1 Monday, 26 January 2009
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.05 a.m.
5 JUDGE AGIUS: Good morning, Madam Registrar. Could you call the
6 case, please.
7 THE REGISTRAR: Good morning, Your Honours. This is case number
8 IT-05-88-T, the Prosecutor versus Vujadin Popovic et al.
9 JUDGE AGIUS: Thank you.
10 All the accused are presents. Prosecution is Mr. McCloskey and
11 Mr. Vanderpuye.
12 Now, the Defence, I notice the absence of Mr. Ostojic and
13 Ms. Nikolic. Ms. Tapuskovic is in the back. Mr. Nikolic is in the back.
14 Yes, I think that is about it because Counsel are not sitting in the
15 proper places today because of arrangements made for Mr. Haynes.
16 Yes, last Friday we finished with the witness, and we still have
17 to deal with the exhibits. So let's start -- yes, Mr. Josse?
18 MR. JOSSE: Your Honour, could I apply that this be put off,
19 please. We are grateful to Madam Fauveau - she provided the list on
20 Saturday - and to the Prosecution who provided us with a list yesterday.
21 It's a very long list. We need more time to study it. There are
22 definitely going to be objections, and I would have thought the Court
23 should set aside about half an hour for our submissions on that topic at
24 some point in the next week or so, whenever it's convenient. But I
25 regret to say we are not ready to deal with it now.
1 JUDGE AGIUS: Any objection from anyone? Ms. Fauveau?
2 Mr. Vanderpuye.
3 MR. VANDERPUYE: There is no objection from our point of view,
4 Mr. President, but we would prefer to tender them at this moment. If
5 Mr. Josse wants to argue it at another time, I suppose that would be
6 appropriate as well.
7 JUDGE AGIUS: I think that's the proper way of going about it.
8 Yes, Mr. Haynes.
9 MR. HAYNES: When do we anticipate doing this?
10 JUDGE AGIUS: Straight away.
11 MR. HAYNES: I mean the argument. I am not anxious that the
12 evidence during my time should be interrupted.
13 JUDGE AGIUS: Okay. I understood that Mr. Josse will be looking
14 into them at the earliest and come back to us at the earliest, and then
15 we will fit in half an hour somewhere, in the course of the week.
16 MR. JOSSE: That's all right from my point of view, Your Honour.
17 JUDGE AGIUS: If half an hour is needed, because we might as well
18 ask Mr. Josse if he is objecting to some documents to reduce his
19 objection to writing and that will save us court time.
20 But anyway, for the time being let's proceed with the tendering
21 and then we will decide on admission in due course.
22 So, Ms. Fauveau, you have a whole list?
23 MS. FAUVEAU: [Interpretation] Yes, Your Honour. It's the list we
24 transmitted yesterday.
25 JUDGE AGIUS: Okay. And no one else from the Defence -- from
1 Defence teams, if I remember well? None. Mr. Vanderpuye?
2 MR. VANDERPUYE: We have no objection to the list tendered by
3 Ms. Fauveau.
4 JUDGE AGIUS: All right. And do you have a list of your own?
5 MR. VANDERPUYE: We do have a list of our own and we would offer
6 that at this time. We also have an information report prepared by Tomasz
7 Blaszczyk which goes to the questions or the concerns, rather, raised by
8 my colleague Mr. Josse concerning the authenticity of the Sadjestvo
9 documents that were shown to the witness. We would be offering that as
10 well under 65 ter 4220. My friends have a copy of that document as well.
11 JUDGE AGIUS: Okay. Thank you.
12 MR. JOSSE: That we have literally just been given. I suspect I
13 will object to that, too, but could we at least have a chance to read it
14 and then come back to the Chamber?
15 JUDGE AGIUS: All right. Fair enough. Fair enough.
16 Let's move to the next matter. Last week, you, Mr. Josse, raised
17 again --
18 [Trial Chamber and registrar confer]
19 JUDGE AGIUS: You have also a list of your own? Yes.
20 MR. JOSSE: We have a list of our own, so could that be tendered
21 and then the admissibility can be decided in due course.
22 JUDGE AGIUS: Okay.
23 MR. JOSSE: And there is one other matter before Your Honour
24 proceeds. Perhaps I should mention to show that we are at least on top
25 of one issue. We asked to have put off a decision on the admissibility
1 of P4110, which was an exhibit tendered by the Prosecution through the
2 witness Jevdzevic. That I would be in a position to deal with. My
3 submissions will take about two minutes. I don't know whether -- whether
4 the Chamber wishes to deal with that now, but I appreciate that may
5 involve a different Prosecution advocate.
6 JUDGE AGIUS: Let's leave it for the time being, because I
7 suppose the Prosecution was unprepared for this. We are unprepared for
8 this. I happen to remember what P4110 was because we discussed it on
9 several occasions, even through the Borovcanin team as well, so --
10 MR. JOSSE: Your Honour, could I give this undertaking? When we
11 are ready so far as the Kosovac documents are concerned, I will write to
12 one of the legal officers and try and sort out some sort of -- try and
13 make some sort of scheduling arrangement with them about this.
14 JUDGE AGIUS: But I am telling you that I am going to propose to
15 my colleagues that instead of giving you court time we give you an
16 opportunity to reduce your submissions in writing. That will save us 30
17 minutes, if not more, of court time which we can utilise for other
18 matters. Okay. Thank you.
19 MR. JOSSE: You would like all the submissions in writing?
20 JUDGE AGIUS: No, no. I told you I am going to recommend to my
21 colleagues, suggest to my colleagues --
22 MR. JOSSE: Thank you.
23 JUDGE AGIUS: -- adopting the written approach. But I don't want
24 to use more court time on this now. Thank you. We will come back to you
25 later. Thank you.
1 Now, last week, we had a repetition of your request to make an
2 opening statement, Mr. Josse. We heard your submission as well as that
3 of Mr. McCloskey. We still have to decide on the Djokic matter, but
4 independently of that, we have come to the conclusion that without
5 pretending our decision that we are handing down orally now to constitute
6 a precedent for the future for this Trial Chamber, or for any Trial
7 Chamber for that matter, we are granting you leave to make an opening
8 statement of the duration of about 45 minutes maximum, on condition that
9 this will be strictly an opening statement and not an abridged closing, a
10 version of closing arguments. Coming from the United Kingdom, you are
11 pretty aware of what an opening statement in a trial is, especially when
12 it is combined with or followed by evidence. We enjoin you to stick to
14 Having said that, you can start.
15 MR. JOSSE: Before I start, could I deal with one other matter
16 that requires attention really prior to the commencement of the Gvero
17 case, and this is a stipulation that we have reached with the
18 Prosecution. I say "prior to the start of the Gvero case" because it
19 goes back to the Court giving us leave to apply to recall Prosecution
20 witnesses in relation to the allegations that General Smith made so far
21 as our client's presence at the Zepa border was concerned.
22 If the Chamber could go to 6D337. That is a stipulation.
23 JUDGE AGIUS: Can we have it on e-court, please. 6D337.
24 MR. JOSSE: And this is an information report, as the Court will
25 see, from a Prosecution investigator called Dusan Janc, and it relates to
1 a conversation that he had along with Mr. Thayer with the Prosecution
2 witness Thomas Dibb on the 22nd of January of last year.
3 Your Honours, I could read it all out. There doesn't seem a lot
4 of point. I would invite the Chamber to read it in due course, but
5 Mr. Thayer and I have agreed that it can go into evidence and I have
6 circulated it some time ago to all my learned friends on this side of the
8 JUDGE AGIUS: Okay. Thank you, Mr. Josse.
9 MR. JOSSE: That being done, I can turn, if I may, to the
10 opening. I will, of course, do my very best to keep to the requests --
11 the understandable request that the Court has just made of me.
12 Let me begin by apologising --
13 JUDGE AGIUS: One moment, do you wish to remark -- add any remark
14 on what Mr. Josse has just described as a stipulation? Would you?
15 MR. McCLOSKEY: No, Mr. President, I have not spoken to
16 Mr. Thayer about this, but of course I take Mr. Josse at his word.
17 JUDGE AGIUS: All right. Thank you.
18 Yes, Mr. Josse.
19 MR. JOSSE: I am grateful for that. As I was saying, Your
20 Honours, I want to apologise to the interpreters and also the court
21 stenographer, because they have all requested that I do as most, if not
22 all, of my colleagues have done and provide them with a clear typed
23 version of what I am about to say. Regrettably, I tend to work with
24 hieroglyphics and the manuscript that I have in front of me is totally
25 illegible, and I will endeavour to go particularly slowly in those
2 Your Honours, bearing in mind what the Chamber has just asked me
3 to do, to make this into an opening statement rather than some sort of
4 first stab at a closing statement, we suspect that the Chamber are asking
5 themselves why the Gvero team wish to make an opening statement when they
6 have lead either no evidence or so little evidence, it doesn't really
7 matter for this purpose. And as we have already submitted, we say that
8 under the rules, it's our right to make such a statement and it's the
9 right of our client to have his case ventilated, albeit very briefly, at
10 this particular juncture.
11 But, secondly, we were anxious to take this opportunity to
12 explain the extent to which we contend the law, the procedure of the
13 Tribunal, and, indeed, general legal logic allows us to adopt the course
14 that we have chosen. Let me say in that regard that it's not an easy
15 decision and it's a decision that General Gvero and his lawyers have
16 agonized over for a long period of time. In part, of course, this is why
17 we were so insistent to keep the option of calling some evidence open for
18 as long as we possibly could. In this regard, of course, we had to
19 monitor very carefully the case that the fifth accused, through his
20 Counsel, chose to conduct, and that is a subject that we will no doubt
21 return to before this trial is over but not one that I will address at
22 this particular juncture at all. We felt it necessary to continually
23 monitor the state of the evidence right up to the point of making this
24 critical decision.
25 The decision that we have made, Your Honours, has been a
1 particularly hard one for General Gvero. He is a proud man, and he has
2 what he regards as a distinguished military record both in the JNA and in
3 the VRS. As the Chamber has seen recently, he is a man who is keen to
4 contribute actively to his Defence, we have seen that in the
5 interventions that he has made, and he wishes to participate, at least to
6 some extent, in these proceedings. He believes passionately that he is
7 innocent. This is reflected, of course, in his not guilty pleas and the
8 way that his defence has been pursued on his behalf via the many
9 witnesses that the Trial Chamber has heard over the last two and a half
11 By instinct and by nature, General Gvero would like to be in a
12 position to proclaim his innocence from the rooftop and explain to the
13 Chamber, explain to the public and perhaps even to history, why he is
14 innocent, what he did, why he did it, and indeed what he didn't do, but
15 above all else that he is an innocent man.
16 Somewhat reluctantly he has accepted the advice of his lawyers to
17 the effect that this is not what this trial is about, and General Gvero's
18 predicament reminded me of the words of a famous English jurist and
19 novelist who died just over a week ago, a man called John Mortimer. In
20 1982 he wrote this, and it seems very apposite to General Gvero's
22 "The law seems like a sort of maze through which a client must be
23 lead to safety, a collection of reefs, rocks, and underwater hazards
24 through which he or she must be piloted."
25 Well, of course, the obvious question is this: If this trial, so
1 far as General Gvero is concerned, is not about him proving his
2 innocence, what is it about? Again, before I turn to that question,
3 which I will in a moment, let me deal with another issue that it's not
4 about. We contend it's not about leaving some sort of legacy for
5 history, nor, frankly, is this trial about truth-finding in any real
6 sense, what did or did not happen. We contend that the plain fact of the
7 matter is that the form, the procedure, and even the law of the ICTY does
8 not make for any of those type of functions.
9 The procedure and process is, of course, a hybrid one; we
10 acknowledge that. But we contend that the rules in the form of the
11 trials as they have evolved here over the last ten years or so are
12 ostensibly of an adversarial nature. In this regard, the trials are
13 primarily about the burden and standard of proof.
14 So far as General Gvero is concerned, what exactly does this
15 mean? Well, it means this, we contend: The trial is about the
16 indictment, the various counts that he faces, and whether the Prosecution
17 has satisfied the Trial Chamber beyond a reasonable doubt in relation
18 each count, of course considered separately, whether General Gvero is
20 Now, retelling of history may come into that in part, but only in
21 passing. Some degree of truth-finding may come into that in part, but
22 that would only be fortunate and coincidental by-products of what we are
23 all really doing here, which is examining the indictment in the way that
24 I have just described. And the essence of the trial, its very purpose,
25 indeed its very lifeblood is worth remembering time and time again --
1 JUDGE AGIUS: Yes, Mr. McCloskey.
2 MR. McCLOSKEY: We are hearing a closing argument. I would love
3 to listen to John Mortimer, "Rumpole of the Bailey," but that's closing
4 argument. And I think Ms. Fauveau has made a point. If this accused is
5 allowed to give a closing argument, shouldn't all of them be allowed to
6 give a mini closing argument. If I could hear facts about the case, what
7 his case showed, you know, something to do with Srebrenica, I would like
8 to listen. But whether or not the reasons why he's chosen not to
9 testify, whether or not this Tribunal has the capacity to find the truth,
10 these are interesting closing argument issues but I don't think --
11 JUDGE AGIUS: I think we are getting there. We are getting
12 there. I think I feel this is sort of an introduction. That's the
13 feeling I have, okay? So let's try not to -- thank you for your comment,
14 but let's avoid interrupting him during his speech, as much as we can.
15 At the end of the day, we are talking of 45 minutes.
16 So, Mr. Josse, let's proceed.
17 MR. JOSSE: Thank you.
18 As we all know, the Prosecution bring the case and they have to
19 prove it. Turning specifically to what has happened in the Gvero case,
20 that means quite literally that the accused does not have to prove
21 anything at all. At the very simplest level, it means that General Gvero
22 can say to Mr. McCloskey, You chose to put me in the dock, you have to
23 prove the case against me, and of course you have to prove the case
24 against me beyond a reasonable doubt.
25 Now, Your Honour, these are often repeated words, but their
1 precise meaning are not at all times sufficiently considered, we contend,
2 nor perhaps always understood.
3 If I could give a specific example. We want to invite the
4 Chamber to contrast the standard required of the Prosecution at the Rule
5 98 bis stage as opposed to the final judgement stage. They are, of
6 course, quite different, and we have some concerns about this, judging
7 not least by some of the submissions this Chamber heard on the topic from
8 certain participants in the trial, but not just because of that.
9 Because, as this Chamber will recall, on the 15th of May of last
10 year, the Appeals Chamber rendered an important decision in relation to
11 provisional release that involved three of the accused in this case, one
12 of whom was General Gvero. It's of note that in his partially dissenting
13 judgement, at paragraph 8, Judge Liu said:
14 "Lastly, I agree with Judge Guney that the distinction between
15 granting provisional release before and after dismissal of a Rule 98 bis
16 motion is without merit because at that stage the presumption of
17 innocence has not been rebutted."
18 Your Honour, the learned Appeal Judge there appears to be saying,
19 both subtly and of course very respectfully, that perhaps the majority in
20 that particular decision had not grasped the full meaning of the
21 presumption of innocence in the context of Rule 98 bis. And if that is
22 right, we have a fear that not everyone grasps the concept so far as
23 final judgement is concerned, in particular - and that's where it falls
24 into what I'm saying now - the right of an accused not to seek to prove
25 his innocence and his right not to call any evidence, because, it's of
1 course, central to the presumption of innocence and what I have just
3 I do want to talk, positively if I may in this context, about
4 professional judges, because much is made in these trials of the fact
5 that evidence can be admitted rather than excluded because the trial is
6 being conducted by professional judges. We, in the past, have contended
7 that that may, in some way, be missing the point because judges need to
8 perform their two functions as judges of law and judges of the fact; in
9 other words, should a piece of evidence be included or excluded on the
10 one hand and the weight that it should be accorded on the other hand.
11 But so far as the burden and standard of proof is concerned,
12 notwithstanding everything I have said, we say that the accused are
13 fortunate to have professional judges trying this case who have and will
14 at all times, no doubt, give effect to the central tenet of the system of
15 justice in place here, the one that I have been going on about for the
16 last few minutes, and that the judges here will direct themselves
17 properly on the burden of standard of proof.
18 In addition to that, the accused are fortunate, because juries
19 can and, we have little doubt, are frequently swayed by extraneous
20 considerations - emotions, political considerations, and perhaps moral
21 considerations. We have no doubt that you, as professional judges, will
22 put such matters out of your head and try this case on the evidence,
23 according to the rules and procedure as set down.
24 In this regard, Your Honours, the Defence for General Gvero wish
25 to acknowledge the terrible fate suffered by the men of Srebrenica. Of
1 course, to some extent, we, on General Gvero's behalf, have the luxury of
2 being able to say this because our client is not charged with genocide,
3 extermination, or with mass murder. But lest it be thought otherwise, we
4 do recognise the suffering of those involved.
5 That being said, and this is central to all justice and central
6 to the system, the suffering of those involved will not be compensated by
7 the conviction of any innocent man or indeed innocent men, and this, of
8 course, is where we say you need to show your courage and professionalism
9 in relation to this, because, and dare I say it, there is a real chance
10 that some or all of these men are probably guilty.
11 Now, of course, I am not conceding or even suggesting this on the
12 part of General Gvero or indeed any of the other accused, but it's a
13 logistical and true application of the burden of standard of proof that
14 an individual who is probably guilty or even most probably guilty must be
15 acquitted. In those circumstances, with the pressures that are brought
16 to bear upon this Court, Judges need to show real independence.
17 Now, notwithstanding what Mr. McCloskey has just said in the
18 objection he has just made, primarily, of course, this is not the place
19 to comment on the evidence that has been heard, because we acknowledge
20 that we will have an opportunity to do that in due course. But, Your
21 Honours, we do want to give one example of the practical application of
22 what I've been saying, as well as what we contend is a proper strategic
23 decision of the matter in hand, namely, the decision not to call any
25 It will have been noted that a significant number of the
1 witnesses on the Gvero 65 ter list went to what I will call in shorthand
2 the alibi issue, the issue that I just alluded to before I started, to do
3 with General Gvero's alleged presence at the check-point in Zepa in late
4 July 1995, as alleged by Sir Rupert Smith and Mrs. Sayer.
5 The extent to which this allegation matters at all is one thing,
6 and I am not going to go into that at all today. But of course it's
7 axiomatic to that allegation that the Prosecution have to prove beyond a
8 reasonable doubt that General Gvero was in fact there.
9 We say that on the existing evidence there is no prospect of the
10 Chamber coming to that conclusion. Buried in the evidence in this case
11 was the evidence on the 18th of September, 2007, at page 15594 of the
12 transcript, of General Skrbic. He was being asked questions in
13 re-examination by the Prosecution advocate, I think it was Mr. Nicholls
14 at the time, and what he said was -- excuse me. He was asked:
15 "Did you ever talk to General Gvero either at the time or later
16 about where he was, what he was doing, the period 10th to 20th July, or
17 around that area, 1995?"
18 And the witness replied:
19 "We really did not have time to discuss that. I left on the 27th
20 July 1995 for the western part of Republika Srpska where the situation on
21 the front line was very bad, very difficult, and General Gvero was
22 already there."
23 What we say is significant about that is that the Defence did not
24 become aware of the allegation of General Smith until approximately six
25 weeks later on the 30th of October. In short, at that time no one had
1 any idea that this was going to become a contentious matter.
2 So far as the issue is concerned, two recent witnesses have dealt
3 with it. One was Mr. Mitrovic on the 2nd of September of last year at
4 page 25084, and in summary he said he saw General Gvero at Glamoc on the
5 28th of July. And then Mr. Masal said that he saw him in Drvar, and that
6 was on the 1st of December of last year at 29081. They were asked
7 questions on the subject by the Defence. When the Prosecution had the
8 opportunity to cross-examine them on that topic, they chose not to do so.
9 We say that apart from this being a dereliction of the
10 Prosecution's duty under Rule 90(h)(2) of the Rules of Procedure, it
11 really means that the Prosecution have left the Trial Chamber unable to
12 judge properly the evidence of those witnesses in regard to what they are
13 saying, because it simply hasn't been challenged and they simply haven't
14 been cross-examined upon it.
15 If one looks at the pieces of evidence that I have just
16 mentioned, we contend that it's simply impossible to conclude at this
17 juncture beyond a reasonable doubt that General Gvero was where General
18 Smith and Mrs. Sayer Placed him.
19 Generally, Your Honours, we say that the Prosecution have not
20 proved so far as any of the counts of this indictment are concerned
21 beyond a reasonable doubt the allegations leveled against our client, but
22 as I have already said, those are matters that we will develop more fully
23 in our final brief. I am very near the end of my submission this
25 I had begun it by describing how General Gvero wanted to proclaim
1 his innocence, and I had mentioned - and implied perhaps I should say -
2 that he had found this whole process somewhat difficult. However, it's
3 worth remembering that he did choose, unlike any of the other accused in
4 this case, to make a short opening statement before he had heard the
5 evidence leveled against him.
6 In brief conclusion, I would like to remind the Trial Chamber of
7 a couple of points of that opening statement, bearing in mind General
8 Gvero delivered it almost exactly 29 months ago, on the 23rd of August,
9 2006, at page 615 of the transcript. And General Gvero - and I am only
10 picking two short passages for your attention at this stage - said this:
11 "Your Honours, I wish to clearly state in this indictment against
12 me the only true facts are my first name, last name, date, and place of
13 birth, my rank and position. It is not true that I was a member of any
14 joint criminal enterprise and that I conspired with anyone to commit a
15 crime. It is not true that I instigated anyone to do that or provided
16 direct or indirect assistance. It is not true that I was a perpetrator
17 or co-perpetrator in the commission of a crime and that I was in any way
18 involved in the commission of war crimes."
19 And then a page or two later, at 617, he concluded his remarks by
21 "Your Honours, I am convinced that I am innocent, and it's up to
22 you to make the judgement on innocence or guilt. Please don't take it
23 against me, but it is my position that we shall all be judged by somebody
24 above us and we shall also be judged on how we judge the others. Your
25 Honours, my defence in this trial will be based on the following
1 principle: I do not wish to shift the blame for my acts on anyone else;
2 similarly, I do not wish to take responsibility for the acts of others.
3 I expect from this Trial Chamber a just and fair trial and a just
4 decision. Nothing more and nothing else."
5 And in conclusion, Your Honours, all I can say is that
6 Mr. Krgovic and I, on General Gvero's behalf, at this juncture of the
7 trial echo those words on his behalf.
8 JUDGE AGIUS: Thank you, Mr. Josse. That, I take it, concludes
9 your defence case?
10 MR. JOSSE: It does.
11 JUDGE AGIUS: Okay. Thank you. We'll come down with the Djukic
12 decision shortly. It's almost my -- my intention was to have it ready
13 this morning but we were delayed. So I expect it any time now.
14 So Mr. --
15 MR. JOSSE: I am just going to pass the lectern to Mr. Haynes, if
16 I may.
17 JUDGE AGIUS: Do you want assistance? That's okay.
18 Mr. Haynes, Mr. McCloskey, sometime back, about two weeks ago I
19 suppose, we were informed that Mr. Haynes wanted to have a confirmation
20 from the Trial Chamber prior to the beginning of his client's testimony
21 that during and for the whole duration of his client's testimony, we will
22 have -- that means he, General Pandurevic, will have unlimited access to
23 his counsel, Mr. Haynes. The information that we received at the same
24 time, roughly, was that Mr. McCloskey for the Prosecution did not object
25 to that in principle.
1 Now, as you know we have come from different jurisdictions with
2 different practices on this. I speak for my own. It would be unheard of
3 to have something like this, but I also appreciate that this is not my
4 home country and that this is also not the first time this issue has
5 arisen and that there are pronouncements, by one Trial Chamber at
6 least -- by two Trial Chambers and the Appeals Chamber in one case.
7 So we wanted to entertain at first, to hear some submissions from
8 you in the first place, Mr. Haynes, as to what you understand by
9 "unlimited access," and then we hear also Mr. McCloskey, and then we will
10 let you know what our position is.
11 MR. HAYNES: Mr. President, like you I am familiar with a system
12 where this sort of practice would be unheard of, and I make it absolutely
13 plain that when the Appeals Chamber decision in the Prlic case was drawn
14 to my attention, I didn't exactly greet it with great enthusiasm. But it
15 does seem to me, having reminded myself of what the Appeals Chamber has
16 said in that case and I have a copy of the judgement here, that it is
17 intended to be a statement of principle to be applied by Trial Chambers
18 within their discretion. Notably, in that case, the two accused were
19 likely to have given evidence for 12 and 36 hours respectively, and it
20 was considered to be a breach of an accused's fundamental human rights to
21 deny him access to his lawyer for that length of time, because he may
22 wish for advice or to give information that has arisen during the course
23 of his examination.
24 A fortiori the case of General Pandurevic, because the amount of
25 time he is going to spend in the witness box is, frankly, in my prior
1 experience, almost inconceivable. He's going to be in the witness box
2 for six weeks, and during the course of that time it is inevitable that
3 he would wish to draw things to my attention that have arisen ex
4 improviso. I make it plain, and I am really taking a large section out
5 of my opening statement here because I was going to address this question
6 in it, that it's not a privilege that either he or I intend to greatly
7 avail ourselves of, because when you have spent four hours every day
8 giving evidence, it seems to us it's rather more important he gets a rest
9 rather than be talking to his lawyer.
10 But I did intend, perhaps, to visit him once a week and I did
11 intend that members of my support staff during -- on a day-to-day basis
12 should receive from him any documentation with any commentary that he
13 felt necessary in a very short visit, perhaps here at court. It seemed
14 to me that following the Appeal Chamber's decision in Prlic that that was
15 the law and practice of this trial, and that that was not only not
16 inappropriate in this jurisdiction but now considered to be wholly
17 appropriate, because the contrary is to isolate somebody who has the
18 right to the assistance of counsel for a really very long period of time
20 Now, I had taken that as read. I don't really want to go too far
21 down that line, because you know that we have good relations in this
22 case, and sometimes you can think that something is agreed because you
23 have discussed it in very informal circumstances. And that, I think, is
24 how you come to understand the position of the Prosecution. If I have
25 misunderstood that, then I am sorry and perhaps the matter may need
1 airing more fully and dealing with on a more formal basis.
2 I have to say that if I have understood -- misunderstood the
3 position and something of the nature of contact I describe is not to be
4 made available to General Pandurevic, then we may have to pause to
5 consider where we go forward from that in the immediate future.
6 We have been, as you know, pressed into service really far more
7 quickly than we thought we were going to be, and we have stood up to be
8 counted and said we are ready, but that sort of arrangement was a
9 condition in that.
10 So that's all I've got to say, unless there is anything specific
11 I can help you about. I listen anxiously to what Mr. McCloskey might
13 JUDGE AGIUS: Mr. McCloskey.
14 MR. McCLOSKEY: Mr. President, frankly, I am taken aback by this.
15 I don't recall any of this. So I am listening and thinking, as we all
16 are. I am not familiar with the appeals decision in any detail. And I
17 am, of course, from the same adversarial system where I differ with
18 Mr. Josse's view. I think the adversarial system is designed to get at
19 the truth, and the fundamental basis of that is cross-examination of a
20 witness, a witness that is not prompted, is not provided answers to, a
21 witness that is -- once he takes the stand on his own, to answer the
22 questions, both of his own counsel and of the Prosecution, and that
23 discussions between the witness and his lawyer in that matter would
24 undercut that situation.
25 That's the system that I am from. I have also experienced
1 witnesses on direct for many, many days, military and otherwise, and
2 understand that things happen that you wish to communicate about. So I
3 would like a chance to think about this and review the case. If it is,
4 in fact, which I have no reason to doubt, your discretion to determine
5 whether or not you allow this kind of thing, so be it, but I would like a
6 little more chance to think about it.
7 My immediate response is, I don't like being surprised. I don't
8 know why I am surprised, whether it's my memory or something else. I've
9 certainly forgot a lot that has occurred in this trial. But I also tend
10 to lean towards compromise. Perhaps there is a way to allow Mr. Haynes
11 and the General to speak briefly after a day or two on any urgent topic
12 that might be the kind of the thing that the Appellate Chamber had in
13 mind, without going into the thing that my system worries about.
14 But given that this has come at this point, I would like at least
15 the chance of a break, of a 30-minute break, to discuss this, to try to
16 get a look at this appellate decision.
17 JUDGE AGIUS: Yes, go ahead.
18 JUDGE PROST: Mr. Haynes, if I could just be very clear as to
19 your position. When you are speaking about unrestricted access to your
20 client, I take it that your position is that the conversations you have
21 with your client can be on any topic, can be related entirely to the
22 testimony being given, that no restriction whatsoever is the position you
23 are putting forward. Am I correct in that?
24 MR. HAYNES: Yes.
25 JUDGE PROST: Okay. Thank you.
1 [Trial Chamber confers]
2 JUDGE AGIUS: All right. Incidentally, just to make your task
3 easier, the decision of the Appeals Chamber in Prlic is of the 5th of
4 September of this year, all right? We can provide you with a copy if you
5 need it urgently. That's number one.
6 Secondly, the request by Mr. Haynes, which also includes another
7 request; namely, that sessions be reduced from one hour, thirty minutes,
8 to one hour, twenty, reached us on the 14th -- or at least it reached me
9 on the 14th of January of this year. So that's how far it goes.
10 MR. McCLOSKEY: That we've never -- well, we've never known
11 about. Whether we should have known is, of course, an interesting issue.
12 But this comes for the first time --
13 JUDGE AGIUS: All right. Anyway, you have 30 minutes. If you
14 need more, please let us know and we will adjust the break accordingly.
15 Thank you. Thirty minutes.
16 --- Recess taken at 9.58 a.m.
17 --- On resuming at 10.35 a.m.
18 JUDGE AGIUS: Let's take it up from where we left it. Who would
19 like to add anything to what has already been said? Mr. McCloskey,
21 MR. McCLOSKEY: Yes, Mr. President. I was able to at least
22 figure out if it had been my memory or some other thing, and this is not
23 an issue I was alerted to by anyone in the recent weeks. I don't doubt
24 Mr. Haynes and I, we talk about a lot of things out on the balcony, and
25 the difficulty of a witness on the witness-stand for a long time without
1 being able to talk to them may very well have been a topic. But this
2 particular crucial topic, this very important appellate decision and, as
3 I now see it, the very important role that the Trial Chamber plays in
4 this is all new to me.
5 JUDGE AGIUS: Yes.
6 MR. McCLOSKEY: So along with the caution Mr. Haynes gave us that
7 perhaps if this isn't resolved to his liking, there may have to be a
8 pause, this -- an issue of the importance, it's unfortunate that we find
9 ourselves like this, because I think it is of such importance that
10 ideally we'd had a better chance. Though, I am happy that the Court has
11 had a chance to think about this, because I think the burden falls to you
12 more than it does me, but I would like to point out a few things from the
13 Prosecution's perspective to help you in your decision.
14 First of all, I spoke briefly to the Prlic Prosecution team. No
15 accused in that case has testified. There has been no guidance as far as
16 anyone recalls. This came up - and, as you know, they are different
17 systems - as some kind of an advisory opinion issued by the Trial
18 Chamber, which, as you know, in the system I come from advisory opinions
19 are generally not allowed, but it was taken up and the Appellate Chamber
20 dealt with it. And I think I clearly see from the Appellate Chamber
21 decision that the accused may have contact with his Defence counsel and
22 that cannot be restricted completely, but that it's your job to decide
23 what restrictions, if any, to place on that contact.
24 As I look at the wording of I think it's Judge Schomburg, he does
25 not want inappropriate conduct. We can't tell really what Judge
1 Schomburg meant by "inappropriate conduct," but I am sure all who have
2 read this see the addition of Judge Shahabuddeen and Judge Vaz, who,
3 recognizing this problem for the Trial Chambers, felt that what this
4 meant was, and I quote: "Counsel is not permitted to advise an accused
5 testifying on the witness-stand how he should reply to a question or line
6 of questioning." That appears to me to be a statement of "not coach" the
7 witness. And, of course, coaching takes many forms and subtleties.
8 So I would, in thinking about this, I would also like, before you
9 make your final decision, perhaps if Mr. Haynes would provide a little
10 more content in what he's really asking for. Because he was -- I mean he
11 was clear. He wants complete -- the ability to completely discuss and
12 advise and strategize, like he should be able to, before the
14 The one comment he made is that General Pandurevic will want to
15 draw attention to things. Well, clearly General Pandurevic has an
16 incredible amount of knowledge about this case, the rules, but he will be
17 able to -- I know you will let him explain his answers. He will be able
18 to say, Mr. Haynes, on the issue of this rule or that rule I want to call
19 your attention to this as well, though you didn't ask me about it.
20 Clearly, the rules that allow an accused to speak in his own
21 defence will allow General Pandurevic the freedom, too, if he has
22 something he needs to draw -- he wants to draw attention to.
23 Now, will he be able to say to Mr. Haynes, Should we draw
24 attention to Rule 65 to the Court of the JNA lexicon? The Appellate
25 Chamber says no and I agree with that. I don't think he should be able
1 to ask questions that go to the -- that are related to testimony or the
2 subject matter of the testimony, and I think your directions need to be
3 crystal clear on this. It needs to be an order, and a crystal-clear
4 order. General Pandurevic is very familiar with following orders and
5 will be able to do so; I have no doubt about that.
6 My request would be that there be no contact at all after direct
7 testimony is over; that for cross-examination, the rules that apply to
8 everyone else, no contact at all, unless it's something totally
9 non-related, a request from Mr. Pandurevic or Mr. Haynes to the Court,
10 you know, that he needs to -- you know, keeping a light on in his cell or
11 something like that.
12 I would also -- if Mr. Haynes wishes to speak to the General or
13 the General wishes to speak to Mr. Haynes about the substance of the
14 testimony, that at the very least they make that request to you and -- so
15 that you can understand what it is that they are going to talk about.
16 But otherwise, I think with an order pursuant to this Appellate Chamber
17 not to talk about the substance of the testimony and to not be
18 inappropriate, I think that's of course absolutely proper, though the
19 more extensive the connections get, the more difficult it will be to keep
20 it appropriate. And, of course, it opens the door to us cross-examining
21 on. Okay, well, you met at the break and you talked, that kind of thing.
22 Of course we would be able to question him on that.
23 So I'm sorry this is slightly rambling, but it's nature of how
24 it's come up. So overall I don't object to them seeing each other during
25 the direct testimony, talking about matters that don't involve the
1 substance of the testimony, or the testimony, unless they get your
2 approval to do so and provide you with some guide-line why it's
3 necessary. And I would request that there be no contact after the direct
4 testimony is over.
5 JUDGE AGIUS: Mr. Haynes.
6 JUDGE KWON: Before that, I have a couple of questions to
7 Mr. McCloskey.
8 Whether to raise something, a specific issue, during the course
9 of direct examination, is it not related to a defence strategy?
10 MR. McCLOSKEY: I am not sure I fully understand. A
11 communication during the testimony? I believe most communications during
12 testimony would and naturally would relate to a defence strategy, and I
13 think that is encompassed in what Judge Shahabuddeen has said about not
14 directing him how to answer the questions. That's very strategy-related.
15 JUDGE KWON: I don't take it that Mr. Haynes would mean to be
16 able to coach or advise his client how to answer his question. But he's
17 a human being. He may forgot to raise something, or in the course of
18 testimony, there may transpire during the course, because of the
19 intervention of the Judges, a necessity to raise something.
20 MR. McCLOSKEY: And I agree with that. As I -- and that was my
21 point, that because of the General's knowledge, I am sure Mr. Haynes
22 won't remember everything that the General feels he wants to communicate,
23 but the General has the ability to bring that up in court and say, I
24 think in addition to what you have just asked me, that the rule or the
25 document related to Ustipraca also, perhaps you have forgotten that, or
1 something like that. But then, of course, if they do that in private, it
2 could be like it would be before the case. I think that we have --
3 that's enough. We have made enough of that point, General, and I don't
4 think we need to make it any further. Then that's, of course, advice.
5 So it's a very grey area, obviously, and I think that we should
6 try to limit it so it doesn't get into the back of and forth of what is
7 strategy and what is the substance of the case.
8 JUDGE KWON: Second question: You asked for no contact at all
9 after the direct examination. How about after the cross-examination,
10 ahead of redirect?
11 MR. McCLOSKEY: That's probably even more so than cross, because
12 that's the chance to strategize. That's when you really need to
13 strategize. How you can get a General and his chief adviser not to
14 strategize at that point, how can you ask the General not to do that? It
15 would be impossible. It would be much better to say, Okay, in this
16 Tribunal we have the right to strategize on redirect. Be honest about
18 JUDGE KWON: And if you could guide me kindly to the passage in
19 the Prlic Appeals Chamber where they allegedly say that it's prohibited
20 from talking -- whether, for example, Rule 65 of JNA rules.
21 MR. McCLOSKEY: Oh, that was just my example of something that
22 they might start talking about that would be -- would be coaching. The
23 only -- the limitation that I see in the Appellate Chamber is Judge
24 Schomburg saying that, Inappropriate communications are not allowed, and
25 then Judge Shahabuddeen and Judge Vaz defining what they mean to be
1 inappropriate. That's all I meant.
2 And I agree with you that it may come up that the accused thinks
3 and he wants to provide more detail or wants to bring up something that
4 counsel has forgotten, and I'd say he can do that from the witness-stand
5 as opposed to the discussions in private which will lead to coaching and
7 JUDGE KWON: I will leave it there. Judge Prost has something.
8 JUDGE AGIUS: Judge Prost, I hope I haven't switched off
9 your microphone.
10 JUDGE PROST: Thank you.
11 Mr. McCloskey, just one question and I think I know the answer
12 from what you said. I take it that it would be your position that were
13 we to grant Mr. Haynes' request for access, that you would be able to
14 cross-examine on all of those communications, whereas normally those
15 communications would be privileged?
16 MR. McCLOSKEY: First part, yes, I would like to be able to
17 cross-examine on any communications, but I think once the -- once an
18 accused takes the stand, I believe I can ask him about what had he talked
19 to his client about on that particular subject, though it's not something
20 I -- I don't know if I would need to do it. I would have to see what the
21 circumstances are.
22 But just having not needed to get into that part of it, yes, I
23 would like to be able to question him on what he was speaking to his
24 lawyer about, and that gets me right in the middle of the client-counsel
25 situation, which is not really a place I necessarily want to be. I am
1 not sure my Californian ethics would even allow me to do that. But if he
2 takes the witness-stand willingly and under this rule, I'm sure I can
3 ethically be able to question him on it. But I would like to be able to,
4 with a court order, clearly.
5 JUDGE PROST: Thank you.
6 JUDGE AGIUS: There is one further thing I would like to ask you,
7 Mr. McCloskey, in addition to what my colleagues have asked, and that is,
8 I draw your attention to paragraph 16 of the Appeals Chamber decision in
9 Prlic. I'm doing this precisely because in the course of your submission
10 you also dealt specifically with the question of strategy during the
11 direct and after the end of the cross-examination, when it comes -- when
12 we come to the redirect. And in paragraph 16, which seems to be
13 fundamental to the decision of the Appeals Chamber, we have:
14 "When considering this, the Appeals Chamber has to take into
15 account the magnitude, complexity, and length of the trials before this
16 international tribunal. An accused must often consult with his counsel
17 during the trial on the appropriate defence strategy or the significance
18 of what is happening in the courtroom. To take away this right for an
19 extended period of time could potentially undermine one of the most
20 important basic rights of an accused and endanger the integrity and
21 fairness of the proceedings as a whole."
22 The Appeals Chamber then went on to consider the approximate
23 estimated length of the would-be testimony of Praljak and Petkovic,
24 which, as rightly pointed out by Mr. Haynes, was at the time estimated to
25 be much less than what Mr. Pandurevic's estimated testimony is likely to
2 So I would like you to respond to this first; in other words, you
3 seem to build on the argument that precisely because there should not be
4 any interference in relation to strategy, there should be a restriction
5 on contact. But it seems that the Appeals Chamber has more or less
6 argued in a completely diametrically opposed approach. What's your
8 MR. McCLOSKEY: I think the Appeals Chamber doesn't have a
9 problem with any inappropriate contact with the client and the lawyer,
10 and fundamentally I don't either. What I have an objection with is the
11 strategizing or the talking about the case and preparing for it, which is
12 what the Appellate Chamber doesn't want either. The problem is we have
13 this big -- this grey area. I would, largely because of that statement,
14 not object to contact during the lengthy direct testimony.
15 In fact, Ms. Stewart reminds me that when Mr. Butler was
16 testifying in Krstic he was an employee here and we got an order that we
17 could speak to him about other things, and it was just impossible to
18 think that you couldn't talk to someone about other things. So I don't
19 object to that. But when they sit and talk about whether or not they
20 need to go further into this topic or they are not going to talk about
21 that topic, that's what they have done for the last -- well, long time.
22 They have been preparing for it. They have got their exhibits ready to
23 go. If they change strategy mid-stream, that's the scale of the trial
24 lawyer. You change it with him, you ask him the questions, and you go.
25 You're not supposed to get together and figure out how to do that
1 together, especially on cross-examination, I would say.
2 But during direct, a lengthy direct, no objection to their
3 discussing, you know, basic issues, and if there is something of an
4 extreme nature having to do with the case, no problem asking the Court.
5 It can even be done ex parte in that regard. But otherwise, I think we
6 are opening the door to advice of counsel throughout the testimony, and
7 perhaps that's where we want to go in this institution. But from the
8 Prosecution's position, the best shot to getting at the truth is
9 well-prepared Defence counsel, well-prepared accused, playing by the
10 rules we've all known about.
11 JUDGE AGIUS: All right. Thank you, Mr. McCloskey.
12 Yes, Mr. Bourgon.
13 MR. BOURGON: Good morning, Mr. President. Good morning, Judges.
14 Mr. President, I hesitate to intervene into this debate; however, I do
15 feel that it is important that the Trial Chamber gets the point of view
16 of at least one of the co-accused in this case.
17 Mr. President, my colleague's request raises quite a very
18 sensitive issue in light of the fact that there are seven co-accused in
19 this case and that the co-accused have not been leading exactly the same
20 case forward throughout this trial, and there might be issues arising
21 from the testimony of General Pandurevic which might be of great interest
22 to the other co-accused in this case.
23 Mr. President, on one hand I fully agree with my colleague
24 Mr. Haynes' request, that to deprive him of any right to have access to
25 counsel would not be right and would be contrary to his fundamental
1 rights as an accused before this Tribunal. On the other hand, having a
2 witness, any witness for that matter, being or having the possibility of
3 being coached during his testimony and especially during
4 cross-examination, in my understanding, Mr. President, this changes the
5 very nature of witness testimony before this Tribunal.
6 In its decision, the Appeals Chamber refers to the possibility of
7 a co-accused, of course the Prosecution, to cross-examine the accused who
8 decides to take the stand and explore what might have been going on
9 between counsel and his client as they prepared during the case.
10 However, we take the view that the effectiveness of cross-examination, as
11 much for the person conducting cross-examination as for the Judges who
12 are trying to assess the cross-examination, is the fact that the accused
13 will have to be responding to questions on his own without being prompted
14 or prepared in any way during such cross-examination.
15 For all these reasons, Mr. President, the approach we take is
16 similar to that of the Prosecution but with a bit more latitude. We
17 think that during the examination-in-chief, my colleague's request should
18 be granted in full and that he should have full access to General
19 Pandurevic during examination-in-chief. This provides for two -- it
20 fulfills two goals: It will allow General Pandurevic to put the best
21 case forward, and I think that's important, that he gets the full
22 opportunity to put his case forward during examination-in-chief.
23 However, during cross-examination then we agree with the Prosecution that
24 there should be no contact between counsel and the accused unless that be
25 by request, with the accused specifying why he needs, for certain reason,
1 to have access to his counsel during cross-examination. And that
2 includes, just to follow-up on Judge Kwon's question to the Prosecutor,
3 for us that would include also a re-examination.
4 Thank you very much, Mr. President.
5 JUDGE AGIUS: Mr. Bourgon, I will just mention something else in
6 case you want to think about what you have stated. The estimate on the
7 part of Mr. Haynes for the direct is approximately of 30 hours. The
8 estimate of the Prosecution for the cross-examination is also of 30
9 hours. Then you have 4 hours, then the Beara Defence team have got 8 and
10 a half hours, and then if you add the rest, you have got another couple
11 of hours. So we would be talking of 30, plus 12, plus another 2 or 3, we
12 would be talking of about 45, 48 hours covering the cross-examination
13 and -- the cross-examination stage. Then there will be the redirect, I
14 would imagine, which will add another couple of hours at least, in my
15 humble estimate. So back comes the principle that the Appeals Chamber
16 considered, particularly in paragraph 16 of their decision, but I am just
17 mentioning this.
18 The other pillar on which the Appeals Chamber's decision is based
19 is the presumption that the Trial Chamber should have, that any approach
20 or any consultation between counsel and accused witness is appropriate;
21 in other words, the presumption - unless there is proof of the contrary -
22 is that such encounters and consultations are appropriate. To me, that
23 very much depends on what the accused giving evidence, and particularly
24 and primarily his counsel, consider to be appropriate.
25 That is shown already by the opinion of Judge Shahabuddeen and
1 Judge Vaz in that they felt the need to explain what, in their opinion,
2 was appropriate and what was not.
3 So I think this calls for a statement on your part, in addition
4 to whatever else you had in mind of telling us, Mr. Haynes. I think it
5 would help us immensely if we knew directly from you what you consider to
6 be appropriate and what you consider not to be appropriate.
7 Yes, Mr. Haynes.
8 JUDGE KWON: Just before, I'm sorry to interrupt you, Mr. Haynes.
9 MR. HAYNES: Not at all.
10 JUDGE KWON: Can I ask one question to Mr. Bourgon, which I
11 forgot to ask Mr. McCloskey.
12 To rebut any effectual allegation which has arisen during the
13 course of cross-examination, counsel may want to -- just hypothetically,
14 reveal something, a very personal thing, which the accused may want to
15 hide. They need to discuss, don't they? What would you respond to this,
16 albeit hypothetically.
17 MR. BOURGON: Thank you very much for your question, Judge.
18 This the goes to two things: One, we are not saying to prohibit
19 any contact during cross-examination. Should the need arise, there
20 should be the possibility --
21 JUDGE KWON: I am talking about redirect, what to raise or not to
22 raise during the course of --
23 MR. BOURGON: Well, even in redirect, the accused, who has chosen
24 to take the stand, may request to have access to his counsel and discuss
25 a particular issue, but the content of the issue, the Trial Chamber
1 should be made aware of; that it is something that he is seeking the
2 legal advice of his counsel on a specific issue. The difference between
3 this and to be adopting a strategy is two different things. The Appeals
4 Chamber --
5 JUDGE KWON: Or to give him instruction?
6 MR. BOURGON: Absolutely, Judge.
7 Now, the Appeals Chamber said there is a presumption in favour of
8 allowing contact between counsel and his accused, and we agree with that.
9 I might have another case where my accused will decide to take the stand,
10 and I would be very interested in being allowed to have access to him, as
11 my colleague is requesting during his examination-in-chief. However, I
12 would also want to make sure that the cross-examination will be very
13 effective in the sense that I do not have access to him and that the
14 Judges can see fully what the accused has to offer in terms of evidence
15 challenged under cross-examination.
16 Thank you very much, Mr. President.
17 JUDGE AGIUS: Thank you, Mr. Bourgon. Thank you, Judge Kwon.
18 Mr. Haynes.
19 MR. HAYNES: I hope you won't mind if I start at a rather
20 different point. It's truly unfortunate this matter has arisen in this
21 way, and I wonder whether we will now make the sort of progress today I
22 had anticipated when we arrived here this morning.
23 The decision of the Appeals Chamber in Prlic I take to be a
24 statement of the law insofar as this Tribunal is concerned, and it was
25 issued on the 5th of September of last year. By that time, of course,
1 the 65 ter list for Vinko Pandurevic had long been served and his name
2 appeared on it as a witness.
3 I will put it no higher than this, but I find it surprising that
4 a senior Prosecutor did not keep himself informed of such a decision when
5 he knew that one of the accused at least, and possibly two, was going to
6 testify or might testify in the trial he was conducting. And I have a
7 clear memory of a conversation that we had at about that time. If
8 Mr. McCloskey's memory needs any further jogging, we actually discussed
9 further the question of whether proofing notes would be appropriate and
10 would arise from any such meetings. But I accept that we all have
11 failing memory.
12 It did cross my mind, and perhaps with the benefit of hindsight,
13 it was a mistake not to file a motion some few weeks ago. But you will
14 know, Mr. President, that events have gathered apace since Christmas,
15 much to all of our surprise, and I thought it was sufficient that I
16 mentioned the matter to your senior legal officer about two weeks ago. I
17 made plain that nothing I told him was privileged from disclosure to
18 anybody else, and I made plain to him that if there was to be any
19 difficulty with the suggestion that I was to have unrestricted access to
20 my client during his testimony, that that needed to be raised with me
21 sooner rather than later and, more to the point, that it might impact
22 upon my willingness to fall in with the then rather variable estimates as
23 to the Gvero case and start immediately after it.
24 So I say, it's all very unfortunate. And really before we go any
25 further, we are going to want to know, with absolute clarity, what the
1 position is, and I fully accept that that may involve you in some debate
2 yourselves and maybe even considering whether the position should not be
3 reduced to writing so that all the parties can understand clearly where
4 they stand.
5 I am not going to coach General Pandurevic, and you have to
6 presume that I will do no such thing. But he has arrived here this
7 morning in the understanding that during the course of his testimony, and
8 all of it, that he is entitled to discuss strategy and the contents of
9 his evidence as it appears to be unarguable that the Appeals Chamber in
10 Prlic was suggesting that he could.
11 I find it slightly remarkable, the suggestion that seems to have
12 been made both by Mr. McCloskey and Mr. Bourgon, that the better part of
13 his isolation from his counsel should be upheld by you. (redacted)
4 I will return to what I said at the start. I am not going to
5 coach General Pandurevic, and you have to presume that I won't. But he
6 has with him a vast amount of materials in this case, and from time to
7 time it may appear appropriate during his examination-in-chief that a
8 document is added, that a document is removed, that a topic needs not
9 dealing with, and these are the matters he's entitled to raise with me.
10 As I've said previously, I am not going to be going to see him
11 every day, and you can be assured by me that our contact will be entirely
12 appropriate. But I do ask you to determine now that it is unrestricted,
13 that it is for the duration of the whole of his testimony, and that it is
14 not subject to any particular articulated request by him.
15 Now, we've all been taken rather by surprise by the manner in
16 which this has arisen, but if there is anything else specifically that
17 you want my help on, I am ready to give it to you.
18 JUDGE AGIUS: Thank you.
19 JUDGE KWON: Mr. Haynes, if you could elaborate further on the
20 need to contact your client during the course of cross-examination. I am
21 asking this question: By refraining from contact, the reliability of his
22 evidence can be enhanced, in other words.
23 MR. HAYNES: Thank you very much. I see no reason to dissemble.
24 I cannot see a sensible objection, for example, to the provision to him
25 during the course of cross-examination of the lists of documents that are
1 provided by the parties so that he can go away and refresh his memory as
2 to what they are. That's neither advice, nor strategy; it's simply a
3 question of memory refreshing.
4 JUDGE KWON: Which can be done during your redirect.
5 MR. HAYNES: I am not sure I follow the point.
6 JUDGE KWON: To remind him of the documents, you can ratify these
7 things during your redirect, if he didn't -- if he failed to mention
9 MR. HAYNES: That wasn't quite the point I had in mind. The
10 point I had in mind was that there couldn't be any sensible objection, in
11 my view, to him doing a little research.
12 JUDGE PROST: But are you suggesting, Mr. Haynes, that simply
13 giving him the lists in advance, or when you receive them, in order for
14 him to review the materials, are you suggesting, then, a discussion with
15 him about those various documents?
16 MR. HAYNES: Both. Yes, both.
17 JUDGE PROST: So further than just providing them to him, but
18 going through that list then with him?
19 MR. HAYNES: Yes.
20 JUDGE PROST: Okay.
21 On a different point, Mr. Haynes, just on the question of
22 cross-examination, I take it you also take no issue with the fact that
23 were we to allow communication with your client, unrestricted, that would
24 entail at the same time the right of the Prosecution or the other Defence
25 to cross-examine on those communications fully?
1 MR. HAYNES: I don't think we are dealing with that issue at the
2 moment. It would have to await when it arose. The direction in which
3 such cross-examination could go could take many forms. My principal
4 submission on that is that this is a fundamental right and nothing in the
5 Appeals Chamber decision derogates from that right, and a contact between
6 an accused person and his client is completely covered by legal
7 professional privilege.
8 Just because the Appeals Chamber in Prlic have appeared to taken
9 a step in a different direction as to the continuance of an accused's
10 contact with his lawyer during his evidence does not in any way suggest
11 that there is a waiver of legal professional privilege by anybody, least
12 of all the accused.
13 JUDGE PROST: Just so that I'm very clear on this point, so your
14 position is that you are seeking access, unrestricted, both during direct
15 and cross-examination, but you are not conceding that that contact is
16 then subject to cross-examination?
17 MR. HAYNES: Not at this stage, no.
18 JUDGE PROST: Okay. Thank you.
19 JUDGE AGIUS: Mr. McCloskey.
20 MR. McCLOSKEY: To point out the obvious, when an accused decides
21 to set aside his right to remain silent, a lot is left behind, and these
22 are complicated issues that in order to fully explore the suggestion
23 Mr. Haynes has, that we can't even ask about such a radical departure
24 from the adversarial system is a bit -- I hate even doing this off the
25 cuff. It's a bit worrisome.
1 JUDGE AGIUS: Thank you.
2 Mr. Bourgon.
3 MR. BOURGON: One last quick comment, Mr. President.
4 My colleague raised an issue which I find quite interesting, but
5 it is directly related by the question put forward by Judge Prost. My
6 colleague raised the issue that when he had his prior conversation with
7 the Prosecution, the issue was raised of proofing notes. I would just
8 like to add that if the Trial Chamber is inclined to allow any contacts
9 between my colleague and the accused who is testifying, that maybe that's
10 one way to get around it, by asking my colleague to provide us with
11 proofing notes as to what has been discussed with the accused on those
12 occasions, if cases -- if matters related to the case have been
13 discussed. I think that would be very important.
14 And one last thing I would just like to say is that my colleague
15 refers to the Appeals Chamber decision as being the state of the law. My
16 reading of the Appeals Chamber decision is that it only makes a
17 presumption in favour of allowing contact between counsel and accused
18 when an accused decides to testify, but that ultimately the matter,
19 Mr. President, is in the hands of the Trial Chamber which must assess it
20 and the circumstances of the case. And here there of seven co-accused
21 who have been and maybe are likely to continue advancing different
22 theories, and it's important to, of course, care for the rights of the
23 accused who decide to testify, but also protect the rights of the
24 accused -- of the co-accused in this case.
25 Thank you, Mr. President.
1 JUDGE AGIUS: Thank you.
2 Yes, Mr. McCloskey.
3 MR. McCLOSKEY: Very briefly I would like to adopt and agree with
4 Mr. -- everything Mr. Bourgon just said.
5 JUDGE AGIUS: Thank you.
6 Mr. Haynes.
7 MR. HAYNES: And on the question of legal professional privilege,
8 I would simply refer to Trial Chamber to Rule 97. It's absolute.
9 JUDGE AGIUS: Thank you. So I think we need to rise for the time
10 being, and we will come back.
11 [Trial Chamber confers]
12 JUDGE AGIUS: We'll have a break now. Of course, as you may have
13 rightly understood, we had discussed this amongst ourselves before in the
14 intervening time between when we were first informed by Mr. Cubbon and
15 now. Since we never heard anything else and we were acting under the
16 assumption that the Prosecution was in agreement with Mr. Haynes, we
17 discussed it thoroughly, but of course we had reserved our decision until
18 after hearing your submissions.
19 Had we not done that, we would have - and thank God we did - we
20 would have found ourselves in the unfortunate situation of Mr. Pandurevic
21 starting his evidence today and then having representations from the
22 Prosecution and possibly other Defence teams that improper things were
23 taking place in the form of contact between counsel and accused witness.
24 It might take us some time, so what I suggest is that you make
25 yourself available, and then we will let you know as soon as we see the
1 light at the end of the tunnel the approximate time when we will
2 reconvene, in other words.
3 We will have a break now, and see you later.
4 --- Break taken at 11.21 a.m.
5 --- On resuming at 12.39 p.m.
6 JUDGE AGIUS: So, as intimated to you earlier on, we are
7 disposing of this issue now, in this manner avoiding it having to arise
8 later on in the course of the testimony of accused Pandurevic. Our
9 decision is as follows:
10 In the Prlic et al case, the Appeals Chamber in its decision of
11 the 5th of September stated inter alia that:
12 "It is a fundamental right of an accused" - and I'm quoting - "to
13 have access to counsel at any stage of the proceedings."
14 At the same time, the Appeals Chamber noted that:
15 "A decision on the extent of contact between an accused who
16 chooses to testify and his counsel is vested in the Trial Chamber and is
17 therefore discretionary."
18 Applying these principles and bearing in mind the legal standards
19 set forth by the Appeals Chamber in its decision, standards and
20 principals meant to guide the exercise of this discretion, the Trial
21 Chamber comes to the following conclusions and decides as follows.
22 Accused Pandurevic shall have unrestricted access to his counsel
23 throughout the course of his testimony. We trust that such access will
24 be carried out in an appropriate manner. However, considering the
25 specific circumstances of this complex multi-accused case and the
1 importance of cross-examination for all parties, with regard to the
2 substance of communications during such access, the Trial Chamber
3 considers it necessary to impose some restrictions during
4 cross-examination and redirect. In that regard, the communications
5 between counsel and accused during those stages - that is,
6 cross-examination and redirect - shall not include the discussion of the
7 substance of his testimony.
8 The exceptions to that restriction are twofold: First, at any
9 time during cross-examination or redirect, counsel for Mr. Pandurevic -
10 that's Mr. Haynes - may apply to the Trial Chamber, ex parte if he
11 considers it necessary, for leave to discuss of any matter of substance.
12 Similarly, should his client, accused Pandurevic, wish to raise a matter
13 of substance with his lawyer, he may communicate that request directly to
14 his counsel who can then raise the matter with the Trial Chamber in the
15 same manner; that is, even ex parte if so wished. The other exception is
16 that all -- that at all times counsel is free to communicate any filings,
17 including exhibit lists, to his client, Mr. Pandurevic.
18 Finally, the Trial Chamber wishes to make it clear that access
19 and restrictions on communication, specified above, apply to the entire
20 Defence team.
21 So that's it.
22 Mr. Haynes, I understand you have an opening statement?
23 MR. HAYNES: I do.
24 JUDGE AGIUS: How long is it because we haven't got a clue.
25 MR. HAYNES: Not very long.
1 JUDGE AGIUS: All right.
2 MR. HAYNES: And I hope you know by now that I am not somebody
3 who lightly causes court time to be lost, but I --
4 JUDGE AGIUS: I never suggested the contrary.
5 MR. HAYNES: No, but it has been an unsettling morning, if I may
6 put it that way, not least for General Pandurevic, and when last I spoke
7 to him, his attitude to the matter about which you have just ruled was
8 fairly strident, and I would appreciate the opportunity to discuss your
9 decision with him once heels have cooled a little bit.
10 I don't think I am going to trouble you with an opening statement
11 for more than 20 or 30 minutes, but the events of this morning have
12 actually caused it to change its direction a little bit, and so I know
13 there is nearly an hour of court time left this morning, but I am going
14 to crave your indulge intelligence to rise at this stage so that I can
15 talk to General Pandurevic about what has happened and perhaps soothe the
16 passage of the case tomorrow morning.
17 There's also something else that I am going to crave your
18 indulgence on, and that is, I really wouldn't want, once General
19 Pandurevic's evidence starts, for there to be unnecessary interruption,
20 and so I really would welcome the issue of documents arriving from --
21 arising from the last witness in the Miletic case perhaps to be dealt
22 with first thing tomorrow morning.
23 Now, that presupposes you'll grant my first request, but those
24 are the two things I -- I would crave your indulgence on at this stage.
25 JUDGE AGIUS: But we also previously, at least I did - and I must
1 also tell you I promised to consult my colleagues on this, but I haven't
2 - I also suggested that we'll probably direct Mr. Josse to file any
3 objections in writing rather than take court time. So --
4 MR. HAYNES: I hadn't appreciated that what you said related to
5 Kosovac rather than P4110.
6 JUDGE AGIUS: No, no. It related mostly to Kosovac, and I put
7 P410 in the same basket.
8 MR. HAYNES: I apologise for my misapprehension.
9 JUDGE AGIUS: At least -- and I apologise for mine if I said it
10 in a way which was misunderstood.
11 MR. HAYNES: No, I probably wasn't listening properly.
12 MR. JOSSE: That's how I understood it, Your Honour. For what
13 it's worth, we would be ready to deal with it at 9.00 tomorrow if so
15 JUDGE AGIUS: Okay. Thank you.
16 [Trial Chamber confers]
17 JUDGE AGIUS: I'm sorry, Mr. McCloskey.
18 MR. McCLOSKEY: No objection to the first part, and we are ready
19 to deal with it at any time as well.
20 JUDGE AGIUS: All right. Thank you.
21 [Trial Chamber confers]
22 JUDGE AGIUS: Okay. The decision here is objections on the
23 documents tendered will be in writing, Mr. Josse -- no, but we can limit
24 the time for the response. We can limit.
25 Perhaps I could say unless it's a very short objection which
1 would engage us only, say, five minutes or so, in which case perhaps we
2 could reconsider our decision. But if, as you intimated, we are talking
3 of quite a substantial number of documents, then it becomes different.
4 MR. JOSSE: I think it may be quite a few documents. I am happy
5 with a time restriction on my submissions of ten minutes.
6 JUDGE AGIUS: Yes.
7 MR. McCLOSKEY: Mr. President, we can deal with most of this very
8 quickly from our perspective, though I think this is the first time we
9 have seen an authentication challenged to a document that has come out of
10 a collection, in this case, the Krajina Corps collection from Banja Luka
11 If after all that Mr. Josse as heard about how that came about and how it
12 was stored he wants to -- he continues - and I believe he is - his strong
13 objection to that, there are several different ways for you to review it.
14 We have the -- the simplest way is the information report of the
15 investigator that basically says this collection was gotten on a certain
16 date, it was found in a box, that box was gone into, and this is what was
17 found in the box, and that kind of thing. So you can get an idea of the
18 authenticity from that. But then, of course, if they object to that, the
19 next -- we would have of course the right to call --
20 JUDGE AGIUS: Let's have it in writing.
21 MR. McCLOSKEY: -- the officer. I just don't know where they're
22 going on that.
23 JUDGE AGIUS: I think I will just take the plunge in writing,
24 Mr. Josse, please.
25 MR. JOSSE: Seven days, please.
1 JUDGE AGIUS: But if you are going to be prepared to make
2 submissions in ten minutes tomorrow, why should you require seven days to
3 put them in writing?
4 MR. JOSSE: Well, these things always take me much longer in
5 writing. Frankly, the reason is simple. It's not the tradition I come
6 from. That's why. I come from a duration are where virtually all
7 advocacy is oral, not written, and I find written advocacy much harder.
8 I make no bones about it. If I'm ordered to do in writing, that's what
9 I'll do, but I would ask for a bit more time.
10 JUDGE AGIUS: I came -- I come from the same tradition,
11 Mr. Josse, and I better not tell you how much indigestion sometimes I
12 have trying to follow other traditions and adapt myself. But that's
13 the --
14 MR. JOSSE: Well, we are ad litem, Your Honour.
15 JUDGE AGIUS: That's the reality of the situation. So in
16 writing, please.
17 MR. JOSSE: By when, please?
18 JUDGE AGIUS: Today is Monday, by Thursday. Wednesday, Thursday.
19 Okay? Thursday.
20 MR. JOSSE: Thursday. Thank you.
21 JUDGE AGIUS: Mr. Haynes, we are granting your request to rise
22 now and postpone things to tomorrow.
23 MR. HAYNES: Thank you. That's kind and very helpful.
24 JUDGE AGIUS: So tomorrow we will reconvene at 9.00. The
25 understanding is we will have the opening statement it on your part, and
1 then we will proceed with your client's testimony. Thank you.
2 --- Whereupon the hearing adjourned at 12.54 p.m.
3 to be reconvened on Tuesday, the 27th day of
4 January, 2009, at 9.00 a.m.