Tribunal Criminal Tribunal for the Former Yugoslavia

Page 244

1 Tuesday, 8 November 2005

2 [Status Conference]

3 [Open session]

4 --- Upon commencing at 12.30 p.m.

5 [The accused entered court]

6 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, could you call

7 the case, please.

8 THE REGISTRAR: [Interpretation] Thank you. It is case number

9 IT-04-74-PT against Prlic et al.

10 JUDGE ANTONETTI: [Interpretation] Thank you, Registrar.

11 Could we have the appearances for the Prosecution, please.

12 MR. SCOTT: Good afternoon, Your Honour. Kenneth Scott for the

13 Prosecution. I am joined today by Mr. Daryl Mundis, also a senior trial

14 attorney, and also Ms. Josee D'Aoust, trial attorney, Mr. Pieter Kruger,

15 trial attorney, and our case manager who is Skye Winner.

16 JUDGE ANTONETTI: [Interpretation] Thank you.

17 I would like to turn to the Defence counsel. I know one of them

18 but I don't know the others. I would ask you each in turn to spell out

19 your name and give me the name of the accused you represent today.

20 MR. KARNAVAS: Good afternoon, Your Honour. My name is Michael

21 Karnavas, K-a-r-n-a-v-a-s, and I represent Dr. Jadranko Prlic. Lead

22 counsel.

23 MS. TOMANOVIC: Good afternoon, Your Honour. Co-counsel for

24 Dr. Prlic, Suzana Tomanovic.

25 MS. NOZICA: [Interpretation] Good afternoon, Your Honour. My

Page 245

1 name is Senka Nozica. I am co-counsel for Mr. Bruno Stojic.

2 MS. ALABURIC: [Interpretation] Good afternoon, Your Honour. I am

3 attorney Vensa Alaburic. I am Defence counsel for Milovoj Petkovic.

4 MR. JONJIC: [Interpretation] Good afternoon, Your Honour. My name

5 is Tomislav Jonjic, attorney in Zagreb, Republic of Croatia, Defence

6 counsel for Valentin Coric.

7 MR. IBRISIMOVIC: [Interpretation] Good afternoon, Your Honour.

8 For the Defence of Mr. Pusic, Fahrudin Ibrisimovic, attorney from

9 Sarajevo.

10 THE ACCUSED PRALJAK: [Interpretation] Good afternoon, Your Honour.

11 My name is Slobodan Praljak, and in this case I shall be defending myself.

12 JUDGE ANTONETTI: [Interpretation] Good afternoon, Mr. Praljak.

13 I would like to welcome all the parties present in the courtroom.

14 As you know, this hearing is connected to the Status Conference and we

15 intend to hold this hearing until 5.00. In the light of the number of

16 questions included in the agenda for today, we will try to finish before

17 5.00, if possible, in order to bear in mind special requirements of the

18 accused Praljak.

19 Before addressing the items on the agenda for today, I would like

20 to welcome in addition to the counsels and the accused, the staff members

21 working in this courtroom, the registrar, the trial attorneys, the

22 registrar, whom I'm happy to see again, and I would also like to welcome

23 the interpreters who will be giving us a helping hand in today's hearing

24 and the other hearings in the future. As you know, we will be working

25 into French, into English, and into B/C/S.

Page 246

1 Today I have planned to convene this Status Conference and to

2 address the following items on the agenda. I shall give you a list of

3 these items I intend to address: (a) the Trial Chamber II, whom this case

4 has been handed over to; I will address the question of the potential

5 disqualification of the Judge of this Chamber; third point, I will state

6 why we are holding this Status Conference pursuant to 65 -- to Rule 65

7 bis; then I will tackle the question of the various counsels and issues

8 relating thereto; the situation of Praljak, who is representing himself;

9 and the potential question of conflict of interest, which I will address

10 in private session; then the fifth point has to do with the outstanding

11 motions, a number of motions are currently pending, which is an issue I

12 shall come back to at the end of this hearing; I will then address the

13 question of disclosure of material pursuant to Article 66 and 68 of the

14 Rules of Procedure and Evidence; sixth point -- issue, I will address the

15 schedule, and I shall turn both to the Prosecution and to the Defence

16 because I expect to have deadlines set for the submission -- for their

17 submissions; point 8, I shall address the directive and the number of

18 words to be used in the motions; point 9, I will specifically address the

19 issues relating to 65 ter (E) pertaining to the pre-trial brief, list of

20 witnesses, list of exhibits to be filed by the Prosecution; and if we have

21 enough time, I would like to address the questions pertaining to the trial

22 itself. I am sure there will be a number of questions raised, given that

23 this trial has six accused. This is the first time in the history of this

24 Tribunal -- it is the first time that so many accused are being tried at

25 once, and it is the first time there are so many Defence counsels.

Page 247

1 These are the items on the agenda. You know that as a Pre-Trial

2 Judge today I shall be tackling all these issues from beginning to end,

3 which explains why there has been no meeting with the senior trial

4 attorney of the Chamber before this hearing. Pursuant to the conclusions

5 of the working party established by this Tribunal, in order to expedite

6 the trials, the working party concluded that the Pre-Trial Judge must be

7 involved in the preparation of the trial and, if possible, this same Judge

8 should do the work of a senior trial attorney.

9 I, therefore, wish to manage this trial from beginning to end so

10 that this can be prepared in the best manner possible.

11 I also indicated that I was going to address the status of Trial

12 Chamber II. As you know, initially this case had been referred to Trial

13 Chamber I, and it's only recently that the Judge presiding over Trial

14 Chamber I seized this Tribunal for the case to be re-assigned to another

15 Trial Chamber. Under these conditions, Trial Chamber II has been

16 designated, and Judge Agius, presiding over Trial Chamber II, appointed me

17 to be the Judge to preside over this Trial Chamber. Trial Chamber II

18 comprises four permanent Judges, and Trial Chamber II should operate with

19 three permanent Judges, because each Trial Chamber, normally speaking, has

20 three permanent Judges sitting and not four. So in the next few days one

21 of the permanent Judges will probably be re-assigned to another Chamber.

22 The second issue pertaining to Trial Chamber II is that on the

23 17th of November, there will be new elections held to appoint a President

24 of this Tribunal. I would like to make this announcement today. As a

25 President, I have applied for this job. Another Judge has also applied

Page 248

1 for the job. And depending on the outcome of this election, if I am

2 appointed President of this Tribunal, I will not be able to preside over

3 this Chamber because a President is -- can only be an appeals Judge. If

4 that is not the case, I shall preside over this Chamber and this trial.

5 In the case I am not elected, I shall then dedicate all my time to the

6 preparation of this trial.

7 If I preside over this Chamber, I will have on either side of me

8 two ad litem Judges which will be appointed by the Secretary-General of

9 the United Nations. These will be the Judges sitting in this trial. The

10 appointment of ad litem Judges can only take place once a date has been

11 set for the commencement of trial.

12 The second point I wish to address today has to do with the

13 question of disqualification. Let me tackle this right now. It so

14 happens that I have been the confirmation Judge in this case, which is by

15 pure chance. Having confirmed the indictment, the question may occur, in

16 other words, am I entitled to preside over the Chamber that is going to be

17 handling this trial? The Rules of Procedure and Evidence is particularly

18 clear on this point. Let me quote Article 15(C). Article 15(C)

19 stipulates as follows: "The Judge of a Trial Chamber who reviews an

20 indictment pursuant to Article 19 of the Statute and Rules 47 or 61 of the

21 Rules of Procedure and Evidence can be sitting as a member of the Trial

22 Chamber for the trial of that accused."

23 This Rule, therefore, answers the question. Why was this Rule

24 drafted in such a way? As you know, there are not that many permanent

25 Judges in this Tribunal and there are a number of cases being tried. So

Page 249

1 the Tribunal could not operate properly if the confirmation Judge could

2 not also be the Judge presiding over a Chamber. The bureau of this

3 Tribunal on the 28th of March, 2003, rendered a decision pursuant to

4 Article 15(B) of the Rules of Procedure and Evidence pertaining to

5 disqualification of Judges. The accused Galic had filed a motion to

6 disqualify Judge Orie of the Galic case because Judge Orie had confirmed

7 an indictment against Mladic, and therefore he could no longer deem to be

8 impartial. The -- Galic had stated that there could be a risk of

9 contamination between the two cases. The two accused in these two

10 indictments overlapped. This was the legal argument submitted by the

11 accused with a view to disqualify a confirmation Judge.

12 In its decision, the bureau stipulated that if an indictment is to

13 be confirmed, it is important to bear in mind the evidence provided that a

14 reasonable trier of fact could reasonably conclude that to declare the

15 accused guilty beyond any reasonable doubt. The bureau indicated that a

16 verdict is quite a different thing. It is a matter of determining in the

17 light of all the material provided by the Prosecution whether the

18 Prosecution has in fact established the guilt beyond any reasonable doubt

19 of the accused. The bureau has therefore established a clear distinction

20 between the confirmation phase and the judgement phase; these are two

21 quite different things.

22 The bureau in its decision stipulated that these two decisions,

23 i.e., confirmation or finding of guilt or acquittal, require two different

24 approaches to evidentiary material and resort to two different systems.

25 Confirmation of an indictment does not cause any prejudice to the guilt of

Page 250

1 an accused.

2 To sum up, the Rules of Procedure and Evidence provides for the

3 possibility of a confirming Judge to preside over the Chamber at trial.

4 The confirmation of an indictment is only a temporary part of -- a small

5 part of the proceeding, and the potential guilt of an accused only points

6 to the material evidence provided by both parties in an indictment that

7 has been confirmed. The evidence is only provided by the Prosecution as

8 the Defence, by definition, does not state its material.

9 As you know, pursuant to Article 15(B), any party can seize the

10 President of the Chamber for deferral. Any request for deferral based on

11 the fact that the same Judge has been a confirmation Judge and the Judge

12 of the Trial Chamber will -- will be rejected by me on reading the summary

13 to be provided in that case.

14 Before opening this hearing, I felt it necessary to spell this out

15 so that people don't waste any time on this. As far as I understand this,

16 the commencement of trial has been scheduled for the beginning of

17 February, the year 2006. As Judge Liu of this Tribunal stated, he had

18 been seized of a disqualification motion and rendered a decision,

19 according to paragraph 19, and I quote what he had said, and I fully share

20 his view. This is what he said: "I therefore urgently ask the parties to

21 use their right to file a motion before the Chamber to avoid any delaying

22 of the proceedings."

23 I also invite the parties to address this with the greatest

24 caution, and before concluding on this point, I would like to turn to

25 either party and ask them if they have any comments to make.

Page 251

1 The Prosecution, do you have any comments to make?

2 MR. SCOTT: Your Honour, I think Rule 15 is quite clear on its

3 face, and we would have nothing to add to that.

4 JUDGE ANTONETTI: [Interpretation] Thank you.

5 The Defence counsels, do you have anything to add?

6 MR. KARNAVAS: First of all, thank you, Mr. President, for

7 bringing this up. I think it is an important point. I think the rule is

8 clear. I believe the Galic case sort of settled the law. Galic I think

9 was somewhat different, as the situation is now, in that the rule seemed

10 to be amended after the confirmation of the indictment process, and I

11 believe that was one of the issues, but that's no longer an issue, and

12 that's not an issue in this case.

13 From a personal standpoint, I am confident that you will be able

14 to make the distinctions as you've already pointed out, knowing that the

15 Prosecution only gathered the evidence and presented the evidence which it

16 believes, and coming from your only good position, you know we don't have

17 an investigator judge who is investigating for both sides and presenting

18 exculpatory information.

19 So in light of that, I'm confident that there's no need to file

20 any motions on behalf of Dr. Prlic with respect to this particular issue.

21 Thank you.

22 MR. IBRISIMOVIC: [Interpretation] Thank you, Your Honour. The

23 Defence of Mr. Pusic for the record states today that it will be making no

24 motions. We have no objections or comments to make, and we agree with

25 what Mr. Karnavas said a moment ago, following what you yourself said,

Page 252

1 Your Honour.

2 MS. NOZICA: [Interpretation] Your Honour, if you want to hear all

3 our views individually, I fully agree with the position taken by

4 Mr. Karnavas and my colleague Mr. Ibrisimovic, and the defence of

5 Mr. Bruno Stojic will not object or file any motions in that respect .

6 I should like to associate myself with my colleagues and state

7 that the fact that you, Your Honour, have confirmed the indictment does

8 not bring into question, and I doubt that you will be unbiased in

9 presiding over this case.

10 MR. JONJIC: [Interpretation] Your Honour, the Valentin Coric

11 Defence agree can associate itself with what the Defence of Mr. Prlic have

12 just said.

13 THE ACCUSED PRALJAK: [Interpretation] Your Honour, there is no

14 reason for me not to join the other Defence counsel on their position with

15 regard to this, nor do I object in any way to what has been said so far.

16 Thank you.

17 JUDGE ANTONETTI: [Interpretation] Very well. Thank you.

18 I would like now to address a third item on this agenda, the

19 reason why we are holding this Status Conference today pursuant to Rule 65

20 bis with a view to preparing the trial. The Rules of Procedure and

21 Evidence state that a Status Conference should be held every 120 days to

22 enable the exchange between the parties and to seize the Judge of any

23 potential issue. This is why I wanted this hearing to be held today. I

24 felt it was important to get to know you because I'd -- there were a

25 number of counsels I didn't know and it's the first time I meet

Page 253

1 Mr. Praljak.

2 I would now like to address the issue of Defence counsels. As

3 part of this is confidential, I would like to ask the registrar to move

4 into private session, please.

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9 [Open session]

10 --- On resuming at 2.12 p.m.

11 JUDGE ANTONETTI: [Interpretation] So we shall resume this hearing

12 in public session. We were formally in private session.

13 Now, pursuant to our agenda let's turn to item 5, i.e., pending

14 motions to date. There are several pending motions for which a solution

15 is to be found shortly. Let me just tell you what this is about. I'm

16 sure you have realised at the time this case was re-assigned from

17 Chamber I to Chamber II, Trial Chamber I rendered decision on motions

18 which were not to be settled by Trial Chamber II; and Trial Chamber II is

19 seized of four motions which I shall address.

20 The first motion -- let us please move into private session again.

21 It's for a short period of time, but it is necessary.

22 [Private session]

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4 The third motion, third pending motion, is a much more complex

5 matter. This has to do with the question of adjudicated facts and agreed

6 facts. As you know, in law, Article 65 ter (H) of the Rules of Procedure

7 and Evidence stipulates that when the parties agree on a number of facts,

8 these are deemed to be agreed facts, and this saves time. Rule 65 ter (H)

9 spells this out. It is indicated that the Pre-Trial Judge shall record

10 the points of agreement and disagreement on matters of law and fact. In

11 this connection, he or she may order the parties to file a written

12 submission with either the Pre-Trial Judge or the Trial Chamber.

13 In addition to this possibility, Article 94(B) of the Rules of

14 Procedure and Evidence on judicial notice states as follows: A Trial

15 Chamber may, proprio motu, after hearing the parties, may decide to take

16 judicial notice of adjudicated facts of documentary evidence from other

17 proceedings of the Tribunal relating to matters at issue in the current

18 proceedings.

19 This Rule, 94(B), is interesting insofar as material which has

20 been presented in other proceedings, materials over which a final

21 judgement has been rendered can also be used. This means that judicial

22 notice can be taken of these facts. In the light of this, if the

23 Prosecution filed a motion on the 4th of April, 2005, to request to begin

24 with the admission of 514 [as interpreted] facts which had been admitted

25 in other proceedings, Furundzija, Alesovski, Kupreskic, Blaskic, Kordic

Page 282

1 and Cerkez, Naletilic and Martinovic.

2 After this motion was filed, the accused Petkovic and Prlic filed

3 on the 18th of April, 2005 their reply, and on the 25th of October, 2005,

4 the Prosecution sought leave to file a response. The 27th of October,

5 2005, the Prosecution filed a new proposal and asked that the 514 facts,

6 with the exception of nine of them, be admitted.

7 On the 7th of November, 2005, in other words yesterday, I received

8 a fax relating to this matter. The Defence counsel have filed their reply

9 and concluded that the Prosecution must amend its conclusions, otherwise

10 no agreement can be reached.

11 This is an important matter if the trial is to unfold as

12 appropriate. Obviously, if there is judicial notice of a number of facts

13 which are not challenged, this will mean that some witnesses will not have

14 to come, witnesses which otherwise would have come to testify about these

15 various issues.

16 The Prosecution had filed its motion and included 14 main points.

17 The historical background of the conflict, the conflict of the Vance-Owen

18 Plan, the 15th of January ultimatum, Gornji Vakuf, the April -- February

19 to April 1993 Vance-Owen Plan, Herzegovina 1993, Sovici-Dojani [phoen]

20 settlements, Mostar, the Heliodrom, Lusabuski [phoen] prison, Vares,

21 Stupni Do, so on and so forth. So there were 14 items listed, and in a

22 schedule the Prosecution listed items which had been divided by those 514

23 facts, nine of which had been taken out.

24 Now, following the response and reply by Prosecution and Defence

25 team respectively, the Prosecution had prepared a chart and stipulated

Page 283

1 that on a number of facts there had been an agreement on the part of the

2 Defence counsels. The Defence counsels challenged this. This table which

3 had been prepared by the Prosecution was in the schedule of the

4 submissions presented on the 25 -- 27th of October, 2005, and this

5 provided, (a), a list of facts; (b), the accused, Petkovic, Coric, and

6 Pusic; and then one heading for Prlic and Praljak. I realise that one of

7 the accused was not listed on this chart, and based on this the

8 Prosecution had then drawn up -- let me randomly turn to point 115.

9 Item 115 has been accepted by the Prosecution and by the Defence

10 team. This table was then challenged on the 7th of November. And on the

11 7th of November in the written submissions which were filed by Petkovic, I

12 noticed that the Defence team challenge the acceptance of 41, 55, 65, 61,

13 79, 139, 140 -- correction, 55, 64, 65, 71, 79, 139, 140. So this has

14 been challenged.

15 We will then have to move on as follows. An agreement has to be

16 reached between the parties, and this has to be done in two stages. I

17 would like to ask the Prosecution to contact the Defence counsels in order

18 to -- the Defence counsels and Mr. Praljak, who is representing himself,

19 we should not forget him, and -- so that you prepare a definitive list of

20 those agreed facts which we knew. If out of these 514 facts you still

21 wish -- you still want some of the facts to be admitted because they are

22 challenged, you then -- in the second stage, I recommend you do as

23 follows. The Defence team should indicate on a point-by-point basis the

24 reasons for which it does not wish to admit the fact in question. The --

25 so that the Trial Chamber can determine the matter and be fully informed.

Page 284

1 In a nutshell, the Prosecution, the Defence teams, and Mr. Praljak

2 need to get together and prepare a definitive list and consolidated list

3 of those facts that have been accepted by both sides; and secondly, if the

4 Prosecution -- if an agreement is not reached with the Defence, wishes to

5 have some facts admitted by the Trial Chamber, then the Prosecution is to

6 file a motion and submit it to the Trial Chamber, the Prosecution should

7 then state point-by-point why it disagrees and the Trial Chamber will

8 determine the matter. By and large, this is how we shall proceed.

9 Before moving on to the next item on the agenda, I would like to

10 ask the Prosecution if it has any comments to make in regard to this

11 particular issue.

12 MR. SCOTT: Yes, Your Honour.

13 May it please the Court, the -- there is a rather long history to

14 those matters as Your Honour has just recounted in part. We did indeed

15 file a most recent submission on the 27th of October, in which we

16 attempted to set out what we understood to be, as best we could, the

17 respective positions of the parties.

18 I agree with Your Honour completely that it appears based on the

19 subsequent filing or submission made by the Petkovic Defence, that

20 apparently there was yet still some misunderstanding. And I just want to

21 clarify for the Chamber that apparently is all it is. Certainly the

22 Prosecution has not attempted to misstate anything intentionally, but I

23 think in fact what this goes to demonstrate, unfortunately, is the nature

24 of the way this has proceeded all along. It has been one step forward and

25 two steps back or sideways or something, but not much progress.

Page 285

1 We will persist in and do what the Chamber, what Your Honour, has

2 directed us to do. I will point out, and I suspect perhaps if counsel are

3 given the opportunity to address Your Honour that they will do the same.

4 The basic procedure as to point 2 -- let me back up for one moment.

5 As to point number 1, to clarify, for all the parties to clarify

6 jointly those matters which are agreed, if any, at this point. I

7 certainly agree with the Chamber, and that will be pursued immediately.

8 As to point number -- or as you say stage number 2. As to the

9 unagreed facts, if you will. I think, Your Honour, that essentially this

10 process has been -- has been carried out. There have been a series of

11 submissions since spring, one in August by the Defence, and one again more

12 recently in which there was -- whether the Prosecution agrees with them or

13 not, I would have to say a lengthy response point by point to the

14 Prosecution's proposed agreed -- adjudicated facts.

15 So I'm not sure how much further that will take us. I suspect

16 what the Defence will say - and I don't pretend to speak for them - but I

17 suspect what Defence will say is that they in fact have already engaged in

18 this process and made a number of submissions over the past several

19 months.

20 As to any facts which are not agreed by the Defence, the

21 Prosecution would persist, Your Honour, in submitting those adjudicated --

22 those proposed adjudicated facts not agreed and not withdrawn by the

23 Prosecution.

24 One of the fundamental points that the Prosecution has tried to

25 make since the 4th of April this year is that adjudicated facts are not

Page 286

1 fundamentally matters of agreement, that a fact is adjudicated based on

2 the jurisprudence of the Tribunal, the fact is adjudicated whether the

3 parties agree or not and whether a party likes a particular fact or not.

4 It's either an adjudicated fact or it isn't. So the fact that the parties

5 don't agree or the Defence doesn't agree, Your Honour, with all respect,

6 does not resolve the matter.

7 But just to quickly summarise the Prosecution's position, Your

8 Honour, we will indeed communicate with the Defence on identifying, if

9 any, those facts on which there is agreement. And then we will

10 indicate -- I indicate now that we are -- we will persist in all the

11 remaining facts except for those that we have in fact expressly withdrawn.

12 Thank you.

13 JUDGE ANTONETTI: [Interpretation] Thank you.

14 I shall now turn to the Defence counsels, and I shall give the

15 floor to Mr. Praljak, if you would like to say something, Mr. Praljak.

16 Mr. Praljak, you have the floor first and then we shall hear the Defence

17 counsel.

18 So you have understood what all this is about, Mr. Praljak, have

19 you?

20 THE ACCUSED PRALJAK: [Interpretation] Yes. Adjudicated facts can

21 be taken as adjudicated facts if all the circumstances had been taken into

22 account at the relevant time.

23 Having followed trials for a long number of years, it seems to me

24 that it was proceeded in the following way, that an individual, small part

25 would be taken and then the entity would be looked at. Not all facts were

Page 287

1 taken into account, but small bits of a broken mirror were looked at, and

2 this is something which is wrong. That is what leads to war since the

3 days of the ancient Greeks.

4 As for my two Defence attorneys, who are not with me now, I was

5 not prepared to agree to any fact that was not based on the totality of

6 what was going on in the territory of Croatia, Bosnia and Herzegovina, or

7 the former Yugoslavia. That is why I request that the Court do the

8 following because this case is more general than the previous cases.

9 Regardless of whether we are talking about Milutinovic, or Cerkez, or

10 Blaskic, or somebody else, our indictment is quite different. As I've

11 already said, it goes back to the very inception of the war and its

12 production. So I am not prepared to accept the position of any individual

13 man or his commission or non-commission can shed light on what I did

14 during that war.

15 That is why I'm going to ask that all relevant facts be taken as a

16 point of departure. We made a great effort to explain everything that

17 concerns this war, its political part, its military part, its humanitarian

18 part, and especially the activity of the Croatian state in all of this.

19 The wounded, refugees, humanitarian assistance, the arming, for which I

20 claim that we do have facts, that not a single state in the history of

21 mankind behaved in that way when aggression was committed against it.

22 For example, a fact has not been dealt with sufficiently from the

23 point of view of science. For several years, Croatia had over 700.000

24 refugees, and if you look at the United States, for instance, and if you

25 look at the proportions involved, that would mean as if the US had taken

Page 288

1 in 43 million refugees. If we were to look at Italy, for instance, that

2 would be 16 per cent of the population, the total population, that is to

3 say, 16 per cent of 50 million people, so that is 7 and a half or 8

4 million refugees. And then the social system had changed, a third of the

5 territory was occupied, there were terrible problems involved. The

6 situation was even worse in Bosnia-Herzegovina because a state

7 disintegrated within a single day. From all the different points of view

8 that are characteristic of a civilisation. That is to say, all law and

9 order collapsed. There was nothing. There was no police, no water, no

10 electricity, no nothing. So we can only reach the truth if we look at all

11 the general facts and if we look at what each individual could have done,

12 not what we would expect an individual to do with an attributes of a god.

13 That is the only way in which we can deal with this. I am not going to

14 agree with the decisions that were made in cases that were much less broad

15 than this particular case.

16 Thank you.

17 JUDGE ANTONETTI: [Interpretation] Thank you.

18 Mr. Karnavas, you have the floor.

19 MR. KARNAVAS: Thank you, Your Honour.

20 If I could supplement what I believe Mr. Praljak indicated, which

21 is exactly our position, which is in the previous cases you didn't have

22 the depth in those indictments as you have in this particular case. There

23 wasn't issues of the joint criminal enterprise, as it's stated in this

24 particular case. And for whatever reasons, the lawyers in those cases may

25 or may not have decided to challenge certain issues or to address them in

Page 289

1 whatever fashion they wished to do so based on their theory of the

2 Defence.

3 Having said that, I just want to point out a couple of points.

4 First, with respect to adjudicated facts, as the Prosecution has

5 acknowledged, we have spent a tremendous amount of time working on these

6 adjudicated facts and tried to find a way of bridging the gap. We

7 submitted lengthy responses. Initially there were some complaints that we

8 were too pithy in our responses. We then went back and we spent more

9 time. I don't expect the Prosecution to agree with much of our positions,

10 but nonetheless we satisfied their appetite for having more -- more facts

11 as to why we couldn't agree to certain adjudicated facts.

12 Certain adjudicated facts are just plain and absolutely wrong.

13 And with all due respect, Your Honour, Courts do make mistakes. Even

14 appellate courts make mistakes; it's just a fact of life. And so there's

15 some facts you can point out scientifically that they're absolutely wrong.

16 We cannot accept. Others are taken out of contest context, a matter which

17 Mr. Praljak pointed out quite aptly and eloquently, might I add.

18 There are other issues that we believe were not fully addressed.

19 What we have tried to do is to amend certain adjudicated facts, so then

20 they become agreed facts. The Prosecution, or at least some of them,

21 don't like that idea. Frankly, I think it's better because then if it

22 goes to an agreed fact, it's stipulated, you take judicial notice, it's

23 not subject to a rebuttable presumption, it's the end of the case. So I

24 think to the extent that we can agree on those adjudicated facts, even if

25 we have to tweak them a little bit, or a lot, as the case may be, I think

Page 290

1 it's best for everybody.

2 I don't suspect that we're going to go far beyond the point where

3 we are. I think all parties have dug in at this point with respect to

4 adjudicated facts. It might be helpful with Your Honour to sit down with

5 all of us and we can go through every one. It may not be the most useful

6 consumption of your time, but I think the only other solution might be for

7 you to make a decision. But I think the parties, at least with respect to

8 the adjudicated facts, have stated quite clearly and have articulated

9 their points to the point where a decision can be made.

10 Frankly, I think we need to try this case differently from the

11 previous cases because in those cases you didn't have the issues that you

12 have today. And in this particular case, the president of the Republic of

13 Croatia, President -- the late President Tudjman, is being tried in

14 absentia, in essence. And so is Susak, so it Boban, so is Bobetko, so is

15 everybody else, in the sense when you look at it you have a joint criminal

16 enterprise which entails the entire Republic of Croatia along with members

17 of the HVO and so on and so forth.

18 In light of that -- and we have -- and since those trials, might I

19 add, we have a significant amount of new material that wasn't available to

20 the lawyers. For whatever reason some archives were not available, now

21 they are. So we have to look at the case from a different perspective.

22 And I understand there is this completion strategy, but frankly when my

23 client is looking at spending the next 20 years in prison, I care little.

24 I am deeply unmoved with all due respect to the UN's completion strategy.

25 That's their problem. They've decided to have a court, they've decided to

Page 291

1 indict, they've decided to have this comprehensive indictment. And so now

2 they shouldn't -- the Prosecution especially shouldn't expect me to roll

3 over and agree to everything so that we can just go straight to

4 sentencing. And I've stated this privately and I'll state it again

5 publicly. If we were to agree to many of those facts that they're

6 suggesting, then there's no sense in having a trial. And I speak for both

7 the adjudicated and the agreed facts.

8 With respect to the agreed facts, again if you look at them and we

9 did answer those questions -- we did answer most of them I believe with

10 some specificity. We are willing to do so again. It takes a lot of time

11 to get all counsel together. Lead counsel for one of the accused has yet

12 to come, and previously there was a dilemma in that particular case.

13 Mr. Praljak now is going to be defending himself. Somehow we are going to

14 have to manage to get all together. But I think that with a short

15 deadline that you might wish to impose upon us, otherwise we tend to be

16 working on other matters that are equally as pressing, we can try to

17 present more facts or more reasons as to why we cannot agree with certain

18 proposed agreed facts, which in essence have been lifted wholesale from

19 the indictment. When you look at it -- when you look at it as a whole,

20 Your Honour, and I don't mean to be disrespectful to the Prosecution, but

21 when you look at it they're really overreaching, and they really don't

22 want to have a trial. They want to have a sentencing. That's what it

23 looks like.

24 Now, I might be overstating their case, but maybe they want a

25 short trial, but they surely don't want to have a whole lot of defence in

Page 292

1 this particular case. And that's why, and I don't mean to be flip about

2 this, but that's why I don't think that we're going to be able to agree on

3 a whole lot. To the extent that we are able to find some points hat we

4 are willing to agree on, we've indicated those.

5 Beyond that, I have to be honest and I have to be candid, and I

6 try to be whenever I'm speaking to the Court. I'm not so sure I'm going

7 to go beyond I'm not going to be able to go beyond what I've already done

8 because my first submission was an honest one based on the realities of

9 knowing that you would have to make a decision. But I'm willing

10 nonetheless to show the flexibility, to go back, and to do the very best I

11 can - I know my colleagues will do the same - to see how we can bridge

12 this gap. And I think it would be good for all of us to meet with the

13 Prosecution. I certainly have no objection to that. But again, I don't

14 want to sound like a Cassandra, but I would not be expecting too much,

15 Your Honour, with the greatest respect. I'm just kind of forewarning you

16 that we're going to do the best we can, but there's not a whole lot of

17 room that either side is willing to give on these issues.

18 And I want to go back and I want to commend Mr. Praljak for his

19 eloquence in stating the obvious, which is that in this particular case

20 the way it has been charged, the indictment, and when you look at all

21 those permutations in the indictment, when you get to paragraph 17 - it's

22 what I call the smorgasbord approach - of charging in every conceivable

23 way, for everything, when you look at that and you have to keep that in

24 mind, Your Honour because -- and one other point I want to make before I

25 forget. In the previous 65 ter we had a particular issue with respect to

Page 293

1 the reading of the indictment. What is not in the indictment is part of

2 the charge. For instance, one minor issue, or major, depending on how you

3 look at it, are the events in Ahmici. We're told that that's not part of

4 the indictment that I don't have to defend. But at the same time the

5 Prosecution says that they're perfectly -- it's perfectly acceptable for

6 them to use those events in order to draw certain conclusions. That's

7 fair. That's their point. But I need to know what is it in this

8 indictment that I have to defend. If it's the

9 four corners of the indictment, that means every single word. Now --

10 coming from the continental system, I'm sure you appreciate that that's

11 what I have to do in this particular case. So when you put something in

12 the historical background that later on the Prosecution will be able to

13 use that historical background in order to lay a foundation for a

14 conclusion which they wish you to arrive at, that means that I need to

15 attack that very foundation if I believe that foundation is not true and

16 complete. And that's where we're going to get into some problems, and

17 that's why we're having difficulty agreeing with everything that the

18 Prosecution wishes for us to agree on. Because if it goes unchallenged, I

19 will then be reading it in the judgement and it's an admission that I have

20 made on behalf of my client, and in essence what I'm being put in is that

21 very difficult position of where I'm having to agree to a fact in order --

22 so we can have quick proceedings while at the same time I am putting my

23 client in jeopardy. And that's why these agreed facts are not something

24 to be taken lightly.

25 And that's why, Your Honour, I believe that you cannot expect from

Page 294

1 us too much on that. That's our position, and I'm sure my colleagues will

2 chime in if they have a different position or if they want to supplement.

3 Thank you.

4 MS. NOZICA: [Interpretation] Thank you, Your Honour. I don't wish

5 to add to anything that Mr. Karnavas has already said at this point in

6 time.

7 Thank you.

8 MS. ALABURIC: [Interpretation] Your Honour, I am very pleased to

9 have had Mr. Karnavas, who defends the accused, to present his client's

10 views and position and ours, too, and I fully endorse what he said with

11 respect to our policies. And I think that we should all state our views

12 and stress that the Defence will not by any move or step contribute to the

13 realisation of the closing-down strategy, unless it contributes to the

14 quality of the defence of each of the accused. So we're not in favour of

15 the completion strategy unless it contributes to the quality of the

16 defence. And I think that it is very unjust to expect the Defence by --

17 or intimating to the Defence that it would be good to align itself with

18 the factual, undisputed facts of the case and the positions or function of

19 each of the accused therein and that all that remains for us to do is to

20 set up the links between the crime and the perpetrators of the crime and

21 present evidence which would influence weighing up of the sentence itself.

22 Mr. Karnavas explained that the Defence will not agree to endeavours of

23 this kind and that we'll do our best and give our all to prevent this

24 trial from following along those lines, and therefore adjudicated facts as

25 a subject matter is very interesting.

Page 295

1 I'm going to continue speaking about specific features and

2 indicating the following. Whatever the further discussions about

3 adjudicated facts take in the form that they have been presented and

4 proposed I consider to be unproductive, and I believe that on the basis of

5 a proposal of that kind that has been made, we're not going to arrive at

6 the proper results. In our motions and filings, we tried to indicate and

7 show that the Prosecutor presents as an adjudicated fact whole paragraphs

8 from the indictment, adjudicated fact as in the singular, and with one

9 example, and fact 142 in fact, I show that in that proposal there were 13

10 facts in fact and one value judgement.

11 Therefore, I consider that the Prosecution should be guide in the

12 following way. If through their proposals they wish to establish the

13 facts which were adjudicated ones, that their proposals should be

14 dovetailed with a court practice here in the Tribunal, case law, and that

15 each fact should be a fact in the singular and not have proposed value

16 judgements or legal characterisations. I think that only on the basis of

17 adjudicated facts formulated in that way we shall be able to make a step

18 forward and truly coordinate our positions according -- on something that

19 the Defence considers to be acceptable as well.

20 MR. JONJIC: [Interpretation] The Valentin Coric Defence counsel

21 would like to support what my colleagues have said and I would just like

22 to add a few sentences.

23 There is a technical problem, and I would like to say this.

24 Correspondence on this matter, you and other colleagues have mentioned

25 this and it could be enriched further in view of the fact that I'm not the

Page 296

1 sole Defence counsel who in recent weeks has been receiving mail very

2 irregularly. And I established today, or rather, this morning that I

3 found in my locker 10 to 15 filings that I had not previously found there.

4 So I established this problem two weeks ago and I managed to deal with --

5 to settle that problem by corresponding with the registry. However, it

6 appeared that many more documents had been sent that -- more than the

7 number I found. So maybe if we receive some documents later on, belatedly

8 we will be responding to that. That is a technical point.

9 But what I consider to be far more important is the following.

10 All the adjudicated facts proposed by the Prosecution stem from the

11 judgements made which cannot be considered to be in force at present. We

12 all know full well that the Martinovic/Naletilic case has still not been

13 finalised, the appeal has still not come in. And another point with

14 respect to adjudicated facts come from the Lasva Valley cases, and from

15 the Croatian media and Bosnia and Herzegovina media it has become common

16 knowledge, or rather, guesses and speculations have been made that the

17 Prosecution ask for a revision or re-trial in one of those cases.

18 Now, the Prosecution has not denied statements of that kind that

19 have appeared in the press, so we have to take these speculations

20 seriously and the possibility of that kind of confidential material

21 actually existing.

22 Now, if it does turn out that in one of the cases of the Lasva

23 River Valley trials that we have a repeated trial in view of the fact that

24 all those cases are closely linked together and the domino effect is

25 present, it remains to be seen what the judgement will be and how it will

Page 297

1 reflect on the other cases in the Lasva River Valley. In other words, I

2 don't think that it would be too extensive to conclude that at this point

3 in time it is too early to decide about adjudicated facts, or rather,

4 facts that the Prosecution considers to be adjudicated.

5 Thank you.

6 THE INTERPRETER: Could the speakers kindly be asked to slow down

7 for the benefit of one and all. Thank you.

8 MR. IBRISIMOVIC: [Interpretation] Your Honour, apart from the

9 comments that my colleagues have presented, we have nothing further to

10 add.

11 Thank you.

12 JUDGE ANTONETTI: [Interpretation] Before giving the floor to the

13 Prosecution, let me outline two major points from what has just been said

14 by Mr. Praljak and various Defence counsel.

15 First it has been referred to, Naletilic/Martinovic case that is

16 currently on appeal. So here we indeed are faced with a problem because

17 only facts that have been adjudicated finally can be admitted. That's the

18 first hurdle.

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 298

1 What can the Prosecutor tell us about these two legal issues I've

2 outlined? First of all, the matter of potential revision of a judgement,

3 of an Appeals Chamber judgement? And secondly, the Naletilic/Martinovic

4 case?

5 Mr. Scott?

6 [Trial Chamber and registrar confer]

7 MR. SCOTT: Mr. President, we would ask to go into private session

8 at this time before I address these matters.

9 JUDGE ANTONETTI: [Interpretation] Private session then.

10 [Private session]

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 299











11 Pages 299-306 redacted. Private session.















Page 307

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 [Open session]

12 THE REGISTRAR: [Interpretation] We are in open session.

13 JUDGE ANTONETTI: [Interpretation] Earlier on, the

14 Naletilic/Martinovic case was mentioned. According to the Defence, this

15 case is on appeal and the facts should not -- such as 271, 272, 273, all

16 these facts should not be in the list. There are a number of facts

17 pertaining to that case.

18 I now turn to the Prosecution. What can you tell us about the

19 Martinovic/Naletilic case in that respect?

20 MR. SCOTT: Mr. President, if you'll allow me, when I responded to

21 the Chamber's first instructions on this some time ago now, the Chamber

22 had given us a two-stage direction on the matter of adjudicated facts.

23 One was that the parties should meet and indicate on which facts they can

24 agree; and the second stage was that there be a further exchange of

25 detailed submissions. And I have to say that when I rose to my feet some

Page 308

1 minutes ago, I specifically responded, quite specifically, only to those

2 issues. But now I've heard counsel and Mr. Praljak go on for some time

3 frankly addressing the merits, some of the merits of this issue. I'd like

4 to just very briefly mention a couple of points before specifically

5 answering Your Honour's question, with the Court's indulgence.

6 There have been a number of statements made, Your Honour, that

7 with all respect to counsel are simply not correct. In a number of cases

8 before this Tribunal, for example, the existence of an international armed

9 conflict involving the action and the control of the Republic of Croatia

10 on the territory of the independent state of Bosnia and Herzegovina has

11 been extensively litigated by parties who have exactly the same interest,

12 identical interest, to these accused. And other Defence teams supported

13 by the state of Croatia have actively litigated that issue. At least 14

14 Judges of this Tribunal, both in the Appeals Chambers and in the Trial

15 Chambers have found without exception or dissent, not a single dissenting

16 opinion, that there was in fact an international armed conflict in

17 Bosnia-Herzegovina involving the state of Croatia. It is one of the most

18 frequently and actively litigated points before this Tribunal in the last

19 12 years. So for counsel, with all respect, to stand up and say this just

20 isn't the same case, these issues just haven't been looked at before, is

21 simply not accurate.

22 The same can be said on the issue of widespread and systematic.

23 There has been extensive findings on this case and other cases that relate

24 also to this case on the existence of the common element of some of the

25 charges in the case and that is that there was widespread and systematic

Page 309

1 behaviour. There has been extensive findings in these other cases that

2 the Croatian Defence Council, the HVO, engaged in widespread crimes

3 against Muslims in Bosnia and Herzegovina. I will leave it at that, but I

4 simply wanted to address those specific points.

5 As to Your Honour's specific question on the Naletilic case, Your

6 Honour is correct. When we made our most recent detailed submission, I

7 believe at the end of August, on the 29th of August, we indicated on the

8 Naletilic facts those that we indicated may be considered on appeal, and

9 that's the language we used. And I don't know if the Chamber -- if Your

10 Honour has it in front of you, but I'm just pointing -- I'm just turning

11 by example to fact 254 on page 65 of our 29 August submission. We

12 indicated there that we thought that that fact may be considered on

13 appeal. And we agreed for purposes of the current exercise and putting

14 off for the moment what might happen when the Appeals Chamber issues its

15 final judgement in the Naletilic case. But as to the moment we would

16 consider that -- as to that kind of fact the determination of being an

17 adjudicated fact can well be suspended.

18 However, there are other facts, it's our position, in the

19 Naletilic case, for example, on that same page, fact 256, which is our

20 view, the Prosecution's view - the Defence may disagree and the Chamber

21 may of course ultimately make its own determination - that that particular

22 fact is not on appeal. The fact that an appeal is pending does not mean

23 every fact in the Trial Court judgement has been challenged.

24 So to be specific, Your Honour, as to those facts which we have

25 indicated in our submission may be considered on appeal in connection with

Page 310

1 the Naletilic case, I agree, the Chamber can consider those, if you will,

2 suspended at the current time. However, there are other facts which we

3 believe are not in fact on appeal in that specific response to Your

4 Honour's question.

5 JUDGE ANTONETTI: [Interpretation] Very well. Thank you for your

6 comments. Needless to continue talking about Naletilic, I think we have

7 rounded up this question very well.

8 Also, we have a motion pertaining to Rule 92 bis (D), i.e., the

9 admission of testimonies taken or testimonies in other cases. A motion

10 has been filed, the Defence team has replied, and the Trial Chamber will

11 be able to provide a response on this particular issue very promptly.

12 At 20 minutes to 4.00 we shall have to make a break. So I shall

13 try to speed things up and address point 6, i.e., disclosure of material.

14 As you know during a Status Conference, the Pre-Trial Judge must

15 see whether disclosure of material is smooth between the Prosecution and

16 the Defence team.

17 There are three important moments. Article 66(A)(i),

18 Article 66(A)(ii) and Article 68. Can the Prosecution detail me or tell

19 me about the various material which has been disclosed to the Defence

20 teams and then I shall give the floor to the Defence team if there are any

21 difficulties.

22 The Prosecution, you may start off with 66(A)(i), 66(A)(ii) or

23 Article 68. You may start whichever way you like. You have the floor.

24 MR. SCOTT: Thank you, Your Honour. In connection with to

25 Rule 66(A)(i), the supporting material, of course that material was

Page 311

1 produced some time ago, and I don't think there's any dispute to that.

2 As to 66(A)(ii), the prior statements of Prosecution witnesses, it

3 is our position that there has been and is substantial compliance with

4 there. There has been voluminous disclosure of those materials over the

5 past 5 months. I say "substantial" because as new statements are taken --

6 I'll give the Chamber an example of that in just a moment. As new

7 statements are taken and move into the category of a witness likely to be

8 called by the Prosecution, then of course additional statements come

9 subject to disclosure. But it's the Prosecution's general position that

10 Rule 66(A)(ii) disclosure is being satisfied. We do anticipate disclosing

11 some additional witness statements in the near future. For example, as I

12 said, some of the -- there have been new statements taken from some

13 witnesses formally under Rule 92 bis, and those statements of course

14 become, even though they may be in fact 99 per cent the same as the

15 previous statements, they are in fact new statements that have been

16 formalised by a hearing officer under 92 bis, and of course those

17 additional new statements will have to be disclosed.

18 As to other Rule 66(A)(ii) witness disclosure, there are some

19 Rule 70 witnesses. A number of those have been disclosed to date, but

20 there are others in which we are still waiting for the permission of the

21 responsible governments or organisations whether we can disclose them or

22 not. That is a matter that is ongoing, and we have a number of such items

23 of correspondence outstanding.

24 As to Rule 68(i), if you will, the actual -- so-called actual

25 knowledge Rule 68 material. Again, we believe that we have complied and

Page 312

1 are complying with our ongoing obligations. As the Chamber, Your Honour,

2 will be aware that is a continuing obligation, and again as additional

3 materials are identified, they are provided to counsel, as they have been

4 during the past several months. I think recently there were an additional

5 100 documents that have been identified, and we expect to be able to

6 produce those electronically to the Defence by the end of next week. They

7 have to be further collected, processed in terms of being put into a

8 digital form, in a form that they can then be disclosed to the Defence,

9 and we expect to do that by the end of next week.

10 There again, in terms of documents there are items that require

11 Rule 70 approvals. The Chamber may know and counsel may know that we have

12 recently filed various submissions in other cases -- or in this case,

13 excuse me, to receive various Rule 70 protections that some governments

14 have asked for. That, again, is ongoing.

15 There has been substantial work, Your Honour, in the disclosure of

16 the non-public material in the so-called related or flip-side cases. That

17 has been a matter which has also involved the registry, and we believe

18 that we're approaching a point where most of that has been accomplished.

19 I expect there will be some additional correspondence with the counsel and

20 with the registry over the next week or two to see if we can clarify

21 exactly where those matters stand. But as you will understand, Your

22 Honour, that has required extensive seeking approvals and authorisations

23 from other Trial Chambers as to what can be disclosed or not disclosed, in

24 some instances redactions and working with the registry so those materials

25 then can be put together and finalised for sending out to the Defence.

Page 313

1 So this is, and I think it's fair to say, and I think the registry

2 will agree with us, that this has required a huge effort and amount of

3 time and energy over the past three or four months but I think we're

4 closing in on finishing that, I think.

5 I will just say, Your Honour, and I will allow counsel to raise

6 those matters which counsel of course wishes to raise directly. I will

7 just say that we have in the last approximately week to ten days received

8 a number of letters from some counsel, one counsel in particular, which

9 has raised a number of disclosure issues, and those are in the process of

10 either already having been addressed or will be addressed in the next

11 days. So we believe, that's a summary, Your Honour, and that's a broad

12 summary. I will address any specific questions the Chamber has, but that

13 is a broad summary of where disclosure stands at this time.

14 Thank you.

15 JUDGE ANTONETTI: [Interpretation] Before giving the floor to

16 Mr. Praljak, with regards his situation which is rather special, I would

17 like to ask the Prosecution how it intends to disclose material to

18 Mr. Praljak. As it stands to date, he has no counsel to represent him and

19 there can be no disclosure electronically.

20 Has the Prosecution looked into this matter? Mr. Scott, would you

21 like to take the floor.

22 MR. SCOTT: Well, as Your Honour indicates, this is a recent

23 development. But my understanding is -- and in fact in other -- some of

24 the other situations where counsel -- excuse me, where accused are not

25 represented, depending on the situation, electronic disclosure is made. I

Page 314

1 suspect that a lot of disclosure is made, for instance, by CD, and CDs can

2 be provided to Mr. Praljak, just as anyone else. And I assume Mr. Praljak

3 has access to a computer and can look at those CDs and process them

4 exactly the way that counsel can in other cases.

5 As to EDS, the so-called -- the electronic disclosure system, let

6 me be transparent with Your Honour and say I'm not entirely sure what the

7 mechanism is. I would have to investigate that further and whether it is

8 the policy of the ICTY -- and I say the policy of the Tribunal, I'm not

9 talking about the policy of the OTP, but what the ICTY practice and policy

10 is in terms of electronic access to an unrepresented accused. And, Your

11 Honour, I'm not going to pretend to know the answer to that at the moment,

12 but we can certainly inquire.

13 JUDGE ANTONETTI: [Interpretation] I have one last question to put

14 to the Prosecution before giving the floor to the accused and the various

15 Defence counsels.

16 Mr. Praljak does perhaps not have full command of the English

17 language. The documents which are disclosed to him, I would like to know

18 whether these documents would be disclosed in his own language. Will

19 these documents be translated into B/C/S or not? Will the documents only

20 be handed over to him in English, which means that he will not be able to

21 make much use of them? What, in practical terms, do you intend to do?

22 Those documents pursuant to Article 68, if there are any of this kind, how

23 will you process Rule 68 material and disclose it to Mr. Praljak? I would

24 like to say something on this point because this might -- may raise a

25 serious issue.

Page 315

1 MR. SCOTT: Thank you, Your Honour.

2 Most of the material -- I would say the vast majority of it -- I'm

3 not again going to pretend to say 100 per cent because I might make an

4 error in making an overstatement, but the vast majority of the material

5 that is disclosed to the Defence is provided in both English -- or let me

6 say the original language of the document, many of them being English, but

7 there might be an original document in Spanish or French or some other

8 language. But typically disclosure is made in the original language of

9 the document and also in B/C/S or the Croatian language. That is the

10 general rule. There again, I cannot verify before the Chamber at the

11 moment whether that's true for every single document but we can certainly

12 look at that.

13 As for the Rule 68 documents in particular, the practice of the

14 Tribunal is that in most instances those documents are not translated out

15 of the original language, but most of those documents tend to be in B/C/S

16 in the first place because most of those documents came from either the

17 Republic of Croatia or from Bosnia-Herzegovina or some such source, which

18 leads them to be or causes them to be in the Serbo-Croatian language.

19 So the vast majority of the materials, Your Honour, will be

20 provided to the accused in the, as we call it here, B/C/S. But there

21 probably would be some exceptions which we would have to look at

22 specifically.

23 JUDGE ANTONETTI: [Interpretation] Thank you.

24 Mr. Praljak, you have the floor.

25 THE ACCUSED PRALJAK: [Interpretation] Your Honour, a vast majority

Page 316

1 or a small minority are not really helpful words in a process like this.

2 I will get all documents in a proper manner, or I will believe that my

3 rights have seriously been infringed upon.

4 In spite of the fact that we announced on time that I would lose

5 my Defence attorneys because they did not wish to work under such

6 circumstances, there was such a fuss on Friday, and I do not have the PDF

7 key for opening documents because this is in the hands of the Defence

8 counsel. I cannot communicate electronically. Although I have not been

9 engaged in this line of work for a long time, I do nevertheless have a

10 degree in electrical engineering. So when we hear these things, it's been

11 this way, it's been that way, a vast majority, this and that, I think in

12 this way my rights have truly been impaired in terms of a proper defence

13 and a fair defence, and that can only lead to my not having a fair trial.

14 Thank you.

15 JUDGE ANTONETTI: [Interpretation] Mr. Karnavas, you have the

16 floor.

17 MR. KARNAVAS: Thank you, Your Honour.

18 I have been communicating on a regular basis with the OTP. I do

19 like transparency and I like making a record. That's why whenever an

20 issue comes up I raise it with the OTP.

21 There is one outstanding issue which we haven't received an answer

22 to and that was with respect to presidential transcripts. They may have

23 more than we believe we have or that's been put on the EDS. But in any

24 event that's one of the requests.

25 As issues come up, I communicate. One of the major issues we have

Page 317

1 is the listing of the documents as they are put on to the EDS. If we can

2 have that list as quickly as possible, that allows us then to, one, be on

3 notice, and two, to -- to briefly look at what has been put on and then

4 identify what documents we need to look at.

5 So what I understand, and I can say I can't speak for the rest of

6 the Defence counsel, but with respect to these sorts of issues we are

7 getting maximum cooperation from the Prosecution. I want to commend that

8 entire Prosecution team, so -- may be one of the few occasions where I

9 complement OTP but this is one of them.

10 So in any event, that's the status with respect to disclosure.

11 Now we do understand that there are a lot of interviews that took place

12 that are yet to be translated. Some of the witnesses -- at least it gets

13 back to me being in the field as to who was contacted and who gave an

14 interview and for how long. Some of those individuals seem to be rather

15 critical for both parties to the extent that those translations could be

16 expedited, we would welcome that. Because again, it would interfere with

17 our ability to be ready for trial. So -- and if they could sort of

18 prioritise to the extent possible, we would most appreciate it.

19 Finally I just want to touch on two very brief issues. One issue

20 is with respect to Mr. Praljak, I just wanted to note that a lot of the

21 reports from the ECMM, almost all of them, are in English -- or they may

22 be in another language, but all of them are in English. So that poses a

23 problem. Also motions take time to be translated.

24 And the second point, again, I believe as an officer of the court,

25 which is what we would be referred to back in my jurisdiction and as a

Page 318

1 friend of this court, I would like to make an oral motion that at least

2 for the time being the Trial Chamber can be seized of a motion to appoint

3 the previous two counsel for Mr. Praljak on a temporary basis to act as

4 stand-by counsel until there can be some resolution with respect to his

5 status in how he's going to be represented and whether he will go through

6 the whole trial without representation.

7 I mention that for a couple of reasons. One, there is the issue

8 of the EDS, having -- being able to access the EDS system, which I believe

9 the record needs to be corrected on that earlier. It is rather

10 complicated, and if Mr. Praljak is unable to access that, that's going to

11 be a major problem.

12 Secondly, there is the remote access to the ICTY database. Now

13 we're able to be wherever we are and we have access to all sorts of

14 material relevant in the preparation of the defence. Again, Mr. Praljak

15 is going to be disadvantaged.

16 And Mr. Praljak raised another issue that was quite relevant, and

17 I think I need to stress that. Every accused that comes before a court is

18 entitled to 100 per cent of his due process. So if he's only getting some

19 or part, the vast majority or the vast minority of documents in the

20 language which he understands now that he's going to be representing

21 himself, that means that he's not getting 100 per cent of his rights. And

22 I, for instance, would be offended if we were to continue in a trial where

23 one of the accused would be receiving less than 100 per cent of his due

24 process. And I think everyone in this room, including my brethren over

25 there, sitting -- with the Prosecution would feel the same way, and I'm

Page 319

1 sure they probably wouldn't mind joining me in this motion, although I'm

2 sure Mr. Scott rarely wishes to join in anything I do, but he would join

3 at least on a temporary basis to appoint stand-by counsel, the counsel

4 that he had to at least for the next month or whatever -- how long it

5 takes so that there's no momentum lost. And I can assure you, knowing

6 both those counsel, they're highly professional, they're highly

7 experienced, they've been around on many, many cases before the ICTY, they

8 truly believe in their client and wish to do the very best for their

9 client.

10 And on the other hand, Mr. Praljak has taken a very principled

11 position, and that is he does not wish to have counsel representing him

12 that are not getting paid. And I think that's a commendable position.

13 And nor should they be put in a position by the UN, especially since we

14 have, I believe, a treaty on -- against slavery, should they be put in a

15 position where they have to endure two or three years of being in a case

16 where they have to, in essence, work for free under some kind of penalty

17 if they don't -- there may be some consequences legally or

18 professionally.

19 Thank you.

20 JUDGE ANTONETTI: [Interpretation] It is now 20 to 4.00.(redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 320

1 (redacted)

2 --- Recess taken at 3.40 p.m.

3 --- On resuming at 4.09 p.m.

4 JUDGE ANTONETTI: [Interpretation] Very well. Now, let's resume

5 our work.

6 Regarding disclosure, I'd like to hear what the other Defence

7 counsel have to say. I will now turn to you.

8 Yes, you have the floor.

9 MS. NOZICA: [Interpretation] Your Honour, I have been appointed

10 co-counsel, this happened four or five days ago; Mr. Kuzmanovic as

11 counsel; Mr. Ostojic, ten days ago. It is only today that I got my EDS

12 password, but my colleagues informed me that for the most part there

13 haven't been any major problems with regard to the disclosure of

14 documents, and today I will fully join my colleagues in respect of

15 everything that was said about these problems. But anyway, if we have any

16 problems, we shall notify the Court in good time.

17 JUDGE ANTONETTI: [Interpretation] Thank you.

18 MS. ALABURIC: [Interpretation] Thank you.

19 The Defence of Milovoj Petkovic has no objections whatsoever to

20 the disclosure of documents via EDS or generally speaking in terms of our

21 cooperation with the Prosecution regarding documents.

22 MR. JONJIC: [Interpretation] Your Honour, the Defence of Valentin

23 Coric fully supports what Mr. Karnavas said.

24 Thank you.

25 MR. IBRISIMOVIC: [Interpretation] Your Honour, the Defence of

Page 321

1 Mr. Pusic has no problems regarding the disclosure of documents. As for

2 cooperation with our colleagues from the Office of the Prosecutor, it is

3 more than satisfactory.

4 Thank you.

5 JUDGE ANTONETTI: [Interpretation] Very well. As for disclosure,

6 there aren't any major problems except for the issue of the --

7 Mr. Praljak's counsel, and I will endeavour to solve that problem by

8 getting in touch with the registrar as quickly as possible. If I can't

9 find a satisfactory solution, then I will have to make a decision in order

10 to appoint counsel as quickly as possible in order for the trial to be

11 fair.

12 We have 35 more minutes, and let's now move to the main item on

13 the agenda, the opening of the trial.

14 According to some information I'd been given, the trial could

15 start during the month of February. Then I received different

16 information, according to which the trial will begin in March. We are

17 faced with the logistical problem because when the trial opens, we'll have

18 six accused together with their counsel and co-counsel. If we have ten

19 lawyers plus six accused, we have 16 people. And these 16 people need to

20 be able to sit in the courtroom, and a re-organisation of the courtroom

21 had been considered in order to gain some space by -- and Courtroom I was

22 to have been entirely revamped or Courtroom II. But I have no idea when

23 the building work is going to start, and I have no idea when it's going to

24 finish. So that's the first question mark.

25 The second question mark is when the Prosecution will be in a

Page 322

1 position to submit its pre-trial brief. As you know - and I'm stating

2 this for Mr. Praljak who doesn't have a lawyer, I'm telling this to him so

3 he can follow the proceedings - according to the Rules, once all

4 preliminary motions have been dealt with, the Pre-Trial Judge in order --

5 in other words, myself, must order the Prosecutor to file within a time

6 limit that I will set and, at the latest, six weeks before the pre-trial

7 conference that only precedes the opening of a trial by a few days,

8 therefore the Prosecutor has to file a number of submissions. First of

9 all, it has to file the final version of its pre-trial brief, the list of

10 witnesses, and the list of exhibits.

11 Before discussing this in more detail, I have one major question I

12 want to ask the Prosecution, and that's the following: Is the Prosecution

13 in a position to prepare its pre-trial brief? And I'd like to remind you

14 that -- or to state that I had in my mind the date of 19 of January, 2006,

15 as a time limit. Then the Defence would have three weeks for its own

16 submissions to be filed, and that would mean 8 February, 2006, as a time

17 limit.

18 Mr. Scott, with regard to the pre-trial brief, are you faced with

19 any problems? Will you be in a position to submit it by the 19th of

20 January?

21 MR. SCOTT: Yes, Your Honour. I believe we can do that. I'm also

22 familiar with the indications that because of the construction schedule,

23 some of these dates may slide back, in fact, as I understand Your Honour

24 is aware as well. But, no, the 19th of January would not present a

25 problem for the Prosecution.

Page 323

1 Thank you.

2 JUDGE ANTONETTI: [Interpretation] Very well.

3 Let me now turn to the Defence. You know that first we have a

4 pre-trial brief and it is for you to prepare briefs in response. So you

5 would have three weeks to submit these briefs.

6 If we set the 19th of January, then the 8th of February would be

7 the date applicable to your submissions.

8 I'm first going to turn to Mr. Karnavas to ask him the question

9 whether this is agreeable to him.

10 MR. KARNAVAS: Thank you, Your Honour. Well, I'm a little

11 disappointed, I have to say, and I'll state my reasons. One --

12 JUDGE ANTONETTI: [Interpretation] You should never be

13 disappointed, but give me your reasons.

14 MR. KARNAVAS: Okay. By filing -- by giving the Prosecution until

15 January 19th, it puts us in a very dangerous position from the Defence

16 standpoint in that not only do we have to respond to that but we have very

17 little time to really get ready to meet their initial witnesses.

18 Logistically speaking, the case is so large, and there are so many

19 different issues that once the Prosecution files its brief, we will have a

20 better assessment as to at least how they intend to proceed and then we

21 can more -- we can channel our preparation more efficiently because it's

22 impossible to prepare for an entire case, to be ready entirely, on day

23 one.

24 Initially, the date was on the 20th of December, as I believe.

25 Now, I certainly don't wish to put a burden on the Prosecution because I

Page 324

1 know that later on when I may need some concession, I'm hoping, I'm

2 hoping, that they will give me -- give me some leeway. But I think having

3 it so close to the trial date poses a problem for us.

4 That being said, you know, if the Trial Chamber wishes to have

5 those dates, that's fine. Three weeks, in my opinion, is more than enough

6 to respond to a Prosecution pre-trial brief because I -- and I've said

7 this publicly and I've said this on the record before, I don't think that

8 the Defence should be in a position to outline its case because we don't

9 have a burden of proof, but nonetheless we need to at least submit some

10 sort of a response to the Prosecution's brief, which we will endeavour to

11 do so. But without going into the details of our particular case, because

12 we don't have the burden, they have the burden, that burden never shifts,

13 and we still -- we may not even have to put on a case until after we've

14 heard their case and after you make a ruling on the 98 bis motions. In

15 any event, the dates are not bad, it's just that I would prefer to keep

16 the original date of December 20th.

17 The Prosecution -- one other point. They have a very, very large

18 team, as I believe you may have pointed out earlier. And they've been

19 working on this case for a very long period of time, so I don't think it

20 would be that difficult for them to meet the original dates. But again, I

21 don't want to put them in a position where they're being forced to hurry

22 up on their brief. So I'm willing to show some flexibility, hoping that

23 it will be reciprocated down the road by the Prosecution.

24 JUDGE ANTONETTI: [Interpretation] The other Defence counsel.

25 MS. NOZICA: [Interpretation] Thank you, Your Honour.

Page 325

1 Yes, I will have to join Mr. Karnavas in what he said. All the

2 more so because objectively speaking the Bruno Stojic Defence has been

3 properly supplied with resources just recently. So I think that this very

4 brief deadline can be a problem.

5 If this were to be accepted, the final date, January -- or the

6 19th of January, 2006, then I think that is too soon for the trial to go

7 ahead after that, because, as I say, we are speedily going through all the

8 exhibits that have been provided. I know that that is not a problem of

9 the Trial Chamber; it's our own problem. But as I say, objectively

10 speaking, we have a lot to do even by January the 19th to get through all

11 the documents that were received by other Defence counsel in this case,

12 so that I feel that the 8th of February would be too soon to go ahead with

13 the trial.

14 Thank you.

15 MS. ALABURIC: [Interpretation] Thank you, Your Honour.

16 I consider that if Mr. Scott has already said that the 19th of

17 January is suitable for him for the pre-trial brief, I should like to ask

18 that we respect that will of his and the date, but also to take into

19 account the needs of the Defence. And if we consider that the Prosecutor

20 would be duty-bound to the 20th of December to submit his pre-trial brief

21 and that we should do so by the 1st of February, that instead of the 8th

22 of February we determine our duties towards the end of February, that is

23 to say, the 28th of February which would make us respect the former

24 agreement and would give us 40 days in between roughly.

25 Thank you.

Page 326

1 MR. JONJIC: [Interpretation] Thank you, Your Honour. The Valentin

2 Coric Defence would also like to have an extension of the deadline,

3 especially as our Defence team has come across certain difficulties in

4 completing our team to begin with.

5 So thank you, yes. That is my proposal.

6 MR. IBRISIMOVIC: [Interpretation] Thank you, Mr. President.

7 I think that the proposal made by Ms. Alaburic, the Defence

8 counsel of Mr. Petkovic, is very reasonable, but of course we shall abide

9 by the ruling of the Court.

10 JUDGE ANTONETTI: [Interpretation] Mr. Praljak.

11 THE ACCUSED PRALJAK: [Interpretation] Every day gained in a

12 situation of this kind is beneficial for the quality of the Defence, for

13 the simple reason that the quantity of people working for the Prosecution

14 and the resources they have is quite incomparable to what we have at our

15 disposal, especially if the time that we have spent in my Defence, 90 per

16 cent of that time I had to devote to seeking resources to pay for a

17 defence team and to collect some of the enormous amount of material that

18 exists.

19 Thank you, Your Honour.

20 JUDGE ANTONETTI: [Interpretation] Very well. I've listened very

21 carefully. I think we should maintain the date of 19th January, 2006, for

22 the submission of the pre-trial brief. And considering that some lawyers

23 have only been appointed very recently, I think they should be granted at

24 least one month between the time they receive the brief and the between --

25 and the time they respond. Therefore, the Defence will be able to submit

Page 327

1 its response by the 15th of February. You will have one month to respond

2 to the brief.

3 Let me move briefly to another issue. A directive, as you know,

4 was issued by the president in September 2005. According to this

5 directive, or practice direction, the pre-trial brief comprises 15.000

6 words. I believe that it is very difficult to abide by such a limit, but

7 we have such a practice direction. Some exceptions can be made to the

8 practice, of course. The first time that we have a trial with six

9 accused. Obviously, when you're dealing with six accused you might need a

10 different number of words than with a trial with just one accused.

11 The easiest is to proceed as follows. If we say that 15.000 words

12 should be the number of words for one accused, then we -- in this case we

13 could allow 90.000 words to the Prosecution for six accused. I don't know

14 how many pages we are talking about with this number of words. But since

15 the indictment is quite long, I suppose that the pre-trial brief will also

16 be a very voluminous document. I suppose the Prosecution has already

17 thought about this problem, the issue of the number of words. What is

18 your assessment, Mr. Scott, about the number of words?

19 MR. SCOTT: Well, first, Your Honour, I appreciate the flexibility

20 that Your Honour has already shown, because indeed I think in this

21 situation you can't really have a one-size-fits-all practice, whereas you

22 have one-accused case and you get 15.000 words and you have six accused or

23 ten accused and you also get 15.000 words. So I do think as the so-called

24 mega trials begin, some of these policies will have to in fact show some

25 flexibility. I certainly can't give an estimate. I don't know right off

Page 328

1 the top of my head what total number of words we're ultimately going to be

2 looking at. But I had anticipated, Your Honour, frankly in thinking about

3 this was that once we begin to get a closer idea - and I'll be guided -- I

4 will certainly be guided by the 90.000 words - that we may seek some

5 further guidance from the Chamber over what a page limit would be once we

6 have a better feel for what we're reasonably looking at. But to be -- I

7 couldn't really give an estimate at this time.

8 JUDGE ANTONETTI: [Interpretation] Very well. Let's say that the

9 Prosecution is between 15.000 and 90.000 words at the moment, and

10 according to the number of witnesses and exhibits, this might change.

11 Now, let's move to what I believe is the main item of the agenda,

12 but we had to deal with other issues first. I'm thinking about the way

13 the Prosecution will submit its list of witnesses and the list of

14 exhibits. Mr. Scott, and the other senior trial attorneys for the

15 Prosecution, please take note very carefully of what I'm going to say.

16 With regard to the list of witnesses, in order for the trial to proceed as

17 smoothly as possible and for the Defence to do its job properly, we need

18 the following.

19 With regard to the list of witnesses, the Prosecution has to apply

20 a logic in the presentation of its case, of its evidence, and this, the

21 logic, could be the logic we find in the indictment. In other words,

22 first we would have background or context witnesses with possibly some

23 expert witnesses. Then you deal or you call witnesses who will talk about

24 the specific part of the accused -- what you charge them as part of the

25 joint criminal enterprise. And then in the indictment we have counts of

Page 329

1 murder, destruction, devastation, and we would have fact witnesses for

2 these -- for these items. So we need some logic in the presentation of

3 the witnesses. We don't want to have one witness talking about a prison

4 and the next day to move to something completely different. We need to

5 have some rationale, some logic, and I'd like to -- you to take very good

6 note of that and I'll be -- I'll follow that very clearly -- very

7 carefully.

8 For witnesses, we need to have a summary, the summary of what the

9 witness will say; this summary should be as exhaustive as possible.

10 Furthermore, we should be provided with very specific references to the

11 indictment. We have a witness who will come to testify and we need to

12 know what about. We need to have references to the indictment, to -- and

13 also very specific cross-references to the pre-trial brief. This will

14 allow the Judges to know exactly why the witness is being called, and this

15 will allow the Defence to prepare its cross-examination accordingly. I

16 believe that this is absolutely essential.

17 Second point of what the Prosecutor should do is related to the

18 list of exhibits. And with regard to the list of exhibits, we are in a

19 common-law institution and we -- and according to me, there are two

20 criteria related to an exhibit: First of all, the relevance of the

21 exhibits and then the probative value. But that is to be determined, of

22 course, by the Judges. When an exhibit is produced, the Prosecution, and

23 then later the Defence, it's probably produced because the exhibit is

24 relevant. You can't very well imagine the party producing an exhibit that

25 has no relevance whatsoever.

Page 330

1 As a consequence I'm going to issue an order in the next few days,

2 an order related to exhibits, an order to introduce the following system.

3 We have a trial with six accused with the Defence teams that will

4 cross-examine witnesses. As a consequence, we need to solve the issue of

5 exhibits before the trial, otherwise we'll have objections from the

6 Defence about an exhibit and we'll have six objections and everything will

7 come to a standstill. I'm thinking very seriously about what we could do

8 and I'm preparing a decision.

9 Once you've prepared the list of exhibits, for each exhibit listed

10 you should mention the title of the exhibit, a report, report, order; you

11 should mention the date when the exhibit was produced, the object --

12 subject of the -- and then you should have a column with the reference,

13 cross-reference, between that exhibit and the indictment; and then another

14 column with a cross-reference to the pre-trial brief. Thus, everyone, the

15 Judges, the Defence teams, will know very clearly that this particular

16 exhibit is being produced because it's related to a particular witness, to

17 a particular passage of the indictment, and to a particular passage of the

18 pre-trial brief.

19 Once you've listed all the exhibits, thus you can produce a

20 schedule, a chart, with the provisional number, P -- of the exhibits, P1,

21 P2, and you would produce an entire -- a list of the entire exhibits.

22 These exhibits would then be admitted. Of course, when the exhibit is

23 admitted, it doesn't mean that it is -- has been admitted finally, because

24 it's open for the Defence to challenge the authenticity of the exhibit.

25 But that would be a start, and the same will apply to the Defence once its

Page 331

1 turn comes. Each Defence team will prepare its own chart with a number of

2 exhibits, et cetera.

3 We might be faced with thousands of exhibits in this trial, so

4 this work should be done. I will make this very specific in the order I

5 will issue later on in order to make our work easier for everyone to be

6 able to deal with these exhibits, because I suppose it's feasible to have

7 a trial with thousands of exhibits, for those who are used to that sort of

8 trial, but it might be very, very difficult for those who are not used to

9 that sort of situation. Therefore, I would like the Prosecution to be

10 very, very careful about this, very cautious, and submit a list of

11 exhibits that would allow the Defence to do its job and to play its part

12 properly.

13 So I think there will be a consensus on this point. Once a list

14 is prepared, the Defence counsels can then turn around and say Exhibit

15 Number P832 is not a true document, if you are able to say so. But in

16 order to do this, you need to have a proper list. In the few minutes we

17 have still before we adjourn, would you like to say something?

18 Mr. Karnavas, I think you would like to take the floor.

19 MR. KARNAVAS: Yes, just very briefly. First, I want to thank you

20 for seeing that problem, and I totally agree. And if I may be in a

21 position to offer a couple of pointers on -- in making that decision, Your

22 Honour. Perhaps you could also order the Prosecutor to -- in a column to

23 show why it believes the document is authentic and why it's reliable. So

24 those are the three tests: Authenticity, reliability, and of course

25 relevancy. And of course that would bind the Defence as well in

Page 332

1 introducing any documents to do the same thing. I think it's very

2 important because we may be -- early on we may be able to agree that a lot

3 of these documents are authentic, reliable, and relevant. But I think

4 those two added points, Your Honour, if you could ask the Prosecutor

5 because it goes to the foundation. Do they believe the document is

6 authentic? And if so, is it reliable? In other words, it hasn't been

7 tampered with. And then of course the relevancy, as you've pointed out.

8 So if I could just -- you know, and I hate to be giving you advice, but

9 if you could add those I would appreciate that. Thank you.

10 JUDGE ANTONETTI: [Interpretation] You have no further comments?

11 Very well. So if we can agree on this point. The Defence counsel

12 is quite right. I think it would be advisable to have several columns on

13 this chart. You could have the relevance column, and this would relate to

14 a particular paragraph in the indictment. But the Defence is concerned

15 about the authenticity and reliability of these exhibits. Of course, if

16 we are talking about a military order with a signature and a stamp, then

17 one has reason to assume that this document is authentic and reliable.

18 This doesn't mean that it is not challenged or cannot be challenged. If

19 it is an ECMM report, or if it is a report provided by an international

20 battalion, so be it. But if you can do your job and authenticate all the

21 exhibits which are being adduced, you have the duty to adduce exhibits

22 which can be taken seriously. You cannot, of course, adduce false

23 exhibits. What the Defence asks you to do is something which you would do

24 quite naturally. I don't think this raises any major difficulties.

25 Mr. Scott, you have the floor.

Page 333

1 MR. SCOTT: Your Honour, I can assure the Chamber that we will not

2 intentionally and knowingly submit any inauthentic or unreliable

3 documents. We may be mistaken at times because we are not perfect. But I

4 can tell you that will never be done intentionally that we will ever

5 submit any evidence to the Chamber that we believe is unreliable.

6 I think that in meeting the Chamber's desire, I think what will

7 probably be indicated in most instances will be the source of the

8 document, which I think many times, if it's the HVO archive, if it's an

9 UNPROFOR unit, or if it's the UN, I think if we indicate in most instances

10 the source of the document that's going to give you the information.

11 Thank you.

12 JUDGE ANTONETTI: [Interpretation] Very well. So as regards this

13 particular issue, so long as the lawyers do their job and respect due

14 process, and if the Prosecution also fulfils its role appropriately, I

15 think this will make life easier for everyone concerned.

16 There are a number of material issues which have not been

17 addressed at this hearing which I do not have time to address today. But

18 I would like to share it with you so that you can think about it, and I

19 hope that this issue can be addressed at the next Status Conference, which

20 could be held in the month of December, namely, the rights of the Defence

21 after the accused -- after the accused asks questions. If the Prosecution

22 hears a witness for three hours, how long will the Defence team have for

23 the cross-examination? Will the Defence team also have three hours? Will

24 each party have three hours? And Mr. Praljak, if he has no counsel, also

25 be entitled to three hours. I hope in the meantime Mr. Praljak's counsel

Page 334

1 question will be settled. In other words, if the Prosecution takes three

2 hours, all in all the Defence team will have 18 hours. Or are we going to

3 approach this differently. The Prosecution has three hours and the

4 witness is connected to one accused in particular, in that case the

5 counsel representing that particular accused, as a lead counsel, will then

6 proceed to the cross-examination for three hours and the other lawyers

7 will spend less time cross-examining the witness.

8 This is a very big issue. I have not found a solution to it yet.

9 But we will have to come to terms with this and make sure that the trial

10 can unfold, as it should, and in an efficient manner. Obviously if an

11 examination-in-chief lasts three hours, the Defence team that is

12 representing six accused people does not have to dedicate 18 hours to its

13 cross-examination.

14 Between you, Mr. Praljak, and I hope that in the meantime Mr.

15 Praljak will have counsel to defend him, I would rather you agreed about

16 this beforehand and see how this can be managed. Discuss it with the

17 Prosecution team beforehand, please, and make sure that this is addressed

18 properly. This might be a very complicated issue. Also, in addition to

19 this, after the cross-examination when there are additional questions or

20 re-examination, then what kind of replies are provided -- response is

21 provided by the Defence?

22 So these are just a series of questions which I have not found a

23 solution for as of yet. If both parties can come up with a solution, and

24 a rational solution, the Trial Chamber will be very happy. If, however,

25 no solution can be found, the Trial Chamber will have to determine the

Page 335

1 matter. The Defence team is entitled, of course, to cross-examine any

2 witness.

3 That said, we shall certainly reconvene in the month of December,

4 get together. I strongly recommend that you discuss these matters

5 together, contact the Prosecution, and then things will be much easier.

6 For the time being, I am presiding over this Chamber and I spend

7 all my time working on this trial. I have just one person to assist me,

8 Ms. Audrey Mateo. So if you have any questions you would like to raise,

9 please contact her and talk to her.

10 I am available 24 hours a day, but I would also like to tell you

11 that I'm not in favour of ex parte meetings. Ex parte is not relevant.

12 We are supposed to discuss all these matters together. I don't think that

13 a Pre-Trial Judge should meet the Prosecution face-to-face or meet a trial

14 attorney face-to-face either. I think everything has to be crystal clear.

15 This is what is called a fair trial.

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 I'd like to thank you, and I shall let you know when we reconvene

24 for our next Status Conference.

25 Thank you.

Page 336

1 --- Whereupon the Status Conference

2 adjourned at 4.44 p.m.