Tribunal Criminal Tribunal for the Former Yugoslavia

Page 337

1 Monday, 30 January 2006

2 [Status Conference]

3 [Open session]

4 [The accused Pralkjak entered court]

5 [No other accused present]

6 --- Upon commencing at 2.15 p.m.

7 JUDGE ANTONETTI: [Interpretation] Mr Registrar, please call the

8 case.

9 THE REGISTRAR: Yes, Your Honour. The case IT-04-74-PT, the

10 Prosecutor versus Prlic and others.

11 JUDGE ANTONETTI: [Interpretation] Thank you very much.

12 I'm going to turn to the Prosecution and ask for the appearances,

13 please. Appearances for the Prosecution.

14 MR. SCOTT: I didn't get any translation, I'm sorry. I'm not sure

15 who is waiting on whom, this morning.

16 JUDGE ANTONETTI: [Interpretation] Microphone, please.

17 MR. SCOTT: Yes, can you hear me now? Sorry, we did not get the

18 initial translation. I'm not sure if there was or not but my machine

19 wasn't working.

20 JUDGE ANTONETTI: [Interpretation] Very well. I was asking the

21 Prosecution to introduce themselves.

22 MR. SCOTT: Thank you, Your Honour. Sorry for the mechanical

23 problems. Kenneth Scott for the Prosecutor, Your Honour, and I'm joined

24 by several of my colleagues today. I'll let them introduce themselves.

25 MS. D'AOUST: [Interpretation] Josee D'Aoust for the OTP.

Page 338

1 MR. MUNDIS: Daryl Mundis for the Prosecution.

2 JUDGE ANTONETTI: [Interpretation] Thank you very much.

3 I'm going to turn to the Defence and ask for the appearances,

4 please.

5 MR. KARANAVAS: Good afternoon, Mr. President. This is Michael

6 Karnavas on behalf of Dr. Prlic.

7 MR. KUZMANOVIC: Good afternoon, Your Honour. Tom Kuzmanovic here

8 for Colonel Stojic.

9 MS. ALABURIC: [Interpretation] Good afternoon, Your Honour. Vesna

10 Alaburic attorney, and I'm Defence counsel for General Milivoj Petkovic.

11 MR. JONJIC: [Interpretation] Good afternoon, Your Honour. For the

12 Accused Valentin Coric, Tomislav Jonjic, attorney-at-law in Zagreb,

13 Republic of Croatia.

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

15 For the Defence of Mr. Pusic, Fahrudin Ibrisimovic, and our legal

16 assistant.

17 THE ACCUSED PRALJAK: Good afternoon, Your Honour, my name is

18 Slobodan Praljak and I represent myself, thank you.

19 JUDGE ANTONETTI: [Interpretation] Very well. Let me greet all

20 those people present here. I'd like to greet the representatives of the

21 Office of the Prosecutor. I'm glad to see that one of them is a

22 French-speaking lawyer. I'd like to greet the counsels for the Defence.

23 I'd like to greet Mr. Praljak as well and let me not forget greet the

24 interpret test who are assisting us as well as all the personnel of the

25 Trial Chamber, the Registrar and all the other assistants.

Page 339

1 As you know, this is a Pre-Trial Conference. I've sent an agenda

2 to you in advance and I'm going to slightly amend the agenda because this

3 morning, I was advised of a new motion filed by the Prosecution following

4 an order filed on the 24th of January 2006. There are a number of

5 problems, a number of issues that prevent -- that are preventing the trial

6 from being ready for trial. The first issue, the first problem, has to do

7 with Mr. Praljak and with the fact that he is representing himself. As

8 you are well aware, Mr. Praljak has filed a motion with the Chamber for

9 counsel to be assigned to him. I immediately asked the Prosecution as

10 well as various Defence counsels, I asked them to give me their own

11 opinion, their own position, about the merits of the motion.

12 Various pleadings were filed in response and thus the Trial

13 Chamber will very soon be in a position to make a decision. And that's

14 the reason why I will meet the two other judges of Trial Chamber II in

15 order for us to establish our position following the motion filed by

16 Mr. Praljak.

17 In order to give enough information to the -- my fellow judges

18 tomorrow, I will list a number of issues that are relevant in this case

19 and I will later on ask Mr. Praljak for any comments he might have about

20 the situation.

21 As I've already stated before, according to the Statute of the

22 Tribunal, accused is perfectly entitled to represent himself. It's an

23 absolute right and accused persons have the right to say they want to

24 defend themselves or they want to benefit from the assistance of a lawyer.

25 Funny enough, this Tribunal, in at least two cases I've quoted before in

Page 340

1 the Milosevic and in the Seselj case, although these two accused did not

2 want to have counsel, their respective Trial Chambers imposed a lawyer

3 upon them without wondering about the financial situation of both these

4 Accused. In this specific case, we are in a completely different

5 situation. We are dealing with an Accused who, in the beginning, had

6 counsel and who then later found himself apparently in a position such

7 that he was not able to pay his lawyer and following that, he informed the

8 Registry that he was not in a position to remunerate his counsel, and then

9 he asked for counsel to be assigned to him. According to the procedure,

10 based both on the Statute and on a directive as well as on the Rules, the

11 Registrar requested from Mr. Praljak that he submit all elements relevant

12 to his financial status.

13 In this specific case, the burden of proof relies on the applicant

14 and not on the Registrar. And in a number of countries, France, United

15 States, Germany and either, when an accused is indigent, it is up to the

16 accused to prove so, it is up to the accused to justify that he is indeed

17 without any financial means and, in that case, counsel is assigned to him,

18 and our Tribunal works that way. Therefore, the Registrar requested from

19 Mr. Praljak any relevant information related to his financial status.

20 Furthermore, the Registrar had information coming from NATO according to

21 which the Accused Praljak had some financial means, had some property.

22 Considering this information and considering the partial responses

23 of Mr. Praljak, the Registrar issued a decision stating that under the

24 Statute, the Registrar was not in a position to assign counsel to

25 Mr. Praljak. This decision was challenged before Trial Chamber I. Trial

Page 341

1 Chamber I rendered a decision confirming the decision initially taken by

2 the Registrar. In other words, that it is up to the Accused to prove that

3 he is indigent. If we remained at that stage of the discussion then the

4 conclusion would be that Mr. Praljak has to represent himself. As far as

5 I'm concerned, personally I believe that it is not possible because

6 Mr. Praljak is not a lawyer. He has not studied law. He is not a law

7 professor, he's not a lawyer. Therefore, he is unable to file motions and

8 to understand the scope of the trial and to follow in an informed manner

9 all the various stages of the proceedings.

10 I believe that in -- under these circumstances, the conditions

11 necessary to have a fair trial would be endangered. And this leads us to

12 another problem. In this case, we are dealing with six Accused, five

13 Accused who have counsel. If we maintain the system as it is, with

14 Mr. Praljak representing himself, then there would be a very serious risk

15 for the other Accused to be prejudiced by this situation. Thus, that is a

16 factor that should also be taken into account.

17 Third problem, third problem that arose recently. Mr. Praljak

18 does not speak neither English nor French. Mr. Praljak, and that's his

19 right, wants to receive in his language all the filings from the

20 Prosecution. He wants to receive these filings in his language. The

21 pre-trial brief, the list of witnesses, the list of exhibits, as well as

22 any other exhibit written in English and that has not previously been

23 translated into B/C/S. If he does not receive all this -- these exhibits,

24 then the conditions necessary for a fair trial would not be complied with

25 because, as you perfectly well know, in the Statute, it is stated that the

Page 342

1 Accused needs to be informed in his own language of all of the case

2 against him. And, of course, the case against him is made up of witness

3 statements and Prosecution exhibits.

4 At this stage of the proceedings, I nevertheless take note of the

5 fact that the situation we are faced with currently derives from the

6 attitude of Mr. Praljak who has not fully complied with the repeated

7 requests made by the Registrar about his financial status. From what I

8 was able to understand from the situation, a few years ago, allegedly,

9 Mr. Praljak had shares in a number of companies and he allegedly and

10 directly or indirectly allegedly was the owner of a property. From what I

11 understand from the documents, it seems that some of the property, some of

12 these assets, were given according to procedures I'm not familiar with

13 because none of this is mentioned in these documents. Some of these

14 assets were supposedly given to some of -- members of list family.

15 Today, Mr. Praljak is telling us that he has no means whatsoever,

16 no financial means whatsoever to pay his lawyers and to prepare his

17 defence. As you know, this cost is huge. Let me give you just two

18 examples that come to my mind. The first example relates to a case in

19 Trial Chamber II, the Accused Seselj is requesting from the Registrar the

20 reimbursement of costs incurred in the preparation of his defence for a

21 total of 2.4 million dollars. This is just to give you some idea of the

22 scale of the cost of a defence, and recently I read a press release from

23 Agence France-Presse related to a trial that took place a few years ago,

24 the Blaskic case. It seems that the Croatian government remunerated both

25 Defence counsel in that case for a total of 30 million dollars. Well,

Page 343

1 when you take that into account you realise that the costs are staggering

2 and in order to be able to face these costs, you have to have enough money

3 to remunerate your counsel, to pay expert witnesses, investigators, et

4 cetera.

5 Mr. Praljak, let me now turn to you, and in order to provide

6 enough information to my fellow judges I'm going to meet tomorrow, I would

7 like to know whether you fully responded to the requests made by the

8 Registrar regarding your financial state of affairs today. What is --

9 what is it now? Can you give me information about that? Because as you

10 well understand, because of your situation, the proceedings have come to a

11 halt. So I'd like to give you the floor now.

12 THE ACCUSED PRALJAK: [Interpretation] Thank you, Your Honour. I

13 might take a little more of your time because the discussion between

14 myself and the Registry has been going on for quite sometime. Now all the

15 information that you have received from the Registrar and Registry about

16 the fact that I have not complied with all the requests made of me fully

17 is just not correct.

18 I was duty bound following on from the logics of law and human

19 logics, very precisely, to state what material resources I had at my

20 disposal at the point in time when the indictment was raised against me.

21 So that's a question of principle. And you can put that question in a

22 different way and say it like this: Whether up until the point the

23 indictment was raised whether I was a free man, and if I was a free man,

24 whether, within this freedom was included the right to dispose of my

25 property up to that point in time. Of course, in a manner prescribed by

Page 344

1 law and on the basis of my own free will, because it was my own property,

2 or whether I should have been deemed to have been guilty previously, in a

3 premeditated way which was not have ranked us among civilised societies

4 but among societies that practised law in the system in which I lived for

5 many years. So that is a question of principle and I would never agree

6 that I did not have the right to dispose of my property as I deemed fit.

7 That is the right I had.

8 Now, outside this question of principle, we can look at the facts.

9 That is to say, what was it that I actually possessed before the

10 indictment was raised? What was this property of mine and what did I

11 have, what did I own at the time the indictment was raised? Now, the

12 burden of proof is on me but it is on me in the way in which I believe

13 this can be proved and shown, and it can be shown and proved in a manner

14 positive, as all other things in law. That is to say to make a precise

15 list of the property I own. Movable, immovable property or any other type

16 of property.

17 And that is what I did. I did this very precisely, together with

18 my counsel at the time. I submitted that information to the Registry. I

19 signed a piece of paper saying that it was the truth, that it was the

20 actual state of affairs, and that I was responsible for writing it

21 materially and before the law. The Registry has the right, of course, to

22 have other information. The Registry has the right not to agree with the

23 facts as I presented them. However, I don't know how I can fulfil the

24 Registry's request proving something which -- of something which I do not

25 known, of not being the owner of some property.

Page 345

1 On -- in two matters, I overstepped my principles quite a bit and

2 wanted to meet the requests of the Registry. First of all, when I went to

3 the bank, because they had asked me to show that I did not have any bank

4 accounts in that particular bank. Now, apart from that particular bank in

5 Croatia, there are some 70 other banks and so by virtue of negative

6 evidence and proof, they could have asked me to bring in statements from

7 the 70 other banks saying that I don't have any bank accounts in those 70

8 other banks but this would go against the grain of logic, and negative

9 showing of evidence.

10 Your Honours -- Your Honour, it is very simple. Take it this way.

11 For every company and for any property that they asked me -- my links to,

12 what links I have to them, in a civilised country it is very easy to

13 establish the facts and Croatia is a civilised country today. You can do

14 this in a very clear-cut, legal way, in a very efficacious way, and in a

15 very correct and precise way, and this is the way you would go about it.

16 You could ask the Court or the courts through the organs of the Republic

17 of Croatia or the organs of the Republic of Bosnia-Herzegovina to issue

18 and send in a document stating when the industry in Ljubuski was

19 established, who established it, what capital was used to establish it,

20 and how that basic capital changed and evolved over time, who put in more

21 capital, changed the capital resources of that firm, and so on and so

22 forth. All these are matters which are registered by the Court, and that

23 kind of organisation, and it will provide a clear insight into the matter

24 and you can quite clearly see that no where does my name appear there in

25 those documents. I don't know how you want me by violating the law, go

Page 346

1 into a research of something with which I have nothing to do, no

2 connection whatsoever.

3 I have already explained that this is something that I do not own,

4 that I am not an investigator of The Hague Tribunal, and that I would have

5 violated the positive laws of both countries if I were to seek information

6 of that kind, which nobody would be duty bound to supply me with in the

7 first place anyway.

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)I sent them the relative data and information. And it was

13 this: That Mr. -- Dr. Zoran Praljak, that is to say my brother, built

14 that house in 1993. That in 1993, he received a construction permit to

15 build the house. And we have attached that to the documents sent to the

16 registry that in 1994 I think it was he paid money to the city of Zagreb

17 to settle the communal and utilities fees necessary for the construction

18 of the house, and that sometime in the year 2000, I think it was, when the

19 process continued, that same man, Zoran Praljak, continuing the building

20 of the house, asked for the main project and plan for the ground floor

21 level and horticultural surrounding plan, and I'm showing you that

22 document it is the adjudicated facts plan for the ground floor and the

23 surrounding land, and the architectural and construction plan for the

24 sewage system, for the electrical installations and everything else

25 necessary for a plan, and all that was in 2000, as the second stage in the

Page 347

1 construction of that particular house, and that as I wrote to the

2 Registry, we have several kilograms of documents of the same type as this.

3 Now, I'm asking you why is it -- would it be my duty to

4 investigate my brother for me to prove to you that I am not the owner and

5 proprietor of that house? Furthermore I provided very precise data in

6 evidence showing that my wife brought with her when she married me, a flat

7 that she owned before she married me, before she entered into the marital

8 state with me, and that she allowed me to sell that flat during the war

9 because I needed money, and that this lady with whom I have shared my life

10 for 37 years, we had very good relations as man and wife, I promised her

11 that I would return her flat to her. Now, at the point in time when I had

12 paid for the flat that I have received from the army, when I had paid that

13 out, paid all my dues, I drew up a contract and agreement for a gift, and

14 I signed it in 2002. In March 2002, I returned this flat to her and I

15 also stipulated that if she was ever to leave the marriage, that she could

16 take the flat with her.

17 Now, the discussion I had with the Registry of this Tribunal,

18 Your Honour, imposed upon me the fact that I should have had an additional

19 agreement and contract signed with my wife. Otherwise, the matter would

20 be suspect but I called into question the Registry's right to mirror its

21 culturological models and civilisational models to my own civilisational

22 model and I also questioned the right of the Registry's right to transpose

23 and to superimpose and to place its cultural model and civilisational

24 model above and superior to my own models, because I consider that my oral

25 agreement with my wife is based in the law, it is a fundamental right and

Page 348

1 a fundamental agreement as would you find in any other country.

2 Therefore, having said that, may I be allowed to continue,

3 Your Honour?

4 JUDGE ANTONETTI: [Interpretation] Well, let me sum up your

5 situation or your position in three facets. The first facet is the

6 question of societies. You're telling us that regarding -- or the

7 companies. It was easy to check with the deeds of those companies

8 establishing those companies, it could be shown easily that you were not

9 an owner of any of the three companies.

10 Second aspect, this has to do with your brother's house. You are

11 telling us that initially you had applied for an authorisation to build

12 with your brother, that later on he alone was the one to bear the costs.

13 Third issue, the house you have together with your spouse, and

14 you've just told me that in 2002, you made a gift to her and that you

15 don't deny that, making the gift to her. And the last argument you put

16 forward, and I shall make it known to my colleagues tomorrow, you say that

17 at any rate, whatever may have happened to your personal assets happened

18 in a state that was either prior to the indictment being raised or at the

19 same time as it was raised but that since you had the presumption of

20 innocence at the time, you could use your assets, all of them, as you

21 pleased. So tomorrow I shall report this to my fellow judges to let them

22 know what your position is, and I sincerely hope that with them I'll

23 arrive at a solution so that you can have a lawyer representing you at

24 trial.

25 No need to pass the floor to anybody because you have already

Page 349

1 expressed your views in writing. Mr. Karnavas, you filed a motion or your

2 answer a very comprehensive one for Mr. Prlic and this will make our work

3 very easy because we can issue an informed decision, because this is very

4 much at the heart of the rights of the Defence.

5 Second item, preparation for trial. As you know, some months ago,

6 I issued an order to the OTP directing within the framework of the --

7 preparing the pre-trial brief the witness list and the combatant list,

8 directing them to set up a sheet, a table, with various columns. Why? I

9 wanted to have this kind of schedule so that myself and the judges

10 assisting me in this trial have a comprehensive idea, an informed idea, of

11 the charges against the Accused. I want to stress once again that the

12 Accused still benefit from the presumption of innocence.

13 Sometime ago I received the witness list, the exhibit list, and

14 the pre-trial brief from the OTP. I looked into them and I noted that my

15 directions were not quite complied with. More specifically, I am unable

16 to cross-reference the witnesses, the exhibits and the various paragraphs

17 of the indictment, not to speak of the pre-trial brief. As a reminder, in

18 this trial, and this is a mega trial, which is quite unique in the history

19 of this Tribunal. The only large trial there was was the Kupreskic case.

20 There were six of them -- I mean accused -- but this only actually dealt

21 with two facts, allegedly taking place in Ahmici in 1992 and in April

22 1993. So basically there were two facts. And the Trial Chamber in the

23 Kupreskic case came to a guilty finding on this. So in the Kupreskic

24 case, I do invite everyone present here to read the Kupreskic judgement.

25 You will see that there are very few references to exhibit lists and now,

Page 350

1 if I remember well, if there were 56 Prosecution witnesses, all of them

2 were heard but they are hardly referred to in the judgement. So the

3 Kupreskic precedent has nothing to do with this instant case.

4 For the time being, we have 10.000 exhibits. There were 9.490

5 initially and no later than late last week we got some more, some 400

6 additional documents from the ECMM. So we've reached the 10.000 mark

7 whether it comes to exhibits. Some of them are hundreds of pages long.

8 So we as judges and you as counsel, Defence counsel, you have a mountain

9 of documents facing you. On the other hand -- well, of course, the

10 Defence did put forward their arguments but the Prosecution aiming for 400

11 witnesses viva voce or under 92 bis. As to those under 92 bis, the

12 Defence have challenged all of them. My Chamber will have to issue a

13 decision on this, and it may be that the 400 witnesses will have to come

14 and testify here.

15 As you know, under the Rules, as a Pre-Trial Judge, I am under the

16 obligation to make sure that this process -- that this trial can be held

17 without delay and to take all necessary steps. But on top of this, and

18 this I failed to see in the filings I received this morning from the

19 Prosecution, under the rules, in Rule 73 bis(C), my Chamber, in the light,

20 so my Chamber will have to decide and determine the number of witnesses

21 the Prosecutor may call, as well as the time available to the Prosecutor

22 for presenting evidence. So how -- how can I determine the number of

23 witnesses and the time available for their testimony if I do not have a

24 clear idea of the relevance of their testimony and of the likely content

25 of that testimony with regard to the indictment as spelled out in the

Page 351

1 pre-trial brief? I can't just give a free for all or carte blanche to the

2 Prosecutor and say, okay, 400 witnesses, fine. These are your witnesses.

3 I have to check why such witnesses are relevant inasmuch as they relate to

4 the indictment.

5 Let me quote a decision of 21st of January 2003, and I note in

6 this decision, that this related to the Blagojevic case. Mr. Karnavas was

7 the counsel representing Blagojevic so he knows this inside out. And in a

8 nutshell, the Defence, that is Mr. Karnavas, objected to the fact that the

9 Blagojevic Chamber should have Prosecution material. Judge Schomburg was

10 the Presiding Judge. He's now on the Appeals Chamber and Judge Agius,

11 he's now in this Trial Chamber and that Chamber issued a decision. I'm

12 going to quote some whereases which are going to explain to you why I

13 insist on a schedule. So this is what the Trial Chamber then

14 said. "Noting that the Rules do not merely reflect the common law system

15 or the inquisitorial system of the civil law, that this Tribunal does not

16 rely on one system but is a combination of both, with, as a primary

17 objective to ensure a fair and expeditious trial."

18 "So the Rules are there to make it possible to have a fair and

19 expeditious trial, noting that the material requested by the Chamber is

20 necessary for the Chamber to deal more efficiently with the obligation it

21 is under pursuant to the Rules, noting that the requested material by the

22 Chamber will make it possible to have a better trial management, helping

23 the Chamber to issue decisions during the trial, noting that the requested

24 material will not be regarded as evidence by the Trial Chamber, as long as

25 it is not submitted and adduced into evidence at the trial."

Page 352

1 So I repeat that. "This material will help the Pre-Trial Judge to

2 fulfil its obligation -- his obligations under 55 ter, Rule 55 ter, since

3 the requested material will make it possible for the Chamber to fulfil its

4 obligations under Rule 73 bis, including the obligation of seeing whether

5 you have to shorten the estimated length of the examination-in-chief for

6 some witnesses, to determine the number of witnesses the Prosecutor may

7 call and the time available for the Prosecution for presenting evidence."

8 So this is in a few words what the Chamber said then, its

9 conclusion, and this is what I'm going to do precisely tomorrow. I'm

10 going to ask the Prosecution to provide me with all prior statements and

11 copies of the 10.000 exhibits. I want copies on paper, not on a CD-ROM.

12 Why do I ask that? Because, you know, 10.000 exhibits, 400 witnesses, I

13 have to make a connection between the exhibits and the witnesses. I was

14 curious intellectually to look, to cast a glance at the facts as alleged

15 in the indictment. The factual allegations are to be found again in the

16 pre-trial brief by the Prosecution because in the said brief you have

17 annexed to it, municipality by municipality, you have various annexes, 1,

18 2, 3, et cetera, that mention a number of facts. The facts are such by

19 way of an example for the Prozor municipality, in the Prosecution

20 document, you have 175 facts. In theory, all of them have to be

21 established by way of an exhibit or by -- through a witness. And I went

22 further than that. I went beyond the pre-trial brief, together with my

23 legal assistants. I searched very thoroughly for mentions in the

24 indictments of certain municipalities.

25 Again, I'll give you an example. The municipality where you have

Page 353

1 the least facts. That's Gornji Vakuf municipality. So, there, as you

2 know, you have several counts mentioned in the indictment, and as you

3 know, all in all, for the Gornji Vakuf municipality, you have 23 of them,

4 but there is actually in a relevant way, not 23, there is 11 of them, and

5 of the 11 counts, I see that it covers actually more than that

6 municipality. It covers several of them. You've got Hrasnica, Uzricje,

7 sorry for the pronunciation, Zdrimci, Dusa. There is at least four

8 villages involved, and this allegedly took place on the 18th of January

9 1991. There were attacks, there was looting, burning, a population

10 transfer. All this since it is in the indictment must be proven, at least

11 through witnesses or exhibits.

12 Now, if you have 10.000 exhibits, those you are providing me with,

13 and with these 400 witnesses, how can I know which is the witness, which

14 is the exhibit that deals precisely with Gornji Vakuf? Only you can do

15 this with a schedule. And this is in your interest. In this way, you

16 will know where you're going. It is the interest of the Defence because

17 legally speaking the Defence teams are entitled to know what charges are

18 brought against -- or are going to be dealt with through which witnesses

19 in order to prepare their cross-examination and it will be in the interest

20 of the judges because then they will have a comprehensive idea of what the

21 various pieces contain, the indictment, the pre-trial brief, what they

22 encompass.

23 This morning I received filings from the OTP and you say that you

24 cannot do this job, whilst in my order I had said that you had until the

25 25th of February. So you've got more than three weeks left to do the job.

Page 354

1 As long as I do not have this, I cannot have convened the Chamber for it

2 to ascertain the number of witnesses and the length of each testimony. I

3 just wanted to tell you this. I'm now speaking to the Prosecution. To

4 avoid any misunderstanding of the intentions of the Pre-Trial Judge, he

5 has a to prepare a file to be submitted to the Trial Chamber, Trial

6 Chamber II. So the other two fellow judges who are going to be ad litem

7 Judges who are going to be assigned to this case. As long as I don't have

8 this, I am not able to ask my fellow judges to make a decision under Rule

9 73 bis of the Rules of Procedure and Evidence. Of course, given this

10 mountain of documents, and the large number of witnesses, the Defence will

11 have to prepare their cross-examination, and if there is -- if it's so

12 opaque, how could they prepare their cross-examinations?

13 Would the Prosecution have anything to say now orally? Because

14 this is a huge problem.

15 MR. SCOTT: May it please the Court, first off Your Honour, I

16 think it's important for the Chamber to understand that the Prosecution is

17 fully prepared to go to trial at such time as three things occur. That

18 is, when all the pending motions are resolved, which are a substantial

19 number of pending motions, some of which have been pending since April of

20 2005, when the full Trial Chamber is in place with the actual judges who

21 can help and assist Your Honour to address these final preparation tasks,

22 and thirdly, when we have a date certain, all of us, including the

23 Defence, a date certain we can work backward from in order to make all the

24 final preparations such as the organisation of witnesses.

25 When and if those three things occur, Your Honour, the Prosecution

Page 355

1 is fully prepared to go to trial. The filings that we have made last week

2 on the 19th of January in our witness list and our exhibit list fully

3 complied with the Rule requirements and have indeed provided Your Honour

4 and the other judges of this Chamber, Judge Agius and Judge Parker, with

5 detailed information as to the Prosecution case. The Chamber -- or,

6 excuse me, Your Honour has just indicated in the last few minutes the need

7 to connect the witnesses, the approximately 400 witnesses, to the counts

8 and paragraphs of the indictment. What we have filed, what we filed last

9 week, Your Honour, does exactly that. The 65 ter witness list that the

10 Prosecution has filed indicates by the paragraph of the indictment and the

11 count which witnesses go to which count and which paragraph of the

12 indictment.

13 I should also clarify, if the Chamber has not seen this perhaps

14 already, the pre-trial brief is structured in such a way, and

15 intentionally so, so that the paragraphs in the -- the operative

16 paragraphs in the pre-trial brief are exactly the same as the paragraphs

17 in the amended indictment. So that if one refers to the paragraph in the

18 amended indictment it is the same paragraph in the pre-trial brief by

19 number.

20 This provides the Chamber with extensive information as to the

21 witnesses. Also, Your Honour has indicated that time estimates are needed

22 in order for you to better manage the trial. In every instance, as to

23 the witnesses, we have provided the Chamber a time estimate as required

24 by Rule 65 ter(E)(ii). Those are all been provided and the Chamber has

25 that.

Page 356

1 As to the exhibits, we have proposed in a filing that we made with

2 Your Honour today, with the Chamber today, and not only -- I should say,

3 not only with you, Judge Antonetti, but also for the consideration of

4 Judge Agius, the presiding Judge, and also Judge Parker a proposed

5 alternative chart which would -- by which the Prosecution would list the

6 exhibits or link the exhibits to the counts and paragraphs of the

7 indictment in the same way. That is done with the witnesses. And we

8 provide that chart to you and your staff and indicated in order to do

9 that, by our time estimates, given the -- well, come back to the number of

10 exhibits in a minute but given the voluminous number of exhibits in this

11 case, that we will indeed endeavour to do that, to assist the Chamber, but

12 that it is not possible, it was not possible yesterday, it is not possible

13 today, and it will not be possible tomorrow, to make that filing by the

14 25th of February and we have given you an indication that we believe,

15 based upon tower assessment and we have looked at this, we worked with

16 this material for a very long time, and that we believe we can hopefully

17 complete that additional alternative chart which is attached to today's

18 filing, we hope we can provide that to you by approximately the 14th of

19 April. And that will be the time required to do it.

20 So we are happy to work with the Chamber, of course, to move this

21 case and make it as efficient as possible but we cannot do the impossible

22 and that is the time that will be required to provide the alternative

23 chart that we have given to Your Honour today.

24 Just to clarify on the exhibit situation, the motion concerning

25 the ECMM documents, those documents were already listed in the -- in our

Page 357

1 65 ter witness list, those exhibits are not in addition to, they are

2 already included within the 9.490 documents, so they were not new nor

3 additional exhibits.

4 Thank you, Your Honour.

5 JUDGE ANTONETTI: [Interpretation] You are telling me that your

6 filings have been done today. I haven't received them. As soon as I see

7 them, I'll look into them.

8 And you telling me that you can do the work but according to your

9 estimation, it cannot be done until the 14th of April.

10 I do take note of what you've just said. However, I read your

11 pre-trial brief with great attention and interest, and the way it is

12 structured makes me think that it is based on three factors, three major

13 factors. Factor one, the joint criminal enterprise factor. The joint

14 criminal enterprise, of course, has an objective, and you also need to

15 have the mens rea, the intention of all members of the joint criminal

16 enterprise. This is something that arises from the Tadic case law, and it

17 can be presented in three forms. I suppose therefore that through its

18 witnesses and its documents, the Prosecution is going to try and show that

19 there was a joint criminal enterprise. I can't find any trace of it

20 whatsoever in the witnesses or the exhibits.

21 Second factor in your pre-trial brief, you then analyse individual

22 liability for each of the Accused, who allegedly planned, ordered,

23 perpetrated, et cetera. That, too, normally it has to be proved through

24 documents or witnesses.

25 Third factor. In the pre-trial brief, this is what I would coin

Page 358

1 murders in various locations, persecution, looting, et cetera, all that

2 has to be proved as well. And there must be a nexus between the criminal

3 enterprise, the Accused, their behaviour, their actions, and the crimes,

4 under 26 counts, and I'm bound to tell you, I have to tell you that

5 reading your pre-trial brief and the documents I've received raised some

6 questions in my mind as to the way we are going to manage this trial. How

7 do you plan the testimony, the appearance of your witnesses? Are you

8 going to have the expert witnesses first in order to set up the political

9 context, the international armed conflict, the parts played by various

10 actors, and then are you going to go municipality by municipality to look

11 into all the underlying crimes? I'd like to see it clearly, and I believe

12 that the Defence also want to have some clarity. And so far I have no

13 indication from you.

14 And if I had a chart like the one I expected, I should receive

15 this information, and I was interested to read that you plan to have

16 various experts, so I suppose that some of them will speak to the

17 political context. Fine. But when are they going to come? Are they

18 going to be in the beginning, towards the middle, or towards the end of

19 the proceedings? I'd like to know that sort of thing. My memory -- I

20 think you have five hours planned for one expert. That's five hours for

21 the Prosecution, of course. The Defence will tell me in a minute how they

22 plan to cross-examine the witness. But all this has to be prepared in

23 advance. We can't start a trial without knowing where we are going.

24 So -- I know that counsel want to take the floor. You'll have the

25 floor in a minute but first, Mr. Scott.

Page 359

1 MR. SCOTT: Thank you, Your Honour.

2 We are very anxious, and happy to have that sort of dialogue with

3 Your Honour and the other members of the Chamber. I apologise for the

4 filing today that obviously I take completely for granted that you've not

5 had a chance to fully digest it and take it on board especially since,

6 obviously, we were not able to translate it into French this morning. But

7 I should say, Your Honour, make it very clear, that we felt driven by --

8 JUDGE ANTONETTI: [Interpretation] It is not necessary to have

9 these documents translated. I can read them in English. No problem.

10 MR. SCOTT: Thank you, Your Honour. We were driven very much by

11 the instruction in your order last week to advise the Chamber, as soon as

12 possible, I think were the literal words, at least in the English

13 translation of Your Honour's order, and felt that we needed to get that

14 before the Chamber even prior to there hearing today so that there would

15 be, indeed, no misunderstanding or confusion on these points.

16 In that filing that we made today, among other things,

17 Your Honour, we proposed in a very broad way, of course, what our

18 presentation of the evidence would look like, and it would, indeed, start

19 with a number of overview witnesses, including some of the experts, not

20 all of them because we think some of the experts would fit better

21 elsewhere in other parts of the case but certainly as to what might be

22 called a political or historical witness and some other witnesses about

23 the structures of the HVO, for example, the Croatian Defence Council, we

24 would, indeed, anticipate calling or plan to call such witnesses early in

25 the trial, along with other witnesses that will talk about the general

Page 360

1 overview, the joint criminal enterprise, the vision of a greater Croatia

2 as pursued by President Franjo Tudjman and these Accused and others, and

3 put that before the Chamber in an extensive and detailed way.

4 Following that evidence, Your Honour, we would present the

5 remainder of our case, largely - I'm sure not perfectly - but largely in a

6 chronological order by the events in the municipalities. That -- and

7 following against, once again, the structure of the indictment. Prozor

8 would be the first municipality, because of the events that happened there

9 in October of 1992. That would then take us to Gornji Vakuf and the

10 events that happened there in -- and other places for that matter, but

11 particularly in Gornji Vakuf in January and February of 1993. That would

12 then take us to Sovici Doljani and the events in April 1993 and so on. I

13 won't take the Court's time to go through it in every detail.

14 I should perhaps on Gornji Vakuf just to clarify any

15 misunderstanding or confusion that we may have caused to Your Honour, when

16 you refer to several towns and villages in Gornji Vakuf, there, of course,

17 is the municipality or the opstina of Gornji Vakuf and within the

18 municipality there are a number of villages and towns that were involved

19 in those events. So it is not an error in the indictment by any means but

20 a description of both the municipality and towns and villages, of course,

21 that bear a number of different names.

22 Now, there is one major qualification to what I've just said and

23 this again is in our paper that we filed this morning. That is this: As

24 I'm sure Your Honour knows from your own experience, it is usually the

25 case that most witnesses touch upon more than one aspect of the case. And

Page 361

1 indeed in this case, I can tell you, and in a general way, I'm not going

2 to name witnesses this afternoon, but I can tell you there will be

3 witnesses, for example, who were first arrested in connection with the

4 events in Sovici/Doljani in April of 1993. They were then taken to the

5 Ljubuski prison where they were in the Prosecution's views mistreated and

6 mishandled. They were then transferred to the Heliodrom prison and at

7 either or both of those locations they were taken out to various locations

8 to perform illegal forced labour. And those were four distinct aspects of

9 the Prosecution case. And I'm -- I can only assume, Your Honour, that

10 you -- that the Tribunal would not have me bring back the same witness

11 four times to give only that part of the evidence at any given moment

12 which related to that part of the case where we are.

13 So it's essential and it's necessary, unless we do that, unless we

14 call witnesses separately each time for each part of the case, it's

15 inevitable that when we call our witnesses we will be talking about what

16 happened in Sovici Doljani in April of 1993 and attempting to present our

17 case as logically and chronologically as possible, but immediately you'll

18 have a situation where then you're at Ljubuski, then you're at the

19 Heliodrom, and then you're at forced labour locations. So I have to give

20 you that clarification. But subject to that problem, that inherent

21 difficulty in the evidence, we will present the case to you roughly in the

22 way that I have presented to you this afternoon, Your Honour.

23 JUDGE ANTONETTI: [Interpretation] Very well.

24 I'm very glad to hear that the document I have not received, that

25 has been filed today, that this document will answer a number of concerns

Page 362

1 I had. As soon as I get hold of this document, I will read it very

2 carefully in order to be fully reassured. I've spoken a lot. The

3 Prosecution has also talked a lot. But, of course, the Defence will have

4 the floor. We'll start with Mr. Karnavas and then we'll finish with

5 Mr. Praljak.

6 Mr. Karnavas, you have the floor.

7 MR. KARNAVAS: Thank you, Mr. President. First I want to salute

8 you for seeing the essence of the -- the complexity of this particular

9 case, the volume of documents, and the challenges that the Defence faces.

10 I dare say the Prosecution's motion that was filed today may not be as

11 helpful as they may have represented. It may be so. I don't know. I'm

12 not so sure.

13 I'm also happy that the -- that I was able to be of some

14 assistance given my position in the Blagojevic case, a position that was

15 contrary to what Judge Schomburg wanted at the time. However, in light of

16 the system that was adopted, certainly wiser heads prevailed and so be it.

17 And I'm glad that the order came -- the decision in that case came the way

18 it did because now at least in this particular case, you have sought fit

19 to request from the Prosecution the necessary documents and the outline of

20 the case that would assist you in preparing for your task, which is to

21 make sure that you narrow the case to the very issues that are at hand and

22 also provide you with the necessary background so you can participate in

23 your right and obligation to question witnesses and examine documents that

24 either side may have failed or for whatever reason chosen not to use,

25 documents or questions that might be of assistance in determining the

Page 363

1 truth in this case.

2 Having said that, I too am concerned with respect to the

3 Prosecution's time line. We must understand that they've had eight years

4 or more to put this case together. This is the culmination of many, many

5 cases. They chose the time and the place whether they were going to

6 indict. They close how they wished to present their indictment. This

7 case was scheduled and slotted for trial around October last year. Then

8 we were told sometime around November then it became December, then

9 February, now we are looking at March, now they are saying pursuant to an

10 order by the Court, that they, with their legion of Prosecution teams, be

11 it lawyers, be it legal assistants, be it analysts, experts, in-house

12 experts and so on, that they need until April. And, of course, what is

13 being sought by the Trial Chamber would be of great assistance to the

14 Defence as well.

15 Now, the problem is, how can we, then, if the Prosecution needs

16 until April, how can we, the Defence, adequately prepare? Especially if

17 we don't have the sort of precise outline that was requested by you in our

18 last Status Conference as to how the case is going to proceed in somewhat

19 detail. Why? In no given case of it this magnitude can a Defence lawyer

20 prepare for the entire case from start to finish by the beginning of the

21 case. You obviously need to prepare as much as you can, especially for

22 the big picture, and then, as the trial commences usually you would focus

23 most of your attention on the witness list and usually it should be

24 presented as was suggested by the Trial Chamber, in a topical manner so

25 that it makes it easy for everyone. Especially for the Defence who need

Page 364

1 to prepare for the day-to-day cross-examination of experts.

2 Now, I don't want to take up too much of your time Your Honour

3 because I wholeheartedly agree with your order and at least in my

4 jurisdictions, the Prosecution would -- might be facing somewhat of a

5 sanction if they didn't comply with an order. We've heard their response.

6 I'm satisfied that they are trying to do everything they possibly can to

7 comply with the judges -- with your order. But if they are having -- if

8 they see it as a Herculean task, think of what it's like to us.

9 Now, last week we did receive their 242-page trial brief. And we

10 got a list of witnesses, and I must tell you I'm a little concerned.

11 Because there are several experts, I'm not going to name names but I'm

12 just going to name what their supposed to testify to. There is an

13 artillery expert, a financial investigator, a historical expert, a

14 handwriting expert, military expert, expert on presidential transcripts,

15 demography, and so on. Reports of which we don't even have. Now, imagine

16 being in a case eight years preparing it and now they are saying they are

17 going to bring in a financial expert in the middle of the trial. How am I

18 supposed to prepare for the cross-examination of an expert of that nature

19 while I'm preparing for everything else? Now, and I've said this in many

20 cases and I'll say it again and I'll keep saying it until the case is

21 over. There is no such thing as equality of arms in this Tribunal. They

22 do the best they can, I understand, but the Defence has limited resources,

23 and for us to be able to at least prepare for the case, even at the very

24 beginning, we need to have these expert reports. We need to have them

25 now. In fact we should have had them yesterday.

Page 365

1 This was one of the reasons why I was a little, as you may recall,

2 I said I was somewhat disappointed last time in that we didn't hold the

3 Prosecution's feet to the fire and demand that the pre-trial brief be

4 submitted by December. They got an extra month, but now we are facing

5 this particular challenge, and I am concerned. And I know that

6 Your Honour would like to have these reports as well because you need to

7 read them, digest them, so you can be able to participate as well in the

8 process.

9 But there are other statement that we don't have. We know for a

10 fact that they have been interviewing and they continue to interview even

11 probably as we are speaking today they are interviewing vital witnesses.

12 Those statements of which we don't have. When will we be getting these

13 witness statements? Because we will need to do our own investigation.

14 That is a concern as well. And, of course, their documents in the

15 thousands of pages that need to be translate, just for the sake of Mr.

16 Praljak but for the sake of everyone, including yourself, Your Honour.

17 So based on that I just want to raise my concerns. I don't know

18 how we can start the trial as we thought we would, probably at the --

19 sometime in March or April. I certainly would like to begin as quickly as

20 possible but at the same time I don't want to disadvantage anyone.

21 Certainly not Mr. Praljak. Though I concur with all of your remarks

22 regarding the fact that he does need to have lawyers who are probably

23 going to need some extra time. On the other hand, I don't want to be

24 asked -- standing here asking for a lengthy continuance because I don't

25 know when I'll be getting there material, how much time I will need,

Page 366

1 because I don't want to make a frivolous request for the sake of making a

2 frivolous request. I've been working diligently full time on this case

3 since the moment I got into it.

4 So that's another consideration.

5 These are the sort of things that at some point we need to iron

6 out. I agree with Mr. Scott that it would be helpful for us to have a

7 date certain but I think to choose a date certain at this point in time,

8 without having all of this information doesn't really -- isn't that very

9 helpful. I think what might be necessary is for the Court to impose a

10 date certain by which the Prosecution will turn over all of the evidence

11 that they intend to use at trial. All of it. Unfortunately we don't have

12 the French system where you have a dossier, we know this is the universe

13 of all the documents. So the investigation continues. Fine. But at

14 least to the extent that they list witnesses that they expect to testify,

15 particularly as expert witnesses, some of whom work for the Prosecution,

16 they are employees of the UN. I hesitate to call them experts. They are

17 analysts, they are OTP employees but they are going to come in here

18 testifying as quote unquote experts. But nonetheless, where are their

19 reports? Some of them have been around for many, many years and I don't

20 want to be engaged in a trial where my client is going to be disadvantaged

21 and I'm being put in a position where I have to effectively provide

22 ineffective assistance of counsel.

23 THE INTERPRETER: Could the speaker please be asked to slow down?

24 MR. KARNAVAS: I'm being asked to do a disservice to my client

25 because I'm being put in a position of having to rush through and not

Page 367

1 being -- be thoroughly prepared. I believe that the Prosecution, with

2 respect to my client and other clients are going to be asking at the

3 conclusion of the case a sentence that would literally cause them to die

4 in prison. That's a serious matter. And given that, given the importance

5 of what we have, and this case covers a long period, there is historical,

6 there is political, there is economic, there is financial, you name it,

7 there are all sorts of different issues and I know that they have been

8 working very, very hard and I'm not trying to say that they are doing

9 anything that is not proper. But I think that perhaps they need to be

10 directed to provide all of this information, perhaps we need to have a

11 joint meeting with the Chambers, like a 65 ter meeting where we might be

12 able to hash some of these things out. But I can tell you, Your Honour, I

13 intend to challenge a lot of this stuff that they want to come in, you

14 know, all these documents without any proof, it's UN so therefore it's --

15 we should take judicial notice of them, or the European monitors therefore

16 let's just bring it all in by the truckload without witnesses. I mean, I

17 intend to challenge all of that because I want to make sure that my client

18 as well as every other client in this case gets a fair trial and I think

19 that's exactly what you intend to do in this case. So with those remarks,

20 Your Honour, I want to thank you again for seeing the difficulties that

21 the Defence has in this particular case. They are monumental. Thank you.

22 JUDGE ANTONETTI: [Interpretation] Thank you. Second lawyer.

23 MR. KUZMANOVIC: First of all, I would like to say that I echo a

24 lot of the comments that Mr. Karnavas made, all of them actually. What I

25 find particularly difficult with respect to the submission that the OTP

Page 368

1 made is that the Court ordered the OTP to make it in a certain way. And

2 specifically with reference to documents with 9700 some documents I'd like

3 to know that I don't have to read every one of those 9700 documents if

4 5.000 of those documents aren't connected to my client and my client's

5 portion of the case. I don't know that. I have to look at all the

6 documents. If the submission had been made the way the Court had ordered

7 it by linking the documents to the witnesses to the events, then it would

8 save -- would have saved us a lot of work. I mean, if you just think you

9 just preliminarily looking at one documents for 60 seconds, there is 9700

10 documents, I mean, that's just immense, not to mention some of those

11 documents which my client can't read because they are in English, or in

12 another language that he doesn't understand. So I think -- I'm sure that

13 the Prosecution -- I mean obviously we've heard from them today, are doing

14 their best to try to get whatever they think is appropriate to the parties

15 but the Court ordered it one way and we didn't get it in that way. And

16 I'm a little disappointed in that from my perspective. It just makes a

17 lot of work. We already have a lot of work but it makes a lot of work for

18 us.

19 The other issue that Mr. Karnavas touched upon was the issue of

20 trial, and we did see somewhat of a suggested date by the OTP in their

21 latest filing which you'll see Your Honour, I just had a chance to skim it

22 just now. But I think it would be beneficial notwithstanding the

23 difficulties that are going to be encountered by the OTP in getting these

24 documents in the form that the Court requested to all parties, and

25 notwithstanding the issue of Mr. Praljak, to set a date certain, and I

Page 369

1 don't know if the Court can even do that now under the circumstances, as

2 the Court has explained to us. But having a date certain and working back

3 from that I think puts a little bit more pressure on people to get things

4 done but, you know, in my view, looking at this case the Court had

5 initially there was some suggestions that the case could be tried in March

6 and I just don't see that happening in all honesty. We need to have some

7 fixed date that we can work back from and I don't know if Your Honour is

8 interested in doing that and we've haven't really discussed that generally

9 among counsel but I think that would help in some instances, sort of put a

10 little bit of pressure on everyone to have a date certain.

11 The other thing that the Court had requested that we do and I

12 don't think Mr. Scott mentioned it was that we sit and discuss some of

13 these issues before land which we did before today's status conference.

14 We did sit and talk about the methodology of questioning and time limits

15 and things like that. And we have an understanding, we haven't come into

16 any sort of agreement but we've come to understanding of, okay there is a

17 good starting point, let's work on further trying to refine it so we can

18 present it to Your Honour and to the Chamber. So in light of those

19 things, Your Honour, I guess that's all I have to say. I don't want to

20 repeat what Mr. Karnavas said but I think you understand our concerns.

21 Thank you.

22 JUDGE ANTONETTI: [Interpretation] Thank you, third lawyer.

23 MS. ALABURIC: [Interpretation] I would like to join in the

24 positions of my colleagues and I will be very brief. I have only four

25 points to present in relation to this subject. First of all, I think it

Page 370

1 is very important that the OTP act in accordance with instructions issued

2 by the Court and indeed to make a survey of this voluminous material so

3 that we could find our way through this abundance of material, both we the

4 Defence and the Court.

5 Secondly, as for the 92 bis witnesses, their statements have not

6 been submitted. In relation to witnesses, I also wish to say that there

7 are some witnesses who are supposed to testify viva voce but we still

8 don't have their statements. We will try to deal with this directly in

9 contacts with the OTP.

10 However, my fourth point which causes particular concern is

11 suspect statements that are provided as reliable information. So when a

12 certain person is to be heard as a witness, we are actually admitting a

13 statement that the said person gave as a suspect. And on the basis of

14 that suspect interview, we draw certain conclusions related to the

15 indictment itself, various counts, et cetera. I think that this is

16 impermissible practice and I would like to draw the attention of the Court

17 to it, and also to the impermissibility of providing one type of

18 statement, that is to say suspect interviews, to be admitted as relevant

19 trial material pertaining to a particular witness.

20 Thirdly, if the Prosecution is allowed more time for preparing the

21 necessary motions, I suggest that the Defence's time be extended as well.

22 Also, we fully subscribe to what our colleagues said, that once we

23 receive all this material from the Prosecution, the Defence be given

24 sufficient time to prepare this very complex case. Thank you.

25 JUDGE ANTONETTI: [Interpretation] Thank you.

Page 371

1 MR. JONJIC: [Interpretation] Your Honour, the Defence of Valentin

2 Coric fully supports what our colleagues say, that is to say Mr. Karnavas,

3 Mr. Kuzmanovic, and Ms. Alaburic. I would just like to state that we

4 think that the Trial Chamber should insist on the documents of the 30th of

5 November 2005. May I remind you that Appeals Chamber in the Kupreskic

6 case that you referred to yourself pointed out that the role of the

7 pre-trial brief is not to provide a digested version of the indictment but

8 that on the contrary it is a very important trial document whose primary

9 task is to help the Trial Chamber and the Defence to prepare for the case

10 and trial properly, thank you.

11 JUDGE ANTONETTI: [Interpretation] Thank you.

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

13 Defence of Mr. Pusic fully subscribes to the views presented by our other

14 colleagues. I just wish to say that the list that you ordered the

15 Prosecution to produce is very important for yet another reason as well,

16 and that is time. Time is an important factor in this trial. We have six

17 Accused persons and then there is the Prosecution and everybody is going

18 to require time. If we work out this table or this list properly, then we

19 will deal with this as efficiently as possible and we will resolve matters

20 properly.

21 JUDGE ANTONETTI: [Interpretation] Thank you.

22 Mr. Praljak, before the break.

23 THE ACCUSED PRALJAK: [Interpretation] I'm in a good position here,

24 I think, to say something. Regardless of what the Prosecution thinks, I

25 emerged from the war convinced, with the wisdom I have, that I did what I

Page 372

1 did with a maximum of high moral standards. Perhaps I'm wrong. But for

2 ten years now, we have been living under pressure and for another ten

3 years perhaps we will live under this pressure that perhaps we are war

4 criminals. Believe me, I'd like to find that out. Relatively soon at

5 that, and in a just manner. So that my family, my friends, my

6 grandchildren, would not live that way for 20 years, and that's as long as

7 it's going to take.

8 Namely, that it is possible that we are the most serious of war

9 criminals. The way the Prosecutor presented list case now is that now, on

10 your part, after eight years of investigation, what is the result? Je

11 m'en fous.

12 Secondly you say in the indictment that all members of the HDZ,

13 all members of the HVO, the entire nation at that, is waiting to find out

14 whether, with their representatives, they are all part of a criminal

15 enterprise. Nothing but a criminal enterprise.

16 Taking advantage of such a situation, indicting 99 per cent of the

17 members of that nation, you go down there, you take statements from people

18 for that indictment, that kind of indictment. That is true. You told

19 everyone that they were suspects, that they were possible indictees, and

20 oh, then they are really going to testify freely and fairly. Oh, yes!

21 Your Honours, there are three more remaining matters. I did not give

22 a single euro for the house on (redacted).I returned that apartment to

23 my wife. And I did not have any share in any enterprises during the

24 indictment and after the indictment. Thank you.

25 JUDGE ANTONETTI: [Interpretation] Very well. Before we have a

Page 373

1 break, because for technical reasons, as we know, we have to have a break,

2 as short as possible. I think that a quarter of an hour will be more than

3 enough. I note at this stage that all counsel have the same position. So

4 there is a united front among the counsel.

5 Mr. Praljak, of course, joins them, with the underlying thought

6 that everybody wants to know when the trial is going to start. We have a

7 few more seconds before the break. I informed the president of the

8 Tribunal and my two colleagues of Trial Chamber II that I thought it was

9 very unlikely that we could start early March because of there counsel

10 issue. This issue has to be settled as quickly as possible. Once it is

11 settled, we will have made a major step forward. However, we'll have to

12 meet again in February for further hearings, for technical hearings,

13 forensic hearings. I was told that Courtroom I, II, or III would not be

14 available, which means that we could convene in Room 398 or 396, where you

15 can have interpretation into the three languages, but if Mr. Praljak still

16 hasn't got a lawyer by then, for him not to have to come here we could

17 have a video conference from Zagreb. But then the Registry would have to

18 help me out and give me further explanations.

19 Anyway, this would take place in February, and I think we have to

20 meet at least twice in February, for several hours at a time.

21 It's now quarter to four. We are going to have a break for a

22 quarter of an hour. We shall resume at 1600 hours sharp.

23 --- Recess taken at 3.45 p.m.

24 --- On resuming at 4.02 p.m.

25 JUDGE ANTONETTI: [Interpretation] Very well. The hearing resumed,

Page 374

1 and I'm now going to deal with pending requests, pending motions. Before

2 moving on to that particular issue let me just point out a specific point

3 related to translation. As you know, when you speak in English here what

4 you say is translated into French and B/C/S. When I speak in French what

5 I stay is translated into B/C/S directly or into English and then B/C/S.

6 But what matters, if there is any problem at all is to refer to the audio

7 recording of the proceedings. Otherwise there might still be an

8 uncertainties remaining. Let me give you an example. Before the last

9 Status Conference, before the end of the last Status Conference I said the

10 following: "We've dealt with all points on the agenda, the hearing stands

11 adjourned," and when I read the transcript in French, I saw the following:

12 "Meaning because I'm exhausted, I have to adjourn the meeting."

13 So what we should refer to is the audio recording, what is

14 authoritative is the audio recording. If we ever need to go back to the

15 original material we should go back to the audio recording of the

16 proceedings.

17 Now, let me move on to the list of pending motions.

18 The Accused Praljak has made a number of filings, filed a number

19 of motions related to the translation of the pre-trial brief and of

20 exhibits. Mr. Praljak is representing himself so he should receive all

21 documents in his own language. Therefore, the time limit he gets to

22 answer, to respond, is set at the 15th of March. He has until the 15th of

23 March to give his response to the pre-trial brief. That's his particular

24 deadline.

25 As for the motion by Mr. Praljak from the 5th of January 2006,

Page 375

1 I've dealt with it already so I'm not going to deal with it again. We

2 also have a motion by the Prosecution related to judicial notice in

3 relation to rules 89(C) and others. This is dated 27th of January.

4 THE INTERPRETER: The interpreter is not sure of the date.

5 JUDGE ANTONETTI: [Interpretation] The Accused Stojic has answered

6 late to this motion because he received the motion at his office but he

7 was not at his office. In any case, the Prosecution according to the

8 Prosecution, Mr. Stojic has filed beyond the time limits that had been

9 set. But let me remind you that according to Rule 126 bis, the time of 14

10 days starts running from the day the motion has been filed with the

11 Registry. So once a motion has been filed with the Registrar, you have 14

12 days to respond, and if a reply is to be requested, then you should ask

13 for authorisation to do so and then you will be granted seven days to

14 reply. So please remember that the time for answering or responding to a

15 motion is 14 days and seven days for a reply.

16 With relation to this motion filed under 94(A) and 89(C), I was

17 waiting for the pre-trial brief with a list of exhibits and the list of

18 witnesses. I was waiting to receive that before submitting the matter to

19 my fellow judges and before submitting a draft decision to them. So now

20 this will happen very quickly. Since the 4th of April 2005, we have a

21 pending motion for judicial notice related to other cases under Rule

22 94(B). All the parties have responded to the motion. Additional

23 responses have also been filed -- well the conclusion of all this is that

24 there is absolutely no agreement between the parties as relates to 94(B),

25 Rule 93(B). The Trial Chamber will very soon make a decision with regard

Page 376

1 to that issue.

2 On the 27th of December the Prosecution filed a motion asking the

3 Defence to notify under 67(A) any Defence of alibi or any special defence.

4 A number of Accused have responded to that motion. As you know, the

5 Defence is under no obligation to respond or to invoke a defence of alibi

6 before the trial, at any time. The Defence can use that type of defence

7 evening during the presentation of the Defence case. So there is no

8 urgency there. Let me remind you that we have two parts in Rule 67, the

9 defence of alibi and if I sum up, it's the case of an Accused who produces

10 an alibi saying, "I am -- it's alleged that I was at such and such a place

11 but I was not there, I was somewhere else." That's the defence of alibi.

12 The special item in this Rule is special defence including a number of

13 situations but that's the case where an Accused was under a -- an

14 attenuation of his mental responsibility at the time the facts were

15 committed, and he produces certificates to ascertain this. So that's for

16 Rule 67 and the Chamber will also issue a decision with relation to this

17 motion. We also have three confidential motions. I can deal with them

18 because I'm not going to name any names of witnesses. This is related to

19 92 bis for A, B, C and D. I'm not going to go into detail about this, but

20 we've received a number of responses and a decision will be taken. But I

21 note that the Defence unanimously has refused, rejected, these testimonies

22 and has demanded that the witnesses come and testify live. All the

23 Defence has submitted that these testimonies relate to the facts and

24 behaviour of the Accused and not -- do not fall under the purview of 92

25 bis. I'm considering all of this at the moment. I'm also going to submit

Page 377

1 a draft decision to my fellow judges very soon.

2 We also have a motion, a confidential motion, by the Prosecution

3 related to ECMM documents. I received this motion this morning only, and

4 naturally the Defence will have to respond and has 14 days to respond to

5 that motion.

6 Let me also mention the confidential motion related to the removal

7 of a statement by an Accused. We will also deal with that motion and rule

8 on that motion. We also have a confidential motion related to the

9 production of documents addressed to Croatia. Croatia has given a

10 response. We've had a response by the ambassador of Croatia to Trial

11 Chamber I, but apparently the document got lost, although I've found it

12 again, so we have all the necessary documents.

13 There is also another motion but I can't mention it in open

14 session. I'll come back to that later.

15 We also have a motion from January 24th requesting from the

16 Chamber that it should deal with the matter of the translation of

17 documents falling under Rules 66 and 68.

18 Now, about this specific matter, which is a very common issue

19 raised here at the Tribunal, my personal position, which I also have in

20 the Seselj case, is the following: When you have an Accused who is

21 representing himself, he should have in his own language all documents

22 pertaining to Rules 66 and 68, documents that will be used by the

23 Prosecution when examining their witnesses. It would not be

24 understandable for a Accused who is representing himself not to have in

25 advance all the exhibits that will be submitted to Prosecution witnesses.

Page 378

1 It's unthinkable. So that's my personal position. It's very clear. And

2 nothing will make me change my mind on that issue. When you have an

3 Accused who is representing himself, that Accused should have at his

4 disposal all the documents that will be submitted to the witness when the

5 witness comes to testify.

6 Trial Chamber II will very soon render a decision pertaining to a

7 motion in Seselj, in the Seselj case, but as for the pending motion filed

8 by the Prosecution, this is my position, my personal position. If my

9 colleagues share my view, then there will be no problem. If my colleagues

10 do not share my view, then I will write a dissenting opinion in the

11 direction that I've just outlined for you.

12 I should also mention, we only have 45 minutes left, but let me

13 ask the Registrar to move into private session very quickly, or very

14 briefly.

15 [Private session]

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 [Open session]

24 THE REGISTRAR: We are in open session.

25 JUDGE ANTONETTI: [Interpretation] In line with what I've just

Page 379

1 said, in November, I referred to my colleagues a request for the

2 delegation of powers of the Chamber under Rule 73. Why? Because I

3 believe that the preparation and the management of a megatrial should mean

4 that the Pre-Trial Judge is personally involved in the case and that's

5 what I've been doing on a daily basis over the past three months, and the

6 Pre-Trial Judge should also have a certain room for manoeuvre, allowing

7 him -- under the control of the Trial Chamber, allowing him to make

8 decisions that do not involve any academic questions and that is, for

9 example, the case of the amendments of the conditions of pre-trial

10 detention or pre-trial release. There is no need to refer the matter to

11 all the three judges, according to me. I'll deal with that with my

12 colleagues tomorrow. I know that they have a very busy schedule

13 themselves because of other cases but the management of a -- megatrials

14 has been dealt with in Canada by a special commission and the question

15 asked was how to manage a megatrial? The conclusion reached by this

16 commission that existed in 2003 and 2004, was that when you have a

17 megatrial, you should adapt some of the provisions of the rules and

18 various codes to these mega trials. You should move slightly away from

19 the habitual rules, and the commission submitted a number of

20 recommendations, among them the assignment of a judge in charge of the

21 management of the trial.

22 In our Rules, we have a Pre-Trial Judge. So he prepares the

23 trial. And in Canada, they dealt with that issue also. But as for -- up

24 until now, here at the Tribunal, we -- no one had thought about that

25 particular issue, but since the work conducted by the commission headed by

Page 380

1 Judge Bonomy, we have come to realise that it is absolutely essential for

2 a Pre-Trial Judge to become very involved in the pre-trial stage. I've

3 listened very carefully to what the Prosecution had to say when they

4 reminded us that the Chamber is made up of three judges. Yes, I'm very

5 well aware that a claim is made up of three judges but you should also not

6 forget that the Trial Chamber judging the case will not be made up of

7 these three judges. There will be me as the Presiding Judge and two or

8 three ad litem Judges. So you have to understand that Judge Parker or

9 Judge Agius will not be sitting on this trial at the trial stage. You'll

10 be dealing with three new judges.

11 Furthermore, as for the beginning of a trial, opening date of a

12 trial, I want to be very open towards all parties in this case. Ad litem

13 judges an appointed by the Secretary-General of the United Nations two

14 weeks only before the beginning of the trial. In other words, the ad

15 litem judges who will come here will have two weeks, 15 days, to read

16 10.000 exhibits, thousands of pages, 400 witnesses, et cetera. So you

17 have to be aware of that. In any case, if the trial begins on the 1st of

18 March, they will be appointed on the 15th of February if the trial starts

19 on the 1st of April they will be appointed on the 15th of March, and if

20 the trial starts on the 1st of May they will be appointed on the 15th of

21 April. That's the information I can give you about the dates, and as I

22 said earlier on, things will become much clearer once the issue of the

23 counsel has been solved.

24 Let me now move to the issues on the agenda of our meeting. Now

25 for the disclosure of exhibits related to Rules 66 and 68, it seemed to me

Page 381

1 that listening to the Defence, it seemed to me that what they were saying,

2 the tone of what they were saying, was that they did not have the witness

3 statements. So it seems to me that there are still a few problems when it

4 comes to the production or disclosure of evidence. So I'll turn first to

5 the Prosecution to see where we stand on that point and then I'll give the

6 floor to the Defence.

7 Mr. Mundis?

8 MR. MUNDIS: Thank you, Mr. President. We did deal with this

9 issue when we met with the Defence shortly before this Status Conference.

10 Due to the fact that the Prosecution only finalised and completed its

11 witness list shortly before the 19th of January when we filed that list,

12 there are a few outstanding witness statements that -- and related

13 material relating to those witnesses that has yet to be disclosed. We are

14 currently in the process of compiling that material and will be in a

15 position, we believe, to make that final Rule 66 disclosure very shortly.

16 Again, we are aware of a number of statements that have yet to be

17 disclosed, at least one of my colleagues from the Defence have identified

18 some other statement that we believe have been disclosed but which they

19 have been unable to locate among the material that has been disclosed so

20 we are undertaking a further review to determine precisely what material

21 needs to be disclosed pursuant to Rule 66 and, as I indicated, are in the

22 process of making sure that that disclosure occurs as quickly as possible.

23 JUDGE ANTONETTI: [Interpretation] Well, let me now listen to the

24 Defence. Mr. Karnavas?

25 MR. KARNAVAS: Very briefly. First I want to compliment

Page 382

1 Mr. Mundis for that clear answer. Yes they have provided us to the best

2 that they can. However, there are two points that I want to make. First

3 there is the list on their Pre-Trial brief. Of course, we want to make

4 sure that we have all those statements. But I want to have every single

5 statement that they've taken of any witness or suspect that they have and

6 I know for a fact that some gave statements, well, months and months and

7 months ago. So I ask myself, Why am I not getting it? What's the

8 problem? Why can't I have it earlier? There might be something in it

9 that might be helpful for me, I don't know. I'm sure if it was very

10 hurtful I might have it. Maybe it's being held back. I don't want to

11 read into what's going on but I want to make sure I have everything that

12 they have as part of their investigation. What the Court is going to get

13 from what I understand from the Blagojevic decision is what the

14 Prosecution intends to use at trial. That was one of the key issues that

15 I had with Judge Schomburg, that they shouldn't get their entire -- but I

16 think that any statement they have taken relevant to there case, whether

17 they intend to use it at trial or not we are entitled to that. To the

18 extent they can look I would most appreciate it. I want to again stress

19 the fact the Prosecution, in particular Mr. Mundis has been very

20 forthcoming in every request we've made.

21 JUDGE ANTONETTI: [Interpretation] Very well. I know that Mr.

22 Mundis is always very forthcoming so I'm reassured now to hear that.

23 Second lawyer.

24 MR. KUZMANOVIC: Thank you, Your Honour. I have made a request

25 from counsel for the Prosecution for the things that we thought we had

Page 383

1 missing, so hopefully we will be able to work things out in addition to

2 what Mr. Karnavas said. Thank you.

3 MS. ALABURIC: [Interpretation] Thank you, Your Honour. I've

4 already said that we accept -- expect to have direct communication with

5 the OTP and solve our outstanding issues that way.

6 MR. JONJIC: [Interpretation] The Defence of Valentin Coric agrees

7 with what Mr. Karnavas has said.

8 MR. IBRISIMOVIC: [Interpretation] My experience tells me that

9 Mr. Scott and the other Defence counsel will very speedily fulfill what

10 they have promised to do.

11 THE ACCUSED PRALJAK: [Interpretation] Accused I agree with what

12 Mr. Karnavas said. Thank you.

13 JUDGE ANTONETTI: [Interpretation] Let me now move to an issue that

14 has been of great concern to me. For the past three months, it's the

15 matter of the length of the cross-examination that will be conducted by

16 Defence counsel and possibly by Mr. Praljak if he doesn't have counsel.

17 Cross-examination following the examination-in-chief by the

18 Prosecution, I invited the Prosecution and the Defence to meet after the

19 last status conference. I understand that you've met and it seemed to me

20 that from what I've heard, you have been able to reach an agreement. You

21 might be able to confirm that fact to me or not, but in any case, the

22 issue at stake here is as follows: In its pleadings, in its written

23 filings, the Prosecution has told us for witness X we'll need four hours.

24 Four hours, that's one day of hearing almost.

25 What bothers me when we think that this trial should be fair is to

Page 384

1 know how the six Defence counsel or the five Defence counsel and the

2 Accused will cross-examine the witness. Will they each demand four hours

3 so that would lead to us a total of 24 hours or will they come to

4 agreement, these Defence counsel, to have leading counsel, so to speak,

5 who will lead the cross-examination on their behalf but then another of

6 problems are raised by that option and, of course, the other lawyers would

7 have the opportunity to intervene and ask questions if that was needed.

8 In a civil law system the president -- presiding Judge leads the

9 proceedings so -- and I believe that's the best system. Then that sort of

10 problem does not arise but that's not the system we are working under.

11 And since we have to follow the Rules, and not the system I would prefer,

12 I have to comply with the Rules. Therefore, I would like to know at what

13 stage your discussions have led you. That's why in the next few weeks, I

14 was expecting to meet up with you again in order for us to solve that

15 issue because I believe it's a very, very important issue in a mega trial

16 so let me turn to the specialist, Mr. Mundis.

17 MR. MUNDIS: Thank you, Mr. President. Your Honour, as you can

18 imagine and appreciate, I think, we had after the last Status Conference

19 when you suggested that we get together to discuss this topic, one of the

20 immediate problems, of course, was the availability of Mr. Praljak, who

21 upon being informed that we wanted to have these meetings, wrote back to

22 us and said that he very much would like to participate. Given the

23 current state of affairs, we then determined that the best course of

24 action was simply to wait until immediately prior to today's Status

25 Conference so that Mr. Praljak could attend and represent himself at those

Page 385

1 discussions.

2 I think it's fair to say, and I believe my colleagues across the

3 courtroom will agree with me that our initial meeting on this subject

4 today was very productive. We didn't reach any conclusions nor have we

5 come to any point in these discussions where we can inform Your Honour

6 that we've come to an agreement or a proposal that we could put before

7 you, that there is a -- that there is in effect an agreement between the

8 parties. We are certainly not at that stage, having just had initial

9 discussions, but I do believe, Your Honour, that the meeting was a

10 productive and an open one. I believe it was a very transparent meeting.

11 I believe that all of the various parties, all of the Defence teams, were

12 able to put forward their initial views on this issue and I think the next

13 step would be for the Defence teams to discuss a little bit further

14 amongst themselves, perhaps for the Prosecution team to discuss a little

15 bit more within -- on our side, how to go forward, and we do expect within

16 the next couple of weeks, perhaps some further exchanges written

17 correspondence, solidifying the various positions and perhaps from there

18 maybe being able to take it a little bit further in terms of putting

19 before Your Honour a little -- something that's a little bit more concrete

20 in terms of where we stand and at that point it might very well be

21 productive for Your Honour to come in and take perhaps a little bit more

22 an active role in the process. But again we've only had this initial

23 discussion. I believe everyone would agree it was very productive but we

24 don't certainly after one meeting on this subject we don't have a high

25 degree of overlap in terms of interests or a high degree of agreement.

Page 386

1 But I believe that we'll continue to work in good faith and be able to

2 perhaps hopefully narrow some of the issues so that Your Honour can then

3 play a little bit more of an active role.

4 JUDGE ANTONETTI: [Interpretation] Before I give the floor to

5 Mr. Karnavas, if you would like me to play a more active role, of course,

6 I'm quite prepared. I would even say that I would rush into the job. But

7 still, you have to give me the green light to do so because first of all,

8 you need to have an agreement between the parties as to this procedure.

9 As far as I can see, if you don't reach an agreement between the parties,

10 that's one possibility that must be taken into account. Then

11 mathematically, the solution would be a solution maintaining the rights of

12 the defence. Would you have four hours and each of the Defence counsel

13 may request four hours. Because here, this is not a collective liability.

14 We are talking about individual liability, and strategies may be diverse.

15 Issues may be diverse too, their implications as well. It will depend on

16 the one or the other. Therefore, that's what -- where the problem lies.

17 And I believe that everybody can understand this. So ideally speaking, as

18 far as I can see, if you have five or six lawyers, they should agree and

19 that would be perfect. If they don't, then the Trial Chamber, together

20 with my two or three ad litem judges, will have to discuss the issue as

21 quickly as possible. But then we have to look at mathematical solution.

22 Four hours for the Prosecution, then four hours for each of the Accused,

23 of course, there will be repetitions. So maybe the first one will take

24 four hours, less for the others, but that would be the mathematical

25 solution. But the best solution would be agreement among yourselves.

Page 387

1 MR. MUNDIS: Absolutely, Your Honour, and I think that was the

2 spirit in which these discussion that is we had earlier this afternoon

3 were undertaken. I believe all of the parties put forward their best

4 faith efforts and again it was only an initial meeting and the discussion

5 ranged from whether it should be a time-for-time, Prosecution takes four

6 hours, all of the Defence teams get four hours to split or each of the

7 individual Defence teams gets four hours or some middle ground, if you're

8 working in terms of a mathematical formula or perhaps the other approach

9 would be less focussed on mathematics and more of a focus on efficiency

10 and whether the questions were redundant or repetitive at which point in

11 time the cross-examination might need to come to an end. There are a

12 variety of different ways of looking at the problem and we again have

13 taken that first step to try to explore it amongst ourselves. Partially

14 because it's -- it can be a rather time consuming process and at some

15 point once we've more solid identified our various positions and come to

16 some internal understandings between the Defence teams and again from the

17 Prosecution side, we might be in a much better position to actively seek

18 Your Honour's more active involvement in the process.

19 JUDGE ANTONETTI: [Interpretation] Fine. I think that the

20 experience gained by Mr. Karnavas in the Blagojevic case might be useful.

21 You have the floor, Mr. Karnavas.

22 MR. KARNAVAS: Thank you, Mr. President. First I must say I'm

23 heartened by what I hear and your precision in which you recognise the

24 difficulty we have in that this is not a collective liability instance but

25 everybody has to defend their own client. While I would agree with you

Page 388

1 that perhaps having the judge ask all the questions might be the best

2 approach I would also argue for an investigative judge in the middle but

3 we don't have that.

4 Be that as it may, I think Mr. Mundis was quite accurate in saying

5 that the meeting was held and everyone put forward their position in good

6 spirit. Obviously there is no mathematical approach that we can take even

7 the one I believe that Your Honour suggested, which might be -- seem fair,

8 I think under the realistic circumstances, some witnesses you need more

9 time, other witnesses you need less. One Accused may need to

10 cross-examine, the other don't.

11 I can assure His Honour that you need not be concerned with

12 respect to this particular Defence or even my colleagues, in that we don't

13 intend to take up time for the sake of taking up time. I think the

14 questions have to be relevant. If the Prosecution chooses not to go into

15 an area because they've chosen for instance to limit their direct

16 examination, that should not prevent me from going into an area, assuming

17 that area is relevant to my defence. That's why the mathematics don't

18 work. There will be instances where the best cross may be no

19 cross-examination because maybe the witness hasn't provided anything. I

20 think we all recognise from the Defence standpoint that it is to our best

21 interest to assist the Tribunal in asking questions and taking up time

22 only when it realistically helps our case. So no questions should be

23 posed if it does not advance the theory of a Defence case. But I agree

24 with His Honour that we have to look at the Defence counsel individually.

25 We are going to meet -- the Defence will meet. We will meet with

Page 389

1 the Prosecution. I have proposed and I will propose again to my

2 colleagues that it's to our best interests, the Defence, to meet prior to

3 the examination of a particular witness so we can figure out among

4 ourselves what areas any particular individual would need to ask. That

5 way, if one covers the majority of it, they may not wish to go into other

6 areas. It also helps because the last thing we want to do is make the

7 Prosecution's job much easier by hurting each other which is one of the

8 tactics which is used by the Prosecution in joining all these cases hoping

9 that we will be firing our shots at each other, making their job easier,

10 to meet their burden.

11 Hopefully that won't happen. So I can assure His Honour that at

12 least we will -- among ourselves, organise ourselves, so that before every

13 witness we know what we need to cross-examine. We will hopefully have

14 some sort of a game plan and I can assure you, at least from my part, I do

15 not intend to take up any more time. However, what I do believe? That I

16 need extra time. I will be heard because I believe that there are some

17 issues that we need to cover in great detail. So I hope I've answered

18 some of your concerns, Your Honour.

19 JUDGE ANTONETTI: [Interpretation] Very well. Before I give the

20 floor to the other Defence counsel, let me say something between brackets,

21 as it were. I think it is very important, and I do as you all to listen

22 attentively. As I told you earlier on, for the time being, the

23 Prosecution planning to seek to adduce some 10.000 documents that might be

24 tantamount to 100.000 or 200.000 pages, I don't know. Whatever it may be,

25 when a document is admitted as evidence, that document may be 20 pages

Page 390

1 long. The Prosecution are going to put questions regarding the document

2 to the witness. The Defence will cross-examine the witness on the

3 document in question. And that will be true when we have Defence

4 witnesses. But no, please remember one thing: A document that is

5 admitted as evidence will be looked at, be scrutinised by each and every

6 Judge, and when we issue a judgement, which will be a reasoned judgement,

7 we will rely on certain paragraphs of that one document that may not have

8 been looked into through questions by the Prosecution or by the Defence

9 during cross-examination. In other words, if a document is admitted as

10 evidence in this case, it will be taken into account by the Judges from A

11 to Z. In other words, if you are the cross-examiner, you are supposed to

12 know all of the document. You're supposed to put questions to the witness

13 on the basis of the document.

14 So, please, remember this and keep it in mind: A document, and

15 you know that as well as I do, when there is a witness, things go very

16 fast, very fast indeed, because time goes by, there are a lot of

17 questions, and then there are hundreds of documents, especially so when

18 you have an expert to deal with. So you can imagine the mass of work it

19 represents. You have to know the document. So do not be surprised if, in

20 the judgement, a document is mentioned whilst no question was put to the

21 witness who introduced it on this or that paragraph, because that document

22 is part of the file, just as much as the testimony is. So I just wanted

23 to point this out to you because it is very, very relevant indeed. You

24 have to keep this in mind. Remember how relevant the documents are.

25 So, Mr. Karnavas do you want to answer?

Page 391

1 MR. KARNAVAS: Just one point, Your Honour, because I must say

2 that I'm really, really glad that you brought this point up. I cannot

3 begin to express my gratitude because this is the exact argument that I

4 make when they want to introduce a document or a statement from a previous

5 case. You'll see sometimes a document will refer to other documents and

6 so you have to look at the footnote and then all of a sudden, when I read

7 the final judgement, I'm going to see something that I might have admitted

8 to that was, you know, it's couched in there. And that's the monumental

9 difficulty that the Defence has, and so I'm glad that you bring this up.

10 That's why I really do not appreciate having thought -- having documents

11 brought in or witness statements brought in because a witness statement

12 looks innocuous maybe but they might have referred to an exhibit and then

13 when you look at that exhibit, it refers to another exhibit. There may be

14 something in there that might come directly back to my client, and

15 therefore what I have done I have agreed to accept, and in essence I've

16 nailed -- put one more nail into my client's coffin that says guilty. I

17 don't want that to happen and I'm glad, Your Honour, that you see the

18 difficulties that we face.

19 JUDGE ANTONETTI: [Interpretation] Yes. I venture to make this

20 observation because as a judge, I had the privilege of also being either a

21 Prosecutor or a Defence counsel before I became a judge. But it means

22 that I have an overall view of the issue. So I call your attention on

23 this issue, and what you've just said is absolutely right. You may

24 cross-examine a witness on a given paragraph but when the Judges assess

25 the probative value of a document, they take it all in. So that, the

Page 392

1 Defence counsel, is supposed to know the entire document.

2 The second lawyer, please.

3 MR. KUZMANOVIC: Thank you, Your Honour. Without wasting the

4 Court's time, we have talked I think a loot of the issues that we've

5 already discussed are very important. I would echo the comment of the

6 previous counsel, Mr. Karnavas, and we'll say that we will tried in our

7 first session that lasted probably 45 minutes to work through these issues

8 for the first time. It was productive and I think we are glad and I'm

9 very happy that the Court has seen that if for whatever reason there can't

10 be an agreement, that the Court is willing to allow each individual

11 defendant a certain allotment of time that the Prosecution gets because I

12 think that's very important. I don't think it will come to that under the

13 circumstances but it's nice to know that we have that as a basis to start.

14 Thank you.

15 JUDGE ANTONETTI: [Interpretation] Third lawyer, please.

16 MS. ALABURIC: [Interpretation] Along with what my colleagues have

17 already said and which I fully endorse, just one more sentence. I believe

18 that the Defence will come by a joint proposal and we hope that that

19 proposal will be dovetailed with the OTP and the Prosecution and this

20 Court won't have to make a ruling on that question like that but that they

21 will find our joint proposal acceptable.

22 MR. JONJIC: [Interpretation] Your Honours, my colleagues have said

23 exactly what the Defence of Valentin Coric wanted to say so I'll say no

24 more.

25 MR. IBRISIMOVIC: [Interpretation] Your Honour, I have no further

Page 393

1 comments to make. I mentioned a moment ago that time is of the essence in

2 this trial and that is why I underlined the fact that the list to be drawn

3 up by the Prosecution pursuant to your request and guidelines should --

4 could settle this issue too with respect to cross-examination. It can use

5 it rationally, saving the Court time and all of us others time as well.

6 Thank you.

7 JUDGE ANTONETTI: [Interpretation] Mr. Praljak, please.

8 THE ACCUSED PRALJAK: [Interpretation] I took part in it, yes.

9 What might happen is this: That I am not assigned counsel, which would go

10 against my own wish, of course, because we do believe when they say we

11 believe that I did something and so on but I do hope that I will receive

12 Mr. Kovacic and if so, I will be in detention. This is to be a special

13 situation and, of course, co-counsel Pinter and the Defence will be in

14 good hotels sitting in comfortable armchairs with a glass of wine, I will

15 come from Savica [phoen], and I won't know what they have been discussing

16 and what they decided. So I will examine for my part, as much as I

17 consider necessary, in order to overturn the thesis of the Prosecution.

18 Of course, we must give thought to that, to the fact that that is my

19 proposal, if I'm not given my Defence counsel back, if they are not

20 returned to me. Then my situation and case will be set apart, set aside,

21 and through my lack of legal knowledge -- so that through my lack of legal

22 knowledge I wouldn't do any harm to the Defence cases of the other five

23 Accused. Thank you.

24 JUDGE ANTONETTI: [Interpretation] Thank you. I think this is all

25 very useful information and this might prompt my fellow judges to make a

Page 394

1 decision as to the assignment of a counsel for you.

2 Only one quarter of an hour left so we are going to move into

3 private session.

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25 [Open session]

Page 398

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

2 JUDGE ANTONETTI: [Interpretation] Admissibility of evidence in a

3 previous order as you will realise I took great care to make a distinction

4 between the admissibility and the probative value of evidence. The fact

5 that a document is admitted as evidence does not give it automatically

6 probative value which is determined by Judges after examination-in-chief

7 and cross-examination.

8 And within the framework of the cross-examination, the Defence can

9 very easily argue that the document has no probative value and would seek

10 to reject the document as evidence.

11 When you deal with only 100 or 200 documents, this issue can be

12 settled during trial. But here, we have close to 10.000 documents, in

13 spite of the fact that the Prosecution did not meet all my requests, they

14 made sure to number documents from 1 to 9.400, indicating which of the

15 documents or starting from the oldest in time to the most recent and this

16 time division gives some clarity in and of itself. In the next few days

17 or -- not months, but weeks to come, now we are not talking about months

18 anymore, in the weeks to come, both parties will have to look into this

19 issue. I personally -- I would be in favour of admitting documents from 1

20 to 9.500 with an exhibit number, P1, 2, and 3, and so on, and when we have

21 the Defence case, with all their documents, there may be 30.000 of them.

22 I don't know, but experience tells me that generally the Defence have more

23 documents than the Prosecution, so if you have 30.000 documents, again,

24 you'll have exhibit numbers. But the fact that a document has a number

25 does not give it sort of top value, probative value, that is.

Page 399

1 So all this is to avoid discussions when a witness comes to

2 testify, where you would have six Defence lawyers rushing to their feet to

3 say that the document is not relevant. It may not be a relevant document

4 when the Defence says so but that document may be relevant later on, even

5 for the Defence, in a favourable light for the Defence. The fact that you

6 say during trial that is document is not relevant is not useful because

7 you realise how or whether a document has probative value only at the end

8 of the trial. So think it over, because it is absolutely a very essential

9 problem. But this goes back to what I said earlier on. When you have

10 given an exhibit number to a document, that means that the Defence is

11 aware of the entirety of the document and it is up to the Defence to

12 destroy the document by cross-examining on it. And the other way around.

13 When we come to the Defence case, the Prosecution will -- should make sure

14 they study each and every Defence document. So I'm not making a decision

15 now, of course, but think it over.

16 There were other items on the agenda. However, unfortunately, I

17 have no time to deal with them. I wanted to talk about the way documents

18 are submitted to a witness in the courtroom. As you know we've got the

19 e-court system, but as far as I'm concerned, there is only one system I

20 know. It's this: The folder, the binder system. I'm showing it to you.

21 So both parties, faced with a witness, say, "Look, these are the

22 documents, I'm going to submit them to the witness." So here again, think

23 it over. The e-court system is some technological progress. Nevertheless

24 you must be able to feel, taste a document. You must be able to compare

25 it with other documents, and whilst I'm presiding over proceedings, I

Page 400

1 basically am sitting in a 747 Boeing, you know? I can't sort of press all

2 buttons, you know, to compare documents. I can't do that. However,

3 whilst looking at the screen, while listening to you carefully, I can sort

4 of leaf through a binder. I believe that what I say for myself will apply

5 to my future colleagues on the Bench. So here again you have to think

6 about it. The e-court system was very expensive. It can be useful. But

7 when it comes to documents you must be able to take them in your hands.

8 You have to look at the stamp, the signature. Sometimes you even need to

9 see the original. If, of course, provided the Prosecution or the Defence

10 have the documents.

11 So this was just to outline a few issues, as food for thought for

12 the next few weeks.

13 We are going to move back into private session.

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17 --- Whereupon the Status Conference adjourned at

18 5.06 p.m.