1 Monday, 16 April 2007
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.25 p.m.
5 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, please call the
7 THE REGISTRAR: Good afternoon, Your Honours. This is case number
8 IT-04-74-T, the Prosecutor versus Prlic et al.
9 JUDGE ANTONETTI: [Interpretation] Thank you very much,
10 Mr. Registrar.
11 On this day, the 16th of April, 2007, I would like to greet
12 everyone in the courtroom. We are unfortunately 10 minutes late, but this
13 delay was not due to us. I would like to greet the Prosecution, ladies
14 and gentlemen of the Defence, as well as the accused.
15 Before handing the floor to Mr. Prlic, I would like to first give
16 the floor to the registrar for our IC numbers.
17 THE REGISTRAR: Thank you very much, Your Honour. Several parties
18 have submitted lists of documents to be entered through Witness Herbert
19 Okun. The list submitted by the OTP shall be given the Exhibit number IC
20 522. The list submitted by 1D shall be given Exhibit number IC 523. The
21 list submitted by 2D shall be given Exhibit number IC 524. The list
22 submitted by 3D shall be given Exhibit number IC 525, while the list
23 submitted by 4D shall be given Exhibit number IC 526. That's everything,
24 Your Honour.
25 JUDGE ANTONETTI: [Interpretation] Thank you very much,
1 Mr. Registrar.
2 Mr. Prlic, if you wish to say something, you may go ahead.
3 THE ACCUSED PRLIC: [Interpretation] Thank you, Your Honours. I'm
4 going to address a number of issues, most of them linked to procedural
5 matters, as was the agenda of the meeting you had on the 27th -- 22nd of
7 I'd like to say that my sole request from the first time I
8 appeared here in court was to ask that the trial be a fair one, that fair
9 proceedings and just proceedings be secured, and I must say that on that
10 score I'm becoming more and more concerned, and that is what -- the reason
11 for which I have decided to take the floor. I am of course speaking only
12 in my own name. I have not consulted anybody, and that includes my
13 Defence counsel. So everything that I say, be it good or be it bad, is of
14 my own utterance.
15 Now, part of the -- some of the accused have asked me to speak in
16 their own name, too, but I refused to do so, and that is my first message
17 when I address procedural matters and that is that the indictment and the
18 whole proceedings would have to be -- will have to be individual for each
19 person. That is why I ask the Trial Chamber not to treat us as a group.
20 A few days ago on television I heard a representative of the
21 Prosecution, Nikiforov, who said that the criminal enterprise or joint
22 criminal enterprise was a legal concept which enables a number of persons
23 to be held accountable and to be accused, or, rather, to place a whole
24 group of people under one indictment, or, as is stated in submissions, the
25 most senior surviving person in our case. So this in fact shows the basic
1 reason. All the rest is technology, law of custom and so on and so forth.
2 I read the transcript of the 22nd of March, and at first glance it
3 would appear that the subjects that were discussed were very ordinary.
4 However, as we are weighing up justice here, they are basic fundamental
5 questions, and I'm going to say a few words about each of the individual
6 subjects discussed.
7 First of all, I'd like to say that I have to notice that my
8 Defence asked for this hearing to be convened. However, afterwards,
9 according to the agenda -- the agenda that we had, it was the
10 Prosecution's proposals that were put forward on the agenda. So I'm going
11 to address the subject, the so-called means by which to speed up the
13 Now, the first of these means are the adjudicated facts. I think
14 that after one year of trial that it has become clear to everyone,
15 including the members of the Trial Chamber, why the Defence teams did not
16 accept proposals for adjudicated facts. First and foremost, the previous
17 Trial Chambers took decisions about matters which in their cases and
18 trials represented either the context for something or was something they
19 needed to prove that the conflict was of an international character so as
20 to be able to apply Article 2 of the Statute, and here these are the most
21 important elements of the criminal enterprise.
22 Now, in these cases, the Defence teams did not deal with these
23 things. They were not interested whether the HVO, for example, was a
24 civilian authority or whether it was the name of an army, a military
25 group, what the goals of Croatia were and what the goals of Herceg-Bosna
2 Now, if we look at everything that was included in the judgements,
3 and I'm just referring to the conflicts, not the crime base, so -- I went
4 through the judgements over the past few days, and I'm bearing in mind
5 what we have heard over the past year, everything is questionable, and
6 also the jurisdiction which we try to rely upon.
7 I don't wish to comment the discussions and debates that were held
8 two weeks ago about Vares as being an adjudicated fact or facts, because
9 Judge Prandler explained his position. Of course one of the basic
10 criteria for accepting in formal terms these facts is, is that it was not
11 based on an agreement as to recognition of liability and admission of
12 guilt, and all the discussions about time are relative, including
13 discussions which are being waged in this particular trial as well, and
14 they speak to the fact that in my opinion the burden of proof has been
15 shifted to the Defence increasingly frequently. It is not sufficient to
16 say that it is only up to the Prosecution, that the Prosecution has the
17 burden of proof, but daily decisions have to be made which confirm that
19 Now, your decision to accept adjudicated facts of the 14th of
20 September tells us that this stage in which the Prosecution presents proof
21 and evidence is almost unnecessary. Everything becomes cumulative and can
22 only help the Defence teams like the last witness before the Easter break
23 did to refute those theses. The Defence could start the process straight
24 away and save resources, if that is something that must be uppermost in
25 our minds. But let me remind you of the first four acts which were
1 adjudicated by you, and I'd like you to listen carefully. I'm going to
2 quote from page 15 of the ruling of the 14th and 23rd of June, 2006,
3 pursuant to a Prosecution submission about formally accepting facts that
4 have already been adjudicated.
5 The first is this: The HVO became the supreme defence and
6 executive body of the HZ HB and the BH Croats. That meant that in that
7 part of Bosnia-Herzegovina real power and authority was held by the HZ HB.
8 Now the second, and I quote: There is no doubt that the Republic
9 of Croatia and the HZ HB had the same ultimate goal, and that was to join
10 up the Croatian provinces of Bosnia-Herzegovina to a uniform and united
11 Croatian state.
12 The third is the following: Despite the fact that they knew that
13 the other parties had not signed but relying on the fact that they had
14 international public support, the BH Croats endeavoured unilaterally to
15 implement the Vance-Owen Plan.
16 And fourth, the fourth point, is this: On the territory to which
17 the indictment refers, there was a systematic and widespread attack on the
18 Muslim population in the area. This campaign had a concrete task, to
19 transform the previously ethnically mixed area in Mostar, in and around
20 Mostar, into a Croatian area with an ethnically pure population of BH
22 And to this I would like to add that the first and third of these
23 facts were adjudicated by this Trial Chamber, although the Pre-Trial
24 Chamber on the 14th of March rejected it. So six months after the
25 presentation of this case, this Trial Chamber considers that these
1 standpoints and positions are facts which the Prosecution in these
2 proceedings need not prove. Well, what do they have to prove then if not
3 that? What can one say after all this?
4 It seems that the Prosecution has to finish presenting its
5 evidence. That is in store for us within the completion strategy, because
6 the burden of proof almost before the trial ever began was transferred, it
7 would seem, to the Defence, because when we do have witnesses, Prosecution
8 witnesses, to testify about those matters, as a rule not enough time is
9 given to the Defence for their cross-examination.
10 The first four mentioned adjudicated facts, in my opinion, are
11 sufficient for a judgement to be reached and made without the Prosecution
12 having to say a single word. Of course, on condition that the Defence
13 counsel don't engage either. As we're dealing with questions which are
14 linked to the joint criminal enterprise, and we are witness that part of
15 the defence of the accused here do not deal to any great extent with those
16 questions. At least they haven't done so thus far. And I am speaking
17 exclusively theoretically and hypothetically. I hope nobody will take
18 this amiss.
19 So does that mean that a judgement can already be brought in,
21 Now, the second question that I'd like to talk about is agreed
22 facts. I was -- in a bona fide attempt to prone -- to have accepted most
23 of the facts that present a crime base, although I must recognise that I
24 am changing my opinion when I see some of the exhibits and evidence that
25 is endeavoured to be presented, such as sniper action and similar things;
1 that is, events that are not sufficiently known. But I cannot believe the
2 Prosecution fully either when it comes to crime base matters.
3 Now, what is the basic premise in all this? We cannot accept a
4 formulation according to which the HVO forces and HVO authorities that
5 this is equal and that they have allegedly done something, committed
6 something. Every crime must have a perpetrator, and all the elements must
7 have been proved, which is customary in any court of law and legal
9 En passant I have a question to ask in this regard perhaps to
10 enrich the Tribunal as well. I wanted to ask for a closed session for me
11 10 days ago for example when the question was rape was discussed. We had
12 a mother here whose daughter was raped. The public gallery was full.
13 There were just three of us here because of the flu epidemic, and
14 sponsored television programmes broadcast this, and at that time I was
15 already convict because the young people sitting in the public gallery who
16 might well have been my students became convinced listening to the debate,
17 which was sometimes in open session and sometimes in closed session to add
18 a dramatic element to the proceedings, that it is we or me or us who were
19 the perpetrators.
20 Now, when it comes to protected witnesses, once again I'd like to
21 say this en passant because it's not something that really affects me,
22 although I consider we have gone too far because the same people are
23 testifying about perpetrators in Bosnia-Herzegovina and I seem to gain the
24 impression that it is portrayed as the Wild West, and I already intervened
25 on that score on one occasion because that is not what the situation is
1 like. So we -- that should not be the message sent out from this
2 Tribunal. We must have a clear-cut mission when speaking about things
3 having been done in the region.
4 So these people are testifying down there and here objectively
5 where the perpetrators have not been brought to trial in proceedings which
6 should be -- have an open character are protected witnesses and their
7 testimonies heard in closed session. Now, how can we defend ourselves
8 from that? My Defence counsel are not asking this question. What should
9 we do theoretically to find the perpetrators, to bring them here into the
10 courtroom, to state their names loud and clear? Nobody seems to know
11 them. So what is the standard of proof in that regard for something to be
12 accepted as having been a crime?
13 The indictment is as it stands. We seem to be responsible for
14 everything under, as the Prosecution calls it, the leader's indictment in
15 view of the formulations of the HVO authorities and HVO forces.
16 Everything comes under those concepts and terms, it would appear. And I
17 apologise for this comparison, I don't want to say anything bad by making
18 the comparison, but it seems to me that it would be as if the
19 Secretary-General of the United Nations who at a certain stage concluded
20 that this type of indictment should be used, that he should be responsible
21 for everything that happens in the world, that the Secretary-General
22 should be responsible for everything.
23 Even with the agreed facts when this sentence is not challenged or
24 term is not challenged which is something the Prosecution mentioned and I
25 agree with that, especially in view of the previous context, one can gain
1 a quite different impression.
2 The third element are documentary facts and elements and exhibits,
3 and I consider that generally accepted facts can be accepted such as the
4 Official Gazettes, for example. However, we see that the material and
5 documents of international organisations with various judgements made
6 without the people that compiled them cannot be accepted per se, and this
7 we saw with the events in Stupni Do, for example, and the documents
8 pertaining to that event. So it's very important to have a witness that
9 you can test and cross-examine and put contradictory statements to as
10 well. Or your decision on accepting the testimony from Gornji Vakuf,
11 though it doesn't personally really affect me. It's part of the crime
12 base. But I only mention it for one reason. It is stated that the same
13 facts are in question which the Defence had occasion to check with other
14 witnesses through their cross-examination. Again the question remains,
15 was there enough time for this, or the rather offhand acceptance of the
16 vocabulary of the Prosecution who use the term "HVO ultimatums" in
17 accepting certain decisions. And again, the presumption of innocence is
18 being overlooked, or something that the Judges often underline, and that
19 is that it is the -- up to the Prosecution to prove its case.
20 And I quote from page 11 of your decision in response to the
21 motion of the Prosecution for the admission of evidence again about Gornji
22 Vakuf. I think pursuant to Rule 92 bis (A) and (B) of the Rules of
23 Procedure, and I quote: "Anyway, the Trial Chamber wishes to specify that
24 the Defence will be able to present new evidence and documents during the
25 presentation of the case of the Prosecution." I think this is a mistake.
1 I think it should be the case of the Defence because there are no such
2 witnesses of the Prosecution.
3 And also, this decision says that those transcripts are being
4 admitted because the perpetrators are far removed from the accused, which
5 implicitly means that the criminal enterprise remains the basic form of
7 Let us recall the adjudicated facts that I have already discussed.
8 In principle, evidence should be admitted through witnesses. Let there be
9 a better selection. Let all parties focus more. If we depart from that
10 principle, nothing will be achieved, and we will all remain in a mist, in
11 a fog. Of course, I have not been studying the Rules of Procedure closely
12 since the trial has begun, though I did study it before. I simply read
13 through the decisions of other Trial Chambers, and there are so many
14 changes, amendments, bises, and ters, so that this has become a kind of al
15 a carte approach through which almost anything can be proven and
16 disproven, but it is again within the discretion of the Trial Chamber,
17 which also carries the main responsibility.
18 So my conclusion in connection with these three auxiliary means,
19 we must not allow due to shortage of time to succumb to the pressure of
20 admission of adjudicated facts and documentary evidence without enough
21 attention being devoted to them.
22 A few words about time. Nothing is too small or too big unless
23 compared with something else. In a period since the adoption of the
24 indictment and the final judgement, it will be some five years.
25 Discussing this matter with people outside the court, ordinary
1 people who are relatively well-informed, it -- finds it difficult for them
2 that so much time is needed for a trial.
3 Regardless of that, as is common knowledge, I have renounced my
4 right to a speedy trial, an expedited trial, because that right has
5 seriously jeopardised my right to a fair trial.
6 I do not wish to speak about the indictment. We have the lawyers
7 for that.
8 We have tried to make it clearer through all our preliminary
9 submissions. All of them were rejected, which I think has put this Trial
10 Chamber confronted with a lot of difficulty.
11 I wish to state very clearly I do not wish the possibility of the
12 Prosecution to do its utmost to present its version of the indictment to
13 be overcast by any kind of shadow. As they say themselves, they have been
14 working on it for some 10 years. We are taking adjudicated facts from
15 other cases. An enormous amount of funds has been -- have been invested
16 into this case. I do not wish to debate that, but I do ask that the
17 Prosecution be allowed to present its case to the end, that they be given
18 the opportunity to work. I personally wish to praise them for their
19 diligence but not for any unlimited ambition.
20 For example, in the appeal about your decision regarding time, in
21 paragraph 3 they point out, and I will read it in English. "[In English]
22 In a very real way, the Prlic case is the Karadzic plus Plavsic plus
23 Krajisnik plus Martic plus two other cases rolled into one single case."
24 [Interpretation] End of quote.
25 What can be said? When talking about procedure and the
1 proceedings, I have several requests to make. The first is the one that I
2 have already taken the floor, and I wish to use a notebook during the
3 proceedings. As the word itself says, a notebook means a simple notebook
4 in the twenty-first century, so that my people in the Defence can take it
5 from me and bring it back at the end of the day. I mean a notebook
6 computer. I don't understand why this was not allowed, especially as I
7 cannot sit next to my Defence counsel.
8 My other request was to have enough time for cross-examination for
9 some 10 or so witnesses to challenge their thesis, because if the Trial
10 Chamber finds that the Prosecution has not proven the indictment, then
11 there will be no need for my defence, and this will only gain time. I
12 wonder whether my rights have been absolutely, seriously in jeopardy.
13 There is had no my case here. The Prosecution needs to profits case.
14 That is, that -- if it were my case I would prepare it differently.
15 However, here it is adjusted to the indictment.
16 In principle, my lawyer is not able to it use more than 10 per
17 cent of the questions that I feel need to be put to witnesses. I am
18 talking about those talking about the context of the criminal enterprise
19 including the witness prior to the Easter holidays who I believe was a
20 very good witness who could have clearly shown whether there was a
21 criminal enterprise or not, of course, if there had been time to have his
22 reports and his diary admitted. And on that basis, any officer of the
23 Chamber could have prepared an opinion for this Trial Chamber. Instead of
24 us discussing for a whole year this criminal enterprise, we could have
25 done it in a much shorter period of time.
1 Also, when talking about time, I think that the time given to the
2 Prosecution for cross-examination is an unfair decision. We are not any
3 kind of group. We may not eventually use more than one-sixth of the time.
4 I don't know that. But fixing the limits among the Defence counsels is no
5 solution. I talked to the other accused about other cases, and there is
6 no similar limitation of time for cross-examination in other cases.
7 I fear that sometimes the clock is becoming the main instrument
8 here, and bargaining with time among the Defence counsels of the accused
9 here has become the basic, and I hope you don't mind if I say so, a very
10 inappropriate form of activity.
11 I wish to clear that I do not wish to depend on the goodwill of
12 any lawyer in my defence, if I have to ask for time from that lawyer for
13 my cross-examination.
14 A brief comment on the position of the Prosecution in their
15 motions and submissions regarding the victims and the international
16 community. I know this is on the verge of a procedural issue, but my
17 opinion is that by issuing the indictment this is all part of the legal
18 proceedings which is in the interest of both the victims and the
19 international community, and in that legal proceeding there are two
20 parties, and I wish to say -- state very clearly my Defence supports both
21 the victims and the international community, and that is my position
22 regardless of what is stated in the Statute. I lived with those victims.
23 I was a member of the state government for the last 10 or 15 years in
24 various commissions for the missing persons. I participated in various
25 conferences about these issues, and I know how it functions, or at least I
1 assume I know.
2 There are people sitting here who the moment they received the
3 indictment surrendered, and it never occurred to them to create a story
4 for the media linked to this Tribunal. Unfortunately, that is how to
5 arrest the escaped accused, whereas the quality of the proceedings is
6 being pushed into the background.
7 Also when talking about the international community, we can talk
8 about the apparatus of various international organisations and states, and
9 I consider myself to be a part of that international community with some
10 3.000 diplomatic contacts covered with reports and notes. So I do have
11 some experience in that area. And I wish to say that the Prosecution does
12 not have a monopoly over the representation of the victims and the
13 international community. An argument is an argument, and it should not be
14 strengthened by reference to victims and the international community. The
15 Trial Chamber consists of professionals, not jurists. Anyway, already --
16 jurors. I have said that the Prosecution should be given every
17 opportunity to present its case to the end.
18 Judge Trechsel was quite right when he made a distinction last
19 time between the truth and the establishment of guilt. So here we have to
20 establish the truth about the alleged guilt of the six of us. This trial
21 cannot provide the full truth because the method does not allow it.
22 Everything is focused on an individual attracting negative energy while
23 neglecting a series of factors including those who appear as witnesses or
24 authors of documents, which in certain stages could have had far greater
25 significance than those who are here, the accused.
1 Precisely because it is not possible to establish the truth, I am
2 not participating in the trial. For the truth, a multi-disciplinary
3 approach is required, and in such a process I could participate. Of
4 course, even truth commissions cannot establish the truth, even though all
5 the institutions of Bosnia and Herzegovina opted for their formation, but
6 it was upon the intervention of this institution that that process was
7 suspended. So it should be clearly stated regarding the burden of proof.
8 It is not true that the truth is being established in The Hague,
9 which is frequently said in the region. This is not possible, nor is it
10 the task of this Tribunal.
11 I have already said once that regarding the establishment of the
12 truth about guilt, it is very important the way in which the proceedings
13 are conducted. In my opinion, a criterion for the success of the trial is
14 that there is no uncertainty as to what your decision will be, because the
15 trial itself has shown this to everyone following it. Of course I am not
16 in a position to lecture anyone here, nor was I able to follow everything
17 that is happening in connection with this Tribunal. It is my opinion that
18 this proceeding has to be stable, and that -- in that respect I agree with
19 the Prosecutor.
20 You have already said a number of times that this case would not
21 be tried according to our continental law, and I apologise to the
22 Prosecutor. This is a hybrid system, but it must be a stable one.
23 The whole story started with the intervention by my counsel
24 because of interruptions during the cross-examination. I personally
25 consider your questions useful for channeling the discussion for this type
1 of indictment of which you yourself, Judge Antonetti, said it requires
2 126.000 decisions. So the immediate cause were the interruptions during
3 the limited time given for the Prosecution. Why -- for the
4 cross-examination. I'm sorry.
5 The indictment everyone realises is a political concept. It is a
6 separate diplomatic story which I thought was over in 2004 when we formed
7 the federation. That concept has many elements of the charges against
8 individuals in this trial, but obviously apart from some marginal
9 attempts, it is not believed that the victims of that concept should be
10 represented in the same way, nor in the way as the international community
11 is being represented, because we do not have the same interests.
12 I am not talking about quid pro quo but I am talking about
13 different approaches and elaborating on the thesis about interruptions in
14 the cross-examination.
15 Furthermore, there are stereotypes in the indictment without
16 anyone wondering whether that stereotype has any meaning. This relates to
17 people, members of the international community, diplomats, and
18 journalists. We wish this political concept under A and the stereotype
19 under B to balance these two concepts during the cross-examination.
20 Therefore, the cross-examination and continuity is not an attempt
21 to manipulate witnesses but an attempt to move away from the facts,
22 because the witness will not accept them if they know that they might
23 jeopardise the mentioned political concept or, rather, the accepted
24 stereotype contained in most of their statements and in the so-called
25 proofing sessions.
1 Finally, everything that I have said has not been said because I
2 do not have faith in the Trial Chamber trying this case. I do not wish to
3 use those categories at all, that is whether I trust someone or not, nor
4 should you care about that. What I do expect of you is simply a fair
5 trial and sufficient intellectual courage in making your determinations
6 and nothing more than that.
7 Just as the Tribunal will not be remembered when someone is
8 arrested, so this trial will not be remembered because it is the longest
9 in history, but only by the quality of the proceedings and of the
10 decisions made.
11 I thank the Trial Chamber for the time allotted to me, and I am at
12 your disposal for any clarifications of what I have said, if necessary.
13 Thank you.
14 MR. KARNAVAS: If I may, Mr. President. Just for the record,
15 there have been some -- I'm told that there are some errors. I'll just
16 read them out, page and line and perhaps that could be looked at, at some
17 other point. Page -- page 7, lines 2 to 3; page 8, line 10; page 15, line
18 18 to 19; page 16, line 8 and also line 24; and page 13, line -- line 3
19 and 4. Thank you.
20 JUDGE ANTONETTI: [Interpretation] Very well. Thank you,
21 Mr. Karnavas.
22 Thank you, Mr. Prlic, as well. The Chamber noted all that you
23 said and listen to you carefully. We could respond right now, but a
24 debate would surely start. So what we will do, we will render a decision
25 since it is your own counsel that requested all these meetings, and
1 therefore we will render a decision pertaining to procedural questions.
2 But through this decision -- and through this decision we will try as much
3 as possible to answer to what you've said, to answer various points that
4 were part on -- of your submission and mainly the adjudicated facts that
5 were very important to you. You will, in fact, obtain an answer. And
6 Mr. Praljak intervened as well regarding his own view of -- on the matter,
7 and we will then render a decision.
8 So at this stage, the Chamber believes that we should not start a
9 debate right now, a debate which would make all the parties participate.
10 Everything that you've said are known to -- these are facts that are known
11 to us, and you've just shed some more light through your own intervention.
12 We have listened to you carefully, and we will try to address all the
13 issues that you've raised in a decision that will be rendered shortly,
14 since we were waiting to hear submissions from parties before we render
15 our own decision.
16 Now, regarding the next witness, as you know, he will have
17 protective measures and, Mr. Scott, could you please confirm this to us?
18 Thank you.
19 MR. SCOTT: Yes, Your Honour, I can confirm that. But before I
20 turn to this witness -- matters, the Prosecution should have a chance to
21 respond. The Chamber has just -- the President has just indicated that
22 they would render a decision soon. I don't think it would be appropriate
23 to --
24 JUDGE ANTONETTI: [Interpretation] Wait a bit, just a moment,
25 please. Excuse me, one moment, please, Mr. Scott. Just a moment, please.
1 [Trial Chamber confers]
2 JUDGE ANTONETTI: [Interpretation] Very well. Mr. Scott, the
3 Chamber just deliberated on whether you should reply to the intervention
4 of Mr. Prlic, and we believe that if your intervention has to do with new
5 points or if you wish to shed some more light on data that are very
6 well-known to all, then you can intervene, but if you are going to just
7 say the same thing, I think that we will waste time. Only you know what
8 you are going to say to us. We trust that you will do whatever is in the
9 best interests of the justice, but please try to it avoid issues and
10 topics that were already mentioned very many times. And as you know, the
11 Appeals Chamber will render its decision, and we are waiting to actually
12 get the decision from the Appeals Chamber. So you may have the floor now.
13 MR. SCOTT: Thank you, Mr. President. I must say again that
14 I'm -- I'm rather alarmed that the Chamber would consider proceeding
15 without giving both parties an equal opportunity to be heard, and I'm
16 afraid this is one further instance of a double standard in the courtroom.
17 Defence counsel addressed a number of issues and took
18 substantially greater time than the Prosecution took in the hearings that
19 we had some weeks ago, and apparently it appears to be the Chamber's, or
20 at least some part of the Chamber's view, that the Defence gets two bites
21 at the apple. The lawyers get to talk and then the accused get to talk.
22 And unfortunately my representative victims couldn't be here today, so I
23 will have to speak on their behalf, as I've talked about before. So I --
24 it's completely unfair and completely wrong procedure to suggest that I
25 would not be given the opportunity to respond to these matters.
1 What one of the -- one of the items that was originally tabled was
2 the participation of the accused in the proceedings, and the Chamber may
3 recall, when these matters were discussed some weeks ago, it then expanded
4 into a broader set of agenda items which all counsel then addressed, and
5 the Chamber or some part of the Chamber, again it may have been at the
6 request of Defence counsel, it may have been on the initiation of the
7 Chamber itself, because the Defence -- because the accused couldn't
8 participate, specifically asked to put the agenda item of the
9 participation of the accused in the questioning of witnesses as a separate
10 agenda item and requested the parties, the counsel, not to address that
11 item. I think the transcript will support me on that.
12 So indeed this is the first time that the Prosecution has had a
13 chance to respond to that, at least in any significant way. We may have
14 given a preview, but the Chamber specifically asked counsel not to address
15 these issues on the previous occasion.
16 Your Honour, I must state in the strongest possible way my
17 objection to any system that gives the Defence, if I can use it again, the
18 analogy of two bites at the apple, and that is why in this -- in this
19 institution except in this Chamber one is either represented by counsel or
20 you -- represent themselves, but I am afraid that what the Chamber has
21 done is created a two-headed creature. For the first time in the history
22 of this Tribunal we have clients -- accused, excuse me, who both represent
23 themselves, a la, perhaps, Slobodan Milosevic, and we have the same person
24 represented by competent counsel in the courtroom. And the Prosecution
25 believes that is not the proper way to proceed. We do object to the
1 participation of the accused and the questioning witnesses, except on a
2 truly, truly exceptional basis, and that is what -- we would ask the
3 Chamber to go back to its original ruling, which this Chamber mentioned on
4 a number of occasions, and that is that only on -- at some showing on a
5 truly exceptional basis that one of the accused be allowed to directly
6 participate in the questioning of witnesses, and that we have moved very,
7 very far afield from that original exceptional circumstance standard.
8 Now, on that topic, and that was the only topic that was on the
9 agenda for today, and I don't understand -- and this has nothing to do --
10 this is not personal to Mr. Prlic, my comments are not directed to him or
11 him personally, but I see no value, with all respect, in a represented
12 party getting up and talking about purely legal issues, adjudicated acts,
13 agreed facts, protective measures, the admission of documentary evidence,
14 the application of Rule 92 bis. These are all purely legal matters that
15 surely Mr. Karnavas and the other Defence counsel are completely able to
16 deal with. So that was not the agenda items that were put on -- not the
17 agenda item that was even raised. I'm not even sure how I'm supposed to
18 further respond to all these matters that Mr. Prlic has raised putting --
19 attempting to draw into question established Tribunal practice in many
20 instances over the past 12 or 13 years. And I'm not going to attempt to
21 respond to all of them at this juncture.
22 The Chamber knows the Prosecution's view on the question of time,
23 and I submit again that, as I've said in the past and I'll probably say
24 again in the future, if there's any party in this courtroom today standing
25 in this courtroom this afternoon that has been most prejudiced by
1 limitations on time it is the Prosecution and not the Defence, with all
2 respect to the Defence. It is our case has been limited. It is our
3 ability to present our case that has been limited, and so when I hear
4 it -- once again, when I hear the Defence and I hear the accused talk
5 about the prejudice caused to them and their concerns about limitations on
6 time, I state again our position fourfold.
7 We -- on this particular issue, Your Honour, again to come back to
8 what I understood was the only agenda item to be addressed, and that is
9 the participation of the accused themselves in the questioning of
10 witnesses, it's the Prosecution position that the Chamber should return to
11 its original ruling and that is that such participation would only be
12 allowed on an exceptional circumstance basis. And before I finish on
13 that, I will just mention -- and I will mention it again my comments are
14 not personal to Mr. Praljak, but since Mr. Praljak has been the accused
15 which has spoken perhaps the most, let me just point out that on the vast
16 majority of these matters Mr. Praljak is not uniquely situated as to all
17 accused who have appeared before this Tribunal to talk about these
18 matters. Many military officers, many senior military officers from all
19 three warring parties, Croat officers, Muslim officers, Serb officers,
20 senior officers, Krstic in the Krstic case, the head of the Serb -- one of
21 the senior Serb officers around Srebrenica, others have appeared. Now,
22 they could equally have argued that only they could -- were uniquely
23 situated to put military questions to witnesses in the case.
24 Now, it strikes me as odd and not credible that in all the years
25 of this Tribunal that Mr. Praljak is the first one who is uniquely
1 situated and only he can put his questions to the witness when all of the
2 counsel in all of the cases have been able to do that, apparently quite
3 competently. So once again, Your Honour, I will close with remarks that
4 request that the Chamber return to its original view and that is that
5 participation be limited to an exceptional basis. Thank you.
6 MR. KARNAVAS: Your Honour, I will need five minutes, maybe less.
7 Probably three. I'll be very laconic on this.
8 First and foremost, the Prosecution asked for time to rebut what
9 Mr. Prlic said and then proceeded to talk about an issue that was directed
10 primarily towards General Praljak. That is a separate issue. That's a
11 much more complex issue that should be debated perhaps at some other point
12 in time and not today. Be that as it may, whether other generals have
13 chosen to participate directly or indirectly during the trial proceedings
14 is irrelevant. What's relevant is that Mr. Praljak has human rights, and
15 he's exercising them. He's entitled to assist in his own defence and also
16 to participate. To the extent the Trial Chamber wishes to curtail those
17 rights, I think at this point in time we do have a decision. I agree with
18 the Prosecution. The decision should be abided by. But I think by and
19 large the Trial Chamber is following the decision. And of course the
20 Prosecution is free to object on grounds of relevancy if the Prosecution
21 feels that Mr. Praljak is going into areas that he shouldn't be going
22 into. And I'm not here to defend Mr. Praljak, but I do wish to point out
23 that this is an added issue.
24 Now, with respect to Mr. Prlic and what Mr. Prlic raised, my
25 client, and of course he didn't get pre-clearance from me but if he had
1 asked for pre-clearance, I mean, it's his skin. At the end of the day
2 he's going to go and face the consequences of your -- of your decision.
3 So obviously, even had I wanted to talk him out of going into procedural
4 issues, which I would not have, I think he's entitled to raise those
5 issues, but I think when you get down to it there was one fundamental
6 issue at stake, and that is: He's asking for a fair trial.
7 What I find supremely ironic, what I find really galling at this
8 point in time is Mr. Scott standing up after Mr. Prlic is fighting for
9 him, for the Office of the Prosecution to have sufficient time to put on
10 their case. And what I don't hear from that side is: Let the Defence
11 have enough time to defend themselves. That's what I find shocking. And
12 that's the whole message that Mr. Prlic was saying, let us have sufficient
13 time to try our case, and trying to bring in all these adjudicated facts
14 is not the way. We are trying to have a trial. This is the longest
15 trial, the most complex trial by their calling. Let us have that. That's
16 what he's asking for. We were not able -- I was not able to thoroughly
17 cross-examine the last witness, Ambassador Okun, primarily because I
18 didn't have enough time and chopping it up isn't enough. You can't do one
19 thorough cross-examination, and as Mr. -- I asked Mr. Prlic, I begged him
20 to fight with the other accused to try to get their time so we could use
21 it, and his answer was, "No, they have rights too." So -- and I was upset
22 at him and I yelled at him my own client nor not fighting to argue with
23 the other accused to give up their time for him because we felt we might
24 have been able to do a more comprehensive cross-examination for everyone,
25 but at the end of the day every accused has their angle, has their
1 defence, and has a right, and in hindsight thinking back, Mr. Prlic was
2 correct. How dare I ask him to ask others to give up their right so he
3 can enjoy more rights? And that's what this is all about. And I think
4 that the Prosecution ought to be standing up here and applauding what
5 Mr. Praljak, Mr. Prlic, and others have said, which is give them more
6 time, but at the same time you should be asking the Trial Chamber to allow
7 all of the accused to have all the time necessary for cross-examination,
8 and I think that's the end of the story.
9 I look forward to your decision. Hopefully we can have a much
10 more relaxed atmosphere by relaxing a little bit the rules, allowing us to
11 do more cross-examination when necessary, and feel free to object. Feel
12 free to step in and tell us -- and ask why is a point relevant and if it's
13 not relevant to cut us off and to force us to move on. I think that's the
14 greatest power that you have in controlling the circumstances here. But
15 barring that, let us go on. Thank you.
16 JUDGE TRECHSEL: I think we should not prolong this actually.
17 MR. KOVACIC: [Interpretation] Your Honour --
18 JUDGE TRECHSEL: You have extensively spoken on the issue of to
19 what extent your client ought to be allowed to cross-examine himself. I
20 have that, and I'm sure the Chamber has that in vivid memory. It's not
21 quite true what Mr. Scott said that if Defence counsel did not reply.
22 Maybe the Chamber did not want them to reply, but they did nevertheless in
23 very strong terms.
24 MR. KOVACIC: [Interpretation] Your Honour, with all due respect, I
25 understand what you've just said and I take it as a limitation, but I have
1 to draw attention to something that Mr. Karnavas, I think, mentioned. The
2 Prosecution in this alleged response to the accused Prlic in fact
3 presented new arguments in major part. So with your permission to have an
4 equality for both sides, I have the right to respond to those new
5 arguments and to add something to the arguments that we put forward
6 earlier on, as you mentioned. I am deeply convinced that this is
7 necessary in order to balance out the process, to strike the proper
8 balance in this courtroom. You will of course make your ruling and
9 decision when you have heard all the arguments, but as new arguments have
10 been put forward here, I have the right to respond to them.
11 JUDGE TRECHSEL: I'm interested to hear what you think is a new
12 argument. Frankly, I have not heard any.
13 MR. KOVACIC: [Interpretation] The Prosecutor in another way, in a
14 different way today, on this occasion and with new arguments, he explained
15 and expounded the thesis according to which the accused when they have
16 counsel to represent them in fact do not have the right directly
17 themselves to take part in the proceedings. That is certainly a new
19 JUDGE TRECHSEL: Mr. Kovacic, he has exposed this in substance
20 quite clearly. I think we could get along much faster if the parties
21 could agree to complain less about lack of time. It seems as if this
22 Chamber were some institution with a thumbscrew screwing the thumbs of
23 both parties and having a good time. We are as much pressed. We are in a
24 difficult situation, too, and I think it would be time that the parties
25 recognise that we're all in one boat and that we do not gain anything by
1 this constant moaning and complaining and repeating endless times. I
2 wonder how much time would be made if one added all the complaints of lack
3 of time. I think several days probably could have been put to use. And I
4 sometimes doubt whether this is not something that -- that comes close to
5 a delaying tactic, frankly, because we have heard this ad nauseam,
7 Another point I would like to say, we had given in to Mr.
8 Karnavas's exceedingly forcefully put request that we have a hearing where
9 the Defence can complain about issues in the proceedings they feel that
10 they have to complain about. The Chamber has conceded this. We have also
11 agreed that we would listen to what the accused would have to say, and
12 this was a bit in a humanitarian spirit. They are sitting here all the
13 time. We also want to hear what they say. But that is more in a way
14 of -- of sounding their mind, of having them put their state of mind and
15 feelings to the Chamber. It is not really legal submissions they made,
16 and that is the way in which we have listened to those of the accused who
17 have wished in this context to address the Chamber.
18 I think that we have had all the legal arguments in this context.
19 MR. KOVACIC: [Interpretation] Your Honour, with all due respect, I
20 simply cannot and won't accept your arguments, the arguments you put
21 forward about taking time and wasting time. As a man of law, I cannot
22 agree with that. You have all the prerogatives as the Trial Chamber to
23 decide in the matter, and you will make the decision as you have been
24 doing thus far. However, when we're talking about this topic, and we are,
25 and I agree there with you that unfortunately all these legal arguments or
1 the humanitarian spirit and aspects that you mentioned remain an abstract
2 context if in the courtroom we do not have the time to present the
3 arguments that we consider to be relevant and to influence a fair trial in
4 these proceedings. And -- so that is something that I have to respond to.
5 We're all conscious that the essence of everything here is time and we're
6 all fully conscious of the fact that we do not have enough time. However,
7 Your Honours, it is not the accused who constructed this megalomaniac
8 indictment and it is not the accused who compiled an indictment which by
9 its very nature demands reasonable time in order to present evidence to
10 bear out the indictment and -- or not, and to go into the question of
11 procedural rights, which, without a doubt in one way or another to a
12 greater or lesser extent, ultimately effect a fair trial. And a fair
13 trial is the key to all these proceedings. That is what is laid down in
14 the Statute. This is the basic principle that we adhere to in every
15 national court of law and international court of law. And you yourselves
16 frequently say that you're taking steps in order to ensure a fair trial.
17 And I am deeply convinced, Your Honour, out of respect for this Trial
18 Chamber that you're -- you're not saying that in your decisions and
19 verbally declaring that only because it sayings so in the Statute. You
20 are saying that because you are educated lawyers and you know that that is
21 the key to all these proceedings.
22 So may I take a few minutes to respond tomorrow what the
23 Prosecutor said. The Prosecutor starts out from the assumption and that's
24 the crux of the matter, the assumption an accused in the courtroom who has
25 legal representation and counsel, professional counsel, that thereby in
1 that same courtroom ipso facto he becomes the object of the proceedings
2 and as we've seen in the many trials that have already been held is a
3 tactics of the Defence, the accused in 90 per cent of the trials held in
4 this International Tribunal the accused sat quite peacefully for two,
5 three, five years during the legal proceedings without the Judges ever
6 hearing a single word uttered from them, unless asked what their health
7 was like perhaps. So this kind of situation the de facto situation that
8 exists in this it Tribunal is not as a result of the Rules of Procedure
9 and proceedings but of the rights used by the Defence, and it is also the
10 right of the Defence to keep silent.
11 Here we have a different situation. We have six accused who to a
12 greater or lesser extent actively participate in the trial. So that is
13 the argument I would like to respond to.
14 An accused is not the object of the trial, the object of the
15 proceedings; he is the subject and the proceedings are being conducted
16 against him and it is his right to participate in those proceedings in
17 different ways. Institutionalised law. The first right is to -- for
18 counsel to help -- or, rather, the accused to help his counsel by briefing
19 him about facts indicating certain events and so on. But in addition to
20 that right he has the right to take part in the debate itself. Once again
21 let me repeat because he is not an object but a subject, and it is his
22 fate and destiny that is at stake, his head that is on the line; so he has
23 the right to defend himself, not only by appointing counsel and
24 instructing counsel but to take part himself. A, to take part in the
25 cross-examination of witnesses by showing documents. B, taking part to a
1 certain extent in procedural matters when in comes to fundamental
2 questions concerning a fair trial. So the accused, without doubt has
3 these rights regardless of whether he has appointed counsel or not. They
4 can say, "Your Honours, I consider that such-and-such is not fair." That
5 is what an accused has the right to do. It's quite another matter how the
6 Trial Chamber is going to weigh this up, whether they're going to accord
7 the accused this right or not. But accused without a doubt does have the
8 right to speak up.
9 Therefore, would any of us here in this courtroom accept the fact
10 that the trial was a fair trial if we curtail the right of an accused to
11 take the floor if they wish to do so. I don't think it would be a fair
12 trial under those conditions.
13 I will stop there. Of course there are other arguments that can
14 be put forward as well.
15 THE ACCUSED PRALJAK: [Interpretation] Your Honours, if I may, just
16 for two or three minutes.
17 I have accepted what Your Honours have suggested, that is to
18 comment on technical questions, and I think 90 per cent of my
19 interventions were like that. There were a lot of maps, and my questions
20 related only to matters that in my view should be discussed by a military
21 expert, and he should be here permanently, a social psychologist, a
22 sociologist and a military expert. They should be there permanently. The
23 Judges are professional Judges but they're not military experts. And I
24 had expected the Chamber to tell the Prosecutor that certain generals
25 cannot be tried with -- when bringing the maps of Mostar of the size 10 by
1 10 centimetres. So this is so inappropriate.
2 So, Mr. Scott, as long as the law gives me that right I will
3 defend myself in a dignified and professional way with maps, facts,
4 trigonometry, and all the knowledge that I've acquired in my life which is
5 not so small.
6 JUDGE ANTONETTI: [Interpretation] Mr. Murphy.
7 MR. MURPHY: Your Honour, I don't want to prolong things. Good
8 afternoon Mr. President and Your Honours.
9 I don't want to prolong things but speaking as one who represents
10 one of the accused who does not have any interest in representing himself,
11 I do have some observations that are new and may be of assistance.
12 Mr. Scott has made the point that there was a previous ruling of the Trial
13 Chamber as to the extent of the accuseds' representation, but,
14 Your Honour, the fact of the matter is that, I think on the second day of
15 this trial, General Praljak made an opening statement on his own behalf
16 that lasted for a number of hours and ever since there has, without
17 apparent objection, played a very active role in the proceedings. And,
18 Your Honour, we're now a year into trial, and for the Prosecution at this
19 point to change what has in effect become the practice in this trial at
20 this late stage would obviously be highly prejudicial and whatever the
21 objective rights and wrongs of the situation, Your Honour, it's my
22 respectful submission that it's now far too late for -- to go back on
23 that. The train has left the station a considerable time ago and it would
24 place the Praljak Defence, no doubt possibly other accused, in an
25 impossible situation if they had to revise their entire trial strategy at
1 this point. Your Honour, it may be in my submission that it may be as
2 simple as that.
3 MR. SCOTT: Well, Your Honour, we're right back to where -- this
4 makes my point. We've now had two -- at least two accused and their
5 counsel both participate today, as if they both have the same amount of
6 time. Now, if I had one of my -- one of the victims sitting here and the
7 could -- the victim can give me his time or her time or whatever, it would
8 be the same thing, and that's -- this is the point that's made. If you
9 look at this, and I've asked my case manager to do this, look at the total
10 time that has been spent on these matters since it was first tabled and
11 the total time, and you will find, I'm sure, that the Prosecution has used
12 substantially less time than the various Defence counsel and the various
13 accused combined. Substantially less. I'm talking by -- by orders of
14 magnitude. And then we -- then we do it again. Then we get up again and
15 then we go through it all over again. Now, just to simply address -- all
16 I'm going to do now is simply address Mr. Murphy's point.
17 Your Honour, I'm happy if the Chamber thinks it would be helpful
18 to take the time to go back for the record. Prosecution has repeatedly
19 objected to Mr. Praljak's interventions on a number -- on many number of
20 occasions. And perhaps we should -- perhaps based on Mr. Murphy's
21 comment, we should have objected even more. I think there is the
22 phenomenon when a party objects and objects and objects and continue --
23 continuously to no effect, one decides that probably it's not worth --
24 worth the effort. But it has consistently been the Prosecution's position
25 that the Chamber's original ruling should apply and that is -- and that's
1 been our position all along and we have objected any -- on any number of
2 occasions. And in fact I've heard the Judges object on a number of
3 occasions and ask and tell Mr. Praljak, We don't know where you're going.
4 This seems to us to be a waste of time. And so everyone in the courtroom
5 has objected at times, and our position is simply, like all the other
6 trials that have been conducted to date, and this Chamber is not
7 conducting the first trial at the ICTY, other accused have not
8 participated in this way, and we've -- you've created, I'm sorry, but with
9 great respect you've created a two-headed creature, both counsel, both
10 representing themselves and we think there are exceptional circumstances
11 in which that must be justified, but it shouldn't be day-to-day practice.
12 And that's our submission. Thank you.
13 JUDGE ANTONETTI: [Interpretation] Very well. It is 20 to -- 25 to
14 4.00. We're going to have a 20-minute break and we will resume work with
15 the hearing of the witness after the break.
16 --- Recess taken at 3.38 p.m.
17 --- On resuming at 3.59 p.m.
18 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, let us go into
19 private session. Will you put the blinds down, please.
20 [Closed session]
11 Pages 17129-17199 redacted. Closed session
9 --- Whereupon the hearing adjourned at 6.57 p.m.,
10 to be reconvened on Tuesday, the 17th day
11 of April, 2007, at 2.15 p.m.