22 appellate proceedings. I just need the right conditions. But without
23 such conditions I think it will be very difficult for me to work on my
24 appeal since there are so many factors of a restrictive nature.
25 That's all I have to say for the moment, Mr. -- Your Honour. If
1 you have any questions, I can answer them, but I think that I'm in a
2 position to represent myself.
3 JUDGE SCHOMBURG: And before -- Sorry, before I give the floor to
4 the Prosecution, I saw all the time you were about to be on your foot, I
5 want to clarify that we can get rid of this letter of 2nd April. Your
6 last question clearly falls in the jurisdiction of the Registry, but I can
7 already now tell you based on the experience of the past that the Registry
8 would never assign Mr. Dershowitz and grant him in addition -- that you
9 "grant him in addition to the funds provided by the Registrar which are
10 designated for covering attorney expenses and shall only be used for that
11 purposes to allow you to participate in the financing in -- of my defence
12 with my own funds. These funds would be provided by loans, and donations
13 would cover additional activities which were not carried out during the
14 presentation of evidence ..."
15 You will get the final answer on this last part of your answer by
16 the Registry in due time.
17 But to make one thing abundantly clear, it is not possible to
18 claim that you want to defend yourself and, on the other hand, that you
19 want to have a Defence team somewhere behind the scenes. But let me give
20 me now the floor to the Prosecution, please.
21 MS. DAHL: Thank you, Your Honour. The Prosecution's interest is
22 in ensuring that the fairness of the proceedings is not impaired. I
23 wanted to interject that before Mr. Krajisnik was asked whether his
24 request to represent himself was unequivocal, and it seems to -- continues
25 to be the opposite, that is equivocal or conditional, that it would be
1 essential to that exercise of the right, if he has such, to make sure that
2 he is fully informed of the dangers of self-representation. Many
3 commentators have observed that self-representation is at tension with the
4 fairness of the appellate proceedings and that it is in effect a waiver of
5 the fairness of the proceedings for the convicted person to exercise his
6 self-representation rights.
7 JUDGE SCHOMBURG: Thank you. I can only -- speaking for the time
8 being for myself as a Judge of the Bench, I can only repeat what I said
9 the last time, that when you compare the situation in different countries
10 all over the world and before international tribunals, because of the
11 difficulties in principle and in particular in some countries on appeal,
12 there is no such right of self-representation, and I quoted already from
13 the Farhad decision of the United States Supreme Court, Judge Reinhardt
14 saying in stating in a concurring opinion that, "allowing on appeal an
15 appellant to represent himself would amount to a waiver of a fair trial."
16 You should also bear this, please, in mind before deciding. But
17 one point concerned me in your last submission earlier this morning when
18 you said that you are deprived of your freedom of expression. Could you
19 please elaborate a little bit on this? And what has this to do with
20 yourself representation or being presented by Defence counsel?
21 THE APPELLANT: [Interpretation] Well, in fact I want to actively
22 participate in my defence, even if I was represented by counsel, but at
23 this point in time, now that I'm defending myself, it's important for me
24 to have contact with individuals who will obtain certain documents for me.
25 I'm deeply surprised now, since I wouldn't have the right to
1 assistant of any kind from my investigators or from anyone else. I'd have
2 to defend myself by drafting my appeals brief in the Detention Unit. If
3 that's a fair trial -- well, I don't think it is. I believed I needed a
4 team who could assist me.
5 And to go back to your question, Your Honour, I cannot now send a
6 fax, for example, to have Mr. Karganovic translate something for me. I
7 have to go through a lawyer whom I don't recognise as my lawyer.
8 Secondly, I have to receive CDs of documents that relate to
9 sessions of an Assembly to see whether what was said was actually said, to
10 see whether the transcript was correct. I can't obtain this material. I
11 have to send something by mail, for example. I have to receive a 7 or
12 800-page document, and this is not possible. So none of these conditions
13 currently exist. I don't have the conditions that would enable me to
14 communicate with individuals to communicate with them and to gather
15 evidence in order to draft my appeals brief. Until this issue of
16 self-defence is solved, I'm told I can't do anything. I have to
17 communicate with Mr. Nicholls.
18 I have to be quite frank. On three occasions to date I saw Mr.
19 Nicholls very briefly. I haven't seen, though, what submissions he has
20 made. Being a polite person, I communicated with him to a certain extent,
21 but at this point in time there's nothing I can do. I don't have a
22 judgement in the Serbian language, so I more or less have to try and
23 translate the judgement by frequently consulting a dictionary in order to
24 work on -- on the appeal. But such are the Rules, and the Rules are
25 imposing restrictions on me. It's not the individuals who are involved in
1 all this who are to blame.
2 JUDGE SCHOMBURG: Mr. Krajisnik, you didn't answer my question in
3 how far you feel deprived of your right to self-expression.
4 THE APPELLANT: [Interpretation] I cannot prepare my defence in
5 good conditions. That's what I want to say. I didn't want to say that
6 anyone was obstructing me or I wasn't trying to say that my rights had
7 been violated. That's the only thing. That's it.
8 JUDGE SCHOMBURG: Isn't it correct that in your home country it is
9 mandatory to have Defence counsel in a case like the one before us?
10 THE APPELLANT: [Interpretation] I am not familiar with those
11 details, but there is something that I do know, Your Honour. In my home
12 country, the accused and counsel sit together, and they put questions
13 together, and they conduct the proceedings together. I know about that.
14 And if this was the case here, things would be much better.
15 JUDGE SCHOMBURG: And in addition, am I correct in believing that
16 as in your country as in many other continental European countries you
17 have the right at the same time to have counsel and to put questions to
18 witnesses and to make statements other than those foreseen in our Rules
19 and procedure -- of Procedure and Evidence? Is that correct?
20 THE APPELLANT: [Interpretation] There is certainly that
21 possibility but, Your Honour, there's one important factor in my homeland,
22 and a minute ago you said this wasn't possible here. If I could engage
23 Mr. Dershowitz, if the Registry engaged him, all problems would be solved,
24 but it's obvious that Mr. Dershowitz is requesting certain conditions that
25 can't be met or that won't be met, and I would have to find additional
1 funds. In my home country I could solve this, but I can't solve this
2 problem here.
3 JUDGE SCHOMBURG: Okay. I think we have discussed now everything,
4 but I have not yet given the floor to Mr. Nicholls, and he should also
5 have the right as an assigned counsel to make submissions. I think based
6 on your additional submission in writing on amicus curiae, we need not
7 discuss this any further because I think the question of amicus curiae is
8 finally litigated and this question is right for a decision, but I see the
9 Prosecution again was faster than the Defence. Please, the floor is
11 MS. DAHL: Thank you, Your Honour. I wish to make three points
12 and one housekeeping matter.
13 In listening to Mr. Krajisnik's elocution, it appears to me that
14 he has already described himself as self-represented. It would appear
15 that that is premature and that perhaps it would be appropriate to remind
16 him that he is represented in this matter as it stands.
17 Second, there appears to be a misunderstanding. If he were able
18 to retain his own lawyer and fund his own Defence team, he would have the
19 ability to manage their work himself subject to the detention centre rules
20 and the qualifications necessary for people to appear as retained counsel
21 in this Tribunal.
22 Finally, the statements May Mr. Krajisnik has made concerning the
23 nature of his relationship with Mr. Nicholls cause concern. Those may be
24 appropriate subjects of investigation ex parte to the Prosecution if Mr.
25 Nicholls continues to represent Mr. Krajisnik.
1 As to the housekeeping matter, I wish to note a correction to the
2 transcript at page 8, line 37 [sic] where I indicated that the
3 Prosecution's interest is in ensuring that the fairness of the proceedings
4 is not impaired. Presently the transcript does not include the negative
5 word "not."
6 JUDGE SCHOMBURG: Thank you for this clarification, and may I ask
7 those being responsible for the transcript to correct the transcript to
8 this end.
9 As regards to your first point that will be the final point to be
10 addressed after having heard Mr. Nicholls, but you're absolutely right.
11 Apart from those scenarios I highlighted, which are possible, which are
12 no-go's, there is the possibility to have Defence counsel based on own
13 funds or donations or own money if Mr. Krajisnik should be in possession
14 of the necessary financial means. But I think it goes without saying that
15 Mr. Krajisnik is intelligent enough to know this.
16 But may I hear finally Mr. Nicholls, please.
17 MR. NICHOLLS: Your Honour has before you Mr. Krajisnik's
18 application to represent himself, and at the same time his application
19 that he should have legal assistance, and he has indicated, apart from the
20 fact that he does not wish that assistance to be from me, he has indicated
21 that the assistance he wants is assistance on procedure and assisting --
22 assistance on the drafting of documents as a member of his team, as has
23 been described an undercover team. That assistance Mr. Krajisnik is
24 seeking is not assistance which is within the remit of an assigned Defence
25 counsel or within the remit of a lead counsel. Counsel has specific
1 responsibilities. He has responsibilities as to what he himself does, and
2 he has responsibility for his team. He must also, in accordance with
3 Article 10 of the code, he must ensure that he has an independence. He
4 forms the team. It is his team which he controls for the benefit of
5 Mr. Krajisnik. What Mr. Krajisnik is seeking is that I should be, I and
6 those assisting me, which he wishes to approve, should be part of his team
7 and inevitably not really subject to his instructions but subject to his
9 I have to say, and I have to make it clear for the benefit of the
10 Chamber and for the benefit of Mr. Krajisnik that that is not a role which
11 I envisage as one which I, as his Defence counsel, can fulfil.
12 Your Honour asked me on the last occasion, was I willing to work
13 with his team as he described it, and I indicated very clearly no, that I
14 could not do so for the very reasons which I have indicated to
15 Your Honour. Your Honour has already indicated that matter of
16 [indiscernible] has been fully litigated in previous decisions of the
17 Chambers and also, of course, fully argued on the last occasion. I cannot
18 think that I can add anything to that. Your Honour asked me a question,
19 was amicus not a friend of the Court, effectively independent of the
20 defendant, and I feel bound to admit that in truth in reality that is the
21 position. There are, of course, in the United States or in the United
22 Kingdom there are amicus briefs which are submitted. They are amicus
23 briefs which are presented by persons other than the parties, although
24 they may in fact be in support of the parties. And I think unless Your
25 Honour asks me to address any other issue, I can't really add anything at
1 this moment. But I have to be really very clear about it, that if I am
2 counsel I take the responsibility, and I have the control. I cannot be
3 subject to the control of the person I represent in the way in which is
4 envisaged. I cannot draft documents, that is, put into some formal shape
5 documents which the client has drafted and which he wants to have
6 presented in a suitable form to the Tribunal. That, as I see it, is not
7 the function of counsel.
8 JUDGE SCHOMBURG: Thank you for these clear words, Mr. Nicholls,
9 and I can only repeat that Defence means not only to have rights but also
10 obligations and, in your words, a responsibility both for the proper
11 defence but also in order to protect victims, witnesses, and other
12 protective measures ordered, say, under Rule 70 by this Tribunal.
13 So therefore, I first want to give you, Mr. Krajisnik, a last
14 chance. You heard from the submissions of the Prosecution that the
15 Prosecution still believes that your submission is not unequivocal. This
16 would be a prerequisite for a clear request for self-representation. You
17 heard the words of Mr. Nicholls, the counsel assigned to you, and I have
18 to emphasise as the President said, properly assigned Defence counsel. Do
19 you seek still a decision of the Appeals Chamber could -- on the first
20 question whether your request is unequivocal, and second, whether you are
21 entitled to represent yourself on appeal or it is for the entire Appeal
22 Chamber, of course, to decide this, whether the -- you can't waive your
23 right to have a fair trial.
24 What is your final request, please?
25 THE APPELLANT: [Interpretation] My position is absolutely clear.
1 I want to represent myself, and I believe that this would be far better.
2 The trial would be a lot fairer than if I decided to select someone to
3 represent me.
4 JUDGE SCHOMBURG: Thank you, Mr. Krajisnik. You may be seated.
5 Then it remains with the status quo we have at present that
6 properly assigned counsel to Mr. Krajisnik is and will be Mr. Nicholls
7 until Appeals Chamber has decided on
8 Mr. Krajisnik's request to represent himself and/or whether this request
9 was unequivocal or not.
10 This also means that you, and I have to emphasise and I have to
11 kindly ask you to regard your position not as an amicus curiae but as a
12 properly assigned Defence counsel. Having been compelled myself by my own
13 bar several times to defend a client against his wish, and this happens
14 relatively often, I know how difficult this is, but in the interest of
15 justice this sometimes is inevitable.
16 And it is really for you, Mr. Krajisnik, to make the best of it,
17 and I can only recommend to try to get a better contact to Mr. Nicholls,
18 because in the near future nothing will change -- will be changed until
19 the Appeals Chamber has spoken.
20 Let us now move to the pending motions. Let's go, please, briefly
21 in private session.
22 [Private session]
12 [Open session]
13 THE REGISTRAR: We're back in open session, Your Honours.
14 JUDGE SCHOMBURG: Thank you. For reason that easy to understand,
15 we are confronted with a Defence motion for extension of time for filing
16 appellate brief pending translation of the judgement into the language of
17 the convicted person. If I'm right, please correct me if it's not the
18 case. You ask for 90 additional days?
19 MR. NICHOLLS: Yes, it was, I think, yes.
20 JUDGE SCHOMBURG: May I hear the Prosecution on this?
21 MS. DAHL: Your Honour, I believe the motion requested 75 days.
22 Our submission was that it is in the interests of justice to grant that;
23 however, we would request that it's limited to 30 days after receipt of
24 the judgement in Mr. Krajisnik's native language.
25 JUDGE SCHOMBURG: Okay. This is not an oriental bazaar, and we
1 should stay in line of previous decisions, and I looked up previous
2 decisions and indeed there were either 30 or 25 days granted. The last
3 time in another case I granted 25 days after filing of the B/C/S
4 translation, bearing in the mind -- bearing in mind that the -- that
5 Mr. Nicholls can work in the meantime on the main body of the appeal
6 brief, and it is only to add something based on that what he hopefully
7 gets as information. I emphasise information, not instruction, from
8 Mr. Krajisnik.
9 So therefore it is hereby granted that the time for filing the
10 appellate brief is extended 25 days after filing of the B/C/S translation
11 of the judgement to Mr. Krajisnik.
12 It is therefore up to you, Mr. Nicholls, to continue with this.
13 The only point that strikes me is the pending motion to strike
14 Mr. Krajisnik's notice of appeal. I think it would be a matter of
15 fairness, but of course I have to hear first the parties on this, whether
16 it wouldn't be wise if Mr. Nicholls would look into Mr. Krajisnik's own
17 notice of appeal and maybe file a consolidated version of his own notice
18 of appeal and Mr. Krajisnik's notice of appeal so that Mr. Krajisnik's
19 requests are also included in as far your -- your tactics and your ethical
20 obligations so allow. It would have to be decided until when such a
21 consolidated version would be to be filed.
22 May I hear the Prosecution first on whether at all they would
23 accept this and, second, whether a time for such a consolidated version
24 of, say, of -- bearing in mind that we have Easter right now, to grant a
25 time a fortnight running from next Monday for such a consolidated version?
1 What is your opinion on this?
2 MS. DAHL: Your Honour, I wish to clarify that our motion directed
3 at Mr. Krajisnik's notice of appeal was not a request to strike it so much
4 as a request that the registrar not accept a filing from an individual
5 while he is represented by counsel. That position information the answer
6 to your question, which is that we don't oppose an amended notice of
7 appeal by counsel, but we remain firm in the position that one party, one
8 document, and that we should not have a two-track appeal where the
9 convicted person is taking his own matters himself while represented by
10 competent counsel as Mr. Nicholls.
11 JUDGE SCHOMBURG: Thank you. I think it goes without saying into
12 we have only two parties in this system, but nevertheless we are
13 confronted with the difficulty situation that the Appeals Chamber has not
14 yet decided on -- finally on the question of self-representation or not
15 and is, therefore, in order not to waste time, Mr. Krajisnik himself and
16 Mr. Nicholls was allowed to file two separate notices of appeal, but as I
17 take it now from your submission, you don't see any obstacle that a
18 consolidated version will be filed.
19 Mr. Nicholls, would you be ready to do so?
20 MR. NICHOLLS: Your Honour, we've always contemplated a
21 consolidated notice of appeal. The only request that I would make is that
22 Your Honour should grant more time, rather, three weeks instead of two
23 weeks having regard to the difficulties of communication aunts fact that
24 the teams are in fact in different places. When I say the teams are in
25 different places, the team is in London, Mr. Krajisnik is here, and there
1 are always the problems of communication which Your Honour is aware.
2 JUDGE SCHOMBURG: And I take it that you will take the advantage
3 of the interpretation services as you highlighted correctly during the
4 last Status Conference of your colleague sitting behind you?
5 MR. NICHOLLS: Your Honour, maybe. I say no more at the moment.
6 JUDGE SCHOMBURG: Okay. But you will find ways and means to --
7 MR. NICHOLLS: There will be -- there will be interpretation.
8 JUDGE SCHOMBURG: Okay. Let me think loudly. Today we have 5
9 April, and you are requesting three weeks. That would bring us to 26, 27
10 of April. In case that this does not cause any further delay, I think it
11 could be granted but let me hear -- first hear the Prosecution.
12 MS. DAHL: We agree with the motion that there should be no
13 further extensions if this is granted to Mr. Nicholls, this further week.
14 The purpose of the notice of appeal of course is to allow the Prosecution
15 to begin to prepare its response, and we have been diligently doing that
16 in reliance on the extant notice of appeal.
17 JUDGE SCHOMBURG: Yes. I think this work was not in vain because
18 this will still form part of the notice of appeal. It will be only
19 amended by adding maybe the one or other ground of appeal raised by
20 Mr. Krajisnik himself.
21 So, Mr. Nicholls, would it be convenient for you to accept on the
22 one hand that the appeals brief as such is due 25 days after filing of the
23 B/C/S translation of the judgement, and at the same time that a
24 consolidated version of both notices of appeal will be filed no later than
25 26 April 2007?
1 MR. NICHOLLS: Your Honour, yes.
2 JUDGE SCHOMBURG: Thank you so much. May I ask what about other
3 pending motions? Maybe you know that I don't like unnecessary filings, so
4 that we can dispose of any pending motions right now.
5 THE APPELLANT: [Interpretation] Your Honour?
6 JUDGE SCHOMBURG: Would you please be seated. You are represented
7 properly by Defence counsel. I'll give you the floor in the minute, even
8 though this is not foreseen in -- in the Rules.
9 I was asking you about other pending motions. I think the motion
10 to strike will become moot as soon we have a consolidated version of --
11 from Mr. Nicholls; correct?
12 MS. DAHL: Yes, Your Honour.
13 JUDGE SCHOMBURG: Thank you. Then it -- please, and this is for
14 both parties, correct me if I'm wrong, we have before us the motion on
15 self-representation, and may I ask based on the current new situation do
16 you uphold your motion for becoming a permanent institution as amicus
17 curiae, Mr. Nicholls? Because this was a motion filed by you in your own
19 MR. NICHOLLS: Your Honour, when I was faced with the situation
20 that Mr. Krajisnik did not accept me as his assigned counsel, I formed a
21 team and I filed a number of motions in order to protect his situation.
22 One was that I should no longer be assigned; two, that he should be
23 allowed to self-represent; and thirdly, that the Court -- the Chamber
24 should consider whether I and my team, as I described it, should be made
25 amicus. I think during the last Status Conference it was clear
1 effectively that the position of amicus was so very different from the
2 position of a Defence counsel and that the position of amicus did not
3 include what Mr. Krajisnik was requesting.
4 I have filed that motion that I and my team -- or that the Chamber
5 should consider whether I and my team should be appointed amicus. I -- I
6 leave it -- in some ways I would like time to answer the question, because
7 I want to preserve Mr. Krajisnik's position. But at the same time, and
8 may I just say frankly that I have an inclination not to pursue the motion
9 for this reason, that I would not wish that I should be placed in a
10 position whereas an amicus, as not an amicus in the ordinary sense of the
11 term, I was required to give Mr. Krajisnik the assistance which he has
12 been requesting, that is in the drafting of documents and the like, which
13 I do not -- or submit is not the normal or proper function of an amicus.
14 So Your Honour asked me a direct question. I've answered in a
15 rather roundabout way, but would Your Honour give me time to consider the
16 answer to the question whether the motion is pursued or not? I can
17 give -- I can give an answer by the end of the weekend.
18 JUDGE SCHOMBURG: I -- as Easter is upcoming, I would say if you
19 do be kind enough to file your motion whether or not you want to withdraw
20 your motion to be assigned as amicus curiae no later than Friday next
22 MR. NICHOLLS: Thank you.
23 JUDGE SCHOMBURG: Thank you so much. I can looking forward to
24 this. And I can only repeat that you are the assigned counsel. You have
25 to work with your team, and everything falls in your own responsibility.
1 And furthermore, I have to ask the Registry to take the necessary
2 steps that there are no contacts not foreseen in the Rules of Procedure
3 and Evidence between Mr. Krajisnik and any counsel at all. Of course it
4 may be that there is a supervised visit by and friend, a member of the
5 family, but this has nothing to do with defence or, as Mr. Krajisnik tends
6 to call it, Defence team, because there is as things stand now no such
7 Defence team of Mr. Krajisnik.
8 Mr. Krajisnik, in all fairness, you wanted to say something.
9 Please, you're allowed to do so right now.
10 THE APPELLANT: [Interpretation] If I may, I would like to provide
11 an explanation about your last order. Last time you granted me the right
12 to replace my Defence counsel if I was of the opinion that the current
13 Defence counsel is not suitable. How can I get in touch with any
14 prospective Defence counsel if I'm not allowed to make telephone calls?
15 That's my first question.
16 And the second thing I wish to say is this: In order to avoid any
17 misunderstandings, I certainly wish to self-represent. I'm saying this
18 because it arised from you -- it arose from your conclusion that there's a
19 doubt whether I really want to self-represent or not.
20 Second of all, just for the record, I am against and joint notice
21 of appeal or a consolidated notice of appeal, because I did not
22 participated in the notice of appeal prepared by Mr. Nicholls. I received
23 it very late, and I have a lot of objections to it. Again, to avoid any
24 misunderstandings, if Mr. Nicholls is appointed as amicus curiae, I don't
25 expect any favours of him. When I asked him about his role, I just wanted
1 to see what this implied, and I was in favour of him in role as an amicus
2 curiae if this is of some use for the Trial Chamber. I don't want him to
3 be a member of my team at the same time as an amicus curiae.
4 I have to work on my appeal, and I have to get in touch with my
5 Defence team. Just for the record, Mr. Nicholls has not showed -- shown
6 any willingness to contact me in this regard. I have not had any contacts
7 with him.
8 MS. DAHL: Your Honour, if -- if I may interject. The Prosecution
9 does not wish to be privy to matters of privilege between Mr. Krajisnik
10 and Mr. Nicholls that concern the nature of the representation or
11 Mr. Nicholls's or Mr. Krajisnik's objections thereto.
12 JUDGE SCHOMBURG: I think we had -- have litigated this matter in a
13 really exhaustive and extraordinary way. You had already the privilege
14 for more than six months to request a counsel of your own choosing from
15 the lists of the Registrar, and unfortunately you did not decide until
16 today. So therefore, I take it that it is a matter -- mission impossible
17 for you to find the appropriate counsel. It is, therefore, that counsel
18 was assigned to you. You will get hopefully in due time the decision of
19 the Appeals Chamber on your request of -- to represent yourself, but as
20 things stay now, I on a very personal note have to add I don't believe
21 that this Appeals Chamber will be in your hands, that you can control the
22 course of action of this appeal. We have to grant you a fair trial,
23 meaning also an expeditious trial. You are not the only one waiting for a
24 final decision, and therefore time has come to conclude this debate, and
25 if there is no other decision in the future, Mr. Nicholls will stay your
1 assigned counsel, and it's in your own interests to find a way of trust to
2 Mr. Nicholls. Otherwise, it will be detriment to your own interests.
3 This concludes -- as I can see no other issues to be raised from
4 any the parties, this concludes today's Status Conference. You will get
5 the necessary decisions, and I'm expecting a consolidated version of the
6 notice of appeal and then later on the appeal on brief.
7 It remains for me to wish you all some days of relief and a happy
8 Easter to all of you in this courtroom and those assisting us behind the
10 Thank you very much. The Status Conference stands adjourned.
11 --- Whereupon the Status Conference adjourned
12 at 9.26 a.m.