Tribunal Criminal Tribunal for the Former Yugoslavia

Page 613

1 Wednesday, 12 April 2006

2 [Status Conference]

3 [Open session]

4 [The accused not present in court]

5 --- Upon commencing at 9.04 a.m.

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

7 the case, please.

8 THE REGISTRAR: The Case Number IT-04-74-PT, the Prosecutor versus

9 Prlic et al.

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

11 I shall ask the appearances for the Prosecution, please.

12 MR. SCOTT: Good morning, Your Honour, Mr. President. Ken Scott

13 for the Prosecution.

14 MR. MUNDIS: Daryl Mundis for the Prosecution.

15 MS. D'AOUST: [Interpretation] Josee D'Aoust representing the

16 Office of the Prosecution.

17 JUDGE ANTONETTI: [Interpretation] I will now ask the Defence

18 counsel to introduce themselves, please.

19 MS. TOMANOVIC: Suzana Tomanovic, co-counsel for Dr. Prlic.

20 MR. KARNAVAS: Good morning, Your Honour. Michael Karnavas for

21 Dr. Prlic.

22 MS. NOZICA: [Interpretation] Good morning, Your Honour. Senka

23 Nozica for Bruno Stojic.

24 MS. PINTER: [Interpretation] Good morning, Your Honour. Nika

25 Pinter, co-counsel for General Praljak.

Page 614

1 MR. KOVACIC: Good morning, Your Honour. Bozidar Kovacic, lead

2 counsel for Mr. Praljak. Thank you.

3 MS. ALABURIC: [Interpretation] Good morning, Your Honour. Vesna

4 Alaburic for Milivoj Petkovic.

5 MR. JONJIC: [Interpretation] Good morning, Your Honour. Attorney

6 Tomislav Jonjic as counsel for Valentin Coric. Next to me is legal

7 counsellor Krystyna Grinberg.

8 MR. IBRISIMOVIC: [Interpretation] Good morning, Your Honour. For

9 the Defence of Mr. Pusic today, in the courtroom for the first time, my

10 learned colleague Mr. Roger Sahota, co-counsel in this case; and the legal

11 assistant of Fahrudin Ibrisimovic. Thank you.

12 JUDGE ANTONETTI: [Interpretation] I would like to welcome all the

13 parties present in this courtroom. I should like to greet the

14 representatives of the OTP, all Defence counsel, as well as all the staff

15 that is giving us a helping hand in this hearing.

16 I recently sent you an agenda which I'm about to amend slightly

17 because I would like to address a few additional items. Before addressing

18 the agenda, per se, I would like to mention the fact that the interpreting

19 department has let me know that, due to a number of technical

20 difficulties, you have been asked to speak close to the microphone so that

21 we can hear you well and interpret you well. In addition, we have been

22 asked to avoid making too much noise when using glasses or pens or any

23 other objects. I hope that the technical equipment will meet our

24 requirements.

25 Now, as far as technical difficulties are concerned, between now

Page 615

1 and the commencement of trial, I shall rule on this in writing because I

2 would like to take a decision on the recording of these proceedings and

3 the fact that these proceedings are being filmed. The camera should only

4 focus on the person who is speaking. And when I am speaking, the camera

5 is focussed on me. When the OTP is speaking, the camera is focussed on

6 the OTP. When Defence counsel is speaking, the camera should be focussed

7 on the Defence counsel who is standing. And when it is a witness, the

8 camera should focus on the witness and the witness only. The camera

9 should only focus on the speaker to avoid any different interpretation of

10 the proceedings. So this shall be specified in writing at a later stage.

11 Before addressing the agenda for today, I will take two -- or make

12 two oral decisions. A, given the Statute and Article 67 of the Rules of

13 Procedure and Evidence, on a motion dated on the 27th of April, 2005, the

14 Prosecution had filed a motion with a view to asking the Defence to notify

15 them of the defence of alibi. According to Rule 60(A)(i) of the Rules, it

16 is mentioned that within a time limit set by the Trial Chamber or a

17 Pre-Trial Judge, the Defence notifies the Chamber of its intent to present

18 a defence of alibi or special defence. This rule comes under the heading

19 of Additional Disclosure, specifies that it is for the Trial Chamber or

20 the Pre-Trial Judge -- the Defence is to inform the Pre-Trial Judge or the

21 Chamber of any special defence. In that case, the Prosecution motion does

22 not meet the requirements of Rule 67. This motion is thus dismissed.

23 In addition, the Trial Chamber feels that it is not appropriate to

24 ask the Defence whether they intend offering a defence of alibi or special

25 defence, given that at any point in time Defence counsel may file a

Page 616

1 request. So in any event, there is no need for the Defence to notify at

2 this stage whether they intend to present a defence of alibi or special

3 defence. Defence counsel will have enough time, and when it feels it is

4 timely to do so, will have enough time to seize the Chamber of this

5 request.

6 Second oral decision: Given the Statute and the Rules of

7 Procedure and Evidence and 65 ter and Rule 64 -- 54, given that the

8 accused have been granted provisional release by Trial Chamber I. Given

9 that since a provisional release they have not appeared before the

10 Pre-Trial Judge with the exception of Praljak, the accused Praljak. Given

11 that they have been granted provisional release, the Pre-Trial Judge has

12 not been able to ask them whether their state of health was good, given

13 that two recent events have occurred, i.e., the death of an accused and a

14 convicted person, means that the Judges have to pay a very special

15 attention to the state of health of the accused. Otherwise, a trial could

16 come to a halt because of the health conditions of one or other of the

17 accused. Under those conditions, we shall ask the Registry to provide the

18 Chamber with a medical certificate for each of the accused. This should

19 be presented confidentially. This medical certificate should state

20 whether the accused suffers from any mental or physical illness. The

21 Trial Chamber considers that this -- these six medical certificates should

22 be submitted to the Chamber confidentially by the 6th of May, 2006, at the

23 latest. This oral decision is taken notwithstanding the fact that Defence

24 counsel are able to seize the Chamber on the matter if they so wish. This

25 is something I mentioned at the last Status Conference, if they wish to

Page 617

1 draw the attention of the Chamber to one or other medical condition of the

2 accused.

3 I shall now address the agenda, per se. I would like to --

4 something which you certainly know about by virtue of a decision rendered

5 by the President of this Tribunal, the Bench has been appointed. I shall

6 preside over this case and I will be assisted by Arpad Prandler. I shall

7 spell his name out for the transcript, P-r-a-n-d-l-e-r. And Judge Stefan

8 Trechsel. I shall also spell out his name: T-r-e-c-h-s-e-l. As of the

9 25th or 26th of April onwards, we will also have a Reserve Judge who will

10 be sitting and appointed by the Secretary-General of the United Nations.

11 You will be advised of the appointment of the Reserve Judge very shortly.

12 As you know, according to Rule 15 ter of the Rules of Procedure and

13 Evidence, a Reserve Judge will attend the entire hearing but will not take

14 part in the deliberations and will not vote on a finding of guilt. This

15 Reserve Judge will only step in if one of the three Judges is unable to

16 attend, either because one of the Judges falls ill or dies or for any

17 other reason.

18 I would also like to state that the President of this Tribunal can

19 also designate a Reserve Judge or Substitute Judge, but this requires the

20 approval of the accused when the said Substitute Judge needs to replace

21 one of the Judges of the Bench. In the event that one of the three Judges

22 that is part of the Bench might have to step down, the Reserve Judge would

23 then replace him or her.

24 As far as the schedule is concerned, I have been in contact with

25 the Registry a number of times last week in order to be able to advise you

Page 618

1 today the schedule of this case up until the month of July. We have

2 decided jointly with the Registry, as well as all the people concerned in

3 CLSS department, we have decided to hold the case and sit in this

4 courtroom until the month of July. We shall sit in Courtroom number

5 III --

6 THE INTERPRETER: Interpreter's correction.

7 JUDGE ANTONETTI: [Interpretation] -- on Mondays from quarter past

8 2.00 until 7.00; on Tuesdays we shall start at 9.00 sharp and sit until

9 4.00 p.m. In this time slot we will have a first session from 9.00 until

10 10.30, then have a 20-minute break. We shall then resume at 10.50 until

11 12.20. We will then have a 20- to 30-minute break to enable the accused

12 to have a bite of food. After this 20- to 30-minute break -- it will

13 probably tend to be a 30-minute rather than a 20-minute break -- the

14 Judges will have a glass of water -- the hearing will resume again at half

15 past 2.00. We will then resume at 12.40 until ten minutes past 2.00 and

16 then resume again at half past 2.00 until 4.00.

17 On Wednesdays the timetable will be the same and we will finish at

18 4.00 p.m. on Wenesdays.

19 We shall resume again on Thursday at 9.00 and sit until a quarter

20 past 2.00 p.m.

21 With this timetable we will be able to do away with a hearing of

22 -- that is usually -- that we usually have on the Friday morning.

23 Therefore, the Defence counsel will have time to talk to the -- their

24 clients on Fridays and Monday morning to address, of course, all issues

25 pertaining to their Defence. The Prosecution will have time to prepare

Page 619

1 its examination-in-chief, which will start on Monday morning. And Judges

2 will be able to meet and deliberate. Therefore, the schedule has been set

3 until -- between now and the month of July. Depending on availability of

4 courtrooms, there will be five trials ongoing till the month of July, but

5 there might be a sixth trial as of the month of August onwards, which

6 means that this Courtroom number III will have to be shared between -- we

7 will have to share our time with another Chamber.

8 We have a few months' work ahead, which means that the OTP can

9 plan or schedule its witnesses. This is something I mentioned last time,

10 but I will have to address this issue with the two other Judges. We

11 should, normally speaking, resume the hearing on the 14th of August or the

12 21st of August, but we will keep you informed in due course.

13 As far as the commencement of trial is concerned and the week in

14 which the trial will start, as you know, the OTP will start on the

15 Wednesday, the 26th of April, will present its case. Normally speaking,

16 Mr. Praljak will make his preliminary opening statement the next day.

17 This means that the Prosecution will present its case on the Wednesday,

18 and Mr. Praljak will have the same amount of time to make his opening

19 statement. I don't know what the Prosecution intends to do; I don't know

20 whether the Prosecution needs three hours or four hours. Perhaps at a

21 later stage today the OTP could let us know. So much for the schedule.

22 On our agenda for today I would also like to address the length of

23 time required by the Prosecution to present its case. As I mentioned last

24 time, we have a problem insofar as the Security Council Resolution states

25 that the Tribunal must complete its Trial Chamber proceedings in -- by

Page 620

1 2008. I issued an order which you -- has been communicated to you, and by

2 virtue of this order I have asked Madam Carla del Ponte to come here and

3 explain her view of the situation. Madam Carla del Ponte let me know that

4 she felt -- she appreciated the fact that she had been invited to attend

5 this hearing, but she was unable to come today because, as the ICJ is

6 celebrating its 60th anniversary today, and the ceremony was this morning.

7 And this afternoon she is meeting the Secretary-General of the United

8 Nations today, so therefore she is not able to attend.

9 Mr. Scott and Mr. Mundis can perhaps confirm that she will attend

10 the pre-trial conference. Whatever the case may be, the Prosecutor of

11 this Tribunal can attend any of the Tribunal's hearings and the Judges

12 always welcome the presence of Madam Carla del Ponte at these hearings.

13 I don't know where the OTP stands, but at -- perhaps Mr. Scott can

14 let us know and perhaps he can tell us what -- how they're going to

15 proceed. As I mentioned last time, if this trial is to be completed

16 within two years, the OTP will only have one year to present its evidence.

17 I have discussed this with my two other colleagues who have just joined

18 me, and the feeling we have and the feeling the Bench has is that there

19 are two possibilities: Either the Judges intervene at the beginning of

20 the trial to impress on the Prosecution the fact that the indictment needs

21 to be narrowed down, or the Prosecution spontaneously tells us how they

22 intend to present their case and how they can cut down on the necessary

23 time.

24 Before giving the floor to both parties, I would like to remind

25 all and everyone of the following: As I have mentioned before, in this

Page 621

1 indictment there's three important parts. A relates to those crimes that

2 were committed in a number of municipalities; B --

3 THE INTERPRETER: Interpreter's correction: No B.

4 JUDGE ANTONETTI: [Interpretation] Two counsel have stipulated that

5 the time at which those crimes have been committed go back a long time

6 ago. The question is whether these -- who has committed these crimes, and

7 this pertains to the chain of responsibility, and this is not challenged.

8 I think if this is addressed in practical terms we shall be able to gain

9 time.

10 B, joint criminal enterprise, which to my mind needs to be proven

11 by the Prosecution and its evidence.

12 And C, individual responsibility of each accused pursuant to

13 Article 7(1) 7(3). There again, this needs to be proven by the evidence

14 of the Prosecution.

15 Subject to these three large areas of the indictment, if the

16 Judges come to realise that the trial is not moving forward, they will

17 certainly react and intervene. There is already a precedent in this

18 Tribunal. In the Milosevic case the said accused was charged with three

19 indictments. At one point in time it had been considered to sever the

20 indictments, to focus on one of the indictments. At the time, this did

21 not meet the approval of the OTP and did not meet the approval of the

22 accused either, but this would have been a tentative solution which would

23 have enabled the trial to move ahead faster. According to the Statute,

24 the accused is entitled to not an expedited but a quick trial; in other

25 words, to avoid any unnecessary loss of time.

Page 622

1 So I shall now turn to Mr. Scott and Mr. Mundis so that they can

2 let me know whether any progress has been made or are they waiting for

3 Madam Carla del Ponte to come with a turn-key solution and which would

4 enable us to complete this trial within the two-year deadline.

5 MR. SCOTT: May it please the Court. Your Honour, I'll first

6 confirm what you've said about Madam del Ponte's attendance today. For

7 the reasons you've indicated, she is not available and sends her

8 apologies. She does anticipate attending the hearing on the 24th of

9 April.

10 We are prepared today, Your Honour, to propose and present to the

11 Chamber and to Your Honour a plan for presenting this case as efficiently

12 as possible. And we are prepared -- to assist everyone involved, we have

13 prepared a presentation that hopefully will assist.

14 May I inquire if everyone can see their video monitors at this

15 point?

16 Your Honour, both in the previous hearing and in the hearing

17 today, has made a number of statements about the completion strategy and

18 that the cases -- the trials of the cases must be completed by the end of

19 2008. I thought it would be helpful to perhaps look at a few of the

20 statements made by both the former President, President Meron, His Honour

21 Judge Meron, and also a few statements by the current President.

22 We appear to have a technical problem and I will wait, Your

23 Honour.

24 Might I inquire, Your Honour, if everyone now is able to follow

25 the monitor?

Page 623

1 Your Honour, as I was saying, a few points on the issue of the

2 completion strategy. As President Meron stated in a -- in his

3 middle-of-2005 report to the Security Council: "Any estimates are

4 necessarily tentative, since they can only be based on assumptions subject

5 to unpredictable factors. I could indicate, for instance, that if all

6 possible Rule 11 bis motions are granted, if all possible motions for

7 joinder are granted, if no new fugitives arrive, and if no guilty pleas

8 are entered, the Tribunal could complete its current caseload sometime in

9 2009. But all of these ifs indicate that the estimates are based on

10 assumptions that evolving reality will modify."

11 Further, in the same statement and report, President Meron said:

12 "Knowing what we know now, the most I can indicate is that trials will

13 necessarily have to be conducted in 2009 and will most likely continue

14 until the end of that year," that is 2009. "When the next six-month

15 report is presented, the President should be able to provide an assessment

16 based on more factual predictions."

17 And indeed six months later, in President Pocar's report to the

18 Security Council in December of 2005, President Pocar said: "In May 2005,

19 my predecessor stated that it was definitely no longer feasible to

20 envisage an end of all trial activity at the Tribunal by the end of 2008.

21 This was due to the large number of indictees and fugitives who had

22 arrived at the Tribunal since the last report, as well as the filing and

23 confirmation of seven new or amended indictments by the Prosecution

24 involving 13 accused. He predicted that trials will have to run into

25 2009."

Page 624

1 President Pocar also stated: "In conclusion, I can predict that

2 if the remaining fugitives are apprehended soon, if the cases of multiple

3 accused -" such as this one - "run smoothly, and if the remaining Rule 11

4 bis motions are all referred without any cases being deferred back to the

5 Tribunal, the possibility of trials finishing in 2009 remains possible."

6 That is, the possibility remains possible. It appears, Your

7 Honour, that both the former and current president of the Tribunal have

8 indicated that these trials will last at least until the end of 2009 and

9 by all indications may well go beyond that.

10 Now, in this context -- excuse me. In this context, the issue of

11 mega-trials, such as this one, has been presented to the international

12 community and to the media as a move toward greater efficiency. That the

13 Chambers of the trials at the ICTY can save time, act more efficiently, by

14 trying a multiple accused cases at one time instead of having a series of

15 separate of trials. As President Pocar said just the other day, on the

16 7th of April in the presentation to the diplomatic community: "There are

17 at present three trials of multiple accused in the pre-trial stage

18 involving a total of 20 accused, consolidating 14 cases. The first trial

19 -" this one - "will commence on the 26th of April, 2006, and the other

20 two trials are scheduled to begin in July 2006."

21 Now, having presented these trials as, if you will, an

22 institutional virtue, that is as a way of moving forward with greater

23 efficiency, it certainly can nonetheless cannot have been reasonably

24 contemplated that these trials would be short and simple. They are, by

25 any measure, large, difficult, and complex cases.

Page 625

1 Now, in considering the time limits that have been discussed both

2 in the previous hearing and today, I think it's important that we engage

3 in a bit of a reality check. The international community, the media, the

4 public, and the victims may think that a year is something approaching 365

5 days, involving 52 weeks, five-day weeks, and seven or eight-hour days.

6 That is when people talk about the case "lasting a year." However, the

7 proposed ICTY year, at least as discussed until recently, and I have not

8 calculated these numbers based on what Your Honour has said just a few

9 minutes ago, but has generally been, and in the previous hearing was

10 discussed, along the following lines, and that is a 40-week year, four

11 days a week, and about three hours of actual witness time a day.

12 Therefore, a proposed ICTY year, far different than a calendar year, the

13 actual time for in-court testimony in a year, on these calculations, is

14 480 hours.

15 Therefore, if it is said that the Prosecution case, including

16 cross-examination at least equal in time to the direct examination,

17 Judges' questions, and procedural matters, must be completed in "one

18 year," this would mean that the Prosecution would get less - I emphasise

19 the word "less" - than 240 hours to conduct its direct examinations.

20 Now, I can refer back to a benchmark and perhaps we can all refer

21 to our own benchmarks from our own national systems, but referring to my

22 national benchmark, the United States Federal Court practice, a week there

23 is five-day week, seven hours of testimony per day. Based on that

24 calculation, this would require in this court the Prosecution's direct

25 examinations to be completed not in anything approaching a "calendar

Page 626

1 year," but in fact 34 working days.

2 Your Honour, I don't believe that any fair-minded and

3 intellectually honest person could expect a case of this magnitude, of

4 this complexity, to be presented in 34 days.

5 Prosecution estimates that we made in our Rule 65 ter filings

6 filed in January, let me just say that some fairly inaccurate and

7 sensational things have been said about the Prosecution's proposed case.

8 The Prosecution never proposed - never proposed - to call 399 viva voce

9 witnesses. It was always contemplated that a large number of witnesses,

10 at least - and in fact probably much more - but at least 125 would not be

11 viva voce witnesses. Further, the number of exhibits need not be any

12 measure of the time required for trial if the handling and admission of

13 exhibits are dealt with efficiently.

14 Now, in this context, as I've reported to Your Honour before, the

15 Prosecution has consistently made every effort to move this case forward

16 efficiently in the past two years of pre-trial procedure. For example, we

17 filed a motion for adjudicated facts in April of 2005. We have made

18 extensive efforts to narrow the disputed issues by proposing extensive

19 proposed agreed facts. We've filed numerous motions concerning 92 bis

20 witnesses, including the use of transcripts from other ICTY cases, in an

21 effort to gain efficiencies and save time. We've also filed a number of

22 motions for the pre-trial admission of exhibits. The point and the record

23 should be clear: This Prosecution team has made every effort to move this

24 case as efficiently as possible.

25 Before continuing onward, it's perhaps helpful to just be reminded

Page 627

1 of the basic point that the Prosecutor -- it is the Prosecutor who is

2 responsible for prosecuting her cases. And the Prosecutor shall act

3 independently as a separate organ of the International Tribunal, and as

4 Your Honour knows, the Prosecutor reports to the Security Council. It is

5 the Prosecutor who bears the responsibility for presenting the cases at

6 trial; at least her case, the Prosecution case.

7 Of course, Your Honour, the -- not only is the Defence entitled to

8 a fair trial, but the Prosecution, the international community, and

9 victims are entitled to a fair trial. Quoting the Appeals Chamber in the

10 Aleksovski case: "The application of the concept of a fair trial in

11 favour of both parties is understandable because the Prosecution acts on

12 behalf of and in the interests of the community, including the interests

13 of the victims of the offence charged (in cases before the Tribunal, the

14 Prosecutor acts on behalf of the international community). This principle

15 of equality does not affect the fundamental protections given by the

16 general law or Statute to the accused, and the trial proceeds against the

17 background of these fundamental protections. Seen in this way, it is

18 difficult to see how a trial could ever be considered to be fair where the

19 accused is favoured at the expense of the Prosecution beyond a strict

20 compliance with these fundamental protections."

21 As stated in the Appeals Chamber ruling in the Oric case on the

22 20th of July, 2005: "At a minimum, 'equality of arms obligates a judicial

23 body to ensure that neither party -'" neither party - "'is put at a

24 disadvantage when presenting its case,' certainly in terms of procedural

25 equity. This is not to say, however, that an accused is necessarily

Page 628

1 entitled to precisely the same amount of time or the same number of

2 witnesses as the Prosecution. The Prosecution has the burden of telling

3 an entire story, of putting together a coherent narrative, and proving

4 every necessary element of the crimes charged beyond a reasonable doubt.

5 Defence strategy, by contrast, often focuses on poking specifically

6 targeted holes in the Prosecution's case, an endeavour which may require

7 less time and fewer witnesses."

8 Now, Your Honour, with those observations, I think some important

9 observations, in mind, Prosecution has prepared and will now present a

10 ten-point plan for presenting the Prosecution's case as efficiently as

11 possible.

12 First, Your Honour, we return to our fundamental point and we ask

13 the Chamber again to enforce in a genuine and meaningful way the clear

14 requirements of Rule 65 ter (F) and Rule 67(A)(i).

15 As Your Honour knows, Rule 65 ter (F) requires the Defence to set

16 out in writing: "In general terms, the nature of the accused's Defence;

17 (ii) the matters with which the accused takes issue in the Prosecutor's

18 pre-trial brief; and (iii) in the case of each such matter, the reason why

19 the accused takes issue with it."

20 Likewise, Rule 67(A)(i) provides: "The Defence shall notify the

21 Prosecutor of its intent to offer:

22 "(a) the Defence of alibi;

23 "(b) any --" not just lack of mental responsibility -- but "any

24 special defence, including that of diminished or lack of mental

25 responsibility ..."

Page 629

1 Now, Your Honour has indicated in an oral ruling this morning,

2 which the Prosecution certainly takes on board, that it really makes the

3 point, Your Honour, that the Prosecution is being confronted with the

4 necessity of limiting its case, of narrowing its proof without having any

5 sufficient information about what the real bona fide issues in this case

6 are, without knowing what the defences really are, either under Rule 65

7 ter (F) or under Rule 67.

8 As I just said, the Prosecution is being asked to limit and narrow

9 its case without requiring any meaningful engagement by the Defence in

10 identifying the bona fide disputed issues for trial, meaning that under

11 the current circumstances, the Prosecution is required, under potentially

12 very strict time limits, to prove every fact and element whether it is

13 reasonably disputed in good faith or not. What more can any Defence team

14 want than for the Prosecution to consume its limited trial time proving

15 matters not reasonably disputed?

16 Point number 2. The Prosecution can be accountable only for its

17 own time. Should the Chamber decide to impose any time limits on the

18 Prosecution, those time limits can surely only apply and only relate to

19 those functions and uses of time which the Prosecution itself can

20 reasonably control. The Prosecution cannot be responsible for the time

21 taken by the Defence or, with all respect, the time taken by the Court.

22 The time taken by the Defence in cross-examination, for example, might be

23 two or three times as long as the Prosecution in direct examination, and

24 that time certainly can't be charged or marked against the Prosecution's

25 time.

Page 630

1 In reference to the two choices that Your Honour presented a few

2 minutes ago, that is, whether the Judges intervene early and on their own

3 -- on the Judges' own initiative narrow the Prosecution case, to narrow

4 the indictment, or to give the Prosecution what might be considered a set

5 amount of time and allow the Prosecution to use its discretion, its

6 judgement, as is her responsibility under the Statute, it is her

7 responsibility to prosecute, and then we would have to use -- present our

8 case as well -- as best we can under the time constraints given. And I

9 can tell the Chamber and Your Honour that it is certainly the second

10 option that would be our position.

11 Number 3, the third point of our plan calls for the robust

12 application of adjudicated facts. The Prosecution will make further

13 submissions concerning adjudicated facts, including the relation to the

14 existence of an international armed conflict. If the Security Council and

15 the international community want an example of where the ICTY is not

16 working efficiently, they need look no further than the issue of Croatia's

17 involvement in an international armed conflict in Bosnia and Herzegovina

18 during the period 1992 to 1994.

19 ICTY Trial Chambers and Appeals Chambers have repeatedly

20 adjudicated and found the existence of an international armed conflict in

21 Bosnia and Herzegovina involving Croatia. The Kordic Appeals Chamber

22 alone affirmed the Trial Chamber's finding on the existence of such a

23 conflict, stating: "The Appeals Chamber notes that the Trial Chamber

24 reasonably came to the conclusion that the conflict between the HVO and

25 the ABiH was international, due to Croatia's overall control over the HVO.

Page 631

1 On the basis of --"


3 [Interpretation] Yes, I stop you now. Let the Prosecution finish,

4 and then I will give you the floor if you want to challenge everything,

5 namely, the decision which was rendered in the Kordic/Cerkez case. So,

6 Mr. Karnavas, you may sit down and you will have the floor later.

7 MR. SCOTT: "On the basis of extensive litigation and evidence, no

8 fewer than 14 ICTY Judges (in both the Trial and Appeals Chambers) have

9 unanimously found, without a single exception or dissent, the existence of

10 a relevant international armed conflict ... If the ICTY jurisprudence

11 requires the Prosecution to use its limited trial time --" under serious

12 time constraints that this Chamber may impose, if we're required to prove

13 this matter a fourth or fifth time in this Tribunal's history, then with

14 all and the greatest respect, the jurisprudence is wrong.

15 Point number 4, extensive use of Rule 92 bis evidence. As the

16 Prosecution has previously indicated on several occasions, it will attempt

17 to make extensive use of Rule 92 bis evidence and will take the position

18 that little or no cross-examination will often be warranted. If the

19 Chamber allows it - and of course it will be up to the Chamber - if the

20 Chamber allows it, a very substantial part of the Prosecution crime-base

21 evidence will be presented by Rule 92 bis written statements.

22 Point number 5, substantial use of Rule 89(F) evidence. The

23 Prosecution will also attempt to make extensive use of Rule 89(F) in terms

24 of presenting the direct examination of a significant number of

25 Prosecution witnesses by written statement. In connection with the

Page 632

1 admission of the witness's written evidence, the Prosecution may

2 supplement or give focus to particular evidence by viva voce questions and

3 answers. In some instances, however, the Prosecution may ask very few

4 viva voce questions of such witnesses. The witness will then be available

5 for cross-examination viva voce within reasonable limits.

6 By this is meant the practice that has come into play or been used

7 at the Tribunal, Your Honour, where a witness is called live to the

8 witness stand; the witness is here in The Hague and in the courtroom, and

9 in -- as part of direct examination, a written presentation of the prior

10 statements are given to the witness, the witness affirms those statements

11 as true, affirms that that statement would be his or her testimony, and

12 then some -- a few questions, or maybe even no questions beyond that,

13 would be asked on direct examination and the witness will be provided and

14 made available to the Defence for cross-examination, and of course also

15 for the Judges' questions.

16 Point number 6, exhibits will be handled efficiently. As stated

17 earlier, the number of exhibits need not have any substantial impact on

18 the time needed to try the case, provided that the tendering and admission

19 of such exhibits is handled efficiently. As we have already indicated and

20 as there has been discussion in previous Status Conferences and as the

21 Chamber -- as Your Honour has appeared to, in fact, direct and to approve,

22 the Prosecution will offer the vast majority of its documentary evidence

23 by tendering a particular document collection, whether it's the ECMM

24 documents or whether it's the Spanish Battalion documents or some other

25 collection of documents early in the trial through a single witness, with

Page 633

1 the understanding that additional foundational or documentary witnesses

2 will not be required.

3 Point number 7, dossiers will be used, or we propose that they

4 will be used, for much crime-base evidence. The Prosecution proposes the

5 use of crime-base dossiers which will compile the evidentiary material for

6 a particular crime base, municipality, or camp. Each dossier will include

7 a written overview of the crime-base evidence from the indictment and the

8 pre-trial brief and will contain the witness statements and documentary

9 and other evidence relevant to the particular crime base.

10 Pursuant to Rule 65 ter (F), the Prosecutor will yet again ask the

11 Court, based on the dossiers, to require the Defence to identify the

12 specific matters in the dossier which are disputed and to state, as the

13 Rule requires, "the reason why the accused takes issue with it." Based on

14 that, the in-court evidence that the Prosecution actually needs to present

15 can focus on the actual bona fide disputed issues.

16 Now, on this point, Your Honour, we have brought with us today

17 five binders as an example for what would be the Gornji Vakuf dossier, to

18 be provided to Your Honour in just one moment. Perhaps the usher could

19 assist.

20 If the Chamber has -- and I will explain it at length orally -- I

21 will explain it and what it will be, that the binder, the first binder

22 would include the table of contents, including the excerpts from the

23 pre-trial brief and the indictment, and also a list then of the proposed

24 viva voce witnesses and a list of the 92 bis witnesses and a list of the

25 relevant exhibits.

Page 634

1 We would propose in the future, Your Honours, as to the Defence,

2 that we would present these in an electronic format; that is, if you might

3 call it an electronic dossier beyond the table of contents so that the

4 dossier -- the items in the dossier would be placed, for example, on a CD

5 and could then be accessed and reviewed by the Defence as part of a single

6 CD or DVD collection.

7 MR. KARNAVAS: If I may interject, Your Honour. I hate to -- I

8 don't wish to interrupt, but this would amount to be - and I say this with

9 all due respect - what I would consider sort of an ex parte conversation

10 between the Prosecution and the Judge. We don't have these binders. We

11 weren't provided with this. We don't have any way of checking. I assume

12 that they're going to, at some point, give it to us. But needless to say,

13 if they're going to be making this dog and pony show, as we would say back

14 in the States, they should at least give the Defence the opportunity --

15 the ability to look at this evidence in advance or even presently, not

16 just for His Honour. But I do appreciate that the fact that they now want

17 to introduce this new concept called a dossier which does not exist in

18 this particular jurisdiction, but needless to say it is unfair to the

19 Defence for you to have it and for us not to have it, Your Honour.

20 JUDGE ANTONETTI: [Interpretation] Yes, please.

21 MR. JONJIC: [Interpretation] [French on English channel].

22 [In English] So there are new rules -- in this courtroom you

23 cannot move.

24 So I of course join my dear colleague and hat those are really the

25 arguments. I would like to add just two sentences. If I understand

Page 635

1 correctly, we are -- The Defence is a party in these proceedings, an equal

2 party as the Prosecutor is. So if we would have been supplied by this

3 material, at least this morning which would be probably very impolite, but

4 a day or so ago so we can participate in this discussion on equal terms, I

5 would appreciate that. I think that this is just one demonstration how

6 actually the Prosecution is contributing to the fast proceedings, by

7 creating problems in the middle of another discussion without notifying

8 the other party what's going on. Perhaps in some circumstances we might

9 have been cooperative, we might have contributed to something -- some

10 elements to speed up proceedings. We can't. No way. This is the first

11 time we are seeing some ideas here on the screen, obviously prepared in

12 writing, still not delivered to us. Thank you, Your Honour.

13 JUDGE ANTONETTI: [Interpretation] You will have the floor in a

14 minute, Mr. Scott, but four minutes ago I received these dossiers, the

15 binders, and I'm going to ask our court deputy to present these binders to

16 the Defence counsel so that they have no objection. There was a fait

17 accompli because they are going to receive these here and now. The

18 Defence counsel will have the opportunity of going through it, just as

19 I've done. You are true professionals, all of you, just as I am, so that

20 you can just sort of see immediately what they are about.

21 Very well, Mr. Scott, you have the floor. Continue, please,

22 please proceed.

23 MR. SCOTT: One moment, Your Honour, we have -- we're trying to

24 get back to where we were, apparently.

25 All right, Your Honour, let me respond. The only -- the only

Page 636

1 matter this morning was to present to the Chamber and to Defence counsel

2 the concept. Certainly we are not presenting this evidence for

3 substantive consideration at this moment. Of course not. The Chamber --

4 if we go down this road, so to speak, and if the Chamber wishes to proceed

5 in some such fashion, they will indeed be prepared and provided in

6 advance. Of course. The only point f bringing them and providing them in

7 the courtroom this morning was as one example of the concept of what might

8 be done, and I described orally the contents -- the table of contents of

9 what would be included in the dossiers. I think that's very clear. I'm

10 very happy and I appreciate the fact that Your Honour has immediately made

11 them available to the Defence, and during any breaks or recess this

12 morning, if they would like to review the material, it is certainly

13 available to them. We are not going to get into the substance of the

14 information; it is simply to give an example of the concept or format

15 which would be followed, which I think anyone looking at the first binder

16 can understand within a couple of minutes.

17 Point number 8. Your Honour, because the Chamber is potentially

18 requiring the Prosecution to prove a limited -- what might be considered a

19 minimalist case without enforcing Defence compliance with Rule 65 ter (F)

20 and 67(A)(i), the Prosecution asks and will ask for the Court's firm

21 assurance that it will be allowed to put on a meaningful and potentially

22 substantial rebuttal case, once any bona fide issues are actually

23 identified in the Defence cases, because otherwise we are again operating

24 in the dark, under extreme time constraints, without the opportunity to

25 respond, to identify the bona fide issues for trial.

Page 637

1 Point number 9. If we're going to proceed in such a fashion, the

2 Prosecution requests the Court's firm assurance that the Appeals Chamber

3 will some day, perhaps, take the same view concerning the "minimal

4 sufficiency" of the Prosecution evidence as the Trial Chamber, by putting

5 possibly significant limits on the Prosecution case, we are required to

6 present a very minimal case. Based on such an assurance, the Prosecution

7 will be better able to shape its case.

8 Now, Your Honour, this is said somewhat tongue in cheek, but the

9 point to be made is a serious one, quite serious one, and that is really

10 the last sentence of this slide, and that is: "There is really little

11 point in a faster trial if it will be reversed on appeal."

12 There seems sometimes, with all respect, to be a bit of disconnect

13 between what the Trial Chambers want to accomplish and what the Appeals

14 Chamber wants to accomplish. The Trial Chambers seem to feel, somewhat

15 greater at times, the need for efficiency and the need to move the cases

16 forward with some dispatch, but I'm afraid, Your Honour, that some years

17 from now when the Appeals Chamber is combing the record strictly and

18 looking over every detail and dotting every I and crossing every T, the

19 Appeals Chamber's agenda, if you will, will be very different from the

20 Trial Chamber's agenda. And as I will just repeat again, there is little

21 point in a faster trial that is then reversed on appeal.

22 Number 10, the Prosecution may, based on all these previous points

23 of its plan, the Prosecution may be able to complete its direct

24 examinations in 450 hours. Now, since we last met, Your Honour, the

25 Prosecution has undertaken a further extensive review of its witness list

Page 638

1 and time estimates. On the basis of the above terms, the points that I

2 have made so far this morning, and only on such basis, the Prosecution

3 believes that it may be able to complete its examinations in chief in

4 approximately 450 hours. The earlier -- by contrast, the earlier estimate

5 for direct examinations of the Prosecution viva voce witnesses was 804

6 hours. That was the number in our 65 ter filing in January, so I think

7 the Chamber will see that we have made a substantial reduction in our time

8 estimate based upon the points of our plan; not 804 hours but 450 hours.

9 Further, the Prosecution commits, Your Honour, to continuously

10 evaluate its evidence, seeking to reduce, to the extent reasonably

11 possible, the time required to prove its case as the trial unfolds. The

12 realities of a trial, Your Honour, as you know -- as you well know, is

13 that things happen as the trial unfolds from day-to-day and week to week.

14 Certain things become undisputed and it becomes clear that certain things

15 in fact, once the trial begins, are not disputed, and therefore the

16 Prosecution can then, to some extent, begin to shape its evidence based

17 upon what the real issues in the trial appear to be, and we will certainly

18 undertake to do that.

19 Now, one calendar year. If the total combined Defence

20 cross-examinations is also 450 hours, that would be a one -- so-called

21 one-to-one ratio, that would be 450 hours for the Prosecution case and 450

22 hours for the Defence case or cross-examined -- excuse me,

23 cross-examinations. And then if a hundred hours is allowed for Judges'

24 questions, procedural matters, et cetera, that brings us to a total of

25 1.000 hours: 450 plus 450 plus 100. On the basis of the above terms, the

Page 639

1 Prosecution case, including cross-examination, et cetera, might be

2 completed in one calendar year if the Chamber were to sit 47 weeks, five

3 days a week, with four and a half hours of actual testimony per day. On

4 that basis we would have some chance, perhaps, of completing the

5 Prosecution case in one calendar year.

6 The Defence case. Your Honour, we feel the need to make the

7 fundamental point that of course if the Prosecution, which has the burden

8 of proof, is limited to "one year," including cross-examination, Judges'

9 questions, and procedural matters, then the combined Defence cases will

10 also be limited to a similar "one year" and subject to all of the same

11 constraints and requirements as the Prosecution, including the scheduling

12 and linking of all Defence witnesses and exhibits to the issues raised in

13 the indictment.

14 In closing, Your Honour, I have a couple more slides to go. We

15 repeat again: The Prosecution is also entitled to a fair trial. We are

16 entitled to a fair opportunity to present our case. Again, quoting

17 Aleksovski: "It is difficult to see how a trial could ever be considered

18 to be fair where the accused is favoured at the expense of the Prosecution

19 beyond a strict compliance with certain fundamental protections."

20 Again, the Prosecution plan, the ten-point plan that we have given

21 you this morning, Your Honour, is contingent on various assumptions and on

22 all of the points being accepted, working in conjunction with one another.

23 In conclusion, the Prosecution plan is based on ifs and

24 assumptions subject to unpredictable factors and we would quote again

25 President Meron's statements in 2005: "Any estimates, including the

Page 640

1 estimates the Prosecution makes today, are necessarily tentative since

2 they can only be based on assumptions subject to unpredictable factors. "

3 Going to the end of that quote: "But all of those ifs indicate

4 that these estimates are based on assumptions that evolving reality will

5 modify."

6 Finally, Your Honour, the Prosecution commits to Your Honour, to

7 the Chamber to make its best effort. The Prosecution agrees with former

8 President Meron that operating in the ICTY environment is, indeed, a

9 highly unpredictable one, from the changing and unpredictable

10 jurisprudence to the variations and inconsistencies in courtroom rules and

11 practices to the unavailability of witnesses. All of which may make the

12 proposed plan difficult to achieve. Nonetheless, the Prosecution will

13 make its best efforts, and to quote or paraphrase President Pocar, the

14 possibility of presenting the Prosecution case in one calendar year

15 remains possible.

16 Thank you, Your Honour.

17 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Scott.

18 Before I give the floor to the Defence, let me make some remarks.

19 First of all, I greatly appreciated this presentation of a ten-point plan.

20 The Defence will have the opportunity of expressing their views, and I

21 note that the indictment -- the Prosecution did its level best to move

22 ahead. You had indeed filed motions for facts adjudicated in other

23 trials. You also filed 92 bis motions. You did take measures so that the

24 Trial Chambers -- Trial Chamber can issue decisions for better efficiency,

25 but apart from the efficiency issue, the Trial Chambers issued orders that

Page 641

1 took into account the position taken by the Defence. The Defence

2 challenges everything, and it is entitled to this under common law. The

3 Defence has a right to cross-examine witnesses. This is how the Trial

4 Chamber had to leave it to the actual Bench decisions on 92 bis motions,

5 89(F) motions, et cetera. So if your motions were dismissed, they were

6 dismissed on a temporary basis. It will be possible for the actual Trial

7 Chamber to rule again. And this is why I had asked you to give us this

8 chart cross-checking or cross-linking the witnesses, the points of the

9 indictment, and such-like, so that we have an overall view of the issue.

10 And by the 14th of April you were supposed to give us this chart with the

11 links for all the witnesses who are scheduled to testify until July. Once

12 the Judges have your document, they will have a much better idea of the

13 situation.

14 I also wanted to tell you that President Meron and President Pocar

15 had -- had expressed some reservations before the Security Council

16 because, indeed, there are unpredictable factors in a legal process, in a

17 judicial process. This is inevitable. It can be of a very diverse

18 nature, unexpected things can happen. And as you said so for the

19 mega-trials, you know that another two mega-trials are due to commence in

20 July. Ours will start in April, but here again this trial schedule to

21 start in July are not -- are only tentative. Because for one of them, the

22 Mladic indictment could be joined to the Srebrenica trial. So there again

23 it is still a hypothesis and I can say so all the more easily since I am a

24 Trial Chamber II Judge also seized of the Srebrenica case, so I am in a

25 very good position to give you my view on this. Of course if Mr. Mladic

Page 642

1 were to be arrested, there would be a stage of the proceedings for joining

2 his case with the Srebrenica case, which he can challenge, and he is then

3 free to file any preliminary motions, making it possible to start the

4 actual trial in July. This is the sort of unexpected and unpredictable

5 thing that can happen, and that has to be taken into account.

6 You rightly mentioned something else -- this doesn't call for any

7 special remarks by me, but you mentioned that the Prosecution under the

8 Statute has the duty to prosecute. And when you have the duty to

9 prosecute, you also are fully entitled to prove your case. You also have

10 the full power of deciding what your strategy is going to be. However,

11 this has to be kept within the mandate of our Tribunal.

12 As regards your plan, I am really thankful for giving it to me and

13 for illustrating it as well with the Gornji Vakuf binders. Shortly the

14 Defence will give their position. I personally would like to go quickly

15 through the ten points.

16 In the first point you mention the 65 ter (F) Rule issue and also

17 the 67(A)(i) issue. Under 65 ter (F), the Defence met my time

18 requirements to reply to the Prosecution pre-trial brief. And on the

19 basis of all the Defence pre-trial briefs, there is an overall dispute as

20 to the responsibility. This being so and in doing so, the Defence met the

21 requirements set out by 65 ter (F). It disputes everything, so the

22 Defence counsel do not have to give details as to the dispute. Of course,

23 the Defence could be instructed to do more. When the trial starts, the

24 Judges will see whether it is appropriate to do so, but inasmuch -- and

25 first of all I'd like to remind you that the accused have pleaded not

Page 643

1 guilty so there is a presumption of innocence and they are perfectly

2 entitled to challenge every allegation without doing anything more,

3 because when they cross-examine or when they present their own case, they

4 can affirm and try to prove their case.

5 Second point, as to time constraints, there is no need for many

6 remarks. This is one thing that I wanted to talk about, to find out how

7 to spread the time or -- between the examination-in-chief and

8 cross-examination. We'll come back to this point later on.

9 Third point of your presentation, this is a topic that caused two

10 lawyers to jump to their feet. It is the issue of the international armed

11 conflict. You said that on numerous occasions this Tribunal at trial

12 level and appeals level - so this is case law - it had been decided that

13 Croatia took part in an international armed conflict. And you said that

14 you were amazed that this was still being disputed since it had been a

15 decision of many Trial Chambers which had been confirmed on appeal. The

16 Defence will have the floor shortly.

17 As to the use of 92 bis, I said that earlier on. To be clear, or

18 to see things clearly, the Trial Chamber will need this famous chart that

19 I requested of you because, indeed, if it were to turn out that 92 bis

20 witnesses failed to bring any additional value to what viva voce witnesses

21 have said, what would be the point of a written statement that would add

22 nothing to the Prosecution case? But to be able to assess this, we would

23 need to have an overview of the case, which was -- which we would have

24 really soon if we get this document by the 14th of April and as soon as we

25 have our first witnesses.

Page 644

1 Point 5, you mentioned the 89(F) Rule. Indeed, under this Rule

2 you can do away with some of the problems we are faced with. Of course,

3 this Rule can be used by the Prosecution but it can also be used by the

4 Defence when the Defence will present its case. Indeed, under this plan

5 by the Prosecution -- well, you could also think that this is a plan that

6 could be adopted by the Defence. I mean, Judges treat everybody on an

7 equal footing. Why do we have this Rule 89(F) in the Rules? Because it's

8 useful. Indeed, a Chamber may receive the evidence of a witness orally or

9 in writing where the interests of justice allow. So you have two avenues

10 possible. You offered in this respect a modus operandi that could be

11 used, if the Defence were agree to it; namely, that a witness comes to the

12 witness stand, that the Prosecutor has no actual examination-in-chief and

13 offers the witness for cross-examination. But then the written statement

14 is evidence, as such.

15 Your point 6, how to process evidence and exhibits efficiently, I

16 meant to do -- meant to speak about it. I'm sure that we're going to

17 arrive at a solution very soon. The revolutionary part of your plan is

18 the dossier part with the example of Gornji Vakuf. Indeed, we are used to

19 this in civil law, as Judges of civil law, much less so for common-law

20 Judges, but it can be useful and I am going to listen with great attention

21 and interest to the Defence counsel. I had a quick glance at this Gornji

22 Vakuf dossier. The Prosecution, based on the chart I requested of them,

23 could have put into that chart the pieces that we find in this dossier.

24 That's one first observation.

25 I'll add that if, indeed, you have a dossier for the crime-base

Page 645

1 evidence, which might be useful, I also believe that if the Chamber were

2 to go down that road, you could also have a dossier under 7(1) and 7(3) of

3 the Statute for each of the accused so that we see things clearly, so that

4 we know exactly what the charges are against the accused. It's important,

5 you know, and I would be greatly interested in knowing the view of the

6 Defence because the Defence teams could also have their own dossiers to

7 counter what is charged under 7(1) and 7(3) based on this evidence.

8 As to point 8, the rebuttal case, of course. No problem in this

9 respect. Under the Rules the Prosecution is entitled to its rebuttal

10 case. Why should we deprive it of this right? You also mentioned the

11 Appeals Chamber. Indeed, if we have a faster procedure, how would the

12 Appeals Chamber stand? All the Judges in this Tribunal are aware of the

13 need to change our methodology, and this is the very spirit which led to

14 the creation of the Bonomy Committee, and later and in the next few days

15 there will be, as a result of this work, a meeting of the Judges in order

16 to implement the conclusions, the Bonomy conclusions, and it may even go

17 to the amendment of the Rules because common-law Judges understood that it

18 may now be necessary to have a revolutionary -- a cultural revolution in

19 order to achieve better efficiency.

20 The issue of efficiency is not a theoretical one. Only a few days

21 ago the Security Council adopted a resolution that made it possible to

22 extend an Ad Litem Judge mandate because the trial in which the Judge was

23 sitting was not completed, for instance, and the Ad Litem Judges would

24 have sat for a longer time than the time of his or her mandate. So it was

25 necessary to adopt a new Security Council resolution. But during the

Page 646

1 discussions that took place in the Security Council, the Russian

2 representative mentioned the issue of efficiency in this Tribunal. The

3 Prosecution, the Defence, the Judges, must heed this factor. It cannot be

4 ruled out. Indeed, we do have a certain budget to run this Tribunal, so

5 it is necessary, and you can't just sort of brush away this issue.

6 Of course, at appeals level the Appeals Chamber will have to rule

7 but you know that the Appeals Chamber Bench is made of responsible Judges.

8 Last point, you mentioned 450 hours, with 450 hours for the

9 Defence; in all 1.000 hours. Of course, I can only agree with this

10 proposal, which is an interesting one, and the Defence will let us know

11 later on what it thinks about it. Just one point I'd like to specify, you

12 mentioned the way in which the US Federal Courts operate and you told us

13 that according to you, because you are an American citizen, the federal

14 jurisdictions work five days a week from Monday to Friday. That's all

15 very well. Let me just tell you that in a US Federal Court there is no

16 trial that lasts for a number of years, so you can sit in a courtroom from

17 Monday to Friday for four to five weeks, but if you are to do this over a

18 number of years, this is something which I come to question.

19 It is now 10.30. We shall have our technical break. The Defence

20 counsel can thus have a look at the Gornji Vakuf binder, and then I shall

21 give the floor to both parties when we resume.

22 --- Recess taken at 10.30 a.m.

23 --- On resuming at 10.51 a.m.

24 JUDGE ANTONETTI: [Interpretation] So we are now resuming the

25 hearing. I shall give the floor to the Defence counsel, who can respond

Page 647

1 to what the Prosecution has just said. I made my own personal remarks

2 already. As there are a number of you on the Defence team, I don't want

3 it to be going in all directions, so I want you to focus on the essential

4 so that it is something which can be used by the Judge.

5 I shall like to give the floor to Mr. Karnavas.

6 MR. KARNAVAS: Thank you, Mr. President. It's regrettable that we

7 were not given the ten points in advance so we would be more prepared and

8 more succinct in our response. I assume it is a tactic that we will see

9 over and over again in this court in the name of efficiency, a tactic that

10 is usually used in the courts in the United States where the Prosecution

11 likes to, at the very end, try to sabotage the Defence by presenting novel

12 arguments or novel pieces of evidence to the disadvantage of the Defence.

13 Let me begin by dealing with point number 10, the 450 hours that

14 the Prosecution claims can do its direct examination, a thousand hours in

15 total. I think even under the best of circumstances, and as I understand

16 the Prosecution, they would need more or less all of the previous nine

17 issues, nine points, to be agreed upon before that figure can be reached.

18 I think that is rather optimistic at best, under the best of

19 circumstances.

20 I like the way the Prosecution began by pointing out President

21 Meron's and President Pocar's statements to the Security Council. I think

22 in reality, if you walk the halls of this Tribunal, everybody is talking

23 about 2010 for the realistic date for the trials to finish, 2012, 2013

24 when this place will be shut down eventually, with all the appeals being

25 completed. I think that's realistic.

Page 648

1 We did not choose to draft the indictment. As Your Honour knows,

2 the Prosecution has both the responsibility and the discretion as to how

3 they're going to charge. They take into -- a number of considerations

4 into -- when they draft the indictment; the events, the victims, the

5 personalities, and so on and so forth. That indictment then is -- goes

6 forward to a Judge who confirms it. So the power lies with the Judge.

7 The discretion being with the Prosecution, the power with the Judge, and

8 then we get to the Defence. What does the Defence have? Nothing.

9 Nothing in this process at all. So I look at this particular indictment

10 and it has every conceivable mode of liability in it. Now I am told I

11 need to be efficient, efficient in the sense of having a very quick trial,

12 in order to meet some timetable that the Security Council has imposed on

13 this Tribunal because in its previous years, both the Prosecution and,

14 perhaps, the Trial Chambers have been less than efficient. And I say

15 "less than efficient" because if you look at the previous cases and see

16 how much time it took for those trials, which were minor in comparison to

17 this mega-trial, and the resources that were available at the time, the

18 time that was allotted to the parties to prepare and also to present their

19 case, and then you look at this particular case, it's as if we need to

20 hurry-up in order to get it over with. And that I find discomforting.

21 Why? Because we're dealing with individuals. And I think that Dr. Prlic,

22 as Mr. Stojic, General Praljak, General Petkovic, Mr. Coric, Mr. Pusic all

23 deserve a fair trial, and efficiency does not mean a quick and speedy

24 trial.

25 Having said that, going to point number 9, I think that while the

Page 649

1 Prosecution did say that it -- its -- that point was more or less tongue

2 in cheek, in jest, I think it's unrealistic for a Trial Chamber to give

3 any assurances as to what an Appeals Chamber will be doing. I don't think

4 that the Trial Chamber is in a position to be making deals with the

5 Appeals Chamber or with the Prosecution that if it presents -- if it

6 forces the Prosecutor to be efficient, somehow the Appeals Chamber will be

7 lenient and not overturn a conviction or rule in a particular manner. So

8 I think that's an unrealistic point.

9 Moving up to point number 8 -- and I'm moving backwards because I

10 think that makes a little more sense, at least the way I see things. This

11 meaningful rebuttal, and they say "substantial." Well, I come from a

12 tradition, as Mr. Mundis and as Mr. Scott, where rebuttal for the

13 Prosecution tends to be what we call -- what is normally known as a

14 sandbagging approach, where the Prosecution merely presents sufficient

15 evidence at the beginning of the case to meet its burden, you know, in

16 order to overcome any challenges for a -- a judgement for acquittal. The

17 Defence would then go forward, and then they would save their best

18 evidence for the last, because of course they're playing to the audience

19 of a jury.

20 The jurisprudence in this Tribunal is a rather correct one, if I

21 may say so, in that it requires the Prosecution to put on its entire case,

22 not hold back. They need to put on their entire case. They are entitled

23 to rebuttal but only under limited circumstances and rebuttal does not

24 mean the ability and it's not the opportunity for the Prosecution to

25 strengthen their case but rather to rebut something that was put on by the

Page 650

1 Defence. So I think that we have sufficient jurisprudence and we need not

2 worry about whether rebuttal will be meaningful or substantial. I think

3 if the Trial Chamber follows the jurisprudence of the Tribunal, which I'm

4 sure it will, then there should be no problem. But this should be a

5 warning to the Prosecution that they should not be holding back evidence

6 in order to somehow spring a trap for the Defence. It doesn't serve their

7 purpose, it doesn't serve the purpose of this particular Tribunal in light

8 of its mission.

9 Now, moving to the dossier. A novel idea. I believe in

10 revolution as opposed to evolution in a sense of how can we make the

11 process more efficient, so I'm all for revolutionary tactics and

12 approaches; however, I think we need to study this more carefully. In

13 principle, I don't see a problem with it. However, it all depends on what

14 goes into that dossier in a sense that if the dossier is presented for the

15 purposes of establishing crime base and if what is contained in the

16 dossier is limited to crime base and not anything else, then I think in

17 principle I would not have any objection, provided, however, that perhaps

18 we could consider that the Defence would be allowed to supplement this

19 dossier. Because part of the problem, as Your Honour well knows, in the

20 Romano-Germanique system where a dossier is commonly prepared, first of

21 all, you may have an independent Judge, such as in France, or you may have

22 a Prosecution who is not a party, in a sense, and that dossier is prepared

23 in a meticulous manner, taking care to make sure that it contains both

24 exculpatory and inculpatory information and it's gathered with equal zeal.

25 Here we don't have that. Here the Prosecution is a party. It's a

Page 651

1 party-driven system. So I think if we're going to go down the road of a

2 dossier for the purposes of establishing even, say, crime base, I think we

3 need to at least take into consideration whether the Defence should be

4 able to supplement that. Perhaps we can come to some sort of an agreement

5 in advance so that certain crime base information can come in without the

6 need for having to call witnesses and what have you.

7 So I do need to study it a little bit more carefully, but if you

8 look at the table of contents you'll see witnesses there that are rather

9 disturbing to me because they tend to go to substantive matters as opposed

10 to crime base, so I'm a little concerned about that. But the Trial

11 Chamber should rest assured that at least this particular Defence is

12 open-minded to this approach. And perhaps I think this dossier approach

13 could be used for other purposes as well. So we are open-minded to that

14 extent.

15 Handling exhibits efficiently. There was the tendering and

16 admission of exhibits. That was what was mentioned as part of point 6. I

17 agree that a lot of exhibits can come in through one particular witness,

18 for instance, because he may be a custodian witness and the exhibits come

19 in. The question then becomes: What do we do with all these exhibits,

20 all these documents? As the Trial Chamber indicated, as His Honour

21 indicated way back, I believe, two or three Status Conferences ago, that

22 everything in a particular document is subject to being reviewed and being

23 considered by the Trial Chamber, which poses a problem for the Defence

24 because if, indeed, everything will be considered, as it should, it means

25 that the Defence will need to challenge or may need to challenge certain

Page 652

1 aspects in the document. So having a document or an exhibit come in

2 effortlessly or efficiently is one -- only the first step. We don't have

3 a jury, we don't have to worry about technical rules of evidence; I don't

4 have a problem with that. However, the mere admission of the document is

5 not enough, because at the end of the trial the Judges will be asked to

6 give particular weight to these exhibits; some or none or a lot, I don't

7 know. And that will all depend on how much is being challenged in certain

8 documents. So I think we need to be realistic. If we're going to have a

9 bundle of documents coming in because the Prosecution is pushing them in

10 because they believe these documents further their mission in trying to

11 establish each and every element beyond a reasonable doubt, then obviously

12 we -- you have to give the Defence an opportunity, a reasonable

13 opportunity, to challenge documents where they need to be challenged. And

14 of course, as I indicated in a previous Status Conference, I start with

15 one question: Is this particular question that I'm asking or the

16 challenge that I'm making relevant to the case? If it is not relevant,

17 then I need not make that -- go any further. That should equally apply to

18 the Prosecution. Is a document relevant to their case or is it being

19 brought in because it's cumulative or it's being -- it has more

20 prejudicial than probative value? So I think that some efficiency can

21 occur if, perhaps, they curtail the number of documents that come in that

22 would require us to challenge fewer documents, if there is a need to

23 challenge them.

24 There again, I can assure His Honour that this particular Defence

25 will not be challenging documents for the sake of challenging. Every

Page 653

1 challenge will be meaningful, there will be a purpose, there will be a

2 reason, and we will be willing and able to state that reason. Whether you

3 will agree or not, that's a different issue. At least in our own mind we

4 will have weighed every piece of every before making any particular

5 objection.

6 Moving on to point number 5, written evidence, a novel technique

7 that was used over here before. I believe it was introduced in the

8 Brdjanin case the first time, although I might be mistaken. I think

9 that's a fine idea. I don't have a problem, where the Prosecution thinks

10 that one need only be cross-examined. That's fine. And again, you know,

11 there's jurisprudence, there's a procedure. The same thing goes with 92

12 bis evidence, so I don't think that there's much of a problem there. I

13 think we're all in agreement that there's a sufficient jurisprudence to --

14 to allow this Trial Chamber to move forward on those two matters.

15 Moving to point number 3, I did react in a sense that I believed I

16 was hearing another opening statement, or an opening before the actual

17 opening, or just another argument. And it's the same tired retread

18 argument that we've heard over and over again from Mr. Scott regarding the

19 international armed conflict. He tends to count the Judges as if we're

20 counting sheep, how many, you know, Judges have agreed to this.

21 Therefore, if we come to some magic number, all of a sudden we need not go

22 any further in our analysis. And as I have said in the past, over the

23 years we have learned that archives become available, documents that were

24 once not available all of a sudden seem to pop up, witnesses are coming

25 forward, and indictments were drafted in a rather different fashion way

Page 654

1 back where perhaps challenges were not necessarily made; or if made were

2 not made sufficiently, at least for the purposes of defending my

3 particular client.

4 So had I been in the Blaskic trial or in the Kordic trial or in

5 the Naletilic trial over there, in anticipation that Mr. Prlic would be

6 indicted down the road, I would have been able to participate, ask the

7 questions. But I wasn't there. So I did react, in a sense, with this

8 particular issue because we already have a ruling on that, number one,

9 from this Trial Chamber. Number two, I thought it was inappropriate for

10 the Prosecutor to be making a mini opening statement on this issue. They

11 will have plenty of opportunity to argue once again when they give their

12 opening statement, which of course is not evidence, as we all know.

13 Moving to item number 2, time limits, and His Honour indicated

14 that we would have an opportunity to speak about the spreading of the

15 time. This is the -- I must confess, you know, in over 20 years of

16 practicing law, this is the first time I am in a setting, in a trial

17 setting, where we are looking at mathematical formulas in order to

18 determine how to arrive at the truth, or at least to make sure that an

19 accused is provided a fair trial. Will 450 hours versus 500 hours be

20 sufficient? Should six accused be allocated, you know, 30 minutes a piece

21 because the Prosecution took X amount of minutes to execute its direct

22 examination. I think that's a wrong approach. I've indicated this in the

23 past.

24 Just to give you one example, and I'm just forecasting.

25 Mr. Donia, he's testified in six cases, I believe. He's produced, you

Page 655

1 know, some documents, you know, which have been characterised as expert

2 reports. I choose not to characterise them as that, but nonetheless he's

3 produced quite a bit of testimony. And of course with six -- in six

4 different cases you can imagine the amount of evidence that I have to go

5 through in order to cross-examine this man. And if you look at some of

6 his testimony or if you look at some of his writings, he starts with the

7 Middle Ages or before that, the 5th century, 6th century, or whatever, in

8 trying to promote his theory and his thesis. Now, what does the 5th

9 century have to do with 1991, 1992, 1993, 1994? I don't know. But if the

10 Prosecution is going to be introducing that sort of evidence, should I not

11 then start with the 5th and the 6th century as well? I don't know. Maybe

12 not. But the point I'm making is I see this gentleman alone, for me,

13 three, four days of cross-examination, and I'm being conservative.

14 Just to make one point that Mr. Scott had made when he was making

15 his calculations, and I think that they were rather accurate in the sense

16 of how many actual minutes we are in court, keeping in mind that when we

17 begin to have witnesses who speak a different language, everything gets

18 slowed down. And then when you make a comparison, for instance, with the

19 Federal Court of the United States, rarely are they -- do they have these

20 sorts of cases where almost all the witnesses speak a different language

21 and everything has to be translated and slowed down. So -- but my point

22 being, with time limits, I don't think it's rational to assume that we can

23 come up to some kind of a formula. I think we all need to be mindful that

24 everything we do has to be relevant.

25 Point number 1, I don't know what to say. I mean, the Prosecution

Page 656

1 keeps going on -- I did -- yeah. I think that the Trial Chamber has made

2 its rulings -- or the Pre-Trial Chamber has made its rulings, as it has

3 with the adjudicated facts. I think we need to move on beyond that. We

4 didn't choose the particular indictment; they chose to draft it in that

5 way.

6 And if I may take a couple of moments to speak about what I think

7 was a fungus that actually grew out of control in this particular Tribunal

8 over the years. Unfortunately and regrettably, the Trial Chambers have

9 allowed the Prosecution to draft rather very broad and over-generous

10 indictments, perhaps because some of the founding fathers of this Tribunal

11 were under the impression that we're here to get to the historical truth

12 and to have a historical record. You see the former President Cassese

13 making such statements. Perhaps others thought that this was a way to

14 establish the truth and to get as close to the truth as possible. Others

15 said, Well, maybe this is for reconciliation purposes, we need to have

16 these large trials. And so this Tribunal, in my opinion, has lost part of

17 its focus. Rather than being a criminal court with international law

18 being applied where the responsibility is, at the end of the day, to see

19 whether the Prosecution, which has indicted a particular individual for

20 crimes, be it under 7(1) or 7(3), has met its burden of proof. Some Trial

21 Chambers, along with the Prosecution because of their own mission, have

22 wasted a lot of time, a lot of energy, and have lost focus of what this

23 Tribunal is all about. And so in pursuit of reconciliation or making a

24 historical record, time was squandered on the earlier days. So now we are

25 faced - "we" being the accused in this particular case - are faced with

Page 657

1 this predicament, that we are supposed to hurry up.

2 Two days ago I was in Zagreb, meeting with my client, and I need

3 to say this because I think it's very poignant, and we were talking about

4 his trip back to The Hague. And I stopped and I thought what it would be

5 like if I were in his shoes where on a particular day I would be making

6 that journey to come here, to be in custody throughout the trial,

7 basically, facing these sorts of charges where, on the other side, the

8 party is doing their level best, with lots of resources, to either make

9 sure that he either never gets out of prison - in other words, that he

10 dies in prison - or that he gets out when he is a pensioner.

11 I mention this because this is what this case is about, Your

12 Honour. It's about individuals. And the charges are very grim. The

13 results of the trial will have impact on everyone's lives, and I don't

14 think because of some completion strategy - because we haven't mentioned

15 that word so much today - that we should try to rush through this case. I

16 share Mr. Scott's concerns when he said earlier that the Prosecution is

17 entitled to a fair trial. Why? Because the Prosecution also has to make

18 sure that justice is not only done but seen to be done. The victims in

19 every case deserve to have their day in court. But as we all know, not

20 everyone who's accused is guilty. I mean, that's something that we need

21 to keep our -- to think about and to consider every day that we're in

22 here. Just because the accused are sitting here and just because the

23 Prosecution believes that he or she has the evidence, doesn't mean --

24 necessarily mean that they will be able to show that that person actually

25 is guilty, and they are entitled to a fair trial.

Page 658

1 So I share these thoughts with you, Your Honour, because I believe

2 that at the end of the day we have to make sure that first and foremost

3 everybody gets a fair trial, including the Prosecution. And I dare say

4 their 1.000 hour prediction, even under the best of circumstances, is

5 unrealistic. We will try to be as efficient as we possibly can, but I

6 cannot concede a point to the Prosecution at the expense of Dr. Prlic, you

7 know.

8 In closing, you know, the Prosecution said that -- you know, that

9 they should -- that the accused should not benefit at the expense of the

10 Prosecution. I dare say - I dare say - that has never been the case in

11 this particular Tribunal. I don't think you'll find a single Defence

12 lawyer or accused who will say that he benefitted at the expense of the

13 Prosecution. Conversely, I think if you were to take a poll, you would

14 find that we feel the opposite, that usually it's the accused and the

15 Defence lawyers that are on the short end of the stick because we don't

16 have the resources, we don't have the discretion, and we don't have the

17 power. Thank you.

18 JUDGE ANTONETTI: [Interpretation] Thank you.

19 I shall now give the floor to the second Defence counsel.

20 MS. NOZICA: [Interpretation] I have to say that I fully agree with

21 the argument presented concerning the Prosecution point. I fully agree

22 with Mr. Karnavas. I don't think that they need to be supplemented at

23 all; however, I need to reiterate that we also fully agree with your

24 justification and your comments concerning Article -- Rule 65 ter and 92

25 bis and 89(F). I fully agree with what you said.

Page 659

1 As for the dossier, I need to add that I personally and my client

2 would find it extremely useful if we had received these dossiers earlier.

3 Had we had them earlier, that would have made our preparations for defence

4 much easier. I also support what Mr. Karnavas said about this.

5 In conclusion, let me add something which supports the position

6 that we all feel somewhat uncomfortable and uneasy about the expected

7 length of this trial. On one hand we all feel this pressure, which is

8 quite human, to make sure that this trial does not last too long because

9 all of the accused are in detention. However, on the other hand, this

10 Tribunal has the largest case before it in this instance with the largest

11 number of accused, witnesses, evidence, and so on, and at the same time,

12 we are urged to make this trial as speedy as possible. I don't think that

13 will be possible. I think that point 10 of the OTP presentation, stating

14 that it would be possible only were the first nine points to be

15 implemented, is too optimistic at this point and I don't think it's a

16 reasonable one. Thank you.

17 JUDGE ANTONETTI: [Interpretation] Thank you, Madam Nozica.

18 Mr. Kovacic will have the floor.

19 MR. KOVACIC [Realtime transcript read in error "Jonjic"]:

20 [Interpretation] Thank you, Your Honour. I'm going to endeavour to be as

21 brief as possible because my colleague Mr. Karnavas and my other colleague

22 Ms. Nozica has raised all the points I wanted to raise. So all that

23 remains for me to do is to put two or three points forward.

24 We mentioned the right to a speedy trial here --

25 JUDGE ANTONETTI: [Interpretation] There seems to be a mistake in

Page 660

1 the transcript. Mr. Kovacic, not Jonjic.

2 MR. KOVACIC: It will be corrected, no doubt, Your Honour.

3 [Interpretation] Yes, the right to a speedy trial was mentioned

4 here, which is certainly a fundamental right of accused in this trial in

5 conformity with the Statute. However, in actual fact we are faced with a

6 situation here where we have to take care and strike the proper balance

7 between the right to a speedy trial and the right to a fair trial.

8 Unfortunately, for practical reasons, and I believe that we are all very

9 aware of this, those two rights or those two guarantees of the accused are

10 very often in collision with each other, because a speedy trial sometimes

11 can mean to skip over certain details, to summarise and abridge, and in

12 that process we can lose on the other side; that is, a fair trial. Of

13 course, each of the accused and each Defence counsel, when enabling to

14 strike this proper balance, we have to choose between those two rights,

15 that sometime -- that then it is the more important right, that is the

16 right to a fair trial comes to the fore and the right to a speedy trial

17 comes second.

18 I want to say in saying this that, regardless of the fact that

19 this discussion about a speedy, expeditious trial was caused or, rather,

20 determined by the UN Security Council resolution -- or rather, we cannot

21 use the argument that this is in the interests of the accused, because it

22 is not in the interests of the accused. Very rarely is it in their

23 interests and it very often is in the conflict with the demands and right

24 for a fair trial. And I think that if we start to think about a trial

25 with a stopwatch in our hands, as my colleague before me said a moment

Page 661

1 ago, it is then difficult to speak about a fair trial, a fair and just

2 trial. Because to be under constant pressure of time, either directly

3 towards a witness or in a cross-examination of a witness, to be under the

4 pressure of a stopwatch and time constraints, we won't reach the proper

5 results. The only criteria is the relevancy of the evidence, that is to

6 say the witness and the documents provided as evidence.

7 The second point that I wanted to raise is this: In a way I have

8 gained the impression that through this type of methodology which is being

9 proposed by the Prosecution or, rather, certain measures that would help

10 speed up the procedure, we are falling into a trap more and more, and that

11 is to speak about the Defence as a party in the proceedings and the

12 Prosecution as the other party, of course, in the proceedings. But when

13 we refer to the Defence and speak about the Defence, we're not talking

14 about an individual Defence but a block Defence team, which is becoming a

15 monolithic block at that. For example, in the division of time, the

16 allocation of time; two hours for the Prosecution, two hours for the

17 Defence, in bulk. And this -- these arguments are the arguments of the

18 Prosecution; these other arguments are arguments of the Defence, in bulk

19 again.

20 Now, we have to constantly bear in mind the fact that we are, in

21 fact, speaking in the plural of six accused and not one accused in the

22 singular, and each of these six Defence teams can conduct their trials,

23 their legal proceedings and Defence case as they deem necessary and to the

24 best effect. Even if it's wrong, it might be quite different from another

25 Defence team. It has the right to provide different evidence, different

Page 662

1 individualisation, and a different approach. And each individual accused

2 in this trial, in these proceedings, is an individual accused person. The

3 aim of the Court is to establish individual responsibility of each and

4 every individual. Therefore, regardless of the accused through force of

5 circumstance or with the other five accused, each of them is still an

6 individual accused. And I think that some of the measures that we're

7 discussing are infringing vitally upon this position of an individual

8 accused before this Tribunal.

9 Now, as far as the dossiers are concerned, the dossiers that we

10 saw on the table by way of an example today, I have just had a look at

11 them and therefore have not had time to prepare and will not be discussing

12 them. But I have to remind because my colleague, the Prosecutor,

13 Mr. Scott, mentioned the Kordic/Cerkez trial where there was

14 experimentation with dossiers. I think the dossier was called the Tulica

15 dossier in that trial, and that was the only one provided and the Defence

16 responded and after that it did not. I am not in a position now - I would

17 have to go back to the transcript to confirm this - but I know that the

18 Trial Chamber gave up the use of that mechanism because for some reason it

19 was not shown to be a good mechanism. I cannot tell you exactly why. Had

20 I seen the material yesterday or the day before, I could have found it in

21 the transcript to refer to it.

22 Now, with respect to the will on the part of the Prosecution to

23 rationalise the case, I would like just to add one more thing. It is my

24 observation, in fact. The Prosecution, for example, when it comes to the

25 existence of an international conflict refers to a series of judgements,

Page 663

1 and the Prosecution at the same time has completely forgotten those same

2 judgements - here I have Blaskic, Kordic in mind, Tuta, Stela, and a few

3 other cases, a few similar cases, he is forgetting that in those same

4 judgements, in all of them, it was established that during 1992 there was

5 no conflict between the Bosnia-Herzegovinian Croats and Muslims, that is

6 to say the essence and crux of this indictment, and in all those cases it

7 was established with certain finesses of difference or in different areas

8 and different events that those conflicts began after certain incidents

9 had taken place in December 1992, incidents which were not qualified as a

10 general conflict between those two groupings and that the conflicts only

11 began in March or April, depending on the events.

12 Therefore, the time-frame of this indictment ranges from September

13 1991 to the Washington Agreement in 1994, and despite this, despite the

14 fact that in all these other judgements from which the Prosecutor wants to

15 introduce an international conflict, which they consider to be the proper

16 point, does not wish to introduce those facts which, regardless of the

17 manner of Defence and presentation of evidence were established and that

18 the Muslim/Croat conflict did not exist in 1992.

19 Your Honour, we now come to the question of time, once again. If

20 the Prosecution claims and maintains, and it does in the indictment, that

21 the joint criminal enterprise started from September 1991 and ranged and

22 lasted until the Washington Agreements, it is quite clear, Your Honour,

23 that I have not only the right but the duty, the ethical, professional,

24 moral duty to look at this joint criminal enterprise and the events and to

25 defend that enterprise from September 1991, because that is the framework

Page 664

1 of the indictment, and within that context present to this Court all the

2 rest of that year, 1991, go through the whole of 1992 in order that you

3 should be able to arrive at the critical time in 1993, which apropos we

4 should discuss from day one.

5 Now, I'm not striving for any change in the indictment. That's

6 not what I'm advocating. I agree there with what the Prosecution said,

7 that they had the prerogative and that's their right, but I should just

8 like to warn and caution that this is a very serious contradiction. The

9 Prosecution cannot at the same time put forward arguments saying that the

10 international armed conflict was proved in such and such a case and then

11 ask that it be introduced here despite the essential differences which

12 Mr. Karnavas has pointed out, which I don't want to repeat now, while at

13 the same time in this indictment completely ignoring all the other things

14 that have been established, such as the conflict -- the time period of the

15 conflict, and so on, and all the other details of which there are many.

16 That's all I wanted to say except to repeat that we have once

17 again arrived at the question of disclosure, disclosure in another form on

18 the part of the Prosecution, to play the game with open cards, cards down

19 on the table. Had we been provided this dossier in a reasonable time, we

20 would probably have prepared reasonable arguments and I would have been

21 able to refer to the pertinent transcripts in the Kordic/Cerkez case.

22 Just one very brief matter, Your Honour. The Prosecution brought

23 up one possible measure that could be applied with the witness summaries,

24 which was also applied in the Kordic/Cerkez trial. That is a specific

25 mechanism, once again, which we could discuss, but I think that we ought

Page 665

1 to be prepared when we start discussing it so we know what we're

2 discussing because it would demand detailed elaboration, and that is why I

3 can say that in principle I am opposed to that at this point in time,

4 although I personally think that this could be the right mechanism to help

5 us in our deliberations and rationalising our time for the trial if we

6 stick to the rules of the game. Thank you.

7 JUDGE ANTONETTI: [Interpretation] Thank you very much,

8 Mr. Kovacic.

9 Madam Alaburic, you have the floor.

10 MS. ALABURIC: [Interpretation] Your Honours, in addition to what

11 my colleagues said, which I fully support, I also wish to give a few

12 comments. Part of our discussion today seems to me to focus on the topic

13 how to fit in one litre of water into a half a litre bottle. It is clear

14 that either we need to throw away half of the liquid or change the bottle,

15 but nevertheless we are still persevering and continuing to try to fit in

16 one litre of liquid into a half a litre bottle. I don't think that's

17 possible. I think right at the outset, at this stage, we need to make it

18 fully known that it is impossible to respect all of the rights of the

19 accused which are guaranteed by international conventions on human rights

20 and also by the documents of this Tribunal. It is impossible to complete

21 the trial by the end of 2008. I think that we need to let the Security

22 Council know, the Security Council which makes decisions concerning the

23 efficiency and work of this Tribunal, that the tasks of this Tribunal

24 cannot be completed within the specified deadline and that the deadline

25 needs to be extended so that the trials which have commenced can be

Page 666

1 completed in accordance with all the international conventions, documents

2 of this Tribunal, as well as the rules of profession. Even though the

3 Security Council will be ruling on the efficiency of this Tribunal, we

4 will still be held responsible by our clients, by our colleagues, and

5 jurisprudence.

6 Another comment I would like to make concerns holding a trial

7 within a reasonable time-frame. Mr. Kovacic mentioned something known as

8 a speedy trial. Such a term does not exist in any of the international

9 conventions nor in legal terminology or significant legal documents.

10 There is no duty to hold a speedy trial. On the other hand, an accused

11 has a right to be tried within a reasonable point of time. They have a

12 right to have a trial without undue delay as well as a right to a fair

13 trial. These are the rights of the accused regulated by international

14 conventions and they need to be safe-guarded. Naturally this -- these

15 concepts do not pertain only to the accused but also to everybody else

16 involved, either directly or indirectly, in criminal proceedings.

17 However, some other mechanisms were found to deal with the efficiency;

18 namely, either through legislation which provides what is a crime and what

19 isn't, and this takes care of the rights of the victims. In addition to

20 that, the Prosecution is normally given discretion to decide who they are

21 going to prosecute and who not. And when we take all of this into

22 account, as well as reasonable time to hold the trial and the rights of

23 the accused, that makes it mandatory for us to uphold all of these rights.

24 My third comment pertains, once again, to the repeated use of the

25 term of good faith in conduct -- in acts of the Defence. Therefore, it is

Page 667

1 believed that Defence does not act in good faith if, already in this point

2 of trial, it does not make everybody aware of the facts it denies, the

3 reasons for that, and does not present its case or the course of the case.

4 I believe that such demands put to Defence are completely unreasonable and

5 they go contrary to the basic rights guaranteed by this Tribunal to ensure

6 that an accused, if he so wishes, can remain silent. The right to remain

7 silent does not be interpreted as an act of Defence which is not in good

8 faith.

9 As for the adjudicated facts and international armed conflict,

10 which Mr. Kovacic spoke about, I believe that when it comes to the

11 international armed conflict, we can point to two problems. Paragraph 232

12 of the amended indictment in our case states that the international armed

13 conflict is based on the overall control which the Republic of Croatia had

14 in Bosnia and Herzegovina, and it is also based on the partial occupation

15 which existed in Bosnia and Herzegovina. To this day we have not received

16 any factual explanation from the OTP indicating precisely which part of

17 Bosnia and Herzegovina was occupied. Undoubtedly the topic of occupation

18 is very important for Defence preparation.

19 As for the overall control, I believe that the adjudicated facts

20 from other trials as to the existence of the international conflict cannot

21 be accepted in our case for these reasons: Because international armed

22 conflict in other cases was established -- its existence was established

23 to decide whether certain articles of the Statute could be applied because

24 there is a requirement for international armed conflict in those cases,

25 whereas in our case international armed conflict is an integral part of

Page 668

1 joint criminal enterprise, and this goes to the culpability of our clients

2 and their responsibility.

3 To add on to something that Mr. Karnavas said, let me add this:

4 Yesterday I gave our reasons concerning the expert report of Mr. Donia. I

5 don't think that this court exists to establish historical facts. I don't

6 think that this court is expected or qualified to establish the historical

7 truth. We are here to determine criminal liability of the accused in

8 relation to certain crimes, and somebody else can deal with history. In

9 that context, as Mr. Kovacic said, I believe it to be extremely important

10 to ensure that each of the six clients, in accordance with Rule 82(A), is

11 given right to defend themselves as though they were the single accused in

12 the case and that any treatment of six accused as one whole leading to a

13 situation where six persons are treated identically as the Prosecution,

14 which is one whole, I believe that this is entirely unacceptable. Thank

15 you.

16 MR. JONJIC: [Interpretation] Your Honour, in view of the fact that

17 it's 11.40, and that we're coming up to the time for the conclusion of the

18 Status Conference according to our schedule, I'm going to --

19 JUDGE ANTONETTI: [Interpretation] Don't worry, we can work until

20 quarter to 2.00.

21 MR. JONJIC: [Interpretation] Very well, but irrespective of that,

22 I'm going to join in what I colleagues have already said because it would

23 be superfluous to repeat what they've already said using different words,

24 thank you.

25 JUDGE ANTONETTI: [Interpretation] Very well.

Page 669

1 Mr. Ibrisimovic.

2 MR. IBRISIMOVIC: [Interpretation] Thank you, Your Honour. I don't

3 want to take up the Court's time in repeating the positions already

4 presented by my colleagues. And as Mr. Kovacic said, in this case there

5 is a disbalance, a disequilibrium. We have six accused here and of course

6 we have six Defence teams and six Defence cases. We're probably not going

7 to agree over all aspects and that's quite normal that if we have six

8 accused we don't all agree over all the facts, and we have to bear this in

9 mind in determining the time necessary for our Defence cases to be

10 presented.

11 The other point is regarding the dossiers. I think this is a mini

12 version of your ruling and order to the Prosecution. I have nothing

13 against this kind of dossier, but I think that this is something that the

14 Prosecution has had to do in double form, and your ruling was that the

15 Prosecution should provide material necessary for the Defence and the

16 Trial Chamber.

17 JUDGE ANTONETTI: [Interpretation] Thank you very much. I thank

18 all the Defence counsel; they made a very useful contribution. I'm very

19 thankful to them for it. No remarks following their observations, nothing

20 contrary to what they said.

21 I note, however, that the issue of the creation of a dossier might

22 be an interesting one, worthy of consultations between the Prosecution and

23 the Defence so that they can come to a closer ground of understanding. I

24 see there is a precedent in the Kordic case. The Prosecution had prepared

25 dossiers and for a reason unknown to me and unknown to the Defence

Page 670

1 counsel, it was an idea that was dropped.

2 Of course, if the Prosecution were to choose for the dossiers,

3 these will have to be prepared for each of the municipalities, not just

4 for the municipality of Gornji Vakuf. So I'm very pleased to see that

5 this idea is not denied.

6 You do seem to have doubts as to the allocation of time, as to the

7 thousand hours that would be needed for the trial. You think more time

8 will be necessary, I do take note, but we have to start somewhere in life

9 so this could be a starting point. It would be possible to extend this

10 time if need be.

11 I wanted to talk about an idea that was tackled by the Defence

12 counsel, the idea of the historical truth to be established. As was

13 stated by the Defence counsel, we're not here to make history, it's not up

14 to us to do so. If you have a historical witness, is he really necessary?

15 He may be necessary in order to remind us of specific data that are not

16 likely to be disputed. Let me give you an example in my national history.

17 You know when the Bastille was taken on the 14th of July, 1789. If a

18 historical witness were to come and say that it was taken then and that in

19 a footnote the Tribunal would say it was repeated, this is not a Tribunal

20 making history, it simply makes references to a -- an accepted version of

21 history. Now, if somebody were to say: No, it was not on the 14th but on

22 the 15th of July, well that sort of a position would be noted. But let's

23 be clear about this: A historical witness is not here to deliver a

24 historical truth to the Judges of the Trial Chamber. The Judges can very

25 well make the difference -- or a distinction between the historical truth

Page 671

1 of something that is not disputed and something that would be tantamount

2 to speculations.

3 Regarding Witness Donia, he testified in various trials, on six

4 occasions. One of the first trials was the Blaskic trial, and straight

5 after the Prosecution case Witness Donia testified - see the transcript in

6 the Blaskic case - the Defence did not know that he was an expert witness

7 because his name had not been noted by the Defence counsel because the

8 name had been spelled wrongly, Dornia, with an R, instead of Donia, and

9 the research officer of the Defence team had not therefore seen that this

10 witness was going to speak to historical matters.

11 Your deadline was the 13th of April with regard to your remarks on

12 this witness. Of course he's going to testify, but this is the reason why

13 I now turn to the Prosecution, as was rightly pointed out by Mr. Karnavas.

14 There's no point in him talking about the Middle Ages. The Prosecution

15 will have to focus their questions on the very substance which is the

16 contents of the indictment. And, more specifically, on historical points

17 that may be of interest to the Judges; namely, the issue of the creation

18 of a Greater Croatia or the Banovina between 1939 and 1941. That's

19 important. So focus on that rather than what happened in 1341, because I

20 mean, intellectually I'm curious enough to read Donia's testimony in the

21 Blaskic case and I compared a statement with the Blaskic judgement. In

22 the Blaskic judgement there are a few footnotes related to this witness.

23 So what's the point of wasting a lot of time if it's really useless? Both

24 parties must understand, then, when a witness comes to the stand, it is to

25 enlighten the Judges. So your questions must be found in a judgement. If

Page 672

1 you put questions that have no interest, just don't put them. In this

2 way, both parties will be efficient. Because you put your questions for

3 the Judges' sake because they are the ones who have to rule on the

4 relevancy and also on the probative value of the evidence that was

5 adduced.

6 So this is what I wanted to say after the Defence counsels'

7 contributions. I am pleased as to the general setting they addressed. No

8 further comments on this.

9 Only this, Mr. Scott: For the Judges to see clearly - and also

10 this is for the sake of the Defence counsel - you stated that as you saw

11 things, you would need roughly 450 hours for the presentation of your

12 case. It would be useful for the Judges and the Defence to have an idea

13 of how you're going to break down this time witness by witness. How many

14 hours for Donia? Two hours? Three? 40 minutes? I don't know. Witness

15 115, how much time? 118, how much time? So I am now issuing an oral

16 decision whereby I instruct you to file submissions stating tentatively

17 how much time you will allocate per witness, to have a better idea. And

18 for the Defence to be able to say, No, you forecast four hours, that's not

19 enough. This is a good way to move ahead. So let's leave this subject

20 because we're got other, equally important issues to deal with and I am

21 afraid that we might not have enough time to deal with them all because

22 this is going to be our last Status Conference. And next time we meet,

23 indeed, it will be a pre-trial conference, which is designed to put a foot

24 in the door of the trial. So we've got other things to deal with then,

25 but now we have to move forward. In order to do so, I have to talk about

Page 673

1 the issue of the Defence counsel.

2 Two major problems have arisen. I'll mention them in open

3 session. No reason to do this in secret. Inasmuch as this issue may have

4 serious, enormous consequences on the way the trial is going to unfold.

5 One of the accused - let's not name it [as interpreted] - the Coric

6 accused, he wants to have another lawyer. He made submissions and

7 yesterday the President of the Tribunal denied the motion. As a Judge, as

8 the Presiding Judge of this Trial Chamber, when the trial opens I'm going

9 to be faced with the following situation: One of the accused does not

10 want to be represented by his lawyer. As a Judge, I cannot take part in a

11 parody of justice. I cannot start a trial if one of the accused rejects

12 his lawyer. This cannot be done. Therefore, we'll have to find a

13 solution. There are many options, but I'll have to deal with this during

14 the pre-trial conference with Mr. Coric.

15 The first possible option is that he would defend himself. Of

16 course, this is bound to raise another problem. Rule -- the practice

17 direction on the assignment of counsel, and it's Article 13, provides for

18 a similar situation: "When an accused files a motion for assignment of

19 counsel and this is denied, he can file a motion with the Trial Chamber,

20 and it is the Trial Chamber that has now jurisdiction, not the Registrar

21 or the President. And within two weeks, a decision has to be made. The

22 Trial Chamber can confirm the decision by the Registrar or decide that the

23 accused can pay for a counsel of choice or decide that counsel must be

24 assigned."

25 So during the pre-trial conference I shall mention this problem

Page 674

1 with Mr. Coric. I shall ask him what he wants to do, what he has decided

2 to do. Should Mr. Coric insist on having another counsel, and in the case

3 when the trial has started, the counsel he now has will have to start the

4 trial and stay in the trial for a certain period of time. This is what

5 the practice direction says. The best solution would be that the

6 co-counsel who would be appointed would take over later on. That would

7 ensure that there is no problem, but I say this very solemnly: It is out

8 of the question for me to take part in a trial in which the accused or an

9 accused would not be represented by a counsel of choice, a counsel he

10 trusts. If we were in a civil law system, at a stretch, it could be done

11 because the Judge can then step in, put questions directly to the accused.

12 And even if the lawyer does not do that job properly, that can be done.

13 But this is not so in this system, this adversarial system which is ours,

14 because the counsel represents the accused. The counsel is the one who

15 cross-examines the witness by putting their own questions. But it goes

16 beyond this. The counsel also has to prepare the next stage of the

17 proceedings, which is the collection of exculpatory or Defence evidence.

18 So there is a lot of work to be done in full trust, in a spirit of

19 confidence, between the accused and their representative, failing which

20 there is no fair trial.

21 So I'm very clear on this issue. It must be dealt with when

22 Mr. Coric is present, and he will have to tell us exactly what he wants to

23 do. It is, indeed, obvious. If we had only one accused, this is -- this

24 would be much more manageable, but we have six accused, many lawyers. And

25 the situation arising from one accused should not have a negative impact

Page 675

1 on the fate of the other accused. And if there is a waste of time because

2 of one, this should not have any bad consequences for the other accused.

3 Therefore, the Judges must be really attentive to this. It is true that

4 the practice direction does give powers to the Registrar. He can, in the

5 interests of justice, intervene. And of course the President of the

6 Tribunal has jurisdiction to decide on any challenge of an administrative

7 decision made by the Registrar. But it is in the superior interest of

8 justice for a trial to be in the best possible conditions and for an

9 accused to fully trust his counsel.

10 I've said this repeatedly in the past: The experience of this

11 Tribunal shows that if there is no such confidence, it happened that at

12 the appeals stage an accused who had been found guilty would challenge

13 this verdict by putting the blame on the fact that he had been badly

14 represented by his lawyer. So for an accused to be well represented, the

15 very minimum condition is that he fully trust his lawyers. I just wanted

16 to mention this to you so that we can find a solution during the pre-trial

17 conference.

18 Second problem related to counsel -- yes, did you want to take the

19 floor?

20 MR. JONJIC: [Interpretation] Thank you, Your Honour. Just one

21 sentence. Your words are the first news that the President has made any

22 kind of decision with respect to the demands of my client; and on the

23 other hand, I did not oppose that request, and I stress that the

24 confidence and trust between counsel and the accused is a vital

25 prerequisite for a proper defence and that that right should be more

Page 676

1 important than any right or practice of the Tribunal or of any other

2 courts all over the world.

3 JUDGE ANTONETTI: [Interpretation] Thank you very much for your

4 contribution. This, indeed, supports my remarks, my previous remarks. So

5 we'll come back to this later on when Mr. Coric is here, since he's not

6 able to tell us now what he wants.

7 Second issue: We now have a Reserve Judge who can replace a

8 judge, if necessary. In a trial which may take a thousand hours - and

9 this is a conservative figure - if a Judge is taken ill or breaks his or

10 her leg, his fellow Judge must be able to stand in for him. The same

11 should apply to the Defence team. There should always be two Defence

12 counsels. And for the -- we have to date some accused who have two

13 Defence counsels, but if I look at the list, I see here that for the

14 accused Petkovic, Ms. Alaburic is his sole Defence counsel for the

15 accused. So I've looked into the matter and I know that between

16 Ms. Alaburic and the Registry they are trying to work something out. I

17 hope that a solution will be found very shortly so that you will be

18 assisted by co-counsel.

19 As you know, the practice directive pertaining to the appointment

20 of a counsel states very clearly that the counsel must meet a number of

21 prerequisites. Some of the requirements have to do with a professional

22 with the experience of said counsel. The said counsel must have been in

23 that job for at least seven years. The Registry then looks into the

24 requirements to see whether the person is appropriate or not. This is

25 something I wanted to remind you of and I hope that we will find or come

Page 677

1 up with a solution very quickly so that there are at least two Defence

2 counsels for each accused. When I say "at least two," this is a

3 conservative figure because you have a very tall task ahead of you and

4 this means that it is better to share the workload and sometimes it's even

5 better to be three. So I hope that when this trial will start up on the

6 26th of April, all the Defence teams will have an appropriate number of

7 lawyers.

8 Ms. Alaburic, if you'd like to say something, you have the floor.

9 MS. ALABURIC: [Interpretation] I would like to say that on Monday

10 I addressed the Trial Chamber with an extensive submission to determine

11 that my colleague, Attorney Miljanic, who is on the team with me and has

12 been since April 2004, should be a subject of discussion and decision with

13 respect to two questions concerning conflict of interests and his

14 possibility to be engaged on my team regardless of what position he holds

15 in the team.

16 And the second question was relevant experience. That was the

17 subject. In my opinion, the -- there was a difference of opinion between

18 myself and the Registrar as to relevant experience, so I think that that

19 is another question that the Trial Chamber should rule upon. Mr. Orsat

20 Miljanic, for example, is -- has a different name on the list of teams.

21 He is informed of all the colleagues -- he knows all the colleagues on all

22 the different Defence teams. He has taken an active part on some issues,

23 and he is the sole person that has all the legal knowledge and facts at

24 his disposal so that if anything, God forbid, should happen to me, if I

25 fall off a bicycle or whatever, he can come into this courtroom and

Page 678

1 replace me and ensure the unimpeded continuance of the trial. I hope the

2 Trial Chamber has received my motion and that it can deal with it, and I

3 expect the Trial Chamber to evaluate all the documentation, all my

4 correspondence with the Registrar, the Prosecution, concerning this matter

5 and that it will give me a positive response and on that on the 25th we'll

6 enter this courtroom with a co-counsel who is fully competent and fully

7 apprised of all the legal aspects of this case and he would be my

8 co-counsel and associate. And if anybody is interested in having a good

9 co-counsel for General Milivoj Petkovic, then it is me as the lead

10 counsel. Thank you.

11 JUDGE ANTONETTI: [Interpretation] This was useful.

12 Mr. Scott, just a second, please, because I -- I'll give you the

13 floor later on. I wanted to respond to what Ms. Alaburic said. This was

14 very useful for the following reason: You've just told me that you have

15 seized the Chamber. I have not yet received your submissions, but let me

16 remind you of Article 14 of the Practice Direction. When a counsel is

17 being appointed - this is what is stipulated - a counsel can be appointed

18 when the Registry has been able to check that the name of the person has

19 -- is on the list -- on the 45(B) list of the Rules of Procedure and

20 Evidence, that the person has no criminal file, et cetera, and speaks more

21 than one language. So there is an administrative proceeding here that has

22 to be taken into account when the Registry decides on one or another

23 person. If the Registry dismisses it at the administrative stage, one can

24 then turn to the President, if need be. I think all this means a lot of

25 waste of time. It would be much better if the Chamber were to decide, but

Page 679

1 my predecessors have followed administrative routes, whereas here we are

2 in a -- in a judicial system.

3 Whatever the case may be, the procedure should be as follows: If

4 the Registry does not want to approve the name of your counsel, you should

5 then turn to the President. And it is only then that you file a motion

6 and seize the Chamber. This is the procedure which we adopted in

7 Praljak's case. Let me remind you that Praljak had a counsel which was

8 appointed, but the Registry did not approve the name of -- did not approve

9 this counsel. We went through a number of procedural matters, and then at

10 the end of the day the Trial Chamber ruled on this.

11 The Trial Chamber rules on this once all administrative solutions

12 have not been found. So if you -- the Registry does not agree with your

13 proposal and you refer the letter written by the Registry to the President

14 and the President then rendered a decision, and then you turn to the

15 Chamber again in the last resort.

16 MS. ALABURIC: [Interpretation] We have a decision by the Chamber

17 -- well, not the Chamber, the Registrar, I'm sorry. I mean the

18 Registrar. The situation is relatively complicated. Mr. Miljanic was

19 supposed to be my co-counsel and he entered his name under the list and he

20 comes under Rule 44, the list Rule 44, but he wasn't accepted on the list

21 for Rule 45. And after that, we as a team thought that he could be a

22 legal assistant, and then we'll seek another counsel who, in view of

23 Mr. Miljanic's position on the Defence team, will be able to be somebody

24 who is not as well-versed with the factual and legal aspects of this case.

25 And Mr. Miljanic continued to cooperate on the team until the end of

Page 680

1 January 2006, that is to say for almost two years, he has been working on

2 the case for two years, when we were informed by the Registry that there

3 were impediments to his being appointed to any position on the Defence

4 team because of a conflict of interest. The conflict of interest,

5 briefly, was contained in the following: Mr. Miljanic was, among other

6 things, from 1996 to 2000 employed in the Croatian embassy in The Hague.

7 Among other things, he worked on matters linked to this Tribunal. He

8 represented the Republic of Croatia in this courtroom. From the year 2000

9 to 2002, he was the head of the government department for Cooperation with

10 The Hague Tribunal. After that, he was assistant and later on deputy of

11 the Croatian Minister for European Integration, and in 2004, at my

12 invitation and persuaded by me, he came to our legal offices and we worked

13 side by side in the building. At the end of 2006 [as interpreted], we

14 learned that there was a problem of an alleged conflict of interest. We

15 tried to clarify what this was all about, but we did not arrive at a

16 single concrete matter which would be a basis and which would be grounds

17 for considering conflict of interests. There was no conflict of interest.

18 It was not presented from the aspects of jeopardising the Defence of the

19 accused Petkovic, but what the observation made was as follows: The

20 Republic of Croatia was, according to international acts, duty-bound to

21 cooperate with the international Tribunal, go everybody in the Croatian

22 authorities who in any way whatsoever provided material for The Hague

23 Tribunal or the Prosecution can be considered to be a participant in the

24 research and investigation against an accused, and that is to say somebody

25 who worked on the side of the OTP and for the OTP.

Page 681

1 So basis on -- based on my memory, I will quote Mr. Scott. He

2 said that it was as if the -- this individual worked for two opposing

3 sides. I consider that a presentation of this kind of the duties

4 conducted by the people in Croatian institutions cooperating with The

5 Hague Tribunal is completely unfounded because the government office is

6 also duty-bound to cooperate with certain Defence and individual Defence

7 teams, as well as to help Defence teams as mediators, to access certain

8 institutions who have the necessary documents. And not to go into too

9 many details what government departments do, because there is a regulation

10 that governs the work of that government department, it is highly

11 transparent, all of us here cooperated with that department as Defence

12 counsel over the past two years, and we know full well that nobody working

13 in that office or department cannot be considered as a participant in some

14 sort of police prosecuting investigation against anybody.

15 So that's what I wanted to say so far by way of explanation.

16 Perhaps Mr. Scott will be able to present certain details about conflict

17 of interests. If he does, we're ready to discuss each of those details

18 and we would be happy to do so in open session, if need be. If we need to

19 clarify this, we can do this quite transparently and openly in open

20 session. Thank you.

21 JUDGE ANTONETTI: [Interpretation] Well, I will give the floor to

22 Mr. Scott, but as far as Rule 45 (B) is concerned, the prerequisites for

23 assignment are as following: This has to meet the requirements of Article

24 14, have relevant experience in humanitarian law and international law,

25 human rights law, and have seven years' experience as a judge or

Page 682

1 prosecutor in the field of criminal law. These are the prerequisites. So

2 I don't see where we can come up against a conflict of interest here.

3 But, Mr. Scott, would you like to say something about this,

4 please?

5 MR. SCOTT: Yes, Your Honour. That's the reason I was on my feet

6 earlier, because I'm not sure -- I wasn't sure how far we were going to go

7 and I wanted to make sure there was no misunderstanding about the

8 situation or about the Prosecution's position.

9 We do oppose Mr. Miljanic's involvement and there are very serious

10 issues concerning his involvement in this matter which I think will be

11 better dealt with in written submissions in which we can detail a number

12 of matters that the Chamber should be informed about, but we do believe

13 there is a definite conflict of interest, that Mr. Miljanic has been

14 involved in certain things in the past that are very contrary to his

15 representation of this client at this time. And if he was involved for

16 some previous period of time, that's unfortunate, but the Prosecution was

17 never informed and never asked for its position. So that's indeed

18 unfortunate, perhaps, but having been advised of Mr. Miljanic's possible

19 role in the case a few weeks ago, we did in fact communicate, at the

20 request of the Registrar, our position, that is our position, and if we

21 get to the point the Chamber wishes to consider the matter, we will make

22 extensive written submissions on that which will detail Mr. Miljanic's

23 problems. Thank you.

24 JUDGE ANTONETTI: [Interpretation] Very well. So you say that the

25 Prosecution is of the view that there might be a conflict of interest. I

Page 683

1 don't know the reasons for that, but I shall await your submissions and we

2 shall rule on this matter once we have been provided with the relevant

3 material.

4 I shall now move on to the other points which are -- other items

5 which are on our agenda. In item 2, we had talked about the time allotted

6 to the Defence. This issue was raised already. If I am to sum up the

7 position of Defence counsel, you have all clearly stated that it is very

8 difficult to narrow your time to something specific. This has triggered

9 the following remarks on my part: This is not a new issue in this

10 Tribunal. I would like to refer you to the Kupreskic case and the Kvocka

11 case. This issue was also addressed in those two trials. In the

12 Kupreskic case it had been -- the Bench had specified -- let me remind you

13 that there were a great number of people involved in that case. When the

14 Prosecution had a specific allotted time, the Defence overall had -- was

15 allocated the same amount of time. To be more precise, if the Prosecution

16 has two hours, the Defence then also had two hours, and those two hours

17 were divided between the accused. If there were four accused, you had to

18 divide those two hours by four. So much for the Kupreskic jurisprudence.

19 In the Kvocka case, the same principle had been applied. If a

20 Defence counsel did not wish to use up his or her time, another Defence

21 counsel could benefit from his or her time. As far as this Chamber is

22 concerned, it's a matter of course which I will, however, have to refer to

23 my fellow Judges. But what I had said initially, which I think is a good

24 guideline, it would be appropriate to make a distinction between the facts

25 on the one hand and the individual criminal responsibility of each accused

Page 684

1 on the other hand.

2 As far as the facts are concerned, you had the dossier Gornji

3 Vakuf in front of you a few minutes ago. Gornji Vakuf is something which

4 pertains to a number of counts. Therefore, can this be dealt with within

5 a particular time-frame by the Prosecution? And then you agree amongst

6 yourself to decide that one or other Defence counsel will cross-examine

7 the witness and the other Defence counsel will intervene if need be. We

8 then have equal time on both sides. You want to avoid Defence lawyers

9 saying the same thing and duplicating what has already been said. So it

10 is a matter of rendering this as efficient as possible.

11 So it would be beneficial for the Defence to respond as following

12 -- I'm just quoting Gornji Vakuf by way of illustration. The lawyer who

13 would be cross-examining would focus all his attention on the

14 cross-examination of the witness. The other Defence counsel could then

15 prepare further cross-examinations in that time. Then you exchange your

16 points of view, but as you have all said, Defence teams cannot be taken as

17 a whole. I understand that. You are Defence counsel of particular

18 accused who have been charged with particular crimes. Therefore, once we

19 are going to talk about looting, destruction, abuses, do the six Defence

20 counsel then have to ask the same or put the same questions to the

21 witness? I think this would be very unrealistic. I think it's for you to

22 agree on this and one counsel should be responsible for the

23 cross-examination. Of course, the other Defence counsel can stand up and

24 say something if they so wish, but I think we have to settle this issue.

25 When we will address JCE and individual criminal responsibility,

Page 685

1 then of course each Defence counsel has the same amount of time. There is

2 no question of having Mr. Prlic's Defence counsel cross-examine the

3 witness in the name of Mr. Praljak. It's then Mr. Prlic's individual

4 criminal responsibility which is at stake, so that wouldn't work.

5 You have to consider this and understand that we have a time

6 constraint, because as I've mentioned in the order I issued, if I were to

7 calculate all of this, three years for the Prosecution, three years for

8 the Defence, we would still be here in 21 years' time. So I think you

9 have to agree on this amongst yourselves. I know there may be differences

10 between you, but some witnesses will be called to testify -- let's take

11 the case of Mr. Donia. When Mr. Donia is called to testify, do you each

12 need to cross-examine him? Unless, of course, you feel that you need to

13 put a very specific question because it relates to your Defence case, and

14 I think there are economies of scale that could be achieved when Mr. Donia

15 is being cross-examined, for instance. This means that you have to

16 discuss this matter beforehand and work out the way in which you are going

17 to proceed with your cross-examination. You can even prepare a plan, if

18 need be, a work schedule. This might be more interesting if you all go

19 into the battle at different times. So you have to find a solution. We

20 are a few ways away from the beginning of this trial and we still haven't

21 come up with a solution. What we could say is that the Trial Chamber

22 renders a decision and then you just have to abide by that, but I think it

23 would be much better to find a solution on a consensus basis. So as I

24 think it is better to have a consensus, I shall give you all the floor.

25 The Prosecution, do you have an opinion on this matter? Do you

Page 686

1 have something to say?

2 MR. SCOTT: Your Honour, our position is the one that we've

3 stated, that, for practical reasons, including the fact that the

4 Prosecution has to schedule its witnesses with some specific number in

5 mind, we just can't simply wait, whether it's two hours, two days, three

6 weeks later, and then have the next witness come, we have to make very,

7 very practical decisions on when to schedule the next witness. So until,

8 as Your Honour says -- and since we've been talking about this since

9 November, so something like six months now, without any resolution, the

10 only resolution is that the general rule of thumb be that it be a

11 one-to-one ratio; one hour for the Prosecution and one hour for the

12 Defence combined, unless some very compelling justification or exception

13 can be shown.

14 JUDGE ANTONETTI: [Interpretation] Thank you.

15 Mr. Karnavas, it's now 20 past 12.00. We have to have a 20-minute

16 break. In this time, you get together with your colleagues, find a

17 solution, and in 20 minutes' time you'll have the floor.

18 The hearing stands adjourned.

19 --- Recess taken at 12.25 p.m.

20 --- On resuming at 12.52 p.m.

21 JUDGE ANTONETTI: [Interpretation] Very well.

22 Mr. Karnavas, you now have the floor.

23 MR. KARNAVAS: Thank you, Your Honour. Just a couple of

24 observations I wish to make with respect to the timing and

25 cross-examination. First of all, the Prosecution may choose to put on a

Page 687

1 very limited direct, leaving out areas which the Defence may feel are

2 relevant. Clearly, under those circumstances, the Defence would be

3 entitled to go beyond the scope of the direct examination. I don't think

4 that there is any question about that. As long as the area is relevant,

5 the Defence should be able to go into those areas, so -- and I say this

6 because the Prosecution cannot use that for tactical purposes. Otherwise,

7 the solution would be for the Defence to then call that very same witness

8 back in order to do a direct examination in areas which were relevant, and

9 this of course would be timely, would be costly, would be unnecessary.

10 Second of all, I wish to bring to the Court's attention that there

11 may be times when a particular witness, through cross-examination -- you

12 know, the Defence may wish to introduce certain evidence, whether it be

13 documents or go into areas -- question the witness into certain areas,

14 setting up, for instance, a point that will be made later on. So just to

15 give an example, for instance, the Prosecution does its direct examination

16 through this particular witness I have identified where I might be using

17 -- might be able to use this witness as a vehicle to introduce certain

18 evidence, to tender certain evidence for admission, and also to pose

19 certain questions to this witness that were not raised by the Prosecution.

20 Of course, this is a time-consuming process, and it would go -- it would

21 take more time, perhaps, than the Prosecution may have envisaged, given

22 the limited direct examination. I think we need to keep in mind that the

23 Defence can no more control the Prosecution's direct examination; you

24 know, they're entitled to put on their case. I can't put on any

25 limitations, and I certainly can't force them to go into areas of direct

Page 688

1 examination which might be relevant and might be exculpatory for the

2 Defence. On the other -- they don't have that obligation and I'm not

3 imposing one on them. On the other hand, the Prosecution cannot prevent

4 me from going into areas which are relevant and may be exculpatory to the

5 Defence. And I think there should be no disagreement between the parties

6 on that issue.

7 So when we look at the time allocated, I totally and fundamentally

8 disagree with the Prosecution that it should be one for one. I don't

9 think it's possible and I don't think it's practical. If we're going to

10 proceed in that fashion, it would be somewhat like if we're playing speed

11 chess. We would each have our clocks, and then we would stand up, we

12 would hit the timer, and off we go, and of course if I were to spend less

13 time on one particular witness, I should somehow be accredited with a

14 certain amount of time that I might be able to use with another witness.

15 And then it becomes a charade, where we're each, with our own stopwatch,

16 are keeping track of how much actual time we use in order to make sure

17 that we have this parity one-on-one. I don't think that's what this Court

18 envisages.

19 One last point -- and I agree with Your Honour when you say we,

20 the Defence, should try to work among ourselves. To some extent that's

21 possible, to another extent it isn't. I think at some point we are going

22 to be taking different routes and we have different interests and of

23 course every one of the accused had a different function during the

24 relevant period of the indictment. So we each have our own respective

25 client to represent.

Page 689

1 But with respect, to, say, accused Coric, if indeed he is given a

2 new counsel who is going to come basically with a blank slate, even if he

3 is to have the assistance of Mr. Jonjic, who in my opinion knows the facts

4 better than anyone else of the Defence, has probably seen more documents

5 than anyone else and, in my opinion, is an outstanding lawyer and a true

6 professional and I'm proud to be a member of the same, you know, company

7 with Mr. Jonjic. But if we -- if he -- Mr. Coric is to have a new counsel

8 who doesn't know anything about this case, I don't see how we can meet --

9 we can sit down and agree to allocate time with someone who may not know

10 what is or isn't relevant. So there is that added concern.

11 And I think there's some technical issues that we need to keep in

12 mind, and I go back to what I fundamentally said before: If the area is

13 relevant, nothing should prevent Defence counsel from going into that --

14 those areas, making -- asking the relevant questions, and then moving on.

15 I know that if I'm not permitted to go into certain areas which are

16 relevant, I can anticipate what I'm going to be doing because I've done

17 this before in cases in the United States where the Judge wanted the

18 process to move along, because I think Judges all over the world are

19 basically the same; they all want the case to proceed as efficiently as

20 possible and they're all worried about their calendars, and that's rightly

21 so. On the other hand, what I would normally do is I would present a list

22 of areas that I thought were relevant in order for me to preserve the

23 rights of my client and to make the appropriate record. Normally, with

24 some discussion, we are always able to find an elegant solution where

25 perhaps the Judge would say: Well, maybe this area is already

Page 690

1 established, this is not necessarily relevant, but I'll let you have a

2 certain amount, and normally we were able to find some solution. But in

3 any event, that would be my approach and I just say -- I just say this for

4 the record, that perhaps this is something the Trial Chamber should

5 consider, keeping in mind always that we are representing different

6 clients with different interests and we have different theories with

7 respect to many areas of trial. Thank you.

8 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Karnavas.

9 MS. NOZICA: [Interpretation] Your Honours, thank you. Once again

10 I have to fully support what Mr. Karnavas said. I need to add three

11 important issues. The first one is that the proposal advanced by the

12 Prosecution to have time ratio split one-to-one is generally unacceptable

13 for all the reasons mentioned by Mr. Karnavas. If we analyse the case as

14 a whole, I think there will be situations where Defence will not use its

15 right to cross-examine, or it will use up much less time than the

16 Prosecution used in examination-in-chief.

17 As for any possible agreements among Defence teams, sometimes that

18 will be possible. When it comes to general questions, to witnesses giving

19 evidence about all of the accused together, without going into individual

20 responsibility, yes, in those cases it will be possible to agree and we

21 will inform the Chamber about that.

22 As for the third, I think that it is beyond dispute that all

23 Defence teams will be putting only relevant questions in their

24 cross-examination and that there will be no repetition mentioned by you.

25 I think that ultimately we have proven that to you by our conduct in

Page 691

1 Status Conferences. Therefore, we do that in all cases where it is

2 possible for us to agree with what was said previously so that we don't

3 use up anybody's time. Thank you.

4 MR. KOVACIC: [Interpretation] Your Honour, it seems I don't have

5 much to add. Mr. Karnavas and Ms. Nozica said everything that I agree

6 with. I think that Mr. Karnavas perhaps did not articulate clearly enough

7 the other controlling element, and that is this: The time used up by

8 Defence in cross-examination has to be controlled by two standards; the

9 first one is relevancy and the second one is avoiding repetition. I think

10 that both standards are in the hands of the President of the Trial Chamber

11 and that you will always be able to ask for a clarification as to why a

12 certain question is important or relevant for Defence, and you will either

13 get a satisfactory explanation or not. And then you will be able to

14 discontinue, to order that any further cross-examination be discontinued.

15 When it comes to repetitive questions, then naturally the same applies

16 here. It is possible that, say, the sixth Defence counsel repeats the

17 question put before. Yes, those instances are possible, but they

18 shouldn't be applied as a rule.

19 Another matter that we have to keep in mind is that we have

20 witnesses that belong to various categories and will give evidence about

21 various facts. Based on the lists that we have seen, it seems that the

22 Prosecution intends to call a lot of witnesses to testify about the

23 existence of joint criminal enterprise, the control exercised by Croatia,

24 and so on. Therefore, I think that there -- in those cases there won't be

25 a great need for each Defence counsel to examine -- cross-examine witness

Page 692

1 in detail because there will be little left for the one who comes last,

2 other than to put repetitive questions. And I think that we might see an

3 unwanted impact here because it could be that the third or the fourth

4 Defence counsel to stand up will have nothing to say because everything

5 will have been covered by then.

6 And then the next category are the witnesses testifying about

7 minor events. If my client has nothing to do with those minor events,

8 then naturally I won't be putting any questions. I might ask something

9 just to clarify some minor details, but other than that I won't have

10 anything. So we have different kinds of witnesses which means that

11 Defence teams will use different approaches. I think the only approach to

12 an efficient control of time is to stick closely to these traditional

13 elements which are relevancy and avoiding repetition.

14 As for the allocation of time, which is a method applied in many

15 courtrooms but, once again, not applied in many other cases - and both

16 positions can be defended - I think that the allocation of time would

17 produce this stopwatch trial and that would result in all the technical

18 difficulties that my colleague mentioned.

19 MS. ALABURIC: [Interpretation] Your Honour, as for the allocation

20 of time, I have four points to present. I think that the length use --

21 the length of examination-in-chief is not relevant to determine the time

22 needed in cross-examination because we not only have to deal with the

23 substance of examination-in-chief but also with the substance of documents

24 which are tendered through that particular witness as well as the

25 substance of the statement or evidence given by that witness. So when we

Page 693

1 take all of that into account, then that is the entire quantity of time

2 needed to examine that witness. That, in turn, would mean that the

3 Defence would need more time for cross-examination than what the

4 Prosecution used for examination-in-chief precisely because of the

5 documentation tendered through the witness. So looking purely at the

6 length of examination-in-chief is not relevant enough to determine how

7 much time will be needed for cross-examination.

8 Now, Rule 82(A). I, as one of the Defence counsel, expect that my

9 client will be allotted an identical period of time because he needs to be

10 -- he needs to have the same rights as all other accused. So we have to

11 take the rights of each individual accused separately because those rights

12 are guaranteed to all of them.

13 Third, since we need to plan our time realistically, naturally we

14 must make sure that we are not repetitive in our questions. We also have

15 to count that some events will not touch upon the status of each of the

16 accused. So I think that when rationalising time and when planning time -

17 and this is something that is important for the Prosecution and their

18 schedule - we can be somewhat flexible so we don't always use up

19 one-to-six ratio but can also use some other proportions.

20 Fourth, even if we were to set a mathematical formula, I think the

21 main criteria that should guide us must always be relevancy and if

22 evidence of some witness is extremely relevant, I think we need to allot

23 extra time. Thank you.

24 MR. JONJIC: [Interpretation] Your Honour, I join my colleagues in

25 what they said before me. I consider that a mathematical division of

Page 694

1 time, the time allotted to the Prosecution and Defence, is not the right

2 way to go about it because it would be to the detriment of the accused and

3 their right to a fair trial. And the only criteria that can be applied

4 and should be applied in the examination and time for examination is

5 relevancy and non-repetition. Thank you.

6 MR. IBRISIMOVIC: [Interpretation] Your Honour, it is quite obvious

7 that the Defence and Prosecution have quite opposing positions when it

8 comes to the time needed for examining and cross-examining witnesses. I

9 think, in general terms, that this ratio cannot be one-to-one. The

10 Defence will need far more time for its cross-examination. Of course,

11 this should be reasonable and you're probably going to give us some

12 guidelines about that, how to use time as rationally as possible.

13 Now, as for the other question that was raised, that one Defence

14 counsel should ask questions on behalf of all Defence counsel, that is

15 possible on some occasions but otherwise it would be impossible because

16 each Defence team must have the right to ask questions that they consider

17 important for the Defence of their client.

18 I have said this at other Status Conferences: Sometimes there are

19 things that you cannot incorporate into mathematical calculations. There

20 might be a question that is important for either the Prosecution or the

21 Defence, but judging on the experience I have so far, Your Honour, we

22 found an elegant solution, an elegant way around this so that it was

23 neither the Prosecution nor the Defence that was curtailed of its right of

24 conducting an examination in their best interests. Thank you.

25 JUDGE ANTONETTI: [Interpretation] Mr. Scott.

Page 695

1 MR. SCOTT: Very briefly, just two minutes.

2 What we see here illustrates exactly what the Prosecution's

3 concern is, and that is this: We will have one set of rules for the

4 Prosecution in which the Prosecution time is strictly limited and our

5 entire case is being limited and what we can do; and then when it gets to

6 the Defence side, there won't be whatever rules, it will be whatever time

7 is reasonable. Well, I would like to have that same flexibility, too. I

8 would like to have as much time as I think is reasonable for putting on

9 the Prosecution case. If the Chamber doesn't give me that, if the Chamber

10 says you're limited to 450 hours, or 300 hours, then I don't have the

11 flexibility to be "reasonable."

12 So I have to say in the strongest possible way, Your Honour, if

13 the process evolves where we have one set of rules for the Prosecution and

14 another set of rules for the Defence, that is entirely unacceptable to the

15 Prosecution.

16 In terms of scheduling, Your Honour, as I've said before, for

17 everyone else in the courtroom at the moment and, in all respect,

18 including the Court, these are very interesting but academic issues. This

19 is a very real issue for the Prosecution because we have responsibility

20 for scheduling and getting the witnesses here. In a few days we're going

21 to have to give you a calendar, that you've asked us to do, the list of

22 witnesses and who's coming when. We have to have a set formula for

23 determining when the next witness comes to The Hague. We are not going to

24 have, Your Honour, three or four or five witnesses sitting here in The

25 Hague, waiting, and not knowing how long cross-examination will be. We

Page 696

1 cannot bring these people from Bosnia and say: We don't know how long

2 you'll be in The Hague, ma'am. You may be there five days, you may be

3 there three weeks, because we don't know how long cross-examination will

4 be.

5 We are going to give you a calendar. If there is no other rule or

6 no other principle that's agreed upon, when we give you that calendar in a

7 couple of days, just so there is no surprise, and I'm trying to be as

8 transparent as possible, we're going to base it on a ratio of something

9 like two or three to one and we will make and plan our witnesses

10 accordingly. And then, on a given day, if, lo and behold, the Defence

11 doesn't use as much time and there is no witness available because we

12 don't have a witness in The Hague, then we won't have a witness.

13 But we have to have a certain formula. It doesn't just float in

14 the air. We have to make decisions and scheduling based on specific time

15 limits. That's all I can say, Your Honour. We simply cannot float around

16 and then call up tomorrow to Sarajevo and say: Hey, all of a sudden we

17 need a witness tomorrow, who can you get here overnight? You know, Your

18 Honour, it doesn't work that way.

19 So unless there is some other resolution, the schedule we are

20 going to give you some days, a few days from now, is going to be based on

21 a three-to-one ratio, and if it turns out we don't have a witness on a

22 given day, Your Honour, just remember this day, the 12th of April, and

23 I'll say, Your Honour, that's what we planned on and it's unfortunate that

24 we don't have a witness available in The Hague, but that's the only

25 formula that we could use.

Page 697

1 MR. KOVACIC: Your Honour --

2 JUDGE ANTONETTI: [Interpretation] Mr. Scott, could you be more

3 clear as to this ratio three-to-one, which I find on line 19, page 82.

4 MR. SCOTT: What I mean by that, Your Honour, is that if, for

5 instance, the Prosecution thinks the direct examination will take two

6 hours, we will assume that total cross-examination will be six hours. So

7 therefore when we fill out the calendar, we will allocate a total of eight

8 hours for that witness, which is more than two trial days. And if that

9 time isn't used and, Your Honour, you say to me: Mr. Scott, call your

10 next witness, and if we haven't brought a witness to The Hague, we just

11 won't have a witness, because we have to have some rule to be governed by.

12 JUDGE ANTONETTI: [Interpretation] Very well. Well, we're moving

13 ahead step by step. The Prosecution is going to give us a calendar with a

14 ratio of three-to-one. Let's take an example. If for the first witness,

15 a female witness, he has scheduled two hours, in this calendar there will

16 be for the entire testimony eight hours, including six hours for the

17 cross-examination and two for the examination-in-chief. Therefore, this

18 witness will be scheduled for at least two hearing days.

19 Now, let me turn to the Defence.

20 MR. KARNAVAS: Thank you. First let me go back to what Mr. Scott

21 said earlier about flexibility, because I don't want there to be any

22 misunderstanding. We on the Defence side are certainly not advocating

23 that the Court should not be flexible with the Prosecution. They should

24 put on their case however they see fit. So I just want to make sure that

25 that's -- we're clearly understood on that. And I certainly don't think

Page 698

1 there should be a double standard, one for the Prosecution, one for the

2 Defence, whether it benefits either side. I think there should be one

3 standard. I think, and I speak for all of my colleagues, we want to make

4 sure everybody's treated fairly, and from what I see, the Prosecution is

5 getting their fair share at this -- so far.

6 With respect to this formula, I don't have any objections to this

7 formula, although I don't want to be -- what I seem to be hearing is

8 constantly the Defence is being blamed for the Prosecution not being able

9 to do whatever they need to do. If, for instance, the Prosecution were to

10 provide us with a list of 10 or 20 witnesses that they anticipate of

11 having, their first batch of witnesses, okay, he wants to be transparent.

12 What is preventing him from being transparent? I haven't said: Don't

13 give me that list. I welcome the list. Give me the list. And then I

14 will sit down with my colleagues and say, okay, this is how much we

15 anticipate from each of these witnesses and then he can plan ahead. So

16 nothing is preventing the Prosecution from being as transparent as

17 possible. But what are they doing? They are waiting until the very last

18 day, and then they come into court and then Mr. Scott always wants to

19 blame the Defence. I think it's a little unfair. I'm willing to work

20 with the gentleman, as all of my colleagues are. He can give us the list.

21 He wants to do it in blocks, then we'll do it in blocks. I understand the

22 difficulties of trying to get someone over here at the last minute. I

23 also know that you don't want to have witnesses staying here for more than

24 one or two days before testifying. So we all understand that. We're all

25 professionals.

Page 699

1 If we have a list in advance, okay, and if we do it in subject

2 matter, we would be able to sit down and we could discuss with the

3 Prosecution, and there are going to be times when we just cannot agree.

4 We'll agree to disagree. But I think most of the times we'll be able to

5 come up with some sort of an agreement. Because if we say, as a block,

6 that we believe it's going to take X amount of time, we would have to

7 justify why we came up with this particular figure. So if you ask me

8 Donia, three days, I can tell you why. It's not a mystery. So if

9 Mr. Scott wants to give us that list today, we can start working on it

10 this afternoon. And I assume that he has that list. I don't want to

11 prevent him from being as transparent as possible. Thank you.

12 MR. KOVACIC: Your Honour, I will be very brief. There is another

13 detail. The Prosecution is complaining that they won't be able to plan

14 ahead, and perhaps for that reason sometimes they will lack a witness or

15 two so there will be some leave time for everybody, or that they will

16 sometimes be forced to keep a witness for too many days in The Hague.

17 That is simply not correct. There is a huge experience in handling the

18 witnesses and planning of their testimony. We are not here -- we are now

19 in, what, 10, 12 years of functioning of this court. The Prosecution is

20 the same team. They have the knowledge. In addition to that, there is a

21 unit which cares about witnesses and victims, which is, by the way, the

22 best department in this court. There is absolutely a perfect experience,

23 perfect management, and perfect knowledge. My dear colleague Mr. Ken

24 Scott was -- we were in the same courtroom in Kordic. I don't remember

25 there -- perhaps it was once, one morning, when witness was not planned

Page 700

1 for this morning and we lost, I don't know, maybe half a day of the

2 trial. And there we didn't have the time as controlled for the cross.

3 Despite all of that, the planning was good.

4 And I would say that there is also an instrument. After a while,

5 after three months or four months of the trial, then we could make

6 statistics and then you will see that all what is the Prosecutor now

7 promising about three hours for a witness, Your Honour, with all due

8 respect, we will not see such a witness, because in earlier trials the

9 average for the Prosecution was more than a day. About -- one day point

10 two or one day point four for one witness, and it cannot be credited only

11 to the Defence. So planning purposes with the Prosecution is now

12 representing as a major concern is not a concern. Realistically, it is

13 not. Thank you, Your Honour.

14 MS. ALABURIC: Excuse me, I have a comment.

15 JUDGE ANTONETTI: [Interpretation] Yes.

16 MS. ALABURIC: [Interpretation] Just one remark. I simply consider

17 that we must not pass over the opinion that the accused -- that

18 the accused would be -- or rather, would not receive the necessary

19 provisions and that the Defence would be overprivileged. I want to say

20 that I will fight for the rights of the Prosecution equally when they

21 conduct the cross-examination or, rather, if I and my Defence team should

22 be given, say, 200 hours for the examination-in-chief, I shall consider

23 that the Prosecution has at least that much time for the

24 cross-examination. So in the total number of cross-examination hours, the

25 Prosecution will have six times more or, rather, equal to the Defence. So

Page 701

1 it is equal arms for both sides and equality of arms on both sides. Thank

2 you.

3 MS. NOZICA: [Interpretation] Thank you, Your Honour. I feel that

4 this is very simple and that there's just one right solution here, which

5 was stated by Mr. Karnavas, but I want to simplify it even further. Let

6 the Prosecution give us a list of witnesses which they are going to

7 examine during month of May, for example, a list of exhibits which they

8 are going to introduce by those witnesses, and we shall inform them within

9 a time limit which you set, inform you how long we need for the

10 cross-examination once we have reached an agreement. So that's a simple

11 process and we can continue that practice in future and I don't think

12 there will be any problem on that score. Thank you.

13 JUDGE ANTONETTI: [Interpretation] Very well. You stole my words,

14 as it were. I was about to say exactly the same. In order to see

15 clearly, it is necessary for everybody to have the chart I asked you to

16 draw up.

17 Secondly, the Prosecution must very shortly give to the Defence

18 and the Trial Chamber the list of the Prosecution witnesses, of course,

19 together with the exhibits to be introduced through the witnesses and the

20 estimated duration of each testimony. The Prosecution can take but only

21 tentatively this ratio three-to-one, and in this way we can move forward.

22 My conclusion is this: Following the contributions by the Defence

23 counsel, I believe that they do all want to be efficient. They realise

24 that we should waste no time. I'm firmly convinced that all of the

25 Defence lawyers will look into your list with great attention, will meet

Page 702

1 with you, because that's what they suggested, and you will, surely, arrive

2 at some kind of agreement and then you'll let us know. Should there be

3 further points of disagreement, we shall rule on them.

4 Most of the Defence counsel present here have prior experience in

5 this Tribunal. They are familiar with this type of problem. There's no

6 reason to believe that the problem that may arise is insurmountable. No,

7 it can be dealt with. At the very least, to start with, is that the

8 Defence should have the tentative planning for the Prosecution witnesses.

9 Based on that, the Defence counsel will tell the Prosecution how much time

10 they need for the cross-examination, and we might come to an agreement

11 within this ratio of three-to-one. Maybe it will be one-two or one-one,

12 who knows. And if ever there is a real problem, we shall rule. My

13 previous experience tells me that we always manage to find a solution.

14 We must start the trial, and then, depending on problems, we shall

15 adjust the proceedings. You are quite right, Mr. Scott, together with the

16 Victims and Witnesses Section you must sort of arrange your planning for

17 the witnesses to come and then pass it on to the Defence. They will tell

18 you whether they need the same amount of time as you do or twice that

19 time, and then you will tell me if there are problems. We're going to

20 meet again anyway for the pre-trial conference and we can tackle this

21 again, but until then, do give this table.

22 You wanted to take the floor, Mr. Scott?

23 MR. SCOTT: Thank you, Your Honour. Just very quickly, because I

24 think the last item on your agenda is the schedule or the charts, perhaps,

25 which we have been preparing and, indeed, I agree that when those are

Page 703

1 provided, and we will provide a list of all the witnesses, you know,

2 tentatively, because as we indicated before, there could be a chance that

3 someone in the middle of June can't come, but we will provide a schedule

4 in the next couple of days of the witnesses through the July break.

5 There's no mystery about that. It's been on the schedule for some time.

6 I would note, however, as mentioned during the last Status

7 Conference, we gave the Defence more than a week ago the list of our first

8 six witnesses. So that is not a secret. And Mr. Karnavas has already

9 told us that for Mr. Donia, even though the direct examination may only

10 take a couple of hours, that he's going to take two, three, or four days.

11 So that's already exceeding a three-to-one ratio. We'll just agree, Your

12 Honour, we'll see how it does. We'll provide the schedule and we'll ask

13 the Defence to then come back to us in a very short time with their

14 indicated cross-examination so that we can then plan accordingly, but we

15 have to have that more than just a day or two ahead of the witness. They

16 have to come back to us quite quickly, then, based on our schedule, with

17 the stated times for cross-examination, and we will try to go forward on

18 that basis.

19 I would like to say, Your Honour, when we said for planning

20 purposes that we would agree to something like two-to-one because we have

21 to use something and we don't want to underestimate, let us be very clear,

22 that was no indication that accept that as a general principle. We do not

23 agree that all cross-examination should be three-to-one. If there is

24 repetitive questions, and duplicates and cumulative questions, we will be

25 objecting to that. So I don't want to be misunderstood that we were

Page 704

1 giving approval to a certain ratio. We were simply saying for planning

2 purposes only we had to have some number to use. Thank you.

3 JUDGE ANTONETTI: [Interpretation] Also no comments as regards what

4 you've just said. However, there's something which caused some surprise.

5 You said Mr. Karnavas needed -- would need four days to cross-examine

6 Mr. Donia. I must say this comes as a surprise to me. I'm somewhat taken

7 aback. Mr. Donia might be an interesting witness, but on reading his

8 report and how this relates to the indictment, I would say that one day is

9 quite enough. The Defence will see what is fit, but as far as Mr. Donia

10 is concerned, I don't think we should repeat what was done in the Blaskic

11 case where Mr. Donia was heard for a number of days and the outcome was

12 not very relevant. As far as the Judges are concerned, this was of no

13 particular interest.

14 So I should like to move on to another topic now because I have

15 very little time left. I would like to talk about presentation of

16 evidence in the presence of the witness. As you know, we have the e-court

17 system, but I would like to ask the Prosecution this question: When it

18 will examine the witness and present the documents to the witness, I would

19 like the Prosecution, prior to that, to prepare a little file for me, a

20 file which will contain all the documents that will be presented. I can

21 only encourage you to put this or give this to me in the presence of the

22 witness. Once the documents have been presented at the end of the

23 hearing, you can stand up and you can ask that these documents, P620 to

24 P640, 3.020, so 1500 and so on and so forth, be admitted into evidence.

25 This is how things should unfold. That said, it's not because an exhibit

Page 705

1 has been admitted into evidence that it is automatically relevant or that

2 it has any probative value and that this will catch the attention of the

3 Bench.

4 As I have said, from the outset you need to adopt -- you need to

5 present your exhibits, when the Defence during its cross-examination

6 wishes to have some of the exhibits tendered into evidence, I would

7 recommend that they also prepare a file to be handed over to the Bench so

8 that the Bench has the documents when they are needed. So much for the

9 exhibits.

10 I'd like to move on to the next topic, i.e., videos. I have a

11 number of unanswered questions here. I have viewed all of the videos.

12 This takes -- this would take several hours. What is the Prosecution

13 going to do? Will it present the videos in the presence of a witness? I

14 think the first witness who will call to testify is -- will testify on

15 Stolac. The number of videos that show Stolac, do you intend viewing the

16 video in the presence of the witness so that the witness says: Yes, that

17 is my house, that is a village in which I lived, or do you intend, like it

18 was the Hadzihasanovic/Kubura case, have a hearing dedicated to video

19 viewing? I don't know whether you plan to do this, but I would like you

20 to shed some light on your intentions. Mr. Mundis or Mr. Scott, can you

21 please tell us how you intend to proceed with these videos.

22 MR. SCOTT: Your Honour, I'm sure there will be some video

23 material that will be used with a particular witness. The example you

24 just gave, a situation where a witness comes and there's very directly

25 relevant video material for that witness, it maybe even shows the witness

Page 706

1 himself or herself or their home or something. So, yes, in some

2 situations we might -- we would anticipate playing the video with the

3 witness. Having said that, I fully expect that there will be other video

4 material that at the end of the day will simply be presented to the

5 Chamber as among our evidence, that might not be employed with any

6 particular witness, will still be in the evidentiary record and we may

7 play them at some time or they may simply be in the record and at some

8 point when someone wants to look at them or consider them, they can be

9 played.

10 JUDGE ANTONETTI: [Interpretation] Mr. Scott, I have understood you

11 well. You have said that some of the videos will be viewed in the

12 presence of the witness and other videos or video material will be

13 tendered into evidence. As far as I'm concerned - and I'm sure that my

14 colleagues will hold the same view - the video material that has not been

15 presented through a witness will have to be viewed by all and everyone and

16 the comments will be in the transcript. And then we will decide whether

17 the videos can be admitted into evidence or not because it so happens that

18 some videos are 45-minute videos, some may last an hour or two hours, so

19 this does pose a serious problem. So it is out of the question. We can't

20 say to someone: I'm going to show you an excerpt of the video. Do you

21 recognise the video? And then the video is admitted into evidence. When

22 Judges deliberate, we look at the videos all over again and then we may

23 pick up one or another item on the videos. So we have to see the video

24 from beginning to end and I strongly recommend that all the lawyers see

25 these videos, if they have not had time to do so yet. They then can

Page 707

1 usefully cross-examine the witness. This is a very time-consuming

2 exercise because there are tens of hours of viewing, ten at least, but

3 this is something you need to do.

4 Mr. Scott, would you like to add anything as far as video material

5 is concerned?

6 MR. SCOTT: Well, obviously, Your Honour, based on what you just

7 said, we will be guided by the Court's direction and I based on that, I

8 anticipate that, as I said, some video material will be played with a

9 particular witness, and based on what Your Honour has just indicated,

10 there will come -- I suppose there will come a point in trial in which we

11 will have to play other video material that has not been offered through a

12 particular witness.

13 JUDGE ANTONETTI: [Interpretation] Mr. Scott, I also have a

14 question to put to you, a question which was put to me by one of the

15 Judges, and I would like to know what your position is. Article 73 --

16 Rule 73 bis of the Rules of Procedure and Evidence states as follows.

17 This relates to the pre-trial conference: "After having heard the

18 Prosecutor, the Trial Chamber may fix a number of crime sites or incidents

19 comprised in one or more of the charges in respect of which evidence may

20 be presented by the Prosecutor which, having regard to all the relevant

21 circumstances, including the crimes charged in the indictment, their

22 classification and nature, the places where they are alleged to have been

23 committed, their scale and the victims of the crimes, are reasonably

24 representative of the crimes charged."

25 So I would like the Prosecution to spell this out for me. How

Page 708

1 does it understand or interpret this paragraph? Can the Trial Chamber cut

2 down on the number of places or facts or crime-based facts because a Trial

3 Chamber may feel that some of these may be a good example of what actually

4 happened? So let me give you an example. Let's take the case of Prozor

5 municipality. A number of things happened in Prozor, and the Chamber

6 feels that paragraph 48 of the indictment should be upheld concerning the

7 fate of two victims, Polic and Odzic, two victims in the case, and the

8 Trial Chamber would not mention the other victims because it would feel

9 that these two crimes sufficiently illustrate what happened in the Prozor

10 municipality. Could things be understood this way, or another way of

11 addressing the matter is to do the following: The Chamber would set the

12 number of locations and number of victims according to what is written in

13 the indictment.

14 MR. SCOTT: Your Honour, this takes us back to what you said

15 earlier today about whether the Judges would intervene at the beginning of

16 the trial and, essentially, shape the indictment and tell the Prosecution

17 what its case is or, on the other hand, that you would, as we've discussed

18 today, give the Prosecution a certain amount of time, which we hope -

19 which we hope - will be a sufficient amount of time to present a

20 reasonable case, and then it will be up to the Prosecution to use its time

21 as it sees fit. I very seriously believe that it is the second option

22 which is the appropriate one and which strikes the correct balance between

23 trial efficiency and the primacy of the Prosecutor for having the

24 responsibility of presenting the case. We still have a system in which it

25 is primarily -- first of all and primarily the Prosecutor's obligation and

Page 709

1 responsibility under the Statute to present her case. We would -- we

2 would be very opposed in general - there might be exceptions - but we

3 would be very opposed to the Chamber picking and choosing what parts of

4 the indictment they would like us to present our case. If you tell me,

5 Your Honour, that you give us 450 hours, then we will allocate that 450

6 hours as best we can to cover the indictment in the way that we think is

7 the most appropriate way to present our case. It is still our case to

8 present.

9 In terms of whether something would be determined to be

10 representative, Your Honour, we would only be able to do that if the

11 Defence would then agree and say: Yes, we agree that if the Chamber finds

12 the situation with these two victims happened in this particular way, the

13 Defence would agree the Prosecution does not have to lead any other

14 evidence and that the other matters will be taken as also established. So

15 if the Defence is prepared to agree on that basis, then perhaps we could

16 make some progress.

17 JUDGE ANTONETTI: [Interpretation] Very quickly I shall give the

18 floor to Mr. Karnavas and Kovacic as far as this issue is concerned. It's

19 an important issue and I would like to know what their opinion is.

20 MR. KARNAVAS: Thank you, Your Honour. Well, I do agree with

21 Mr. Scott that it is their case, and I certainly don't want them appealing

22 later on where they're claiming that the Trial Bench abused its

23 discretion, and I assume that's what Mr. Scott was alluding to at one

24 point, although he didn't say that. I think the Prosecution should be

25 entitled to put on its case. I think that the suggestion that the Trial

Page 710

1 Chamber is making, however, is a reasonable one and one that certainly we

2 are willing to assist in the event we can meet halfway with the

3 Prosecutor. So we don't -- at least, this particular Defence does not

4 preclude the possibility of sitting down with the Prosecutor. If we go

5 this route of the dossier, for instance, and if we can -- if we can both

6 agree -- both sides agree, I think we can move much quicker with fewer

7 witnesses with respect to crime base.

8 There is one technical issue with respect to the e-court; how do

9 these dossiers get presented in an e-court fashion? I just merely mention

10 that because it comes to mind. But I think we can go either way but I

11 would certainly -- I would prefer to allow the Prosecutor to put on its

12 case the way they see fit because it is their case. It's my job to

13 challenge that at every step, and I don't want them to think that somehow

14 they were unable to put on their case and then later on try to overturn

15 something on appeal because they feel that they were unable to present

16 their evidence to meet their burden of proof, which is what they have to

17 carry throughout this case. And certainly I don't want them to feel that

18 somehow the Trial Chamber abused its discretion in their view in the way

19 they curtail their ability to present their evidence.

20 JUDGE ANTONETTI: [Interpretation] Thank you. Just very briefly,

21 Mr. Kovacic, I think Mr. Karnavas has summed up this concept pretty well.

22 MR. KOVACIC: [Previous translation continues] ... just about what

23 I wanted to say. But since we are at the end of the conference, I am

24 afraid that I will not have a situation -- that I will not know the

25 situation for my client regarding his statement under Rule 84 bis

Page 711

1 regarding a time he would be allowed to speak. It is very important for

2 me because we have to decide --

3 JUDGE ANTONETTI: [Interpretation] Yes, I'm going to address this

4 straight away.

5 Mr. Scott, when you are going to present your case, how much time

6 would you actually need?

7 MR. SCOTT: Well, Your Honour, to use the stopwatch analogy that

8 someone else has mentioned today, I have to say that I have not put it to

9 a stopwatch. I think it will take probably a full session -- what we

10 consider a trial day, a full session. I might, ultimately, do better than

11 that, but having said that, having not put a stopwatch to it, it's

12 conceivable it might go over into a second day, because at the moment,

13 Your Honour, I think it would be most helpful to the Chamber to have a

14 fairly extensive overview of the case and a review of the evidence, which

15 could be quite substantial. So I think it will be at least one session.

16 Approximately one session, but it might go over into a second day.

17 JUDGE ANTONETTI: [Interpretation] Fine. If you need one day,

18 Mr. Praljak will also have a day then. If you need a day and a half,

19 Mr. Praljak will then have a day and a half also. So I think we should be

20 able to do everything in one day.

21 From what I understood, Mr. Praljak, when making his opening

22 statement, would like to be assisted by someone. It seems that he has a

23 number of documents he would like to present. Is that right?

24 MR. KOVACIC: No, Your Honour, I was more concentrated on the

25 first issue. The second one is a practical nature, to have a person to

Page 712

1 aid him by presentation on the screen who helped in preparation and is

2 specialist for PowerPoint presentation so people follow him.

3 But however, since you mention the time, that it should be equal

4 to the Prosecution, if I may raise one argument, Your Honour. None of the

5 six Defences will make any opening statement. Nobody. And none of the

6 accused, except Praljak, decided so. So I -- I am kindly asking you to

7 permit my client whatever time may be, but to give him a fixed time, and

8 we submitted -- we asked for six hours, but whatever you decide it -- that

9 it would not be tied to the time which the Prosecution will spend.

10 Because then he cannot organise properly, so we would like to know whether

11 it is six hours regardless of how much the Prosecutor will take, or it is

12 four hours, whatever you decide, or five hours, but it is very difficult

13 to present this idea without knowing exactly what the time will be. And

14 again, I'm repeating myself, nobody else will speak on the Defence side.

15 Thank you, Your Honour.

16 JUDGE ANTONETTI: [Interpretation] I wanted to say that six hours

17 is a tremendous amount of time. He may want to go into the detail of some

18 of these issues, but if he focuses on what is essentially -- what he is

19 essentially charged with, I don't think he will need six hours. I would

20 like to understand why he needs six hours. During the pre-trial

21 conference he will be able to tell us why he actually needs six hours.

22 And if he could send us an outline of his presentation, this will enable

23 us to see where things stand. I can't tell you whether it's going to be

24 five hours or six hours or four hours. He will have at least the same

25 time as the Prosecution. For the rest, I don't know. We will see how he

Page 713

1 -- this will depend on what he wants to say.

2 We can proceed two ways: Either he will make a political

3 statement which -- or he will talk about the facts and address these facts

4 from a criminal procedure standpoint. So this may require more time.

5 Well, you can see this with him and tell him that this will be discussed

6 at the pre-trial conference.

7 Before winding up, I would like to move into closed session.

8 There's one last point I wish to address before adjourning today.

9 [Closed session]

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Page 714

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3 [Open session]

4 THE REGISTRAR: We are in open session, Your Honour.

5 JUDGE ANTONETTI: [Interpretation] Before adjourning, then, the

6 last Status Conference - I'm turning to you - would anybody like to take

7 the floor on any particular matter which has not been addressed? I'm

8 turning to the Prosecution.

9 MR. SCOTT: No, Your Honour. Thank you very much.

10 JUDGE ANTONETTI: [Interpretation] Fine.

11 What about the Defence teams?

12 MR. KARNAVAS: I just have one minor request or issue to raise. I

13 noted that there was a change of plea recently with Mr. Rajic. There was

14 some indication that he might be a witness. He's on a witness list.

15 Recently and on television his lawyer apparently had indicated that he was

16 -- that he might be available to be testifying. I know that he's being

17 debriefed and I know that there's another related issue that is rather

18 relevant. What we would like, with respect to -- what we would like to

19 know is whether the Prosecution has given us everything with respect to

20 Mr. Rajic, that is, not only his statements but anything else during these

21 debriefing sessions. And also, on any other issues, related issues, with

22 respect to other cases and other investigations that are either directly

23 or indirectly related to this particular indictment - and I'm sure the

24 Prosecution knows what I'm talking about - we would like to make sure that

25 we have all of that information. And so if we can make an inquiry at this

Page 715

1 point whether, one, they intend to provide us that information; and two,

2 when can we expect it.

3 JUDGE ANTONETTI: [Interpretation] Yes. The Defence is asking the

4 Prosecution the following: Have they received everything which they are

5 entitled to and raises Mr. Rajic's case. And the Defence wonders whether,

6 after having met with the person in question, did you disclose to the

7 Defence any document? Did you disclose any document to the Defence?

8 MR. SCOTT: Your Honour, I believe Mr. Rajic is on the witness

9 list. There's no secret about that. That's -- they've known that since

10 January. In terms of whether there's been any particular disclosure at

11 this time, I can't say, frankly, off the top of my head. Counsel can

12 always send a letter or call me and we can make these inquiries. We don't

13 have to do it in the courtroom. I will have to check to see what the

14 current situation is. As you know, and as counsel apparently knows, the

15 sentencing hearing was just the other day and it may be that we have been

16 waiting for that process to be finalised, but we will check on the matter

17 and report back to counsel. Thank you.

18 MR. KARNAVAS: Again, just for a point of clarification, as I

19 understand it, Mr. Rajic is -- is a major witness, in a sense, for the

20 Prosecution related to the Blaskic case. An incident in that particular

21 indictment is also found in this particular indictment. I would like to

22 know whether we're going to be getting all the information related to any

23 investigations that are ongoing concerning the Blaskic case and anyone

24 else involved in that case.

25 MR. SCOTT: Well, Your Honour, I believe, out of an abundance of

Page 716

1 caution, because I don't know what it is Mr. Karnavas is talking about, I

2 know certain things in the Blaskic case are under seal, can we go into

3 private session, please?

4 JUDGE ANTONETTI: [Interpretation] Very well, can we move into

5 private session, please.

6 [Private session]

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Page 717











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24 [Open session]

25 THE REGISTRAR: We are in open session.

Page 721

1 JUDGE ANTONETTI: [Interpretation] Very well. We are in open

2 session. This Status Conference has come to an end. All the parties will

3 be present at the pre-trial conference to be held on Tuesday, the 25th of

4 April, 2006. Thank you.

5 --- Whereupon the Status Conference

6 adjourned at 2.06 p.m.