Tribunal Criminal Tribunal for the Former Yugoslavia

Page 3823

 1                           Monday, 15 December 2008

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 3.02 p.m.

 5             JUDGE ROBINSON:  Mr. Alarid, you are to make your opening

 6     statement.

 7             MR. ALARID:  Your Honour, with the leave of the Court, we will

 8     not be making an opening statement.  And to the effect that that waives

 9     our opportunity to make the opening statement, I simply must reaffirm

10     what I stated, is that, you know, one of the attorney's duties in an

11     opening statement is to say what the evidence will show in the case in

12     chief, and the attorney involved needs to be familiar enough with his own

13     evidence to make in good faith a statement as to what I can expect the

14     evidence will show.  Our 65 ter summaries take a stab at that, but even

15     our own generation of those 65 ter summaries is based on hearsay and

16     preparations that went on and that went on -- our case investigations

17     that we now know are part of a criminal contempt investigation.

18             JUDGE ROBINSON:  Mr. Alarid.

19             MR. ALARID:  Yes, Your Honour?

20             JUDGE ROBINSON:  Are you going a make an opening statement or

21     not?

22             MR. ALARID:  No, sir.

23             JUDGE ROBINSON:  If you're not, very well, call your first

24     witness.

25             MR. ALARID:  Your Honour, we do not have a witness available

Page 3824

 1     pursuant to the witness difficulties.  Mr. Ivetic traveled to the Balkans

 2     over the weekend to facilitate interviewing our potential witnesses and

 3     whatnot.  The best we can get with our witnesses is someone in -- that

 4     will be coming in I believe tomorrow?  Tomorrow, available for Wednesday.

 5     Excuse me.  Tomorrow and Wednesday, available for Wednesday and Thursday.

 6     And that is the best we have, Your Honour.  I raise --

 7             JUDGE ROBINSON:  Just a minute.

 8             MR. ALARID:  Yes, Your Honour.

 9             JUDGE ROBINSON:  That best is simply not good enough, Mr. Alarid.

10     Did you not file, as was required, a list of the witnesses that you'd be

11     calling, and there was one, I believe, for today after your opening

12     statement.

13             MR. ALARID:  Yes, Your Honour, and --

14             JUDGE ROBINSON:  Well, tell me precisely why that witness is not

15     available.

16             MR. ALARID:  Because the necessary documentation and procedures

17     that are required by the Witness and Victims, we were not able to get

18     that done considering how stretched thin we are, Your Honour.  I mean --

19             JUDGE ROBINSON:  Why is that, Mr. Alarid?  Why is that?

20             MR. IVETIC:  Your Honour, Victims and Witnesses have reported to

21     the Trial Chamber the difficulties based upon their inability to get the

22     witness here.  It's not a matter of the Defence of Milan Lukic not being

23     able to get this first witness here, Your Honours.

24             MR. ALARID:  And Your Honour, I mean --

25             JUDGE ROBINSON:  I'm going to ask for the Victims and Witnesses

Page 3825

 1     Unit to be represented here and to provide the explanation.  May I ask

 2     the registrar --

 3                           [Trial Chamber and registrar confer]

 4             JUDGE ROBINSON:  I understand that there is a representative from

 5     the Victims and Witnesses Unit, and I will ask him, Mr. De Witt, to

 6     address the Court on this matter.

 7             MR. DE WITT:  Your Honours, my name is Gus De Witt.  I'm the

 8     chief of the Witness and Victims Section, and I would like to explain

 9     what has happened in terms of the first few witnesses that the Defence of

10     Milan Lukic have scheduled for this week.

11             What I may explain is it's a series of e-mails, communication

12     between the Milan Lukic Defence team and the Victims and Witnesses trial

13     assistant who makes the logistical arrangements for the arrival of

14     witnesses.

15             There are three witnesses which we were informed were scheduled

16     for this week by the Milan Lukic Defence team, and I'm just looking at

17     the Defence team just to ensure that I can mention their names.  I

18     believe they are not protected witnesses so I will --

19             MR. IVETIC:  They are actually protected witnesses.  Two of them

20     are, one is not.  Two are protected, one is not.

21             MR. DE WITT:  Right.

22             JUDGE ROBINSON:  Let's move into private session because I want a

23     full explanation.

24                           [Private session]

25      [Part of Private Session made public by order of Trial Chamber]

Page 3826











11  Pages 3826-3829 redacted. Private session.















Page 3830

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5             Mr. Alarid and Mr. Ivetic, I am distressed by what I have heard.

 6     Absolutely distressed.  Mr. Ivetic, you led me to believe that this was a

 7     matter that was up to the Victims and Witnesses Unit.  It is entirely

 8     your fault --

 9             MR. IVETIC:  Your Honour --

10             JUDGE ROBINSON:  -- for notifying the Victims and Witnesses Unit

11     so late.  Even the 10th of December is late for a witness to be present

12     in court today.  So you have absolutely no excuse, and let me make myself

13     pellucidly clear:  I will not put up with that from you anymore.  You

14     have a solemn duty to defend the accused Milan Lukic, and I am going to

15     see to it that you discharge it.  Otherwise, you will face the penalties.

16             How can you expect to have witnesses here when you notify the

17     Victims and Witnesses Unit on Friday last week?  What do you think they

18     are?  What do you think they are?  Do you think they pull the witnesses

19     out of a hat?

20             MR. ALARID:  Your Honour, well, I think the Witnesses and Victims

21     Unit are -- specifically are this:  Human beings that are under the same

22     constraints that we are --

23             JUDGE ROBINSON:  Listen to me.  Listen to me.

24             MR. ALARID: [Microphone cut off]

25             JUDGE ROBINSON:  I have cut you off.  I have cut you off.  I am

Page 3831

 1     not putting up with slackness like this in my court.  I want you to

 2     understand that.  That is slackness.  It is negligence of the highest

 3     order.  You must notify the Victims and Witnesses Unit in good enough

 4     time if you expect the witnesses to be here.  If you don't, you are not

 5     discharging your duty to your client.  You are being unprofessional.  Do

 6     I make myself clear?

 7             MR. IVETIC:  Your Honours, if I -- if I may just --

 8             MR. ALARID:  Your Honour -- just a second.  If you're going to

 9     call me unprofessional, then I call this Court on giving me not the

10     resources to get my job done --

11             JUDGE ROBINSON:  I have cut you off.

12             MR. ALARID:  [Microphone cut off]

13             JUDGE ROBINSON:  No.  I have cut you off.

14             MR. ALARID:  [Microphone cut off]

15             JUDGE ROBINSON:  I have cut you off.

16             MR. ALARID: [Microphone cut off]

17             JUDGE ROBINSON:  I have cut you off, Mr. -- you are totally off.

18             MR. ALARID: [Microphone cut off]

19             JUDGE ROBINSON:  It is entirely your fault.

20             MR. ALARID:  [Microphone cut off]

21             JUDGE ROBINSON:  Entirely your fault.

22             MR. ALARID: [Microphone cut off]... and the time we have.  We

23     have not been given the requisite time.

24             JUDGE ROBINSON:  Mr. Alarid --

25             MR. ALARID:  [Microphone cut off]

Page 3832

 1             JUDGE ROBINSON:  Mr. Alarid, you have not done the best you can.

 2             MR. ALARID:  Your Honour, it is clear to me this Court believes

 3     that I am privately retained.  It is clear to me you think I have a staff

 4     of -- of lackeys that are being paid by Mr. Lukic.  It is clear to me

 5     that this bribery allegation -- [Microphone cut off]

 6             JUDGE ROBINSON:  I have cut you off --

 7             MR. ALARID: [Microphone cut off]

 8             JUDGE ROBINSON:  I have cut you off.  I have cut you off because

 9     I find your remarks to be totally inappropriate.  That is a matter that

10     has been already dealt with by the Trial Chamber and dealt with in a

11     manner entirely favorable to you.  I insisted on it being dealt with in

12     that way.

13             MR. ALARID: [Microphone cut off]

14             JUDGE ROBINSON:  Favorable to you.

15             MR. ALARID: [Microphone cut off]

16             JUDGE ROBINSON:  We did not find that the contempt had any merit

17     in it, and I insisted on saying that we found not one scintilla of

18     evidence to implicate you or any of your colleagues.

19             MR. ALARID:  Your Honour, but you realize -- [Microphone cut off]

20             JUDGE ROBINSON:  So I will not hear anything more from you.

21             MR. ALARID:  Well, let me -- let me -- let me tell you --

22             JUDGE ROBINSON:  Nothing more from you.

23             MR. ALARID:  What I would like to do, Your Honour, is introduce

24     you to my case -- the person that was -- [Microphone cut off]

25             JUDGE ROBINSON:  You are not going to introduce me to anything.

Page 3833

 1     We are going to adjourn now, and you will take this warning from me.  You

 2     will take this warning from me that you are here to represent

 3     Mr. Milan Lukic.  You have not been ready to present his case.  It is

 4     entirely your fault.  I find that it is entirely your fault.

 5             MR. ALARID:  Your Honours --

 6             JUDGE ROBINSON:  Notification, as was just stated by Mr. De Witt,

 7     was entirely too late for witnesses to be here.

 8             MR. ALARID:  And I agree with that --

 9             JUDGE ROBINSON:  If you are serious -- if are sufficiently

10     serious in discharging your duty to your client, you would not have

11     informed the Victims and Witnesses Unit on Friday with the expectation,

12     with any reasonable expectation that they would have witnesses here

13     today.

14             MR. IVETIC:  Your Honours, and I must correct the record because

15     that is absolutely a misrepresentation.  Mr. Markovic was a witness that

16     had been noticed for the week prior, Your Honours.  After the hearing on

17     Tuesday, we found out we were going to have court on Monday.  That very

18     next day, we started the process of getting more witnesses in addition to

19     Mr. Markovic.  Mr. Markovic's papers were all in order, so yes, he could

20     come here within two days.  As a matter of fact, Victims and Witnesses --

21             THE INTERPRETER:  Slow down, please.  Slow down.

22             MR. IVETIC: [Previous translation continues] ... to travel.

23     That's today, to travel.  So we did discharge our duties.  I went from

24     Thursday till last night --

25             THE INTERPRETER:  Interpreter's note:  The counsel is kindly

Page 3834

 1     asked to slow down for interpretation.

 2             MR. IVETIC:  I went from last Thursday traveling to the area to

 3     meet with witnesses to prepare them, not only for this week but for the

 4     ongoing witnesses after this week, Your Honour.  I came back at 11.00

 5     last night in order to discharge my duties.

 6             JUDGE ROBINSON:  The problem I find with that, you're talking

 7     about what you are doing now.  What about the time before?  All the time

 8     that has gone before?

 9             MR. ALARID: [Microphone cut off]

10             JUDGE ROBINSON:  Do you begin to prepare your defence --

11             MR. ALARID:  [Microphone cut off]

12             JUDGE ROBINSON:  -- when you are called on to present your

13     defence?

14             MR. IVETIC:  In this case, yes, Your Honour, because of the

15     circumstances that we had.  How could we do it before?

16             MR. ALARID:  [Microphone cut off]

17             JUDGE ROBINSON:  That is -- that is nonsense and totally

18     unacceptable.

19             MR. ALARID: [Microphone cut off]

20             JUDGE ROBINSON:  Totally unprofessional.

21             MR. ALARID: [Microphone cut off]

22             JUDGE ROBINSON:  I've cut you off.  Please stop.

23             MR. ALARID: [Microphone cut off]

24             JUDGE ROBINSON:  Please stop.  Stop.  Stop.

25             MR. ALARID:  [Microphone cut off]

Page 3835

 1             JUDGE ROBINSON:  If you find it a horrible burden and you don't

 2     think you can discharge it, then you know what to do.

 3             MR. ALARID: [Microphone cut off]

 4             JUDGE ROBINSON:  I don't want to tell.

 5             MR. ALARID: [Microphone cut off]

 6             JUDGE ROBINSON:  I'm going to adjourn now.  Legal counsel.

 7                           [Trial Chamber and legal officer confer]

 8             JUDGE ROBINSON:  Well, it looks as though we will have to adjourn

 9     until Wednesday morning, but let me say this before we do.  On the 18th

10     of November, the Chamber ordered Milan Lukic's Defence to begin its case

11     immediately following that of Sredoje Lukic.  Sredoje Lukic closed his

12     case on the 2nd of December.  Milan Lukic Defence, however, was not ready

13     to begin its case on the 3rd of December.  The Chamber adjourned the

14     proceedings until 9 December, but again, the Milan Lukic Defence was not

15     ready to open its case.  The Chamber therefore adjourned the proceedings

16     for a second time to today's hearing.

17             Let us move to public session, and I'll begin again.  You may

18     both sit.

19                           [Open session]

20             THE REGISTRAR:  We're in open session, Your Honours.

21             JUDGE ROBINSON:  On the 18th of December, the Chamber ordered the

22     Defence of Milan Lukic to begin its case immediately following that of

23     Sredoje Lukic.  The Defence of Sredoje Lukic closed on the 2nd of

24     December, but Milan Lukic was not ready to present his case on the 3rd of

25     December.  Trial Chamber adjourned the proceedings until the 9th of

Page 3836

 1     December, but again, the Milan Lukic Defence was not ready to open its

 2     case.  The Trial Chamber, therefore, has adjourned the proceedings for a

 3     second time to today's hearing.

 4             In our view, no efforts have been made to comply with the

 5     Chamber's order of the 18th of November.  The two adjournments have been

 6     the result of the failure of the Milan Lukic Defence to comply with the

 7     Chamber's orders, to commence presentation of its case on the 3rd and 9th

 8     December.

 9             As a consequence, a total of six sitting days have been lost.

10     The Chamber is of the view that these two instances of failure by counsel

11     to comply with specific directions have obstructed the proper conduct of

12     the proceedings.  Should there be any further repetition, the Chamber

13     will be required to consider what is the appropriate course of action to

14     take pursuant to the Rules of Procedure.

15             The Chamber further recalls that on the 2nd and 9th of December,

16     it warned the Defence that when witnesses are scheduled to attend, they

17     will only be excused if good cause is shown.  The Defence was reminded

18     that if there is no good cause, the witness's time can be counted against

19     the number of witnesses and the time allocated to the Defence.

20             Therefore, the Chamber rules that the two witnesses scheduled to

21     testify last week will be deducted from the Defence witness allotment,

22     and the Chamber will also deduct the time for these witnesses from the

23     time allocated to the Defence to present its case.

24             The Chamber will still insist on the deadline of the 6th of March

25     for the end of the Defence case.

Page 3837

 1             We are going to adjourn now until Wednesday morning when it is

 2     expected that we will have a Defence witness to testify on behalf of the

 3     accused Milan Lukic.

 4             We are adjourned.

 5                           --- Whereupon the hearing adjourned at 3.29 p.m.,

 6                           to be reconvened on Wednesday, the 17th day of

 7                           December, 2008, at 8.50 a.m.