1 --- Tuesday, 9th June, 1998
2 (In open session)
3 --- On commencing at 10.07 a.m.
4 JUDGE KARIBI-WHYTE: Good morning, ladies and
5 gentlemen. We have before the Trial Chamber this
6 morning a couple of motions which have been filed for
7 some time. Mainly because we hadn't received the
8 reactions to them, we did not bring them up for
9 arguments. But now we have received reactions in
10 respect of a few of them. There is one we can hear
11 without any formal reaction, a reply from the
12 Prosecution. I think we can deal with that first
13 before we consider the other motions.
14 Now, we have Zdravko Mucic's confidential
15 motion for protective measures in respect of witnesses
16 DA2, DD2, DC2, DE2, DF2 and DG2 filed on the 5th of
17 June. Is Mr. Mucic's Counsel prepared to argue it now?
18 MR. DURIC: Yes, we are, Your Honours.
19 JUDGE KARIBI-WHYTE: Has the Prosecution any
20 views on the confidential motion? If you have, then
21 we'll know what to do with this.
22 MS. McHENRY: Your Honour, Teresa McHenry for
23 the Prosecution. The Prosecution would defer to the
24 Court about the motion for protective orders. I just
25 would note, I assume Defence Counsel is aware that with
1 respect to some witnesses, depending on the nature of
2 their testimony, and the exact nature of their
3 relationship, it may be that some of them are going to,
4 in effect, have to testify in private session. In
5 other words, it's possible that their testimony will,
6 in effect, reveal their identity. But I assume that's
7 something that Defence Counsel is aware of one way or
8 the other. I just note that as an issue that occurred
9 to us. But with respect to the merits of the motion,
10 we defer to the Court.
11 MR. DURIC: Yes, Your Honours. We pretty
12 much outlined all our reasons, the argument in the
13 motion before you, and so we also defer the matter to
14 Your Honours.
15 JUDGE KARIBI-WHYTE: I think the main
16 consideration is in nature of the protection that you
17 actually require, because that should be consistent
18 with the nature of the testimony of the witness, and
19 the circumstances in which he finds himself in The
20 Hague. Why are there are so many of them, from A to D,
21 to K, isn't it? The relief you require, this is what I
23 MR. DURIC: You see, Your Honours, all these
24 witnesses are very close members of the family,
25 actually the family itself, and some very close
1 friends. As you very well know, the war may have ended
2 in Bosnia-Herzegovina, but it has left very deep scars,
3 tensions still run very high, and the healing process
4 is a very slow one. These people have to return to
5 their homeland and live with other ethnic groups.
6 And for all these reasons, both personal and
7 both subjective ones, we don't think that the grounds
8 are -- all these reasons are fairly grounded, you know,
9 for the motion to be accepted.
10 JUDGE KARIBI-WHYTE: How do you justify your
11 protection in respect of D -- A, B, C, D?
12 MR. DURIC: Well, for all these reasons,
13 especially Witness D, because Witness D --
14 JUDGE KARIBI-WHYTE: Not Witness D. Reason
16 MR. DURIC: Oh, reason D.
17 JUDGE KARIBI-WHYTE: Relief D.
18 MR. DURIC: Well, we justify it because, Your
19 Honours, although we are calling all these witnesses,
20 there may be a situation that we might not put all --
21 you know, the particular -- one particular witness on
22 the stand. Then we would, of course, notify the
23 Chambers of our decision. And especially if some of
24 these witnesses express their wish that they not be
25 protected, and of course we'll notify the Trial Chamber
1 and then we'll ask for the cessation for these measures
2 to apply. But for the time being they have all
3 expressed the wish to be protected. So that's what we
4 are passing onto the Chambers.
5 JUDGE JAN: Will you be satisfied if the
6 names are not disclosed to the public and the faces are
7 not shown to the public, these two measures only? Will
8 you be satisfied with that?
9 MR. DURIC: Definitely would be satisfied.
10 But we would most certainly ask, you know, for all
11 these measures --
12 JUDGE JAN: I am just asking you. This is
13 what privilege has been granted to the Prosecution
14 witnesses. Will you be satisfied with that?
15 MR. DURIC: Definitely, we will be
16 satisfied. With these witnesses, yes.
17 JUDGE KARIBI-WHYTE: The interest is that the
18 identity of the witness not be disclosed, so that any
19 other device which enable you to maintain their
20 position should be sufficient?
21 MR. DURIC: I think it would.
22 JUDGE JAN: You will be satisfied with that?
23 MR. DURIC: We will.
24 JUDGE JAN: Names not disclosed, face not --
25 MR. DURIC: Image distorted.
1 JUDGE JAN: To that extent, I think we can
2 grant this.
3 JUDGE KARIBI-WHYTE: In respect of that
4 protection, I think this would be sufficient for you,
5 and the Trial Chamber will grant that.
6 MR. DURIC: Thank you, Your Honours.
7 JUDGE KARIBI-WHYTE: But otherwise the
8 presence in the witness box and they will be known by
9 the accused persons, will see them, and Counsel will
10 see them.
11 MR. DURIC: Yes, Your Honours.
12 JUDGE KARIBI-WHYTE: Now, the next motion we
13 have is the motion by the defendant, Delalic,
14 requesting procedures of final determination of the
15 charges against him. The Prosecution has reacted to
16 that in reply. Is Counsel prepared to argue that?
17 MS. RESIDOVIC: Your Honours, I don't know
18 whether this a mistake. We have not received their
20 JUDGE KARIBI-WHYTE: Yesterday.
21 MS. McHENRY: The Prosecution replied
22 yesterday to --
23 JUDGE JAN: I haven't got it.
24 MS. RESIDOVIC: Your Honours, we have not
25 received this reply.
1 JUDGE KARIBI-WHYTE: Okay.
2 JUDGE JAN: I haven't too.
3 JUDGE KARIBI-WHYTE: We'll have to wait until
4 you receive the reply.
5 We have other motions by Hazim Delic. Do you
6 remember when last it was raised and was argued already
7 on the 28th of May. Ms. McHenry, what was the motion
8 you replied to?
9 MS. McHENRY: Excuse me. Your Honours, on
10 the 2nd of June the Defence of Mr. Delalic filed a
11 motion regarding the presentation of evidence. We
12 responded to that yesterday. It is unfortunately
13 entitled "Prosecution motion to exclude presentation of
14 evidence immediately after the close of Delalic
15 Defence." I think it would have been more
16 appropriately entitled "Prosecution opposition to
17 Defence motion" to do this. But it is, in effect, a
18 response to the Defence motion. And I think it would
19 be more expeditiously considered by the Chamber as a
20 response rather than as a new motion.
21 We apologise. As Your Honours know, their
22 motion was filed very quickly, and rather than wait
23 until the 14 days, when Your Honours indicated
24 yesterday that you wanted to hear it, we very quickly
25 prepared a response. And so I think we did not entitle
1 it in the best possible way.
2 JUDGE JAN: It's not an independent motion,
3 yours, it's a reply?
4 MS. McHENRY: Yes.
5 JUDGE KARIBI-WHYTE: That's why in most cases
6 it's better to reply in the title to which the motion
7 was made.
8 MS. McHENRY: You are absolutely right, Your
9 Honour. I actually think we did the same thing with
10 respect to expert witnesses in the recent past, and
11 that is also, I think, not the best way to reply. And
12 we will try to be paying more attention to that,
13 despite even when we are replying very quickly.
14 JUDGE KARIBI-WHYTE: I was referring to
15 Delic's motions, which was partly considered, but not
16 concluded, because of certain shortcomings in the
17 motion itself. Where do you stand now?
18 MR. KARABDIC: We actually submitted two
19 motions, Your Honours. One of them refers to the
20 issuance of a binding order for the production of
21 documents, a binding order on the Federal Republic of
22 Yugoslavia. As the Prosecutor objected, saying that we
23 did not, prior to that, address the Government of the
24 Federal Republic, the liberation of this particular
25 motion was postponed. We did address the Government of
1 the Federal Republic of Yugoslavia through its Embassy
2 in The Hague, but to this date we have received no
3 reply from them.
4 Perhaps we should wait for a couple days more
5 and then the Defence will adopt a final position as to
6 whether it will continue to seek the issuance of this
7 binding order for the production of documents of
8 evidentiary documents. Since some 11 or 12 days have
9 elapsed since then, and in view of the fact that this
10 involves contacts between organs which are here in
11 Holland and those in Belgrade, we believe that perhaps
12 we should wait for a while more and then the Defence
13 will finally decide whether it will seek this motion,
14 continue to seek this motion, or will be satisfied
15 otherwise, and give it up as a matter of fact.
16 The second motion that we filed was the one
17 which we requested an expert opinion to be given by --
18 I cannot recall the name of the gentleman at this
19 particular moment, but it was a police inspector who
20 was to prove the consequences which emanate from a man
21 being hit with a baseball bat, from his experience. As
22 regards to that particular motion, the Trial Chamber
23 instructed us that we were to submit a request for that
24 fact to be elucidated, for that fact to be ascertained
25 by a specialist doctor, a forensic medical expert.
1 I am in touch with my colleague in Houston,
2 and so far we have not found the suitable person to do
3 that, and we will be doing that subsequently, after we
4 have found the one.
5 So we propose that the consideration of both
6 motions of ours be postponed for a later date. Thank
8 JUDGE KARIBI-WHYTE: I'm not too sure from
9 your motion whether your request to the Federal
10 Republic of Yugoslavia, even if it is true, the Embassy
11 here was made, because normally at least that should
12 have been an annexe to your motion indicating the
13 documents you are asking for. So that if there is any
14 discussion, one has to exercise it, it will be based on
15 their action that that has been done, and not for some
16 time you've not had any reaction from the Federal
17 Republic of Yugoslavia. You did not even say any such
19 MR. KARABDIC: No, I did not. We sent the
20 request to Yugoslavia on the same date when the Trial
21 Chamber was deciding this motion, and objected, because
22 we had not, prior to submitting the motion to the
23 Chamber, had not contacted the Federal Republic of
24 Yugoslavia. So that is why it was not discussed. But
25 on that same day we submitted our request to the
1 Embassy of Yugoslavia here in The Hague and in it we
2 asked for all those documents which are enumerated in
3 our submission.
4 So far we have had no reaction on the part of
5 the Federal Republic of Yugoslavia. What we do have is
6 confirmation that it has been received by the Embassy
7 and conveyed to its proper destination.
8 JUDGE KARIBI-WHYTE: Thank you very much. I
9 think we'll expect to hear later on that.
10 Now, we have also some motions from Esad
11 Landzo, a request for leave to call expert witnesses,
12 two additional expert witnesses. I think the
13 Prosecution has reacted to that and I would like to
14 hear Counsel on that motion.
15 MS. McMURREY: Good morning, Your Honours,
16 Cynthia McMurrey and Nancy Boler for Esad Landzo.
17 There's been so many back and forth motions with the
18 Prosecution regarding the designation of experts. I
19 believe that Ms. McHenry and I had a conversation this
20 morning and we are clear as to which experts it is that
21 need to be designated and which don't.
22 I do have some news for the court today. I
23 believe the Prosecution's response regarding Dr. Edward
24 Gripon, has mostly been that they object to the fact
25 that he has not presented a report and he has not
1 completed his evaluation. He arrived in The Hague last
2 night, he is in the courtroom today, and he will be
3 completing his evaluation in the next few days. But
4 just for verification, and if the Prosecutor would
5 like, I can certainly call Mr. Gripon right now into
6 the courtroom, let him swear under oath. Because they
7 have called him on the telephone and they represented
8 that he told them that he could have his report in five
9 days. There was an affidavit attached to that response
10 that I filed saying that Dr. Gripon said, when
11 requested to write a report, he could have the report
12 within five days.
13 I have not requested him to write a report at
14 this time, because he has not completed his
15 evaluation. He will be here in The Hague until Friday
16 to complete his evaluation, and after that time, if
17 Defence Counsel requests a report, he will write a
18 report, and I will most certainly disclose to the
20 As of today, every expert report that I have
21 in my possession has been disclosed to the
22 Prosecution. And so I am asking leave of the Court
23 because of the late filing of this designation of
24 expert witness to designate Dr. Gripon, and the other
25 expert witnesses that I have on my list, plus an
1 additional motion to designate two additional experts
2 from Holland has been filed, which are a Dr. Ernst
3 Lammers, and a Dr. B. Haeseker, and I don't have the
4 response from the Prosecution regarding that. I
5 believe Ms. McHenry was just aware of this motion this
6 morning. But this is because we are having difficulty
7 getting the doctor in Konjic who performed the surgery
8 on Mr. Landzo, and therefore we have to substitute
9 someone else who can testify about Mr. Landzo's hand
10 injury and his asthma.
11 And that's why we have called Dutch doctors
12 just to go quickly to the prison, examine him, and then
13 come and testify.
14 We expect their testimony to be about one
15 half day each or less.
16 JUDGE JAN: How many experts do you need to
18 MS. McMURREY: Well, Your Honour,
19 unfortunately, I don't have my list here with me.
20 JUDGE JAN: How many experts do you intend to
21 examine to refute the eyewitness account?
22 MS. McMURREY: To refute the eyewitness
23 account, I have three mental health experts, Dr.
24 Legazzi who has already examined Mr. Landzo as an order
25 of the Court in 1996. I have Dr. Leewuwen who examined
1 Mr. Landzo for his compatibility with detention and
2 competency to stand trial in 1996. Both of those
3 experts will do one additional evaluation and
4 supplement their original reports and the Prosecution
5 has both of those reports. I also have Dr. Edward
6 Gripon, who is a forensic psychiatrist, who also will
7 be completing his evaluation this week. Three mental
8 health experts, one historian and two Dutch doctors
9 about his physical injuries.
10 JUDGE KARIBI-WHYTE: Actually, what worries
11 me is your attitude towards a report. Now, if you
12 refer to the order of the Trial Chamber of the 25th of
14 MS. McMURREY: Yes, Your Honour, I remember.
15 I don't have it in front of me, but I believe the Court
16 ordered that any reports that I had, I had to make
17 available to the Prosecution. I don't have --
18 JUDGE KARIBI-WHYTE: And you have not called
19 for any reports?
20 MS. McMURREY: Your Honour, I am calling for a
21 report when he completes his evaluation. Until he is
22 completed, I can't ask him to write a report. He will
23 finish this Friday with his evaluation of Mr. Landzo.
24 At that point, if he writes a report, I will give it
25 directly to the Prosecution. She has all other reports
1 that I have in my possession. I don't believe that
2 under the rules of procedure or the rules of evidence
3 in this Court, I have seen any rule that makes it
4 mandatory for --
5 JUDGE KARIBI-WHYTE: Well you can disobey
6 that. You can disobey the order because no rules have
7 made it mandatory.
8 MS. McMURREY: Well, Your Honour, if I have
9 the report made, I will give it to you.
10 JUDGE KARIBI-WHYTE: Not making it
11 mandatory. But that's why I say you are free to
12 disobey and not send any reports.
13 MS. McMURREY: I am not sure that I understand
15 JUDGE KARIBI-WHYTE: Yes. Because if there
16 are no compulsory rules and the Trial Chamber makes an
17 order, as you have said, you're entitled to disobey
19 MS. McMURREY: Your Honour, I am not trying
20 to disobey.
21 JUDGE KARIBI-WHYTE: -- the order that you
22 are required to submit any reports.
23 MS. McMURREY: Your Honour, my interpretation
24 of the order was to turn over all reports in my
25 possession. If I have a report in my possession, I
1 will certainly give it to the Prosecution.
2 JUDGE KARIBI-WHYTE: Then you say so. That
3 you don't have any reports in your possession. That's
4 a short way of telling them that I haven't the reports
5 you're asking for.
6 MS. McMURREY: I have given them the reports
7 of Dr. Leewuwen and Dr. Lagazzi.
8 JUDGE KARIBI-WHYTE: Those are even experts
9 nominated by the Trial Chamber itself.
10 MS. McMURREY: Yes, Your Honour. I have
11 given them all supporting data too of Dr. Loga, Dr.
12 Rorta Deman (phoen), Dr. Somalevic (phoen) and any
13 other reports that these experts relied upon, I have
14 disclosed to the Prosecution.
15 JUDGE KARIBI-WHYTE: I suppose that is what
16 you should say. But not challenging the order of the
17 Trial Chamber that no rules supports the order of the
18 Trial Chamber, then you should know what to do as
20 MS. McMURREY: Your Honour, I am not
21 challenging the order of the Court.
22 JUDGE KARIBI-WHYTE: That's what Counsel
23 should normally do. If you are convinced that the
24 order is not supported by any rule of Court or any
25 statutes, you're not obliged to obey and you know what
1 to do in that circumstance.
2 JUDGE JAN: So you file the reports and then
3 you see what you can do.
4 MS. McMURREY: I have filed them. They have
5 them in their possession.
6 JUDGE JAN: You said Dr. Gripon is still to
7 file his report.
8 MS. McMURREY: He just arrived last night.
9 JUDGE JAN: File his report and then see.
10 MS. McMURREY: You mean he won't be
11 designated until after he files his report. I just
12 want to bring to the Court's attention that two
13 Prosecution witnesses, expert witnesses, testified
14 without reports.
15 JUDGE JAN: Maybe after he files his report
16 you find he has nothing to say on the case.
17 MS. McMURREY: Well, Your Honour, that could
18 be. After he reports to me on Friday, I might say,
19 "Don't write a report and go home." I am not sure.
20 JUDGE JAN: Don't ask us to make an order at
21 this stage when you haven't got a report.
22 MS. McMURREY: I understand now. Thank you
23 very much for explaining it to me.
24 JUDGE KARIBI-WHYTE: That's really unfair
25 matters on what you would be producing.
1 MS. McMURREY: So the other experts that have
2 provided reports, I assume that there's not going to be
3 any objection from the Prosecution on designation of
4 those experts. And as soon as Dr. Gripon has completed
5 his evaluation and supplied a report, we will bring
6 this issue up again for designation of expert. Now I
7 am clear on that and I appreciate that.
8 JUDGE KARIBI-WHYTE: Ms. McHenry, what's your
10 MS. McHENRY: Certainly we have no opposition
11 to Your Honour's waiting to decide on Dr. Gripon until
12 we've seen the report. I won't speak to that. I do
13 want to just briefly speak to sort of the other, as I
14 understand it, approximately eight expert witnesses
15 that the Defence is going to call. And I will also
16 clarify what Ms. McMurrey said is that in addition to
17 the expert witnesses she just mentioned, I have been
18 informed that there are a number of doctors who were on
19 the expert witness list, I believe two or three, who
20 she still intends to call, but she states that they
21 will be called as fact witnesses rather than as expert
22 witnesses. I am not exactly sure how these doctors can
23 testify about facts without giving their medical
24 opinion and so we may well be objecting to those
25 persons testifying as fact witnesses.
1 With respect to the mental health witnesses,
2 in addition to Dr. Gripon there are two other doctors,
3 and the Prosecution does not object to her calling
4 them. Although this is first we've heard that she is
5 going to have them do additional evaluations and,
6 therefore, presumably, have additional information and
7 do additional reports.
8 Once again, this gets into the entire idea of
9 how can the Prosecution sort of be prepared to
10 effectively cross-examine and do our own research and
11 potentially get our own experts when at, you know, this
12 extensive time already into the Defence case we're
13 still being notified of additional experts and
14 additional witnesses.
15 In addition to the expert witnesses, the
16 Defence has now indicated that they wish to call two
17 additional witnesses as to physical impairment. And
18 again, as the Prosecution stated in its response, we
19 don't even know what, in effect, this Defence is. Your
20 Honour's order very clearly states that the Defence has
21 to give a statement as to what the expert is going to
22 testify to. Given the specialised nature of medical
23 testimony, we do not believe that a three word sentence
24 saying their expert will testify about Mr. Landzo's
25 hand and his opinion about that or his respiratory
1 problems provides the Prosecution or even the Chamber
2 sufficient information to know whether or not this
3 testimony is relevant. And certainly does not allow
4 the Prosecution to prepare.
5 We want to make sure that we are not in a
6 position that after the testimony of an expert witness,
7 we do not want to have to be in a position of asking
8 for some sort of recess while we then do our own
9 research or get our own expert before we can
10 effectively cross-examine. So we have raised these
11 issues at an early date so that when these experts are
12 called, if they are called, things can happen
13 expeditiously. But we believe that the Defence has not
14 complied with Your Honour's order about giving a
15 statement about the subject of the testimony.
16 Similarly, I will just again, there's also a
17 historian who is going to talk about psychology. And
18 again, with respect the that, the Prosecution noted
19 that the Defence has stated that they are going to call
20 a historian. Their only description of what this
21 witness is going to testify about is, "He will testify
22 about the psychology of the ethnic groups and
23 individuals caught up on the war and international
24 humanitarian law." Again, the Prosecution feels this
25 is not in compliance with Your Honour's rule. And
1 certainly, the Prosecution believes that we must have
2 more information to know whether or not we wish to file
3 a motion excluding it as irrelevant or as the expert
4 being unqualified to testify. Or, if it is something
5 relevant and it is something within the expert's
6 expertise, we are going to have to be able to do some
7 research beforehand. So, in all respects with respect
8 to all their expert witnesses, the Prosecution believes
9 the Defence has not complied with this Court's order
10 and it will result in this proceedings being
11 unnecessarily delayed, inefficient and really unjust to
12 the Prosecution. Thank you.
13 MS. McMURREY: Your Honour, if I might
14 respond just for a moment. The request for designation
15 of the Dutch doctors, in my opinion, satisfies the
16 Court's order as far as giving them a statement at the
17 intended testimony. It's clear, number one, Dr.
18 Lammers; not only he is a Dutch pulmonary specialist,
19 who has examined and conducted tests regarding Mr.
20 Landzo, he will offer evidence regarding the type of
21 illness and extent of damage to the lungs. He will
22 further be asked to state his opinion regarding the
23 ability of Mr. Landzo to perform the acts alleged in
24 the indictment. I don't know how many clearer I can
1 And Dr. Haeseker, his explanation is just as
2 clear. And if the Court will please kindly compare
3 this explanation to the one paragraph explanation that
4 the Prosecutor gave all Defence attorneys when
5 Professor Economides came to testify, this is much
6 clearer and much more specific. And of course Dr.
7 Economides and Dr. Gal both testified without any
8 report supplied to the Defence at that time. And I
9 believe that I have done -- the Defence of Esad Landzo
10 has worked hard to comply with the orders of the Court
11 at this point. Coming from behind the eight ball as we
13 JUDGE JAN: Your defence is going to be that
14 considering his state of physical health, the acts
15 attributed to him could not have possibly have been
16 committed. Is that your defence?
17 MS. McMURREY: That's is really, basically,
18 part of a defence, yes, Your Honour. It's not that all
19 acts --
20 JUDGE JAN: Therefore, you filed the reports
21 of the experts?
22 MS. McMURREY: Yes, Your Honour, Ms. Boler
23 just whispered in my ear that these doctors will have
24 their reports this week.
25 JUDGE JAN: We will consider your motions
1 after we get to the peoples' reports and Ms. McHenry
2 has examined them.
3 MS. BOLER: Your Honour, if I might, I am
4 Nancy Boler. I would to just like to add one thing.
5 Dr. Lammers is going on holiday on June 16th. He told
6 me we would have his report before he left. The other
7 doctor, the hand specialist Dr. Haeseker, is currently
8 on holiday and he's going to be gone another week and a
9 half or so. And as soon as he returns, I'll have him
10 get on that right away. When Ms. McMurrey said "this
11 week," I just needed to correct that.
12 JUDGE JAN: Now the Defence is becoming
13 clear, that these acts could not have possibly been
14 committed and you want to examine the expert in that
16 MS. McMURREY: Yes, Your Honour.
17 JUDGE JAN: It's not a play for diminished
18 liability , it's a play of impossibility.
19 MS. McMURREY: Some of the acts it would be
20 an impossibility and some of the acts it would a
21 diminished possibility. So there are so many different
22 allegations under the Prosecutor's indictment that it
23 would be different level for different acts.
24 JUDGE JAN: Let's have these reports first.
25 MS. McMURREY: Your Honour, I have a question
1 regarding that because I am not clear and so that I
2 don't have a mistake before I stand up again in this
3 Court, is it my understanding that the Court will not
4 designate an expert without a written report first?
5 JUDGE JAN: Expert is fair enough, but
6 relevancy is another matter.
7 MS. McMURREY: So he can be designated as an
8 expert via his curriculum vitae attached, but the
9 relevancy of his testimony needs to be determined by
10 the Court from his report?
11 JUDGE JAN: Naturally. Obviously they are
12 not going to talk about eyewitness accounts. They are
13 going to give their opinion with regard to certain
15 THE INTERPRETER: Microphone, please.
16 JUDGE JAN: They are to give their report
17 with respect to certain matters based on their
18 opinion. So let's see what they have to say.
19 MS. McMURREY: So every expert --
20 JUDGE JAN: Calling these expert witnesses is
21 going to cost the Tribunal a lot of money. We want to
22 be sure that their evidence is relevant. Obviously, I
23 mean there's no dispute that you're calling them as
24 experts. You're not calling them as fact witnesses.
25 MS. McMURREY: That's correct.
1 JUDGE JAN: Let's have a look at these
2 reports which they have prepared.
3 MS. McMURREY: Is it my understanding, they
4 have to prepare a report before they're allowed to
6 JUDGE JAN: They should file a report because
7 before you ask us to call them here, they're no doubt
8 experts. But they are to come here and we want to be
9 sure of the relevancy of their evidence. That is all.
10 MS. McMURREY: I just wanted, for the record,
11 to state that the Prosecution didn't have reports for
12 two of their experts.
13 JUDGE KARIBI-WHYTE: This is what I wanted to
14 correct when you continue repeating that statement.
15 Before the order of 25th January 1997 was made, a lot
16 of arguments was made as to the desirability of having
17 a report. Now, the real reason is to ensure that the
18 expert is coming to say what he knew about the area of
19 expertise and that that area is relevant to the
20 situation in which he has been invited to testify, his
22 Now when somebody is called to testify about
23 nationality, I don't think any reasonable lawyer knows
24 what nationality is. When he's coming to give you
25 expert testimony on the nationality of the people, all
1 it wanted you to know is that the nationality involved
2 in the situation in which these people found
3 themselves, not for Dr. Gal. It was very familiar.
4 Nobody even asked for a report and nobody even needed
5 it because we knew what he was coming to testify
6 about. So when you continue comparing situations, I
7 began to wonder whether that is the way legal practice
8 is done. Because every lawyer deals with a fact
9 situation facing him. And you don't bring comparisons
10 which in most cases you know are not on the same
11 basis. And you better forget it and face the situation
12 in which you find yourself and argue towards
14 Now if you bring the present expertise you
15 want to call now, the matter of physical impossibility
16 or reduced physical possibility, this is what you are
17 trying to show. Now, I suppose it's a fairly strange
18 type of argument. Your client doesn't say he's lame.
19 He doesn't say that he has a weak hand. Most
20 asthmatics do so many physical things, what you are now
21 trying to put forward, the Defence you are putting
22 forward is that your client who has short breath cannot
23 do certain things in certain situations. We're not too
24 sure what type of medical expertise is related to it.
25 We should need to know what this doctor is likely to
1 come to testify.
2 I didn't think it was anything unreasonable
3 for a Trial Chamber to ask and to pass on to the
4 Prosecution. If the doubt is that this is --
5 obviously he is not a fact witness because when it
6 comes to whatever physically he inflicted on people,
7 there are fact witnesses who to come to say they saw
8 him do it. What your expert witness is coming to say
9 that he is incapable of doing this. Or perhaps he
10 cannot do it with such a ferocity. These are the
11 things you're trying to say. In that regard, the
12 expert people need something to guide them if they have
13 to challenge the matter.
14 MS. McMURREY: I just have to say that, you
15 know, before the Court has heard the defence, you've
16 already stated it is a strange defence and I don't --
17 JUDGE KARIBI-WHYTE: It is.
18 MS. McMURREY: I don't believe it is a
19 strange defence, I think it's a valid defence.
20 JUDGE JAN: You file the reports and we'll
21 have a look at it. And as your learned colleague has
22 said, she's expecting the reports within two weeks. So
23 let the reports be filed and then look at the motions.
24 MS. McMURREY: Okay, Your Honours.
25 JUDGE JAN: Your Defence will be given full
2 JUDGE KARIBI-WHYTE: Makes one to look into
3 it very critically and be satisfied that it is
5 MS. McMURREY: My only argument at this
6 point, not arguing with the Court at all, is that, as
7 far as the equality of arms goes, the Prosecution --
8 the Court now understands why I am calling these
9 witnesses as much as they understood why the
10 Prosecution was calling Economides. So, therefore, in
11 the equality of arms issue, I don't believe that I have
12 to offer any more in order for him to be able to
13 testify. It's clear that his testimony is relevant,
14 but to satisfy the Court, I will give any documents
15 that I can at this point and I will provide the
17 JUDGE JAN: We gave you long adjournment to
18 get yourself prepared for cross-examination. We don't
19 want this to happen now.
20 MS. McMURREY: I don't want it to happen
21 either, Your Honour. I am ready to go home too.
22 JUDGE KARIBI-WHYTE: You're the manager of
23 your own case. Nobody stops you. But we're also
24 entitled to know why the case has been so managed.
25 We're entitled to know.
1 MS. McMURREY: I will do my best to make sure
2 that the Court knows why --
3 JUDGE KARIBI-WHYTE: Perhaps Counsel, is as
4 you mean that, the Trial Chamber is not interested in
5 the case of the accused persons. That would be very,
6 very wrong to think. Because a Court is not interested
7 in finding guilt as much as it is interested in finding
8 innocence. All the facts should be placed before it
9 for it to decide what the true position is.
10 So if it is necessary, the rules are very
11 clear, enabling the Court itself to call witnesses if
12 it finds it necessary in the interest of a Defence or
13 even of the Prosecution. It's entitled to do so.
14 MS. McMURREY: I have certainly have never
15 thought that the Court wanted anything other than
17 JUDGE KARIBI-WHYTE: I have heard too much
18 about the equality. It's like most Defence counsel,
19 it's only equal when it suits their way. No, but that
20 is not equality. Equality is putting the scales on an
21 even keel.
22 MS. McMURREY: I thank you. I think that's
23 all I have until I get these reports for the Court.
24 And I hope that the Court will consider all of these
25 expert witnesses that I have listed necessary for the
2 JUDGE JAN: Certainly after you file the
3 report. Certainly, we'll consider you.
4 MS. McMURREY: Thank you.
5 JUDGE KARIBI-WHYTE: I think this is all we
7 MS. McMURREY: Your Honour, I have -- I'm
8 sorry, there's another matter before the Court that I
9 had asked for oral argument on, but I spoke to Ms.
10 McHenry this morning and she said she is not prepared
11 to respond to it and she would like more time. That is
12 Esad Landzo's submissions regarding diminished or lack
13 of mental capacity. It's most important that for the
14 Defence we get some kind of definition on this as soon
15 as possible because we can't determine what burden we
16 have or what standards we have to meet in the Defence
17 case until this is resolved. I told Ms. McHenry this
18 morning, but I certainly agree to allow them more
19 time. I understand it's a difficult legal issue to
20 deal with. I would ask the Court that maybe before we
21 start on June the 22nd, if we could determine this
22 issue, I would be better prepared for the first week in
23 July to make sure that I am ready to present evidence.
24 JUDGE KARIBI-WHYTE: The question of the
25 diminished responsibility depends on, perhaps, the
1 state of mind or the medical aptitude, which, perhaps,
2 expert witnesses might have disclosed in their
3 examination. It's only part of the Defence case,
4 except if the Prosecution wants to use it. It's part
5 of the Defence case for the purposes of determining the
6 extent of liability or responsibility.
7 MS. McMURREY: My question, Your Honour, is
8 that until we know what the definition is that we're
9 dealing with, whether the burden of proof shifts to the
10 Defence and whether the standard of proof at that point
11 is by preponderance of the evidence.
12 JUDGE JAN: The burden is obviously on the
13 person who takes it.
14 MS. McMURREY: -- jurisdictions, that we need
15 to know which one this Court will adopt before we go
17 JUDGE KARIBI-WHYTE: Ms. McMurrey, all
18 through the trial the burden of proving guilt stays on
19 the Prosecution until the end. If you plead diminished
20 responsibility and you prove that, it does not go
21 towards innocence. It merely shows that your
22 responsibility for committing the act is diminishing to
23 the extent to which you have proved the extent of his
24 mental responsibility.
25 MS. McMURREY: Whether his affirmative
1 Defence negates one of the elements that the
2 Prosecution has to prove.
3 JUDGE JAN: You can take the quantities of
4 circumstances appearing in the Prosecution's evidence
5 itself to show that it is a case of diminished
6 liability. You have a right to depend upon
7 circumstances appearing from the evidence of the
8 Prosecution itself. Otherwise, the burden is on you.
9 JUDGE KARIBI-WHYTE: Stays on them.
10 JUDGE JAN: Or diminished liability. But you
11 can take it upon them in discharging the burden upon
12 the facts or circumstances appearing from the evidence
13 of the Prosecution itself. You have that advantage.
14 JUDGE KARIBI-WHYTE: It does not go to
15 acquit, that's one thing you will know. Diminished
16 responsibility doesn't go to that.
17 MS. McMURREY: It lists it in the statute as
18 a defence which means it's not simply mitigation of
19 punishment in this Tribunal. It's a defence.
20 JUDGE JAN: The burden is always on the
21 Prosecution. But if you want to take a plea of
22 diminished liability, you can of course take advantage
23 of the evidence of the Prosecution itself in that
24 regard, but the burden of proof is on you.
25 MS. McMURREY: My one further question on
1 that, the burden of proof shifts to me to prove that he
2 has diminished mental capacity. But what is the
3 standard of proof at that point?
4 JUDGE JAN: All you have to do is create a
5 reasonable doubt.
6 JUDGE KARIBI-WHYTE: By probabilities.
7 JUDGE JAN: To raise a reasonable doubt, this
8 might have happened.
9 THE INTERPRETER: Microphone, Your Honour.
10 MS. McMURREY: I cited British law.
11 JUDGE JAN: I am citing the British law
12 because that's the law in which we were trained.
13 MS. McMURREY: It says that when the burden
14 shifts to the Defence -- thank you. I just wanted to
15 make sure that it was a civil burden. I didn't have to
16 prove beyond a reasonable doubt.
17 JUDGE KARIBI-WHYTE: No.
18 MS. McMURREY: Thank you, Your Honours, it's
19 clear to me now. And if the Prosecution would still
20 like to respond, I think I have heard from the Court
21 what I need to form my Defence.
22 JUDGE KARIBI-WHYTE: If you want clarity or
23 equality as you're asking of every issue, then it
24 should also prove your reasonable doubt because
25 that's --
1 MS. McMURREY: It's not equality of arms under
2 that circumstance, Your Honour.
3 JUDGE KARIBI-WHYTE: Here it is a civil
5 MS. McMURREY: Okay. I thank you for
6 listening to me because I just needed that definition
7 to proceed. Thank you.
8 JUDGE KARIBI-WHYTE: Yes, Ms. Residovic.
9 MS. RESIDOVIC: Your Honours, you have
10 suggested that the discussion on our motion on June 2nd
11 be postponed. But from our conversation with Ms.
12 McHenry, we understood that maybe there's a response to
13 our motion already. And if we ask that during the
14 break we could see the decision and so that we have
15 time to discuss it amongst ourselves. And also this
16 morning, you have issued a request for subpoena, so
17 that they could be here on the 11th of June so that we
18 could be able to see them here as witnesses. If the
19 chamber would accept our proposals, maybe after the
20 break we could return to them.
21 JUDGE KARIBI-WHYTE: Actually, I am seeing
22 this for the first time now. So I don't really know
23 what it contains.
24 MS. RESIDOVIC: That's why we suggested for a
25 pause and then we could state our opinion on the 2nd of
1 June document. But I believe we could have our opinion
2 on it after the break. And then during the break, you
3 would also have time to see our motion submitted this
4 morning, so that maybe we'd have an opportunity to
5 discuss it during the day.
6 JUDGE KARIBI-WHYTE: I think we'll be able to
7 have a break now and come back at twelve.
8 MS. RESIDOVIC: Thank you, Your Honours.
9 --- Recess taken at 11.05 a.m.
10 --- On resuming at 12.00 p.m.
11 JUDGE KARIBI-WHYTE: Now, the Trial Chamber
12 has considered the ruling, considered the motion from
13 Delalic for the issue of subpoenas in respect of two of
14 its witnesses against the 11th of June.
15 We've considered the case as a whole, the
16 application, which is not in isolation with what has
17 been going on in the Defence case, and we think that
18 the application has come too late, because when we made
19 that Ruling in respect of the lists submitted to the
20 Trial Chamber, which was phrased in two ways: The
21 first is 1 to 7, the next 8 to 14, and indicating that
22 the lists of witnesses 8 to 14 are unable to appear
23 until the 22nd.
24 We directed Counsel to assure that all the
25 witnesses were called by the end of this week. We made
1 that order. And there was ample time to have applied
2 for any subpoenas at that time. And we indicated in
3 that oral ruling, which we confirmed in our ruling
4 yesterday, that at the conclusion of the last witness
5 Counsel should decide to close the case of the first
6 accused. We made that very clear.
7 Now, it was during this period that Counsel
8 appealed against that ruling and had all opportunities
9 for asking for subpoenas, which was inevitable at that
10 time, knowing that it was necessary for Counsel to get
11 its witnesses here. But they did not do so. Counsel
12 had waited until yesterday, and then the application
13 took for a subpoena was submitted this morning.
14 The Trial Chamber finds it difficult to
15 conceive how the application for subpoena, which is
16 made today, is intended for witnesses outside the
17 jurisdiction and for evidence within the week. In any
18 event, what one was considering is for Counsel to close
19 its case and not to lead new evidence. And for the
20 reasons the Trial Chamber has given, we did not think
21 it was reasonable to grant the application. The
22 application is refused.
23 We still have before us the motion requesting
24 procedures of final determination of charges against
25 the first accused. The Prosecution has reacted to that
1 and the Trial Chamber will be able to hear argument on
2 that motion. That is a motion pending.
3 This is our ruling.
4 MS. RESIDOVIC: Your Honour, I regret the
5 fact that you have decided the previous motion without
6 our having presented the arguments that we were guided
7 by, but since that is the ruling of the Court, we
8 accept it as such.
9 JUDGE KARIBI-WHYTE: An application for a
10 subpoena -- I know why you are asking for a subpoena.
11 You have given your reasons in there. It doesn't need
12 any further persuasion. It's not opposed and I know it
13 will not be.
14 MS. RESIDOVIC: But there was a previous
15 procedure followed in other subpoenas where oral
16 arguments were presented, and that is why I said this.
17 JUDGE KARIBI-WHYTE: It's not necessary.
18 It's not necessary. You've given sufficient reasons
19 why the subpoena should be granted.
20 MS. RESIDOVIC: Your Honours, on the 2nd of
21 June, as you know, with the arguments of the Defence,
22 we sought that the procedure regarding our defendant,
23 Mr. Delalic, be continued in keeping with Article 85 of
24 the Rules of Procedure and Evidence before this Court.
25 In view of the fact that the Prosecution has finalised
1 a presentation in respect of their case in respect of
2 our client, and after the Appeals Chamber has decided
3 our appeal on the possible continuation of the
4 presentation of the Defence case, we will also be
5 completing the presentation of our case in the Delalic
7 We believe that all our argumentation is
8 grounded. In view of the fact, in the meantime, we
9 have received the Prosecutor's response to our
10 application, I should like to, without repeating what
11 we have already said in written form in seeking this
12 particular decision from the Trial Chamber, I should
13 like to present the position of the Defence regarding
14 the reply of the Prosecution, which we received an hour
16 The first argument of the Prosecutor
17 concerning our request is that we are asking again for
18 a separate trial to be conducted, that we are seeking a
19 separate procedure, a separate trial for Mr. Delalic,
20 which request of the Defence was also filed in 1996,
21 and that it was considered with all due form and
22 decided by this Chamber.
23 In connection with a particular argument of
24 the response, I should like to emphasise that we did
25 not ask for a separate trial, although the Defence, if
1 there is a conflict of interest, is entitled to seeking
2 such a separate trial in any stage of the proceedings.
3 But we did not. We have not asked for a separation of
4 trials, because we consider it not to be necessary
5 because all the conditions now exist for the consistent
6 application of Rule number 85. Because the Prosecution
7 has presented its case, the Defence has presented its
8 evidentiary case, and Rule number 82 says that the
9 accused will be entitled, at the joint trials, the same
10 rights which they would have if they were -- as if they
11 were tried separately.
12 So our position is that availing ourselves of
13 these rights, namely, that as if our client was being
14 tried separately, we propose that the Court bring the
15 decisions and the orders as we proposed in our motion.
16 Namely, first of all, that the Prosecutor
17 should be called upon to present evidence, rebuttal
18 evidence, if any, and then that we are invited to
19 respond and to present any rejoinder evidence, if we
20 have it, and then the Chamber, if it feels that it
21 should present some evidence, also do that. And after
22 that, call upon the parties to present their final
23 arguments. And then, in keeping with the rules of this
24 Tribunal, to proceed to a final decision, in respect of
25 Mr. Delalic.
1 Owing to these reasons, we feel that the
2 response given to our motion by the Prosecutor does not
3 stand, because this motion has nothing whatsoever to do
4 with a possible request for separate trials, because
5 the procedure of the presentation of evidence on the
6 part of both the Prosecution and the Defence has been
7 completed, is being completed at this particular point
8 in time.
9 The following argument, which is given in the
10 Prosecutor's response, is that this would mean an
11 unnecessary delay and duplication of the presentation
12 of the cases in the further course of the proceedings.
13 As opposed to this position of the Prosecution, it is
14 our view that this cannot constitute a duplication or a
15 procrastination of the proceedings, and that
16 Mr. Delalic is entitled to that fundamental right of a
17 speedy and fair trial.
18 If our motion were to be granted, we feel
19 that we would precisely in such a case be economising
20 in terms of the further course of the proceedings,
21 because we would confine the interrogation of every
22 witness by the cross-examination, and we would save the
23 expenses of two attorneys to this court. And the
24 proceedings in general would not be procrastinated
25 because Rule number 85 has to be applied, irrespective
1 of whether it is applied now, in the month of June, or
2 whether it has to be applied by the Court later, after
3 all the cases have been presented.
4 So this stage of the proceedings has to be
5 gone through, and we feel that it is only fair, in
6 respect of Mr. Delalic, that this rule be invoked and
7 applied at this particular stage, especially the one
8 granted by the Rule 82 of the Rules of Procedure and
10 In his response the Prosecutor stresses that
11 this request of ours, actually, prevents the Court from
12 hearing additional relevant evidence. I believe this
13 argumentation to be ungrounded. The Prosecutor had its
14 case, presented all the documents which he considered
15 relevant in order -- in respect of our client. We are
16 not preventing the Prosecutor if he has other
17 evidence. In fact, on the contrary, we are offering to
18 him, if he has other relevant evidence in respect of
19 Mr. Delalic, to present it immediately.
20 We also feel that we have not violated the
21 rights of any of the co-accused because, just as we
22 ourselves had the right to cross-examine all the
23 witnesses presented by the Prosecutor in respect of
24 Mr. Delalic, not only in respect of Mr. Delalic, but
25 also in respect of all the other accused, all the other
1 co-accused have also had the opportunity for a
2 cross-examination of the witnesses and to follow the
3 evidence presented by Mr. Delalic's Counsel during his
5 The Prosecutor is now offering us, although
6 he does not directly say so in his reply, he says that
7 -- the interpreter does not have the document. We wish
8 to prevent the Court from the presentation of evidence
9 of the other accused and thereby to judge possibly the
10 evidence given in respect of Mr. Delalic.
11 It is our position that a fair trial
12 observing the provisions of Article 22 -- 82 in
13 connection with Article 20 of the Statute, must be
14 interpreted so that the Prosecutor does not have the
15 right, that after all the defence has been presented,
16 that other evidence be obtained through the
17 presentation of the cases of the other accused, so that
18 all the evidentiary material has to be presented.
19 The Prosecutor has in the process had the
20 occasion to cross-examine all other -- all our
21 witnesses, and I should like to warn the Prosecutor of
22 the provisions of Article 51 of the rules -- the Rule
23 51, which is the proper way to deal with this matter,
24 because otherwise Mr. Delalic's right from Rules 82 and
25 85 of the Rules of Procedure and Evidence are denied
2 We are conducting this proceeding before a
3 Trial Chamber composed of professional Judges, and not
4 before a jury. Therefore, the argumentation adduced by
5 the Prosecutor to the effect that perhaps the
6 evaluation of evidence in respect of Delalic could
7 create certain prejudice in respect of the evaluation
8 of the evidence against the other accused, in our view
9 does not stand because this Chamber is perfectly
10 capable of evaluating every piece of evidence in
11 respect of every accused, and we believe that there can
12 be no problems along those lines at all.
13 The Defence also relies in its motion to Rule
14 B of Rule 87, which reads that the Trial Chamber of
15 first instance shall deliberate and make decisions for
16 every accused as referred to in the indictment.
17 So at the moment when the Court -- if the
18 Court were to deliberate on all the accused, it would
19 have to evaluate separately every piece of evidence in
20 respect of every accused, each accused, in respect of
21 each count of the indictment. So if the Chamber were
22 to do that at this moment, it would be actually
23 exercising its right and carrying out, in fact, its
24 duty to act in that way, without being able, thereby,
25 to violate that right of the other accused, or
1 prejudicing in any way or prejudging their decision in
2 respect of the other accused.
3 As we have stressed in our written motion, in
4 this way we are practically not undermining any of the
5 co-accused, but we ourselves are actually renouncing
6 certain benefits that we might have from the
7 cross-examination of the other defences that would be
8 offered by other Counsel.
9 And, finally, the Prosecutor emphasises that
10 this example, if it were to be accepted, could be
11 something that would be emulated by other accused
12 persons, and that they would -- could call for a
13 similar decision to be brought after the presentation
14 of their cases. We believe that that is a right to
15 which every accused person is entitled, and each
16 accused and his Defence Counsel have the right to avail
17 themselves of whatever has been envisaged under Article
18 82 of the Rules of Procedure and Evidence.
19 Finally, we should like also to stress the
20 following, Your Honours. By brief analysis of the
21 proceedings which have been conducted so far, and of,
22 so-to-speak, a new policy being followed by the
23 Prosecutor in this Chamber, namely, that we should not
24 have proceedings with a number of persons, that we
25 should appraise the individual responsibility of each
1 person, because that is much more efficient and much
2 fairer in respect of every accused individual. We have
3 dealt with some data for -- we have examined, rather,
4 some data, and that data says that Mr. Delalic has been
5 in custody for over -- for some two years, and that it
6 is important that his case be decided as soon as
7 possible, especially in view of the fact, if we have
8 the -- both cases already presented.
9 So along those lines we sought to call a
10 maximum and to present our case as briefly and as
11 efficiently as possible over a short period of time,
12 and to deal with every possible element of his defence.
13 To adduce a few examples, for instance, over
14 the first four months and four days, which the
15 Prosecutor had at his disposal during at the beginning
16 of the conduct, he had 44 court days, and over this
17 period of 44 Court days, 25 witnesses were heard. We,
18 on our part, over a period of two months and ten days,
19 namely, 26 Court days, called and heard 25 witnesses in
20 that period.
21 We had a normal interruption of 21 days, a
22 normal recess, but I should like to stress that our own
23 attitude towards the speed with which the cases are
24 presented, the evidence presented, and the instructions
25 by the Court that we are to economise with time, we
1 really treated that with the maximum of responsibility
2 and managed in a record time, as it were, to organise
3 our defence well.
4 And, therefore, we consider that all this
5 entitles us to seeking from this Chamber, in keeping
6 with Rule number 85, to grant us that this motion of
7 ours in respect of our client.
8 These would be our additional arguments, as
9 our reply to the position of the Prosecutor vis-à-vis
10 the positions in the motion filed by the defence of
11 Mr. Delalic.
12 JUDGE JAN: This application I have before
13 me, you had earlier asked in 1996 that there should be
14 separate trials. That application was rejected. Isn't
15 this application a continuation of your earlier motion
16 which was rejected?
17 MS. RESIDOVIC: No, Your Honours. In our
18 application we actually rely upon -- invoke Rule 82
19 where at joint trials the accused will have the rights
20 which they would have if they had separate trials.
21 Then we also invoke Rule 87, where it says that the
22 first instance Trial Chamber will vote separately for
23 every accusation given in the indictment. And if there
24 is a number of indictees, separate sentences will be
25 handed down and/or -- so Rule 83, which says after the
1 presentation of evidence of both sides, the Prosecution
2 will be invited to give its evidence in rebuttal and,
3 therefore, the Defence in its own rejoinder.
4 So Rules 82, 85, namely, that the person who
5 is in a joint trial has the same right as the person
6 being tried individually, gives us the right to ask
7 that after the Prosecutor has presented its case, and
8 we have presented our case, that the case be finalised
9 in respect of our client.
10 We are not asking for a separate trial. The
11 cases have been presented. We are asking for the
12 finalisation, for the completion of the trial in
13 respect of Mr. Delalic.
14 JUDGE KARIBI-WHYTE: Any reaction on the part
15 of the Prosecutor?
16 MR. NIEMANN: Yes, Your Honour. Your
17 Honours, the application by the Defence, and I am
18 responding to the submissions just made by
19 Ms. Residovic, and then I'll come back and make some
20 general points, if I may. But the application that she
21 explains to us now is really an application for
22 severance, or separate trial, dressed up and presented
23 in another way. It's no more than that. You can't say
24 that that part of the case, which relates to the
25 presentation of the evidence of the Prosecution and the
1 Defence is the trial, and then leave out those other
2 parts of the case, namely, the rebuttal, rejoinder
3 submission and sentence, and say that that's some other
4 creature. Your Honours, it's part and parcel of the
5 same species. It's all the trial.
6 So, in my submission, Your Honour, it is to
7 no avail for Madam Residovic to argue that she has now
8 presented to you something novel and different from
9 that with which you've already disposed of and dealt
11 Your Honours, there is no right for separate
12 trial. There is no such right. And there is no right,
13 under Rule 85, for these events, when you do have a
14 joint trial, for the events, such as rebuttal,
15 rejoinder, sentence, submissions, and so forth, to
16 follow immediately after the other in relation to each
17 separate accused. There is no such right. It doesn't
18 exist. So the support and basis for that would be
19 something I would be most interested to see.
20 These matters follow in the sequence of the
21 trial, and if there is a joint trial, then the
22 Prosecutor can present the evidence jointly in relation
23 to all accused, and has done so, and can likewise
24 respond in rebuttal and in submissions.
25 Your Honours, just a couple of general
1 points. Firstly, in our submission, I restate that
2 Your Honours have ruled they have presented nothing
3 different, or nothing new, to say while Your Honours
4 should reconsider your previous decision, and on that
5 basis alone, Your Honours, we submit that Your Honours
6 shouldn't entertain the application.
7 The interests of the public and the
8 Prosecution, in having a separate trial, is something
9 which is different to what happens in a number of
10 instances when it comes to considerations and fair
11 trials. The reason for that is that, generally
12 speaking, the authority, at least in some -- in most
13 jurisdictions, leans towards a conclusion, that the
14 interests of the public and the Prosecution, in having
15 separate trials -- in having a joint trial outweighs
16 the interests of the Defence in having a separate
17 trial. And so the next principle for consideration,
18 it's generally a question of prejudice, and it's not
19 just ordinary prejudice. The mere fact that the
20 accused can point to some prejudice is not sufficient.
21 For example, in the case of the United
22 Kingdom, the prejudice there that has to be
23 demonstrated is dangerous prejudice. In relation to
24 our own Tribunal, Rule 82 uses the words "serious
25 prejudice." 82B, it refers to serious prejudice.
1 So, Your Honours, the -- in this one and
2 somewhat unusual incident, the right of the public, and
3 the Prosecution, to have joint trials generally
4 outweighs the interests of the accused, separate
5 accused, unless you get to that point of either serious
6 or dangerous prejudice. And neither of that, in any
7 way, has been demonstrated.
8 Indeed, the converse is the case. We have
9 seen with these accused there's been very little
10 evidence whatsoever of conflicts emerging between them
11 throughout the course of this trial. What happens in
12 the back rooms, we don't know, but what we've seen in
13 the courtroom is sufficient, in my respectful
14 submission, to allay any concerns that Your Honours may
15 have in relation to that matter.
16 Your Honours, this is an application for a
17 separate trial, which will not only lead to a separate
18 trial for the rest of these proceedings being separate
19 trials for the accused, Delalic. There is absolutely
20 nothing that they can point to to demonstrate that Mr.
21 Delalic is in any different position to any of the
22 other accused.
23 So Your Honours will be confronted with a
24 situation where you will have now bifurcated
25 proceedings in relation to all accused because, I
1 submit, Your Honours will be able to find no
2 distinction between them. And so that we will have
3 rebuttal evidence on four occasions. We'll have
4 closing addresses on four. We'll have sentencing
5 evidence on four occasions. We'll have sentencing on
6 four occasions. I can assure Your Honours that if we
7 go down this route, these proceedings will be
8 protracted for a very, very long time. In our
9 submission, Your Honours, that on the basis of all of
10 that, this application should be rejected. If I can
11 assist Your Honours with any more, that's my
13 JUDGE KARIBI-WHYTE: I think we've heard the
14 arguments, except if you have anything to add.
15 MS. RESIDOVIC: We just wanted to say the
16 following. We do not look for severance of trials in
17 the sense of the Article 82, paragraph 2. We are
18 speaking of 81, paragraph 1. And the prosecutor said
19 that there's no rule which would enable us to do so. I
20 have stated several and I do not see one which would
21 prevent this Trial Chamber from accepting our
22 proposal. In such a situation, I believe the ruling
23 should be for the better of the Defence or the
25 JUDGE KARIBI-WHYTE: Thank you very much.
1 We've heard your arguments. We'll give our ruling
2 later. We'll give our rulings. I expect that perhaps
3 you might reply to the inevitable consequence of
4 granting your application in the nature of multiplying
5 each accused's right to separate addresses, separate
6 closing addresses and all that follows with each of
7 them, rebuttal for each of them. Instead of rebuttal
8 for all of them as a whole right. This is the only
9 argument of interest and I will look at it and see
10 whether it is desirable in the interest of justice as a
11 whole to consider your application. Thank you. So the
12 Trial Chamber will now rise.
13 --- Whereupon proceedings adjourned at
14 12.40 p.m., to the reconvened on
15 the 22nd day of June, 1998, at
16 10.00 a.m.