1 Monday, 3 November 2008
2 [Appeals Hearing]
3 [Open session]
4 [The appellant entered court]
5 --- Upon commencing at 8.33 a.m.
6 JUDGE POCAR: Good morning, everybody. Madam Registrar, may I
7 ask you to call the case.
8 THE REGISTRAR: Good morning, Your Honours. Good morning
9 everyone in and around are the courtroom. This is case number
10 IT-00-39-A, the Prosecutor versus Momcilo Krajisnik.
11 JUDGE POCAR: I thank you. May I ask Mr. Krajisnik if he can
12 hear me and follow the proceedings through the translation.
13 THE APPELLANT: [Interpretation] Judge, I can follow in my
14 language, and I can hear well. Thank you.
15 JUDGE POCAR: I thank you.
16 Let me now call for appearances. For Mr. Krajisnik's counsel on
17 the matter of JCE, please.
18 THE INTERPRETER: Microphone, please.
19 MR. N. DERSHOWITZ: Nathan Dershowitz, JCE counsel.
20 JUDGE POCAR: Thank you. For the Prosecution.
21 MR. KREMER: Peter Kremer, Mr. President and members of the
22 Court, appearing for the Prosecution. Assisting me this morning are
23 Mr. Matteo Costi and Ms. Katharina Margetts and our case manager,
24 Alma Imamovic-Ivanov is also assisting.
25 JUDGE POCAR: Thank you. Now for the amicus curiae.
1 THE INTERPRETER: Microphone, please.
2 MR. NICHOLLS: Colin Nicholls acting as -- sorry. Colin Nicholls
3 acting as amicus.
4 JUDGE POCAR: Thank you.
5 Now, this is an evidentiary hearing on appeal in the case of the
6 Prosecutor against Krajisnik. Today we will hear the testimony of
7 Mr. George Mano and Mr. Stefan Karganovic who were summoned by the Appeal
8 Chamber on October 2008 under Rules 98 and 107 of the Rules.
9 Let me briefly summarise the evidence, which have ben admitted in
10 this appeal and it will detail the order in which we hear the witnesses'
11 testimonies today.
12 First, in its decision of 20 August 2008, the Appeals Chamber
13 admitted into evidence under Rule 115 statements by Mr. Mano and
14 Mr. Karganovic, both presented by the Defence. Mr. Mano's statement is
15 Exhibit AD1 and that of Mr. Karganovic is Exhibit AD2.
16 In its decision of 8 October 2008
17 seven document presented by the Prosecution as rebuttal evidence to these
18 statements its exhibits AP1 to AP7.
19 I would like to remind the parties that Exhibits AD1 and AD2 as
20 well as the rebuttal evidence are under seal. Therefore if the parties
21 or amicus curiae wish to refer to these documents they should request
22 private session.
23 This morning we will first hear Witness George Mano. He appears
24 as a witness of the Appeals Chamber. The main examination will therefore
25 be conducted by the Bench. Mr. Krajisnik will then have the opportunity
1 of questioning Mr. Mano for 45 minutes, after which the Prosecution and
2 amicus curiae may pose questions to the witness for 45 minutes each.
3 We will then break and after lunch the Bench will examine Witness
4 Karganovic who is also a Chamber witness, and we will follow the same --
5 the same schedule as for the testimony of Mr. Mano.
6 We will rise, of course, for the usual breaks every one and a
7 half hours during the morning and the afternoon, and as usual the time
8 allotted to the parties is approximate and may with leave of the Chamber
9 be varied where necessary.
10 That said, I wish to remind the parties that they are not oblige
11 to use ought time allocated, and as always, Judges may interrupt them at
12 any time to ask questions to the witnesses.
13 So having said that about the manner in which we will proceed
14 today, I would now like to call Witness George Mano.
15 MR. N. DERSHOWITZ: Your Honour, may I address the Chamber for
16 one second with respect to the schedule?
17 JUDGE POCAR: Yes.
18 MR. N. DERSHOWITZ: I had assumed on the basis of the orders of
19 the Court and the time schedule now that the amicus would be inquiring of
20 the witnesses on ineffective assistance of counsel and therefore would
21 include within their area of inquiry questions relating to JCE. I was
22 advised last night and again this morning that amicus is probably not
23 going to cover that area because of a lack of clarity as to whether that
24 is within the ambit of their area of responsibility.
25 So under those circumstances, if they choose not to inquire into
1 the JCE area, I with like with the permission of Mr. Nicholls to be able
2 to take ten minutes of the allocated time that they have to make some
3 inquiries, if it's not covered by the Chamber before, with respect to
4 ineffective assistance of counsel solely as it relates to the JCE issue.
5 And of course if necessary I can request from Mr. Krajisnik that I take
6 ten of his minutes instead of Mr. Nicholls' ten minutes. Thank you.
7 [Appeals Chamber confers]
8 [The witness entered court]
9 JUDGE POCAR: Well, I consulted my colleagues and this could be
10 appropriate. You certainly can do that taking from the time either of
11 the -- of Mr. Krajisnik also or of the amicus.
12 MR. NICHOLLS: Your Honours, may I make my position clear as
13 amicus? I do not intend to cross-examine either of the witnesses for
14 reasons which I've already placed before the Chamber, and there is one
15 additional reason in the case of the witness Mr. Karganovic.
16 JUDGE POCAR: Thank you. I take note of that.
17 WITNESS: GEORGE MANO
18 JUDGE POCAR: Now, good morning, Mr. Mano.
19 THE WITNESS: Good morning.
20 JUDGE POCAR: Can you hear me?
21 THE WITNESS: Yes.
22 JUDGE POCAR: Could you please read the solemn declaration given
23 to you by the usher.
24 THE WITNESS: I solemnly declare that I will speak the truth, the
25 whole truth, and nothing but the truth
1 JUDGE POCAR: Thank you, Mr. Mano. You may now be seated.
2 THE WITNESS: Your Honours, may I refer to notes if I'm not sure
3 about a date or a fact?
4 JUDGE POCAR: Of course you may.
5 Questioned by the Appeals Chamber:
6 JUDGE POCAR: Could you please tell the Court your full name and
7 date of birth first?
8 A. George Mano, July 24, 1961
9 JUDGE POCAR: Thank you. What is your address?
13 JUDGE POCAR: Thank you. Could you now tell us what education
14 you have and give us a brief list of your previous and present
16 A. I teach English at a university in Japan. I've been living in
17 Japan for 13 years. For the past ten years, I've been teaching at the
18 university where I am currently employed.
19 JUDGE POCAR: Thank you. Mr. Mano, the Court has asked you to
20 testify in the appeals proceeding in the case of the Prosecutor against
21 Momcilo Krajisnik. As it is the Court itself that has requested your
22 attendance, you will first be asked questions by the Judges. As I am the
23 Presiding Judge, I will begin the questioning myself, following questions
24 by the other Judges. You may then be asked questions by Mr. Krajisnik,
25 the Prosecution, and the amicus curiae.
1 Specifically, we will be asking you questions as to what you know
2 about the workings of Mr. Krajisnik's Defence team during trial and the
3 conduct of former counsel Nicholas Stewart in relation thereto.
4 Now, first, Mr. Mano, did you work for Mr. Krajisnik's Defence
5 team during his trial?
6 A. Yes. I was a volunteer intern in the summer of 2004.
7 JUDGE POCAR: How long did you work in the Defence team?
8 A. Approximately three months.
9 JUDGE POCAR: And that is from, to?
10 A. I started on July 5th, and my last day was September 24th.
11 JUDGE POCAR: I thank you. Apart from this, have you had or do
12 you have any other working relationship with Mr. Krajisnik?
13 A. I guess last year or maybe earlier this year Mr. Krajisnik, when
14 he took over his own defence, named me as one of his team for his appeal;
15 but I was not paid a salary.
16 JUDGE POCAR: What were your duties within the Defence team?
17 A. Are you referring to --
18 JUDGE POCAR: During the trial.
19 A. 2004?
20 JUDGE POCAR: Yes.
21 A. Well, I had various duties. I read documents that had been given
22 to the Defence from the Prosecution relating to facts that the
23 Prosecution and the Defence were asked to agree upon. I prepared
24 cross-examination of Prosecution witnesses. I wrote historical
25 background of the war for the Defence, and I also prepared a list or a
1 packet of information about expert witnesses for the Defence.
2 JUDGE POCAR: Why did you leave the Defence team? Sorry. I
3 didn't have the microphone. Why did you leave the Defence team?
4 A. Well, I had a full-time job in Japan. I only agreed to work for
5 three months.
6 JUDGE POCAR: Thank you. During the work -- your work with the
7 Defence team, what was your professional relation to Defence counsel,
8 Mr. Stewart?
9 A. Well, I was a volunteer, an intern, an unpaid clerk, if you will,
10 for the Defence team. So he was my boss.
11 JUDGE POCAR: And for how long did you interact with Mr. Stewart
12 in this capacity?
13 A. For the entire time I was here. From July 5th until September
15 JUDGE POCAR: Now, moving to another question. Have you worked
16 or are you currently working on other cases before this Tribunal or any
17 other international criminal tribunal?
18 A. I assisted one other case briefly when I was here in the summer
19 of 2004. And when I say briefly, one day. I was asked by another
20 Defence team if I would help them review their final brief for the Court.
21 JUDGE POCAR: Can you tell us which was the case?
22 A. I don't remember the name of the case, but the lead attorney was
23 Michael Karnavas.
24 JUDGE POCAR: I thank you. I will now move to asking you
25 something about the exhibit unless there are other questions that my
1 colleagues want to put before I do that.
2 We have to go into private session. Thank you. Because the
3 exhibit is under seal.
4 [Private session]
11 Pages 360-386 redacted. Private session.
9 [Open session]
10 THE REGISTRAR: Your Honours, we're back in open session.
11 JUDGE POCAR: I thank you. So now we break until 10.30. We
12 resume the hearing at 10.30.
13 --- Recess taken at 10.05 a.m.
14 --- On resuming at 10.34 a.m.
15 JUDGE POCAR: The hearing is resumed, and I will turn to the
16 Prosecutor to question the witness.
17 Cross-examination by Mr. Kremer:
18 Q. Mr. Mano, you commented during -- perhaps we could go to private
19 session immediately, Your Honour?
20 JUDGE POCAR: Yes. Let's go to private session then.
21 [Private session]
11 Pages 388-423 redacted. Private session.
4 [Open session]
5 THE REGISTRAR: Your Honours, we're back in open session.
6 [The witness withdrew]
7 JUDGE POCAR: So before closing this morning's session, may I
8 raise one issue. The Appeals Chamber received this morning a request by
9 Mr. Krajisnik to file, in relation to the hearing on Wednesday, next
10 Wednesday, to file Radovan Karadzic statement pursuant to Rule 92 ter.
11 Of course the Appeals Chamber will have to decide on this, but may I ask
12 the Prosecution if they have any comment on this now.
13 MR. KREMER: Yes, Mr. President. We have people meeting,
14 discussing it. I will meet with them during the recess and hopefully
15 will be in the position to file something today.
16 JUDGE POCAR: I thank you. So we defer this to the afternoon in
17 order to enable the Appeals Chamber to make a decision later on.
18 The hearing is now adjourned. We reconvene at 2.00 for the
19 examination of the Witness Karganovic. The hearing is adjourn.
20 --- Luncheon recess taken at 11.49 a.m.
21 --- On resuming at 2.04 p.m.
22 JUDGE POCAR: Good afternoon everybody. We resume our hearing.
23 At the outset let me thank the Prosecution for the response we
24 received on the request of Mr. Krajisnik to -- leave to file a document
25 under Rule 92 ter. The Appeals Chamber will consider the issue and will
1 give an answer, announce its decision before the end of the afternoon,
2 before the end of the hearing.
3 Now we can perhaps proceed -- Mr. Krajisnik?
4 THE APPELLANT: [Interpretation] Your Honours, with your
5 permission perhaps it would be a good idea before you reach your decision
6 with respect to the Prosecution's response that in my own name and
7 Mr. Dershowitz's name he present additional reasons which would be useful
8 to you in making your decision.
9 [Appeals Chamber confers]
10 JUDGE POCAR: Well, I consulted my colleagues. Yes, of course
11 this can be done, but I wouldn't like to open a long debate now; and it
12 should be understood it's the expense of the Defence time if they want to
13 add some reasoning.
14 MR. N. DERSHOWITZ: Thank you, Your Honour. Just Mr. Krajisnik
15 asked me to explain and to address one paragraph in the response which
16 says that Mr. Krajisnik provides no reason as to why it would be, you
17 know, compatible with the interest of justice. And the reason he had
18 wanted to have this done by a document is because he is pro se, and he
19 was concerned about his capacity and ability to be able to ask the
20 questions in an area that he thinks is significant as well as it could be
21 done by a document, and he thought that since Mr. Kremer can
22 cross-examine, Mr. Nicholls intends to cross-examine, and I have been
23 given permission to examine, that between those three the Court will have
24 enough of a face-to-face of Mr. Karadzic to be able to make the judgement
25 as to his credibility.
1 I just wanted to explain -- he wanted me to explain that in legal
2 terms, that's all. Thank you.
3 JUDGE POCAR: Thank you. Any reaction on this just by the
4 Prosecution just to --
5 MR. KREMER: Our concern is the unfairness of the document going
6 in as a 92 ter statement solely without eliciting what Mr. Krajisnik
7 thinks are important aspects of the statement. We're on notice that he
8 may testify as to all of those points. Some of them are not very
9 detailed or elaborate and basically deal with all of the testimony, and
10 for us to be effective in our cross-examination we need to know through
11 the mouth of the witness what he's saying, why he's saying it, and how
12 he's saying it in order to be able to properly challenge both his
13 credibility in terms of making those statements and also the content of
14 them. So that would be my response.
15 JUDGE POCAR: I thank you. Well, the Appeals Chamber will
16 take --
17 [Appeals Chamber confers]
18 JUDGE POCAR: Yes. My attention is drawn on the one point made
19 by Mr. Dershowitz when you said a moment ago that you have given
20 permission to examine. You mean re-examine after the cross-examination.
21 MR. N. DERSHOWITZ: Yes.
22 JUDGE POCAR: Correct. I want to make sure the procedure is
23 clear to everyone.
24 Well, we will take into account -- the Appeals Chamber will take
25 into account the consideration just made by the parties.
1 I don't know whether the amicus wants to say something on this
2 specific point made by the parties.
3 MR. NICHOLLS: No, I have nothing really to add. The document
4 obviously has a value from the Chamber's view and indeed from counsel's
5 view, but it can't be evidence other than -- insofar as it is given from
6 the witness box.
7 JUDGE POCAR: Sorry, what do you mean by that, Mr. Nicholls? If
8 the document is admitted as evidence under 92 ter, it's evidence.
9 MR. NICHOLLS: No, I'm not saying that it should be admit as
10 evidence. I'm saying that it's useful from our point of view in that we
11 have it or counsel have it, but obviously he have must be given from the
12 witness box.
13 JUDGE POCAR: I'm sorry, Mr. Nicholls, I have to explain the
14 procedure then. If a statement is admitted under 92 ter of the Rules of
15 Procedure and Evidence, that document is evidence. Of course, it will be
16 taken into account together with the cross-examination. It takes
17 place -- it is in lieu of examination-in-chief, but it has the same value
18 of examination-in-chief, and of course we have to consider in light of
19 the cross-examination, the re-examination, but it's part of the evidence.
20 MR. NICHOLLS: Then in my capacity as amicus, I have no
21 submissions to make.
22 JUDGE POCAR: I thank you.
23 MR. N. DERSHOWITZ: I just wanted to clarify. Under 93 ter,
24 there is no indication of interest of justice. Under 89(F) there is an
25 indication of an interests of justice. They are two different Rules. I
1 just wanted to highlight that.
2 JUDGE POCAR: We know the Rules, Mr. Dershowitz.
3 MR. N. DERSHOWITZ: Better than I do, I'm sure, Your Honour.
4 JUDGE POCAR: So I believe now we can reserve in the decision on
5 the request. We can proceed to examining Witness Karganovic. Can --
6 MR. KREMER: Just before we start, Mr. President, I just have one
7 question that arises out of our examination and cross-examination of the
8 witness this morning; and I would raise the question as to whether or not
9 Mr. Dershowitz, to the extent that he has any JCE questions, should not
10 go after the Bench, and I be given the last opportunity to ask questions
11 of Mr. Karganovic subject to the Chamber asking questions. I just say
12 from my experience this morning I think the process is entirely unfair to
13 have Mr. Dershowitz asking questions of a friendly witness -- of a
14 witness friendly to Mr. Krajisnik who Mr. Krajisnik who is proposing, who
15 the Chamber has chosen to call to be asked to basically rehabilitate or
16 attempt to rehabilitate the witness through leading questions after
17 cross-examination. That's my submission.
18 JUDGE POCAR: Well, I see my colleagues have also this view.
19 Probably it's -- we should proceed this way. So have Mr. Dershowitz
20 taking the floor before the Prosecutor. And of course understanding that
21 Mr. Dershowitz will limit himself to JCE issues.
22 MR. N. DERSHOWITZ: Your Honour, I have no objection. I just
23 wanted to make sure that I'm using Mr. Nicholls' time, not --
24 JUDGE POCAR: That's true.
25 MR. N. DERSHOWITZ: Thank you.
1 JUDGE POCAR: So can we have the witness brought in.
2 [The witness entered court]
3 WITNESS: STEFAN KARGANOVIC
4 JUDGE POCAR: Good afternoon --
5 THE WITNESS: Good afternoon.
6 JUDGE POCAR: -- Mr. Karganovic. Can you please read the solemn
7 declaration that the usher will show you.
8 THE WITNESS: I solemnly declare that I will speak the truth, the
9 whole truth, and nothing but the truth.
10 JUDGE POCAR: I thank you, Mr. Karganovic. You may now be seat.
11 THE WITNESS: Thank you.
12 Questioned by the Appeals Chamber:
13 JUDGE POCAR: So could you please tell the Court your full name
14 and date of birth.
15 A. Yes, my name is Stefan Karganovic. I was born on June 16, 1950.
18 JUDGE POCAR: Thank you. Could you now tell us what education
19 you have and give us a brief list of your previous occupation and your
20 current occupation.
21 A. Yes. My education is I went to the University of Chicago
22 United States. I have a degree in philosophy. I went to Indiana
23 University Law school and graduated there. I worked in some legal
24 capacities and also had a private businesses in the 1980s. I also worked
25 as an interpreter and a translator.
1 JUDGE POCAR: Thank you. So, Mr. Karganovic, the Court has ask
2 you to testify in the appeal proceedings in the case of the Prosecutor
3 against Krajisnik.
4 A. Yes.
5 JUDGE POCAR: As it is the Court itself that has requested your
6 attendance, you will be first asked questions by the Judges.
7 A. Thank you.
8 JUDGE POCAR: And as I am presiding here, I will begin the
9 questioning myself, following questions by other Judges. You may then be
10 asked questions by Mr. Krajisnik, the Defence Mr. Dershowitz, and the
11 Prosecution, and the amicus curiae if he wants to do so.
12 Specifically, we will be asking you questions as to what you know
13 about the workings of Mr. Krajisnik's Defence team during the trial and
14 about the conduct of former counsel, Nicholas Stewart, in relation to
15 that trial.
16 A. Very well, Your Honour. May I just note that on the screen I do
17 not see anything. It would perhaps be helpful if I could also follow the
18 questions and the answers there. Ah, yes. Okay. Thank you.
19 JUDGE POCAR: Before I put you questions, one small thing. I
20 asked you your address.
21 A. Yes.
22 JUDGE POCAR: Do you want the address to remain in the record, or
23 you want to have it redacted.
24 A. Well, for the time being I suppose that is my official address,
25 although when I go to Belgrade
1 could give you the address there. If there is a point to it I would be
2 happy to do it.
3 JUDGE POCAR: No, the problem is that since the hearing is public
4 if you want to have it public or not, the address. You don't mind.
5 A. No.
6 JUDGE POCAR: Okay. That's fine. Thank you.
7 So now I would ask the -- the usher to present the witness with
8 Exhibit AD2, which is a confidential exhibit; and so before putting
9 questions that would relate to that exhibit, I will ask the registrar to
10 go into private session.
11 [Private session]
11 Pages 432-507 redacted. Private session.
8 [Open session]
9 THE REGISTRAR: Your Honour, we're back in open session.
10 JUDGE POCAR: Thank you.
11 Now, before we adjourn, I was saying, I will have announce the
12 decision of the Appeals Chamber as concerns the request filed by
13 Mr. Krajisnik as concerns the statement of Radovan Karadzic.
14 The Appeals Chamber has decided that under Rule 92 ter, the
15 statement as annexed to the request should be admitted into evidence at
16 the proceedings to be held on November 5, 2008, provided, of course, that
17 the requirements set forth in Rule 92 ter are met, that is that
18 Mr. Karadzic is present and is available for cross-examination and other
19 questioning and will attest that the written statement reflects his
21 There is a partial modification of the Scheduling Order of
22 October 21. The hearing will start at 9.00 and not at 8.30. This being
23 said, I think we --
24 MR. KREMER: I just --
25 JUDGE POCAR: Please.
1 MR. KREMER: I'm sorry to interrupt, but I just have a question
2 in terms of the schedule for Wednesday. How much time will the
3 Prosecution have to cross-examine? When will we start to cross-examine?
4 I think it's important to know whether we have three hours, six hours, or
5 nine hours.
6 The other --
7 JUDGE POCAR: Yes.
8 MR. KREMER: The other question I have and relates to today's
9 hearing, I note that the Scheduling Order has an impact summary required
10 for the 14th of November on the Karadzic testimony, but there was no
11 order allowing impact submissions on the testimony today, and I'm just
12 inquiring whether that was an oversight or wasn't intended to have
13 submissions made regarding the testimony today. And then there's also a
14 word limit. There's none prescribed in the order, and perhaps some
15 direction as to how long the submissions should be.
16 [Appeals Chamber and legal officer confer]
17 JUDGE POCAR: Well, on the last question we have to go back to
18 private session, but on the -- on the scheduling for Wednesday, the
19 hearing will be like follows: There will be -- of course we will have to
20 ascertain of course the conditions of 92 ter, and that would be the
21 beginning the hearing. Then as of when this is done, the Appeals Chamber
22 decided that the cross-examination by the Prosecution should take one
23 hour and a half, and thereafter there should be a re-examination. That
24 would be half of that time, so 45 minutes. This is what we have agreed.
25 May we go back to private session now.
1 MR. N. DERSHOWITZ: Your Honour, can I just -- the 45 minutes is
2 with reference to me; is that correct?
3 JUDGE POCAR: Yes.
4 MR. N. DERSHOWITZ: Thank you.
5 JUDGE POCAR: May we go back to private session now?
6 [Private session]
20 --- Whereupon the hearing adjourned at 5.51 p.m.
21 to be reconvened on Wednesday, the 5th day
22 of November, 2008, at 9.00 a.m.