Tribunal Criminal Tribunal for the Former Yugoslavia

Page 37

1 Tuesday, 10 July 2001

2 [Open session]

3 [Motion Hearing]

4 [The accused entered court]

5 --- Upon commencing at 2.33 p.m.

6 JUDGE MAY: Yes, let the registrar call the case.

7 THE REGISTRAR: Case number IT-00-39 & 40-PT, the Prosecutor

8 versus Momcilo Krajisnik and Biljana Plavsic.

9 JUDGE MAY: Appearances, please.

10 MR. HARMON: Good afternoon, Mr. President. Good afternoon, Your

11 Honours. My name is Mark Harmon. Assisting me today will be, to my

12 right, Mr. Fergal Gaynor, and to his right, Mr. Ulrich Mussemeyer. Thank

13 you.

14 MR. BRASHICH: Good afternoon, Your Honour. Dan Brashich for the

15 Krajisnik defence, and I'm joined by Goran Neskovic of the Republika

16 Srpska bar.

17 MR. PAVICH: Good afternoon, Your Honours. Robert Pavich on

18 behalf of the defendant Biljana Plavsic.

19 JUDGE MAY: Thank you. This is a hearing in order to deal, first

20 of all, with the Status Conference at some stage, probably later; first of

21 all, to consider three motions and hear oral argument upon them insofar as

22 oral argument is necessary.

23 The three motions are a motion on behalf of Mr. Krajisnik to

24 compel the disclosure of exculpatory evidence under Rule 68 of the Rules

25 of Procedure and Evidence; secondly, a Prosecution motion for

Page 38

1 clarification in respect of Rule 65 ter, 66, and 67; and thirdly, a motion

2 on behalf of Mr. Krajisnik to compel the Prosecution to provide the

3 identity of subordinates.

4 Can I say at the outset that there have been oral submissions in

5 relation to all three of these motions. The Prosecution has had -- the

6 Court, rather, has had the opportunity of reading those, and there is no

7 need for them to be repeated, so I hope that any oral submissions can be

8 brief.

9 The first issue, then, is the issue of exculpatory evidence. We

10 have Mr. Brashich, your motion. Effectively, you are asking the

11 Prosecution be required to disclose, to identify the exculpatory material

12 rather than merely, as they appear to have done here, to have served you

13 with some many thousand documents.

14 MR. BRASHICH: That is correct, Your Honour. The only thing which

15 I would like to add to my written submission is, one of the reasons why we

16 seek the exculpatory material is that I have not as yet been able to

17 define or divine the Prosecution's case. I am mindful of the position

18 taken by the Court with regard to certain earlier motions. However, under

19 the fair reading of the language of Rule 68, the Prosecution is to

20 "disclose." I read the word "disclose" as an affirmative showing rather

21 than a delivery of the thousands of pages of paper.

22 JUDGE MAY: Would you deal with this, Mr. Brashich: One of the

23 things they say is that you've had the documentation and you've had the

24 chance to review it, and therefore their argument is that it would be

25 redundant for them to have to go through this material to determine what's

Page 39

1 exculpatory.

2 MR. BRASHICH: Well, Your Honour --

3 JUDGE MAY: Yes, what's your answer to that?

4 MR. BRASHICH: If we had gone through all of the documentation to

5 date, perhaps there might be some validity to the argument.

6 However, my team has only been able to plow through, the last time

7 I was in Bosnia, I believe it was -- I will not like to misspeak.

8 [Defence counsel confer]

9 MR. BRASHICH: Your Honour, if memory serves me correct, we have

10 been able to go through 14 of the 25 or 26 CDs because it's a labourious

11 task. We do not as yet have the computer ability to go through the

12 remaining disks, so we have to go document through document.

13 JUDGE ROBINSON: Mr. Brashich, you're not reducing it, as I

14 understand, to a mere question of burden and labour. You're arguing that

15 as a matter of principle, the Prosecution has an obligation under 68 --

16 MR. BRASHICH: Yes, Your Honour.

17 JUDGE ROBINSON: -- to make this disclosure.

18 MR. BRASHICH: Yes, Your Honour. As a matter of principle and as

19 a fair reading of the Rule, they have the obligation to tell me what they

20 consider as to the exculpatory. The reason why I was raising the issue of

21 volume was in response to Judge May's question. But I still stand by my

22 position.

23 JUDGE MAY: Your first point, of course, that you have not been

24 able to define the Prosecution position --

25 MR. BRASHICH: I think I used both "define" and "divine."

Page 40

1 JUDGE MAY: Or divine the Prosecution case.

2 MR. BRASHICH: Yes, Your Honour.

3 JUDGE MAY: Of course, the way the Rules are constructed, the

4 essence of that will come with the pre-trial brief when they are required

5 to set out their case, so that the Defence and also the Court understand

6 it. At this stage, you simply have the indictment and the various

7 documents.

8 MR. BRASHICH: That is correct, Your Honour.

9 JUDGE MAY: Thank you.

10 Mr. Pavich, you haven't submitted anything. Do you want to submit

11 something on this?

12 MR. PAVICH: Only, Your Honour, to put this in the context of a

13 decision that Judge Hunt has rendered in a parallel case, to which we were

14 directed at one of our earlier Status Conferences, and in that case, Judge

15 Hunt -- and I'm quoting now from paragraph 19, and it seems to me that

16 this is the context that is helpful for us, within which to consider

17 this. Judge Hunt states:

18 "In a case based upon superior responsibility, what is most

19 material is the relationship between the accused and the others who did

20 acts for which he is alleged to be responsible, and the conduct of the

21 accused by which he may be found to have known or had reason to know that

22 the acts were about to be done or had been done by those others and to

23 have failed to take necessary and reasonable measures to prevent such

24 acts" --

25 THE INTERPRETER: Could counsel slow down, please?

Page 41

1 MR. PAVICH: I apologise. I'm reading text and I'm reading

2 obviously a little too quickly, but to continue:

3 "-- to take reasonable measures to prevent such acts or to

4 punish the persons who did them. However" --

5 And I think this is the important element that Judge Hunt raises

6 that I believe is relevant here:

7 "However, so far as those acts of the other persons are

8 concerned, although the Prosecution remains under an obligation to give

9 all the particulars which it is able to give, the relevant facts will

10 usually be stated with less precision, and that is because the detail of

11 those acts, by whom and against whom they are done, is often unknown and

12 because the acts themselves cannot be greatly in issue."

13 Your Honour, I believe that Judge Hunt is suggesting to us that

14 the Prosecution should disclose to us all the information that it in fact

15 has. It can't do more than that but the suggestion is that it should do

16 no less. And if the Prosecution does have the identities of these

17 individuals, those identities should be disclosed to enable us to focus

18 upon the real issues that are before us.

19 JUDGE MAY: That's a later motion, isn't it? You're dealing with

20 a later motion.

21 MR. PAVICH: I believe we are dealing with a later motion, but I

22 believe that the thrust of what we are trying to do here, and what the

23 Court has been encouraging us to do, is to try to do sooner what other

24 cases have done later.

25 JUDGE MAY: Right. Mr. Harmon?

Page 42

1 MR. HARMON: Mr. President, Your Honours, we have filed a pleading

2 in this case. I won't repeat what's in that pleading, but I would like to

3 emphasise some facts. The first fact is that what the Defence is asking

4 us to do is to retroactively go back through these materials and identify

5 for them material that may fall within the ambit of Rule 68. Now,

6 disclosure in this case, Your Honours, has been ongoing. It started on

7 the 7th of April, 2000. It has been a steady production. On the 16th of

8 April, we submitted to the Defence 80.000 to 85.000 pages of material. On

9 the 25th of January 2001, at the Status Conference, the Defence informed

10 the Court that, and I quote, "I have reviewed all the documents that I

11 have received from the Prosecution."

12 Furthermore, the Rules require -- the new Rules require, under

13 pre-trial proceedings, the Defence ultimately identify in general terms

14 the nature of their Defence.

15 We have attempted on numerous occasions to have the defence

16 identified in this case so we can expedite our Rule 68 production, we can

17 focus more precisely on matters that may fall within and surely fall

18 within Rule 68. Currently, we are asked to speculate as to what is

19 possibly Rule 68 material.

20 In essence, Your Honours, the Defence has had this material for a

21 considerable period of time. They've reviewed the majority. Either

22 counsel, the accused, or previous counsel, have reviewed this material

23 that has been produced to the Defence. To ask us now to go back and

24 retroactively attempt to identify for them what may or may not be Rule 68

25 is, from our point of view at this time, a needless waste of resources.

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Page 44

1 Our resources have to be devoted to preparing for the trial, not doing

2 work that, in part, has already been done by the Defence.

3 The Defence knows the defence that it intends to raise. It knows

4 the types of documents that are exculpatory under the circumstances.

5 They've seen the indictment, and they are in the best position possible to

6 identify what materials are Rule 68.

7 So those are facts that I'd like to raise with this Trial Chamber

8 and which I believe have a direct bearing on the issue of whether we

9 should be compelled to go back in time and review this quantity of

10 materials for the Defence.

11 JUDGE ROBINSON: Mr. Harmon, you say that so far the Defence have

12 not discharged their obligation under the new Rules to identify the

13 general nature of their defence, and that has hampered you, of course, in

14 discharging your obligation under 68. If the Defence were to identify the

15 general nature of their defence, you would then be in a better position to

16 identify exculpatory material.

17 MR. HARMON: Yes, sir, that is correct.

18 Now, under the new Rules, the Defence isn't obligated to identify

19 the general nature of its Defence until it files its defence, its

20 pre-trial brief, but we have invited the Defence on two occasions to

21 identify the general nature of their defence, given the fact that

22 ultimately before trial, they're going to have to do so. We did that with

23 the purpose in mind to quickly and efficiently identify what may fall

24 within the ambit of Rule 68 so we could produce it to the Defence and they

25 could have it at their disposal many, many, many months before the trial

Page 45

1 is due to commence.

2 JUDGE ROBINSON: On the other hand, they have suggested that they

3 don't know your case fully, your full case yet, so it is difficult for

4 them to identify exculpatory material. This is a circular argument that

5 we are getting involved in, but we'll have to resolve it.

6 MR. HARMON: Thank you.

7 JUDGE MAY: The next motion is the Prosecution motion which I can

8 shortly refer to as one of reciprocal disclosure, the position being this,

9 that the Prosecution has identified 800 core documents, as they call them,

10 which I take to be documents which they will be relying on at trial. Of

11 those, nearly 400, nearly a half, have been disclosed, but at the last

12 Status Conference, I, as the pre-trial Judge, stated the sooner the

13 documents are disclosed the better and suggested it be done within a

14 month.

15 The Prosecution are now seeking to clarify their position relying

16 on Rule 66(b) and also the reciprocal Rule of 67.

17 Yes, Mr. Harmon.

18 MR. HARMON: Your Honours, we find ourselves in this position and

19 we seek clarification. At a Status Conference there was a suggestion, and

20 we believe not an order, to provide to the Defence core documents. At the

21 65 ter conference, I made a request to clarify whether or not we had been

22 ordered to turn over documents.

23 Now, the Defence in its pleading contends that we had been ordered

24 to turn over those core documents, and before I get into my argument, I'd

25 like to correct the record because the 65 ter meeting that was held on the

Page 46

1 1st of July, 2001, that very issue was raised, and we were informed that

2 there was no standing order to produce these documents. That is referred

3 to at page 35 of the transcript of the Rule 65 ter meeting. So we operate

4 now on the understanding that there is no such order.

5 JUDGE MAY: Had there been an order, it would have been formulated

6 in those terms; and if that's not clear, what was being suggested was that

7 this proposal be followed.

8 MR. HARMON: Right.

9 JUDGE MAY: If there's any doubt about it and it's thought to be

10 an order, the Trial Chamber does have power in exceptional circumstances

11 to reconsider, of course, any order made by a pre-trial judge. So we are

12 prepared to entertain this motion.

13 MR. HARMON: Yes, I understand. But I wanted to correct the

14 record because in the Defence pleading, Your Honour, they have indicated

15 that there is such an order, and it is quite to the opposite.

16 Now, this is the situation we find ourselves in: We, the

17 Prosecutor's Office, are fully prepared to make disclosure of all of the

18 documents that we intend to use at trial. We're prepared to do so under

19 the Rules that have guided us for many years. We are not prepared to do

20 so on a voluntary basis where there is no quid pro quo.

21 What does that mean? That means that in the case of Mrs. Plavsic,

22 who has invoked reciprocal discovery, we are prepared to provide all of

23 the documents that we're required to under reciprocal discovery

24 provisions, and indeed, we've already started to provide to the Defence

25 some of those additional -- what are characterised here as core

Page 47

1 documents. I think we have provided an additional 85 documents to the

2 defendant Plavsic.

3 We're prepared to provide all of those documents to the Trial

4 Chamber for its guidance and use and study prior to the commencement of

5 the trial. We are not prepared to provide those documents to defendant

6 Krajisnik who expressly has refused to invoke the provisions of reciprocal

7 discovery.

8 Now, why aren't we prepared to do so? Well, we believe that the

9 Rules themselves have been created with a purpose, and the purpose of

10 those Rules is to create a balance: to give the parties an opportunity to

11 examine the evidence that is going to be introduced in this trial; to have

12 an opportunity to examine whether or not its authentic, whether it's

13 genuine, whether it can be challenged in some way. And what we simply do

14 not want to find ourselves in is in the position where we have given

15 documents to the defendant Krajisnik months, literally months in advance

16 of a tentative trial date, and then find ourselves in a position of

17 receiving documents introduced at trial by the Krajisnik defence the day

18 of trial and having absolutely no opportunity to examine those documents,

19 to study those documents, to attempt to authenticate those documents.

20 There would be a grotesque imbalance under those circumstances,

21 were we to find ourselves in a position that I've just described.

22 JUDGE MAY: That's further down the line. At the moment, we have

23 to deal with your disclosure position. And the present position is this:

24 That you have provided half the core documents - or your predecessor

25 provided half, and you are taking the position that you don't have to

Page 48

1 provide the other half. What do you say your obligation is under 65 ter

2 at the pre-trial brief stage? Are you prepared to disclose more than a

3 mere list of the exhibits but to disclose the exhibits?

4 MR. HARMON: Well, that raises a separate question and an

5 interesting question. Certainly to the Plavsic Defence, the issue is

6 moot. Were Mrs. Plavsic standing alone in this case, and having revoked

7 reciprocal discovery, I could provide a very detailed list or less than a

8 detailed list, because the Defence would know precisely what documents I

9 intend to use.

10 The question is: In the case of a defendant who refuses to invoke

11 reciprocal discovery, can Rule 65 ter and the description that needs to be

12 furnished of documents that have to be identified in the pre-trial brief

13 circumvent the more explicit disclosure requirements that are found in

14 section 4? And under section 4 -- section 4 of the Rules deals with the

15 disclosure of evidence, and that's where we find, under section 4, Rule

16 66(B) and Rule 67(C). So it seems to me, in reading the Rules in their

17 entirety, Rule 65 ter is procedural, Rule 66(B) and 67(C) are

18 substantive. They deal with disclosure of information and evidence to the

19 accused. I don't believe, and it's our position and our submission, Your

20 Honours, that the procedural Rules -- the procedural Rule in 65 ter, the

21 identity of evidence, supersedes the reciprocal discovery provisions of

22 Rules 66 and 67. Otherwise, Rule 65 ter makes the reciprocal discovery

23 provisions academic, makes them moot. And that's not what is intended by

24 the Rules of reciprocal discovery.

25 So my answer, then, in the case of a defendant who does not wish

Page 49

1 to provide the -- submit a request for reciprocal discovery, there is a

2 slightly different answer. And that answer is that the description can be

3 less than a full and complete description. It can be a general

4 description. It can be a summary. But it should do -- in no circumstance

5 should it be permitted to eviscerate the purpose and the intent of the

6 reciprocal discovery provisions that are found in section 4.

7 JUDGE ROBINSON: You are saying 65 ter must be read subject to 66

8 and 67?

9 MR. HARMON: That's correct, Your Honour.

10 JUDGE MAY: What are you prepared to disclose under 65 ter?

11 MR. HARMON: I would be prepared to disclose a more general

12 description of documents. Certainly if they are documents that relate to

13 publications in the Official Gazettes, for example, I can identify those

14 with specificity. But then, when I start to deal with issues of

15 intercepted communications, when I start to deal with issues of specific

16 orders, then I don't believe, and it's our submission, that I'm not

17 required under Rule 65 ter (E)(3), to identify the exhibits with such

18 specificity that it obviates any need or request or any desire to seek

19 reciprocal discovery. This provision in 65 ter isn't designed for

20 discovery purposes, to give the Defence a complete and full opportunity to

21 identify the documents. The appropriate Rules for that is Rule 66(B) and

22 Rule 67(C). Those are the provisions that say if you want to see the

23 documents that we are going to tender in trial, you invoke the provision

24 and you will be permitted to inspect those documents.

25 JUDGE MAY: How, then, is the Defence to prepare for trial?

Page 50

1 MR. HARMON: The Defence can prepare very easily for trial, the

2 same way Mrs. Plavsic is going to prepare for trial.

3 JUDGE MAY: But supposing the Defence says, "We don't propose to

4 follow this route. We wish to prepare our Defence on the basis that we

5 are not going to give the Prosecution the right to go through our

6 documents." Supposing that is the position.

7 MR. HARMON: Well then, my answer to you, Your Honour, would be as

8 follows: The Defence is capable of using other tools available at their

9 disposal to prepare for the Defence. They have an indictment that puts

10 them on notice, they have investigators or the ability to travel in the

11 Republika Srpska and elsewhere to acquire the evidence that they need for

12 their Defence. They have available for them binding orders. They can

13 make applications to this Court and seek specific documents from the

14 possessors of those documents, such as the Republika Srpska or the Federal

15 Republic of Yugoslavia. They can prepare their Defence the same way many

16 other defendants have done, absent their request for reciprocal discovery.

17 JUDGE MAY: But they don't know what they have got to defend

18 because they don't know what these documents are. I'm taking it a bit

19 further down the line. I mean, would you propose during the course of the

20 trial to produce your exhibits and put them before the Court for the first

21 time?

22 MR. HARMON: Judge May, I said earlier that I'm prepared to give

23 the Trial Chamber a list of the exhibits and copies of the exhibits to

24 study well in advance of the commencement of this trial.

25 JUDGE MAY: But would it be right for the Trial Chamber to have

Page 51

1 them when the defence don't? I foresee many problems. For instance, if

2 this practice were followed, it would delay the trial. It would be up to

3 the Defence to say, "It's the first time we have seen this document. It's

4 immensely damaging and immensely prejudicial, and we need time to

5 prepare. We need time to take instructions."

6 MR. HARMON: By the same token, Judge May, that argument applies

7 to the Prosecution as well.

8 JUDGE MAY: Of course.

9 MR. HARMON: If we are submitted -- if we are presented documents

10 that we need to examine and analyse and attempt to authenticate, we also

11 would be asking for a delay. That's why I think the burden of requesting

12 reciprocal discovery -- and reciprocal discovery helps all of us in this

13 courtroom in identifying what are the proper documents, what are the

14 documents that are going to be contested, what are the documents that are

15 at issue in this case? It gives both sides an ample opportunity to

16 prepare. Right now, the Plavsic Defence has asked for reciprocal

17 discovery. Trial has been tentatively scheduled in January, approximately

18 six or seven months from now. The Defence will have ample opportunity,

19 the Plavsic Defence, to analyse these documents.

20 Now, if the co-defendant in this case doesn't wish to avail

21 himself to that procedural set of Rules - and this set of Rules that

22 invite him, that permit him to inspect our documents - then he does so

23 with the full knowledge that he's not going to have the opportunity to

24 examine them in the same amount of time as his co-defendant. But that's

25 his choice.

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Page 53

1 JUDGE MAY: We've done some research on this. The preponderance

2 of practice has been for the Prosecution to produce its documents.

3 There's a difference in practice, clearly, between what's happened in two

4 of the Trial Chambers and what's happened in the third. In the cases

5 before this Trial Chamber, the documents have always been produced without

6 argument, the exhibits, and likewise in the cases before Trial Chamber II.

7 Trial Chamber I, a rather different practice has prevailed.

8 So we are faced with balancing that and considering the effects of

9 the Rules, and also doing justice to both parties.

10 MR. HARMON: Mr. President, I'm guided by the Rules. These Rules

11 have been amended, I think, 15 or 20 times, and these Rules have a very

12 clear structure to them, providing an equal opportunity to examine each

13 other's documents if a request is made. There's no Rule that I can see

14 other than Rule 54, which is a general rule that says the Trial Chamber

15 can make any order appropriate for the conduct of the trial, that is

16 applicable.

17 Now, I concede that the Trial Chamber can under Rule 54 make such

18 an order, but it's our submission further that the more explicit Rules

19 under Rule 66(B) and Rule 67(C) have greater weight and have to be

20 considered in considering the totality of the Rules.

21 Rules 66(B) and Rules 67(C) weren't created as decoration or as

22 rules that could be or should be ignored. In the overall scheme of

23 discovery, they were created with a purpose. What we have here is one

24 defendant who simply refuses to request reciprocal discovery and wants

25 Your Honours to impose an order on the Prosecutor that vitiates Rule 66(B)

Page 54

1 and Rule 67(C).

2 JUDGE MAY: It may be what was intended, it may be that it's not

3 been very felicitously expressed, it may be what is intended by that Rule

4 is for the other party to be able to go through all your documentation. I

5 forget, you have 3 million, sometimes that word is used -- that figure is

6 used. You have a very large amount of documents, many of which, we are

7 pleased to see, that you are not going to use.

8 Now, it may be that what was in the minds of those drafting the

9 Rules, although they haven't expressed it that way, was that if a party

10 wanted to go through all of your documentation, then that would trigger

11 reciprocal discovery. But you say that Rule 54 which, as you concede, is

12 a Rule that we could use, but that we cannot or should not use it to

13 override what you say are the discovery provisions. That's your

14 submission?

15 MR. HARMON: That is our submission.

16 JUDGE MAY: Yes.

17 MR. HARMON: And an additional point needs to be clarified and

18 that is the number of 3 million documents. I think it needs to be

19 perfectly clear, in the Defence submission they say 3 million documents

20 apply to documents that we have acquired from the Republika Srpska.

21 That's not correct. The figure, first of all, I am informed, is

22 approximately 2.7 million, not that it makes a big difference; but second

23 of all, those documents relate to documents that are in our entire

24 database that apply to the Bosnian Croats, Croatia, Republika Srpska, in

25 all of the parties and all of the regions that are within our

Page 55

1 jurisdiction.

2 JUDGE MAY: This is a figure that relates to all your

3 documentation?

4 MR. HARMON: To all of our documentation, and contrary to the

5 characterisation in the Defence submission, not solely to Republika Srpska

6 documents.

7 JUDGE MAY: Yes, unless there's anything else to add to it.

8 MR. HARMON: No, Your Honour, thank you.

9 MR. BRASHICH: Your Honour, the position that the Krajisnik

10 defence has taken is not that it refuses to invoke the reciprocal

11 discovery, it chooses not to invoke it. The gross imbalance of which the

12 Prosecution speaks of is somewhat, really, imbalance vis-a-vis the

13 defendant.

14 In the jurisdiction where I come from, the Prosecution does the

15 investigation and then indicts, and shortly thereafter the core documents

16 are made available to the Defence. In this case, we have an indictment

17 which is over a year old, a defendant who has been sitting in gaol for

18 over a year, and discovery is not yet complete, and it is in this context

19 that the Prosecution now wishes to withhold the core documents.

20 I had read Your Honour's suggestion, if it be that, as an order.

21 If it was not an order, I would then move orally for such an order.

22 This is not a civil trial where the -- each party bears a

23 responsibility to either defend and only prove the case by a fair

24 preponderance of the evidence. This is a criminal Prosecution, and the

25 burden falls upon the Prosecution to make available all of its evidence to

Page 56

1 the Defence. The Defence does not have that particular burden.

2 The Prosecution here is not in a game, who's going to win or

3 lose. The Prosecution is the conscience of the International Community.

4 It has a higher standard than a mere litigant, and if the suggestion made

5 by Your Honour was a mere suggestion, I move orally that that suggestion

6 be made into an order.

7 JUDGE MAY: Yes, Mr. Pavich.

8 MR. PAVICH: Your Honour, just a couple of -- Your Honours, just a

9 couple of points, since I'm not directly involved in the conflict that's

10 currently before the Court.

11 First, I do think that the fact that we may have invoked Rule

12 66(B) and a request to inspect should not deter the Court from confronting

13 the issue because this issue, I believe, will appear again in other cases

14 that will be forthcoming, and I think it would be very helpful if all the

15 parties could get clarification regarding this issue.

16 Secondly, as the Court has also indicated, a possible reason for

17 invoking a Rule 66 request to inspect, as we've done on behalf of

18 Ms. Plavsic, is to have an opportunity to inspect the entire archives of

19 the Prosecutor's Office, and we are discussing that now with the

20 Prosecutor's Office in terms of whether we might be able to get an index

21 of those documents as a starting point to determine which of those 2.7

22 million documents may be relevant to this case.

23 And I would also suggest that the fact that those documents may

24 extend beyond the borders of Bosnia-Herzegovina does not necessarily

25 indicate that they would not be relevant. In a case of this magnitude,

Page 57

1 it's quite possible that documents coming from other republics of the

2 former Yugoslavia may be relevant.

3 So I would certainly not disagree with the Court's observation

4 that one of the purposes of a request to inspect documents under Rule

5 66(B) may be precisely to enable the Defence to have an opportunity to

6 determine what is in the archives, and that is, in fact, one of the

7 reasons that we've made such a request.

8 JUDGE MAY: We'll deal with the third motion which is the motion

9 on behalf of Mr. Krajisnik to compel the Prosecution to provide the

10 identity of subordinates.

11 Yes, Mr. Brashich.

12 MR. BRASHICH: Your Honour, at the outset, I don't know whether my

13 motion made on Saturday was accepted to reply on the record to the

14 Prosecution's answer which I received on July 6th. Perhaps that issue is

15 moot since I could very easily address it orally.

16 JUDGE MAY: Why don't you do that.

17 MR. BRASHICH: Your Honour, again, I wish to stress that I'm

18 mindful of the Court's earlier order with regard to bills of particular.

19 I join Mr. Pavich's request that the Court take into consideration Judge

20 Hunt's order of June 26 in the Brdjanin and Talic case, and I would also

21 urge the Court to look at the February 20th decision in that matter which

22 preceded it.

23 A bill of particulars in this case has not been granted, and it

24 has been suggested by the Trial Chamber that the pre-trial order will take

25 its place.

Page 58

1 As I had suggested in my motion, the Defence is faced with the

2 following: We have 7.1 and 7.3 responsibility, command responsibility.

3 In paragraph 18.2 of the consolidated amendment, there is a charge that at

4 Sikrina [phoen] On May 5 or 7, 1992, 17 Bosnian Muslims and Croats were

5 killed on the territory of Bosanski Samac. The only reason why I know

6 what had occurred on May 7th or 9th, 1992, was because I was lead counsel

7 in the Bosanski Samac case.

8 The individual who allegedly perpetrated this particular crime,

9 these killings, was a man by the name of Lugar, and his last name escapes

10 me. Now, he was a paramilitary who had come to the territory of Bosanski

11 Samac around April 3rd or 5th. At that particular time, there was a

12 Colonel Nikolic who was the military commander.

13 I am being charged under, perhaps 7.1 - I don't know - did my

14 client give a direct order, or under 7.3, superior command. I can't start

15 following up the chain of command from Lugar to my client unless I know

16 the individuals over whom I had command control of.

17 We go Lugar, paramilitary. We can go to Nikolic, colonel of the

18 JNA. If we go to Nikolic JNA on May 7th, there wasn't an Army of the

19 Republika Srpska. Nikolic goes straight to Belgrade, not to my client.

20 If on the other hand, it is the Prosecution theory that Lugar, last name

21 unknown, is under the direct control of the Crisis Staff of Bosanski

22 Samac, then I have got to go to Blagoje Simic in Scheveningen and say,

23 "Did you Blagoje Simic have a direct command control with my client in

24 Pale?"

25 So unless I get the identity of these individuals, I can't send

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1 out my investigators, I can't start, and I could not even argue the

2 reasonableness of my request. As an example with Bosanski Samac, I just

3 don't know, but I have given you a concrete example of why the Prosecution

4 should give me this information now. If I get it at a later date, if I

5 get it during the middle of trial - all of a sudden I find out that Lugar

6 is the person who allegedly had perpetrated these killings - then I've got

7 to go and find Lugar. Well, Lugar is dead. So now I have to go to

8 secondary evidence and I cannot adequately prepare Mr. Krajisnik's Defence

9 without that information. Thank you, Your Honour.

10 MR. GAYNOR: Your Honour --

11 JUDGE MAY: Yes, Mr. Gaynor?

12 MR. GAYNOR: The Prosecution's arguments in relation to this

13 motion have been set out in our motion of the 6th of July, and I won't

14 bring you through those arguments in detail. The Prosecution today, and

15 indeed in his motions, appears to accept to what he is essentially

16 attacking is the form of the indictment. He is essentially claiming that

17 the indictment is insufficiently particular in relation to the identity of

18 subordinates, aiders and abbettors. As you're well aware, this is

19 essentially the Prosecution's third bite of this particular apple.

20 This Trial Chamber ruled on the 1st of August 2000 that:

21 "There is no lack of precision in the pleading of the material

22 facts in the indictment, as the facts are sufficiently pleaded, and it

23 would be unreasonable to ask the Prosecution for further precision."

24 Trial Chamber went on to say:

25 "Having regard to the higher level of responsibility alleged

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1 against this accused, the Trial Chamber finds that the Prosecution has

2 satisfied, for the purpose of the indictment, the requirements for

3 specificity in setting out, among other things, the persons who committed

4 the alleged crimes."

5 What the Defence for Mr. Krajisnik today are essentially asking is

6 for this Trial Chamber to revisit that decision and to revisit the

7 decision of the 8th of May 2001, at which this Trial Chamber, for the

8 second time, rejected the Defence's application for particulars.

9 The Defence have failed in their motion of the 25th of June, and

10 in the motion which we received last night, to provide any reasons on

11 which this Trial Chamber should reverse its earlier two decisions.

12 Today, we hear arguments in relation to a person called

13 Mr. Lugar. Prosecution's position on this is that the Defence is

14 confusing facts which are pleaded in an indictment and evidence which is

15 required to prove those facts. The distinction was made very clear by

16 Your Honours in your decision of the 1st of August 2000 where you said:

17 "There is a difference between the facts of the case and the

18 evidence required to prove those facts. The facts must be pleaded while

19 the evidence is adduced at trial. It follows that disputes as to issues

20 of fact are for determination at trial and not via motions relating to the

21 form of the indictment."

22 Your Honours, in relation to notice, the Defence not only has the

23 indictment and the confirming materials which were handed over in May of

24 2000, they also have 350 witness statements, 393 core documents, and on

25 the 31st of August, they shall receive the pre-trial brief. As we are all

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1 aware, the pre-trial brief must contain a summary of the evidence which

2 the Prosecutor intends to bring regarding the commission of the alleged

3 crime and the form of responsibility incurred by the accused.

4 Prosecution's position is that, as this Trial Chamber has already

5 twice held that the indictment has been pleaded to the requisite degree of

6 specificity, it would be entirely inappropriate for the Defence to be

7 granted the relief which it now seeks.

8 JUDGE MAY: Thank you. Yes, Mr. Brashich, briefly.

9 MR. BRASHICH: I do not seek facts. I seek names. And I don't

10 see what the problem is as giving up the names now. I then have half of

11 July and all of August to send my investigators out. I just don't

12 understand why it is like pulling teeth to get information from the

13 Prosecution.

14 [Trial Chamber confers]

15 JUDGE MAY: The Trial Chamber will consider these motions and will

16 give our decisions in due course in writing.

17 We will go on to consider procedural matters and the status of the

18 proceedings. The Chamber notes that there have been meetings with the

19 Senior Legal Officer, and we would encourage the continuance of those, in

20 order to move things further along.

21 I will ask Mr. Harmon if there is anything the Prosecution want to

22 raise. I believe there are some problems about redaction, which are going

23 to need attention, and also the Rule 92 bis statements, and perhaps you

24 could help us, if you can, with the status of those.

25 MR. HARMON: Yes, Your Honour. On the 22nd of June, the Krajisnik

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1 Defence withdrew its consent to a previous agreement that it would receive

2 redacted statements at least 21 days prior to the trial testimony -- prior

3 to the trial or the testimony. Now, we accept that alteration of a

4 previous agreement, and we have been attempting to contact certain -- all

5 of those witnesses who had previously been protected in that measure, and

6 we continue to do so. We will provide approximately 150 unredacted

7 statements to the Defence, and we are in the process, and should be

8 complete in the process, of turning over to the Defence by the 31st of

9 August all of the witness statements in unredacted form, absent request,

10 special request, for protective measures which may inevitably appear as we

11 continue in this ongoing process.

12 JUDGE MAY: So you propose to hand over unredacted statements

13 unless there is an application for protective measures in relation to a

14 particular witness which you will have to make to the Trial Chamber?

15 MR. HARMON: That's correct.

16 JUDGE MAY: Well, provided that's done in good time, there can be

17 no objection to that.

18 MR. HARMON: Now, the 92 bis issue is a different issue, and one

19 that we are also addressing. 92 bis is a recent enactment, a change to

20 the Rules - I think it was published in mid-January of this year - and as

21 Your Honours are aware, the compliance with the Rule itself, in other

22 words getting the declaration, requires enormous logistical -- imposes

23 enormous logistical burdens on us. Now, we are in a position now to turn

24 over approximately 18 statements, where there have been declarations

25 prepared under Rule 92 bis. We are in the process of identifying 92 bis

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1 witnesses, and I believe we have identified approximately 186 witnesses

2 who we believe we would be submitting statements under that Rule.

3 We are awaiting a decision of a motion that we filed, I believe,

4 on the 7th of May, requesting that the Registrar appoint a presiding

5 officer pursuant to Rule 92 bis, and we don't have a decision on that.

6 The question becomes this, as far as the office of Prosecutor is

7 concerned: Under the Rules, under the Rule 65 ter - let me find the

8 subpart - 65 ter (E)(ii)(e), we have to, first of all, provide the names

9 of all of the witnesses in our pre-trial brief, and under small (e), we

10 have to indicate whether those witnesses are going to testify in person or

11 pursuant to 92 bis by way of a written statement or use of a transcript of

12 testimony. We are prepared to make that indication in a timely fashion.

13 We can do that by the 31st of August, or come very, very close to 100 per

14 cent compliance with that subpart of the rule.

15 Where the rule becomes more problematic for us is Rule 66(A)(ii),

16 because under the rules, under that particular rule, we have to provide to

17 the Defence "copies of all written statements taken in accordance with

18 Rule 92 bis."

19 Now, we will be providing to the Defence by the 31st of August the

20 witness statements of August of our witnesses. We will provide them in

21 our trial brief with the indications of which of those witnesses will be

22 testifying, or which of those witnesses will be indicated as 92 bis

23 witnesses.

24 But whether we will be able to fully complete the requirements of

25 92 bis, in other words, acquire the declaration from each of those

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1 witnesses who have been identified as such, is a problem for us. And it

2 is one that we are addressing, but I'm not particularly optimistic that by

3 the 31st of August we will have completed all of that process,

4 particularly since we're still awaiting for a decision from an application

5 that we have made, and because it imposes, as I say, large, enormous

6 logistical burdens to fully comply with that.

7 Now, it seems to me that the Defence will be fully notified as to

8 which witnesses are going to be called under Rule 92 bis by us, they will

9 have their complete statement, and so they will not be at any disadvantage

10 if procedurally under Rule 92 bis we haven't finally obtained by the 31st

11 of August the declaration and fully complied with the procedures, so --

12 JUDGE MAY: Speaking for myself, I would have thought that if you

13 were doing as much as you can in regard to that, you will have complied

14 with the Rule as far as you can, provided there's disclosure of the

15 statements and an indication whether the witness is going to be a Rule 92

16 bis witness or not.

17 MR. HARMON: We intend to do that, Judge May. It's just a

18 question of whether this Rule under 66(A)(ii) require that we complete in

19 toto the process described in Rule 92 bis.

20 JUDGE MAY: If you need further time to do it, you can ask for it,

21 no doubt.

22 MR. HARMON: All right, thank you.

23 JUDGE MAY: Yes, Mr. Brashich.

24 MR. BRASHICH: Your Honour, on that particular point, I would like

25 some guidance from the Chamber. Does the service of the pre-trial brief

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1 kick in the provisions of a 92 bis (E), the 14-day Rule?

2 JUDGE MAY: We'll consider it and give you -- we'll give you

3 adequate time.

4 MR. BRASHICH: Thank you.

5 JUDGE MAY: I notice the way it's worded that it simply says,

6 "... seeking to adduce a written statement, shall give 14 days' notice."

7 It doesn't say that the statement has to be produced, although I rather

8 think that was what was intended. It would be on receipt of the statement

9 that the 14 days would start to run, but we'll have to think about that.

10 MR. BRASHICH: Thank you, Your Honour.

11 JUDGE MAY: Now, anything anybody else would like to raise?

12 Mr. Harmon.

13 MR. HARMON: We would be raising and filing with the Court in due

14 course an application to expand the length of the pre-trial brief. Given

15 the mathematics that I've done in this case, the number of witnesses and

16 the requirements of the Rule which require us to summarise the testimony

17 of approximately 400 witnesses, it's hard for me to imagine that we can do

18 that in 50 pages. So we will be making application shortly with a

19 proposal, as well, to expand the pre-trial brief.

20 JUDGE MAY: Yes, very well.

21 Now, as far as the Defence are concerned, are there any matters

22 that anyone wants to raise?

23 MR. BRASHICH: No, Your Honour.

24 JUDGE MAY: Mr. Pavich?

25 MR. PAVICH: No, Your Honour.

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1 --- Whereupon the Motion Hearing adjourned at

2 3:36 p.m.
























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