1 Monday, 17 March 2008
2 [Rule 65 ter Conference]
3 [Closed session]
16 [Open session]
17 THE REGISTRAR: Your Honours, we're now in open session.
18 JUDGE ANTONETTI: [Interpretation] Very well. Thank you,
20 Today we are Monday, the 17th of March, 2008. I should like to
21 greet the representatives of the Prosecution, the Defence counsel, the
22 accused, as well as all the people assisting us during this pre-trial --
23 pre-trial hearing with a view to resuming the proceedings when the
24 Defence will call its witnesses. With this in mind, we have handed down
25 a decision on the 22nd of February, 2008, and on the agenda we have
1 written in ten items. I shall get back to this later, because in the
2 meantime I shall read out an oral decision which the Trial Chamber will
3 hand down orally today as follows:
4 Pertaining to the Praljak Defence motions, pertaining to the
5 protective measures of the witnesses they wish to call.
6 [Trial Chamber confers]
7 JUDGE ANTONETTI: [Interpretation] Since this decision has to do
8 with protective measures, we shall hand down this decision in private
10 Registrar, for a few minutes let's move back into private
11 session, please.
12 [Private session]
11 Pages 27241-27242 redacted. Private session.
19 [Open session]
20 THE REGISTRAR: Your Honours, we're back in open session.
21 JUDGE ANTONETTI: [Interpretation] So in open session on the
22 agenda we have the item pertaining to the opening statements of Defence
23 counsel under Rule 84 for the Rules of Procedure and Evidence. I shall
24 give each Defence counsel the floor so that he or she can let us know how
25 they wish to proceed.
1 Once we have looked into this issue I shall address the second
2 item on the agenda, which is undoubtedly the most important, namely the
3 one which pertains to the time required by the Defence teams to present
4 their case and the -- how the time will be broken down between the
5 various Defence teams. So this is a crucial item as far as today's
6 hearing's concerned.
7 Third item, the time allocation for the cross-examination of
8 Defence witnesses. On the one hand for the Prosecution, and on the other
9 hand for the accused. So item 3 ties into item 2 as everybody can see.
10 Item 4, the number of expert witnesses, of viva voce witnesses,
11 92 bis witnesses, and 92 ter witnesses and 92 quater witnesses that the
12 Defence intends to call to testify.
13 Item 5, presentation by the Defence of common witnesses. Let me
14 give you an example: Expert witnesses, for instance.
15 Item 6, Rule 85 of the Rules of Procedure and Evidence, an
16 accused is entitled to testify, and this Rule applies. We know that
17 Mr. Praljak has every intention of testifying.
18 Item 7, translation deadlines and deadlines of disclosure of
19 expert reports.
20 Item 8, the statements provided under Rule 98(2) bis and 92 ter.
21 Ninth item, translation of documents on the list on the 65 ter
22 (G) list.
23 Item 10, the obligation to disclose the document set figure on
24 the 65 ter list (G) in hard copy to the Trial Chamber in the form of
25 binders in the same way that the Prosecution has done when it presented
1 its case. And if we have any further time, item 11, miscellaneous.
2 A number of other questions can be addressed at that point in
4 First item, therefore, Rule 84 of our Rules of Procedure and
6 Before I give the floor to Defence counsel let me tell you that
7 before the presentation of -- by the Prosecution of its case, each party
8 can make a statement and an opening statement. However, the Defence can
9 decide to make its statement after the Prosecution has presented its case
10 and before presenting its own opening statements. Therefore, Rule 84
11 enables the Defence team to make their opening statements before calling
12 their witnesses to testify.
13 In addition, Rule 84 bis, which ties into this Rule also, which
14 entitles an accused to make a statement.
15 As far as item 1 is concerned, I think the best would be to start
16 with Mr. Karnavas.
17 MR. KARNAVAS: Good afternoon, Mr. President, good afternoon,
18 Your Honours. Good afternoon to everyone in and around the court.
19 Let me say that the Prlic Defence does not intend to give an
20 opening statement. We don't think that it would be of any particular use
21 to the Trial Chamber at this point with the proceedings given that we've
22 been at it for two years. During many of the objections that were raised
23 by the Prosecution there have been some responses which in my opinion
24 have informed the Trial Chamber quite adequately what the Defence of
25 the -- the Prlic Defence is all about, and therefore it would not
1 necessarily add anything, particularly since opening statements are not
2 evidence. Had I been before a jury, I would have given an opening
3 statement right after the Prosecution. However, I think that in this
4 case one is not necessary.
5 In order to give guidance to the Court, I suspect that by the
6 time we do begin, in light of the last scheduling that we have set, I
7 believe it's on April 21st, by that point and with our filings on the
8 65(G), I believe, you will have ample notice as far as the structure of
9 the Defence case, how we intend to proceed, how it's broken down, and
10 that will be sufficient to -- to inform you all that there is to know
11 about the Defence case.
12 Of course if the Trial Chamber does wish to hear an opening
13 statement we could put something together, but I don't think -- I think
14 it's best to just begin hearing evidence. That's why we're all here. We
15 want to be as efficient as possible and we want to make sure that we
16 provide you with the information necessary for your deliberations. Thank
18 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Karnavas. I
19 shall give the floor to other Defence counsel, but before I do that,
20 before we move on to the second item, the Trial Chamber will address
21 another topic which was not on the agenda for today which is also an
22 important item which relates to the order in which the accused intend to
23 call their witnesses.
24 Will this be D1, D2, D3, D4, D5? Will it be in this order? What
25 kind of order will there be? It is important that we look into this
2 Also, another question which could be addressed under this item,
3 i.e., to know when the witnesses from the various Defence teams are
4 called could there not be a representation on a municipality-
5 by-municipality basis and a detention centres or camps, and if -- and
6 other witnesses if need be?
7 My colleague would like to take the floor and then I will give
8 the floor back to Mr. Karnavas.
9 JUDGE TRECHSEL: I would like to make a little commentary to this
10 suggestion. If we have one Defence team after the other, it is well
11 possible that in May a witness for the Prlic Defence speaks of an event
12 in Prozor, and in December a witness for the Petkovic Defence will
13 testify about the very same event, and it will be more difficult, of
14 course, for the Chamber then to link this immediately and to get an
15 adequate vue d'ensemble, an adequate picture.
16 On the other hand, the Chamber is quite aware of the fact that it
17 will not always be possible to link a witness to one event alone and that
18 the borders are in a way not -- not quite impenetrable. So that there is
19 also another aspect to it which the Chamber sees.
20 I think the work of the Chamber and also the effectiveness of
21 the -- presenting the Defence case would rather be enhanced if you could
22 decide on following this second alternative proposal, yet we are also
23 aware of the fact that it will cause difficulties. For you it needs more
24 coordination, and we are -- we are by no way at this point taking any
25 decision on this matter, but it is our rather strong belief that it is
1 something worth of considering, and perhaps we can have an answer when we
2 meet again on Wednesday of the next week. Thank you.
3 JUDGE ANTONETTI: [Interpretation] Mr. Karnavas, you wanted to
4 take the floor again, I believe.
5 MR. KARNAVAS: Just very briefly. I know that my colleagues have
6 been busy in the field, I know I have been, and I can assure the Trial
7 Chamber that we will endeavour to -- to do what is best. And we'll see
8 if we can assist the Trial Chamber in the manner in which you have
9 suggested. However, I have to be very candid. There should be no
10 illusion that the Defences are getting along or will be getting along
11 throughout the defence case. I can't guarantee that. I can only
12 guarantee that I am willing to move heaven and earth to get my colleagues
13 to work with me. They, on the other hand, may think that I'm working in
14 the wrong direction and may not necessarily wish to -- and I very well
15 may be working in the wrong direction, and so there's no need for them to
16 following me.
17 I can share with the Trial Chamber how I have broken down my case
18 thus far, because we have done some calculations. We know approximately
19 how much time we will need and the manner in which we want to present the
20 case, and of course I haven't spoken to -- I spoke to one of my
21 colleagues. I haven't spoken with the others. But it's in a thematic
22 approach, and I'm willing to share that with everyone in open session in
23 court. I don't think that's going to be a problem.
24 I have to also caution the Trial Chamber that getting witnesses
25 comitted to come at a particular time is rather difficult and since we
1 moved under the assumption that we were going to go first, we've been
2 working around the clock on this issue and sort of guesstimating when the
3 witnesses will be coming. Again, I don't want the Trial Chamber to think
4 that we're being obstructive or intransigent. I'm willing to work with
5 my colleagues. I know that we have some common witness that we can
7 My personal opinion is that certain witnesses should come at a
8 particular time because it tells the narrative that is necessary for you
9 to follow as opposed to having it in a disjunctive format. I've
10 impressed that upon my colleagues. Of course they also represent
11 clients, and all of my colleagues have to take certain amount of
12 instructions from their clients. Though, I would say that it doesn't
13 matter when a particular witness comes, it shouldn't matter to the client
14 that is, but it will matter in the narrative. I've constructed a
15 narrative for you. So, in any event, at some point I can proceed and
16 tell you exactly how we have constructed our case which I believe makes
17 the most appropriate sense.
18 JUDGE ANTONETTI: [Interpretation] Fine. We will now proceed.
19 This hearing is a good opportunity for everyone to speak their minds, so
20 let me say that after my fellow Judge who mentioned Prozor, I could
21 mention Mostar.
22 Let's assume for example that one of you calls witnesses to call
23 about shelling or sniping incidents in Mostar. Let's assume that we have
24 a witness who comes to testify about this in December. Then let's assume
25 that seven months later another Defence team calls another witness to
1 talk about sniping in Mostar.
2 Of course the Trial Chamber is perfectly able to go back to these
3 incidents, but it would be far better if the same subjects would be dealt
4 with at the same time by everyone for us to then move on to a different
5 subject. But Mr. Karnavas has said that sometimes there are scheduling
6 problems to deal with, problems then also related to the individual
7 strategies of each Defence team, and that such an approach will not
8 always be feasible.
9 We'll see that you have to tell us about this, each and every one
10 of you.
11 Now we'll proceed with respect to Rule 84. The Prlic Defence has
12 told us that they would not be making an opening statement. Let me move
13 on to Defence team D2. Who will take the floor for D2?
14 MR. KHAN: Good afternoon, Mr. President, Your Honours. There --
15 it is anticipated that an opening statement will be made by the Stojic
16 Defence. It will not, looking quite far ahead, be very long, probably an
17 hour, an hour and a half in duration, but of course it will be made, if
18 it is made at all, at prior to the first witness for Bruno Stojic being
19 called. In other words, after the Prlic case has been closed.
20 So, Your Honour, that's very shortly that matter dealt with.
21 Your Honour, I think of course one always gives the most anxious
22 scrutiny and careful thought to any proposal put forward by Your Honours.
23 In relation to the proposal adumbrated by His Honour Judge Trechsel, I
24 have two observations with your leave. The first is that at this stage,
25 and I stand to be corrected by my learned leader, it's not anticipated
1 that the Stojic will call many witnesses if any dealing with the
2 municipality-by-municipality approach, so I don't think it's really going
3 to be relevant to us, but Your Honours of course have dealt with many
4 cases and are extremely experienced, but caution always had to be had
5 over managing cases. For example, it may well have been the case, for
6 example, that my learned friend - and it may not concern us - but as
7 friend of the Court as it were, the Prlic case may call a particular
8 witness dealing with a particular location. And if the cases were taken
9 out of order, the next witness, of course, could easily, dealing with the
10 same municipality, put forward a completely different narrative.
11 Now, of course rather than helping Your Honours, that could
12 complicate not just the factual understanding of the case but also poison
13 the atmosphere of the courtroom because perhaps one accused would feel
14 that he's not being given a fair shot at putting a particular case
16 Your Honours, of course it's a matter for each counsel and at the
17 end of the day every counsel has an obligation to put the case in the
18 best interests of the client, but in that as well it's a matter of
19 persuading Your Honours that the case has merit. So it doesn't -- and
20 it's not anticipated that any counsel conducting who is conducting a case
21 diligently will seek to irritate Your Honours by unnecessary --
22 unnecessarily calling witnesses. I think the best rule of thumb would
23 be, in my respectful submission, that if a witness called by another
24 accused satisfactorily deals with a particular area of testimony, the --
25 the accuseds that are coming afterwards perhaps don't need to call that
1 witness covering that same area at all. And that's the logical common
2 sense approach that one would hope would be adopted.
3 But, Your Honours, of course it can be kept under review and
4 matters may be a little clearer when the 65 ter summaries are given at
5 the end of the month, perhaps a more informed decision can be taken then
6 by all of us.
7 Your Honour, did you want to go on to the areas of the time
8 needed for the Defence and the number of witnesses or will Your Honour
9 deal with that -- Mr. President deal with that later?
10 JUDGE ANTONETTI: [Interpretation] Later on. We'll come back to
11 this later on.
12 Thank you.
13 To sum up, the Stojic Defence is considering making an opening
14 statement of between an hour and an hour and a half.
15 Let me now move on to Mr. Praljak's Defence. Mr. Kovacic.
16 MR. KOVACIC: [Interpretation] Thank you, Your Honours.
17 JUDGE ANTONETTI: [Interpretation] One moment. My fellow Judge
18 has a comment.
19 JUDGE MINDUA: [Interpretation] Yes. Sorry. I just want to make
20 sure that I have understood correctly. Mr. Khan has said that he -- if
21 the Stojic Defence make an opening statement, that will be after the
22 presentation of the Prlic case. Is that correct? Did I understand
24 MR. KHAN: Your Honour's quite right. That's exactly what we
25 propose and that's the normal way that operates in -- well, in many
1 courts, but particularly the ICTY.
2 Your Honour, my learned friend has pulled me up on one issue. Of
3 course the timing of the opening statement is flexible at this stage. It
4 may be longer. I'm not seeking to bind ourselves at this moment. It's
5 an approximation. It may be longer.
6 JUDGE ANTONETTI: [Interpretation] Mr. Kovacic.
7 MR. KOVACIC: [Interpretation] Thank you, Your Honours. Good
8 afternoon to the Trial Chamber and everybody else in the courtroom.
9 Your Honours, with respect to these two matters I'll be brief.
10 First as regards the proposal introduced today with regard to the order
11 of witnesses. I don't want to add anything special. Nothing special to
12 add to what Mr. Karnavas and Mr. Khan have already said. I completely
13 agree with what they said. I'd just like to add that there's another
14 question here, another matter that could make matters a little more
15 difficult in the matter of coordination with that kind of approach, and
16 that is that in this trial we have six accused. Each of them have their
17 individual Defence counsel and Defence teams and defence case, so of
18 course not all the Defence teams can have the same strategy, which makes
19 life more difficult. So this coordination is something we should look at
20 with the presentation of evidence according to different blocks, although
21 I do agree that it is a method that I think would be a good one; and I'm
22 certain that as far as the Defence is concerned it would be made more
23 difficult and make work impossible at certain points unless that is done.
24 And I'd like to underline what Mr. Khan mentioned a moment ago.
25 I think that all the Defence teams are wise enough to see that if the
1 first, second, and third Defence teams presents enough evidence about an
2 event in a given location, for example Prozor was mentioned, then
3 probably the fourth and fifth Defence teams won't have to go back to that
4 issue. But when we bear in mind the different functions and posts held
5 by the accused at the relevant time, then maybe, yes, because some people
6 will find the military aspects of a matter more interesting than civil
7 and political ones and vice versa. So you might have a situation where
8 the witnesses are indeed testifying about the same location at the same
9 time, but not the same aspects or the same details of certain particular
10 events and so on and so forth.
11 There are a number of elements that must be taken into
12 consideration. I don't think I need to specify them all here and now.
13 And perhaps we ought to link this up with the following: The
14 introduction of witnesses under Rule 92 bis, for instance. My Defence
15 team has some ambitious plans. Let me say that at the outset.
16 JUDGE ANTONETTI: [Interpretation] Mr. Kovacic, I think it would
17 be far better if we followed the agenda, because if you start talking
18 about 92 bis witnesses, then -- which is something that is at item 8 of
19 the agenda, it's going to be very confusing. I think we should stick to
20 the issue of opening statements under Rule 84 or to the issue of Rule 84
21 bis, possible opening statements by the accused.
22 MR. KOVACIC: [Interpretation] Certainly, Your Honour, and I
23 apologise for not being clear enough, explicit enough. I didn't want to
24 deal with 92 bis. That's a separate question on the agenda, but I just
25 wanted to mention that that is an instrument which will in a way be
1 combined in the order of the presentation of evidence, for example. And
2 if the first Defence team brings witnesses in to testify about Prozor,
3 there's no reason why the third Defence team should make a proposal under
4 92 bis since we've heard the viva voce witness and some repetitions,
5 repetitive statements. And perhaps this would be very useful, because if
6 the 92 bis witness passes through the courtroom, I know that I need not
7 bring him in again. Or if the proposal is rejected, I will have to
8 recall the same witness at some later date, and so on and so forth.
9 So that's what I wanted to illustrate. That there are a lot of
10 pros and cons.
11 Now, as far as your request about the opening statements is
12 concerned, yes, the Defence of General Praljak does intend to have an
13 opening statement pursuant to Rule 84 of the Rules of Procedure and
14 Evidence and the supplemental, the opening statements of the accused
15 under Rule 84 bis, and we shall of course coordinate all this. We won't
16 be speaking about the same thing.
17 It's difficult for me to specify about a time. We're making some
18 drafts, but let me say that I don't think we'll need more than two, to
19 two and a half hours. That's how things stand at present. Of course I
20 do have the right to make the statement and like the -- my learned friend
21 I consider that that opening statement should be made when the 3D Defence
22 starts, not at the very beginning. So that is when I would like to have
23 that statement delivered. And I think that the opening statement can be
24 a mild -- of mild assistance to the Chamber to help them understand
25 before the Defence case goes ahead. And along those same lines,
1 General Praljak would also like to make a statement. Let me just remind
2 you, and I'm sure you're fully conscious of that, that he'll rule -- use
3 Rule 84 bis at the beginning and the Presiding Judge, Judge Antonetti, at
4 the request of Mr. Praljak, to deal with Rule 88 bis said that
5 General Praljak could ask for an additional statement under Rule 84 bis
6 bearing in mind the practice and the text of 84 bis, Rule 84 bis, I will
7 be making a written submission or written request, or I can do so orally
8 today or at the next session, whichever you prefer.
9 So those are our responses to the two matters raised. Thank you,
10 Your Honours.
11 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Kovacic. You're
12 talking about two hours, two hours and a half. Does that include your
13 opening statement and Mr. Praljak's statement? Is that right? So in
14 total you and Mr. Praljak will need between two and two and a half hours?
15 Is that the way we should understand?
16 MR. KOVACIC: [Interpretation] Your Honours, I don't think -- I
17 said it, but I don't think it was translated specifically. I think that
18 for both that would be a reasonable time. Whether it's two hours or
19 three hours I can't say at present, and I'll probably be able to be more
20 precise at the next Status Conference, but I have a first draft. I'm
21 working on my initial draft and trying to see what we should do before
22 the case begins for you to be able to follow the case better, and of
23 course I haven't had detailed discussions with General Praljak yet. I do
24 know some of his ideas, but I think that about two and a half hours would
25 be the right time. So whether it's going to be half an hour longer or
1 shorter, that's a rough estimate, but by the next meeting I'm sure that
2 I'll be able to be more precise. Thank you.
3 JUDGE TRECHSEL: A technical point first. On page 18, first
4 line, you are quoted and correctly so as referring to Rule 88 bis, but I
5 suppose you wanted to say 84 bis; is that correct?
6 MR. KOVACIC: [Interpretation] 84 bis.
7 THE INTERPRETER: Microphone, please.
8 MR. KOVACIC: [Interpretation] Yes, correct, 84 bis. That's
9 right, Judge Trechsel. And as far as I can see, it's been changed in the
10 meantime. So it is 84 bis throughout.
11 JUDGE TRECHSEL: Yes, and by way of comment you're quite right,
12 the Chamber is aware of the fact that your client has made a very lengthy
13 full day statement in the beginning, and when he was promised the
14 opportunity to take the floor again, the Chamber will reserve its right
15 to limit the time in view of the fact that it is in a way a second go,
16 which is not as such foreseen in the Rules.
17 JUDGE ANTONETTI: [Interpretation] Let's move on to
18 General Petkovic.
19 Mr. Stewart.
20 MR. STEWART: Yes, Your Honours, good afternoon. The -- as far
21 as Rule 84 is concerned, the position is that, yes, the Petkovic Defence
22 would wish to make an opening statement in the same way as indicated by
23 Mr. Khan. We propose to make that at the beginning of our case after --
24 well, it would be the first three Defence cases.
25 So far as the estimate is concerned, it is slightly premature.
1 I'm sure Your Honours will understand clearly we're talking hours, not
2 days, and Your Honours wouldn't really allow us days anyway, but
3 that's -- it's into the sensible, really, to attempt any sort of firm
4 estimate at the moment.
5 And so far as 84 bis is concerned, that's very simple, Your
6 Honour. General Petkovic himself does not propose to make any statement
7 or request to make any statement under 84 bis.
8 So far as the very interesting suggestion floated by His Honour
9 Judge Trechsel is concerned, naturally Your Honours would expect us to
10 take time as we all will to think about this and consider it. Just a
11 couple of observations at this point. Our immediate reaction, and we've
12 had such discussions we've been able to have very quickly, our immediate
13 reaction is -- is to see that there may very well turn out to be more
14 difficulties in than are actually solved and everybody, and I can see
15 from Judge Trechsel's reaction, everybody's receptive to that problem but
16 we'll consider it.
17 There are a couple of maybe relatively minor difficulties, one --
18 perhaps not a major one, but if we do do that it does have the effect of
19 potentially Defences calling some of their witnesses before they make
20 their opening statement under 84; that's not the biggest point in the
21 case but it is a feature.
22 Possibly of more practical significance is, and this follows from
23 some of the discussions we've already had, but if we were talking about,
24 let's say a Petkovic witness for Prozor let's say, rather than have such
25 a witness scheduled to follow immediately after, let's say, Mr. Karnavas,
1 whether he's got some, but Mr. Karnavas's witness on Prozor, it -- in the
2 end may be more satisfactory if we consider in the light of that evidence
3 and reflect upon whether that witness is actually needed, it's slightly
4 more likely that witnesses would be brought unnecessarily if we have to
5 schedule them municipality by municipality in accordance with what I'll
6 call Judge Trechsel's suggestion, just to give it a label, as opposed to
7 thinking about it as we go along because it is very likely in practice
8 that a consideration and reflection upon evidence given in relation to
9 particular municipalities or particular areas will lead Defence cases to
10 say well, we don't need this we don't need that and so on. So Your
11 Honours at this point those are all our observations but of course there
12 may be more to come from future hearings after reflection.
13 JUDGE TRECHSEL: I do not mind this labelling, but I want to
14 recall that it is in fact the Chamber's suggestion on which I have a bit
15 elaborated, but it's the Chamber's suggestion. But you may call it the
16 Trechsel suggestion, because it may make things easier to identify
17 because the Chamber has many suggestions and I have very few.
18 MR. STEWART: Your Honour, there's -- credit where credit is due
19 I always say.
20 JUDGE ANTONETTI: [Interpretation] Fine. At this stage the D4
21 Defence has not given any time for its opening statement.
22 Let me remind you that as far as I remember, in the cases before
23 this Tribunal opening statements never went over one day or, let's say,
24 two days of hearing. And here I'm thinking of the Milosevic case,
25 although I'm not even certain about that.
1 The Chamber will look into the matter, into opening statements in
2 other cases to see about the time, because of course you could imagine an
3 opening statement that could last for weeks, but at some point the Trial
4 Chamber has to set limits, time limits.
5 The Trial Chamber will look back at all the trials and see how
6 long opening statements have been in the past.
7 Let me now move on to D5. You have the floor.
8 MS. TOMASEGOVIC TOMIC: [Interpretation] Good day, Your Honours.
9 Good day to everyone in the courtroom.
10 The Defence of Mr. Coric intends to present an opening statement.
11 And as Mr. Stojic and Mr. Petkovic's Defences have stated, we will also
12 do this at the beginning of our case. It would be about one hour long,
13 and the purpose of the opening statement is to indicate to the Chamber
14 what we intend to show during our presentation of evidence what our case
15 is, to make it easier for Your Honours to follow the evidence. And in
16 accordance with this, my comment on the Trial Chamber's proposal about
17 the order in which evidence will be presented is as follows: I agree
18 with everything my colleagues have already said, so I will not repeat it
19 now, but I wish to add one thing.
20 Our Defence case is such that it is not necessarily arranged by
21 municipality. Our witnesses will not be linked to particular
22 municipalities necessarily, and some of them will testify to events in
23 more than one municipality. This complicates our situation considerably
24 if we were to follow the order suggested and if we have to come after
25 witnesses testifying to one particular municipality.
1 What I wish to say about everyone calling their witnesses within
2 their own Defence case is the following: If witnesses of previous
3 Defence teams testified to events that one of our witnesses will testify
4 to, our witness will either not testify to those events or we will not
5 call the witness at all. This will expedite the proceedings and shorten
6 the time needed for our Defence case.
7 That was in brief what I wished to say. Thank you, Your Honours.
8 JUDGE ANTONETTI: [Interpretation] Thank you. To sum up, D5
9 thinks of making an opening statement that would last about one hour.
10 Let me finish by turning to the D6 Defence.
11 MR. IBRISIMOVIC: [Interpretation] Thank you, Mr. President.
12 Mr. Pusic's Defence wishes to retain the right to make an opening
13 statement at the beginning of our case. It will last an hour and a half
14 at the most. If we decide not to make an opening statement after all, we
15 will notify the Trial Chamber and everybody else on time, and it will
16 therefore save us time. Thank you.
17 JUDGE ANTONETTI: [Interpretation] Fine. Now we have a very clear
18 picture. D1, no opening statement; D2, yes; D3, yes; D4, yes; D5, yes;
19 D6, yes, maybe, not quite sure yet. But if it's yes, then they'll need
20 an hour and a half.
21 Whilst listening to all of you, I've found out something I was
22 not aware of, and that you've sort of come to an agreement and that the
23 Prlic Defence will start. If I understand, the Prlic Defence will go
24 first with the presentation of its case, followed by D2, D3, D4, D5, and
1 Mr. Karnavas, is that the way we should understand the position?
2 I'm giving you the floor, because I --
3 MR. KARNAVAS: Thank you. Well, in all the cases that I've ever
4 tried in my career, and there have been some, it's always been -- that's
5 been the procedure unless it can be agreed upon. Normally the
6 Prosecution indicts in a hierarchical order. We heard Mr. Scott say
7 that's not the case in this case, but that's intellectually dishonest.
8 In this case they've indicted in a particular hierarchical order with
9 Dr. Prlic being where he is given his position, which is why at the
10 beginning of the trial some two years ago we were maintaining that it
11 would be best to have the cross-examination in the order in which the
12 indictment was formatted and for the lawyers to decide who should go
13 first as opposed to the musical chair approach, as I call it, of one
14 person -- one day it's Prlic, the next day is Stojic.
15 But in any event, to me it makes sense that whoever is indicted
16 first goes first. It clarifies it. It just so happens in this case if
17 you look at the way that the indictment is formatted, that there should
18 be no other way. Of course, I would gladly go last, gladly, although I'm
19 sure that my colleagues would prefer me going first. And I'm only saying
20 that by going last we have more time to prepare, but that's the way it
22 But in -- since you've asked me that question, it should also be
23 noted, that since we are going first, in light of the way the indictment
24 is drafted, at least the way when we get down to -- when we start
25 discussing hours and witnesses and what have you, I should note that we
1 have taken it upon ourselves to construct our defence in a manner in
2 which the first half of the defence deals with the global issues related
3 to the joint criminal enterprise, those sorts of aspects, which obviously
4 will assist everybody in the Defence, or it may not, I mean, they may
5 have their own way of doing things, but in any event, I will be
6 disclosing the names of all my witnesses to them well in advance. You
7 know, even today so they can look at it. And if they wanted to introduce
8 some of those -- some of their witnesses that go to those aspects during
9 that period, we would welcome that. We think that makes sense. And I
10 know that there are some other witnesses that certain Defence lawyers
11 wish to call that we believe should come in earlier because it will
12 assist the Trial Chamber. Not because they assist Prlic, but the Trial
13 Chamber. And that's why we should -- they should come in earlier.
14 So in any event, that's -- I hope I have answered your question,
15 Mr. President and Your Honours.
16 JUDGE ANTONETTI: [Interpretation] Very well. You are very clear
18 Yes, Mr. Kruger.
19 MR. KRUGER: Good afternoon, Your Honours, everybody in and
20 around the courtroom.
21 Your Honour, I just want to make a limited intervention at this
22 stage. And in the absence of Mr. Scott and Mr. Stringer, who have
23 notified why they couldn't be here today, I do have to make a note that
24 at page 24, line 2, there is an accusation of intellectual dishonesty,
25 and basically that Mr. Scott -- and I don't think he would take kindly to
1 that. I think that's unnecessary. Thank you, Your Honour.
2 MR. KARNAVAS: Well, I think I'll just leave it, but in essence
3 to suggest that somehow there wasn't a particular order, it flies in the
4 face of logic. You know, maybe it's too harsh to say dishonesty. I
5 should have said maybe something else. But it does fly in the face of
6 logic. And let's be adult about this, and I think Mr. Kruger knows what
7 I'm talking about. But I accept - and I don't mean to offend Mr. Scott -
8 but if he was here I probably would say the same thing in his face. I
9 don't want him to think that I'm speaking behind his back.
10 MR. STEWART: May we just observe, we're not going to say
11 anything about how the order in the indictment was chosen, but simply to
12 say that yes, we concur that unless there was some agreement among the
13 Defence teams that had had the Trial Chamber's endorsement and approval,
14 we should just stick to D1, D2, D3, D4, D5, D6. That's the Petkovic
15 Defence position.
16 JUDGE ANTONETTI: [Interpretation] Very well. Relating to this
17 issue, the Chamber had no particular opinion. You decide. It could be
18 D1, D2, D3, D4, D5, D6. It is the order as you wish it to be. We as
19 Trial Chamber have no major input in this matter. So we take due note of
20 the fact that you'd rather keep the order as in the indictment, D1 to D6.
21 But it -- had you suggested something else, we would have agreed to it.
22 Very well. We've dealt with item 1. Let's move on to item 2.
23 Personally, and I think this is also the view of my colleagues,
24 it is the most crucial item in our agenda since it deals with the time
25 requested by the Defence for the presentation of their evidence. Also,
1 as to the way this time is going to be spread amongst the various Defence
3 For the time being, the Trial Chamber has no document whatsoever.
4 We're not aware of your summaries or witnesses. We don't know anything,
5 but I guess you've already started working on your Defence, rather more
6 than less, I should say, so I suppose that you have some ideas -- yes,
7 some ideas to convey to us.
8 Let us begin with Mr. Karnavas. Let's follow the order starting
9 with D1.
10 Mr. Karnavas, in this respect what do you have to say?
11 MR. KARNAVAS: Thank you, Mr. President. All right. As far as
12 the time to present the evidence, here's how I have it: The total of
13 approximately 165 hours.
14 Now, of that, approximately 70 hours would be what I would call
15 witnesses that go -- that are common witnesses, that deal with various
16 issues. And I would also say that probably some 44 hours also deal with
17 issues that are related to everybody, although perhaps not as much. But
18 I would say that half of the hours go to what I would call the JCE
20 Now, of that period of time, I should also note, I'm going to
21 move ahead of the schedule a little bit, because it is on the schedule
22 about the testimony of the accused, with your permission I would cover
24 The 165 hours also includes what we believe would be an estimated
25 period of time for in which Dr. Prlic will be providing evidence. In
1 other words, what we believe the time it would take for direct
2 examination. Okay? Keeping in mind, as far as I understand, that
3 normally Trial Chambers are reluctant to put a specific time limitation
4 on the testimony in which an accused, you know, gives.
5 Of course, there's -- the Trial Chamber does have the right to
6 restrict the testimony of any witness, including the accused, if that
7 testimony is not relevant, it's repetitive, it's not assisting. So --
8 but we believe that a certain amount of time is going to be necessary.
9 So in any event, that's how we've broken it down.
10 To be more concrete, dealing with issues what we call with the
11 Croatia Republic
12 with issues at the state level. For a variety of issues that we believe
13 are necessary and are inclusive in the indictment approximately 30 horse.
14 Issues dealing with the HVO, HZ, HB, or HR HB together, we believe with
15 the -- excluding Dr. Prlic's testimony, approximately 44 hours. Of
16 course some of that can change. There's some miscellaneous witnesses
17 which we believe are -- will cover approximately 23 to 25 hours.
18 We have some expert witnesses that again these expert witnesses
19 go to everyone, not to any particular accused such as Dr. Prlic. We've
20 taken it upon ourselves. We took the initiative early on. We believe
21 that they would be essential to the various issues in the court -- in
22 this case, dealing with the JCE, approximately 15 hours. We have three
23 particular experts at this time.
24 And then we have some other witnesses that would directly
25 relate -- directly relate, virtually exclusively, I should say, to
1 Dr. Prlic, and they go to character witness.
2 So -- I don't believe in playing games and hiding the ball and
3 we're going to be here for a long time. They're going to get the list in
4 two weeks so it doesn't really matter. And I just think that for
5 scheduling purposes it helps everybody to know that that's how we've
6 broken it down. So it would be our proposal that we would start dealing
7 with the issues of Croatia
8 issues that go there. Then dealing with the issues of the state, the
9 Presidency, international negotiations with the state, those issues.
10 Then, as I said, HVO, the Croatian Community, Croatian republic.
11 And it would be our suggestion, Your Honours, I'll be very frank,
12 normally I know that in some jurisdictions they would prefer to have the
13 accused testify first. I don't that there is any particular rule of
14 thumb. It would be our intention, and we would hope that the Trial
15 Chamber would understand and not try to deduct any weight as a result of
16 Dr. Prlic coming at any particular time, that it would not be until we
17 get to that portion; that is, dealing with the HVO, the Croatian
18 Community of Herceg-Bosna, that at that point we would have Dr. Prlic
19 testify first and foremost with the rest of the witnesses following after
21 So in other words, we would have some common witnesses above, and
22 then at some point we would formally commence with our case, as it were,
23 specific to Dr. Prlic, you know, even though many of the issues will be
24 assisting the other accused in the sense that they're tied into this
25 whole notion of the joint criminal enterprise.
1 As far as the experts are concerned, again depending on where
2 they fit best, we believe perhaps at least one if not two of them would
3 be at the early phase. One would be at the latter, although I'm moving
4 with all deliberate speed to have all of them prepared to go during the
5 first phase of -- that is before we get to the Prlic specific Defence
6 case. So I think that's what we have.
7 Now, I should also note that there are two particular witnesses,
8 one expert and then another witness, that we will be sharing in a sense
9 with other Defence and there may be others, I don't know what their list
10 of witnesses are, but there's one particular expert and there is another
12 And let me raise this issue right now while I'm on my feet: I'm
13 concerned that when we -- when we decide how many hours to give to a
14 particular witness that it is necessary for the Defence, the lawyers, in
15 advance to try to determine among themselves if they have any what I
16 would call positive evidence to elicit from that particular witness. It
17 may be that one Defence team is calling a witness, but that witness I
18 wish to extract a certain amount of evidence. Not cross-examine but
19 direct evidence in a sense, and here's where the dilemma might lie:
20 Let's just say team X calls this witness and only wishes to examine the
21 witness for one hour. However, because of where the -- the witness may
22 have potential information that assists not just my client but may go to
23 the joint criminal enterprise, and I might need six hours with that
24 witness for direct examination or others may need as well in order to
25 cover all of it, if -- if that were the case, the Trial Chamber is put in
1 a dilemma as the Defence, because I cannot cross-examine somebody in 15
2 or 20 minutes or one hour, my time divided by six, the cross-examination
3 time, and cover all those topics.
4 We don't want to be in a position where we're fighting over
5 witnesses. And a witness belongs to the court. It doesn't belong to any
6 particular individual.
7 So there maybe instances as I said, that a witness may be called
8 by a particular Defence team that might have been called earlier or for
9 whatever reason was not, and in that case there must be some flexibility
10 where a particular Defence that wishes to also conduct some direct
11 examination should alert the Court that they will require X amount of
12 time and here are the reasons. And of course non-repetitive. It's got
13 to be relevant.
14 So I think that's just the fairest approach to take and I just
15 put that out.
16 I don't know if there is anything else the Court wishes for me to
17 address at this point. I've come here fully prepared today to answer all
18 questions depending -- based on your --
19 JUDGE MINDUA: [Interpretation] Mr. Karnavas, sorry. This is a
20 very interesting proposition indeed, which is to examine a witness called
21 by another Defence team, but I do have one concern. In such a case would
22 the witness be part of your witness list? Would he be -- would the list
23 be given to the Chamber beforehand, or is the Chamber going to be taken
24 by surprise to learn that you have actually a new witness? I mean,
25 through this witness that you want to examine in chief.
1 MR. KARNAVAS: Thank you very much, Your Honour. First of all, I
2 don't believe that trial by ambush or surprising anybody assists anyone.
3 In fact, I think that -- I often say that a lawyer in court has one
4 reputation to lose in his entire career, not per case. So I think the
5 best approach is to be quite honest and forthright with the Trial
6 Chamber. Their style may -- you know, may differ, but in any event, I
7 would like to think that I've been very honest with this Trial Chamber
8 throughout the proceedings.
9 It would be my intention to notify, even before the commencement
10 of the trial, of the Defence case, that here are some witnesses. These
11 are the issues. We're sharing this witness so that there are no
12 surprises. I don't think that they -- you know, now, there may be, for
13 instance, a case, I don't think that it's going to be likely, but there
14 may be, for instance, a case where a particular witness might have some
15 additional information that wasn't -- that we weren't cognisant of prior
16 to the commencement, in which case I would say -- I would ask for leave
17 in advance and say, "Well, Your Honours, I didn't have that information,"
18 albeit being due diligent, but I would suspect that with all of my
19 colleagues, once we've seen each other's lists, and we haven't seen them
20 yet, we would know in advance. It's pretty difficult not to see a list
21 and not to see the documents and not figure out what those people are
22 going to say. At least if you've been prepared and working on this case
23 all along. So it's going to be pretty clear why the witness is called
24 and what they're going to be saying.
25 And so -- and that will be even more apparent as of March 31st.
1 So -- but I don't believe in surprises, and I don't think that the Trial
2 Chamber would expect surprises from the lawyers. I mean, maybe you
3 would, you know -- we would be more than happy to surprise you
4 occasionally and maybe come in a congenial personality.
5 JUDGE TRECHSEL: I would say a little bit of suspense and
6 surprise doesn't harm, I would say. What I would find important is that
7 amongst the teams you inform and warn each other that Witness 75 is one I
8 want another hour of so that the scheduling can be made accordingly, the
9 amount of time needed for the witness.
10 This, I think, is important in order to avoid being squeezed
11 suddenly, lack of time for one witness, the next witness waiting already.
12 I think for this purpose some coordination would be useful, and I'm sure
13 you agree with that to the extent possible.
14 MR. KARNAVAS: I totally agree with that and I think that that
15 should be something more -- perhaps said even more forcefully and that it
16 is expected upon us to do that.
17 Now, during the course of the proceedings, of course, evidence
18 may come out where all of a sudden now may have to go into a particular
19 issue that you weren't aware of or you hadn't anticipated, and you may
20 need to readjust and again in those instances it would be up to us to ask
21 for leave, provide you with the information and then for you to make the
23 JUDGE ANTONETTI: [Interpretation] Mr. Karnavas if I understood
24 you properly, because I listened to you religiously when you spoke, here
25 are the conclusions would I draw: You basically envisage 165 hours, out
1 of which 70 would be devoted to common witnesses who would be of interest
2 to all the other accused. There would be 44 hours devoted to witnesses
3 who would deal with topics that also are of interest to the other teams.
4 You also said that Mr. Prlic was going to testify.
5 So if I add it all up, if I'm not mistaken, you plan Mr. Prlic's
6 testimony to last at least 60 hours? If I take it out, 165 minus 70,
7 minus 44; so there would be some 60 hours for Mr. Prlic's testimony. And
8 you announced the basic themes that would be covered, Tudjman, Croatia
9 the Presidency, international negotiations, the HVO, the HR HB, et
11 That's very good, because this shows us clearly all the topics
12 you want to deal with.
13 And you said, and I was very surprised to hear that, you said
14 that as part of the 165 hours at some point in time Dr. Prlic, your
15 client, was going to testify, and that you would continue then, once he
16 was done, with witnesses. Maybe with common witnesses or witnesses
17 likely to be of interest to other teams.
18 So I'm a little taken aback. Are you going to fit in his
19 testimony among -- within the general time? You know that if Dr. Prlic
20 is to testify he's going to be asked questions by the Judges. That goes
21 without saying. Questions in order to have no surprises based on
22 exhibits, Prosecution exhibits and Defence exhibits, based also on
23 documents that you are going to submit to the witness. So we're going to
24 ask questions of him.
25 But once he has testified, if you plan to call further witnesses,
1 we won't be able to ask Dr. Prlic any further questions that would arise
2 from answers provided by your other witnesses or from documents related
3 to such witnesses.
4 As a rule, in the history of this Tribunal accused testify in the
5 end. That's the rule. In this way it is possible to really address all
6 the topics and have a comprehensive view of the case. If you were to
7 call Dr. Prlic in the middle of your Defence case we would not be able to
8 put questions to him. Sometimes it could be questions for his benefit,
9 of course, but you could deprive us of this right to ask questions while
10 the accused has decided to testify, unless the Trial Chamber -- that's
11 not provided for in the Rules, unless the Trial Chamber wants to ask
12 questions of the accused. So this is my personal concern regarding the
13 structure you have.
14 My other concern, I'll give you the floor in a minute, my other
15 concern is the number of hours. I remind you that the Prosecution used
16 for their case 294 hours. So you speak of 165. So that's two-thirds
17 basically of the Prosecution case, which, too, may give cause for
18 concern. What do you think?
19 MR. KARNAVAS: Thank you, Mr. President. Based on my calculation
20 of the hours, I just note that I had noted that Dr. Prlic would testify.
21 I didn't give a specific number, but if we do the breakdown, and perhaps
22 my math is wrong, but he's calculated to approximately 24 hours on direct
23 examination. Now, again these are just sort of estimates. We're trying
24 to do our best to try to figure out -- and of course that would be
25 because of where he --
1 THE INTERPRETER: Could Mr. Karnavas please speak into the
2 microphone. Thank you.
3 MR. KARNAVAS: -- and that's because of where we had him to
4 testify. Now, as far as whether somebody goes first in the middle or
5 last, normally that's left up to the Defence. There are some Judges in
6 this Tribunal, and I was shocked to hear this, where they said that
7 unless the accused testifies first, they will give little weight to their
8 evidence because the assumption is that the accused has heard all the
9 other evidence and now he's going to confabulate or perhaps confabulate
10 or adjust his testimony based on the evidence. So there's that extreme.
11 Having Dr. Prlic testify last, of course, there is something that
12 I would have to consult with Dr. Prlic, but I don't see there to be a
13 problem. I certainly don't want to leave the Trial Chamber with any
14 impression that we're trying to limit the Trial Chamber of its ability to
15 ask questions.
16 I've constructed in this fashion based on my experience, or lack
17 thereof, and based on the narrative, because I thought perhaps it might
18 be -- it might be more appropriate. However, I don't see there to be a
19 problem, and I will -- Dr. Prlic has listened to the Trial Chamber's
20 observations and we will consult, but that won't be a problem. If the
21 Trial Chamber wishes to hear him last in this particular case, we will
22 give it strong consideration.
23 So I hope that the Trial Chamber doesn't get the impression that
24 somehow I'm trying to sneak him in some place, because it's kind of
25 difficult to do that.
1 But in any event, we can make some adjustments, Your Honours, in
2 view of your -- and by the way, I should note that I really appreciate
3 the Trial Chamber's observations in this instance because all these
4 judicial hints obviously help me to adjust the case.
5 JUDGE ANTONETTI: [Interpretation] Another observation which is
6 one of mine, because we have not spoken about it in the Trial Chamber.
7 This is something that crosses my mind. You may know this. You may not.
8 I'm probably the Judge that has been sitting on most cases in
9 international criminal justice because I have been sitting non-stop for
10 basically four years, so I do claim to know the way international
11 criminal justice operates.
12 The fact that he would testify as the first witness, because also
13 he is accused of liability under Article 7(3), which is not just
14 something you can sweep out of the way. Article 7(3), that's command
15 responsibility, as you know, and in case he might be accused of comitting
16 crimes under that Article of the Statute, an issue arises. That's the
17 degree of liability.
18 If he were to testify first, it would not be possible for the
19 Judges to put questions to him regarding his subordinates who might claim
20 that their superior was warned, failed to do anything, did not check.
21 And the fact that Dr. Prlic would testify first would not enable your
22 client to give his view to the Trial Chamber. So here I can anticipate a
23 problem which is not major one but that could arise.
24 I listened to you very carefully, and you said that in this
25 Tribunal as a rule Trial Chambers follow the order as per the
1 indictments. That is so, but in civil law countries, including in
3 position that will testify last. So it's another scale. We start with
4 the lowest rung, and you end with the highest rung, as it were.
5 So it's up to you, of course, but I do observe that the fact that
6 he would testify first and that he would testify while you are calling
7 your witnesses might bring about some problems.
8 With regard to common themes or to common witnesses, fine. Fine.
9 That's -- of course that's quite crucial. And remember, at the Status
10 Conference in nearly two years ago I had reminded you that as far as I
11 was concerned, the Defence teams were to really discuss among themselves
12 in order precisely to call common witnesses in order to avoid having
13 repetitive witnesses. And I told you that when doing so you may have
14 common witnesses presenting no problems who could be called. But there
15 could be witnesses produced by one party who may be such that other
16 Defence teams would have to ask questions of him or her, because such
17 common witnesses, unfortunately so, may one turn out to be Prosecution
18 witnesses even though they may be called by a Defence team, hence the
19 need for cross-examination.
20 It is all very complicated. You yourself are extremely
21 experienced in this matter. You know that as well as I do. But given
22 that these topics are extremely complicated, the light is seen when
23 Defence counsel have met, and having met can identify points of agreement
24 and disagreement. And then if you have agreement among yourselves, it is
25 easier to have collectively witnesses who are going to say the same thing
1 for all teams.
2 Of course if we're talking about disagreements, then you have to
3 call your own witnesses team by team, because one witness for one team
4 can turn out to be a witness against another team. So that's where the
5 problem lies.
6 For the time being we have no idea of who is going to come as
7 witnesses. We don't know where we're going, where we're heading for. We
8 will know that when we have your witnesses' names, but so far nothing.
9 But we know how much time you will need. We know the topics you're going
10 to deal with, but we don't have any witnesses' names.
11 Do you have anything to say before we have a break?
12 MR. KARNAVAS: The only thing I can say, Your Honour, is that I
13 take it from -- first of all, I appreciate your observations. Again,
14 Mr. Prlic -- Dr. Prlic was placed in that order because of our own fear
15 that if he didn't testify at a particular point - and this would be the
16 beginning of our case - that there may be some dissatisfaction by the
17 Trial Chamber, but given your observations, we certainly will give them
18 strong consideration.
19 And I take it as far as your other remarks go, you are more or
20 less urging the Defence teams to get together before the next hearing to
21 sort of iron out some of these problems to see about -- and I think
22 that's -- with that instruction, I think that our colleague -- my
23 colleagues will certainly meet and discuss that.
24 JUDGE ANTONETTI: [Interpretation] Very well. We're going to have
25 a break, a 20-minute break. We shall resume in 20 minutes' time.
1 --- Recess taken at 3.45 p.m.
2 --- On resuming at 4.10 p.m.
3 JUDGE ANTONETTI: [Interpretation] We are resuming our hearing. I
4 will give the floor back to Stojic's Defence so that they can tell us
5 what kind of time you need to put questions to your witnesses.
6 Mr. Khan, Ms. Nozica.
7 MR. KHAN: I'm grateful, Mr. President. Your Honours, dealing
8 with matters in reverse order, the first clarification I can give is that
9 there is no intention on the part of the Stojic Defence to call their
10 client, our client, as a Defence witness. So it's not anticipated that
11 Mr. Stojic will avail himself of the opportunity to give evidence in his
12 own defence.
13 Your Honour, whilst, therefore, the order or the placing of an
14 accused is not relevant to us, it may be of some assistance, I don't --
15 I'm not sure, just to hopefully shed some light on the exchange that took
16 place between my learned friend Mr. Karnavas and the Bench.
17 Your Honour, the case law from the Tribunal as I understand it,
18 of course, is silent on the order of when an accused will give evidence.
19 I think the practice, as far as I'm aware, has generally been that an
20 accused has given evidence first but different systems have different
21 responses to a question. I do know that the Special Court for Sierra
22 Leone, for example, requires that an accused gives evidence first. And
23 that's the domestic practice in England
24 approach of course is different. I think, Your Honour, that can be
25 matter of course between the Bench and an accused. I think the key point
1 is, hopefully helpful, is that an accused should be given clear notice by
2 the Bench that if he wishes to give evidence at the end or at any point,
3 for example, at the beginning, whether or not it will affect the weight
4 the testimony will give, because there is case law, of course, on that
5 particular issue, and I think if there's no suggestion from the Bench
6 that weight will be viewed prejudicially to an accused depending upon
7 where his counsel seeks to interpose him, I think it's not really an
8 issue that we need to trouble ourselves with.
9 Your Honour, on the core issues it's anticipated that the Stojic
10 Defence will call not more than 30 witnesses, not more than 30 witnesses.
11 And two will be experts. And one of those experts, it's been agreed with
12 the -- all other co-accused teams, will be a common expert that's called
13 in the Stojic defence case.
14 Your Honour, the time that the Defence need will be between 60 to
15 70 hours in total.
16 Your Honour, there will be one application in relation to one
17 witness -- sorry in relation to two witnesses that they be accorded
18 category B protective status. That will be filed today in compliance
19 with Your Honour's previous instruction. And in relation to one further
20 witness, an application will be filed by the 31st of March that a
21 category A status be accorded to that witness. So out of the 30
22 witnesses, two will be category B witnesses if our application is
23 granted, and one would be a category A witness.
24 Your Honour, I must address, just to clarify a suggestion put
25 forward by my learned friend Mr. Karnavas. Of course it's hoped that in
1 a perfect world in which the Defence all riding together witnesses could
2 be common to various issues, but it must be said that at this point at
3 least I have not seen, and I think my learned friend has not seen, any
4 summaries, any statements, nor have we been involved in any witness
5 interviews or witness preparation with any witnesses that my learned
6 friend Mr. Karnavas states may well be termed "common witnesses," and at
7 this juncture at least, I think this unilateral declaration of
8 commonality is perhaps premature. I think, Your Honours, with my
9 respectful submission, is that matters will be somewhat clearer once the
10 65 ter summaries have been served and we can actually make an informed
11 decision in relation to which witnesses are common, which are not, and so
12 I won't say more at this point. Other than it is also anticipated that
13 in the Stojic defence there may well be witnesses subject to the views of
14 counsel for the other co-accused. There may be well be witnesses that
15 maybe of utility to their own cases.
16 Your Honour, that puts me -- brings me one to a further
17 observation by my learned friend Mr. Karnavas, and Your Honours hopefully
18 will forgive me if I'm being rather dimwitted about matters, but I must
19 confess I didn't see -- I didn't fully understand the import or the point
20 of the submissions by my learned friend, Mr. Karnavas, about witnesses
21 and evidence in chief and cross-examination. The rules are very clear,
22 and I think sometimes the compartmentalise approach adds to clarity.
23 If, for example, when the 65 ter summaries are given a witness is
24 common, of course in all the summaries it can say this is a common
25 witness. If in a 65 ter summary some witness are on more than one 65
1 summary list, of course Your Honour knows that witness has been spoken to
2 by more than one Defence team and will be a common witness between at
3 least two particular teams. But, Your Honour, no one can force a witness
4 to be a joint Defence witness. It may well be the case that a witness
5 wishes to give evidence, for example, for Bruno Stojic, whilst he may
6 well or she may well give evidence that may have utility to other
7 accused. Well, that's the purpose of cross-examination. There's no
8 point in forcing a hat on a particular witness against a witness's will.
9 Your Honour, in addition to that, Rule 90 is very clear that
10 cross-examination, and of course, firstly it would ordinarily be limited
11 to examination-in-chief, but, Your Honour, a witness is able to give
12 evidence relevant to the case for the cross-examining party, and there's
13 no rule requiring that leading questions be asked. It's not like
14 examination-in-chief where leading questions on contentious issues are
15 frowned upon and are ordinarily circumscribed. In cross-examination it's
16 completely within the discretion of the cross-examining party to ask
17 completely non-leading questions. So in my respectful submission there's
18 no need for extra, complicated, new, unnecessary rules which don't add,
19 in my view, anything to the practice of the Tribunal. And, Your Honour,
20 I know Mr. President has dealt with many other multi-handed cases.
21 If an accused wishes to elicit evidence from a witness called by
22 another accused he may do so, and he may ask that either by way of
23 leading questions or by way of non-leading questions, the categorisation
24 of the question, of course, is hardly relevant. The evidence that is
25 elicited is. That is the evidence upon which Your Honours, at the end of
1 the case, will determine the guilt and innocence -- the guilt or not of
2 the accused that are sat in the dock today.
3 So, Your Honour, I would urge caution about extra innovation in
4 relation to joint witnesses and the rest of it if that is not explicitly
5 agreed in advance by the Defence teams, and I don't see any prejudice
6 that could possibly arise to any accused in eliciting evidence from a
7 witness called by another party in any form that they seem fit without
8 forcing a label of "joint witness" on a particular witness.
9 Your Honour, I think those are the matters in relation to the
10 item 2 of the agenda that I can respond to at the moment unless Your
11 Honours have any specific question arising from what I've said.
12 JUDGE ANTONETTI: [Interpretation] If I understood you correctly,
13 you have a problem with leading questions or suggestive questions.
14 According to the jurisprudence of this Tribunal, when a witness is called
15 by one of the parties, the party in question puts questions to the
16 witness, and the questions are non-leading. That is during
17 examination-in-chief, but the other counsel for the other accused can put
18 leading questions. This is part of the cross-examination. And they can
19 also not put questions, but they're entitled to do so, so I think
20 everybody is agreed on that.
21 So as far as Mr. Stojic is concerned, he will not testify, and
22 you said you would call 30 witnesses approximately, and you will need
23 something ranging from 60 to 70 hours, to sum up what you've just said.
24 MR. KHAN: Indeed, Your Honour, and not more than 30 witnesses.
25 JUDGE ANTONETTI: [Interpretation] Very well. Thank you.
1 We shall now move on to Mr. Praljak's Defence. Mr. Kovacic.
2 MR. KOVACIC: [Interpretation] Thank you, Your Honour. As far as
3 the defence of General Praljak is concerned, with a certain dose of
4 reserve because we're still doing our analyses, and of course from the
5 discussion it is obvious that we'll have to see other lists, too -- or,
6 in other words, let's make a hypothetical here. If we were to set the
7 parameters and framework so that -- the Defence of General Praljak
8 ourselves independently, then I would say to you that we plan, once again
9 roughly speaking, to have 140 to 150 hours for direct, for
10 examination-in-chief, which means about nine -- eight or nine weeks,
11 roughly, working weeks if we have four working days per week as we have
12 worked thus far, and there we include the following: First and foremost,
13 the testimony of General Praljak himself, which would be about -- take
14 about three weeks, four days a week, according to our working schedule so
15 far. So 16 working hours a week or 45 -- about 45 hours for the
16 examination-in-chief. And I don't include in that figure -- or, rather,
17 partially, I partially include, because I don't know what the position of
18 the Prosecution will be, but we have three expert witnesses plus one
19 joint expert witness to be called together with General Petkovic. So
20 these four expert witnesses will be dealing with five different topics in
21 total. I don't know whether the Prosecution will agree or not to the
22 expert testimony, but anyway, this could be about 30 and -- to 40
23 witnesses under 92 ter, and about 120 to 130 witnesses under 92 bis,
24 Rule 92 bis, and about 20 to 25 witnesses in vivo, with the proviso that
25 and I would like to follow on from what Mr. Karnavas said and inform the
1 Trial Chamber that we have no intention of playing hide and seek, hiding
2 our tactics and so on. I'm telling you of our figures in advance. Of
3 course subject to some more analysis.
4 But what I wish to emphasise is that of the 92 bis and 92 ter
5 witnesses, we would, in a regular trial or -- how shall I put this -- and
6 without the time constraints that we are under, we would very much like
7 to bring in these witnesses for live testimony. Of course we are fully
8 aware of the realistic circumstances, and that is why a lot of witnesses
9 will be heard through the instruments of Rule 92 bis and 92 ter.
10 But I'd like to mention also that when these submissions are
11 submitted, the Defence is absolutely flexible and open, and we don't
12 intend to oppose any comments or objections made by the Prosecution or
13 the Trial Chamber or other Defence teams. That is to say that we should
14 bring in some more witnesses live. We always think that that is a good
15 idea, but in order to be real, realistic, we have to use the 92 ter and
16 92 bis options.
17 There will be one 92 quater -- or there was to be one, but
18 unfortunately he is deceased.
19 Now, with respect to the testimony of General Praljak himself, I
20 don't want to repeat what's already been said, but my position is this:
21 In conformity with the rules and regulations, which do not specify a time
22 for the testimony of the accused, and in conformity with the cases that
23 have been heard at this Tribunal, although I don't think that there is
24 any jurisprudence in the sense of rulings and decisions, so the Defence
25 does have freedom to plan, and the Trial Chamber will of course have the
1 final word in the matter, but bearing in mind what Judge Antonetti said a
2 moment ago, and we will consider that with all due attention, our
3 original plan is for General Praljak to testify at the beginning,
4 straight away, and that he should open our Defence case from the
5 practical aspect, primarily because through him we could introduce a
6 large number of documents and receive direct comments and have the
7 documents authenticated.
8 And I would like to remind you that General Praljak as opposed to
9 other witnesses knows much more about the facts and therefore can testify
10 about a -- much broader matters than individual witnesses can, because
11 most of them will focus on a set area, time, or subject. So those
12 witnesses will be able to provide us with the segments and images of --
13 or fragments, whereas Mr. Praljak can incorporate a large number of
14 topics. So that is a more realistic option, and we would like to
15 introduce documents through him.
16 As far as the examination-in-chief is concerned itself, and
17 bearing in mind the practice at the Tribunal thus far, and I'm not sure I
18 understood the Presiding Judge a moment ago when he touched upon this
19 matter, I think that when the accused testifies based on the Rules of
20 Procedure and Evidence, and he is questioned by the Defence counsel and
21 the Judges of course have the right as they do with any other witness to
22 ask direct questions, and even with less restrictions than you yourselves
23 have introduced as standard practice during the Prosecution case, but
24 again it's quite natural that you might be interested in more things
25 here, more subject matter here. And of course there are limitations and
1 restrictions. And I hope I've understood the Presiding Judge correctly
2 in that respect, that from the moment when the examination-in-chief
3 starts the -- the Defence counsel can no longer have contact with the
4 accused until he completes his testimony. So that is the practical
5 reason for which I think that he should testify straight away.
6 Now, bearing in mind what the Trial Chamber said a moment ago, I
7 see no obstacle that at the end of the Praljak defence the Trial Chamber
8 can ask the accused to appear again to answer some questions from the
9 Bench. I'm not going to enter into that. I just would like to say that
10 that is technically quite possible. It is feasible.
11 If I were to conduct my defence case in an ideal manner as I see
12 fit, under ideal circumstances, I think the method of presentation is
13 important, how to paint the picture you wish to paint. And therefore I
14 would choose to start off with General Praljak and his testimony, and
15 then continue looking into the different areas, events, topics and other
16 exhibits. Of course, with 92 ter witnesses thrown in. So when I have
17 enough grounds and a good base, and the Defence teams before me will do
18 that, then we can go ahead with 92 bis witnesses as well.
19 But I'm quite sure that you know from what has been said thus far
20 that in the meantime we'll look at other lists and see where we can add
21 something to the others or take some away.
22 Now, I've been told by my colleague that I wasn't quite clear
23 because I failed to state that as far as we can see now, we're going to
24 have approximately 20, perhaps a little more, viva voce witnesses. As I
25 say, a little more than 20 viva voce witnesses. I did say it. Right.
1 Then I apologise. Perhaps it wasn't correctly transcribed in the record.
2 I don't want to take up too much of our time, so if you have any
3 questions to ask, please feel free to do so, but I think I've tackled
4 them all.
5 JUDGE ANTONETTI: [Interpretation] As I was listening to you, I
6 discovered something which I hadn't thought of until now, and I don't
7 know if we've ever had such a case.
8 Your client, Mr. Praljak, is going to testify, which means that
9 he will be sitting over there in front of us. He will take the solemn
10 declaration, and you will put questions to him. Normally speaking these
11 should be non-leading questions. So you will ask him questions. And you
12 have told us that you had planned three weeks for this. Since you need
13 45 hours, that all in all will amount to three weeks. And then you added
14 something, and I think this is something quite new.
15 You said will you then not be able to have any contact with him
16 if he takes the solemn declaration? He then is a witness of the Chamber,
17 or can he then continue talking to you during and after his testimony,
18 and I don't have an answer to that question. This is something which I
19 never had -- which had never occurred to me.
20 I think we need to discuss this. The Bench needs to look into
21 the matter. This is something quite new. I don't know what happened in
22 the other cases, but since you are his counsel, I don't see how one could
23 prevent a counsel from talking to his client. That is an answer to the
24 question. But the Trial Chamber has into the deliberated on the matter
1 To me it seems quite clear that an accused who is testifying is
2 answering questions put by his counsel or her counsel, but these
3 questions are non-leading questions. I think everybody agrees on that.
4 MR. KOVACIC: [Interpretation] Your Honour, this is how I view the
5 matter: As far as leading questions, I think there's no dilemma there.
6 When the accused is testifying, he is testifying the same way as any
7 other witness would. He is in the position of a witness. And when the
8 Defence counsel asks questions, they're not leading ones. I don't --
9 they shouldn't be leading ones. There is no dilemma there.
10 Now when I said restricted or limited contact between the client
11 and the Defence counsel, so while the client is testifying he is a
12 witness. Now, I said that for two reasons.
13 The first is that I as Defence counsel and case manager as well,
14 try to plan the worst case scenario as far as I'm concerned, whether
15 there will be any restrictions or limitations placed upon me.
16 Secondly, this restriction was specifically raised in the earlier
17 trial, Kordic and Cerkez, where we had planned to have our client
18 testify, but unfortunately for some other reasons we weren't able to call
19 him. And then the Presiding Judge said, as an instructions, that while
20 the accused is testifying Defence counsel cannot have contacts with him
21 as a Defence counsel, and I think that emanates from British law, British
22 legal practice. Perhaps Mr. Khan could help us out here.
23 But since the accused has two counsels, then the other counsel,
24 Defence counsel, can deal with procedural issues that might arise, or
1 So I am going to -- I want to be prepared for a full scenario.
2 JUDGE ANTONETTI: [Interpretation] Mr. Khan, can you enlighten us,
3 please, as regards this law which seems to be specifically British?
4 MR. KHAN: Well, Your Honour, its origins, of course, are
5 common -- are general in the common law system, but it is the practice in
6 this Tribunal that once any witness, and when a witness is in the dock,
7 whether it's an accused or not, there's no special rule they're all
8 witnesses of the Trial Chamber. And when a Prosecution witness takes the
9 oath, the Prosecution are prohibited from speaking to that witness once
10 the evidence is completed. Of course once that witness has been
11 cross-examined or has been re-examined, Your Honour, contact in the usual
12 way can take place, the witness can be thanked, and the same would apply
13 to a Defence counsel.
14 Your Honour, what happens in domestic systems on occasion, is
15 that during -- once an accused takes the dock, there may be some
16 emergency, something, personal matter, something crops up, and, Your
17 Honour, what happens then is that the counsel stands up and makes a
18 submission to the Court to speak to an accused on a particular issue.
19 For example, God forbid, if there's a family bereavement or there is some
20 other matter, one gets leave of the Trial Chamber to speak to a witness
21 on a particular issue. But, Your Honour, it's founded in good sense of
22 course because it's to present any party on any side making allegations
23 of coaching, that the evidence has been molded as it goes along and
24 damages being repaired, and that's where the rule comes from. And I
25 think as matter of equity, of course, we wish Defence witnesses to be
1 treated under the same conditions as the Prosecution witnesses. We put
2 them forward as witnesses of truth.
3 Speaking for the Stojic case, and we would ask that nothing be
4 done that could undermine the weight that would be afforded to these
5 witnesses at the end of the day.
6 Your Honour, I don't know if that assists at all but that's the
8 JUDGE ANTONETTI: [Interpretation] Mr. Khan, I've listened to you
9 and you've told us quite clearly how this works in the British system,
10 but we are in a particular system here.
11 If Mr. Praljak testifies first before the witnesses that you
12 intend to call and then the counsel can no longer contact him, how will
13 the Defence counsel continue to prepare the future witnesses, the
14 interviews, if he has no contact with his client? He can get no
15 instructions from his client anymore.
16 Let's assume a particular case, for instance, in which months
17 later another witness is called and the Defence counsel needs to know how
18 he has to put his questions, what the issue focuses on. And if he can't
19 discuss a matter with his client, he may run into real difficulties. How
20 do you settle that issue in your system?
21 MR. KHAN: Your Honour, I apologise. I have been unclear.
22 The rule only applies as long as the witness sits in the dock --
23 sits in the witness box. Once his evidence is completed, for example, if
24 he's the first witness, once the evidence is completed and re-examination
25 is finished, of course normal contact, normal business resumes in the
1 usual manner. There's no prohibition.
2 JUDGE ANTONETTI: [Interpretation] Yes, but if, for instance, he
3 is sitting in the witness box for three weeks and he is there for three
4 weeks, this means that for three weeks the counsel cannot discuss
5 anything with him. Is that right?
6 MR. KHAN: Yes, Your Honour, without the leave of the Court, and
7 that's to ensure the integrity of the evidence that Your Honours hear.
8 JUDGE TRECHSEL: I think that this has been made quite clear.
9 Thank you, Mr. Khan, not addressing you, and I think it's also perfectly
11 I have a question to Mr. Kovacic. I have a question to you.
12 JUDGE ANTONETTI: [Interpretation] Judge Trechsel has said that
13 this is convincing, but it's not convincing as far as I'm concerned,
14 because I don't see why a counsel cannot talk to his client. I must say
15 I'm flabbergasted. I don't understand.
16 JUDGE TRECHSEL: I think Mr. Kahn has made that clear. There is
17 a suspicion. If you have your client on the dock as a witness is during
18 the day, in the evening you go in a meeting with him, the suspicion will
19 be that you say, "You did very well on that point. On that point
20 tomorrow I will ask you so that you can change and clarify and don't
21 touch upon that when I ask you. Do not give that answer," and so forth.
22 And then the evidence of the accused, as witness, is devaluated, and that
23 is to be avoided.
24 So I seem to understand and approve of that system.
25 But I wanted to raise another point. I think I do not -- do you
1 want to embark on a quite different answer or just confirm?
2 MR. STEWART: I wanted to say something on this topic but
3 something that hadn't already been said because if it had --
4 JUDGE TRECHSEL: Then go ahead.
5 MR. STEWART: What I want to say was that Mr. Khan has covered as
6 far as I'm concerned everything British. And I'm with him on everything
7 British that he has said. Everything to do with England and Wales
8 and procedure, from Mr. Kahn, I adopt from today and probably forever,
9 actually, because he's nearly always right, but what I wanted to say was
10 that it's entirely consistent and endorsed by the practice in this
11 Tribunal. I've been in a previous trial where my client gave evidence
12 and the arrangement was in practice exactly as Mr. Khan describes, that
13 in the course of many weeks of evidence, because I think we should bear
14 in mind that any accused giving evidence in relation to his or her case
15 before this Tribunal is bound to be in the witness box for weeks in any
16 case of any complexity because otherwise it simply cannot do their case
17 justice by their evidence. It's bound to be weeks from time to time
18 there was, as there nearly always would be, some practical need to
19 discuss something; it might have been to do with money, it might have
20 been to do with just practical organisation, some need to have some
21 contact with the client, it was never a problem because the Prosecution
22 team being a professional team and recognising the Defence teams as
23 professional teams were always willing to agree and then the Trial
24 Chamber gave its endorsement to do exactly what Mr. Khan describes, a
25 meeting with the accused which you would give in outline the topics that
1 you wanted to discuss that wouldn't be anything to do with the case.
2 And actually, may I add to the general acceptance of the
3 prescription on meeting one's client, apart from in those areas meeting
4 one's client to discuss anything to do with the case during his evidence,
5 that actually we don't want to because we want our client's evidence to
6 be untainted by any possibility that it's been discussed; and also, and I
7 mean no disrespect to my client or anybody else's client, you don't want
8 to because it's humanly impossible to keep off the topic. If you had a
9 complete freedom to discuss anything you like with your client if you met
10 him during his evidence, it wouldn't matter how much you would say to
11 each other, "Oh, no, no we can't discuss your evidence," because if you
12 discuss anything to do with the case at all it's going to have some
13 bearing on his evidence.
14 So the rule and with respect to Mr. President, Your Honour, this
15 rule which is part of English law and practice, also very much the
16 practice before this Tribunal, has fundamental sense to it and it is a
17 rule and Your Honours are I think beginning to see.
18 I can't speak for every Defence counsel. Everybody speaks for
19 themselves, but it's apparent from what Your Honours have been hearing so
20 far that this rule and this practice is whole-heartedly accepted and
21 adopted by the Defence teams in this case, and I'm pretty sure it would
22 be whole-heartedly adopted and endorsed by the Prosecution.
23 JUDGE TRECHSEL: Actually, I wanted to raise a different point
24 with Mr. Karnavas. You have -- with Mr. Kovacic. Excuse me. A slip of
25 my tongue.
1 You have indicated that you would need 140 to 150 hours. You
2 have translated that into eight to nine weeks.
3 In fact, Mr. Kovacic, experience shows that if you want to
4 examine in direct for 150 hours, it will take about 30 weeks, because on
5 average our experience so far has shown that not more than one-third, and
6 even less than one-third of the time used is actually effective as
7 direct, and the rest is taken by cross, and there will be -- there may be
8 complicated cross-examination by your colleagues of the Defence team and
9 by the Prosecutor. And you may not like it and it may sometimes perhaps
10 be critical, but the Judges take an active interest in the case and they
11 also ask questions, plus procedural issues arise.
12 So I wonder whether you were aware of the fact that we are
13 talking about more than half a year.
14 THE INTERPRETER: Microphone, please.
15 MR. KOVACIC: [Interpretation] I apologise.
16 Your Honours, unfortunately, yes, I was aware of that fact. We
17 are constantly trying to simulate the time we need. It's become one of
18 our favourite topics of conversation. I'm not a good mathematician, but
19 I've become very quick in computing hours of witness examination and
20 relating it to the calendar, but with all due respect for the completion
21 strategy of the UN, it was not I who drafted the indictment. It was the
22 OTP. And as you know, accoladis graecus, the Defence has tried to
23 convince the OTP that this doesn't make sense even in the pre-trial
24 period, the maxim of concentration also goes against it, but the OTP
25 insisted on the indictment as it now stands and the accused have the
1 right to defend themselves.
2 Your Honours will hand down a decision as to the allocation of
3 time, and you will be hard pressed to reach your decision.
4 If I were alone in this case, if there were not six accused but
5 one, and if there was no completion strategy, I would be asking for far
6 more time, but as Your Honours know, one viva voce testimony is worth far
7 more than any amount of statements on paper. So although 92 bis and
8 other witnesses I intend to call will not be as valuable as the viva voce
10 I seem to have prompted this discussion with an aside, but I
11 mentioned the relation between counsel and accused during the trial
12 because as Judge Antonetti once said, the lead counsel is also the case
13 manager, and the length of testimony of the accused is an aspect I have
14 to bear in mind, and now we're all aware of these points.
15 Thank you.
16 JUDGE ANTONETTI: [Interpretation] One question.
17 MR. KOVACIC: [Interpretation] I do apologise for interrupting.
18 JUDGE ANTONETTI: [Interpretation] I have a question. Let's
19 assume for the sake of argument -- but a Judge of course, worth his salt,
20 has to envision all types of situation.
21 Let's assume that an accused person takes the stand and that his
22 statements challenge the case as prepared by his counsel. What should a
23 Defence counsel do in that situation?
24 MR. KOVACIC: [Interpretation] Your Honours, I have to admit
25 you've caught me unawares. I did not anticipate your question. May I
1 have just a moment, please.
2 My colleague is reminding me of an important point which I have
3 to raise right away in spite of the fact that you've caught me unawares.
4 In our particular case, as in every case, the accused and the Defence
5 counsel prepare the defence strategy together. There is no doubt about
7 My ethics as a lawyer does not permit me to prepare any kind of
8 defence case or strategy without the agreement of my client. It may or
9 may not be my idea, but the client has to accept it. The client can also
10 suggest a strategy.
11 JUDGE ANTONETTI: [Interpretation] Yes. But what about if your
12 client suddenly changes course with respect to your strategy? What
13 happens then? What does the counsel do, because counsel is not in a
14 position to have any contact with his client.
15 MR. KOVACIC: [Interpretation] I think -- well, these are now
16 profound ethical issues.
17 JUDGE PRANDLER: May I take the floor, and I would like to say
18 without any attempt to take our time and your time on that issue, as far
19 as the client and the Defence lawyer's relationship, I do believe that
20 here is a very clear-cut right for the -- for those -- I mean this
21 accused to be a witness as well. On the other hand, let me emphasise
22 that it is on the very risk of the accused if he takes the stand and if
23 he takes the dock and he will go there, so it is up to him himself and up
24 to the lawyer, his lawyer, of course, to make this decision if the
25 accused would like to appear independently as a witness. So therefore I
1 do not see here too much problem.
2 The witness should -- if he takes the stand as a witness, then he
3 should accept the responsibility for it. And therefore, if anything
4 happens, then of course it is up to the detriment of the accused and the
5 detriment of the lawyer as well. They have to face the situation that
6 whenever they will take this step they are going to be in a way in the
7 hands of the Chamber, of course, and according to the rules. And
8 therefore, evidently, I do not think that we have to be afraid of the
9 situation. Then we will see what will happen if, let's say, one of the
10 accused will take the dock for three weeks, and he cannot speak to his
11 lawyer during that very time, then it is up to him to face the
12 consequences. Thank you.
13 MR. KOVACIC: [Interpretation] If I may, Your Honour. I agree
14 fully with the standpoint of Judge Prandler. Of course, needless to say,
15 this Defence, in consultation with a client, considered all the pros and
16 cons, all the advantages and disadvantages. This of course is normal.
17 What confuses me a little bit in the question put by His Honour,
18 the Presiding Judge, is what if the client suddenly changes his strategy
19 in the course of his testimony. That part I find a little bit confusing
20 because it touches on profound ethical issues.
21 I think that the ethical guidelines every counsel has to abide by
22 provides guidance in this respect. If the client changes strategy, it's
23 the duty of the Defence counsel to warn the client of the consequences of
24 his actions. That would be the first step. If, however, there is such a
25 deep-seeded and profound conflict that it threatens the Defence case, and
1 if the Defence counsel for ethical reasons cannot or must not agree with
2 the client's strategy, then of course his power of attorney should be
3 terminated. He should no longer appear for the client. But these are
4 all very profound issues, and I think that here we must all be bound by
5 the ethical rules of our bar association, not only our national bar
6 association but also the Association of Defence Counsel before this
7 Tribunal if such a conflict develops. Then of course it has to be
8 resolved accordingly.
9 However, my colleague has told me that I may have omitted in my
10 assessment of the hours needed, 140 to 150, I may have omitted to say
11 that this would include the testimony of General Praljak.
12 We also believe, looking at the trends in the OTP case, that the
13 relationship between the time needed for the examination-in-chief and the
14 time needed for cross-examination and Judges' question -- questions has
15 improved considerably. Initially we wasted much more time on procedural
16 issues, and this improved as the trial went on. So we do not think that
17 much time will be wasted during the Defence case of General Praljak.
18 THE ACCUSED PRALJAK: [Interpretation] Good afternoon, Your
19 Honours. I will be very brief.
20 I'm 63 years old. I'm mentally fit. I'm still reasonable. I
21 have no psychological problems, and my health is good. I'm aware that I
22 want to testify. I wish to thank you for your warning that this might be
23 to my detriment, but I'm not afraid of that.
24 My strategy and the strategy of my counsel is very simple. It is
25 to under oath tell the truth about the events that took place, the time
1 when they took place, the development of the situation as I saw it, to
2 present all the documents, all my explanations as a general and a soldier
3 who was there, also as a professor of sociology, matters concerning
4 electrical engineering, water supply, and so on and so forth. I intend
5 to state clearly without any fear all these things regardless of whatever
6 consequences this may have on my future life. I am not afraid of any
7 decision Your Honours may hand down, hoping that you will view every
8 issue from all aspects.
9 I am prepared to abide by everything I say. I can distinguish
10 between what is my own personal experience, what I learned about in other
11 ways, and I can explain how the situation developed in that area at that
12 time, primarily from my point of view, which was very broad. And
13 speaking quite frankly, I have been preparing for almost a decade, so I
14 do not need to consult my lawyer in the meantime during my testimony,
15 because this will be a precise scenario with precise segments as to what
16 I will talk about, what documents will illustrate and support my answers,
17 and also which of the 200 witnesses or so who made their statements --
18 gave their statements and had them verified by a court can support this,
19 and then you can call on those witnesses to check whether everything I
20 have said is the truth.
21 I don't want to dabble in legal matters, but my Defence strategy
22 is to speak clearly and precisely regardless of any consequences this may
23 have for myself, and I'm not afraid of this. Thank you.
24 JUDGE ANTONETTI: [Interpretation] Fine. Mr. Kovacic, 100 to 150
25 hours through 30 to 40, 92 ter witnesses, one 92 quater witnesses.
1 THE INTERPRETER: The interpreter missed one number of the
3 JUDGE ANTONETTI: [Interpretation] In terms of documents, do you
4 have any idea about the number of documents you'll produce through these
6 MR. KOVACIC: [Interpretation] Your Honour, at this point, to be
7 quite frank, we have on our list approximately 3.500 documents. However,
8 don't take fright, please. We're working on sifting through this list,
9 and we're looking to see whether something has been duplicated in part or
10 in total, whether a document has already been admitted into evidence and
11 so on. So we're going through it again to see whether we actually do
12 need all these documents, and where we can cut documents from four down
13 to two we shall do that.
14 So we adopted various criteria and put on the list everything we
15 thought we needed. That was the first stage, and now we're sifting
16 through it. That's stage two.
17 But Mr. Praljak would like to say something. But before you give
18 him the floor, I'd like to say something else. Perhaps this is what
19 General Praljak wished to bring too. If we take certain topics, I want
20 to anticipate certain things. Certain topics that I refer to a contrario
21 topics with respect to the joint criminal enterprise and its existence,
22 for example, why Croatia
23 and extensive assistance, for example, in the area of healthcare, and why
24 it treated in its hospitals not only Croats and Muslims, civilians, from
25 Bosnia-Herzegovina, but also Croats and Muslims who were soldiers. They
1 were treated in Croatian hospitals as well. You have heard evidence
2 about that, a little evidence.
3 Now, we had to ask the state and these hospitals to provide us
4 with the necessary documents. We received thousands of them, thousands
5 in response to our request. So quite obviously as there's no sense in or
6 practical possibilities of providing you with all those several thousand
8 So to cut a long story short, we chose certain documents that
9 were indicative, letters from the ministry providing information and so
10 on and so forth. So as I say, all the DVD material provided
11 electronically, we'll disclose it to the opposite side and then they can
12 go through them and say, "That is not correct," for example.
13 We're going to give you the top of the iceberg during our case,
14 and if anybody has any doubts, then they can go back to all those
15 documents and raise their questions.
16 So there are several topics like that and for the purposes of
17 illustration perhaps it would be a good idea for General Praljak to tell
18 you more about it.
19 THE ACCUSED PRALJAK: [Interpretation] Your Honours, just with
20 respect to the assistance given by Croatia in taking in refugees,
21 armaments, education, and so on, there are more than 8.000 documents in
22 96 binders which are here in The Hague. Now, the problem of taking in
23 refugees in Posusje, we have over 8.000 documents there. The problem of
24 humanitarian assistance in Mostar, we have thousands of documents on
25 that. With respect to the flats of Muslims remaining in Mostar, we have
1 thousands of documents on that too. So the number of documents that my
2 team could submit surpasses 50.000. There are 19 binders, 96 binders, 8
3 binders on all these different topics.
4 So the figures quoted by my counsel Mr. Kovacic of 3.500, that is
5 the minimum number of documents. Of course there are summaries,
6 pre-cease and so on, but number of documents that this Trial Chamber
7 could look at, they will be on CDs and they will be summaries with charts
8 and tables, everything will be accessible so it can be tested and
9 verified. So as I say there are over 50.000 documents which exist in our
10 database which could provide assistance to the Trial Chamber to gain a
11 picture of what was relevant and what happened.
12 JUDGE ANTONETTI: [Interpretation] Let's move on to D4.
13 Mr. Stewart.
14 MR. STEWART: Well, Your Honours, I'll be pretty brief. I don't
15 want to give the impression that Mr. Khan and I and Mr. Sahota have
16 underneath our robes some England
17 once again agree with Mr. Khan's approach and everything that he has
18 said. And particularly, I can summarise, he was saying Please, can we
19 keep it simple. Please can we keep it as simple as possible. And that's
20 very much an approach which we the Petkovic Defence will endorse. An
21 illustration of that, by the way Your Honour, I'm not sure quite sure how
22 material it is right now, but the question that Your Honour posed, what
23 happens when your client gives some evidence which inconsistent with the
24 case as you have understood it. Your Honour, it's a difficult situation.
25 It is one that is often faced by counsel. It's not a difficult question
1 in the end, Your Honour. The answer to that is your client comes up with
2 something unexpected in evidence, you -- you swear under your breath.
3 You count to ten. You know that the principle is that you have to adapt
4 the way you present the case to the evidence your client is giving rather
5 than the other way round. If the client's mistaken or got confused, of
6 course it's your job to correct that and make sure he doesn't do himself
7 injustice, but his evidence is his evidence and you just have to adapt.
8 And that's in the end -- actually is isn't that difficult. It's not some
9 profound issue, it's a good example, and with respect to Mr. Kovacic,
10 it's a good example as if one bears the basic principles in mind, keeps
11 one's eye on the ball, it provides an easy solution to a difficult
12 situation, but one that does happen from time to time.
13 But, Your Honour in endorsing as I do the approach set up by
14 Mr. Khan and therefore not repeating it or not needing really to add to
15 it, I just confine myself to this: First of all we understand the
16 purpose of this preliminary hearing is for us to give Your Honours as
17 much help as we reasonably can at the moment and give as much steer as we
18 reasonably can as to where we're going given that we haven't got to the
19 31st of March, we haven't completed that exercise. Your Honours haven't
20 got the 65 ter lists. The final decisions on these things have to be
21 taken at a later point. But in a spirit of helpfulness of course we will
22 offer this. We will say for the Petkovic Defence, Your Honour, that we
23 will have no more than 30 witnesses, and we hope it's helpful for you to
24 know that.
25 We will have, as Mr. Kovacic has already indicated, we will have
1 one, an expert witness in common or shared with General Praljak, and
2 that's a military expert. We plan to have one other witness on
3 constitutional matters which we expect will be shared with possibly not
4 every accused because after all it doesn't have to be all or nothing.
5 It's quite possible that we will share with one or two or whatever, but
6 that's open.
7 The estimate at the -- well, I should say the next point is that
8 it is undecided and may remain undecided for some considerable time which
9 is our right as to whether Petkovic himself will give evidence. Without
10 his evidence, Your Honour, our estimate is that the -- our witnesses will
11 require I say not more than 80 hours. That's not terribly different from
12 the time put forward by Mr. Khan for his client, or Mr. Stojic, but we
13 say not more than 80 hours. But again I hope that Your Honour will
14 accept that on all this it's slightly early days, although we're getting
15 close to when the Defence case has to come up, it's still slightly early
16 days so far as refining these figures are concerned, and it also follows
17 from the numbers that I have given Your Honour that the question of 92
18 ter, and 92 bis and so on, it's a far less significance and impact as it
19 is in the light of -- in Mr. -- in General Praljak's case given the very
20 large number of potential witnesses and potential 92 bis, 92 ter
21 witnesses that have been suggested by Mr. Kovacic is on a different scale
22 as far as that's concerned, so we don't need to get into it.
23 The -- so far as -- I will offer just a couple of comments on the
24 question of when an accused should give evidence if he is called to give
25 evidence. Certainly the -- the norm as far as we are concerned is that
1 he would give evidence first. What we do say, Your Honour, is that it
2 should primarily be a matter for the Defence's choice as to when their
3 client gives evidence, but it also observe this, that there are reasons
4 for the practice of a Defence -- of an accused normally giving evidence
5 first and they've been touched on. And if it is to be later in the case
6 and if the Defence needs to be confident that nobody is going to suggest
7 that any adverse influence should be drawn and any adverse light cast
8 upon the evidence of an accused because he doesn't give evidence first,
9 that first all requires in effect a commitment in advance which is
10 difficult, Your Honour, a commitment in advance from the Trial Chamber
11 that not having yet heard the evidence they will not assess it adversely
12 in any way, but it also effectively requires a commitment from the
13 Prosecution and they may find that difficult to do. They may find it
14 very difficult to say that before they've her the evidence of the accused
15 and before they've heard the evidence of any other witnesses, they're
16 going to give up any right to suggest that the evidence given is in some
17 way diminished or devalued by the fact that somebody has already heard
18 somebody else's evidence, somebody -- the evidence is going to be dealt
19 with in a particular order. So, Your Honour, it's -- it's fraught with
20 difficulties and again we urge to keep that as simple as possible, but in
21 principle it should be primarily a matter for -- well, certainly it's a
22 matter for Defence with all the warnings we're helpfully reminded of by
23 His Honour Judge Prandler. It's a matter for the Defence as to whether
24 the accused gives evidence at all, but then if he does a matter primarily
25 for the Defence as to when it's done. But, Your Honour, unless there is
1 anything we can immediately help Your Honours with, those are our
2 preliminary, and hope helpful indications, as to where we are going so
3 far as the presentation of the Petkovic Defence is concerned.
4 JUDGE ANTONETTI: [Interpretation] Fine. When it comes to D4,
5 you're talking about 80 hours, 30 witnesses, one military expert witness,
6 one witness constitutional law.
7 With respect to Mr. Petkovic, you have not yet decided whether
8 he's going to testify or not.
9 Let me ask a question. As for the military expert witness, can
10 you give us his name if you know it already?
11 MR. STEWART: Koriance [Pronounced phonetically] is the way I'm
12 saying it. Milan
13 MS. ALABURIC: [Interpretation] Your Honours, I'd like to say good
14 afternoon to you all. It is a military expert. He will be a joint
15 witness together with the Praljak Defence. The gentleman's name is
17 He was a highly positioned officer in the Yugoslav People's Army and
18 knows about the events in the former Yugoslavia very well, and I think he
19 will be of great importance to the Trial Chamber.
20 MR. STEWART: I first must say if it prevents some poor
21 unsuspecting gentlemen in the heart of England being identified as an
22 expert witness in a case he's never heard of.
23 Your Honours, I just want to make it absolutely clear if it
24 wasn't crystal clear that the 80 hours is without General Petkovic. So
25 that if General Petkovic does give evidence what I said earlier applies
1 clearly without estimating in detail how long clearly as with any accused
2 in this case that's -- that must be -- that must be weeks because of the
3 sheer complexity of the case.
4 MR. KOVACIC: [Interpretation] Your Honour, if I might be allowed
5 to make a correction. On page 60, line 17, you summarised and stated
6 figures. I heard you correctly, but this isn't reflected in the
7 transcript. The numbers are as follows: About 150 hours total,
8 including General Praljak, and between 30 to 40, 92 ter witnesses.
9 That's correct. And then between 120 to 130 92 bis witnesses just for
10 the record. I heard you say it correctly but I feel that the transcript
11 does not record that.
12 JUDGE ANTONETTI: [Interpretation] Fine. D5 now, Mr. Coric's
14 MR. KRUGER: Your Honour, my apologies. Your Honour, I'm sorry
15 to intervene, but if I may just ask, for the purposes of the record, the
16 name Milan Goriance, was that the correct spelling of Goriance,
17 G-O-R-I-A-N-C-E? Thank you, Your Honour.
18 MS. ALABURIC: [Interpretation] No. That isn't the correct
19 spelling of the surname. I'm going to spell it letter by letter. G as
20 in Greece
21 as in Netherlands
22 JUDGE ANTONETTI: [Interpretation] Very well. For Mr. Coric now.
23 MS. TOMASEGOVIC TOMIC: [Interpretation] Thank you, Your Honour.
24 The Defence of Mr. Coric when it drew up its plan of the Defence case it
25 wanted to have and reasonable number of witnesses, and at this point in
1 time what I can tell you is this: We're going to have about 25
2 witnesses, of which just a few of them will be 92 ter witnesses. We
3 haven't made the decision as to exactly how many. But if everything goes
4 according to plan, we're not going to have any 92 bis or 92 quater
6 Of the 25 witnesses one is an expert witness, and now apart from
7 those witnesses we're going to have one joint expert witness, and all the
8 Defence teams I think agreed several months ago it is an expert in
9 constitutional matters. However, I don't count him within our time. I'd
10 just like to tell you that there is this joint witness. That is the
11 joint agreement that I have been privy to thus far.
12 Mr. Coric will be testifying himself, and it is our plan
13 precisely for the reasons presented by Judge Antonetti that he should
14 testify at the end of the Defence case.
15 As for those 25 witnesses that we plan to call, we think we'll
16 need about 50 hours to get through them. And for Mr. Coric's testimony
17 20 hours. That makes it a total of 70 hours.
18 And I also wanted to state with relation to the matter of
19 contacts with the accused during his testimony, when I first heard that
20 there was the possibility of banning the Defence counsel from contacting
21 with his client during testimony, I reacted, I must say, in the same way
22 as the Presiding Judge, and I'm troubled by the same dilemma still.
23 However, as far as I've been informed, in the Milutinovic trial there was
24 one accused who took the floor, and the principle was the same. It was
25 applied. That is to say while he was in the witness chair, his Defence
1 counsel could not have any contact with him. That's as far as I know.
2 I'd just like to say with respect to the joint witnesses
3 mentioned by Mr. Karnavas a moment ago that I as yet don't know which
4 witnesses will be the ones called by Mr. Karnavas and what they're going
5 to talk about, but I believe Mr. Karnavas when he says that they are
6 witnesses who are going to speak about topics of joint interest, but at
7 this point in time I have no additional information, nothing more than
8 that, apart from what I've heard in the courtroom this afternoon. So I
9 can't state whether they will actually be joint witnesses or not. That's
10 what I wanted to say with respect to the Coric Defence. Thank you.
11 JUDGE ANTONETTI: [Interpretation] Thank you very much you were
12 very clear. Seventy hours, out of which 20 for Mr. Coric and 50 for your
13 25 witnesses. Fine.
14 Now D6, Mr. Ibrisimovic.
15 MR. IBRISIMOVIC: [Interpretation] Thank you, Mr. President. We
16 have no dilemmas when to call the accused at the beginning or at the end.
17 Mr. Pusic, and I'd like to say for the record, will not be testifying to
18 his advantage in this trial.
19 Now, when this comes to other matters, we are modest in terms of
20 time, and we envisage a maximum of approximately 30 hours with 12 to 15
21 witnesses to be called.
22 Now, this number of ours will probably be less than the 30 hours.
23 Some witnesses will be testifying under 92 bis or 92 ter, which will
24 dramatically, of course, reduce the number of hours we need for our
25 defence case.
1 Of course we're going to attend the proceedings with all due
2 attention, and we reserve the right to amend the witness list, with the
3 permission from the Trial Chamber of course, and once again within the
4 number of hours that we have asked for, and we will not overstep the
5 limit and your rulings about time.
6 I don't exclude the possibility that the Pusic Defence stands up
7 and says that it's going to close the case and not mount a Defence case,
8 not call any witnesses at all. So that is another possibility which we
9 will decide upon subsequently.
10 So those of our forecasts. A maximum of about 30 hours with
11 every possibility of needing fewer hours. Thank you.
12 JUDGE ANTONETTI: [Interpretation] Thank you. So I've done my
13 sums, and so we have some 570 or 75 hours if we add up the upper bracket
14 of your estimates. The Prosecution had under 300 hours, as a reminder.
15 So this is the problem as it now stands.
16 Of course the Trial Judges will convene and discuss all this, but
17 of course only when we have the summaries will we see things more
18 clearly. Indeed, for the time being there's nothing we can add to this,
19 but this is a figure that will be food for thought for all.
20 JUDGE PRANDLER: Without attempting to preempt the decision of
21 the Chamber on those issues which we have discussed so far, I would only
22 like to draw your attention along the lines what our president just said,
23 that I would like to ask you, I mean the Defence teams, to study the
24 memorandum which was prepared by the greffier, by Mr. Chuka, who is here
25 actually, and it was issued dated February the 5th, 2008, and it is about
1 the time monitoring, the period ending 24 January, and here we will see,
2 and we will see and you will see that the total sitting hours have been
3 984, which roughly is about 1.000 hours. Out of the 1.000 hours, the
4 OTP, the Prosecution, took 30 per cent, 3-0, for the direct examination
5 and the examination, and the Defence, as far as the total
6 cross-examination is concerned, took 37 per cent, that time which
7 amounted to 364 hours.
8 Now, I'm not going into the details, that is the how many hours
9 this or that Defence took, but now in comparison with the present figures
10 which we have heard and the Presiding Judge Antonetti has already
11 mentioned this, it amounts altogether the wishes and the submissions by
12 the Defence teams that altogether 570, which almost twice as much as what
13 the OTP took by presenting its case, i.e., that they took, as it was
14 mentioned, 296 hours versus 570 hours as now requested.
15 So -- and I'm sorry, I should also mention that the -- that
16 actually the procedural matters took 22 per cent of the time, and the
17 questions by Judges - excuse me - took 11 per cent. That is 22 for
18 procedural matters, 11 for the Judges' questions.
19 I believe that we all -- we have to study carefully all these
20 figures, both which is actually for the total sitting hours so far and
21 also as envisaged as planned by the Defence. So then the Trial Chamber
22 should take into account those issues which I have just mentioned. Thank
24 MR. KRUGER: Thank you, Your Honour. Your Honour, if I may just
25 very briefly comment on three aspects.
1 The first aspect, and that is probably the most important from
2 the point of view of the Prosecution, is exactly what Your Honour,
3 Mr. President, you, and what Judge Prandler have now pointed out, and
4 that is that the Prosecution used, and we can round it up to 300 hours,
5 for the presentation of its case. That was already much reduced time
6 from what the Prosecution originally requested.
7 Based on that, Your Honour, the point that the Prosecution would
8 make is that it would be very unfair if the Defence were granted
9 unlimited time to refute the Prosecution case if the Prosecution was
10 forced to -- or -- not forced, but if the time allocated to the
11 Prosecution was limited.
12 That is the first point, Your Honour, and in line with that the
13 basic stand of the Prosecution would be that 300 hours for the Defence
14 overall would be a useful guideline to depart from and to work around
15 that figure.
16 Your Honour, the two other points that the Prosecution would
17 raise, the first pertains to a suggestion made by Mr. Karnavas, my
18 learned friend, and that pertains to the aspect of a witness being called
19 by one party and then another accused or Defence wishing to also ask
20 questions in direct examination or solicit direct evidence from that
22 The suggestion made by Mr. Karnavas that such Defence would have
23 to notify or at least request certain time for direct examination. It
24 does appeal to the Prosecution and for the following reason, that there
25 was some concern on the side of the Prosecution that a witness may be
1 called by one defendant but during cross-examination by other defendants
2 they may solicit direct evidence under the guise of cross-examination.
3 In other words, asking very easy, direct questions and soliciting
4 evidence by way of leading questions, which may pose some problems.
5 If I may just mention regarding that, I do recall that we have
6 had this discussion previously and that Judge Trechsel did identify
7 certain jurisprudence or legal principles stating that under direct or
8 cross-examination there is the situation that leading questions would be
9 permitted where new evidence or direct evidence is being solicited. But
10 I leave that at this stage. I won't belabour the point.
11 The second point refers to the discussion we had regarding the
12 status of an accused testifying and the position that his Defence counsel
13 would find themselves in, whether they may contact the accused or not,
14 and with regard to that I wish to say that my learned colleague
15 Mr. Stewart was actually correct when he said that -- or suggested that
16 the Prosecution would agree with the Prosecution that he took and with
17 his elaboration of Mr. Khan's setting out of the position. The
18 Prosecution indeed agrees with that and can live with the situation as
19 sketched by them, and then also with the implications as stated by
20 Judge Prandler. Thank you, Your Honour. That's all.
21 MR. KARNAVAS: If I may, very briefly, Your Honour. I just
22 wanted to supplement that we have approximately 2.000 documents. That
23 was something I omitted to mention and my colleague, Ms. Tomanovic,
24 following the proceedings, reminded me that I was not diligent in making
25 the Trial Chamber aware.
1 With respect to an issue that was brought up by Mr. Khan,
2 nobody's trying to force labels on anybody, but there are witnesses that
3 have, as he put it, might have information that is of utility, and it was
4 on that point, perhaps it was my inarticulate way of phrasing it, saying
5 that where a witness has information that is of value, I don't care who
6 the witness is called by, we would want to be able to elicit testimony
7 from that witness, and sometimes it definitely will be outside the scope
8 of direct examination. In fact, the utility might be of such nature and
9 to such a degree that may be far lengthier than the direct examination
10 that is the purpose for which that particular witness was called upon.
11 In those instances we definitely would like the Trial Chamber to be
12 rather flexible.
13 It matters not to me whether I cross-examine a witness or do
14 direct examination, because in this Tribunal even under -- when you cross
15 you tend to ask non-leading questions, and I think it benefits everyone
16 when that can be done.
17 My primary concern is allocation of time. That's the primary
18 concern. And so if the information is relevant and assists the Trial
19 Chamber, I don't want to be pigeonholed. Cross-examination of a
20 Prosecution witness is very different than -- at this stage of the game.
21 And so while some witnesses are being called by one particular party for
22 whatever reason but have information that assists the Trial Chamber and
23 goes to other cases, then in those instances we would be making or
24 seeking leave for significant time or the time necessary for the purposes
25 of eliciting information.
1 And of course this would be no surprise that many of us are in
2 the field, actually in the field meeting with witnesses, and we know that
3 some of them are -- have committed to be called for one particular party
4 for whatever reason. That doesn't mean that they're not -- nonetheless
5 they are willing to speak to us. Of course you can never force a witness
6 to speak to you in the field, and they're willing to be questioned on the
7 stand. And I leave it for others to decide whether somebody is a witness
8 for X or witness for V. We're not trying to force any labels, and again
9 if I misspoke or was inarticulate in putting my case forward, I
10 apologise, but anyway, I think the point was made.
11 Lastly, the 300 hours, I know that -- that the Prosecution has to
12 start somewhere and I feel like I'm in a middle eastern bazaar now when
13 we start saying, Okay, well they got 300 we should get 300. Well, you
14 know, we've tried to make approximations based on our realistic
15 assessments. Keeping in mind that normally, at least my experience has
16 been, that as you begin to elicit testimony witnesses do tend to drop.
17 Some points are covered through other witnesses. And of course this is
18 our first meeting. We haven't all met to go over our lists respectively,
19 so I suspect that we're going to have a slightly lesser, you know, amount
20 of hours to present to the Trial Chamber as a whole, but I would -- I
21 would urge the Trial Chamber at this point of the proceedings, at this
22 stage, not to set a time limitation keeping in mind that we do recognise
23 that 300 hours were used by the Prosecution.
24 But having said that, it has been my experience on many occasions
25 where I put a two- or three-time lengthier case than the Prosecution
1 case. So there's no fixed rule. Sometimes I put on no case. So I would
2 urge the Trial Chamber to -- and I don't mean to be harsh, but to
3 essentially disregard the comment about limiting us to 300 hours. I
4 mean, with all due respect to my colleague here, I don't think 300 hours
5 is realistic for six individuals, keeping in mind that perhaps 40 per
6 cent of the -- of this trial, if not 60 per cent goes to the -- to the
7 common issue of joint criminal enterprise. And as far as I'm concerned,
8 and I'll be very frank, it matters not command responsibility. Joint
9 criminal enterprise is what the essence of this trial is all about. The
10 rest of it is -- is secondary as far as I'm concerned, and that's why a
11 significant amount of time must be given in addition to what would be
12 allocated to the teams on an individual basis for the common defence.
13 And it doesn't matter who brings the witnesses, the fact of the
14 matter is that there are certain issues that are tangled into this joint
15 criminal enterprise, which in my humble opinion is not even part of
16 customary international law but it's been adopted and concocted by this
17 Tribunal, but nonetheless we're here. We have to fight it. We have to
18 defend against it, and so I would urge that when we look at this you
19 considered that in mind, that 40 to 60 per cent of the case deals with
20 this common issue called joint criminal enterprise, and it touches --
21 THE INTERPRETER: Could counsel speak closer into the microphone,
22 please. Thank you.
23 MR. KARNAVAS: -- each and every one of the accused because of
24 the indictment. Thank you.
25 MR. KOVACIC: [Interpretation] Your Honour, if I may make a very
1 brief observation, very brief.
2 The OTP says that the Defence should have about 300 hours, which
3 is the total amount of time the OTP had. Let me just refer to Rule 82
4 concerning joint trials which state clearly: [In English] "Each accused
5 shall be accorded the same rights as if such accused."
6 [Interpretation] So I think each one of us would have the right
7 to ask for 300 hours. Of course we are realistic. We know about the
8 exit policy. We are aware of everything my colleague Mr. Karnavas
9 mentioned. We wish to be relevant and realistic, and of course that
10 number will be greatly reduced. But I certainly do not agree that the
11 Prosecution case should be put on the same footing as the total Defence
12 case, because each accused is not one-sixth of the Defence case. Each
13 one has the right to his defence.
14 JUDGE ANTONETTI: [Interpretation] We're going to have a break in
15 a few seconds. Rule 82 was mentioned. Don't forget Rule 73 ter either,
16 which makes it obligatory for the Trial Chamber, on the one hand, to
17 assess the number of witnesses, but the Trial Chamber can also, to
18 shorten -- has the possibility of shortening the examination-in-chief of
19 some witnesses. This is 73 ter (B). And the Trial Chamber also has to
20 assess the length. That is Rule 73 ter (E).
21 Having to do so, the Trial Chamber will have to specify the
22 number of hours given to the Defence. There is no other way around.
23 Yes, Mr. Stewart.
24 MR. STEWART: May I just make a single comment on that, Your
25 Honour. It cannot possibly be that anything that the Trial Chamber does
1 under Rule 73 ter can compromise or cut across or in any way infringe the
2 rights under Article 82, Rule 82, or indeed any other rights. The
3 hierarchy is absolutely plain. There are all other sorts of rights apart
4 from Rule 82, but so far as there are rights in Rule 82, 73 ter has got
5 to be applied consistently with and supportive of those rights and can't
6 compromise or reduce them in any way at all.
7 JUDGE TRECHSEL: I just want to make one point. This is in fact
8 a very difficult issue. If you amongst yourselves have talked about, so
9 have we quite a lot. And I think we are all aware that it's a difficult
10 decision. We are not going to take any such decision now, but we will
11 wait until we see what the Defence actually propose, and we will, of
12 course, utilise our power to scrutinise what we think is really germane
13 to the issues before the Chamber and eliminate elements which we think
14 they may be of some interest, but they will not assist us in coming to a
15 result. And for the time being, I think we do not need to go on
16 discussing it. The issue is clearly on the table, and be assured that we
17 will give very careful consideration.
18 The principle just stated by Mr. Stewart, I fully approve. Of
19 course we have to take into account all the guarantees set out in Article
20 21 of the Statute. That is clear. Thank you.
21 MS. ALABURIC: [Interpretation] May I just add one sentence, a
22 piece of calculation which I think will be of interest to everyone? We
23 all know that the witnesses in the Prosecution case were very important
24 for us to present documentary evidence and to try to explain to Your
25 Honours some points.
1 In this way, the OTP introduced 2.200 exhibits. In 18.000
2 minutes that is 300 hours. They tendered 2.200 exhibits, which means one
3 exhibit per eight minutes. If the same time were awarded to Mr. Prlic's
4 Defence, which wishes to tender 2.000 exhibits, we would need 250 hours
5 for the Defence of Mr. Prlic alone to tender our documents. Thank you.
6 JUDGE ANTONETTI: [Interpretation] Very well. Let's have a
7 20-minute break. We shall resume at 6.00.
8 --- Recess taken at 5.39 p.m.
9 --- On resuming at 6.06 p.m.
10 JUDGE ANTONETTI: [Interpretation] So we shall resume our work and
11 address item 3, time allocation for cross-examination of Defence
13 Now, as far as the Prosecution is concerned and as far as the
14 other accused are concerned. We have 50 minutes left. We won't be able
15 to address all the item on the agenda, so those that we are not able to
16 address today will be addressed at the next Status Conference.
17 As far as item 3 is concerned, this is what the Bench has to say:
18 When a Defence counsel calls one of his or her witnesses, how much time
19 will the other Defence counsel have, and how much time will the
20 Prosecution have? If, for instance, Mr. Petkovic calls a witness for two
21 hours and his cross-examination therefore will last two hours, how much
22 time will the other Defence counsel have to cross-examine this witness,
23 and how much time will the Prosecution have for this same witness.
24 So this is a question which we would like to address, and we
25 shall listen to what you have of to say about it, and the Bench will
1 decide on the basis of what you have to say.
2 The Prosecution, of course, will take the floor on this matter.
3 JUDGE TRECHSEL: Just two points. The first is that of course
4 now it is practically impossible to tell because you do not have the list
5 of the witnesses. You do not know what they're going to testify about.
6 So it would be sheer guesswork, I think.
7 Second, I could imagine an instrument where you have a list of
8 all the witnesses, then the time used for direct, and then open columns
9 in which each team, Defence team and the Prosecution, would enter the
10 time they anticipate they need. That might be very useful for the
11 organisation of the Chamber's work but also for -- for you, and it might
12 be useful, perhaps, if you gave your views on this suggestion. It is
13 also a suggestion which has already been discussed within the Chamber,
14 and the Chamber approved of this idea.
15 MR. KHAN: Your Honour, it is a difficult issue in the abstract
16 to speak to, but with the greatest of respect, I would adopt
17 Judge Trechsel's very sensible suggestion. I do think that's the very
18 best way of proceeding.
19 Your Honour, going to matters of the agenda, I rise now to make
20 one application, and I believe I speak with the consensus of all Defence
21 teams. At the moment we have another Status Conference scheduled on the
22 26th of March. Your Honour, it's very difficult prior to the 65 ter
23 lists being distributed and analysed and qualitated to actually make
24 meaningful submissions that are going to lead to further refinement in
25 case preparation.
1 Your Honour, what I would, with respect, suggest is that perhaps
2 we can vacate that hearing on the 26th of April. The 21st of April --
3 sorry, the 26th of March, vacate that. The 21st of April we have a
4 Status Conference scheduled which we can make far more meaningful because
5 we would of course by that have read everybody's 65 ter list. There can
6 be behind the scenes discussions amongst all the teams, and Your Honour,
7 I think even at that point perhaps, it can be supplemented with an order,
8 Defence teams and the Prosecution can give an outline flexible time
9 estimate as to how long they will need to cross-examine each of the viva
10 voce witnesses.
11 JUDGE ANTONETTI: [Interpretation] Mr. Khan, my answer is no for
12 the following reason: We have prepared an agenda, and we will not be
13 able to address all the items on the agenda given the number of topics at
14 issue. This is why we have decided to meet again on the 26th of March in
15 order to settle the remaining items and other 65 ter issues, and the
16 following meeting is the Pre-Defence Conference, and then the Trial
17 Chamber will have to set the number of witnesses on the list and the time
18 allocated to them. But before doing that, we need to have sufficient
19 information to do so.
20 Now, this question I've just addressed is a question which is an
21 important question also. We are not going to let all and everyone decide
22 on how much time he or she wishes to have for the cross-examination.
23 That is out of the question. So we need to have some understanding of
24 this beforehand. And if, for instance, Mr. Stojic calls a witness, I
25 don't know, randomly, somebody who would be the Chief of Cabinet or
1 somebody when he was minister of defence, if you have three hours to put
2 questions to him, then we will have our questions, and how much time is
3 the other party going to have, because three hours for you, that could
4 amount to ten hours or six hours or eight hours. We just don't know.
5 This is why we would like to know, and we would like know how you have
6 decided to address this issue.
7 MR. KHAN: Indeed, Your Honour, and that was why I
8 respectively -- respectfully adopted the eminently sensible suggestion of
9 Your Learned Brother Judge Trechsel. We can't possibly even begin to
10 give a wild guess at this juncture. The very best way may indeed be
11 after the 65 ter lists have been circulated and discussions have taken
12 place amongst the Defence teams. And of course the Prosecution can even,
13 you know, ask questions and ask for some clarification.
14 Each team can give an estimate as to how long they anticipate at
15 this juncture of course not being privy to the statement and of course
16 not being privy to the evidence in chief, give a rough estimate as to how
17 long they think they will need, and then of course, Your Honour, it's for
18 you and colleagues as a Trial Chamber to decide whether or not those
19 estimates are reasonable or not or whether or not they need to be
20 circumscribed depending upon your analysis and the time available for the
21 rest of the case.
22 MR. STEWART: Your Honour may I make a suggestion. I'm looking
23 myself -- Your Honours are running today, and of course we are making
24 such contributions as we can, but when I look at the remaining items on
25 the agenda at pages 6 and 7, we break those items down into those aspects
1 that also can't really usefully be discussed very far until we've got the
2 65 ter list and so until sometime after the 31st of March. And then when
3 we look at what's left, I do respectfully suggest, Your Honour, that we
4 could get through that business by 7.00 if everybody adopted reasonable
5 economy, and then we wouldn't need to come back for a day which sounds at
6 the moment as if it's just going to be an entire day for everybody just
7 to finish off a small number of items that we haven't got round to
8 finishing today.
9 So Your Honour may I suggest that we simply crack on and finish
10 these item on the agenda by 7.00 and then do exactly what Mr. Khan has
11 suggested, and I do once again endorse everything that Mr. Khan has said.
12 JUDGE ANTONETTI: [Interpretation] Very well. Mr. Karnavas.
13 MR. KARNAVAS: Mr. President, I'm a bit conflicted here. I do
14 agree with Mr. Khan that perhaps it's not necessary to have the next
15 meeting on March 26th. In fact, I brought this to the attention to -- to
16 the senior -- I believe it was I'll promote her for the day, Senior Legal
17 Officer. I brought it to her attention way back. At the same time I did
18 have a request that perhaps the April 21 date be pushed back to April
19 17th or 16th, somewhere around that neighbourhood. So that would be --
20 and I would -- I think that that would be more useful.
21 I would also -- I also wanted to add today that if it was -- if
22 it was possible for this 31st of March, 2008, to be pushed to April 7th.
23 However, I understand everybody's getting a little excited and concerned.
24 It may not be possible to have an absolute certainty on March 31st
25 despite our best efforts. So at the very -- so we would then be asking
1 for some leave in the future to supplement. And we're talking about some
2 very minor changes, you know, but we're almost there, but I was advised
3 by my colleague to make this request. It was a sensible one. She's
4 still in the field. But in any event, I believe we can finish.
5 I would say that if -- if we were to dispense with the next
6 meeting on the 26th, then at least perhaps the Trial Chamber, you know,
7 would ask a commitment from the Defence to absolutely meet and if at all
8 possible to get back to the Trial Chamber with some sort of a status
9 report as far as where we are, perhaps supplementing or altering our
10 current projections and maybe even, you know, taking on the first step
11 toward what Judge Trechsel had indicated as far as trying to figure out
12 how much hours. We can just put initials for now, but at least it might
13 give everybody an indication on the Bench how much time. Because I think
14 once we see each other's list, some witnesses may go by the wayside.
15 But anyway, I do concur with Mr. Khan, but I'm just one voice in
16 this courtroom.
17 JUDGE ANTONETTI: [Interpretation] Mr. Kovacic, you have the
19 MR. KOVACIC: [Interpretation] Your Honour, I join in the position
20 put forward by my colleagues, although I understood your example -- your
21 proposal or the agenda that you put forward earlier on as being a
22 discussion of principle. That is to say this point on the agenda was
23 allocation of time, cross, and the Prosecution and other Defences. So
24 regardless of the fact that I agree with the arguments put forward by my
25 learned friends with respect to calendar, we could discuss some matters
1 in due course later on, because we'll be able to say more things and
2 better define them. And I wouldn't be opposed to discussing the
3 principle of cross-examination today.
4 JUDGE ANTONETTI: [Interpretation] Very well. Now, Mr. Coric's
5 Defence? So as far as cross-examination is concerned, what's your view?
6 THE INTERPRETER: Microphone, please counsel. Could you speak
7 into the microphone, please?
8 MS. TOMASEGOVIC TOMIC: [Interpretation] I agree with everything
9 my colleagues have said thus far today. I have nothing more to add. As
10 I said, I was told that I couldn't be heard. I agree with what my
11 colleagues have said and I have nothing else to add.
12 MR. IBRISIMOVIC: [Interpretation] Thank you, Mr. President.
13 Perhaps it's an opportune moment for the Prosecution to tell us how much
14 time they need for cross-examination, because they are now in the
15 position that we were in two years ago. So is it in the ratio of one to
16 one or whatever?
17 JUDGE ANTONETTI: [Interpretation] Mr. Kruger, let's imagine a
18 situation in which a witness has two hours. Let's say there are two
19 hours for the examination-in-chief and other Defence counsel need two to
20 three hours to put questions to the witness. That would take five hours.
21 What would you do then? How much time would you need? I mean, this is
22 in the abstract, of course.
23 MR. KRUGER: Thank you, Your Honour. As a basic principle, Your
24 Honour, the Prosecution would ask for only as much time as was used in
25 direct examination of a witness. Therefore, any cross-examination by any
1 accused would not be computed, but certainly we would ask for -- if there
2 was two hours of direct examination, then we would ask for at least two
3 hours of cross-examination.
4 That also, Your Honour, leads into or leads back into the problem
5 raised earlier by Mr. Karnavas in that if any accused were to during
6 their examination of a witness actually question the witness not actually
7 in cross-examination but in direct examination, that would also beg the
8 question whether the Prosecution would be allowed additional time to
9 compensate for such direct examination.
10 But in conclusion on this, Your Honour, the -- during the
11 Prosecution case, the flexible system employed by the Chamber did work
12 well in which the rule of thumb was as much time as the
13 examination-in-chief was, so much time was granted for -- allocated for
14 cross-examination, and of course it was allowed flexibly in that in
15 certain instances more time was allocated as was required, and then
16 obviously in some instances less time was used by the questioning party.
17 And, Your Honour, then if the Prosecution may just make one
18 further observation at this stage, and that is that the Prosecution would
19 also at this stage feel that it's appropriate that the examination or the
20 cross-examination by the Prosecution comes at the end or at the
21 conclusion of all examinations by the Defence, whether as
22 examination-in-chief or examination -- cross-examination.
23 Thank you, Your Honour.
24 JUDGE ANTONETTI: [Interpretation] To be extremely clear and to
25 avoid any misunderstanding, let's assume that the Petkovic Defence
1 examines a witness during two hours. Then the other Defence counsel
2 takes five minutes, 30 minutes, nothing, one hour, two hours. You, as
3 far as you're concerned, would only ask for two hours. You would ask for
4 precisely the same time as used for examination-in-chief. Is that
6 MR. KRUGER: That's correct Your Honour. We would ask for the
7 examination chief time. And for those accused who were cross-examining a
8 witness, that time would not be computed.
9 JUDGE TRECHSEL: Perhaps as you are almost standing still --
10 stand up again. Mr. Kruger, do you have a view as to an issue discussed
11 by a number of Defence teams as to whether you consider it useful or even
12 necessary that we hold another 65 ter Conference on the -- what was it,
13 the 16th of this month -- 26th, or would you also say it is superfluous?
14 MR. KRUGER: Your Honour, certainly there are items on the agenda
15 which can only be discussed in very general terms unless we are provided
16 with the 65 ter list, but certainly we can discuss those points in basic
17 terms, and I don't think, however, being quite frank, that it's possible
18 to cover all of those points in the time left. So at this stage I
19 foresee that there will be some time needed subsequent to this unless we
20 are all very disciplined, Your Honour. Thank you.
21 JUDGE TRECHSEL: Thank you.
22 MS. ALABURIC: [Interpretation] Your Honour, might I may be
23 allowed to make one observation? The Defence of General Petkovic, like
24 all the other Defence teams in these proceedings, had the right to
25 cross-examination up to the time of one-sixth of the time needed by the
1 Prosecution for the examination-in-chief. Now, I consider that the same
2 rule should apply in the Defence cases when the Defence is conducting the
3 examination-in-chief. That is to say that the Prosecution should have
4 the right to one-sixth of the time used by a Defence team for its
6 And I'd also like to appeal to you to be flexible, to allow the
7 Prosecutor to have a little more time sometimes than that one-sixth if
8 they need it.
9 MR. KOVACIC: [Interpretation] Your Honours, I did not want to
10 take the floor earlier on because we were just discussing whether or not
11 we were going to discuss the matter in first place, but since we've
12 started the discussion my proposal is identical to the one put forward by
13 my learned friend Ms. Alaburic. And I would like to add a point in
14 favour of it, in favour of why.
15 The Prosecution advocated at the beginning of the trial, and it
16 knew at the time that the trial had two stages, so they advocated equal
17 treatment. That is to say if the Prosecution has two hours then the
18 Defence, according to their interpretation, one Defence team regardless
19 of Rule 82 to which each accused has the right to its own case, should
20 have the same amount of time, and the Trial Chamber accepted that. So we
21 have already established the principle during the Prosecution case, and
22 we had 180 witnesses, I believe, based on that principle and governed by
23 that principle. If the Prosecution had two hours, then the Defence had
24 two hours. So if we transpose that and have the same principle reign for
25 the Defence case, and we've already discussed this earlier on that the
1 Defence are calling -- the Defence team calling the witness has time for
2 examination in chief, five accused plus the Prosecution have the right to
3 a cross-examination, and they can divide up that time with the proviso -
4 and I'd like to add this - because our interests might not be identical
5 with the five accused. I know this sounds absurd, but the interest need
6 not be identical, so I'm very flexible, and I think that the Prosecutor
7 when he has sound reason should be allowed a little more time.
8 It's quite obvious something that Judge Antonetti said a moment
9 ago based on experience, and I do have experience myself, that very
10 rarely will the other Defence teams have any more important questions to
11 raise with the witness than the Defence team that called that witness,
12 and I do believe that to be the case thank you.
13 JUDGE ANTONETTI: [Interpretation] Very well. We have taken due
14 note of your requests, and we'll consider the matter.
15 Mr. Prlic.
16 THE ACCUSED PRLIC: [Interpretation] Just a technical question. I
17 can't cooperate with my Defence counsel, he's a little far away, but
18 bearing in mind what Judge Prandler was saying, objectively speaking the
19 Defence in the -- used a little more time than the Prosecution during the
20 first stage of the trial, and if we look at all these figures then it's a
21 fifth of the time. So the correction that was made by Ms. Alaburic would
22 roughly go up to a fifth of the time to be used in the cross-examination.
23 The Prosecution in comparison to the Defence time if we wish to retain
24 the principle that was used in the first stage of the trial as put
25 forward by Judge Prandler. So that's just a technical proposal that can
1 be used as an orientation in how the stage two of the trial is to be
3 JUDGE ANTONETTI: [Interpretation] Thank you. We'll take your
4 comments into account when we deliberate on the matter.
5 I'm going to try and proceed very quickly on the following
6 points. Point 4, the number of witnesses. We've already dealt with
7 this. You've given us information about this. So if you like, we'll
8 move on to the following point on the agenda, common witnesses.
9 Mr. Karnavas said that there would be common witnesses. The other
10 Defence counsel said that this was news to them, but they had already
11 considered having joint or common witnesses.
12 I understand that there will be two types of expert witnesses.
13 There will be at least one military expert witness, and there will be an
14 expert on constitutional matters. There maybe other experts. I'm not
16 Mr. Karnavas, when it comes to experts, have you seen or met
17 other experts?
18 MR. KARNAVAS: Yes, I have, Mr. President. One expert will be
19 dealing with economic issues. There's been quite a bit of discussion
20 concerning, for instance, what was -- what were the responsibilities of
21 the state government at the time, whether it was functioning and so on
22 and so forth. Also, there have been lots of testimony from Prosecution
23 witnesses, primarily I believe it was Tomljanovich and some others, as to
24 what these laws were, and what we want to do is present to the Trial
25 Chamber some expertise that would allow the Trial Chamber to understand
1 the complete picture from an expert as far as what was the state's
2 responsibilities, how this particular system functioned because it's
3 quite different than other systems because Yugoslavia did have a sort of
4 a unique system, and then as the war came and the republics broke apart,
5 that becomes rather relevant. And also an evaluation of all relevant
6 jurisprudence, if I may use that term, drafted by the HVO, the executive
7 authority concerning economic matters to show exactly to the Trial
8 Chamber what the functions were and to show that there was this gap as a
9 result of the war and they filled in this gap, and you'll see that other
10 municipalities or other regions were doing the same thing. You know,
11 they were doing -- taking some measures as a result of Sarajevo being
12 under siege and so on and so forth.
13 The other expert deals with another matter. I'm not quite firm
14 on that. It's a much shorter expertise. I hesitate at this point in
15 time because I'm not absolutely certain to divulge what it is because I'm
16 still at the stage of trying to make those arrangements, but that will --
17 that decision will be made within the next few days.
18 But in any event, those are the expertise, and course we do know
19 about the constitutional expert. And -- let me see. If I may have one
20 moment, Your Honour. I believe -- yes, and there is one other expert, I
21 should say, Your Honour. That has to do with demographics. Again, you
22 know, I haven't consulted with my colleagues because they've all been
23 busy, but we heard the testimony of the OTP employee/analyst/expert Ewa
24 Tabeau, and she presented certain evidence here and we have consulted
25 with an expert who's testified in this Tribunal on numerous occasions.
1 She's from Belgrade
2 with the Prosecution to allow her access to documents. It has been done
3 in the past. This is a procedure that has been done which under a
4 controlled environment she would look over the documents herself and
5 anticipate having a short report by this expert.
6 So those are the three experts that we anticipate in addition to
7 the constitutional expert. And as far as the military expert we don't
8 have anyone. We don't know who else is coming.
9 And if I can assist the Trial Chamber with anything else with
10 regard to experts, please feel free to fire away questions. If not, I'll
11 just sit down.
12 JUDGE ANTONETTI: [Interpretation] Fine. So we can see that there
13 will be a minimum of five expert witnesses. And this brings me to point
14 7, time needed for translations and disclosure of expert reports.
15 I suppose that your experts will prepare short or longer reports.
16 These reports will have to be translated into English and handed over to
17 the Prosecutor for the Prosecution to respond, and for the Chamber to
18 decide on the quality of the expert and on the way we should proceed.
19 The earlier you have these reports the better it will be for
21 Let me now move on to 92 bis and 92 ter statements. Several of
22 you have told us that you will use 92 bis or 92 ter proceedings or
23 procedures. Statements will need to be taken. That can be done in two
24 ways, either through a representative of the registry, a presiding
25 officer appointed by the registrar, or that may be done by the country
1 where the person resides through its judicial authorities.
2 I don't know at what stage you are. I know that Mr. Praljak has
3 120 92 bis witnesses lined up. Have you started working on this? Have
4 you started, Mr. Kovacic, taking statements from these people?
5 MR. KOVACIC: [Interpretation] Your Honour, with the exception of
6 some five to ten witnesses, I don't have the precise number at present,
7 all these statements have already been certified based on Rule 92
8 ter (A) -- excuse me, no. According to the rules of the states in which
9 the statements were taken.
10 In Croatia
11 this. So these statements have been certified by notaries public. In
13 local courts in the so-called out of trial, out of court proceedings.
14 However, now a law on notaries public has been passed in
15 Bosnia-Herzegovina similar to other European laws, so from that point
16 onwards the statements were certified by notaries public.
17 We have already done and lot of this work, and then we realised
18 that technically it would be a far greater job if this was done through
19 the registry, so we did this in the quickest and easiest way we could.
20 Thank you.
21 JUDGE ANTONETTI: [Interpretation] Fine. So there's no problem on
22 that matter.
23 Item 9, translation of documents listed on the 65 ter (G) list.
24 The summaries will be translated in due course.
25 What's really crucial here is what's related to documents that
1 you'll show your witnesses. These documents need to be translated.
2 Is there any problem in that respect?
3 Mr. Kovacic.
4 MR. KOVACIC: [Interpretation] Yes, Your Honour, there is. Thank
5 you for your concern. You have been informed of this through various
6 submissions. One more decision is expected. I will not speak about this
7 in public, but the fact is that our Defence case has run into problems
8 with translation. I have to say that we are deeply dissatisfied with
9 this. The registry will not like my saying this, but I have to say it,
10 because ultimately the organisation of this Tribunal and the internal
11 policy of the registry are, I am deeply convinced, contrary to the basic
12 rights of the accused in these proceedings, especially the provisions of
13 the Statute saying that the accused must have adequate support, including
15 I don't know how this will develop further. We are submitting
16 documents on a daily basis, and we shall see what happens. Thank you.
17 JUDGE ANTONETTI: [Interpretation] Mr. Kovacic, you know that the
18 Chamber has considered the matter. There have been a number of meetings
19 with the Chamber's legal officer. We haven't had any hearings these past
20 few weeks, that's right, but I've been thinking and working on this case
21 constantly, just as my fellow Judges.
22 What the CLSS has told us is that they can translate 200 pages a
23 month for Mr. Praljak. That's all they can do. They told me that they
24 have already translated 2.000 pages for you. That's the way things
1 MR. KOVACIC: [Interpretation] Yes, Your Honour. The facts are
2 beyond dispute more or less, but when it comes to the number of pages,
3 this information means nothing to me. They are a bureaucratic
4 institution counting pages and lines. I won't go into any issues of the
5 standards as to what constitutes a line or page.
6 What I'm interested in are the documents, as are you, Your
7 Honours. You are not going to ask me how many pages a document has, you
8 are going to ask for a document and that is the only realistic criterion.
9 But I have no influence on this. They can decide that their
10 maximum is 2.000 pages or 250 pages. I have no way of influencing this
11 quite simply.
12 The basic problem is that issue was raised when you were the
13 Pre-Trial Judge at a time when the Accused Praljak was mounting his own
14 Defence case, and there were some 60 DVDs with documents he assumed he
15 would need. Over the following few months -- I don't want to make a
16 mistake, but about 800 pages were translated, and the rest was returned
17 to us and we were told it would not be translated.
18 That was when the registry was first informed of the fact that
19 there were many documents here. And then when this Defence case started
20 we all knew that there would be a great many documents.
21 The registry first said that they can translate only exhibits.
22 This is absurd because it's the Trial Chamber that decides what is going
23 to be an exhibit or not. And for me to tender a document into evidence
24 it has to be translated, and that's where the major problem arose. And,
25 Your Honour --
1 JUDGE ANTONETTI: [Interpretation] Mr. Kovacic, we are aware of
2 the problem. What is your solution?
3 MR. KOVACIC: [Interpretation] I have been corresponding with the
4 registry and I proposed out-sourcing, engaging external services. The
5 registry says that these have been fully used. Let the registry then
6 approve a budget for me and I will do it. But it's not just matter of
7 financing it's also a matter of management. If I have to employ two or
8 three translation agencies, I need a man who will keep track of all the
9 documents, what has been sent to whom, when, what has to be paid, when,
10 and so on and so forth. It requires a full-time clerk, and I don't have
11 the resources to engage one. And this is also not in our job description
12 on the basis of which the registry approves the number of people in our
14 So that with all goodwill and with -- with certain financial
15 resources, the problem can be solved, but we have neither the finances
16 nor the people, nor the manpower.
17 I have not asked the registry for money to do this because I
18 don't want to take this burden upon myself, but if they have cannot
19 increase the number of documents they can translate, let them do it.
20 JUDGE ANTONETTI: [Interpretation] Mr. Kovacic, you talked about
21 thousands of documents, and if I remember correctly, mention was made of
22 Muslims who had been relocated and that you have thousands of documents
23 related to that. You may have documents from the municipal authorities,
24 certificates, et cetera.
25 If you have thousands such documents, you only need to have two
1 or three such documents translated into English, and you do not need to
2 have the other documents, the hundreds or thousands of documents that say
3 the same things about these Muslims who were given another flat or house.
4 You might have to decide on your priorities when it comes to all these
6 I remember that the Prlic Defence told us that the Croatisation
7 of the streets -- street names was not a fact, contrary to what the
8 Prosecutor said, and we had been shown countless documents that seemed,
9 and I insist, that seemed to show that the street names had been changed
10 in another spirit. And we were shown several documents testifying to
11 this. It might not have been necessary. One or two documents may have
12 been sufficient.
13 That's an example. That's a case where you only need one or two
14 documents, and you do not need to have all the other documents that say
15 exactly the same thing translated.
16 MR. KOVACIC: [Interpretation] Yes. We are, of course, keeping
17 this in mind.
18 When we are dealing with documents of the same type more or less,
19 we did precisely what you suggest. We chose two or three typical
20 documents. We put the rest aside. But of course I have to be cautious,
21 because what I don't include in Rule 65 ter (G) in that list I will not
22 be allowed to use, so I have to leave some room for myself to be on the
23 safe side. So I have to put the documents on the list in spite of the
24 fact that they haven't been translated. In this way we have eliminated a
25 certain number of documents from the translation list, but there are many
1 documents which we believe at present are the only documents of that type
2 and that we have to translate them, and that the other Defence teams do
3 not have any similar documents.
4 It has, true to say, been a little easier for us since we were
5 informed by Your Honours that we don't have to have all the documents on
6 our 65 ter list translated already, so we will be able to check the
7 documents of the other Defence teams, and we may be able to reduce the
8 number of documents, but according to what I know, this will not be a
9 dramatic reduction; although, it will contribute to reducing the number
10 of documents.
11 Secondly, we have already reduced our translation requests to --
12 in a large measure over the past few months, because every document we
13 wanted to include on our list is one where we first looked to see if
14 there were translations already available from other sources, and in many
15 cases we did manage to find these. We may have erroneously sent
16 something for translation which has already been translated, but the
17 number of such errors is negligible, I believe.
18 In any case, what I'm trying to say is the following: If you
19 give us sufficient time to make an effort and see whether we have any
20 reserves after we have filed our 65 ter lists, this will mitigate our
21 problem. We'll be able to file our lists. That's what matters. And
22 then some documents will be translated in time, and then if there are
23 still problems we will seek a solution.
24 One problem will remain, Your Honours, and the registry has been
25 evading it from the outset. A year and a half I had my first meeting in
1 this respect.
2 The witness summaries have been translated but not the witness
3 statements, and under 92 bis we are counting on about 120 witnesses.
4 These have not been translated. Our understanding is that the registry
5 will accept them for translation when the Chamber accepts my witness list
6 according to 65 ter.
7 JUDGE ANTONETTI: [Interpretation] Mr. Kovacic, you said you had
8 120 92 bis witnesses. Is that absolutely necessary? Of course I don't
9 know these witnesses, but can't you reduce that figure?
10 MR. KOVACIC: [Interpretation] Your Honour, I don't think so. I
11 don't think I can. You will see the lists, and they are subject to your
12 decision that's one thing.
13 Secondly, among these 120 there are a significant number of
14 witnesses - I can't tell you the number off the top of my head - who
15 come -- who fall into the pattern of conduct category. I think that's
16 Rule 93.
17 If someone is attempting inter alia in a defence case to
18 demonstrate a pattern of conduct, and this of course speaks to mens rea,
19 it's not enough to bring two, three, or five people who will say, "Yes, I
20 know the accused. He was a good and honourable man." But that's
22 If, however, you demonstrate over a certain period of time
23 throughout the period of the war, from the very beginning of the war on
24 the territory of the former Yugoslavia
25 and General Praljak started his wartime activities in Croatia, if I'm
1 able to demonstrate a consistent pattern of conduct on the part of the
2 accused with several dozen statements of people who say, "Yes, I was with
3 him in the war in such and such a place and such and such a time and this
4 was how he behaved, this is how things were done. This is where refugees
5 were fed, this is where neighbours were fed, this is where soldiers were
6 punished for shooting their Serbian neighbour's cat," and so on and so
7 forth, I cannot show such a consistent pattern of conduct with five, ten,
8 or twelve witnesses. These are all relatively brief witness statements,
9 but how can I deal with these issues if I don't show consistency over a
10 period of time?
11 JUDGE ANTONETTI: [Interpretation] I shall give you the floor
12 again. We have acknowledged this. We shall ask the translation services
13 to translate 120 statements as a matter of some urgency. This is
14 important. This is what we will ask the translation services to do.
15 Mr. Kovacic, you have the floor again.
16 MR. KOVACIC: [Interpretation] Your Honour, to illustrate a point,
17 my client once explained a concept to me and he's a professor of
18 mathematics. I respect that. If you put ten points in a certain space
19 you can draw a curve through these points relatively freely because you
20 only have ten points. But if you put ten points there, then the curve is
21 defined fully and no one can draw a different curve. So that is what I'm
22 getting at, Your Honours. That's my point. Thank you.
23 JUDGE ANTONETTI: [Interpretation] Item 10, the obligation to
24 disclose those documents that are on the 65 ter list, Article (G), in the
25 same way that the Prosecution had to disclose all its documents.
1 Now, I'm addressing myself to all Defence counsel. I would like
2 you to put all your documents in binders, those documents which you
3 intend to adduce through your witnesses. These documents should figure
4 on the 65 ter list. And let me add that it would be advisable for all
5 these documents to be put in a sequential order and not in any order.
6 Please put them in a chronological order, which means that we would have
7 on a shelf the Prlic case, so many documents in a chronological order.
8 And for Petkovic's Defence, all the documents in a chronological order.
9 Now, so that we have an overall view of all the 65 ter (G)
10 documents, this is an application which the Trial Chamber is making.
11 Even if afterwards some of these documents are then put into special
12 binders when the witnesses come to testify. In that case, you can put
13 your documents in different binders. It could be dedicated to certain
14 topics. For instance, if it's Prozor, you could talk about expulsions,
15 people who have been detained, people who have been driven out.
16 So the Chamber would like to have a hard copy version of all your
17 documents, preferably translated, in certain cases not translated, but we
18 would like these to be in binders and in a chronological order.
19 Is this possible or impossible?
20 MR. KARNAVAS: Well, Mr. President, I'm sure Ms. Tomanovic is
21 listening to what you're saying, and my case manager is as well. They
22 would be in a better place to answer that question because they deal with
23 those details, although I would say that it is rather a Herculean task
24 that you're asking us to perform.
25 It was our expectation -- I don't know what our colleagues are
1 doing, but it was our expectation for every witness to have the binders
2 ready prior to the commencement of the trial. In other words, not wait
3 but have all of it.
4 I will have to get back to you on that, but certainly I think if
5 it's doable, we'll do it. We did hire some extra staff just for this
6 part of the case. Obviously we want to accommodate the Trial Chamber as
7 much as possible, and if this helps, then we obviously will do whatever
8 we can to do so. Thank you.
9 MR. KHAN: Your Honour, of course binders can be prepared, but
10 there is, of course, an essential difference perhaps to the binders that
11 the Prosecution provided prior to a specific witness giving evidence and
12 the 65 ter (G) requirements. For example, in the Stojic case, I've
13 mentioned, Your Honours, that we anticipate calling up to 30 witnesses.
14 And so 30 summaries will be prepared and a chart about which counts of
15 the indictment they will speak to.
16 Your Honour, the binders, of course prior to a witness being
17 called in the Stojic case, Your Honours will be provided with binders.
18 But it's not anticipated that on the 31st of March you will be given
19 binders in relation to each of these witnesses. You will be given
20 exactly what is required under 65 ter (G) which are the summaries and the
21 counts that they speak to. So of course when a witness gives evidence
22 there may be additional documents that have arisen in the course of --
23 that are going to be put to a witness that have arisen in course, for
24 example, of another accused's case. Witness binders will be prepared
25 that will help Your Honours and will be properly organised, buts that's
1 at a later stage and they will be done prior to the Stojic Defence case
2 starting. On the 31st of March something quite different is going to be
4 JUDGE ANTONETTI: [Interpretation] Now, I'd like this to be quite
5 clear. As the Bench has the heavy duty to assess the time of the parties
6 now, to assess the time and to make sure that we don't make a mistake,
7 how can we allocate the time properly? We will have the witness
8 statement, and we will have the list of exhibits which you intend to
9 adduce through the witness, and then you have the documents. So if you
10 have a witness for whom you have a summary, you have planned to have
11 three hours, and we will see whether these three hours are justified, and
12 we will look at the documents to see whether you have planned to have 10,
13 15, 20, or 30 documents adduced through these witnesses. What are these
14 documents, and then we shall check to see whether we are not going over
15 the same ground again, because as you know, we have an overall picture of
16 the case given the thousands of documents you wish to adduce.
17 So on that basis we will be able to determine how much time is
18 needed, but in order to do so, we need to have the statement, and we need
19 to have the exhibits to see where we stand, because if you ask to have
20 three hours and then we realise that only one or two exhibits will be
21 adduced through the witness, then we will say, well, three hours is too
22 much time. This is why. And this is in your interest also. It is
23 important for us to have all these documents, and then we will be able to
24 do a very good job.
25 Mrs. Nozica.
1 MS. NOZICA: [Interpretation] Thank you, Your Honour. I only wish
2 to raise one point. Your question and this lack of clarity among us as
3 to what we are supposed to do as regards this request, it can be linked
4 to the previous issue of untranslated documents.
5 It's true that all the Defence teams, I'm almost certain of it,
6 once their Defence cases start, will have all the documents they need
7 translated. However, this will evidently not happen on the 31st of
8 March. For this reason, I am afraid that even were we to create hard
9 copies of all these documents, and if you were to look at all the
10 documents and on that basis establish whether we need this a time, you
11 will not be able to do so because you will not have the translations.
12 Along with our witness lists, we will submit the list of
13 documents with a clear description of each document. From this
14 description you will be able to see what we intend to do through each
15 particular witness. We will give lists of all the documents we wish to
16 tender with each particular witness. For this reason, I believe that the
17 hard copies Your Honours would receive from us on the 31st of March, if
18 not all the documents have been translated, you will not be able to use
19 them in the way you intend. Thank you.
20 JUDGE ANTONETTI: [Interpretation] Mr. Praljak.
21 THE ACCUSED PRALJAK: [Interpretation] Just briefly, Your Honours.
22 A year and a half ago 90 per cent of the witnesses that we were
23 offering had their statements and signed statements and certified
24 statements. They were ready. Now, in Zagreb, in Belgrade
1 The registry need do nothing more than call up one of the authorised
2 agencies, ask how much they charge per page, and send the documents to
3 these agencies to be translated. So I can imagine everything in this
4 Tribunal except that we go to trial without me being able to show the
5 truth and the facts as I see them on the basis of documents, because each
6 of these witnesses are witnesses of what I claim to be true. With
7 respect to details, the essential details, the psychosocial facts, the
8 circumstances on the ground, what happened there, and so on and so forth.
9 Thank you.
10 JUDGE ANTONETTI: [Interpretation] Fine. Let me remind you that
11 the Trial Chamber started dealing with this a few -- several months ago,
12 on the 27th of September, 2007. We issued a Scheduling Order in which we
13 stated that the Defence was to prepare a list of the exhibits they want
14 to show, and they also needed to say through which witness they intended
15 to produce these documents. The Defence was also to disclose copies of
16 these documents to the Prosecution with an English translation if need
18 Six months ago we had already considered this. We had already
19 planned this, and we had already asked you to do all this. Just as a
21 Time has come to close this hearing. The Judges will meet on
22 Wednesday. We'll review all your comments, and we'll rule and decide
23 whether next week there will be or there will not be a 65 ter hearing.
24 If we decide not to hold a hearing, the Chamber's legal officer will
25 immediately send you a mail telling you that the hearing has been
2 Today we've covered practically all the items on the agenda. The
3 Judges will now decide whether the -- next week's hearing has to be held.
4 If we decide not to have a hearing next week, we'll meet again for The
5 Pre-Defence Conference.
6 Now, the question is whether we should push back that hearing or
7 not, as Mr. Karnavas requested, and we'll tell you about our decision on
8 that point. If you run into any types of problem, please let the
9 Chamber's legal officer know about it. She's always available.
10 Unless there is anything else crucial to deal with, I'll say that
11 the hearing's adjourned.
13 MS. TOMASEGOVIC TOMIC: [Interpretation] Thank you. I'll be very
14 brief. Mr. Karnavas my colleague said that he didn't deal with technical
15 matters so that he didn't know about that. Now, I do know about it
16 because for the past two weeks I have helped my case manager with respect
17 to technical issues, and I just have one case manager at my disposal
18 faced with this situation, with the binders, the hard copy, the 65 ter
19 list. We didn't count on that when we planned our work because when we
20 started preparing the Defence case we set the amount of time needed for
21 each matter to be attended to.
22 Now, I'm -- I know how much time it takes to print out 2.000
23 documents and divide them up according to the witnesses, and if you want
24 this to be done for all the witnesses then the same document might be
25 shown to two or three witnesses which means we will have to copy it
1 several times over, makes the situation far more complicated and I really
2 do feel that we're not going to have enough time to hand over the 65 ter
3 list on time because we thought -- I did think that we would have to
4 provide hard copies, but we thought that this would be before our witness
5 comes in, well before. And now I'm faced with this problem because I
6 think that physically and technically I'm not able to be able to get
7 through the 65 ter list, so I wanted to tell the Trial Chamber of that.
8 Now, this principle of 200 pages per month applies to all the
9 Defence teams and all the accused equally, and our team has two
10 translators on our team from outside, and still they're not able to get
11 through all the translations. I'm not a translator myself so I don't
12 know how much time it takes, but I do know that with the help of these
13 two translators we still haven't got through all the material.
14 I don't know whether there was any misunderstanding when you
15 asked whether you -- when you said what you wanted to have at your
16 disposal, you mentioned statements.
17 JUDGE ANTONETTI: [Interpretation] No. I'm talking about the
18 written statements, the written statements.
19 MS. TOMASEGOVIC TOMIC: [Interpretation] Ah, that relates then not
20 to viva voce witnesses because we didn't take any statements from viva
21 voce witnesses, just their summaries.
22 JUDGE ANTONETTI: [Interpretation] The summaries will do. That
23 will be sufficient.
24 MS. TOMASEGOVIC TOMIC: [Interpretation] Thank you, Your Honours.
25 That's all I had to raise.
1 JUDGE ANTONETTI: [Interpretation] Fine. Before we adjourn, the
2 Trial Chamber will issue a number of decisions very shortly. Three or
3 four of these decisions are on standby, but they will be handed down in
4 the next few days.
5 See you next time.
6 --- Whereupon the Rule 65 ter Conference adjourned
7 at 7.08 p.m.