Tribunal Criminal Tribunal for the Former Yugoslavia

Page 352

 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.

Page 353

 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, the Appeals Chamber admitted

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

Page 354

 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

Page 355

 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

.

Page 356

 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?

10   (redacted)

11   (redacted)

12   (redacted)

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

15     occupation.

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.

Page 357

 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

Page 358

 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

14     24th.

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

Page 359

 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]

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 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]

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 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

Page 425

 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.

Page 426

 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.

Page 427

 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

Page 428

 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.

Page 429

 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.

16   (redacted)

17   (redacted)

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 in the

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.

Page 430

 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 I -- I can live at my aunt's house.  I

Page 431

 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.

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 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

20     declaration.

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.

Page 509

 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.

Page 510

 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]

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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.

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