1 Friday, 2nd October, 1998
2 (Motion Hearing)
3 (Open session)
4 --- Upon commencing at 2.30 p.m.
5 JUDGE MUMBA: Good afternoon. Will the
6 registrar please call the case?
7 THE REGISTRAR: Good afternoon, Your Honour.
8 Case number IT-97-25-PT, the Prosecutor versus Milorad
10 JUDGE MUMBA: Thank you. May we have the
12 MR. UERTZ-RETZLOFF: Good afternoon, Your
13 Honours. For the Prosecution, we have today, to my
14 left, Mrs. Peggy Kuo, and my name is Hildegard
16 JUDGE MUMBA: Thank you. For the Defence?
17 MR. BAKRAC: Good afternoon, Your Honour.
18 The lead counsel is Attorney Mihajlo Bakrac present
19 here today with Attorney Miroslav Vlasic as legal
21 JUDGE MUMBA: Thank you. The accused, can
22 you hear me?
23 THE ACCUSED: Yes.
24 JUDGE MUMBA: The present hearing is for a
25 motion by the Prosecution on protective measures filed
1 on the 16th of June, and the Defence did respond to the
2 motion by the Defence on the 10th of July. I would
3 like to find out if there is anything more that the
4 Prosecution would like to say about the motion?
5 MR. UERTZ-RETZLOFF: Your Honour, requested
6 is only a general measure to grant confidentiality in
7 the pre-trial stage. Similar measures have been
8 granted by this Tribunal on several occasions. Also,
9 from this Trial Chamber, the decision of the Kunarac
10 case dated 29 April, 1998 is about the same subject.
11 However, in this subject matter, we gave specifics, I
12 think, which are important here to mention.
13 Firstly, I refer to the Prosecutor's motion
14 to preserve evidence dated 16 June, 1998 in which it
15 was described that the accused was in the possession of
16 a false I.D. card. The accused seems to have
17 connections to criminal individuals who can provide
18 false I.D. cards of a very high quality.
19 Secondly, I refer to a decision of the
20 Registrar dated 13 July, 1998 restricting the accused's
21 contacts within the detention unit. It says, "Taking
22 into account that there are reasonable grounds for
23 believing that Mr. Milorad Krnojelac may interfere with
24 the administration of justice." I think these are two
25 additional points which I want to mention which makes
1 it necessary to have this motion granted.
2 JUDGE MUMBA: Thank you. Any response,
3 besides what is in the response to the motion, by the
5 MR. BAKRAC: Your Honour, we wish to add the
6 following to that which has already been written: This
7 request of the Prosecutor greatly reduces the right to
8 the Defence which is guaranteed by Articles 21 and 22
9 of the Statute, because this request of the Prosecutor,
10 to acquaint only the accused and his legal counsel with
11 the content, considerably reduces the scope of
12 defensibility and the rights involved.
13 Also, it was said that the family of the
14 accused could not become familiar with the statements
15 that indict the accused in this trial. This has made
16 far more difficult the accumulation of evidence by the
17 Defence, because it is only the accused that Defence
18 counsel can deal with, and especially from the point of
19 view of this time distance.
20 I think that because the family is aware of
21 the circumstances in which the accused lived and, also,
22 particularly, the time of the indictment, I think that
23 the family could help Defence counsel accumulate the
24 necessary material.
25 Of course, I do agree that protective
1 measures have to exist, and we shall seek the same for
2 our own witnesses, that is to say, that the name and
3 identity of a person who is testifying should not be
4 disclosed. But if the contents itself cannot be
5 disclosed, then this considerably reduces the scope of
6 the possibilities extended by the Defence counsel.
7 This is in the Statute, too.
8 The Kunarac case is not a relevant case in
9 point, because this is a rape case, and it really
10 doesn't match, in any way, the indictment against
11 Mr. Krnojelac.
12 I believe that such a proposal of the
13 Prosecutor should be refused to the extent to which it
14 precludes the Defence the possibility of communicating
15 with the family of the accused, because the contents of
16 statements are very important for the Defence as well.
17 This is also in keeping with the Statute of the
19 That is all I wish to say at this point. I
20 believe that such a proposal made by the Prosecutor
21 should be refused and that Defence should be allowed to
22 prepare rebuttal evidence in the best possible way.
23 Thank you.
24 JUDGE MUMBA: If I understand you correctly,
25 Mr. Defence Counsel, your concern is that the exclusion
1 of the family of the accused from knowing the contents
2 of the witness statements, that is what is worrying
3 you, because you feel that that restricts the ability
4 of the Defence to prepare the actual defence for the
6 MR. BAKRAC: Certainly, Your Honour, for the
7 simple reason that I am an attorney from Belgrade, and
8 the accused is from Foca, and the accused is the only
9 person whom I can deal with. If I cannot deal with
10 anyone else, then my hands are tied, too, to a large
11 extent. I am not in a position equal to that of the
13 Of course, we all know that there have been
14 cases of abusing the contents of witness statements
15 here, and that they were even given to the media, and I
16 certainly agree with that, but such a case should not
17 tie the hands of the Defence in all future cases. You
18 see, this is a negative example, which I can only
19 condemn, but the contents of a statement have to be
20 presented to the next of kin, the people who are the
21 closest of all to the accused, so that we, on the other
22 hand, could gather evidence which suits the purposes of
23 the Defence, so to speak.
24 If you deny this motion, the Defence can
25 exclusively and only talk to the accused and also from
1 this time distance and in this situation that he is in
2 now. Why could I not gather evidence and show
3 something to the wife of the accused and to his sons,
4 to show what the incriminating material is? Perhaps
5 they will remember certain details which may serve the
6 purposes of the Defence.
7 If you prevent me from doing so, then the
8 Prosecutor and the Defence are not going to be in a
9 position of equality. Also, the Statute cannot be
10 observed if you act in this way.
11 Thank you.
12 JUDGE MUMBA: Thank you very much, Counsel.
13 I think your concerns have been ably expressed, and the
14 Chamber will take time to consider as to what
15 exceptions to make to the motion of the Prosecution.
16 A written decision will be issued later.
17 In these open proceedings, is there anything
18 else, Ms. Prosecutor? Anything else, Mr. Defence
20 MR. BAKRAC: One more thing, Your Honour. As
21 we have taken care of this issue, there's another thing
22 which I also consider to be of great importance, and
23 that is the translation of evidence.
24 According to the new Rules, it is the
25 Prosecutor who is supposed to take care of that. We
1 have obtained, so far, one-third of the evidence
2 material which we got from the registry. However,
3 two-thirds of the material we have not received yet.
4 JUDGE MUMBA: May I interrupt you,
5 Mr. Defence Counsel? I think we shall go into closed
6 session to discuss the preparations of the trial.
7 Those matters which you're raising now shall be in
8 closed session.
9 MR. BAKRAC: I agree.
10 JUDGE MUMBA: In view of the fact that the
11 matters for the motion are dealt with, the Court will
12 adjourn and move into closed session for a Status
14 --- Whereupon the hearing adjourned at
15 2.40 p.m., to be reconvened sine die