1 Monday, 19 July 2004

2 [Motion Hearing]

3 [Closed session]

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25 [Open session]

1 JUDGE ORIE: I've asked myself whether we should deal with the

2 matter in a situation where all three accused are present, because any

3 conflict of interest with other accused is, in my view, such a private

4 matter that I'd rather discuss it with the Defence of one accused and then

5 with the Defence of another accused, and then with the third accused, so

6 not to do it together, where that is usually done. That's also the reason

7 why I thought that the presence of the three accused, not affected by the

8 issue at all, should not be present.

9 Now, then, the first question is that with whom we would deal

10 first. And at the same time, I could say that the other two accused would

11 not have to wait here any longer, as far as the logistics allow them to be

12 returned to the Detention Unit once they've left this courtroom, they

13 could be transported back to the Detention Unit.

14 Perhaps -- yes.

15 MR. PAR: [Interpretation] Your Honour, maybe we could be first, in

16 view of the fact that we have to leave The Hague tomorrow. I would be

17 willing and ready, if possible, to start, to be first.

18 JUDGE ORIE: At the same time, I couldn't promise you that we

19 would finish the matter with you, whereas I see the problems seem to be

20 less in respect of Mr. Jonjic and Mr. Coric. So therefore, I'm quite

21 willing to start with you, but I couldn't guarantee that we'll finish

22 by -- within ten minutes. Is it still your preference to -- yes. Okay.

23 Then I would like to ask the security to ask Mr. -- Let me now

24 see - Mr. Coric and Mr. Prlic to be transported back to the Detention

25 Unit. I expect to see you back tomorrow morning.

1 MR. SALAHOVIC: [Interpretation] Your Honour --

2 JUDGE ORIE: I'm making a mistake. I apologise. Of course not.

3 Because Mr. Prlic should stay. I apologise for making the mistake. And

4 Mr. -- yes, Mr. Stojic and Mr. Coric would then leave at this moment. I

5 hope to see you back tomorrow. Later in the morning, I expect to deal

6 with the issue finally with you. Yes. And then Mr. Prlic would stay for

7 the time being.

8 [The accused withdrew]

9 JUDGE ORIE: Other Defence counsel do not have to stay. They're

10 free to do whatever they think fit, of course. It's a public hearing, so

11 I'm not chasing you out, but if you want to use your time as efficiently

12 as possible, then please feel free to leave this courtroom.

13 And let me just check. I would like to ask a few questions to

14 your counsel, Mr. Prlic, to find out whether there's any confusion, yes or

15 no. Let me first try to check the following: Is it true that Mr. Prlic

16 is charged with the same acts committed in Mostar municipality between

17 April 1993 and April 1994, the same acts for which Mr. Martinovic stood

18 trial and is now on appeal? I do understand that Mr. Martinovic was from

19 May to September 1993 and that in the present indictment, it's April 1993

20 and April 1994. Do we agree on that?

21 MR. PAR: [Interpretation] Yes, we do.

22 JUDGE ORIE: Yes. Let me put the following question to you: You

23 have said that the case against Mr. Martinovic will be ended soon, and

24 therefore, the risk of a conflict of interest is not that relevant or not

25 that important. And you said his case would be finished prior to the

1 start of the trial against Mr. Prlic. Is that a correct understanding of

2 at least part of your position?

3 MR. PAR: [Interpretation] Yes, Your Honour. This is what I have

4 stated.

5 JUDGE ORIE: Don't you think that the Defence of Mr. Prlic starts

6 now, and not only at trial?

7 MR. PAR: [Interpretation] Your Honour, I believe that the defence

8 of Jadranko Prlic started with his Initial Appearance. Would you like me

9 to elaborate on that?

10 JUDGE ORIE: Yes. I'd like then to better understand your

11 position where you say, well, Mr. Martinovic's trial will be ended soon,

12 and that's at least before the trial against Mr. Prlic will start, so

13 there's in this respect not a real problem.

14 MR. PAR: [Interpretation] I'll try and explain. I may have not

15 been very precise. The truth is that I was referring to the period that

16 will elapse before the beginning of trial, and the beginning of defence is

17 different. It is my position that in the stage of the Vinko Martinovic

18 case, my defence and the defence of Vinko Martinovic have been defined.

19 We have now reached the stage in which the defence has been finalised and

20 brought to an end. Bearing that in mind, at the same time, I am familiar

21 with the defence of Mr. Jadranko Prlic. I know the elements of this

22 defence that we can not discuss at the moment. I have spoken about that,

23 both with Mr. Prlic and with Mr. Martinovic.

24 When I asked Mr. Vinko Martinovic: What do you think Vinko -- the

25 first question, my question to him was: How did he feel about this

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1 engagement. And then I asked him for his opinion about a possible

2 conflict of interest. In other words, whether my engagement in this case

3 would be detrimental to his rights. And this is what he told me,

4 literally: I support you. Do whatever you want to do, because my case

5 will end before his case starts.

6 Inspired by that sentence of his, I may have misspoken when I said

7 that one trial will end and the other will not have started. My position

8 is as follows: One procedure starts, one defence has completed. Being

9 familiar with the guidelines and directions of both defences and having

10 spoken with both clients, bearing in mind the charges against, I do not

11 see a link between the two cases and I do not see a situation in which the

12 defence of one would be at the detriment of the other. Bearing all that

13 in mind and having all this information, I am now appearing in this

14 Tribunal as counsel for two accused.

15 JUDGE ORIE: Let me put the following question to you. Let's just

16 assume, for argument's sake, that Mr. Martinovic will be convicted for

17 having committed certain acts. Let's also assume that the Court, the

18 Chamber - I don't know what Chamber it will be, but the Chamber would take

19 judicial notice of the acts of Mr. Martinovic. Would you still feel free

20 to defend, for example, for Mr. Prlic, that he was unaware of what

21 happened and, therefore, it is rather Mr. Martinovic that should have

22 received a high sentence because committing these kind of things without

23 proper reporting to higher-up officials is something really bad? Would

24 you feel free to follow such a line of defence, if it would be established

25 that Mr. Martinovic ...

1 MR. PAR: [Interpretation] I am not sure that I have understood

2 your question correctly. At this moment, I don't see such a possibility.

3 I simply don't see that, because I have spoken with both of my clients

4 about that.

5 My position towards my clients is as follows: Vinko Martinovic is

6 my personal client -- my principal client in this case. I had Vinko

7 Martinovic's authority, authorisation, from the very beginning of his

8 trial, and I'm not going to betray that trust in any case. And before I

9 started representing Mr. Jadranko Prlic, I told him that, and I also told

10 him that I would never put him in a situation not to use something that I

11 could use from the Martinovic case and that would be of use to him. If I

12 were to find myself in such a position, Your Honour, rest assured that I

13 will not do harm by any of my clients. Why do I believe that? In this

14 case, I am a co-counsel. I'm not the creator of Mr. Prlic's defence. The

15 defence of Mr. Prlic is created by the lead counsel and Mr. Jadranko Prlic

16 himself. I don't have the power to influence that defence.

17 However, for the sake of the argument, if such a hypothetical

18 situation should arise, I am willing to withdraw from this case. And

19 these were the elements that I had in mind when I decided to participate

20 in the defence of Mr. Jadranko Prlic.

21 JUDGE ORIE: Do I understand you well that you say: My primary

22 loyalty is to Mr. Martinovic, and if I would know something which I should

23 not make known to Mr. Prlic, then I would rather withdraw then, because my

24 primary loyalty is to Mr. Martinovic?

25 MR. PAR: [Interpretation] Your Honour, I am equally loyal to both

1 clients. We cannot talk about my being more loyal to one than to the

2 other. I'm equally loyal to both. If I were put in the position to harm

3 one of the clients in my role, I would inform that client and I would

4 withdraw from that case. I believe that both my cases are equal, equally

5 valid, and I do not see any difference between the two clients. I mention

6 Mr. Vinko Martinovic as my principal client because I started with him,

7 but that doesn't mean that the loyalty of Mr. Jadranko Prlic does not give

8 me the same obligation and that I'm not facing the same level of

9 commitment.

10 JUDGE ORIE: Would you then explain exactly what you meant when

11 you said: "I had Vinko Martinovic's authority, authorisation, from the

12 very beginning of his trial, and I'm not going to betray that trust in any

13 case. And before I start representing Mr. Jadranko Prlic, I told him

14 that, and I also told him that I would never put him in a situation not to

15 use something that I could use from the Martinovic case and that would be

16 of use to him."

17 Now, you know something from the Martinovic case. Mr. Martinovic

18 told you confidentially, gave you confidentially certain information.

19 Would you use it in the case? Because from your words, I do understand

20 that you would use it from the case for Mr. Prlic as well or otherwise

21 clarify what exactly you meant by those words.

22 MR. PAR: [Interpretation] What did I mean, Your Honour? I meant

23 simply: I would not betray any of my clients. I meant specifically that

24 if there is a secret I am bound by lawyer/client privilege. Every client

25 is special. I cannot choose between two clients. If Vinko Martinovic

1 confided in me and imparted some information, that information is

2 protected by a lawyer/client privilege. That is my personal ethics and my

3 professional ethics. I will never betray that.

4 JUDGE ORIE: Now the following situation. Let's again, for

5 argument's sake and for nothing else: Mr. Martinovic tells you they could

6 never prove that, but, as a matter of fact, I did never act upon orders.

7 I neglected all my orders. But whatever I did, Mr. Prlic could not have

8 known about it, but I'll just deny that I ever did anything at all.

9 What would you do in that situation? Because that could be very

10 interesting information for Mr. Prlic, isn't it, confidentially given to

11 you by Mr. Martinovic, which you could not use, in the interest of

12 Mr. Prlic, where it would be highly disculpatory [phoen] for him.

13 MR. PAR: [Interpretation] I would deal with that very simply,

14 together with Mr. Martinovic. I would simply ask him: Why are you

15 telling me this? Are you telling me this in the context of our

16 relationship? Do you want me to impart that information, to divulge it,

17 or do you want to address the Court, or what? Depending on what he

18 answers, I would act accordingly. If he tells me, "I'm telling this to

19 you as my lawyer," that remains buried as a secret between us. If he

20 tells me he wants that information to go further --

21 JUDGE ORIE: Yes, but if Mr. -- it could certainly help Mr. Prlic,

22 then, isn't it? So you have to --

23 MR. PAR: [Interpretation] If that piece of information that Vinko

24 Martinovic would hypothetically give me were something protected by

25 lawyer/client privilege, even if it were useful to Jadranko Prlic, I would

1 not share it with Jadranko Prlic.

2 JUDGE ORIE: That's for sure. And you would even, having this

3 information, you would be limited in your investigations to find out the

4 specific responsibility of Mr. Prlic, isn't it? Because you couldn't go

5 against this information to start investigating, because Mr. Martinovic

6 would say to you: Well, I told you in confidence what I knew, and now

7 you're not using that, but you're exactly exploring and investigating in

8 that direction. So that's against the loyalty you owe to me, isn't it?

9 MR. PAR: [Interpretation] Under no circumstances would I

10 investigate based on that information. I have a lot of information linked

11 to a number of clients, and I view each set of information individually.

12 I never take the position of representing several clients and making

13 trade-offs between different sets of information. And generally, I have

14 reservations about this.

15 JUDGE ORIE: Yes. I'd like to continue tomorrow morning, because

16 we haven't got sufficient time to explore all the details of it. I'd like

17 to see -- Mr. Par and Mr. Prlic, I'd like to see you back tomorrow

18 morning, continue with you, and then I'd like to continue with you,

19 Mr. Olujic, if I now pronounce it well, and Mr. Jonjic, in respect of

20 their clients.

21 We'll adjourn until tomorrow morning. Would you please try to

22 find out time and place. Presumably it will be Trial Chamber -- the

23 Courtroom I at 2.00 -- Courtroom II. Yes. Even -- well, we have no

24 Prosecution present, so Courtroom II is a very small one, but the three of

25 you will fit in. So Courtroom II. And is the time known already,

1 Mr. Registrar?

2 MR. PAR: [Interpretation] Is somebody asking me?

3 THE REGISTRAR: It seems around 11.00, Mr. President.

4 JUDGE ORIE: Yes. Well, not earlier than 11.00.

5 MR. PAR: [Interpretation] 11.00 is all right with us.

6 JUDGE ORIE: Thank you very much. We'll adjourn until tomorrow

7 morning.

8 --- Whereupon the Hearing

9 adjourned at 7.13 p.m.

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