1 Wednesday, 30 January 2002
2 [Status Conference]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 3.02 p.m.
6 JUDGE LIU: Call the case, please, Madam Registrar.
7 THE REGISTRAR: Good afternoon, Your Honours. This is Case Number
8 IT-98-34-T, the Prosecutor versus Naletilic and Martinovic.
9 JUDGE LIU: Well, for the sake of the record, may we have the
10 appearances, please. For the Prosecution?
11 MR. SCOTT: Good afternoon, Your Honours. Ken Scott.
12 INTERPRETER: Microphone, please.
13 MR. SCOTT: Good afternoon, Mr. President, Your Honours. Kenneth
14 Scott for the Prosecutor. I am joined by Mr. Douglas Stringer,
15 Mr. Vassily Poriouvaev, Mr. Roeland Bos, and our case manager, Kimberly
17 JUDGE LIU: Thank you very much.
18 For the Defence?
19 MR. KRSNIK: [Interpretation] Good afternoon, Your Honour. As you
20 can see, the whole lineup is here. Kresimir Krsnik as lead counsel,
21 Christopher Meek as co-counsel, and Nika Pinter, our legal advisor. Thank
22 you very much.
23 JUDGE LIU: Yes.
24 MR. SERIC: [Interpretation] Good afternoon, Your Honours. I'm
25 Branko Seric, the Defence counsel for Vinko Martinovic, and my co-counsel,
1 Zelimir Par.
2 JUDGE LIU: Thank you very much.
3 Mr. Martinovic, can you hear the proceedings in a language that
4 you understand?
5 THE ACCUSED MARTINOVIC: [Interpretation] Yes, I can.
6 JUDGE LIU: Do you have anything to complain, or are you in good
8 THE ACCUSED MARTINOVIC: [Interpretation] I'm in good health.
9 JUDGE LIU: You may sit down, please.
10 Mr. Naletilic.
11 THE ACCUSED NALETILIC: [Interpretation] Yes, Your Honour.
12 JUDGE LIU: Can you hear the proceedings in a language that you
14 THE ACCUSED NALETILIC: [Interpretation] Yes.
15 JUDGE LIU: Do you have anything to complain to this Trial
17 THE ACCUSED NALETILIC: [Interpretation] No, I don't.
18 JUDGE LIU: Thank you very much. You may sit down, please.
19 THE ACCUSED NALETILIC: [Interpretation] Thank you.
20 JUDGE LIU: This Status Conference is held by the scheduling order
21 dated the 25th, January 2002 in accordance with Rule 65 bis. The purpose
22 of this Status Conference is, by reviewing the status of the case, to
23 ensure that the proceedings are not unduly delayed, and any necessary
24 measures shall be taken to prepare the case for a fair and expeditious
1 This Trial Chamber is seized with two motions, one of which is
2 from the Defence counsels; namely, the accused's joint suggestion
3 concerning recess after Prosecutor's case, dated the 21st January, 2002.
4 The other is the Prosecution's response to that motion, dated 25th
5 January, 2002.
6 The main items of this Status Conference are as follows:
7 The first one is the admission of the Prosecution documents which
8 was dealt with in the last sitting.
9 The second one is the closing of the Prosecution case.
10 The third one is the Rule 98 bis proceedings concerning with the
11 motion for acquittal.
12 The fourth one and the most important one is the status and the
13 preparation of the Defence case.
14 The fifth one is other issues that both parties may bring to the
15 attention of this Trial Chamber.
16 We have to deal with all those issues one by one. The first one
17 is the admission of the Prosecution documents.
18 As this Trial Chamber ordered orally during our last sitting, documents
19 tendered with the last witness, Sir Martin, we expected a response from
20 Defence counsel to this end by today, but up to now we haven't received
21 any response yet.
22 Yes, Mr. Meek.
23 MR. MEEK: Mr. President, I would like to happily inform you that
24 we delivered that response in writing to Laurent Wastelain approximately
25 one hour ago, with the Registrar's office. The documents for Sir Martin
1 Garrod, they have been given to Laurent approximately one hour ago,
2 approximately 2.00 p.m.
3 JUDGE LIU: Thank you very much. Could I ask: Is that a joint
4 submission or a separate one?
5 MR. MEEK: Your Honour, it is a joint submission. And I would
6 also like to tell the Trial Chamber that we filed a very brief response to
7 the response filed by the Prosecutor regarding Presidential transcript.
8 Thank you very much.
9 JUDGE LIU: Thank you. The second issue under this item is two
10 additional binders of the documents from Zagreb Archive submitted by the
11 Prosecution. We would like to hear the views expressed by Defence counsel
12 concerning those two binders of documents during this Status Conference.
13 Yes, Mr. Krsnik.
14 MR. KRSNIK: [Interpretation] Thank you, Your Honour. We, as
15 directed by you, we will now give you our position on the five points
16 presented regarding the documents provided to us by the Prosecution in two
17 binders. I'll be very brief, and I think that I will just present five
18 major points here.
19 As we heard, the Defence received these documents, these two
20 binders, six days before closing the Prosecution case. And as the lead
21 counsel explained, they have been in the possession of the Prosecution for
22 a long -- much longer period of time. Before next week [as interpreted],
23 we were never served with these documents, and we could not obviously
24 review them or use them, use them either in our cross-examination or -- or
25 in any other way. Also, these documents were never tendered through any
1 of the witnesses put forward by the Prosecution.
2 In addition to these main reasons, which really would prejudice
3 the Defence and our client should these documents be admitted, when we
4 perused the documents and when we studied them, we noticed that some of
5 the documents refer to the events following the time line in the
6 indictment in 1994. I believe that some of them are -- go as far forward
7 as 1995. And my learned colleague may correct me if I'm wrong, some may
8 go as far forward as 1996.
9 The -- Mr. Prelec could have been one of the persons who could
10 have -- through whom these documents could have been entered, but because
11 it was not done, our defence would be prejudiced. Our documents -- our
12 defence did not have an opportunity to verify this document. Each of
13 these documents is -- stand on its own. We cannot receive them in batches
14 and then have them tendered in batches. Each of these documents speaks
15 for itself individually.
16 We know and -- in principle that these documents have come from
17 the Zagreb Archive. This is the only thing that we know. We have no
18 reason not to believe the Prosecutor when he said so, but we know nothing
19 else about them before they were in the Zagreb Archive; they could have
20 passed through the hands of various intelligence services, but we do not
21 know who did what to them but we know that they were in possession of
22 various intelligence agencies.
23 This is the only thing that we can conclude about these Zagreb
24 Archive documents based on what we have heard here in the courtroom, and
25 we therefore cannot agree to the authenticity of these documents.
1 Should these documents be admitted, which the Defence believes
2 would be very prejudicial, the Defence would then at least ask that
3 somebody confirm their authenticity, such as Mr. Prelec, for instance.
4 Just a moment, please.
5 [Defence counsel confer]
6 MR. KRSNIK: [Interpretation] Your Honours, I would like to present
7 another position of the Defence. As we studied these documents in the
8 last few days, we noticed that there were some documents in these binders
9 that were seized from the tobacco station in Siroki Brijeg in 1998. I do
10 not want to belabour this, but in all our motions so far, we have given
11 our submissions about the documents, and I do not want to repeat myself.
12 Also, I do not want to repeat our position regarding the Zagreb documents
13 because we have presented our views both orally and in writing.
14 But in conclusion, let me say this: Should these documents be
15 admitted, my client would be subjected to irreparable damage. And should
16 they be admitted, they should be admitted only through a witness, and the
17 witness should be subject to cross-examination.
18 This is why we very vigorously oppose their introduction into
19 evidence, and this is our position. Thank you very much.
20 JUDGE LIU: Yes. Mr. Seric, do you have any additional point to
22 MR. SERIC: [Interpretation] Your Honours, the Defence of Vinko
23 Martinovic also opposes the introduction of these documents. I am not
24 going to go through all the documents. 2536 to 2856 is the sequence. I
25 just want to add, with respect to everything that my learned friend
1 Mr. Krsnik said, we were only to just glance through these documents. So
2 we are not able to individually object to each of the documents that I
3 have just mentioned. So we are unable to give you specific reasons for
4 each individual document. But generally speaking, we oppose their
5 tendering because, the way they were presented by the Prosecution, we
6 believe that this was done at the last moment in a situation when the
7 Prosecutor also said that they, themselves, were burdened with the inflow
8 of these documents on a daily basis.
9 So if we are to admit these, then we do not know where this is
10 going to lead us. If we are going to admit these, then we don't know what
11 else we can expect, and then the question arises whether this case is
12 closed or not. And I believe this is something that we have to decide in
13 this Status Conference.
14 When is the Defence then going to be able to actually start
15 preparing its Defence if we are going to have to spend so much time
16 investigating the documents that are coming? If these documents are
17 admitted, then we would have to go through each one of them to first
18 confirm its authenticity, even though we believe this is the burden of the
19 Prosecution because of the presumption of innocence. And no exhibit can
20 be an exhibit unless it was properly introduced and tendered and unless
21 its source and providence has been positively confirmed. As my learned
22 friend put it, there will be a shadow of a doubt cast over all these
23 exhibits, and we will not be able to know what is really behind it. Thank
25 JUDGE LIU: Thank you. Could I hear the response from the
1 Prosecution. Yes, Mr. Scott.
2 MR. SCOTT: Thank you, Mr. President, Your Honours. There is no
3 basis - there is no reasonable basis - to exclude these documents. No
4 Rule, no Statute, no ruling of this institution or this Chamber has been
5 violated in any way by the timing or the manner in which those exhibits
6 were tendered. And for them to be excluded now would involve changing the
7 Rules after the Prosecution has rested its case.
8 We have said from the very beginning -- the Chamber will recall
9 back the first day of trial when these issues were discussed at length,
10 and it was made clear and never drawn into question again after that. The
11 Defence had quite knowingly and quite intentionally never sought document
12 discovery in this case under 66(B). They were, therefore, not entitled to
13 a single document being tendered in Court. However, obviously, the
14 Prosecution went far beyond that and provided most of its exhibits
15 substantially before they were tendered in court. Many were tendered more
16 than a year before the trial began. Most were tendered before the trial
17 began. Others were tendered during the trial but usually - with some
18 exceptions - usually from a month to six weeks before they were actually
19 used in court, for example, the Presidential transcripts. They were
20 tendered -- they were given to the Defence at least as early as the 11th
21 of October. They were not tendered until the end of the case before
22 Christmas. And I come back again; none of that was required.
23 This Chamber has never issued a ruling requiring the advance
24 disclosure of exhibits. There is no Rule that requires the advance
25 disclosure of exhibits. There has been no prejudice to the Defence case.
1 Where no right or Rule has been violated, there can be no prejudice. To
2 the contrary, again and again and again, the Prosecution did and has done
3 more than the Rules require. In this instance, these documents were
4 provided a week before they were tendered into Court. Again, that was not
5 required. There was no Rule or no ruling which required the Prosecution
6 to disclose them at all before coming to the courtroom.
7 There is one -- for counsel to say now, now going on some two
8 weeks -- it is now going on some two weeks since they were first provided
9 to the Defence, and for counsel to say, "We really don't know what they
10 are still, we have only glanced at them," is not the fault of the
12 In terms of the foundation that was laid for these documents,
13 Mr. Marko Prelec came twice. Gave similar testimony, frankly, on two
14 occasions. There is no reason, there is no good-faith basis that has been
15 put forward to quarrel or question that these documents indeed came from
16 the Zagreb Archive. Mr. Prelec testified twice about the Zagreb Archive.
17 And if the Chamber really wants Mr. Prelec to come back and say exactly
18 the same things again, that can be arranged.
19 The timing of the -- there was a complaint about two of the
20 documents being beyond the time of the indictment. There are two
21 documents dated after the time of the indictment, but they specifically
22 refer to events in 1992 and 1993. P802.1 refers to events on the 18th of
23 September, 1993. P896 refers to various events taking place during the
24 time between 1992 and 1993. They are not beyond the scope of the
25 indictment in the case.
1 In reference to documents seized, there was one document seized;
2 one seized document on the list. All other documents came from the Zagreb
3 Archive. Mr. Van Hecke, on the first day of trial, on the 10th of
4 September provided extensive testimony to the Chamber about the seizure of
5 documents. Again, that foundation was laid.
6 Mr. President, it is obvious, I think, from my statements our firm
7 position, there is no reasonable basis to exclude those documents, no
8 Rule. No ruling has been violated. There has been no prejudice to the
9 Defence. Thank you.
10 JUDGE LIU: Well, Mr. Krsnik, you want to reply? You have to be
11 very concise because this issue is not the main subject of this status
12 conference. You may proceed.
13 MR. KRSNIK: [Interpretation] Thank you, Mr. President and Your
14 Honours. We must reply to the submissions of the Prosecutor.
15 The way I have understood our oral arguments today in this hearing
16 had to deal with these two last binders. But it seems as if we need to
17 talk about all the other documents which have been tendered so far. I
18 believe that this is not the right forum to revisit the issue of the
19 documents which have been tendered before. What the Defence said is that
20 we received those two binders on the last day of their case in chief, and
21 we presented our position in regard of that material.
22 If you would like to, we can talk about the other documents, too,
23 entered through Mr. Van Hecke and Mr. Prelec. But we do not know how
24 certain documents appeared either at Siroki Brijeg or in the Zagreb
25 Archives. How are we to know that somebody did not deliberately draft or
1 compile these documents in order to damage either the HVO or anyone else?
2 So there could be forgeries. We heard no one except for the investigator,
3 that is, a staff member here, who are partial parties, who only explained
4 to us how those documents came into their possession.
5 As far as the Presidential documents are concerned, I do not want
6 to trouble you with those. But if this Chamber is to admit the documents,
7 entered in this way, whose authenticity cannot be verified in any way, in
8 any way whatsoever except if we are to believe the Prosecution
9 investigator, the Defence will then -- will have no choice but to call
10 another 40 witnesses, maybe, to question the authenticity.
11 We are now in a situation that we now seem to be carrying the
12 burden of proof. The ball has been placed in our court, so now they are
13 telling us if you have any problem with any of those, you find the
14 proofs. Everybody knows that all the documents of the Croatian government
15 have been sealed for the next 30 years. But now we are in a position that
16 we bear the burden of proof here, rather than them.
17 Mr. President, the submissions that you just heard about
18 disclosure are also not true. If I rise to my feet, I am going to tell
19 the truth. I know what I have. I know what we received and when we
20 received it. We were to only discuss the two last binders.
21 And as far as the Presidential transcripts are concerned, we
22 submitted a voluminous motion. And let me just add this, not to take any
23 more time, there is a ruling that you made, which is binding to all of us,
24 that document - the documents have to be tendered through witnesses.
25 These witnesses have to be subject to cross-examination.
1 The same documents which we received at the end of the trial, we
2 could have used, we could have used in our cross-examination of other
3 witnesses had we received them in a timely fashion. And having gone
4 through these documents, we saw a number of documents that are not
5 relevant and now we begin to fear one thing; in addition to being saddled
6 with this burden of proof, this may be opening the door for some other
7 things that may have nothing to do with our case, for instance. And now I
8 cannot tell specifically, but there are documents about forced labour of
9 certain detainees. Several hundreds of pages of such documents. My
10 client's name is not mentioned once.
11 So what do these documents serve? We fear that this case may be
12 used to open up the door for some other proceedings, and we think that
13 that is unacceptable.
14 We have completely -- we have complied with your rulings. We were
15 to discuss the last two binders. I suggest that we only limit ourselves
16 to that, to those two binders, and I believe that this really presents the
17 views and positions of our defence, and I thank you.
18 [Trial Chamber confers]
19 JUDGE LIU: Any questions from the Judges concerning these
20 documents? Judge Clark, please.
21 JUDGE CLARK: Well, my comments are addressed really to both
22 sides. I've listened very carefully to your arguments, and I find that
23 the arguments are very unpersuasive to the Bench. The Defence are very
24 unspecific in their complaints, and I would have thought that, in the last
25 few days, when you had an opportunity to look at the documents, you might
1 have been able to assist us by saying, "We may have put certain questions
2 to certain witnesses arising out of certain documents in a very specific
3 way and therefore we are prejudiced because we have been deprived of this
5 On the other hand, I would have expected that the Prosecution,
6 following the remarks that we made last Thursday, would have explained to
7 us a little more specifically why these documents were not included in the
8 very voluminous binders of documents which we received already or why they
9 weren't referred to by Mr. Prelec when he had prepared a binder of
10 selected documents.
11 I would have liked a little assistance on both sides. You're both
12 repeating the position that you argued last Thursday. We don't seem to
13 have advanced at all, and I'm a little disappointed that you're not making
14 our job a little easier, especially from the Prosecution point of view,
15 because we invited you last week to indicate where you might possibly be
16 prejudiced by the late arrival of these documents.
17 So could you tell us what documents you feel have put you in a
18 worse position than you were had the documents not been tendered at all?
19 JUDGE LIU: Yes, Mr. Krsnik.
20 MR. KRSNIK: [Interpretation] Thank you, Your Honour. Judge Clark,
21 it will be my pleasure to answer.
22 During these past three days -- these past several days, all three
23 of us went through all the documents, but I cannot enter a polemic with
24 myself with regard to these documents. I had to have for a polemic a
25 person here who I would debate this document with.
1 We find all of these documents unacceptable. That's why we did
2 not analyse these documents document by document, because I cannot enter a
3 polemic with a document. I can see where the document is like, where it
4 came from, what it speaks of. It's the only thing I can do because I know
5 nothing else about this document. That is why we have restricted
6 ourselves in this way.
7 We were instructed by you to present our views today rather than
8 in writing, and therefore we decided to present our general position for
9 all these documents, not document by document individually, because what I
10 lack is another party to discuss it with. We find all these documents
11 unacceptable, especially from the point of view that was expounded by the
13 Your Honour, I stand ready to answer any other clarifications you
14 may need.
15 JUDGE CLARK: Mr. Krsnik, what I specifically wanted to know was I
16 know that you object to the documents. You're not very happy with them at
17 all, and you've argued very cogently about your feelings about the Zagreb
18 Archive. Whereas you accept the position that the documents came from an
19 archive - Mr. Prelec was very helpful that way - what you mean is that
20 that doesn't mean that the content of the document is true, and that's
21 something that obviously we have to deal with. But have you any
22 additional objections to the tendering of these documents over and above
23 your general argument in relation to the Zagreb Archive?
24 JUDGE LIU: Could I have a few words on this point? As I
25 understand, those documents could be divided into two categories: One
1 just the lists for the detainees who were taken out for the forced labour;
2 the other documents are some orders or directives with your client's name
3 mentioned specifically on those documents.
4 What's your view towards those two categories of documents? I
5 understand that you mentioned that you might use those lists for the
6 detainees in your case.
7 MR. KRSNIK: [Interpretation] Your Honour, precisely. Thank you
8 very much for your assistance. The Defence has been thinking along the
9 same lines. That is how we looked at these documents as well, documents
10 that were general, documents that specifically pertained to our client.
11 Of course, in our particular case, you do realise that during
12 these past seven days, we did not have the time to check anything out. We
13 said that we would object to the contents, to the authenticity, rather.
14 We don't know whether this is an authentic document or not, whether it was
15 truly written by the HVO or whoever, or whether it was just invented or
16 whether it has been planted through special warfare. That is something
17 that the Defence would have to check out.
18 And then if they were to be admitted, you can imagine what an
19 extra amount of work we would have to put into all of this.
20 I'm just trying to say that if they had been introduced properly
21 and according to your instructions, had we gone through each and every
22 document with a witness, then that would have been different. If a
23 witness could have been -- could have been in a position to say, "I found
24 this at the Zagreb Archives," and that they knew that before that the
25 documents were in the possession of an intelligence service, we could only
1 enter this kind of a polemic with such a witness.
2 We do not believe the authenticity of these documents.
3 Your Honours, we also have an investigation team of our own. We
4 are going to have other documents, perhaps from Zagreb Archives. And if
5 we prove that they are authentic, if we prove that a person who signed
6 this document had actually compiled the document and signed it, then, of
7 course, we would need lists of detainees and things like that, but in this
8 particular way, the Defence cannot accept this.
9 So even when we find a document, including this one, you really
10 have to go into -- look into matters on the ground. You have to see who
11 wrote this, who signed it, et cetera. That is why we are opposing this.
12 As for the documents that we will be using as the Defence, Your
13 Honour, I assure you today that we are not going to present a single
14 document during our case if we do not have in this courtroom a witness who
15 can testify to the validity of these documents, either the author himself
16 or somebody else who can validly prove the authenticity of these
17 documents. We believe that this is the only course in which truth and
18 justice can be pursued. We have never resorted to tricks of any kind nor
19 do we think that this can be done in a court of law.
20 I think you will agree with me, Judge Clark, that in any legal
21 system, it is only the author who can authenticate a document, either
22 accept this or deny it altogether.
23 So that is the core of the matter. Whoever this may be, we have
24 been denied the opportunity of discussing this with a witness.
25 I simply have to say one more thing to you. My learned friend
1 Mr. Scott, with whom we've had a wonderful cooperation and we are indeed
2 thankful to the Office of the Prosecutor for having helped the Defence so
3 often, I have had very little experience with American laws, but to say
4 that documents are authentic without bringing a single person, one single
5 person to say that this is an authentic document, not even that? And now
6 what can the Defence do?
7 Heaven forbid that you accept these documents, because I will have
8 to bring at least 20 people here to refute them, because we do not have a
9 shred of evidence pointing to the authenticity of these documents.
10 Now, I don't know -- I'm not going to talk about Mr. Prelec now
11 because I don't know whether certain parts that I would like to refer to
12 were protected or not, but thank you. I don't want to keep you any longer
13 on this point. Thank you.
14 JUDGE LIU: Yes, Mr. Seric. You have to be very concise, if
15 there's nothing new to add to the argument put forward by Mr. Krsnik.
16 MR. SERIC: [Interpretation] Thank you very much, Your Honour. Of
17 course the question is not whether I have anything new to add, but I have
18 been inspired by what Judge Clark said. The situation is considerably
19 different than it was on the 24th of this month when you all told us, Your
20 Honours, that today we will find out what the deadline would be for us to
21 file motions in writing against these documents.
22 On the 25th, after our meeting with Mr. Fourmy, we were informed
23 by you, Your Honours, that today we would present our views verbally,
24 orally at this Status Conference. So that period that we would have from
25 today would be these four days longer because we would get at least seven
1 days, starting today, I hope. So the difference is considerable. We are
2 talking about the time period from Friday until today and then from today
3 onwards, Your Honours.
4 In order to assist the Court by spelling out the objection in more
5 specific terms, I can say laconically that the Defence of Vinko Martinovic
6 does not accept Document P565.3, 579.1, 599.1, 611.2, 612.1, 664.1,
7 705.1 -- the transcript says 705.1, yes. Then 745.2 and 896.
8 I'm saying this laconically because if I were to object only in
9 this way, Your Honours, this would not be a valid objection. Again, it
10 would just be a partial way of dealing with matters because I would only
11 be dealing with the matters that have to do with my client. It would seem
12 that I am not objecting to the other documents because I'm only narrowly
13 speaking of the interests of my client, and this is the wrong way to do
14 things. Time is brief, and we have been subjected to time pressures from
15 the 3rd of July last year onwards.
16 I do apologise for changing the subject. But the Prosecutor, our
17 learned friend, said that we have been asking for something all the time
18 as if we were trying to obstruct the proceedings. We are not trying to
19 obstruct the proceedings at all. We just want to have a fair trial. So
20 if I were to spell things out this specifically, I think I would be
21 narrowing down the subject altogether, and I don't think that I would be
22 dealing with the problem as a whole but only partially. So we have this
23 objection in principle, in terms of the shortage of time, as we have been
24 stating all along. Thank you.
25 JUDGE LIU: Thank you.
1 Mr. Scott, are you going to answer the questions asked by
2 Judge Clark?
3 MR. SCOTT: I will, Your Honour. I'm not sure of the particular
4 questions the Judge may ask. I'm happy to do so. And I also have two
5 very, very brief responses that I must make to counsel.
6 JUDGE LIU: Yes, please.
7 MR. SCOTT: The fundamental point, one of the false arguments that
8 is being made, Mr. President - and I hope the Chamber understands this and
9 I will try not to belabour it - the argument, for instance, that the
10 Defence has been prejudiced in their cross-examination of witnesses stands
11 on a false premise. They were never entitled to receive the documents at
12 any time, so they could not have been prejudiced in not having them for
13 cross-examination. They were not entitled to have them at all until they
14 were tendered at a particular time in Court.
15 So it's simply a false premise to stand up, "We have been
16 prejudiced by not having these documents for cross-examination" when they
17 were never entitled to have them in the first place. That is a decision,
18 once again, that was presumably an informed tactical decision that they
19 made a long time ago. And this goes back in the record for over a year,
20 when Judge Wald was the Pre-Trial judge and she questioned them, "Don't
21 you want document discovery?" "Do you understand under Rule 66(B)?" And
22 this question was repeatedly put to counsel during the pre-trial parts of
23 this case. And their continuing answer was, "No, we don't want them. We
24 don't want the disclosure." So they cannot complain about this disclosure
1 In terms of the way the documents were presented, Mr. President,
2 the only thing I can say, with all respect, is the Chamber in the last
3 four months or four and a half months have never given the Prosecution any
4 guidance or any indication that the way it was presenting the documents
5 was deficient. If the Chamber had those concerns, we certainly would have
6 liked to have been given some guidance from the Chamber before we rested
7 our case. We always called the witnesses such as Mr. Prelec, such as
8 Mr. Aguirre, such as Mr. Van Hecke to provide the Chamber with as much
9 information as possible as to how the Office of the Prosecutor obtained
10 those documents. The Chamber never asked us -- with the exception of ten
11 specific exhibits, the Chamber never asked us for more information.
12 And again, we have presented all these exhibits consistent with
13 the Tribunal practice to date, this Tribunal's practice over the past six
14 or seven, eight years. And if the practice is now going to change and the
15 rules are going to change after the Prosecution has rested its case, it
16 will be fundamentally unfair, Mr. President.
17 JUDGE LIU: Mr. Krsnik, there should be an end to this argument.
18 I give you one minute. One minute. Yes.
19 MR. KRSNIK: [Interpretation] One sentence. Thank you. Does this
20 mean that the learned Prosecutor will not object to a single document that
21 the Defence will bring from the Zagreb Archives and will we not have to
22 prove the authenticity of such documents brought from there? Thank you.
23 JUDGE LIU: Mr. Krsnik, I don't think that question is proper at
24 this stage.
25 MR. KRSNIK: [Interpretation] Your Honour, perhaps we have not
1 understood each other very precisely. If the Prosecutor's final argument
2 is that this is from the Zagreb Archives and that there should be no
3 further authentication, then the question is right because that means that
4 then when we bring documents from the Zagreb Archives, they will not be
5 questioned in terms of their authenticity. So I think my question is
6 quite logical.
7 JUDGE LIU: At this stage, we are not going to pursue this very
9 After consultations with my colleagues, and taking into
10 consideration of the arguments put forward by both sides, this Trial
11 Chamber will reserve its right to make decisions concerning the admission
12 of those two binders of documents at a later stage. So we close the first
13 item of the agenda.
14 The second one is the closing of the Prosecution's case. We just
15 want to know if there is any new information that the Prosecution would
16 like to inform us concerning the closing of the Prosecution's case. We
17 understand that this issue has been brought up during our last sitting
19 Yes, Mr. Scott.
20 MR. SCOTT: Mr. President, the position of the Prosecution has not
21 changed. As I indicated last week, we have called our last witness and
22 closed our case, subject to the outstanding exhibit matters and to the
23 questions -- any questions concerning the so-called wooden rifle. And
24 that is our position and hasn't changed, Mr. President. We do not rest
25 our case unconditionally. We rest our case only on those two
2 JUDGE LIU: Thank you, Mr. Scott.
3 This Trial Chamber believes that the closing of the Prosecution's
4 case shall be determined according to the admission of the documents, and
5 the Trial Chamber will address the closing of the case in their final
6 written decisions concerning the admission of the documents. It is so
8 The next issue is the Rule 98 bis proceedings. We have been told
9 that the Defence counsel has some intentions to file a motion, which is
10 the motion for acquittal, in accordance with the Rule 98 bis proceedings.
11 Could I hear the Defence counsel on this very issue.
12 Yes, Mr. Krsnik.
13 MR. KRSNIK: [Interpretation] Yes, thank you, Your Honour. The
14 Defence does intend to file a motion for acquittal. It will be very
15 concise; it will deal only with very specific points. And we will try in
16 a brief, concise, legal manner to explain our objections and also our
17 request for acquittal in accordance with the Rule 98 bis proceedings.
18 That would be all. I hope that this was a concise answer.
19 I know exactly what Rule 98 bis deals with. We believe that the
20 Prosecutor has not produced a shred of evidence to support the indictment;
21 and therefore, according to the various counts in the indictment, we
22 believe that the Prosecution have not proven their case at all, and we
23 intend to prove this in a very concise legal manner. Thank you.
24 JUDGE LIU: Yes, Mr. Seric.
25 MR. SERIC: [Interpretation] Thank you, Your Honour. I would
1 like to inform you, Mr. President, and also the members of the Chamber,
2 that the Defence of Vinko Martinovic will also act in accordance with
3 Rule 98 bis and move for acquittal. We will follow the indictment
4 paragraph by paragraph, line by line, and it will really be spelled out,
5 therefore, in very concrete terms. Thank you.
6 JUDGE LIU: Yes, Mr. Scott.
7 MR. SCOTT: Mr. President, my comment would be more in the nature
8 of an observation, and perhaps a suggestion, respectfully. And it's not
9 in any sense to be presumptuous, and I hope the Chamber will not take it
10 that way, or counsel. But Mr. Meek and I and Mr. Stringer will be able to
11 relate to procedure in our practice, in federal practice in the United
12 States. And I hasten to add we all know this is not U.S. Federal
13 practice; and yet, we all inevitably sometimes draw on our
14 past experience.
15 Your Honour, even in the most complex criminal cases in the United
16 States, and I immodestly would say I have been in some very complex cases,
17 with as many documents or more as in this case, at the close of the
18 Prosecution case, there are normally oral motions for judgement of
19 acquittal. There are normally made -- the Defence attorney stands up on
20 their feet, gives a 20-minute, 25-minute argument. The Prosecution then
21 makes an oral response. And about 49 times out of 50, the Judge rules on
22 the spot. And most times, frankly, the motions are denied because the
23 standard -- it's a high standard, from the Defence perspective, with
24 deference to the case put forward by the Prosecution.
25 I just simply suggest, Mr. President, Your Honours, that it may
1 assist -- I think it would ultimately assist everyone -- if the arguments
2 that counsel puts forward -- and, of course, they are entitled to put
3 forward any good faith argument, and certainly it's not for the
4 Prosecution to stand in the way of Defence rights, but I think it would
5 ultimately be better for everyone if the arguments could be focused on
6 specific items and responses could also be very targeted.
7 Now, when Mr. Krsnik first stood up, I was for a moment encouraged
8 because I thought I heard him say initially "our responses will be very
9 specific," and if I can use the word - I got the impression - somewhat
10 surgical. However, then the discussions of both counsel evolved into such
11 language as "we're challenging the entire indictment paragraph by
12 paragraph, fact by fact, the Prosecution hasn't proved anything."
13 And Mr. President, I would just submit that it would be a poor use
14 of everyone's time to basically have to write final briefs now, when the
15 case is halfway over, what essentially may be what we're talking. Again,
16 it's mostly an observation or suggestion. Everyone in the proceedings
17 would be better served if there are good-faith arguments on particular
18 counts or a particular element of a particular charge, if the motions
19 could be directed in that way. Thank you, Mr. President.
20 JUDGE LIU: Mr. Meek.
21 MR. MEEK: Mr. President, Your Honours, as an American counsel, as
22 Mr. Scott has certainly just indicated that he is, I am, Mr. Stringer is,
23 and what we do in the United States is certainly not what we do here, I
24 will agree with that, but I don't believe that we will be filing any type
25 of motion for judgement of acquittal which will be tantamount to a final
2 I would also like to say that, as American counsel, I understand
3 Mr. Scott, and we have in America a thing called an open-file policy. And
4 in that open-file policy, once the documents start coming in, then the
5 file is open. To say that Mr. Scott earlier said we didn't have to give
6 him anything so they are not prejudiced is not true. They gave us
7 everything they had, and then this last week they dumped two binders,
8 disgorged two binders upon us at the very end. And now they say since you
9 didn't have a 66(B) motion, we didn't have to.
10 As American lawyers, we know that, we don't expect to file any
11 long -- we are going to concentrate on the issues we believe are weak in
12 the Prosecutor's case. So if it will alleviate Mr. Scott's fear of filing
13 final briefs, I hope he feels better. Thank you.
14 JUDGE LIU: First of all, I have to remind both parties, this is
15 an International Tribunal - it's not a court in certain countries - so
16 that we have to act in accordance with the Rules of the procedure of this
17 Tribunal, mainly the Rule 98 bis.
18 Secondly, I would like to say that, as we orally ruled last week,
19 this Trial Chamber expects all filings to be precise and directed to the
20 specific charges and the counts.
21 The Defence shall consider that burden lays upon the parties
22 moving for acquittal to provide the Chamber with a clear basis for their
23 motions. The Defence shall therefore provide the Chamber with detailed
24 and specific reasonings. General claims of insufficiency of evidence are
25 not considered to be sufficient by this Trial Chamber.
1 In accordance with Rule 98 bis, the Defence motion is to be filed
2 seven days after the decision of the Trial Chamber has been rendered.
3 That notifies the parties that all the Prosecution evidence has been
4 decided upon and that the Prosecution's case is closed.
5 At the same time, we also would like to remind the Prosecution
6 that response time is reduced pursuant to Rule 127 of the Rules of
7 Procedure and Evidence to seven days - one week - if so decided on this
9 The next item on our agenda is the status and the preparation of
10 the Defence case. We understand after the closure of the Prosecution's
11 case, we'll soon start the Defence case. So the first question we would
12 like to ask the Defence counsel is: What is the status of the Defence
14 Mr. Krsnik.
15 MR. KRSNIK: [Interpretation] Your Honour, as you know, between
16 July of last year and now, the Defence could only focus and deal with the
17 ongoing proceedings day and night. So we have to say that we did not have
18 much time during this phase of the trial to really address the issue of
19 witnesses, but we are turning to that as of today.
20 I am waiting for point four of today's agenda to present all the
21 arguments regarding the relative number of witnesses, depositions, et
22 cetera. I think that we should clarify all those matters in point four.
23 Oh, I'm sorry. My colleagues are just telling me that that is
24 exactly what we are now discussing. I apologise. My misunderstanding.
25 [The Trial Chamber confers]
1 JUDGE LIU: I'm sorry, Mr. Krsnik. You may proceed.
2 MR. KRSNIK: [Interpretation] Thank you, Your Honour. This is
3 really the point that we have been waiting for for quite some time. We
4 believe that it is crucial for the -- in the continuation of trial, and it
5 is crucial to get enough time for preparation, and I'm going to try to
6 really keep it -- to surgically address all these issues; in other words,
7 cut as close to the bone as I can.
8 We have been receiving documents since July of 2001, and the
9 initial witness list was 350. We started dealing with those, and we did
10 not know until the depositions were first taken which of these witnesses
11 would be called.
12 Of course, this is the Prosecutor's right, his tactics. We could
13 not obviously check each and every witness in detail. But before the
14 depositions, we received a list of 30 witnesses. It was whittled away to
15 16, and then we dealt with those. About a week before the beginning of
16 trial, we received a list of 66 witnesses and eventually, I think, that 53
17 or 4 were called. In other words, the list was always subject to change.
18 We learned of this two or three days before the start of the trial.
19 In the period between the depositions and the beginning of the
20 trial itself, as serious lawyers before this serious Tribunal -- Tribunal,
21 we spent one month waiting to see who it was that was going to be called,
22 and this is why we rose to our feet and said we were not prepared.
23 However, we still did the best we could, always wondering whether we did
24 the best or we could have done better. And our general position, which I
25 think is the one that should be shared in this institution, was that the
1 factor of time cannot be the prevalent principle when fairness of the
2 trial is concerned.
3 This is the position that our client has, and I think that it's
4 something which should be shared by everyone. The interest of justice
5 should be paramount. And in order to arrive at justice, we, Your Honours,
6 need time. Please don't misunderstand me. I will be very specific and
7 tell you what time we need for which part of the trial.
8 We cannot serve justice unless we're well prepared. I will not be
9 able to face the son of my client if, let's say, ten years from now - and
10 now I'm taking certain liberty - if there was a document which could have
11 helped his father and I was unable to find it because I didn't have the
13 There are 10.000 binders in the Zagreb Archive. We don't know the
14 exact number of the documents. Perhaps the Prosecution knows because they
15 have ten investigators there every day. The Defence is limited even
16 financially, so we can only hire two people, and they have so far reviewed
17 about 30 per cent, which means 3.000 binders. So we have 7.000 to go.
18 Next there is a sizeable archive in Sarajevo, the ABiH archives,
19 the government, the Presidency of BiH. So far, we have written I don't
20 know how many letters asking for permission to gain access to these
21 documents. So far, we have not received anything, but this access has
22 been allowed to all the lawyers who represent the Muslim defendants.
23 Edina Residovic, Halid Balijagic, and every -- Vasvija Vidovic, and
24 everybody who is representing Bosniak accused were given access to these
25 archives, but not the counsel of Mladen Naletilic.
1 I'm going in the field soon, and if we're unsuccessful, I'm going
2 to turn to you and ask for assistance. However, I believe that reason
3 will prevail and that the Defence of Mladen Naletilic will be given access
4 to these archives.
5 Once we are given access, what are we to expect? How many
6 binders, how many documents, and how much time do we need? It is the
7 investigators' job, but I at least need to have enough information. At
8 the same time, I have to deal with the witnesses that we need to present.
9 The third and most important point, Your Honours, is that -- and
10 again I don't know whether in the American jurisdiction or in the practice
11 of this Tribunal it is the case that they don't need to be objective but
12 only look for inculpatory material. And we heard in this -- during -- in
13 this courtroom that this is the kind of documents that they were still
14 looking for and the kind of witnesses that they were looking for, which
15 means that I have to go to Madrid, for instance, to go to the SpaBat
16 archives. This is hypothetical, of course, but I need to see and find out
17 what documents are there. We had two witnesses here. Perhaps I need to
18 call some other witnesses. I don't know what to expect there, but I would
19 not be following my conscience if I didn't do so.
20 How about ECMM? Each of the ECMM countries who send monitors have
21 their own archives. Is there a central database? We heard two gentlemen
22 from the ECMM who gave whatever evidence they gave, but what about all the
23 other documents signed by Jose -- Jesus and I don't know who else.
24 Mr. Thebault. Where is the central archive?
25 I could not in good conscience do it without really taking time to
12 17 blank pages inserted to ensure pagination corresponds between the French
13 and English transcripts.
1 check all these documents. It's a very large trial. It's a -- we have
2 neglected our families. We have neglected our professional pursuits in
3 our home jurisdictions to focus exclusively on this here. And of course,
4 you understand that all this is being done in the interests of justice.
5 And we will have a much tougher job. The ball has been placed in our
6 court, and our burden has been increased considerably.
7 We will have to present the -- the proof of innocence here. But
8 in order to facilitate matters, in order to be more effective, we have
9 done -- we have conducted comprehensive interviews, and we have had
10 discussions with both the -- our learned friends from the Prosecution and
11 with Mr. Fourmy. We have presented our positions as best we could there.
12 I do not want to belabour this, but I want to be as specific as I can, of
13 course. And I apologise to the interpreters for being fast.
14 The Defence is minded to breaking up their presentation of
15 evidence into two parts, just as the Prosecution did. The one that we
16 believe is the most effective and the fastest was to have depositions
17 taken in Mostar, in the building of the overhauled and renovated building
18 of the higher court, which is fully equipped for taking of these
19 depositions, and our clients -- I should limit myself to my client, but my
20 client will waive his right to be present there. So we need a very small
21 team of people, interpreters and the technical staff. And we propose this
22 because we have 30 witnesses whose examination-in-chief would last between
23 30 minutes and one hour apiece. So we can conclude that we could deal
24 with two witnesses a day just in a single morning, let's say, if we work
25 9.00 to 2.00. As these witnesses live and work there, we would have very
1 little need of the Victim and Witness Unit because they can just go home
2 when they're done.
3 The third and most important point is that we all would like to
4 see this Trial Chamber or this Tribunal appear at the scene where all this
5 happened. Perhaps we could even go to Sovici and Doljani. Of course this
6 would depend on your ruling, but in my discussions with Mr. Fourmy, this
7 was also floated as an idea. I believe that you may be aware of it.
8 So I think that we would deal with about a half of our witnesses,
9 so to speak, in a very expedient manner.
10 The witnesses who I believe would appear in this courtroom would
11 be the ones that I believe Your Honours should hear. There would be about
12 30. I don't have a final list. That would also depend on some of your
13 rulings. But of course we will comply with all the Rules of Procedure and
14 Evidence in providing them.
15 In this group of witnesses, we would have witnesses who would deal
16 with the Background and General Allegations, and we believe that some of
17 these witnesses are crucial witnesses for these matters, and they would
18 also include expert witnesses.
19 It is our estimate that we could comply with all the deadlines and
20 the defence of the first accused, Mr. Naletilic. We believe that our case
21 could be concluded around July 15th. Of course, my learned friend will
22 present his part of case, but I believe that we can comply with all the --
23 with the time line schedule provided by the Trial Chamber.
24 Your Honours, I have been as specific as I can. I wanted to give
25 you an idea of how large this work is that is ahead of us. We believe
1 that, in the light of that, we should start on the 15th of April. After
2 the depositions, we could start on the 15th of May, and I think we could
3 be done by the 15th of July. And again, don't hold me to the day, but we
4 believe that, with all things considered, the whole case could be finished
5 by the middle of September or end of September.
6 And I don't know -- in the interests of justice -- and I may have
7 been using this word a little bit too frequently. I think that in the
8 interest of justice, this time line is adequate. We are not asking for
9 anything that would be outside of the scope of the Statute. We need to
10 have sufficient amount of time, as the Statute provides, and we really
11 have done our best to bring it within the time frame that I presented.
12 And if Your Honours agree with it, it would still place the Defence
13 counsel in the position to really work day and night to comply with it.
14 So we would not waste any time.
15 My colleague is telling me that the 15th of April is when we would
16 start with depositions, not with the trial itself. Your Honour, we
17 believe that if the Defence would have sufficient time to prepare its
18 witnesses, the witnesses would give their evidence in a speedier way. We
19 would not waste any undue time. I would not have to wrestle with
20 witnesses, so to speak, to arrive at what I need and to deal with. I
21 think that it would be much more effective and much speedier for this
23 Your Honour, I need to point out another fact: Some documents
24 that are being forwarded to us from our investigators who are working in
25 the archives, some of these have been submitted but for translation, and
1 we have only received about 10 percent. We don't know what is going to
2 happen with those. We fear that these documents may not be ready at the
3 time of trial because the translation unit needs time to have them
5 We have a suggestion. I am almost certain that the translations
6 are not going to be ready by this time. Perhaps some documents, some
7 shorter ones perhaps, may be interpreted in the courtroom by courtroom
8 interpreters, because we have experience from other trials, and I have a
9 personal experience. Some documents which I have submitted for
10 translation back in September, they deal with some of the -- of our expert
11 witnesses, and they are still not ready. And the documents that we have
12 submitted for our own case are still all pending at this point.
13 I don't want to take any more time, Your Honours. This is as
14 succinct as I could present our positions. And with all due respect to
15 this Chamber, to our profession, and my conscience, I really don't know
16 what my own reaction is going to be, or my client's, if we find out that
17 we are squeezed for time and that we will not be able to prepare
18 adequately. I don't know if I can allow myself, with all my experience as
19 an attorney, to deal with this case which already is a part of history.
20 And it is definitely going to be part of the history of this segment of
21 time if I believe that I cannot allow myself not to be well-prepared for
22 it. We are not to blame for being brought in a situation, and this
23 includes you, that we have been served with an indictment which -- where
24 there are allegations that no witness, no document can really deal with
25 properly. This is -- nothing happened by accident. Nothing just fell out
1 of the sky. Of course, we cannot start with the 15th Century to
2 understand this.
3 But we are forced, given how the indictment has been framed, to
4 present expert witnesses because those of us who lived in this area during
5 these unfortunate years and this terrible war, and our families both in
6 Bosnia and in Croatia may have certain information, but you have it -- a
7 much harder job because you come from different jurisdictions, and you did
8 not live through these experiences. So it may be harder for you to
9 understand everything that happened. And so we are here to try to help
10 you, because we would like to help you to reach as just a decision as is
12 This doesn't concern me. This is the -- it concerns the fate of
13 my client. In order for me to fight for justice, I need time. The
14 indictment, such as it is, requires certain amount of preparation. We
15 need to respond. We need to answer the allegations. This is why, Your
16 Honours, I believe that one month, in the name of justice, is
18 And if I may add something else, Your Honours, the pressure has
19 been great. Nobody -- we talked to other lawyers from other trials, and
20 nobody is subject to such pressure as we have been. We have observed all
21 the deadlines. You have been patient with us. Sometimes we may have been
22 off the mark. We are very grateful for all your suggestions and all your
23 assistance. But the Defence still is not clear as to why such time
24 pressure on this trial. In some other cases, they already have had one
25 month worth of breaks, and we have started practically in parallel.
1 I'm not going to take any more of your time, Your Honours. I,
2 myself, on behalf of my client ask, insist; please, give us enough time so
3 we can prepare adequately. You do not want me not to do my job properly.
4 You do not want me to look as if I don't know my job. I think that we
5 have been correct. I think that we have done all we could to help you
6 reach, to arrive at the truth. And I say the truth such as it is. This
7 Defence will not call any witnesses tu quoque. We are too experienced for
8 that. We are not going to point fingers elsewhere in order to justify
9 certain crimes. Of course, we know that one crime does not justify
10 another crime. We need to focus on whether and what our client did.
11 But as far as the General Allegations are concerned, we will -- we
12 are the least satisfied in the way that part of the indictment has been
13 presented; and without adequate preparation, we are not going to be able
14 to fully illuminate that part. Again, let me tell you, we are going to
15 comply with all the deadlines and all the schedules. And I would want to
16 assure this Trial Chamber that we will be its right hand in our efforts to
17 comply with all the deadlines that you set out for us. Thank you.
18 JUDGE LIU: Thank you very much, Mr. Krsnik, for your
19 submissions. Frankly speaking, I share some of the views you expressed.
20 For instance, we also believe that the interests of justice should be
21 paramount, which requires a balance between the fairness and expedition of
22 our trials. But there are still some questions that we would like to ask
23 you. Maybe we'll reserve it after the break.
24 For instance, up to now, we still don't know how many witnesses
25 are you going to call altogether and how many documents are you going to
1 tender in your case. And as for how to conduct your case, you mentioned
2 clearly that you have not invoked the principle of tu quoque, which should
3 be appreciated by this Trial Chamber, but we could not agree with you that
4 you have to prove the innocence of your client. We believe that your
5 client should be presumed innocent until proved guilty, so there's no need
6 for you to prove the innocence of your client. What you have to do is
7 just to attack the evidence presented by the Prosecutor during their
8 case. If we have some doubts, some doubts beyond a reasonable doubt on
9 those evidence, that would be a successful defence for your client.
10 The second issue: I would like to say that this is an
11 International Tribunal rather than a truce and conciliation committee. We
12 are not interested in political matters. What we are going to address is
13 the individual criminal responsibilities which might involve the fate of
14 your client in this very case. This is the initial response from me. I
15 guess my colleagues may have some other questions to ask you after the
17 So shall we break now, and we'll resume at 5.00 p.m.
18 --- Recess taken at 4.29 p.m.
19 --- On resuming at 5.00 p.m.
20 JUDGE LIU: Yes, Mr. Krsnik. Are you ready to answer those
22 MR. KRSNIK: [Interpretation] Thank you, Your Honour. First and
23 foremost, perhaps an additional bit of explanation in addition to what I
24 have already said today while trying to explain the motion related to
25 Defence preparations.
1 Everything that I said to you today is based on the talks, the
2 exhaustive talks I had with the distinguished Mr. Fourmy. The time I
3 asked for are our absolutely minimal requirements. The Defence is afraid
4 that it simply cannot go below that. Again, I repeat on the basis of what
5 we discussed with Mr. Fourmy. With regard to all other matters, we abide
6 by what we said in the paper.
7 As for witnesses, Your Honour, the Defence would be the happiest
8 of all if they could give the exact number today. We can only give an
9 approximation because we lack some information in this regard. We also
10 need to have some decisions taken by this Trial Chamber and also
11 developments that would be based on that.
12 We can say today in principle, proceeding from the position that
13 we hope that you will take, that the total number of witnesses could be
14 around 60. You will realise that this number is due to the fact that the
15 burden of proof lies with the Defence of Mr. Naletilic with regard to the
16 General Allegations, but we hope our colleagues will help you with this.
17 When we finally hear what your ruling will be, we will be able to
18 tell you what the exact number would be. Because of some of the decisions
19 based on documents will be accepted, you understand that we will have to
20 bring in new witnesses. Also, this number depends on one of the last
21 witnesses. I can't remember his pseudonym now. We were not informed
22 about this witness until we got this person's statement from our learned
23 friend. This was an altogether new development, and we will have to deal
24 with this person separately. But I don't think that the number involved
25 will be more or less than ten if your decisions will be the way the
1 Defence believes they will be; or conversely, the number could go up. And
2 yet if things are altogether different, perhaps it could go down.
3 I shall tell you quite frankly, as I always have been doing to
4 this Trial Chamber, especially because the Defence was never engaged in
5 any kind of tactics or will we ever do that, right now we are in the
6 possession of 20.000 documents that we collected over the past few years.
7 Most of them are from the Zagreb Archives, a vast majority of these
8 documents. As for others, we will have to make do because the Defence
9 simply does not have the kind of possibilities that the Office of the
10 Prosecutor has. And I hope the Prosecutor, my learned friend, will not
11 mind that I am saying this.
12 Of course, we are not going to produce all of these documents
13 here. We will have to group them, and we will have to make a selection as
14 to what we are going to present here. We are still compiling documents,
15 though, because according to our assessment, in 10.000 binders, there
16 could be about 100.000 documents. This is a very general statement.
17 Now we have to look at the Sarajevo archives, so to speak, and
18 also SpaBat, perhaps BritBat, SpaBat. However, I assure you that we are
19 only going to present high-quality documents in this courtroom, and we
20 will try to keep the number reasonable. We hope that we will not be
21 producing more than 1.000 documents in this courtroom.
22 If there are any other questions, I'm prepared to answer them. I
23 don't know if you are satisfied with the answer I have already provided.
24 If you have any additional questions, I'm here to answer them. But this
25 is more or less what we have to say today. But again, as I said, all of
1 this is a statement of principle, because it all depends ultimately on the
2 decisions that you will make, and a great deal hinges on that.
3 JUDGE LIU: Thank you very much, Mr. Krsnik. Could I hear from
4 Mr. Seric on this very point.
5 Mr. Seric, you have the floor.
6 MR. SERIC: [Interpretation] Thank you very much, Mr. President.
7 I am not going to argue now. I'm going to leave that for my closing
9 First, the situation as far as the Defence of my client is
10 concerned: It, of course, is closely linked to what the indictment says.
11 What am I trying to say? The indictment gives the first accused supremacy
12 over the second accused person. It is precisely for that reason that our
13 two Defence teams decided to present the Defence in the same way. That is
14 to say that we have the common allegations in the indictment and the
15 counts in the indictment, and we will try to address these individually
16 and together. Then there are individual counts that will be addressed by
17 the two Defences individually. So the situation is on the basis of this
18 supremacy from the indictment, the Defence of the first accused has taken
19 upon itself a certain obligation, and we are going to help them in this
20 process to deal with background witnesses. That is to say, the Defence of
21 the first accused will deal with these witnesses. We have put ourselves
22 in a waiting position, so to speak.
23 As for the time we need to prepare our Defence is the same time
24 because we cannot and should not act separately from each other. So
25 first, the Defence of the first accused would present their case, as
1 Mr. Krsnik said. It is not only that we accept this; we wholeheartedly
2 support it with the time frames proposed by Mr. Krsnik. He is asking this
3 Trial Chamber, and we support this. And we also kindly ask the Trial
4 Chamber to start on the 15th of April. After the Defence of the first
5 accused is completed, then we would start our Defence. And I cannot tell
6 you exactly when that would be.
7 Your Honours, we have already completed part of the Defence
8 preparations; however, that is insufficient at this point in time. We
9 heard that what remains to be dealt with is a lion's share of the overall
10 work we have to complete. As the Prosecution case is winding up, we see
11 that we have to do a great deal of investigation in the field, and we will
12 have to look for the traces and microtraces, so to speak, at sites related
13 to count 5. The Prosecution says that this is the body of Nenad
14 Harmandic. After that, if we manage to get from the Ministry of Internal
15 Affairs of the east part of Mostar all these traces and microtraces, we
16 will have to undergo expertise. We will have to go through a forensic
17 court expert and also through another court expert. And we hope, with
18 your assistance, Your Honours, that our request put forth to the Ministry
19 of the Interior in Mostar will be met. With your help, I'm saying,
20 because nobody has ever accommodated us there.
21 I don't want to enter any kind of polemic with the OTP, but at one
22 point our colleague speaks of reciprocal disclosure. I repeat today, Your
23 Honours, we had nothing to offer to the Prosecutor by way of evidence.
24 Nobody wanted to accommodate us. We were not in a position to get any
25 evidence whatsoever. Your Honours, we will have to obtain the medical
1 documents that are related to new developments in these proceedings. We
2 did not know about that earlier. We found out only during the proceedings
3 themselves, and we will have to call a psychiatrist as an expert witness
4 because one of the crown witnesses was the one that I just referred to.
5 So we will have to deal with this matter as well.
6 Also, we had to deal with a witness who spoke of a unit that
7 coincided, not in terms of location but in terms of time. It
8 overlapped -- this is the Penavic unit. And this is a new development for
9 us altogether. And we will have to find out exactly what took place
10 within this unit so that we could present this to the Trial Chamber in
11 order to be in a position to distinguish between these things that seem to
12 overlap. That is to say, what our client has done and what was perhaps
13 done by someone else.
14 There is yet another question that has been opened, the so-called
15 issue of wooden rifles. Why am I saying that this is still an open
16 question? The Prosecutor has left open the possibility for these wooden
17 rifles to appear in this courtroom, and then we will have to undergo
18 expertise in this respect to see whether they were forged and whether they
19 were perhaps made after the war.
20 Now, what else do we need in terms of establishing the time that
21 is necessary? Presidential transcripts. I hope you don't misunderstand
22 what I'm saying. We have to -- if you admit this, we will have to contact
23 every one of the persons who took part in these discussions. We will have
24 to ask all these people to testify here, bring them here, because we think
25 this is the only right way to proceed to see whether these are authentic,
1 whether they took part in these discussions at all, whether their words
2 were recorded faithfully, or whether all this is just a pile of -- I'm not
3 going to say what.
4 We heard during the cross-examination of one witness that he knew
5 nothing special about this, so then we will be -- we will have to deal
6 with these 10 or 15 witnesses whose names appear in the Presidential
8 Your Honours, we will perhaps present a proposal, as Mr. Krsnik
9 has already done. Perhaps you come to Mostar to see how long the Bulevar
10 was, how wide it was, and these 70 metres that were allegedly held by my
11 client. You should see what percentage this actually is.
12 Your Honours, good and thorough preparations do not waste time
13 but, rather, help us save time, and I think that this will be the case in
14 the presentation of our evidence as well.
15 Finally, may I say that no matter how contradictory this may
16 sound, it is very difficult for the principles of fairness and of economy
17 with time be kept in proportion. However, I hope that you will take both
18 into account in terms of the time that this Defence needs for preparing
19 their work properly. Thank you.
20 JUDGE LIU: Well, Mr. Seric, the first thing I would like to say
21 is that this Trial Chamber will do its utmost to help you to prepare your
22 case. If you need any assistance from this Trial Chamber, you just make
23 that request. We will do whatever we can in this respect.
24 The second thing I want to stress is that to have the trial
25 conducted fairly and expeditiously is also the right of your client. They
1 have been in the Detention Unit for quite a long time, more than two
2 years. They are entitled to have a fair and expeditious trial.
3 And thirdly, Mr. Seric, you still did not answer the questions
4 that I put to Mr. Krsnik, that is: How many witnesses are you going to
5 call, approximately, and is there any evidence you are going to tender
6 through your witnesses? That's what we want to know at this stage.
7 Yes, Mr. Seric.
8 MR. SERIC: [Interpretation] Thank you, Mr. President. Indeed I
9 omitted to mention this last thing.
10 In our written submissions, the Defence said that it had 80
11 witnesses. However, during our talks and after our talks with our
12 colleague Mr. Fourmy, we came to the conclusion that the minimal number
13 that this Defence needs in order to present its own case to this Trial
14 Chamber, and everything that is important in order to prove the innocence
15 that we have been asserting from day one, the total number, in a word,
16 would be about 50 witnesses. So when I said that the Defence has at --
17 this joint view, if Mr. Krsnik would have 60 witnesses and we'd have, say,
18 60 witnesses, it would be about 120 witnesses. However, this is a
19 question of pure mathematics.
20 Now, what else did I miss? Oh, yes, documents. Documents. As I
21 said at the very outset, all the documents that this Defence has are the
22 documents that our learned friends of the Prosecution gave to us. We do
23 not have a single new document. If we do have any new documents, if we
24 get any new documents, or if we have some expert opinions, we are going to
25 introduce them through our experts and through our witnesses. May God
1 help us in this and may we have the most complete documentation possible
2 to support our assertions. But as I've said, until now, we have nothing
3 else to introduce except for these expert opinions. And now the documents
4 of the Prosecutor that were disclosed to us until now and that were not
5 introduced, that were not admitted into evidence and that the Defence will
6 want to tender are documents that are already in this court.
7 JUDGE LIU: Thank you. Can we hear the response from the
8 Prosecution? Mr. Scott.
9 MR. SCOTT: Yes, Mr. President, Your Honours. First off, a few
10 responses, specific responses, and then I'll return to specifically the
11 Prosecution positions on some of the issues raised as we have discussed
12 them among ourselves in the last several days.
13 First, Mr. President, we are not sure at all where counsel obtain
14 the number of 300, that there was ever a witness list comprising anything
15 like 300 Prosecution witnesses. On the -- in October 2000, long before
16 the trial started, we had submitted a list of 113 witnesses. At the end
17 of the day, so to speak, we in fact called or offered the testimony of 83
18 witnesses, 57 live - that is, in Court - 16 by deposition, 10 by
19 transcript from other cases. So you will see that given the nature of
20 this work, 83 out of 113 was -- is not too far off the mark and that our
21 list was not over-broad or overinclusive but not too far away from what
22 the final numbers in fact were.
23 So we said more than a year before this trial -- or almost a year
24 before this trial started that there was a witness list, and witness
25 summaries, I might add, of approximately 113 witnesses.
1 I'm also not sure of the basis for counsel's assertion that the
2 OTP has ten investigators at the archive every day. I'm sure that Madam
3 del Ponte would be very interested to know how many employees are at the
4 archive. I have no reason to think it's anything like that, with maybe
5 the exception of one or two very short periods of time over the past two
7 Mr. Krsnik said that they have conducted - his exact words on this
8 point were "comprehensive interviews," but I have to point out to the
9 Chamber, to date the Prosecution has not received a single Defence witness
10 statement. They apparently exist. There have been comprehensive
11 interviews, but we have yet to receive a Defence witness statement.
12 Mr. Krsnik, of course, in an effort to be optimistic, mentions
13 that they want to do 30 witnesses by deposition, and tells the Chamber
14 that many of these witnesses would be anywhere from approximately a half
15 hour to one hour. Well, not to be more of a pessimist, Mr. President, but
16 I have to indicate that a good number of the Prosecution witnesses in its
17 case, the direct examinations were often not far from about an hour. So
18 to say that a direct examination of a witness will take something
19 approximately around an hour, and therefore one can extrapolate that it
20 should be quite quick and efficient, I'm afraid does not necessarily lead
21 to that conclusion. These things do take considerable amount of time.
22 But again, I'll come back to some of the specific issues in a few
24 I think, Mr. President, we submit that the comments about the
25 Presidential transcripts is really engaging in a great deal of hyperbole.
1 For the Defence to say, "We're going to be required to call every single
2 person who may have participated in one of those meetings or were present
3 in the meetings," I think is unrealistic and not genuine. But it's
4 apparently intended as, if I can call it, a scare tactic against the
5 Chamber to presumably discourage the Chamber from admitting that very
6 important evidence. I submit that's a gross overstatement of what would
7 be expected.
8 Mr. President, in terms of specifics - in terms of the recess, the
9 Prosecution stated that, with due regard to all the outstanding matters,
10 the work that the Chamber needs to do presumably, and the work - some
11 reasonable time for the Defence to prepare, we have stated our position,
12 which continues to this moment, that the trial should begin again on the
13 Monday, the 4th of March, 2002 with the beginning of the Defence case.
14 That is our position. We think that is in line, if not indeed generous,
15 with most of the practice before the Tribunal to date. Many of the breaks
16 have certainly been much less, much, much less, in longer trials than the
17 time requested by these accused.
18 We would remind the Chamber, of course, that Rule 65 ter (G)
19 requires each Defence to file the following: A list of witnesses; a
20 summary of the facts on which each witness will testify; (c), the points
21 in the indictment as to which the witness will testify, et cetera. Of
22 course, again we have not received any of that information, presumably nor
23 has the Chamber. They are also required to provide a list of exhibits,
24 which, of course, we have not seen.
25 Mr. President, one point we had -- one of our prior filings, and I
1 think this even goes back to a filing we made to the Chamber on the 29th
2 of November last year in connection with the notice that we were
3 requesting, we had at one point done our own analysis of the amount of
4 time or amount of notice given on particular Prosecution witnesses. And
5 at that particular point in the trial, we simply chose the first
6 20 Prosecution witnesses. We found that on -- that no witness, not a
7 single witness, with the exception of one who was called because -- at the
8 Registry's request out of turn, with the exception of that witness, no
9 witness was called by the Prosecutor on less than 19 days' notice prior to
10 that witness taking the stand. And the average -- that was the shortest
11 time. The average notice given between the time that we said we would be
12 calling this witness and the time that that witness actually testified on
13 the stand was 35 days. We asked the -- the Prosecution asks to be given
14 similar notice.
15 In terms of depositions, Mr. President, our position is that we
16 really cannot respond very much because, as we've stated to the Defence in
17 our meeting last week and also have indicated in our papers, none of the
18 information has been provided for us to make any response. We don't have
19 a list of the proposed deposition witnesses; we don't have a summary of
20 what the deposition witnesses will testify to, nor the justifications for
21 why they are appropriate as deposition witnesses. And the Chamber may
22 recall, when the Prosecution proposed deposition witnesses, it took a
23 considerable number of months and rulings and second series of rulings
24 before all that was sorted out. And we were required to do all those
25 things; give the witnesses by name, summarise them, and give justification
1 as to why, under Rule 71, they were appropriate for deposition treatment.
2 We've received none of that information from the Defence. So we simply
3 cannot respond other than to say the Rules provide for depositions under
4 appropriate circumstances. We don't know what the Defence has in mind.
5 When that information is provided, we will certainly review it and make
6 further responses at that time.
7 In terms of the timing of the depositions, if there are any
8 depositions, Your Honours, it is the considered view of the Prosecution
9 side that we're not sure it would be the most efficient actually to take
10 the depositions at the very beginning because it may very well be that as
11 the Defence cases start, the Chamber might give the Defence some
12 guidance. The Defence case might narrow. Once we have an -- we don't
13 know what the Defence is. We don't know what the Defence is.
14 Once the defence becomes known, it very well may be that these
15 depositions are not needed at all, or may be less or may be under
16 different circumstances. So it strikes us, we respectfully submit, that
17 to take the depositions at the beginning, before knowing any of this
18 information or the shape or direction of the Defence, could be a huge
19 waste of time and resources. So we ask the Chamber to consider not taking
20 depositions until after more about the Defence case is known, and so that
21 both the Prosecution and the Chamber can respond as appropriate and give
22 such reaction and guidance as might be appropriate to the nature of the
23 Defence case.
24 For instance, let me be more specific, only by example.
25 Mr. Krsnik says today that the Defence is not going to put forth a tu
1 quoque Defence. I am happy to hear him say that. I hope he will forgive
2 me if I receive that with some skepticism or at least a "wait and see"
3 attitude. And that's why I say cite an example. What if the 30
4 deposition witnesses -- only by example: What if the 30 deposition
5 witnesses are all or most of them tu quoque witnesses? Then why should we
6 do those depositions? Why should we spend the time doing that? And that
7 is the problem, Mr. President. We have a vacuum of information. And we
8 don't know whether they are appropriate or not, or if the timing is
9 appropriate because we have no information.
10 The location of the depositions, Mr. President: In principle, as
11 we've stated in our papers, we believe depositions should take place in
12 The Hague. That is the position that the Prosecution was put into at the
13 insistence of the Defence. The reality is that one of the things I think
14 we all learned -- and when I say all of us, including the court staff and
15 both sides or all sides -- the taking of depositions requires virtually
16 the identical staff and resources as a trial, with the exception of Your
17 Honours. It is labour- and time- and resource-intensive; and at the end
18 of the day, it is much easier to do those things here with the facilities
19 at hand than it is to do them outside The Hague.
20 Also, frankly, we feel it would give the Defence potentially an
21 advantage and access to local witnesses that might on balance be more
22 willing to come to a deposition in Mostar than they would be to come to
23 The Hague. And as has been said many times in the course of these
24 proceedings, what is sauce for the goose is sauce for the gander. The
25 Prosecution did not have the opportunity to take depositions in the field,
1 we think it's only fair that the same rule applies, with one possible
2 exception we do allow in our papers; we're trying to be reasonable. If
3 there is indeed a specific showing that particular deposition witnesses
4 are, in fact, appropriate and, in fact, very limited in their testimony,
5 proposed testimony, we would entertain further -- I'm just saying we have
6 left the door cracked open. We would entertain further whether some very
7 limited depositions might be suitable or appropriate outside The Hague.
8 But in principle, we think they should be in The Hague.
9 There has also been mention, although not so much today but in the
10 prior papers, there has been reference to videolink, and our response to
11 that is the same. We don't know who, where, or what. Clearly, the Rules
12 do provide for videolink on the appropriate showings by counsel. We just
13 don't know what those showings are.
14 I think, Mr. President, those are our basic positions. We would
15 seek -- we certainly seek to have full disclosure as required by 65 ter.
16 We would like to have, obviously, a Defence witness list for both Defence
17 teams as soon as possible, we'd like to have exhibit lists as soon as
18 possible, and we would like to have the notice of the order of witnesses
19 as soon as possible, again at least commensurate or roughly commensurate
20 with the times provided by the Prosecution.
21 We see no justification for any different rules in this regard.
22 This is not trial by ambush. It is not a violation of the Defence right
23 not to incriminate himself, for instance; that if indeed he chooses to
24 present a case, then he must do so fairly as well; and it isn't a question
25 of hiding the ball.
1 So the Prosecution, Mr. President, I must say feels quite strongly
2 that these notices and the disclosures are only fair and necessary for the
3 Prosecution to proceed in a way that's fair to the Prosecution and fair
4 indeed to the International Community. Thank you.
5 JUDGE LIU: Thank you very much. And there's one question we
6 would like to address to Defence counsel. That is, according to the
7 Rule 65 ter (G), after the close of the Prosecutor's case and before the
8 commencement of the Defence case, the Defence have to file certain
9 documents, that is, the list of witnesses, the summary of the testimony of
10 those witnesses, as well as the list of exhibits. We would like to hear
11 the views from Defence counsel on this very issue.
12 Yes, Mr. Krsnik.
13 MR. KRSNIK: [Interpretation] Your Honour, I was first going to
14 respond to my learned friend and some of his submissions, or shall I first
15 answer your question, the question you just posed to me?
16 Your Honour, the Defence, at this point, is not aware of a number
17 of things, and we will provide summaries of all our witnesses in
18 compliance with your ruling. At this point, we have been speaking with
19 people who are our potential witnesses. We still don't know whether they
20 will agree to come and who among them will come and give evidence.
21 I understand Mr. Scott when he says the Defence should be working
22 properly. He has about 500 staff. I only have two hands, and I cannot be
23 in two places at the same time. Your Honours, I have to say that from
24 July of last year, we did not have a single second, and I don't understand
25 how the Prosecutor thinks that we could have juggled five different
2 Regarding the witnesses, now that -- when we arrive at the
3 specific witnesses, when they agree and they say, "Yes, I will come and
4 give evidence," I can only speak in general terms. We were speaking -- we
5 had about 350 potential witnesses by the Prosecution. That was two months
6 before the depositions. It was the first time at that time that we heard
7 who the deposition witnesses would be. And then we received a revised
8 list and that kept revising during the trial itself, and this is what we
10 I don't know. Perhaps the spirit of my language is different from
11 the one that is being taken in the transcript, but do you really believe
12 that I would say something, I would dare say something that is not true
13 here in this courtroom?
14 The same thesis is being presented: We've had time and we should
15 be prepared. No, we did not have enough time. The Prosecutor knows fully
16 well that he provided us a witness list two days before the trial. And
17 why is he now resorting to stylistic and different orations to
18 misrepresent the facts? We knew two months before the trial -- we had a
19 list of 30 witnesses, rather than 15, who actually showed up, and this is
20 what we're trying to avoid. We want to be specific and precise in order
21 not to waste any time.
22 Had the Prosecutor lived by his own words, we would not be on
23 our -- we would not have been on our feet when we said that we were not
24 prepared. It is a different situation if you deal with 350 witnesses or
25 200 witnesses or if we're dealing with 57 witnesses. Or -- I -- if I --
1 if I am dealing with a hundred documents, why not have all hundred
2 documents right away and then I can deal with them all at the time?
3 If we say half an hour to one hour per witness, this is because
4 we're trying to be effective. And then the Prosecutor gets up and says,
5 "We don't know who the witnesses are going to be and how long they're
6 going to take." Are we considered not serious enough when we say what we
7 say? If I said this, then I will present the witnesses as I said that I
8 would to give me the arguments which would counter the arguments of the
9 Prosecutor. For instance, Your Honours, "Witness X, are you a member of
10 the Convicts Battalion?" And he will say, "No, I never was." And I will
11 say, "Thank you very much. This completes my direct examination." I
12 don't know how long the cross will take.
13 So I think that I was very clear. So I don't know why we are
14 resorting to these figures of speech and all. And I don't know. This is
15 why I invoked the spirit of language. Maybe the spirit does not carry
16 over into the English language.
17 If we said, Your Honours, that the Prosecutor doesn't have the
18 right to say -- it doesn't -- it cannot speak about the time factor,
19 because at the time of the indictment, they should have been ready for
20 trial. Your Honours, the indictment was issued in December 1999. So in
21 January of 2000, they should have been ready for trial, and look what
22 happened. From September -- from September 1999 until October 2001, they
23 continuously interviewed witnesses. In other words, the Prosecutor had
24 additional two years, and now we're asked to do the same job in four
1 Your Honours, we're all new to this Tribunal. In the Blaskic
2 case, the trial went on for three years. In the Kordic case, it went on
3 for a year and a half. The Kupreskic case, it was one and a half years.
4 Blaskic was a single accused, Kordic two, and Kupreskic five, all with
5 many fewer counts of the indictment.
6 So are the rules different? And the rules were that they had 14
7 days of hearings and 14 days of breaks. And now we are trying to package
8 the Defence within four weeks. And this is not an American-style trial,
9 and this is not a truth and reconciliation commission, as you brilliantly
10 put it, Your Honour.
11 So we also have to tackle the policy issues because it is in the
12 indictment. And we're supposed to do all this within four weeks and that
13 would be fair? I think that it is in the interest of the Prosecution to
14 have a fair trial just as everybody else has that interest. And I think
15 that if we find that certain counts in the indictment are proved not true,
16 I think that the Prosecutor should also feel happy that the truth was
18 So it is in the interest of justice that -- I think that we -- it
19 is something that is shared, and I think that the Prosecution should
20 support us in our quest for it. We should not resort to petty tactics
22 Your Honours, I think it is very clear to both you and the -- as
23 it is to the Defence why we had the depositions in The Hague. It is
24 because these were the Prosecution witnesses and our clients wanted to be
25 present to hear their accusors. I think it is very clear, they don't need
1 to be present at depositions of our own witnesses. And it is really
2 because we wanted to do things as efficiently as possible and also for the
3 reasons of judicial economy. And you can check that with the Registry:
4 How much is the cost of travel of 30 witnesses who come here, or those who
5 take their -- of whom depositions are taken locally?
6 When I said 10 to 15 minutes per witness, I said that as a rule of
7 thumb. Based on what the witnesses here have said and the evidence they
8 have given, we may have to go through another 90 witnesses. They may just
9 testify to whether they were members of the Convicts Battalion or not, so
10 it could take no more than 5 minutes to take a solemn declaration and then
11 the facts that they need to say. I think that I was very clear. I don't
12 want to belabour this. And I think that at this point, both the Defence
13 and Prosecution should work in concert on this.
14 JUDGE LIU: Yes, Mr. Seric. I give you three minutes, if you have
15 something new to add, but we are really --
16 MR. SERIC: [Interpretation] Mr. President, no, I'll be done
17 right away. Just to answer the question, because you directed it to both
18 counsel: We will really observe the 65 ter (G)(i)(a) but we will not
19 provide the full names of witnesses but rather their initials due to the
20 situation in Mostar, which is full of -- which the Trial Chamber is fully
21 aware, and we will use the same attitude that the Prosecution had towards
22 us. Thank you.
23 JUDGE LIU: Well, after hearing all the submissions from the both
24 parties, there are still matters this Trial Chamber would like to address
25 to the both parties. The Defence counsel said that in some other cases
1 that take longer time, for instance, Blaskic case, three years, another
2 case, one year and a half, I have to say that different cases have
3 different situations that have to be dealt with. And this Tribunal,
4 frankly speaking, has been criticised for the delay of the trials,
5 especially during the pre-trial stage.
6 And I would like to also draw your attention to the breaks between
7 the Prosecution's case and the Defence case. If you look into the
8 jurisprudence before this Tribunal, you could see the longest break is two
9 months. That is the Blaskic case, which is a very big case indeed, and it
10 has not been finished yet. Normally, it is only two or three weeks for
11 the break.
12 The second matter I would like to address is the number of
13 witnesses. Presuming that the Defence counsel is right that the
14 Prosecution has potential witness of 350 at the very beginning, but
15 actually they successfully reduced the number of witnesses to 83, of which
16 57 we heard in this courtroom, and 16 by deposition, and 10 by
17 transcripts, which is more or less within the limits prescribed by the
18 Pre-Trial Judge, Judge Wald. I remember very clearly that the Pre-Trial
19 Judge, Judge Wald, requested the Prosecution to reduce the number of
20 witnesses to 50, and the time frame was ten weeks. This Trial Chamber
21 found that we are very surprised to hear that the Defence counsel
22 altogether will have 120 witnesses.
23 We would like to apply the principle of equality of arms and set
24 the prerequisite of the number of the witnesses as the same number as the
25 Prosecution's case. That is, 50 witnesses, and ten weeks' time frame, in
1 principle. Of course, it's also subject to certain variations, but we
2 only hear those number of the witnesses in this courtroom and during that
3 time frame.
4 We also believe that it is the obligation of the Defence counsel
5 to submit their pre-Defence filings in accordance with Rule 65 ter (G),
6 and meetings between the two parties should be encouraged to find
7 agreement of the time frame for disclosure among themselves and call upon
8 this Trial Chamber if there's no agreement possible, or if there's any
9 agreement that is violated.
10 As for the specific timetable, this Trial Chamber will take into
11 consideration of the submissions by the both parties during this Status
12 Conference and make our decisions in the orders at a later stage. We hope
13 the commencement of the Defence case will start as soon as possible. We
14 could not delay without any proper cause. It is so decided.
15 The last item is Item 5. I wonder whether there's any issues that
16 both parties would like to bring to the attention to this Trial Chamber at
17 this stage.
18 Yes, Mr. Scott.
19 MR. SCOTT: Mr. President, it was brought to my attention by your
20 staff there was a question about one of the prior witnesses who had
21 indicated a witness name being mentioned and whether that statement had
22 ever been taken. It was, and in fact I thought it had been provided; but
23 if it wasn't by accident, then we're certainly happy to provide it to both
24 the Chamber and counsel at this time, although, again, I thought we had.
25 But we do have that. This is -- it's a protected witness, so I won't say
1 the name. I assume that's what Madam Registrar is providing now.
2 JUDGE LIU: Thank you very much. I believe that Mr. Krsnik
3 specifically asked this question during the last sitting. I hope this
4 statement will dispel any doubt about the possible disclosure of the
5 identity of the witnesses.
6 Yes, Mr. Krsnik.
7 MR. KRSNIK: [Interpretation] Your Honour, with your permission,
8 just a couple of points: Let me first comment on what was just said, and
9 then I would want to raise an important issue which I think we will only
10 start today. I would like to say this: This case has more counts than
11 the Blaskic case has. If the Blaskic case was very big, then this one is
12 still bigger.
13 If we want fair trials, everything has to be taken into account.
14 I respect what you said when you say that we cannot compare cases in every
15 respect. If somebody has a trial what lasts for three years, let's say a
16 year and a half the Prosecution case, and the Defence had more time to
17 prepare and was given two months -- I really don't want to draw these
18 parallels. And we had five or seven -- I'm not going to compare my case
19 with the case where there were five to seven attorneys at the Defence.
20 I'm awaiting your decision to see when the Prosecution case is
21 officially closed, and I think that the clock will start running from that
22 point on for the Defence.
23 I want to assure you, though, with the deepest respect for
24 everything you have said, Your Honour, I cannot become an adventurist, and
25 anything short of full preparation for this case is adventurism. The
1 consequences may be disastrous, and I will have to deal with my
2 conscience. I am the person who is representing my client. I am the
3 person that people could be pointing their fingers at.
4 So please, Your Honours, understand I am speaking from my heart.
5 And I will follow my conscience and my skills and professionalism to
6 present as good, as best a case as I can. And the -- we are all part of
7 this, and even though some of us come from thousands of miles away and are
8 not in a position to know all the details, I think that we should still be
9 able to have all the same body of information in order to arrive at the
11 I'm going to -- I'm going to try to let you know what are some of
12 the problems that we are facing with witnesses that are of Bosniak ethnic
13 background, problems that arise from various attempts at obstruction by
14 some intelligence services through the media. Your Honours, if the media
15 published -- if you find that in some media outlets that such-and-such
16 witnesses are giving evidence against or accusing Mladen Naletilic and
17 then you get the names of protected witnesses.
18 I am going to just hint at these matters now. It is not something
19 that we should discuss now, but in due course and based on your decisions,
20 I will ask an ex parte hearing where I will provide full details of this,
21 and I will ask for your protection and assistance. So this is just to
22 foreshadow something that is coming. Thank you.
23 JUDGE LIU: Thank you. This Trial Chamber will take note of what
24 you have said during our deliberations on the time schedule of this
1 So having said that, I guess that's all. We will rise.
2 --- Whereupon the Status Conference adjourned
3 at 5.58 p.m.