1 Monday, 21 April 2008 2 [Pre-Defence Conference]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 2.17 p.m.
6 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, could you please
7 call the case.
8 THE REGISTRAR: Good afternoon, Your Honours. Good afternoon
9 everyone in and around the courtroom. This is case number IT-04-74-T,
10 the Prosecutor versus Prlic et al. Thank you, Your Honours.
11 JUDGE ANTONETTI: [Interpretation] Thank you very much,
12 Mr. Registrar.
13 This is Monday, April 21, 2008
14 lawyers, Defence lawyers as well as the accused. Today we will have a
15 conference according to Rule 73 ter, and to this end the Trial Chamber
16 sent an agenda to the different parties. However, before we move into
17 the agenda I have four oral decisions that I must read. I will read
18 these four oral decisions. I will then give the floor to Mr. Scott. I
19 believe he would like to take the floor. So before we actually address
20 the items that are on the agenda.
21 So first and foremost I would like to ask Mr. Registrar to move
22 to private session, please.
23 [Private session]
25 [Open session]
1 THE REGISTRAR: Your Honours, we're back in open session.
2 JUDGE ANTONETTI: [Interpretation] Second oral decision, decision
3 on the motion for protection measures of Praljak Defence.
4 On March 31, 2008
5 confidentially, a motion for protective measures regarding 16 witnesses.
6 However, the Praljak Defence said that it may request changes to be made
7 to these measures, these protective measures, notably when the witness
8 are about to testify.
9 The Prosecution also noted that it reserved itself the right to
10 raise objections if the Praljak Defence was asking for new protective
11 measures for these witnesses.
12 As of now the Trial Chamber believes that granting provisional
13 protection measures would be premature and that consequently for judicial
14 economy it is best to deny the motion. However, the Trial Chamber is
15 asking the Praljak Defence to file a new motion according to the
16 procedure that the Trial Chamber will determine, its guidelines that are
17 to be issued very soon.
18 So this was the second oral decision.
19 Third oral decision. It will be very short.
20 In application of Rule 67(A) of the Rules, the Trial Chamber is
21 giving the deadline provided for by this Rule at April 28, 2008. This is
22 the deadline at which each Defence team will have to fulfil its
23 obligations regarding disclosure to Prosecution regarding all witness
24 statements. You may read Rule 67(A) of the Rules.
25 There is an error in the transcript. My fellow Judge has shown
1 this. On line 22, page 3, it is not Defence time but Defence team, the
2 Defence teams.
3 Fourth oral decision. This is a long decision, and this has to
4 do with Prosecution.
5 Decision on the request for review or, alternatively, for
6 certification of appeal of January 30, 2008
7 On January 30, 2008
8 possibly for a certification of appeal regarding two decisions made by
9 the Trial Chamber. The Defence filed a joint response on February 13,
11 At first Prosecution requested the review of the decision to
12 admit a -- the transcript of a testimony according to Rule 92 bis (A)
13 decision which was made by the Trial Chamber on January 23, 2008, and
14 called here under the Brix Andersen decision. The Prosecution is asking
15 for the Trial Chamber to review its decision to reject 31 exhibits coming
16 from the ECMM.
17 The Trial Chamber does not intend to state all the -- everything
18 that was raised by the Prosecution to support its motion nor what the
19 Defence stated in its answer. The Trial Chamber took all this into
20 account when ruling on this request.
21 The Trial Chamber recalls that it will consider any request for
22 review if the demanding party can demonstrate that the -- that in the
23 reasoning of the impugned decision there is a genuine error or that
24 specific circumstances can justify this decision to be reviewed in order
25 to avoid any unfairness.
1 In the Brix Andersen decision, among other things the Trial
2 Chamber rejected the admission of the 31 exhibits on the grounds that the
3 Prosecution did not abide with a previous decision made by the Trial
4 Chamber on July 13, 2006
5 would satisfy the criteria spelled out in the decision of July 13, 2006,
6 nor did Prosecution present these documents to any witness in court.
7 The Prosecution in its request for review did not demonstrate
8 that the Brix Andersen decision has a manifest error, a genuine error,
9 that would entail the rejection of the 31 exhibits. It did not
10 demonstrate either that a review would be justified in order to avoid
12 The Trial Chamber would also like to recall that Prosecution
13 waited 15 months, and I would like to underscore this figure of 15
14 months, after the decision was made on July 13, 2006, before it requested
15 for these documents to be admitted. If the admission of these 31
16 exhibits was this essential for the Prosecution's case, it should have
17 abided by decision of July 13, 2006
18 the Prosecution admits that it consciously decided to bypass this
20 Secondly, Prosecution is asking the review of a decision on the
21 request for review of decisions rejecting the admission of 17 exhibits
22 made on January 23, 2008
24 The Trial Chamber recalls that this decision of January 23, 2008
25 came after a request to review two other decisions according to which the
1 Trial Chamber had rejected the admission of 17 exhibits. This request is
2 thus the second motion for review regarding these 17 exhibits.
3 The Trial Chamber would also like to recall that in its decision
4 of January 23, 2008
5 obviously was not very diligent when it comes to the request to admit the
6 elements at stake."
7 Inasmuch that this request for review does not justify this lack
8 of diligence that was previously noted by the Trial Chamber, there is no
9 need to review the decision of January 23, 2008. Consequently, the Trial
10 Chamber decides to reject the motion for review regarding the Brix
11 Andersen decision, as well as the decision of January 23, 2008. The same
12 applies to the request for certification of appeal given that this motion
13 does not satisfy with the criteria spelled out on Article -- in Rule
14 73(B) as the Prosecution states in its submission of January 30, 2008, in
15 its last paragraph.
16 We now have the four oral decisions, they have been now issued,
17 and we can move to the items that are on the agenda, but I would first
18 give the floor to Mr. Scott. I believe he wanted the floor.
19 MR. SCOTT: Thank you, Mr. President. Good afternoon, Your
20 Honours and to all those -- Counsel, all those in the courtroom.
21 Thank you, Your Honour. Of course it's not the point or the
22 purpose of the Prosecution to argue further about the Chamber's rulings
23 just now. Only one point of clarification, and that is it was certainly,
24 it was certainly never ever the Prosecution's intent to consciously avoid
25 or go around a Trial Chamber decision. There have been -- the Trial
1 Chamber throughout since this trial started in April 2006 has provided a
2 number of different modes, a number of different routes for the admission
3 of documentary evidence, including in connection with Rule 92 bis
4 witnesses, and the Brix Andersen exhibits were tendered specifically by a
5 mode of presentation that the Chamber had repeatedly instructed the
6 Prosecution to follow, and the Prosecution had repeatedly followed it.
7 Had we -- the Chamber has repeatedly indicated that it prefers
8 witnesses -- excuse me, exhibits to be tendered in connection with a
9 witness. We respected the Chamber's preference by tendering those
10 documents through a witness, albeit not a live witness, as opposed to a
11 written motion. Had -- to be very clear, Your Honour, had the -- had the
12 Prosecution known what the Chamber says now, we would have filed --
13 sought the same admission of the same exhibits by written motion. So
14 unfortunately it appears that the Prosecution at the end of the day has
15 been penalised for choosing what the Chamber now considers the wrong way
16 to do it.
17 Had we known, they would have been tendered along with the many,
18 many other ECMM exhibits, most of all of which were admitted and there is
19 no distinction between these 31 exhibits and those. So unfortunately
20 because the Prosecution did tender the exhibits pursuance to the guidance
21 of the Trial Chamber to do as much as possible in connection with the
22 witness, unfortunately we've now done that to our disadvantage. I regret
24 Your Honour, did I ask to have a few moments of the court's time
25 just so that I could make a couple of introductions, and I appreciate the
1 Chamber giving me the opportunity. I need to report to the Chamber that
2 since we last met at the conclusion of the Prosecution case two of our
3 Prosecution team lawyers, Ms. Gillett and Mr. Flynn, have both left the
4 ICTY to do other things with our best wishes, and that's the sad news,
5 but the good news is we have two new lawyers who have joined the team who
6 I want to introduce today. We have Ms. Kimberly West, a very experienced
7 prosecutor from the United States who has joined the team, and also
8 Hedvig Moe, who is also a very experienced prosecutor from Norway
9 they are both -- we are pleased to have them join the Prosecution team.
10 Thank you, Your Honour.
11 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Scott. The
12 Trial Chamber -- well, first was hoping all the best for Ms. Gillett and
13 Mr. Flynn who left the ICTY, which is the best for them in their new job,
14 and the Trial Chamber would also like to welcome Ms. Kimberly West coming
15 from the United States. We congratulate her on working now for the OTP.
16 And I'm sure we will soon be hearing her. We also wish the best and
17 welcome the second person from the OTP, Ms. Moe coming from Norway
18 we also congratulate her for now working for the OTP, and I'm sure that
19 we also will soon be hearing her.
20 It's always sad to see colleagues leave, but it's on the other
21 hand means new colleagues are coming and that's the way things go.
22 Now let's move to the items that are on the agenda. First let's
23 look at the translation issue, the translation of the documents that will
24 be shown by the Defence teams.
25 As you know, two decisions, one of September 27, 2008, and one of
1 January 28, 2008
2 that the accused and their Defence teams would disclose to the
3 Prosecution all copies of the exhibits that they will submit but in
4 English and on the same day as the 65 ter list, i.e., March 31st, 2008.
5 Despite this decision, the Trial Chamber has noted that on April
6 11, 2008, Mr. Karnavas for Defence -- for Mr. Prlic's Defence said that
7 he was running into difficulties regarding the translation of documents,
8 and in its letter the Prlic Defence said that it would abide by its
9 obligations regarding disclosure and translation. However, the Trial
10 Chamber notes that it did not always respect its obligations, and this
11 Trial Chamber is a bit worried about this and would like to take stock of
12 the situation in order to know exactly where things stand regarding each
13 Defence team, and the Trial Chamber would like to know what problems
14 these Defence teams are experiencing.
15 Before giving the floor to the different Defence teams, let me
16 give you some statistics regarding the documents being translated.
17 CLSS told us that for the Prlic Defence 3.000 -- 3.506 pages had
18 been already been translated and that allegedly there is 937 pages still
19 undergoing translation.
20 Regarding the Stojic Defence, 382 pages were translated, and 36
21 pages are undergoing translation.
22 Regarding the Praljak Defence, 1.990 pages were translated so far
23 and 2.130 pages are undergoing translation.
24 For the Petkovic Defence 570 pages have already been translated,
25 268 pages are still pending.
1 For the Coric Defence 914 pages have already been translated, 271
2 pages are still undergoing translation.
3 And finally for the Pusic Defence, 883 pages have been
4 translated, and no pages are undergoing translations.
5 So when adding all these figures up, we note that the Defence as
6 a whole has -- stands as follows: 8.252 pages have already been
7 translated, and as of now Defence is still waiting for 3.642 pages to be
8 translated. When you add all this together, you end up with some 12.000
10 What's essential for the Trial Chamber is that as soon as the
11 first witnesses are called to testify, all documents will have to be
12 translated into English for the OTP as well as for the Trial Chamber.
13 Since all these Defences are going to appear in a different order, I'm
14 sure that the CLSS will start finishing the translation for the Prlic
15 team before working on the other pending translations.
16 Mr. Karnavas, as far as you're concerned could you tell us
17 exactly where you stand?
18 MR. KARNAVAS: Yes. Good afternoon, Mr. President, Your Honours,
19 everyone in and around the court.
20 I'm happy to dive right into this particular issue because I
21 think that the Trial Chamber does not really fully appreciate the
22 challenges that the Defence faces with respect to this, and in
23 particular, this particular Defence has worked very hard from almost the
24 very first day that I got into this case. We began meeting with the CLSS
25 and trying to abide by their regulations, which are every time you need
1 something translated you have to fill out a form. You have to tell them
2 what, where, why, how. And sometimes, I must say their requests are
3 utterly ridiculous, such as we should only be translating documents which
4 we are absolutely 100 per cent sure we are going to be using in court.
5 Name my one lawyer, name me one good lawyer, name me one professional
6 lawyer who has any experience in the courtroom who can say with any
7 degree of certainty that each and every page is going to be admitted.
8 Simply that's not how it's done.
9 Now, our particular Defence has translated approximately
10 one-third, one-third of all the documents. We've done that on our own,
11 recognising the challenges that they meet, even though we should not have
12 to do that. The UN should provide. The UN decided to open up this
13 Tribunal. The UN decided to allow prosecutors to have these very large
14 indictments, and so the UN should provide the facilities necessary for
15 translations because these cases cannot be done without those sorts of
16 services but we've done approximately one-third of that on our own.
17 Now, we -- when the Prosecution began its case, they had
18 designated 9.490 documents. That was their initial 65 ter list.
19 Thirteen per cent had not been translated, 1.248. We did not complain.
20 We did not complain because we knew and we had expected that when the
21 time came for the certain documents that were not translated, when that
22 time came to be -- for those documents to be -- to be introduced in the
23 courtroom they would be, and in fact the Prosecution met its burden, met
24 its obligation with respect to those documents. And what I'm saying is
25 that no case can begin with these sorts of numbers of documents where
1 everything is translated in advance, and in fact the number that
2 originally was given to us by the Prosecution grew, and it grew to no
3 fault of their own, but it's the nature of the beast. They collect more
4 documents. They search through more archives. Witnesses that they've
5 met on several occasions all of a sudden come up at the last minute with
6 diaries and with other sorts of documentation which they have an
7 obligation to look at and disclose. Often those documents need to be
8 translated, in fact most of the time. So we went along without
9 complaining, but that is the nature of the beast in this particular case.
10 Now, with respect to our documents, we had projected but -- that
11 by the time we would begin our case all -- most if not all of the
12 documents would have been translated. Unfortunately, Mr. President, when
13 you issued an order to CLSS with respect to three other teams, they took
14 that and they interpret that order to mean that those teams had priority
15 over the Prlic Defence even though those teams do not go first. And so
16 since the beginning of April, no documents are being translated by them;
17 for us that is. We've had several exchanges of e-mails. They want us to
18 prioritise. We prioritised. They want us to prioritise the
19 prioritisation and it's an ongoing battle. So we've taken it upon
20 ourselves again hiring private translators to assist us, but we're doing
21 the work of the CLSS and they should be doing it, not us, and we're
22 trying to accommodate.
23 I believe you will need to issue an order to CLSS to get them to
24 start translating and do their job for this particular Defence team who
25 is going first.
1 Now, as I've indicated in my letter, which was prompted by a
2 comment, Well, in a perfect world all of these things, yes, but we're not
3 a perfect world, and so I wanted to set out the facts how this imperfect
4 world really works and the facts are in the letter.
5 But be that as it may if all the other teams are going to be
6 given priority then those other teams should go first, plain and simple.
7 You can't have the first team not having priority in translations,
8 especially when we began through day one. I don't know about the other
9 teams, but we haven't waited until the very last moment.
10 But as I've indicated in my letter, and I'll state this again and
11 I'm sure professional, experienced counsel will verify, that in these
12 sorts of cases it is expected that we will get additional documents, more
13 documents. Witnesses are coming up with -- with more documents. We're
14 finding more documents in the field. We cannot help that. We're not
15 working off a dossier. It would be nice, but that's not the case. This
16 is an adversarial system. But as I've indicated in my letter, I do not
17 see any reason why anyone in this courtroom will be prejudiced because
18 the documents that we need for the first witnesses will have been
19 translated. They are translated I'm told. And the ones that have not
20 been translated will be available with enough time, sufficient time, for
21 the parties to go through them, analyse them, and prepare their
22 respective cross-examinations. So we're not trying to either hide the
23 ball or -- or disadvantage anyone.
24 And incidentally when a document is in Croatian and I need to
25 work off of that document, it doesn't help me if it's in Croatian. You
1 know, my colleague Ms. Tomanovic can use it, but basically I need it in
2 English as well, so I'm at equal disadvantage.
3 With respect to the video clips, because there was an issue about
4 that, as I understand it, what we are -- what we're doing is we're trying
5 to isolate from hours and hours of video portions which are relevant and
6 portions which we only intend to introduce and have those available and
7 translated for the convenience of everyone. We do not intend to
8 translate everything or to just ask everyone to look through the entire
9 video but, rather, we're just going to isolate the portions which we
10 believe are necessary and essential to our defence and make those
11 available in a manner in which is user-friendly for all and convenient to
12 the Trial Chamber. We want to be as efficient as we possibly can.
13 So right now as we stand we have 347 pending translations
14 including books and notebooks. CLSS has not sent us any translations
15 since 3 April 2008
16 JUDGE TRECHSEL: Excuse me if I interrupt.
17 MR. KARNAVAS: Yes.
18 JUDGE TRECHSEL: 347, is that pages or is it documents?
19 MR. KARNAVAS: Documents.
20 JUDGE TRECHSEL: Could you give an indication as to the number of
21 pages which is the currency in which we deal in this matter.
22 MR. KARNAVAS: That's the 900. I prefer --
23 JUDGE TRECHSEL: Thank you.
24 MR. KARNAVAS: -- using pages myself, but -- but it's in the 900
1 Since then we have uploaded 36 new translations via documents,
2 and all of them have been translated by the Prlic Defence team. So we're
3 not overtaxing, overburdening poor CLSS. And that's around 300 pages.
4 Four more will be uploaded today, approximately 70 pages.
5 So as you can see, Mr. President and Your Honours, we are
6 carrying more than our load to make sure that we're prepared at a
7 considerable cost and effort to our team, because finding good -- good
8 translators, pushing them hard to be accurate and from one's own expense
9 can be rather taxing.
10 We have delivered 42 video clips including the materials
11 delivered today. Eight more need to be delivered.
12 So that's where we stand, Mr. President, but I could -- I just
13 want to end by saying that I pride myself and my colleague Ms. Tomanovic
14 prides herself on being fully prepared. We intend to be fully prepared.
15 We want to make sure that nobody is inconvenienced, and I'm rather
16 confident, confident that barring some force majure we're going to be
17 prepared and we're going to be efficient, and you will have all the
18 translations in adequate time.
19 Thank you.
20 JUDGE ANTONETTI: [Interpretation] Thank you very much.
21 Stojic Defence, please.
22 MS. NOZICA: [Interpretation] Good afternoon, Your Honours. Good
23 afternoon to everyone in the courtroom.
24 I can say very briefly that the Defence counsel for Mr. Stojic
25 will certainly have all the documents that it will be using in the course
1 of its case translated when we begin to produce our evidence.
2 I would also like to make a very important point, and that is
3 that the Defence counsel for Mr. Stojic throughout the cross-examination
4 and in preparations for the 65 ter witnesses also utilised its internal
5 resources and translation teams, because we were aware of the possibility
6 of having difficulties with the translation, and we are quite confident
7 that we will complete that before we start our case.
8 I wish also to point out that the expert witness will be the
9 joint expert for all counsel, an expert on constitutional law, has -- was
10 appointed as an expert on the 14th of March this year, so that quite a
11 number of documents linked to his testimony have been disclosed rather
12 late. These are quite lengthy documents, and we will do our best to
13 establish with the expert with precision which pages he will be referring
14 to so that we do not necessarily have to have all the books translated.
15 I think that we will be able to complete this work. We're very
16 sorry that we come second. Our team was probably preoccupied with our
17 own problems, so we were not aware of the problems encountered by
18 Mr. Prlic's counsel, and this Defence team feels it would be correct to
19 advise the translation service to first undertake translations of
20 documents of Mr. Prlic, because he will be the first to present his case.
21 Thank you.
22 JUDGE ANTONETTI: [Interpretation] Very well.
23 Mr. Kovacic for Mr. Praljak.
24 MR. KOVACIC: [Interpretation] Thank you, Your Honours. Good
25 afternoon to everyone in and around the courtroom.
1 Your Honour, I would like to join in the comments made regarding
2 the overall situation with my learned friend Mr. Karnavas. We agree that
3 the problems with the CLSS are very serious. There are a number of
4 difficulties, and it is my personal opinion on the basis of my experience
5 with that section of this institution that the conditions and standards
6 of that section are quite unacceptable.
7 This section believes that they should translate only what is
8 evidence, and this is absurd, of course. For something to become
9 evidence we first need to have it in one of the official languages of
10 this Tribunal, that is in English or French for something to qualify for
11 tendering into evidence. But that is the situation that we cannot
12 influence. We have done our best to adjust to it, and we stand where we
13 are now.
14 To be more specific, the Defence for General Praljak, on the list
15 for 65 ter witnesses handed on the 31st of March, 2008, included 625
16 documents which have not been translated. These are documents in the
17 Croatian language.
18 As the translations are arriving slowly from the CLSS, we have in
19 the meantime received another 41 documents translated, so that on our
20 65 ter list now there are 584 documents left that have still not been
21 translated. At the rate at which CLSS is providing translations, I see a
22 potential problem there, but things are as they are. We had earlier on
23 requested from the Chamber that it bring its influence to bear on the
24 CLSS to speed up its work, but this is something that is still under
25 review by the Chamber.
1 As for the total number of pages which have been handed in for
2 translation for the entire case and specifically for General Praljak, for
3 the record I wish to confirm that the figures given are correct. Almost
4 2.000 pages have been translated by the CLSS so far, and about 2.000 and
5 something, I think 2.100, are still in the process of being translated.
6 Allow me to make an observation regarding these standards. I had
7 been prompted by the query put by Judge Trechsel. The terms used by the
8 CLSS are pages. That is so many pages, what we use as a -- normally
9 describe as a journalist page. It's not even a full page. When we write
10 our page has far more words than theirs. So in my view this is a rather
11 bureaucratic approach which statistically increases the number of pages.
12 What we as lawyers are interested in is the number of documents.
13 For me it is quite irrelevant, and I believe also for you, Your Honours,
14 the other counsel, and the Prosecution. Whether a document has 7, 12, or
15 3 pages, that is irrelevant. What matters is the document itself,
16 whether it's short or long. So on our 65 ter list we have the number of
17 documents. This also applies to the Prosecution. So we're interested in
18 the number of documents.
19 Of course I agree that at times there are documents that are like
20 reports which can consist of many pages and we may not be interested in
21 everything, and as the Prosecution has done, we will act similarly and
22 have only the relevant portions translated, which is quite reasonable.
23 Secondly, as comparing the total number of documents, according
24 to the data you have received from the CLSS there's a total of 12.000
25 pages have so far been translated by them for all the Defence cases.
1 This is just a little more of 3.000 documents, because on average each
2 consists of about 3.3 pages, and we've reached that average on the basis
3 of a sample taken. So this would mean a little over 3.000 documents.
4 Let me remind you that the Prosecution on its 65 ter list had
5 10.000 documents. So the six defendants have encumbered the CLSS with
6 one-third of the amount of documents already translated by the
7 Prosecution. The difference, of course, being that we also use many of
8 the documents of the Prosecution which have already been translated and
9 which have been included on our 65 ter list but which the Prosecution has
10 not yet tendered into evidence.
11 May I also add something further. This Defence team, in our
12 conversations with the CLSS and the Registry in general, we have been
13 communicating very intensively since the summer of 2006. When we said
14 that we would have a large number of statements which we had planned to
15 tendered under 92 bis, the CLSS resolutely refused to translate
16 statements, relying on the theory I mentioned a moment ago that this was
17 not evidence. Then we reached a compromise solution, and that is that
18 summaries should be translated, and the CLSS has done that. A part by --
19 was done by them, another part by us. And when I produced them, that is
20 the moment I put them on the list of witnesses under 65(D) and (G). So
21 after the Pre-Defence Conference, we know that according to the Rules I
22 can now say to the Registry these are statements on the list. The list
23 has formally been tendered to the Chamber. Now please have them
25 Now, what will happen with them, I don't know. I can't guarantee
1 for anyone.
2 I wish also to point out, as other counsel have mentioned, that
3 during the Prosecution case a large number of documents, I don't have the
4 exact figures now, but I think that in our report we gave the exact
5 figure. I think one-third of the documents used during the proceedings
6 were translated by us.
7 Your Honours, you saw yourself that in the right-hand corner
8 there was the indication "Unofficial office translation," and this is
9 something we will to do in the future too if we have difficulties, but
10 our resources are limited, and I really don't know if we'll be able to
11 manage all that. But it is a fact that we are not receiving the support
12 which we should be given according to the Statute. And I appeal to the
13 Chamber once again to contact -- to establish contact with the Registry
14 and to try to do something in this respect.
15 Finally, I wish to say that CLSS functions on the assumption that
16 this is one of the cases that they are translating for, and there are
17 certain limits, certain numbers of pages, I think 200 per Defence team
18 per month, whereby the fact is being ignored that some cases, and this
19 one specifically, simply cannot be fitted into the statistics because in
20 terms of their volume and scope and therefore also in terms of documents
21 are far larger than others and require a different technical approach.
22 And this is a fact that will into be accepted. The same limit is set for
23 each defendant in this court, and I think that the Prosecution has a
24 different limit, but I don't know that because it hasn't been formally
1 We will continue to work with the CLSS, and we have already
2 submitted all the documents to them. Here and there we tend to speed up
3 a priority of a document and that's all we can done.
4 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Kovacic.
5 Ms. Alaburic.
6 MS. ALABURIC: [Interpretation] Your Honours, good afternoon to
7 everyone. My explanation will be very short. First of all regarding the
8 translated documents. The Defence for General Petkovic has organised
9 translations as follows: We have established how many pages the CLSS can
10 translate by the deadline that the Trial Chamber has set for filing the
11 translations, and we have entrusted that number of pages to them, whereas
12 all the others we have having translated ourselves; that is, we are
13 paying translators. Some of these are in The Hague, some are in Bosnia
14 and Herzegovina
15 If this translation process evolves according to plan, we expect
16 to have all our documents translated by the time our case begins, and we
17 have already disclosed some of the documents to our learned friends from
18 the Prosecution and the Trial Chamber so that so far we have 137
19 documents translated.
20 Another observation, and here I join my learned friend
21 Ms. Nozica, in connection with the translations for Mr. Prlic's Defence.
22 I really do not see any justified reason for any priorities being given
23 for Stojic, Petkovic, and Coric, because the Trial Chamber has requested
24 that Defence counsel indicate which documents will not be translated by
25 the 31st or 3rd, and if the Defence of Mr. Prlic had made that statement
1 then they would have been included. So could an appeal be addressed to
2 the CLSS that priority be given to Mr. Prlic's documents, and we will
3 adjust to that situation.
4 Thank you very much.
5 JUDGE ANTONETTI: [Interpretation] Mr. Coric.
6 MS. TOMASEGOVIC TOMIC: [Interpretation] Good afternoon, Your
7 Honours. Good afternoon to everybody in the courtroom.
8 On behalf of Mr. Coric's defence, I can say the following: Last
9 time I had informed the Trial Chamber that our team has on its team two
10 translators for the very reason that the CLSS of this Tribunal cannot
11 meet our requests in due time.
12 According to the last information that I have, the CLSS will
13 translate another 127 documents for Mr. Coric, and 48 documents will not
14 be translated by the due date. The 48 documents have been forwarded to
15 our translators on the team, and they will also be translated by the
16 deadline, which is the 26th of May.
17 And now given the situation with the Prlic Defence and with the
18 fact that they are to go first and that it is understandable that the
19 priorities should be changed in light of that fact, at this moment I
20 cannot guarantee that all of our documents will be translated before the
21 26th of May, but I'm sure that they will be translated much sooner than
22 the start of the Coric Defence case.
23 As far as the documents are concerned that were put on our list
24 and were not translated and have been translated in the meantime, the
25 translations are now in e-court, and our learned friends from the other
1 Defence teams and the Prosecution have been informed, as well as has been
2 the Trial Chamber, and we will put a binder in a hard copy for the Trial
3 Chamber with all our translations when all of them are completed. Just
4 to avoid any confusion we will have a binder containing all the
5 translated documents.
6 JUDGE ANTONETTI: [Interpretation] Thank you very much.
7 Mr. Ibrisimovic.
8 MR. IBRISIMOVIC: [Interpretation] Thank you, Mr. President. As
9 far as our translation are concerned, we met our obligation on the 31st
10 of March. I have nothing to add. I appreciate that other Defence teams
11 do have problems with the translations, and I hope that these will be
12 resolved before their Defence cases start.
13 JUDGE ANTONETTI: [Interpretation] Very well.
14 Yes, Mr. Praljak.
15 THE ACCUSED PRALJAK: [Interpretation] Good afternoon, Your
16 Honours. When I didn't have a lawyer because of the problems with
17 funding, I knew what would have to be translated and we started sending
18 documents for translations already two or three years ago. Those
19 documents were returned, and people from the CLSS called me once, twice,
20 or three times a day every time pointing out some difficulties and
21 ordering me how to write these documents.
22 We had good computer programmes, and every time they were
23 surprised that we were able to circumvent the difficulties that they saw
24 in our documents.
25 However, Your Honour, you called this case yourself the biggest
1 trial in the history of the international justice. It seems that we are
2 on a green market at which the CLSS orders both the Trial Chamber and us,
3 the accused, what our right is. It seems to me that we have a paper here
4 saying what our rights are with regard to translation.
5 If the Defence has reduced the number of witnesses to 10 per cent
6 of the number of witnesses that I wanted to bring here, which was 220, it
7 seems to me that it would only be fair for the Prosecution and the Trial
8 Chamber to have their statements. The indictment covers a lot of years.
9 It deals with psychology and psychology, and a system cannot be closed
10 with pieces of papers relating to just a short period of time.
11 Mr. -- Your Honour, Judge Trechsel, can you please allow me to
12 finish what I have to say?
13 JUDGE ANTONETTI: [Interpretation] Yes, but please hurry, because
14 this is a problem that we know very well, and your lawyer explained it to
15 us already. So please accelerate.
16 THE ACCUSED PRALJAK: [Interpretation] I would kindly ask for an
17 answer as to what is the right of the accused and their Defence counsel
18 for the documents to be translated at the beginning of their cases. What
19 is the right of the Chamber to issue orders, and what is the position of
20 the CLSS in the Tribunal? Are they those that execute orders or do they
21 issue orders themselves?
22 JUDGE ANTONETTI: [Interpretation] Your counsel will be in a
23 position to answer that particular question. Let me remind you that the
24 Trial Chamber issued a decision on the 28th of March, 2008, following a
25 request by Mr. Stojic, Petkovic, and Coric related to the translation of
1 various documents. In that decision we stated that we requested that
2 translations be provided by the 26th of May, 2008, at the latest. In
3 other words, by this decision the Trial Chamber clearly stated that
4 everything should be translated by the date of 26th of May, 2008.
5 We are going to take stock of the situation once again with the
6 CLSS. We are going to try and find out if that deadline will be complied
7 with or not.
8 The Defence exhibits, as Prosecution exhibits, should be
9 translated. That's the rule. And as you know, an exhibit can be
10 admitted into evidence only if it's been translated into one of the two
11 working languages of the Tribunal. That's the right -- right you have.
12 You have the right to ask for a document to be admitted, and that's why
13 when the document has not been shown with the translation an MFI number
14 is given before the document is translated.
15 The only problem that the CLSS raised is that they do not want to
16 translate every single document, any document, and they want this
17 document to be shown at trial for admission, because otherwise you could
18 ask for thousands of books to be translated, and that would be a disaster
19 for the CLSS.
20 The situation is serious, but it's not without hope, and I
21 believe that we'll manage to find a solution very soon. That's my wish,
22 but as I said, we are going to get in touch with the translation service.
23 We are going to ask them to provide us with a report on the way things
24 stand. That's the only response I can give you at this stage.
25 Now let me move on to the third point on the agenda for today.
1 It's something that we added to the agenda following a filing by the
2 Prosecution that had identified a number of inconsistencies.
3 Witness list 1D. The Prosecution noted, but we had noted it of
4 course ourselves earlier. It was noted that Prlic -- the Accused Prlic
5 was not on the list, whereas during the 65 ter Conference Mr. Karnavas
6 told us that Mr. Prlic would testify it.
7 The Trial Chamber would like to know several things. First of
8 all, is Mr. Prlic going to testify?
9 Secondly, as an exploratory question, the Chamber would like to
10 know the following: If Mr. Prlic is going to testify, when is he going
11 to testify? Would he testify in the middle of the Prlic Defence case, or
12 did you consider, as the other Defence teams, did you consider having all
13 the accused testify at the end of the trial once all the other witnesses
14 have testified? Then the accused could all testify at the end.
15 Another question we want to ask you: If Mr. Prlic testifies, how
16 many hours will that take?
17 Mr. Karnavas.
18 MR. KARNAVAS: Again good afternoon, Mr. President. There's no
19 need to be alarmed why he wasn't on the list. He is an accused. He is
20 not a witness. That's why he wasn't put on the list. I thought I'd made
21 it very clear that he would be testifying, but if that caused any
22 confusion, my apologies to anyone who was confused about that.
23 With respect to the order, as I had indicated where we thought we
24 would have Dr. Prlic testify initially in light of what we believed might
25 be the wishes of the Trial Chamber, we then heard from the Bench where
1 you indicated that you would prefer he would go last. We assumed that
2 you meant last in our case. That was fine with us.
3 With respect to this new invitation, I would like to consult with
4 Dr. Prlic first before I would speak on his behalf, but I think it is an
5 interesting proposition. But in any event, to the extent that we can get
6 these judicial hints, we appreciate them, because we certainly want to do
7 things that make the Trial Chamber -- would make its job most efficient
8 and beneficial. So we thank you.
9 Perhaps we can get back to you on that answer after the break.
10 Oh, as far as how many hours. As far as how many hours, well, I
11 believe I had calculated at one point, and it was -- it came out to
12 approximately 24 hours by our calculation. Now, that could be a little
13 bit less, it could be a little bit more, but probably on the lesser side.
14 But that's how -- I recall when Mr. Krajisnik testified, and we have
15 someone who was here who -- who did participate in those events, the
16 gentleman was on the stand for several weeks. I believe it was seven or
17 eight or maybe ten weeks, somewhere near that. I know that others have
18 testified in the vicinity of three to four weeks in total.
19 We have to keep in mind that this is a document case, and there
20 are a lot of documents that we need to go through. The minutes of the
21 meetings. There was all sorts of reports that were introduced such as
22 the Tomljanovich report, this expert report that discussed all sorts of
23 things. So given that, it seems to me that we would need to spend a
24 great deal of time.
25 Now, having said that, the Trial Chamber will have had the
1 benefit by that point, assuming that Dr. Prlic goes last, even after our
2 case, would have had the benefit of hearing from several members of
3 the -- the HVO executive authority, and so it may be that certain areas
4 you would tell us that you were sufficiently apprised of that topic and
5 did not need to hear any testimony on, so that might shorten it a bit.
6 But what I would expect, Your Honours, is that prior to Dr. Prlic
7 testifying is providing you with a rather detailed outline of the topics
8 so you would know which order we were going to cover the topics. It
9 would be sort of an outline that would help you. And so then in the
10 event you want us to of move to another particular topic or if the order
11 switched we would accommodate you in that fashion. And that will of
12 course be provided to the Prosecution in advance as well so that they
13 could prepare their cross-examination, though I'm sure Mr. Scott is
14 preparing already as we speak. And I see him shaking his head like a
15 good advocate.
16 I hope I answered your questions, Mr. President.
17 JUDGE ANTONETTI: [Interpretation] Fine. Yes. You've answered my
18 question indeed.
19 Now with respect to the Praljak Defence, the Trial Chamber, you
20 will not be surprised to hear, has reviewed the summaries, the names of
21 the witnesses given, and we noted the following, and the Prosecution saw
22 that too: In many cases their summaries are not precise enough or not
23 accurate enough, and we have a lack of detail of -- about the time period
24 these witnesses are talking about. It's all very vague. It's all very
1 We are a bit -- we lack some certainty. But on my own personal
2 behalf I'll say the following: With respect to the list of witnesses for
3 Mr. Praljak, the question at stake is the following: These witnesses
4 will come and testify. Will they talk about the events at the end of
5 1992 before what happened in Prozor? Then there is the period of six
6 months in 1993 about which we do not know exactly what was Mr. Praljak's
7 position or situation. Then we have the period of July to November.
8 Mr. Praljak is in office because he was appointed commander of the HVO.
9 Then around the 8th of November Mr. Praljak left the scene. And
10 considering this, I have the feeling that in this 65 ter list we have a
11 mix. We have no idea who is going to come and testify for what purpose,
12 and there is a lack of specification, Mr. Kovacic. We need to have more
13 detail. Can you please answer this?
14 MR. KOVACIC: [Interpretation] Your Honours -- Your Honours, I
15 would be ready, but that would take a lot of time if we went from one
16 witness to another, but if you have any uncertainties about that,
17 about --
18 JUDGE ANTONETTI: [Interpretation] No. I'm expecting a general
19 kind of a summary, a few minutes of response.
20 MR. KOVACIC: [Interpretation] Yes. In principle I can tell you.
21 The witnesses -- actually their summaries are primarily distributed
22 around various events. For example, there's a group of witnesses that
23 will testify about the events in Prozor. As we all know, Prozor is a
24 count in the indictment. There are certain dates of incriminating
25 events, and the witnesses will be talking about these events in Prozor.
1 I don't think that the summaries should show the times. The time
2 is relevant, because in Prozor some things happened before the
3 incriminating events and some happened after the incriminating events.
4 First and foremost we're interested in the location. That is our
5 theme around which our witnesses are centred. That's one principle.
6 The second principle resolves around some other terms, for
7 example, subordination, or the third group of witness will come to
8 testify about the events at the beginning of the war, at the time when
9 the HVO and the Territorial Defence were engaged in common defence
10 operations and their break-up. So this is more or less clear. But if
11 you wish any further clarification, we are at your disposal. In time we
12 can give you further clarifications.
13 My client has something to add, but I have to tell you that he
14 has prepared most of the witnesses himself when he had not been appointed
15 a Defence counsel. Maybe he can provide you with some more details.
16 JUDGE ANTONETTI: [Interpretation] Mr. Praljak.
17 THE ACCUSED PRALJAK: [Interpretation] Your Honours, it is true
18 that the summaries had been done in haste. It did arise that these
19 witnesses have not been grouped, but they will come in groups and the
20 criterion is very simple. The criterion is temporal which means that
21 witnesses will talk about certain periods of the time. There will be
22 character witnesses, very few of them, there are witnesses talking about
23 what I did before the war, what I did during the war in Croatia to
24 display how the accused behaved in that period, and then there will be
25 some to talk about what I did in Bosnia-Herzegovina.
1 If we did not have the general part of the indictment for joint
2 criminal enterprise, I would then focus only on the periods when I was in
3 charge of things that would obviously carry a certain amount of
4 responsibility. However, since we are part of the joint indictment, I
5 had to extend my list of witnesses to cover all the counts of indictment
6 meaning the functioning of the Croatian state, when it comes to
7 logistics, the military, the transport, harbours, arms, because as an
8 officer of the Croatian army and the assistant minister of defence for
9 psychological and information matters, I had a certain amount of
10 influence and responsibility. I participated in all that, and I know
11 about these things. I know how the -- the BiH army was armed. I know
12 how we prepared the Geneva Conventions for all the soldiers on the front
13 line, primarily the HVO soldiers, which means that I have called all
14 those witnesses who will speak about what I did during that period and to
15 testify whether the indictment is correct or not.
16 They will talk about the psychological, military, and material
17 aspect of my work. They will talk about very minute details to show what
18 the life was really like and avoid creating an unrealistic world that
19 will not reflect what was really happening on the ground.
20 JUDGE ANTONETTI: [Interpretation] Fine. Things have been
21 clarified somewhat with respect to your witnesses.
22 Now let's move on to 4D. The Petkovic Defence has not stated how
23 they would present their witnesses. We have the feeling that 4D will
24 call all its witnesses viva voce, whereas in the Rules you can have viva
25 voce witnesses but also 92 ter or 92 bis witnesses. That's provided for
1 by the Rules of Procedure and Evidence. This is the reaction of the
2 Prosecution, but I must say that myself, when I reviewed the 4D witness
3 list, I came to the same conclusion.
4 My question to the Petkovic Defence is whether they will only
5 call their witnesses viva voce.
6 MS. ALABURIC: [Interpretation] Your Honour, it was our intention
7 to have only viva voce witnesses. We believed that on the list that we
8 have where we have shown how much time we want to spend in direct
9 examination this list shows that these are witnesses that we want to hear
10 viva voce.
11 When compiling our list we tried to be as concise and rational as
12 possible. We did not want to bring these witnesses that would be
13 repetitive that will be talking about same topics and saying more or less
14 the same things and that's why we believe we are lacking one of the
15 important elements, which is presenting evidence through 92 bis and ter
16 evidence, because we're talking about the cumulative evidence of all the
18 We believe that when estimating the time we were also very
19 rational. We have tried avoid trading time and trying to ask for more
20 than we actually need. We have tried to be rational and respect limits
21 in the number of witnesses and the amount of time, and we tried to
22 present all those things that will be relevant for the Trial Chamber in
23 terms of the facts and evidence that we wish to present in the courtroom.
24 JUDGE ANTONETTI: [Interpretation] You've shed some light on the
25 situation, on the reason why you want viva voce witnesses to be called in
1 your case, but now we have another issue we need to raise. That's the
2 issue of expert witnesses and joint witnesses.
3 I have a confession to make. When I reviewed your witnesses, all
4 witnesses, all the Defence teams, there's something that I didn't quite
5 understand. I don't understand who will be the expert witnesses common
6 to all the Defence teams, and who will be the other witnesses, the other
7 joint witnesses, who will come and testify on behalf of all six accused.
8 Let me give you some explanation about this based on a table
9 prepared by the Trial Chamber, but we need to move into private session
10 because I'm going to give the names of protected witnesses. We need to
11 move into private session for a few minutes.
12 [Private session]
11 Pages 27382-27385 redacted. Private session.
19 [Open session]
20 THE REGISTRAR: Your Honours, we're back in open session. Sorry,
22 MR. KARNAVAS: So if you were to look, for instance, at our
23 witness list, I'm shocked and surprised that my colleagues didn't
24 identify members of the Presidency of BiH to put on their list to talk
25 about what was happening in Sarajevo
1 witnesses to talk about international negotiations. Perhaps they felt
2 that others would deal with that issue.
3 If you look at those -- some of the other lists, you'll see that
4 they're targeted to their particular case. Fine. Our defence is based
5 on first and foremost that there is a joint criminal enterprise. And it
6 doesn't matter if somebody is your subordinate who commits the particular
7 crime. If it's a natural and foreseeable consequence of the events and
8 you're a member of the joint criminal enterprise, well, then you share in
9 the responsibility. At least that's my understanding of the law. And
10 maybe I misunderstand the law, but I believe that's how it works.
11 So when I say that witnesses benefit everyone, I think it is to
12 everyone's benefit that we have these witnesses. Now, whether they
13 choose to cross-examine them, that's fine. They could do direct
14 examination. That's fine, too, through their cross or through open-ended
15 questions, it's all up to them, but we have no common expert witnesses on
16 our list.
17 Now, there was one witness that's on the Stojic Defence that's an
18 expert we have met. That witness you could say is common because there
19 is some coordination, and Ms. Nozica is taking the lead. I presume that
20 when the gentleman comes that we would be able to assist Ms. Nozica in
21 preparing him and that in the time that she has asked if there are areas
22 which we think that might be relevant that she would ask them. If not,
23 we might be given leave to ask some additional questions, but that's a
24 common witness.
25 JUDGE ANTONETTI: [Interpretation] Mr. Karnavas, yes, but you have
1 just raised a problem that I had not envisaged in the first place and
2 that has just cropped up, this question of proofing. You're saying that
3 there's a witness that will be proofed with Ms. Nozica. So if I
4 understood you well, all witnesses for all parties will be proofed
5 individually with the lawyer of only one accused, but there might be
6 witnesses which will be jointly proofed. Is that the way it's going to
8 MR. KARNAVAS: Again, Mr. President, I want to disabuse anyone of
9 the notion that there is a joint effort or a joint enterprise, leaving
10 out the criminal aspect of it, because I don't think we engage in
11 criminality, but there is no joint enterprise between us and we haven't
12 sat around to talk about it.
13 If there is a common witness, I envisage, such as an expert
14 witness, where I am coordinating with Ms. Nozica, just to use this as an
15 example, I would know in advance which documents and which areas she is
16 going to cover. It's a joint witness. She is going to be conducting the
17 direct examination. Certainly I would like the opportunity to be invited
18 during the preparation and to have my input since it's a common witness.
19 I think it's -- that's sort of natural. Whether that would occur or not,
20 I don't know.
21 Now, for instance, if there is a witness that somebody brings up,
22 an expert witness but is not a common witness, I intend to cross-examine
23 if there is a need and only if there is need. But if there is a need, I
24 will cross-examine with leading questions, and the witness may be treated
25 in a hostile manner. Not hostile -- in the sense of asking leading
1 questions, not with hostility. No pun intended.
2 But so -- so I just want to make sure, Your Honour, the problem
3 is we have six different teams. One of the reasons -- for instance, in
4 the Praljak list you'll see that they have 92 bis and now they've asked
5 for 15 minutes. It's because they've gone out, I assume, taken a
6 statement. Now they see somebody who they have the statement and is
7 going to be live in court giving viva voce testimony. Well, it then
8 behooves them to ask viva voce questions to either supplement that
9 statement or to get the statement in, or in lieu of the statement to have
10 the viva voce testimony. I think that's how I think that occurred is
11 because there's been no coordination. But there's been no coordination
12 because we're distinct Defence teams.
13 And it's not because we don't like each other or that we don't
14 trust each other, but we have our respective clients, and our clients
15 give us instructions. We come from different legal traditions. We have
16 different strategies, different approaches, but I can assure you that
17 there have been some efforts, at least early on, to have some sort of
18 coordinated effort, and we've done that to a large extent through motion
19 practice where we were able to assist the Trial Chamber by filing joint
20 motions, but at this stage we're at a very critical stage and we
21 certainly don't wish to be seen as some sort of a joint defence ganging
22 up on the Prosecution even though they probably have a lot more resources
23 than we do.
24 JUDGE TRECHSEL: Mr. Karnavas, still going to the issue of
25 proofing, is it a matter of the Chamber to address it at all, or is it
1 something that we should entirely leave to the Defence? If, for
2 instance, we have (redacted)
3 and where Mr. Praljak or the Praljak Defence also wants to ask some
4 questions, isn't it entirely up to them whether they do proofing together
5 or separately?
6 MR. KARNAVAS: Yes. Your Honour, I agree with you, but we're in
7 open session so perhaps we shouldn't be mentioning names.
8 JUDGE TRECHSEL: I'm sorry. I apologise.
9 MR. KARNAVAS: And you're absolutely correct. And I think that
10 to the extent -- I mean we're all colleagues and I don't think there's
11 going to be a problem on that. But I think you're absolutely right.
12 It's up to us. Of course the person who is calling the witness --
13 JUDGE ANTONETTI: [Interpretation] Just a minute. We'll move back
14 into private session, because if we start mentioning witnesses --
15 MR. KARNAVAS: Right. I can --
16 [Private session]
11 Pages 27391-27398 redacted. Private session.
13 [Open session]
14 THE REGISTRAR: Your Honours, we're back in open session.
15 MR. KHAN: We're now open session, but perhaps I can just check
16 that the witness's name that was inadvertently mentioned previously, has
17 an order been made for redaction? I presume it has. I see from the
18 court officer an order has not been made for redaction. I do apply that
19 that witness's name be redacted.
20 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, please prepare
21 the order because we have 30 minutes.
22 Yes, Ms. Nozica?
23 MS. NOZICA: [Interpretation] If I may be of assistance. It is
24 page 41, line 18.
25 JUDGE ANTONETTI: [Interpretation] Thank you very much.
1 MR. KOVACIC: [Interpretation] Your Honour, I do apologise. If I
2 must say something else. We discussed this during the break. A double
3 expert witness that appears as a joint witness, I won't mention the name,
4 we mentioned him a moment ago, as a joint expert of all Defence counsels.
5 In the submission of the 14th of April we said that we would use the
6 advantage when he is present to refer to a separate event. We had
7 planned him as 92 bis. I am letting you know that we will not do this so
8 as not to affect the expert witness's testimony, because that would
9 dilute his testimony. We can refer to that incident through another
11 JUDGE ANTONETTI: [Interpretation] Ms. Alaburic.
12 MS. ALABURIC: [Interpretation] Your Honour, I will explain very
13 briefly that we do have a joint expert witness for constitutional law.
14 He is the expert mentioned by Ms. Nozica. And for the Defence of
15 General Praljak we have a joint expert for military issues. And may I
16 now be allowed to say a few sentences regarding experts and witnesses
17 regarding joint criminal enterprise that has been discussed by colleague
18 Karnavas. I wish in particular to clarify certain points to as to avoid
19 any misunderstandings.
20 In the Prosecution case we saw that Mr. Prlic's defence focused
21 mostly on the joint criminal enterprise issues and not the call --
22 so-called base issues. And Mr. Karnavas has already said that he will
23 mainly focus on those topics of joint criminal enterprise rather than --
24 and that we can focus on the crime base issues. And further to such an
25 agreement the Defences have focused their attention on some other issues.
1 As the Defence of General Petkovic has indicated in our list of
2 witnesses, our witnesses also comment on the joint criminal enterprise
3 issue. This is explicitly stated in relation to counts and paragraphs.
4 The differences between those witnesses and the witnesses we will hear at
5 the beginning of the Prlic case is the following: Our witnesses, in
6 addition to joint criminal enterprise issues, will also focus on crime
7 base issues. That is through concrete issues we will try to elaborate on
8 joint criminal enterprise as opposed to witnesses who will be discussing
9 exclusively joint criminal enterprise issues and other issues related to
10 them. That is why I believe that the witnesses not only for
11 General Petkovic and for Mr. Prlic, that all these witnesses to a greater
12 or lesser degree also deal with the issue of joint criminal enterprise.
13 We do not have joint experts or witnesses with Mr. Prlic's
14 Defence simply because no one was proposed to us as a joint witness, but
15 we believe that in future preparations and possibly through
16 cross-examination, we will be able to discuss issues which are of
17 interest to all the accused.
18 Thank you.
19 JUDGE ANTONETTI: [Interpretation] For Mr. Coric.
20 MS. TOMASEGOVIC TOMIC: [Interpretation] Your Honour, I will be
21 very brief. The Defence for Mr. Coric has one joint witness and that is
22 the expert on Mr. Stojic's list. And as far as we know, he's the joint
23 expert of all Defence teams as proposed by Ms. Nozica.
24 In addition to that witness, and we have already explained this
25 in our filings about the witnesses that appear on several lists, there's
1 a witness who appears as a viva voce expert on our list and on the list
2 of the 6D Defence, and both we and the 6D Defence have informed the
3 Chamber that our intention is that this witness be examined during the
4 testimony for Mr. Coric, and first the counsel for Mr. Coric will examine
5 him and then Mr. Pusic's Defence, because I think we are questioning him
6 about different issues. I think that is in accordance with the
7 instructions of the Trial Chamber.
8 In addition, we have two other witnesses who appear on the -- on
9 Mr. Prlic's defence and Mr. Praljak's defence lists as 92 bis witnesses.
10 As for the technical approach to their examination, I agree that
11 what is practical is what Ms. Nozica has said, but similarly, there is
12 the risk that colleague Kovacic has referred to, so that I would suggest
13 that the Chamber consider both these methods of examination, which are
14 the advantages and disadvantages, and I'm sure the Trial Chamber will
15 find the best solution.
16 As for the circumstances that our witnesses will be testifying
17 about, I don't think we need to go into that because our list contains a
18 summary of the statements and refers to the counts and paragraphs that
19 these witnesses will be testifying about so that it is clear from those
20 lists what these witnesses will be testifying about.
21 JUDGE ANTONETTI: [Interpretation] Very well. And now
22 Mr. Ibrisimovic.
23 MR. IBRISIMOVIC: [Interpretation] Thank you, Mr. President. I
24 don't wish to repeat what has already been said by my colleagues.
25 Mr. Coric's Defence has already explained our joint position regarding a
1 joint witness, and we have another two witnesses who should testify viva
2 voce, and also on Mr. Praljak's 92 bis list.
3 Maybe a practical solution would be when we call these witnesses
4 then the -- other Defence teams can, through the cross-examination,
5 obtain what they wanted through 92 bis, because there's a question as to
6 whether they will be accepted or not.
7 I don't know what Mr. Kovacic's position is. Should we not be
8 calling those witnesses, then we would inform Mr. Praljak's Defence for
9 those statements to be admitted, and that would avoid the risk that
10 Mr. Kovacic has referred to.
11 Thank you. Mr. Chairman, just one further observation.
12 Regarding the two witness that the Prosecution has asked whether they
13 will be expert witness or regular witnesses, they have academic titles
14 but they will be testifying as regular witnesses, not as expert
15 witnesses. They are two doctors, specialists, who will be talking about
16 specific problems, exhumation, pathological findings, and other issues
17 that have arisen during the proceedings.
18 JUDGE ANTONETTI: [Interpretation] Very well. I'm going to --
19 JUDGE TRECHSEL: Excuse me.
20 JUDGE ANTONETTI: [Interpretation] Yes.
21 JUDGE TRECHSEL: I would like to add a comment to the subject we
22 have dealt with now. I think in the beginning the idea was that if we --
23 if you take this list it's always the team that comes first which has
24 invoked the witness that will bring this witness.
25 Now, if you look -- if we look at the list, you will see that
1 there are witnesses where the Pusic Defence has three hours, four hours,
2 and the Praljak Defence has 15 minutes, so that it seems that it is
3 mainly a witness of the -- of the Pusic team. And one may wonder whether
4 that in case the -- it is more or less in second lieu a witness for the
5 Praljak Defence and in first line a witness for the Pusic Defence. Then
6 it may be more convenient if the Pusic Defence calls him and the
7 supplementary questions come at that moment.
8 I just draw your attention to this. I think it's up to you to
9 agree, but it's -- it's a consideration that might be worthy. Thank you.
10 JUDGE ANTONETTI: [Interpretation] Very well. I would like to
11 talk about another topic. The Prosecution in their writing asked that
12 the Defence give tables of witnesses and of evidence.
13 On the 4th of September, 2006, the Prosecution at the request of
14 the Chamber had produced this chart enabling to criss-cross the
15 information between the witnesses and the evidence.
16 The Chamber thus request as the Defence indicates on that list of
17 exhibits what is the witness that they -- through which witness, rather,
18 they wish to present evidence. The Trial Chamber, in the guidelines that
19 it will produce tomorrow or after tomorrow is going to request that when
20 a party present a witness they inform the Trial Chamber two weeks prior
21 to the hearing of the witness and -- and gives the Trial Chamber the list
22 of exhibits that they wish to show during the hearing, and thanks to the
23 name of the witness and the list of exhibits, we will have 15 days before
24 a witness appears. The Prosecution, just as the Trial Chamber, will have
25 those elements of information, that information, enabling the Trial
1 Chamber to establish a link between the exhibits, the witness, and the
2 paragraphs on the indictment.
3 So the Trial Chamber believes that at this stage it is not
4 mandatory that the Defence present this chart, because we will be able to
5 have -- 15 days prior to the arrival of the witness we will be able to
6 establish the link between witnesses, exhibits, and indictment. This is
7 what we wished to tell you.
8 Yes, Mr. Scott.
9 MR. SCOTT: Excuse me, Your Honour. There's a couple of matters
10 I would like to be heard on, and I don't want to necessarily take all the
11 Chamber's time now, but I do note that we're on -- we appear to be on
12 agenda item 5 or 6 of the Trial Chamber's agenda from last Thursday or
13 Friday when it was circulated. Some of our comments, Your Honour, would
14 be brief, but based on prior experience with all respect I'm concerned
15 that if the Prosecution is not heard as we go on different agenda items
16 we will approaching 7.00 and the Prosecution will be faced with playing
17 catch up on all the items today.
18 JUDGE ANTONETTI: [Interpretation] This is why I'm going fast. So
19 at this point in time you would like to intervene to tell us what
21 MR. SCOTT: I would, Your Honour. On this particular point and
22 then I'll be in the Chamber's hands whether you want to go back to some
23 of the prior topics or not, but on this particular point, Your Honour, I
24 think the most important thing about the additional element on the charts
25 that we did not find on the existing Defence charts was the information
1 that was required not only the linkage to the paragraph and the witness
2 but also the information in terms of source and indicia of reliability
3 and in order that we can prepare for each witness, we would ask that what
4 the Chamber has just described as the two-week or 15-day chart just as
5 the Prosecution was required to fill out that information, that that
6 information also be required concerning Defence exhibits, for example,
7 whether they came from the Croatian State Archive, whether they came from
8 an international organisation, what have you, but that appears to us to
9 be missing in the listings so far, and we would ask the Chamber to add
10 that to the requirements.
11 I would -- I would like, Your Honour, to go back -- I'm not going
12 to go all the way back unless the Chamber invites me to do so, but I
13 would like to go back to the issue we were just talking about just so
14 there there's no misunderstanding about this issue of examination and
16 I think that the discussion has been helpful in that I think it's
17 become clear that whether a witness on their face or on some list is
18 expressly described as a joint or common witness, in fact, many of them
19 are. That's what's become apparent more in the last 15, 20 minutes, half
20 an hour. In fact they are closely related. In fact they all relate to
21 JCE, some of them do. There are a number of common witnesses.
22 It's perhaps out of an abundance of caution but if I heard the
23 President a few minutes ago correctly and if the translation is correct,
24 the reference was used to -- when the other Defence conduct a
25 cross-examination of the witness and, Your Honour, that would be a
1 concern that we have. If it's a joint witness or interest -- with common
2 interest the Prosecution would not consider that to be a
3 cross-examination in the sense of hostile questioning or leading
4 questions. That is indeed a common witness and we would not believe it
5 would be appropriate for the Prlic accused, for example, Defence to call
6 a witness, put its direct examinations and for other Defence teams to get
7 up and say, "Well, I didn't call this witness a common witness. I didn't
8 call this witness. Therefore I'm going to conduct a cross-examination by
9 leading questions, et cetera, by friendly witness." We don't think that
10 would be appropriate. That indeed should be considered a joint and
11 common witness with the Prosecution actual cross-examination following
12 all Defence questioning.
13 Now, as we said in our papers, we do allow, of course, we do
14 allow that there may be some instances in which you could truly have an
15 adverse witness. For example, if hypothetically speaking, Mr. Prlic and
16 Mr. Karnavas were to call a witness on Mr. Prlic's behalf but that
17 witness happens to say -- who do I pick on? That it was actually
18 Mr. Petkovic who was responsible for this course of conduct. Well, then
19 indeed the Petkovic Defence team's cross-examination of that witness on
20 that point would be adverse and presumably might be a subject for
21 cross-examination. That would be a -- that would be a true example of
23 But follow-up questions or additional questions by other Defence
24 teams to -- to a Defence witness, Your Honour, we do not submit, would
25 be -- that's not cross-examination being conducted in a different way
1 such as leading questions in what might be called a more hostile
2 approach, and we wanted to make that very clear that that's the
3 Prosecution position. Thank you.
4 MR. KARNAVAS: If I may -- if I may just briefly rebut that
5 point. Here's the -- here's the problem that that poses: First of all,
6 not everyone is going to be proofing that particular witness and I think
7 that if you're going to be asking open-ended questions, you know: The
8 who, what, where, why, how, explain, describe, which is normally how you
9 do direct examination, and you haven't had the benefit of sitting with
10 that witness and going through the lists of questioning, I think then you
11 ask questions at your peril because you haven't met that witness. That's
12 why you need to cross-examine.
13 Whereas if the witness is common in the sense and perhaps common
14 in a way that the Defence have coordinated and have allowed an
15 opportunity to -- to proof the witness or they've divided the areas that
16 there will be direct examine, no problem. But I would -- I would like to
17 reserve the right to cross-examine any witness that is being brought up,
18 because even in an innocent fashion they may say something that I may not
19 agree with and may be contrary to my particular defence. So with all due
20 respect to Mr. Scott's position, I don't think that we can treat every
21 witness as a common witness and only the rare exceptions should we be
22 allowed to cross-examine.
23 JUDGE ANTONETTI: [Interpretation] Let's not start a debate on
24 this. The Trial Chamber will render its decision about guidelines. This
25 is a theoretical debate that you are talking about. Clearly the party
1 calling the witness will put non-leading questions, and most of the time
2 the other Defence teams will intervene without putting leading questions,
3 but it is quite possible that in some cases, but this should be an
4 exception rather than the rule, that the witness, let's say, answered to
5 questions put by the party that called him, but this could create
6 problems for another party, another accused. So quite rightfully Defence
7 counsel for another witness has the right to cross-examine. That's quite
8 obvious. But the general principle adopted by the Trial Chamber, and
9 this is what we will put in our decision that you will get shortly, one
10 party calls a witness. The other accused may cross-examine him or her,
11 and the Prosecution may cross-examine him or her, and that is the
12 guideline, the general guideline.
13 Of course we need to add that with a number of witnesses there
14 will be no problem whatsoever for cross-examination. But as I said on
15 many occasions, the issue of leading or non-leading questions is purely
16 academic, because you have four professional and experienced Judges in
17 front of you, and they know, on the basis of the question put to the
18 witness, they know whether the question is neutral, directed, more or
19 less directed -- directive, and believe me, the Judges are in a position
20 to assess the value of the answer given by the witness depending on the
21 way the question was put. It's an automatic process, and there's no need
22 to have any concern about this.
23 MR. SCOTT: Thank you, Mr. President. I'm not going to repeat
24 that point, but I do before we move to another point, so I can at least
25 complete on this topic, can I just come back and say as we've said in our
1 papers that we filed last week we suggest again, and I think the
2 discussions this afternoon, while helpful, have also indicated that I
3 think it would assist everyone in the courtroom, including the Chamber,
4 including the Prosecution, perhaps other Defence teams among themselves,
5 if an additional filing could be made simply makes a further effort based
6 on these discussions as to which witnesses are common. We see -- I don't
7 dismiss the amount of work involved. Everyone knows, the Prosecution
8 knows what it is like to put on case. We've been there. We've done it.
9 It's burdensome. But it would assist everyone and the Chamber,
10 especially in light of the guidance that the Chamber has given and the
11 dialogue this afternoon if an additional table or listing could be
12 provided jointly by all the Defence making a further effort to identify
13 these joint or common witnesses. Number one. That's suggestion number
14 one which we make respectfully to the Chamber.
15 Secondly, and I say secondly because I don't see this as a
16 substitute for number one but as an additional tool to assist everyone,
17 including the Chamber, I believe if the Chamber gets to it we hope that
18 the Chamber will require the Defence to do what we were required to do
19 and that is to provide at a least a 30-day rolling trial calendar. It
20 further seems to us, Your Honours, that when that trial calendar is put
21 out approximately 30 days in advance, that that would be an additional --
22 excuse me --
23 JUDGE ANTONETTI: [Interpretation] I was going to deal with that
24 matter. I was going to deal with it.
25 MR. SCOTT: If I could -- in this specific context, Your Honour,
1 if I could finish my thought, please. On that particular point, on
2 that -- there would be an additional opportunity for the Defence to
3 indicate for the next 30 days these are the common witnesses, these are
4 the joint witnesses, and it could be put on at that table. It would
5 assist everybody. Thank you.
6 JUDGE ANTONETTI: [Interpretation] Yes, Mr. Khan.
7 MR. KHAN: Mr. President, I'm -- I'm much obliged. Your Honour,
8 I do take your comments regarding the futility of engaging in academic
9 arguments needlessly extremely seriously. However, for the record I
10 think it's necessary to submit that despite having the utmost respect of
11 course to my learned friend Mr. Scott, the Defence for Bruno Stojic
12 vigorously and fundamentally disagrees on takes issue with the
13 contentions put forward.
14 Your Honour, of course Your Honours do have reference to the
15 previous Status Conference and in that, which is why I haven't repeated
16 it on this occasion, in that the Defence of Bruno Stojic took issue with
17 my learned friend's Mr. Karnavas's categorisation of having witnesses
18 that are common to or useful or have utility to other Defence teams.
19 Your Honour, these are matters that must be essentially within
20 the province of each team taking instructions from their client. And,
21 Your Honour, these cases are nuanced. It may well -- very well be the
22 case that a particular witness may in some material particulars be useful
23 to a co-accused, but similarly there may be points of divergence and
24 of --
25 JUDGE PRANDLER: Excuse me for interrupting you. It is only a
1 correction in line 2. I believe you wanted to say that "Your Honour
2 these cases are nuanced." Now it is already appearing as a correction
3 and because previously it was not written correctly. Thank you.
4 MR. KHAN: I'm most grateful, Your Honour. And, Your Honour,
5 there may well be areas in which an accused or co-accused has essential
6 disagreement, but any attempt to foist a witness down the throats of a
7 co-accused runs contrary, of course, to the rights of every accused
8 that's stands before you.
9 Your Honour, there is a huge jeopardy in calling a Defence
10 witness. Every witness that any Defence team wishes to call may explode
11 in that particular witness's face. One may be foisted with one's own
12 petard. So a degree of circumspection has to be used by the Defence
13 teams that are calling a particular witness.
14 Your Honour, I know that in this case I know almost the entire
15 investigative work has been done by lead counsel, and the witness list
16 put down have been carefully selected in the interests of Mr. Bruno
17 Stojic. Your Honour, that's the first point.
18 Of course it may well be consistent with the Prosecution theory
19 of the case to lump all the accused together in one JCE, but even there,
20 Your Honour, there are these two options. A witness may be called by an
21 accused who seeks to controvert the essential fundamentals of a JCE et
22 al. That's obvious. Similarly it's open to an accused, open to a team,
23 to call a witness who may not dispute the existence of a JCE but simply
24 say Witness 1, 2, or 3 or accused 1, 2, or 3 are not part of it. So
25 again these are matters that must be left to the discretion of a Defence
2 JUDGE TRECHSEL: Just -- Mr. Khan. I am not of the view that
3 Mr. Scott had the intention to impose on Defence teams to accept certain
4 witnesses against their will as common witnesses. Am I wrong, Mr. Scott?
5 MR. SCOTT: No, Your Honour. You're quite correct.
6 MR. KHAN: Well, Your Honour --
7 JUDGE TRECHSEL: So I think you fight no opposition.
8 MR. KHAN: Your Honour, no, because what Mr. Scott said very
9 clearly was he was seeking to circumscribe the rights of an accused to
10 cross-examine. Now, cross-examination, Your Honour, cross-examination
11 has an extreme forensic utility to a Defence team. It has at least two
12 advantages. Your Honours of course can -- are professional Judges and
13 can assess the credibility of any witness before you. But, Your Honours,
14 we do in this courtroom work under extreme constraints of time. The
15 ability of a team to cross-examine a witness saves time. That's point
16 number one, because questions need be -- need not be open-ended. They
17 can be very focused specific questions in cross-examination.
18 But secondly, as I understood Mr. Scott, his view, his opening
19 parting shot was in fact the last 15, 20 minutes, the last half an hour
20 have actually shown that there are common witnesses. Well, Your Honours,
21 it's a matter for the Defence teams to decide which witnesses are common
22 and which are not, and if a Defence team states these witnesses are not
23 common, they must be entitled to cross-examine these witness if they wish
24 to do. It's as simple as that.
25 JUDGE ANTONETTI: [Interpretation] Very well. We've taken note of
1 what you have stayed. The Judges will have a meeting at 7.00 p.m. and we
2 will take comments into account when establishing the guidelines. There
3 is a more essential item we have to deal with, it's the time. But
4 Mr. Scott, you wanted to take the floor.
5 MR. SCOTT: Yes, Your Honour, one moment. Just to pick up on
6 Judge Trechsel's comment and in light of counsel's comments just now. I
7 do stand by my characterisation that this discussion much of the
8 afternoon has indicated that there are indeed a number of common
9 witnesses. I think that came clear through much of the discussion.
10 There was even discussion of course you could come to joint proofing, of
11 we could prepare this witness together, of course they would be common to
12 areas of interest. So I stand by my characterisation number one.
13 Number two. It may be a lost, I hope not to be presumptuous in
14 saying this, but there may be a point here that in the common law system
15 cross-examination has a particular connotation. Cross-examination is a
16 more hostile, more aggressive leading questions, that sort thing.
17 Cross-examination means a particular type of questioning, and it's in
18 that sense that the Prosecution submits that in situations where there is
19 indeed -- it is -- the witness is a common witness realistically whatever
20 label is put on them, where they are a common interest and there has not
21 been adverse evidence given to another accused it would not be
22 cross-examination as that term is used specifically in the common law
23 rightly or wrongly whether that's the best system or not, but it would
24 not be considered cross-examination. It would be considered further
25 questioning by the Defence.
1 Number -- point number two and point number three, I said I would
2 only take a moment, I thought I clearly said and again I agree with
3 Judge Trechsel's clarification in response to my learned friend. Clearly
4 there may be instances on where it may be adverse, and I can tell the
5 Chamber if that happens, if Mr. Prlic's witness gets up and accuses
6 Mr. Petkovic of doing something wrong, you will get no objection from the
7 Prosecution for the Petkovic Defence team to cross-examine that witness
8 adversely on that point. No objection from the Prosecution on that.
9 That's cross-examination on an adverse point. Thank you very much.
10 MR. KOVACIC: Just --
11 JUDGE ANTONETTI: [Interpretation] No. No. Let's stop here. We
12 have more essential matters to deal with.
13 One point of clarification. Team 1D, you've filed 26 videos, but
14 we have 34 videos on your list. Please try to identify the problem.
15 As for the testimony of the witness -- of the accused. Mr. Prlic
16 told us that he would be testifying. We mentioned that the last time
17 that you have to tell us whether your client will be testifying or not.
18 If he testifies, and you said that at the last conference, but we want to
19 have a confirmation from Mr. Stojic first of all. Mr. Stojic, is he
20 going to testify? Ms. Nozica.
21 MS. NOZICA: [Interpretation] Your Honour, Mr. Stojic will not
22 testify. I am saying this at this moment, and I believe this will remain
23 so until the end of our case. However, I reserve the right to change
24 that should Mr. Stojic change his opinion, but we will inform the Trial
25 Chamber in due course.
1 JUDGE ANTONETTI: [Interpretation] Mr. Praljak will be testifying.
2 How many hours do you request?
3 MR. KOVACIC: [Interpretation] Your Honours, we adhere to our
4 previous position. Mr. Praljak is on the list of our witnesses, and we
5 asked for 36 hours, if I'm not mistaken. This looks like a very little
6 time, but we have taken everything into account. We limited the time of
7 all our other witnesses to a minimum. And bearing in mind the
8 testimonies of other accused in -- in the other cases, I believe that you
9 will agree that this is a very modest amount of time.
10 MS. ALABURIC: [Interpretation] Your Honour, at this moment we
11 believe that General Petkovic will testify, and the desirable time is the
12 time that we asked for, 12 hours, and we believe it is not too much in
13 light of the period of time that he spent in his position.
14 MS. TOMASEGOVIC TOMIC: [Interpretation] As we've already informed
15 you, we have not changed our opinion. Mr. Coric will testify. He is on
16 our list, and we are asking for 15 hours for his testimony, Your Honours.
17 JUDGE ANTONETTI: [Interpretation] And for Mr. Pusic?
18 MR. IBRISIMOVIC: [Interpretation] Mr. President, Mr. Pusic is not
19 going to testify.
20 JUDGE ANTONETTI: [Interpretation] Fine. Now let's move on to
21 opening statements. According to Rule 84 opening statements may be made,
22 and according to Rule 84 bis accused persons may make a statement.
23 As for opening statements, we would like to know who will make an
24 opening statement, and we'd like to know whether the accused will be
25 making a statement. We'll go by the order of the teams, 1D, 2D, et
2 Mr. Karnavas, we'll start with you.
3 MR. KARNAVAS: Thank you, Mr. President. As I indicated last
4 time, we see no utility in making an opening statement at this stage
5 given that we've been in trial now for two years and you more or less
6 know exactly what this case is about. We also believe that you through
7 our 65 ter filing, and these proceedings, you have gotten a pretty good
8 sense of where our case is and how it's structured. So we see no benefit
9 in spending a day or two. Others may see that. We don't. We're not in
10 front of a jury, we're in front of professional Judges therefore we want
11 to go right into the evidence.
12 JUDGE ANTONETTI: [Interpretation] Fine. 2D, please.
13 MS. NOZICA: [Interpretation] Your Honours, 2D will deliver a
14 short opening statement. For the time being we believe that it will be
15 either me or my co-counsel. If Mr. Stojic is to deliver opening
16 statement, we will certainly inform you in due time, because our Defence
17 case starts after Mr. Prlic's Defence case, and we believe that this
18 leaves plenty of time.
19 JUDGE ANTONETTI: [Interpretation] You say you're going to make a
20 short statement. How short?
21 MS. NOZICA: [Interpretation] Forty-five minutes is a short time
22 in my book.
23 MR. KOVACIC: [Interpretation] Your Honours, in our earlier
24 submission we have informed you about that, and we have asked for both
25 opening statements. I -- the opening speech by the Defence and by the
1 accused, according to 84 bis Rule. We ask for a total of three hours,
2 and that's that.
3 JUDGE ANTONETTI: [Interpretation] Three hours for you and for
4 Mr. Praljak, for the both of you?
5 MR. KOVACIC: [Interpretation] That's the total. And if you're
6 interested in a breakdown, I am going to spend about three-quarters of an
7 hour, and General Praljak will use up about two and a half hours for his
8 opening speech.
9 JUDGE ANTONETTI: [Interpretation] D4.
10 MS. ALABURIC: [Interpretation] Your Honours, we plan to deliver
11 an opening speech of about an hour or so. We would like to explain our
12 case and give a road map to the Trial Chamber through the evidence of --
13 for General Petkovic.
14 JUDGE ANTONETTI: [Interpretation] So Mr. Petkovic will not be
15 taking the floor?
16 MS. ALABURIC: [Interpretation] Not at this moment. We don't plan
17 for General Petkovic to deliver a speech or a statement.
18 JUDGE ANTONETTI: [Interpretation] D5.
19 MS. TOMASEGOVIC TOMIC: [Interpretation] Thank you, Your Honours.
20 Our plan is the same as the plan of General Petkovic Defence, a short
21 opening speech for up to an hour. For the time being it will be me.
22 Mr. Coric will not participate in that. If there are any changes, we
23 will inform you thereof in due course.
24 JUDGE ANTONETTI: [Interpretation] D6.
25 MR. IBRISIMOVIC: [Interpretation] Mr. Chairman, our plan has not
1 changed, which means there will be an opening statement for up to an hour
2 and a half, and Mr. Pusic has not been planned to deliver any opening
4 JUDGE ANTONETTI: [Interpretation] Very well. Let me move on to
5 another topic now. I'm not asking you to comment on what I'm going to
6 say because we would then be wasting a great deal of time.
7 The Judges have considered the matter and as things stand our
8 position is the following: When the accused testify, whilst they are
9 sitting there in front of you, one week, two weeks, three weeks, four
10 weeks, five weeks, we don't know, throughout that time, throughout the
11 testimony of the accused, the Trial Chamber, and that's my personal
12 opinion in particular, I believe that the link between the accused and
13 his counsel should not be broken. I believe that the accused should be
14 in a position to consult his counsel.
15 If the parties have a view on the matter, but we're not there
16 yet, but if you have a particular view on this file something in writing,
17 if you're against that or not. Please tell us what you believe about
18 that, about the right of the accused to have contact with his counsel
19 whilst testifying. If you think that you should give your views to the
20 Chamber about this, please put that in writing.
21 JUDGE TRECHSEL: [Interpretation] Let me add the following: I
22 believe that it is a matter of interest for the accused and the Defence
23 counsel. The Trial Chamber should not intervene in the matter. I
24 believe in particular that the Trial Chamber should not issue any order
25 one way or the other. I believe that it is your responsibility and your
1 responsibility alone.
2 JUDGE ANTONETTI: [Interpretation] Okay. You understand what is
3 at stake here. You know that other Trial Chambers have adopted a
4 different stand. If you want to file submissions, please feel free to do
6 Let's move on to the schedule of the witnesses. Tomorrow or the
7 day after tomorrow the Trial Chamber will issue guidelines on the
8 presentation of the Defence case and the filing of the schedule of
9 witnesses will be dealt with. We envision the following: That the party
10 calling the witness should file the list of witnesses for a month and
11 this schedule should be filed 15 days before the first day of the
12 relevant month.
13 As for Mr. Prlic, his witnesses, the witnesses who will come and
14 testify in May 2008, the Prlic Defence should file the list of witnesses
15 who will come and testify on the 28th of April, 2008, at the latest.
16 Mr. Karnavas, on the 28th of April at the latest, you should send
17 us the list of witnesses who will come and testify the following month.
18 Another thing we discussed this morning is that we would like to
19 have a rolling schedule. In other words, every week you should update
20 the schedule. You should send us a new list. This would enable us to
21 have a clear idea about the witnesses who will come and testify.
22 We have to consider also in that respect that the Chamber will
23 need to decide how long cross-examination will take, cross-examination
24 conducted by other Defence teams. And because of that, because we need
25 to do that, we need to have the list of witnesses.
1 I'm going to allow you to think about this, and before we have
2 the break let me move on to the main item on this agenda, parties'
3 comments on how much time the Trial Chamber plans to allocate for the
4 presentation of the Defence case. You will be given 10 minutes each to
5 speak. That's a total of one hour for the six Defence teams.
6 As things stand now, on the basis of your submissions, of your
7 filings, on the basis of what the Chamber knows about this case that has
8 been going on for about two years, on the basis of the names of the
9 witnesses, on the basis of the exhibits you have notified us of, we plan
10 to allocate 80 hours to the Prlic Defence, and 54 hours to the Stojic
11 Defence, 50 hours to the Praljak Defence, 50 hours to the Petkovic
12 Defence, 45 hours to the Coric Defence, 22 hours and a half to the Pusic
13 Defence team.
14 Let me add that we are talking here about time dedicated to the
15 examination-in-chief and to the examination-in-chief alone. Here we are
16 not taking into account the time that will be taken by the Prosecution
17 for cross-examination or by the other Defence teams for cross-examination
18 purposes. We are not taking into account time spent on Judges'
19 questions, and we are not taking into account either time spent on
20 various procedural matters, incidents, objections, and so on and so
22 Based on the maths we've done during the Prosecution case, we
23 find that Judges' questions take up about 10 per cent of the time.
24 Procedural matters, incidents, take up about 22 per cent of the time.
25 That's a ballpark figure. And in this particular case if the Prosecution
1 is granted the same amount of time as the examination-in-chief for
2 cross-examination, we would have a total of 301 hours and 30 minutes for
3 the examination-in-chief, 50 per cent of that time for cross-examination
4 for the other Defence teams, and we should need, roughly speaking, about
5 1.000 hours. A thousands hours starting on the 5th of May, because 5th
6 of May will be the day when the trial begins again with the first opening
8 This is, of course, a ballpark figure, as I said. After the
9 break you will have 10 minutes each, 10 minutes for each Defence team, to
10 comment. We will very a break, but before that Judge Trechsel wants to
11 take the floor.
12 JUDGE TRECHSEL: [Interpretation] Yes. I want to share with you a
13 problem we identified during our discussions. It's a problem related to
14 re-examination by other Defence teams, re-examination of a witness called
15 by another Defence team. That's part of the examination-in-chief.
16 An example: The Prlic team, when organising its time, will need
17 to take into account that it will need some -- to set aside some time.
18 Why? Because this time set aside will be needed to supplement the
19 examination-in-chief of another Defence team.
20 I have the floor, and I'm going to return to English to be as
21 clear as possible.
22 [In English] What we mean by turning calendar, a rotating
23 calendar. Now, and I make a very abstract example, we have on the 15th
24 of April the calendar for 1 to 13 May. Then the next calendar we receive
25 the 15th of May, by the 15th of May we have only two weeks ahead that
1 we -- no. Then we get a calendar for 1 to 30 June, and 15 June a
2 calendar 1 to 31 July. So we are jumping.
3 The alternative possible is that we get one calendar on the 15th
4 of April for the 1st to 31st May. Then a week later the 22nd of April we
5 get one for the 7th May to the 7th June. Only 1 to 7 June will be new,
6 in fact, will be added. And on the 1st of May, a week later, we'll have
7 a calendar that goes from 15 May to 15 June. One week added in the end.
8 In my view this will not cause additional work because you will
9 be preparing all the time, and it makes a more regular rhythm in
10 provisions what's going to happen. Just to make clear what was the
11 meaning of this.
12 JUDGE PRANDLER: Thank you. As a matter of fact, I do not want
13 to take much of our time because we are going to have a break, but I
14 would like to recall that at the very last conference of ours here I did
15 mention the percentages which had been taken up by various questions, and
16 I recalled that procedural matters took 22 per cent of all of our time.
17 Now the Presiding Judge, Judge Antonetti, mentioned here that we found
18 about the same amount of time, let's say about 22 per cent as procedural
20 I have already explained in our Chamber, and I do repeat here,
21 that I am very much -- I will do my best to reduce the time allotted to
22 procedure without any prejudice, of course, to the equity of arms and to
23 the good running of this -- of this conference, and of course later on as
24 far as the presentation of the defence. But I would like to emphasise
25 that we should do our best as possible to reduce the time which is really
1 almost one-fourth of the -- all the time allotted to these sittings and
2 to the Prlic Chamber.
3 So I repeat again that within the very well-known framework of
4 the pre-trial, I ask all the parties and all those present here to do our
5 best to try to reduce the 20 per cent. Thank you.
6 JUDGE ANTONETTI: [Interpretation] It's a wish that is common to
7 all Judges. We're unanimous in that. We want this 20 per cent, this
8 percentage, to be reduced. Most of this time is due to objections.
9 Please try to reduce the number of objections.
10 We understand when a question is a leading question. Just stand
11 up and say objection and then sit down again. No need to go into lengthy
12 discussions or speeches, because if you do that, if you just say
13 "Objection," then the other party will just rephrase the question.
14 In other Trial Chambers objections are seen as -- are considered
15 as the time of the party making the objection. So please try not to
16 spend so much time on these procedural matters because we spend so much
17 time on this so far. What's important here is the substance of this
18 case. The judgement will not hinge on whether a question has been put in
19 a leading manner or not. That's not what's going to be taken into
20 account. And when -- and during re-examination, do not forget to say
21 when you put your questions, "The Prosecution said this," "The answer was
22 this." "I have this additional question to put to you." In doing so we
23 avoid any objections saying, "The question was not put that way" and so
24 on and so forth. This will all be dealt with in our guidelines. The
25 ideal would be for this 20 per cent to go down to 0 per cent.
1 Let's have a 20-minute break.
2 --- Recess taken at 5.35 p.m.
3 --- On resuming at 5.55 p.m.
4 JUDGE ANTONETTI: [Interpretation] Very well. The hearing is
6 Mr. Registrar, could release move to private session.
7 [Private session]
17 [Open session]
18 THE REGISTRAR: Your Honours, we are back in open session.
19 JUDGE ANTONETTI: [Interpretation] Before giving the floor to
20 counsels for the Defence regarding the hearing schedules, the Trial
21 Chamber decided that when we would be sitting on Thursday afternoons,
22 which will be the case when we resume, we will stop at 6.30 p.m. on
23 Thursdays. The half hour lost, if I can call it so, will be retrieved
24 for hearings that will be held on July 18th. It will be a Friday.
25 Monday July 21st in the morning, and we will also have two additional
1 hearings in October in order to make sure that there's no prejudice. But
2 just as we do in the Seselj case, the hearing will stop at 6.30 p.m. on
4 Now, this being said, Mr. Karnavas, you have the floor. Ten
5 minutes. Remember that there are six of you that want to take the floor
6 and we only have one hour left.
7 MR. SCOTT: Excuse me. With my apologies to counsel, Your
8 Honour. I wanted to raise it -- I did want to clarify one point that was
9 brought up at the end of last session but given the speech about
10 procedural time I was reluctant to pick it up but I will now.
11 Your Honour, I think there was some -- and if I understand in
12 talking to some of my colleagues on the other side, I think there was
13 some confusion or lack of information, perhaps or maybe not, about the
14 timing for Defence opening statements because based on something that was
15 said a few moments ago before the break I had the impression that there
16 was some thinking now that all these various opening statements by
17 Mr. Praljak, by Mr. Petkovic, by Mr. Coric, by Mr. Pusic would all be
18 made on the 5th of May, and it's my understanding that it was --
19 JUDGE ANTONETTI: [Interpretation] Absolutely. Absolutely.
20 MR. SCOTT: Then it is indeed different that what had been
21 discussed that they were going to be made at the beginning of each
22 respective Defence case. Frankly I don't care except to know so we can
23 plan for whether we're having a witness on the 5th of May or the witness
24 won't come for several days after that allowing for all the opening
25 statements. But indeed there is --
1 JUDGE ANTONETTI: [Interpretation] Well, there are two ways to
2 envisage this and proceed. Either each Defence team starts on the May
3 5th, D2, D3, and so on, D2 for 45 minutes and no one takes the floor, and
4 no one makes an opening statement, but if it's -- and then we have D1
5 moving with -- hearing the first witness. We have no opening statement
6 and we hear the first witness for D1. Is that it? This is up to you.
7 This is up to the Defence to decide how they want about this.
8 MR. SCOTT: As I say, Your Honour, I don't have a strong
9 feeling -- except -- the one way or the other except to know, but it was
10 my impression based on the conversations today that there would be no
11 opening statements on the 5th of May and we would go right to the first
12 witness. Number one. That's point one number one.
13 And my second very brief point, Your Honour, and just for the
14 record, and Chamber's raised its concerns before and I think -- well, the
15 Chamber, I'll leave it at that. For the record the Prosecution would
16 state its objections to Mr. Praljak having another opening statement.
17 Under the Rules he's already made a statement. That time has been done.
18 He's made that statement. Unless the Chamber would like to give the
19 Prosecution another statement somewhere along the way so that all sides
20 get another statement, then we would consider that if the Chamber would
21 allow the Prosecution to make a statement, but Mr. Praljak's made his
22 statement. We would object to a second statement. Thank you.
23 JUDGE ANTONETTI: [Interpretation] Now regarding Mr. Praljak, I
24 believe that the Trial Chamber had decided a few months back that he
25 could make this opening statement. We said this when we made a decision
1 on the 92 bis. So I refer you to this decision made by the Trial Chamber
2 in this respect. I don't have it here, but just refer yourself to it.
3 I'm almost sure that that's what is stated in this decision.
4 Now, this being said, on May 5th we will be hearing the first
5 witness for the Prlic Defence team, but there are two ways to proceed
6 that are possible, having the opening statements all at once by all.
7 That would have allowed us to have a general perspective on the different
8 cases. It is true that in the Rules of Procedure opening statements are
9 to be given right before the Defence case is presented for each accused,
10 so we will wait for D2 to have the first opening statement.
11 Mr. Karnavas, you have 10 minutes.
12 MR. KARNAVAS: Thank you, Mr. President. Let me state first that
13 I was a little taken aback when I saw that the Trial Chamber had reduced
14 the hours that we had indicated, which was 128 hours without Dr. Prlic's
15 testimony to 80 hours, and from looking at the decision, and I call it a
16 decision because it looks like a decision has already been made but you
17 wish to have submissions in any event, does not reflect that the 80 hours
18 also include the testimony for Dr. Prlic. So I guess first we need some
19 clarification. Was the 80 hours in the 54 hours or the 50 hours for the
20 arrests? Was that calculation -- does that include the testimony for the
21 accused? I see Judge Trechsel indicating so.
22 Recognising that --
23 JUDGE ANTONETTI: [Interpretation] Absolutely.
24 MR. KARNAVAS: Recognising that we are not in a perfect world but
25 where an accused is looking at a lifetime in prison where he grows old
1 and dies in prison, recognising the fact that no one put limitations on
2 the Prosecution to limit the scope of the indictment even though there
3 was a change in the rules that would allow the Trial Chamber to influence
4 to some extent, to focus or to reduce the indictment, recognising that
5 this is primarily a documentation case and this was something that was
6 brought up by the Prosecution when they were facing their problems in
7 trying to introduce all those documents and we came up with this creative
8 method of -- of submitting documents with basically nothing other than
9 spin by the parties, leaving it up to the Judges to then decide how to
10 use the documents, if you look at what we are presenting the witnesses,
11 for instance, let me just give you an example.
12 We heard from Professor/Judge Ribicic, the gentleman who came
13 from Slovenia
14 because it's a derogatory way -- his derogatory way of showing what his
15 contempt for his southern neighbours, in my opinion. This gentleman here
16 had never heard of who Boras
17 of these were central figures, anyone who would have done an expertise on
18 the constitutionality, of which as he was asked to do so, would not have
19 focused on one presidential transcript but rather would have spoken with
20 these gentlemen. But in his testimony, if you recall, he never even
21 heard of them. These gentlemen were with Mr. Izetbegovic during the time
22 when Bosnia-Herzegovina was imploding, and the question was what, if any,
23 government existed and to what extent it was able and capable of doing in
24 Bosnia-Herzegovina and what other municipalities or regions could do and
25 fend for themselves in light of the -- the circumstances there.
1 If you look at the breadth and the depth of the indictment where
2 you have Tudjman, Susak, Bobetko and the others, how can one deal with
3 that within an hour or two? You do need somebody like Mr. -- like the
4 gentleman that we propose, our very first witness, who was one of the
5 insiders. He was there.
6 Look at the list. They're ministers. They're prime ministers.
7 They're foreign ministers. They're ambassadors. These are not, you
8 know, crime base witnesses where we have five witnesses to testify about
9 the very same thing.
10 Now, during the presentation of the Prosecution case, I had, to
11 use Judge Prandler's term, complained about the lack of time that was
12 being allocated to me for cross-examination. I was complaining --
13 actually, I was making my record because there were several important
14 witnesses which we did not get to thoroughly cross-examine, yet
15 representations were made from the Bench of which I'm now going to remind
16 the Bench of, which was that I would have all the time in the world.
17 That was the expression, all the time in the world, to put on my defence.
18 I'm not asking for all the time in the world. I'm not asking for a
19 perfect world. I'm asking for a fair world. I'm asking for a fair
20 process, and 80 hours with Dr. Prlic testifying is not only fair -- it's
21 not fair, it's shameful.
22 There is no way that I can conduct any case that is worth
23 anything in light of all the testimony that has come from the Prosecution
24 witnesses, in light of all the documents with that amount of time.
25 Now, I've gone back and I've redone my math and this is the best
1 I can do under the best of circumstances with 25 years of experience
2 doing this work. I'm not some neophyte. This is not my first case here
3 or anywhere else. I have been doing this business a long, long time
4 before tough Judges.
5 I need a minimum of 101 hours, and that's without Dr. Prlic
6 testifying. And I cannot imagine where a Trial Chamber would put a
7 limitation on the right of an accused as to how much he could testify to,
8 because when you say 80 hours including him, something has to give.
9 Either we don't present critical evidence to rebut evidence that came in
10 from the Prosecution, or what you're saying is that an accused may have
11 the right to testify but it's a -- it's a qualified right. "We will
12 dictate how much time he will have."
13 We cannot cover the subject matter. You had, for instance, one
14 gentleman coming here, Mr. Tomljanovich, who prepared a report. Look at
15 the report. Look at the footnotes. Look at what he's citing. Who
16 better than these gentlemen here that we have on our list to explain all
17 those things? How can you possibly understand what was happening if you
18 don't allow us the time. And part of the problem with this case is that
19 we have so many documents that even if you introduce documents wholesale
20 through this new, inventive new procedure that we have that is nowhere
21 else applicable, even under those conditions you still need to go through
22 certain documents, and going through a document takes time.
23 We've had hundreds of pages of presidential transcripts coming in
24 where the Prosecution is latching on to one word, one phrase, one
25 paragraph, one particular presidential transcript like Ribicic did,
1 although I don't see how that's a constitutional analysis. How can you
2 possibly go over that material by simply introducing it and giving it
3 your own spin? What I say is not evidence. What the Prosecution says is
4 not evidence. That's why I'm not giving an opening statement, because
5 it's not evidence. Summation has a different value.
6 You need to hear from the witnesses, the witnesses who were
7 present, who can explain, and I can't imagine why the Trial Chamber would
8 not want that testimony.
9 Now, we've taken our time in preparing this list. We've met over
10 500 witnesses. We've scaled it down, and we've done this in a very
11 rational manner. And I don't see anywhere in the Statute that it says
12 that an accused's rights depends on the number of hours that the
13 Prosecution case puts on, because that's what we're doing. We're saying
14 that we're going to decide your rights based on hours and minutes and the
15 case that you get to put on.
16 I've tried cases where I've put on no case, where the Prosecution
17 put on an extensive case or vice versa. Where the Prosecution put on a
18 limited case, a small case, and I put on a very large, substantial
19 Defence case with success. Why? Because I'm entitled to do that. I'm
20 entitled to rebut the evidence. That's what we want to do, rebut the
21 evidence that came in.
22 We intend to produce evidence and to have testimony that is
23 relevant, and I'll repeat again I've done this about a dozen times, and
24 I'll keep doing it until this case is over. When it comes to questioning
25 witnesses, be it one side or the other, there are two basic rules. Is it
1 relevant, and is it non-repetitive? Those are the two universal rules
2 that should apply here as they apply all around the world. Not you've
3 got your three minutes, hurry up.
4 So I go back. We cannot do it in 80 hours. If we were forced to
5 go with 80 hours and Dr. Prlic, I would be prepared to tell Dr. Prlic to
6 simply sit in his cell and not come out. This is not fair. This would
7 be a process that I could not agree to, and I could not advise my client
8 to proceed.
9 You've told us that you will give us all the time in the world.
10 Those were your words. We're not asking for all the time. We're asking
11 for fair time, and I'm entitled to that fair time because Dr. Prlic is
12 entitled to that fair time.
13 And I don't know how the 80 hours -- how this Trial Chamber came
14 up with the 80 hours. I certainly would want to know for the purposes of
15 the record. If the Trial Chamber insists on 80 hours, including
16 Dr. Prlic, I would like an explanation, a detailed explanation as to how
17 the Bench came up with that amount of hours, because I can -- I've given
18 my breakdown. You've seen my documents that go to every witness. You
19 see where they go to every paragraph. I want an explanation from the
20 Bench for the record so we can appeal before we start, but I cannot
21 truncate my case any more than it has been. It is what it is based on
22 the indictment. I cannot control what the Prosecution's indictment is
23 going to be or the documents they intend to produce. That is their case.
24 They're entitled to their case. We've fought long and we've fought hard
25 with them to have their right to put on their case based on their --
1 their analysis. They wanted 400 hours. We said give them 400. You cut
2 it to 300. You gave them some more time. Not as much as they wanted but
3 nonetheless we thought back then it was a mistake because they know their
4 case. This is an adversarial setting. There is to dossier in this case.
5 So we say based on what you've heard, based on what you've heard,
6 based on the documentation that you have before you, based on the
7 documentation that we have shown you that we intend to present through
8 our witnesses, some of which can come through motion, but most of it need
9 to come through the witness so they -- you can hear, so we can make a
10 record, because I dare say records are necessary for appeals.
11 JUDGE ANTONETTI: [Interpretation] Very well. Mr. Karnavas, we
12 have heard you and duly noted what you said.
13 The Trial Chamber spent almost two months thinking about this
14 independently of the request for provisional freedom that also took a lot
15 of our time. We have been working on this for two months extensively,
16 starting with your witness list. For your first list you were asking for
17 66 hours and for your list number two 62 hours, and we assessed every --
18 each and every witness, and in the framework of this -- of what we've
19 done, reducing time for witnesses -- let me give you an example. The
21 know if you've asked protective measures but I will not give his name.
22 You had planned for eight hours. The London conference we've spent hours
23 talking about it, hours and hours and hours, and you needed another eight
24 hours? We believed and estimated that four hours was plenty.
25 So altogether with 80 hours, we're talking about your witnesses
1 for about 300 hours. 80 hours for you, 80 hours for Prosecution, 40
2 hours for cross-examination, questions from the Bench, procedural
3 incidents, and so on. Altogether we've spent 300 hours we estimated, 50
4 hours for the witnesses, 30 hours for your client. And your client will
5 testify. You can go back on the London
6 the visas granted to refugees, on the ABiH and so forth and so on.
7 In my own jurisdiction, let me tell you in my own jurisdiction
8 five or six hours would have been enough to complete all this, and you
9 have 20 times, 30 times more time. What do you want? What can I say?
10 That's the first thing.
11 Second thing, Prosecution had 300 hours altogether, and this was
12 confirmed by the Appeals Chamber. So Defence has 300 hours. That gives
13 us two years altogether. We're in this Tribunal for two more years.
14 So giving you 120 hours, fine. Two hundred hours while we're at
15 it, but we'd need eternity in this Tribunal and unfortunately we don't
16 have eternal in front of us so we have to stop things at one point in
18 MR. KARNAVAS: Mr. President --
19 JUDGE TRECHSEL: Sorry. I propose that we do not carry out now a
20 discussion. The President has allocated ten minutes to each of the teams
21 and it's already only 40 minutes. In some way you will get an answer for
23 MR. KARNAVAS: I don't want an answer without a record because
24 I'm entitled to reply because the gentleman that he has singled out is
25 perhaps one of the most -- it's not just about that conference. He's
1 been -- in the entire period of the indictment he's involved in these
2 issues. His name has popped up. There are all sorts of exhibits.
3 That's number one. And number two as far as the French system you have
4 an investigative judge and you have a dossier. We don't have that here.
5 There lies the problem.
6 JUDGE TRECHSEL: Mr. Karnavas, I'm sorry. If you want to discuss
7 every witness we are here for the rest of this week.
8 MR. KARNAVAS: I wanted to rely.
9 JUDGE TRECHSEL: Yeah. Yeah.
10 MR. KARNAVAS: I wanted to reply. I wanted to reply because one
11 is singled out, and you say, Well, the London conference. It's not just
12 about the London
13 and I've heard repeatedly from even you, Judge Trechsel, that I would
14 have sufficient time. You're not giving me sufficient time. That's the
15 problem that I'm having. That's why I'm getting excited. That's why I
16 think must go to my client and say, "Stay in your cell, boycott this
17 procedure." This is not fair. Eighty hours is not fair no matter how
18 you slight it and dice it. We all want to go home but we want a fair
20 JUDGE ANTONETTI: [Interpretation] Very well. Let's hear now from
22 MS. NOZICA: [Interpretation] I don't want to repeat some of the
23 things my colleague has already said, but I must say that we fully agree
24 with his position that we had estimated our time in a highly restrictive
25 manner. I must say on behalf of Mr. Stojic's Defence that our estimates
1 were restrictive. They were below the minimum. Bearing in mind
2 throughout this problem of time constraint, this pressure, in my view, I
3 will say this for the first and only time perhaps, has reached an absurd
4 level when my distinguished Judge Prandler says that I will refrain from
5 procedural objections. For us procedural objections by the learned
6 Judges are of the greatest importance. These objections contribute to
7 the quality of this trial. If we go so far as to refrain from objecting,
8 then the only factor is time, and if time is the only factor, then we
9 cannot have a fair trial.
10 Mr. Stojic's Defence asked for 68 hours. Their Honours had
11 occasion to see that we envisaged a certain number of witnesses, that
12 even though there are several of them who will be speaking about similar
13 issues, they will not comment on the same facts. We were highly
14 restrictive bearing in mind this pressure of time, and we envisaged a
15 minimum, a necessary minimum.
16 I am additionally disturbed today if out of the 54 hours proposed
17 by the Trial Chamber I have to reserve for myself 10 hours for the
18 examination of other witnesses who might confirm some of my thesis in the
19 Defence case, then I must radically change the minimum amount of time I
20 have requested.
21 I wish to appeal to the Trial Chamber to reconsider their
22 decision bearing in mind only one additional fact, and that is that the
23 Prosecution through their submissions tendered one-third of the exhibits.
24 That is their right. We will have the same right. The Prosecutor did so
25 because they were also suffering under the pressure of time, but the
1 Defence has the additional pressure of all the witnesses that will be
2 coming here to rebut those exhibits. Almost a third of those exhibits
3 need to be challenged through our witnesses.
4 Your Honours, you have seen the list of witnesses for Mr. Stojic,
5 and you have seen the exhibits that will be produced through those
6 witnesses, but we were not obliged to put on the 65 ter list the exhibits
7 that we will be showing the witnesses. You have seen how the witnesses
8 are structured. They are mostly witnesses who worked in the defence
9 department, and through each of those witnesses we will be checking out
10 certain allegations that are already in the exhibits that have been
11 admitted. The very number of documents given is not sufficient to judge
12 where -- how much time is needed. Therefore, I appeal to Your Honours to
13 reconsider once again, especially as we need to reserve time for the
14 witnesses of other Defence teams, because I think that we were highly --
15 very fair in our estimates of time.
16 MR. KOVACIC: Thank you, Your Honour.
17 JUDGE ANTONETTI: [Interpretation] D3. I'm terribly sorry.
18 JUDGE PRANDLER: I would like to make a statement because
19 actually Ms. Nozica has referred to my statement as a kind of antonym
20 argument. So therefore I have to underline the following: She said that
21 I was saying in line 17, page 87, that I asked you to refrain, that you
22 should refrain from procedural objections, and it was actually written
23 there in the transcript. So I would like to say that I have not said
24 this, and I have not talked about this kind of refraining from procedural
25 objections. What I was saying, referring to the fact that during these
1 last two years we have used 22 per cent of our time for procedural
2 questions, that we have to do something just to leave more time to you,
3 to the Defence, to do its business, and if we are taking away 22 per cent
4 for procedural questions of the whole time, then of course less time is
5 going to be given to the Defence and to all of us.
6 So it has been my point, and therefore I would like to repeat
7 that I have never said this. On the contrary. I did refer to Article 20
8 of the Statute of ours, and of course we recall that paragraph 1 of
9 Article 20 speaks about it, what I did refer to, that the Trial Chambers
10 shall ensure that the trial is fair and expeditious and that proceedings
11 are conducted in accordance with the Rules of Procedure and Evidence, et
12 cetera, and I -- again why I wanted to refer to this Article of the
13 Statute is that definitely this Chamber, myself, and all my fellow Judges
14 are for this Rule, and therefore I wouldn't like to -- to be -- you to
15 misread my own position on that matter. Thank you.
16 MS. NOZICA: [Interpretation] Your Honour, just one sentence.
17 Quotation marks are missing from the transcript. I didn't say that Your
18 Honour said that we must refrain from procedural objections. I said that
19 he said that he would refrain from procedural objections, and I expressed
20 regret because I think every procedural issue discussed by the Chamber,
21 whether it comes from the Chamber or the parties, can certainly
22 contribute to the quality of the proceedings. I'm afraid that the
23 interpretation was wrong. That's all I wanted to say.
24 JUDGE ANTONETTI: [Interpretation] Mr. Kovacic.
25 MR. KOVACIC: Thank you, Your Honour, I will continue this time
1 on English because I have prepared paper and because of terminology it
2 would be probably easier or more correct.
3 I will not go too much into the law. We all know the basic
4 guarantees of the Statute and as well as appropriate norms of -- of the
5 Rules. However, when it comes to the law, I would like to refer to
6 Appeals Chamber in Oric. This is a decision on length of Defence case
7 from 20 July 2005
8 First, the Appeals Chamber says: "Equality of arms obligates a
9 judicial body to ensure that neither party is put at disadvantage when
10 presenting its case. The Trial Chamber's order limiting the accused in
11 this case to approximately 27 days of direct testimony after 100 days
12 used by the Prosecution. The Appeals Chamber held that the disparity in
13 this instance is so great that no specific prejudice need to be shown in
14 order for them to overturn the decision by the Trial Chamber."
15 And this is the law, and I think this is established law on this
17 What is Praljak Defence strategy? What is our goal, and what is
18 our task? What we should do in the Defence case? It could be put very
20 First, we must respond to Prosecution approach of selective use
21 of facts and evidence.
22 Second, and this is specific Defence goal, a complete -- we must
23 provide a complete picture regarding defendant which, if nothing else,
24 means actus reus
25 or accounts.
1 To use a metaphor which my distinguished colleague invented, I
2 should say, the Prosecution's approach has been to take a penlight into a
3 dark room and illuminate a few aspects of what lies in the room, and with
4 those carefully selected aspects tell a story of a vast conspiracy which
5 implicates my client.
6 Our strategy, Defence strategy, is not to pick over those same
7 items but to light the room as best we can, to provide the complete
8 picture surrounding my client which contradicts in holistic and
9 comprehensive sense the supposed vast conspiracy connected to my client
10 which the Prosecution alleges is implied by the evidence it has
11 selectively put forward. And this is our strategy, and this is our
13 A couple of words on the issue of law as applied to the facts, or
14 in other words, opportunity to present Praljak Defence.
15 Proposed reduction of time, by "proposed" I mean on intentions
16 you put on paper, would violate the principle of the equality of arms and
17 lead to miscarriage of justice. The amount of time allocated to Praljak
18 Defence is not reasonably proportional to the fair opportunity to present
19 this case.
20 Next, the Appeals Chamber in Oric held that: "Although Rule 73
21 ter gives the Trial Chamber the authority to limit the length of time and
22 number of witnesses allocated to the Defence case, such restrictions are
23 always subject to the general requirement that the rights of the accused
24 pursuant to Article 21 of the Statute of the Tribunal be respected."
25 And third, Your Honours intend to allow us a mere 17 per cent of
1 the time the Prosecution used in its case. We know from the Appeals
2 Chamber that 27 per cent in a much simpler case, which was in Oric, was
3 considered so disproportionate that the Appeals Chamber dismissed it out
4 of hand.
5 The fact that there are other accused in this case does not
6 suffice to bridge the enormous gap between the Prosecution's time and the
7 time proposed for the Praljak Defence. The reasons are the following:
8 Having co-accused is not a condition most accused wish for. We didn't
9 choose it; the Prosecution did.
10 Next, procedural position is -- procedural position of an accused
11 and his right to defence guaranteed by the Statute must not be limited
12 regardless of the number of co-accused in the case. In multi-accused
13 case, each of the accused must have the same rights as they would have if
14 they were accused alone.
15 And the last point on this issue, Your Honours may rule that
16 certain items are duplicative of evidence already presented and thus
17 shorten our time, but that must be done on a case-by-case basis, not a
18 priori by limitation of time to present evidence in defence.
19 Being aware of time constraints in preparing a scope of Defence
20 evidence, i.e., Rule 65 ter (G) lists, Praljak Defence was extremely
21 selective, and I'm referring your attention to paragraph 5 of our 31st
22 March submission where we explain our position.
23 We have been planning to use Rule 92 ter -- bis -- or bis
24 mechanism very extensively in order to contribute to the efficiency of
25 the trial. This is clearly demonstrated by the fact that only 22
1 witnesses in such a big indictment have been planned as viva voce
2 witnesses, 38 witnesses as 92 ter and quater witnesses, and 156 witnesses
3 as 92 bis witnesses. This shows something.
4 This simply -- the Trial Chamber intends to allocate to Praljak
5 only 52 per cent of the time requested by Rule 65 ter submission. This
6 simply cannot be done by abandoning some crucial evidence. This is close
7 to mission impossible. This would result in a clear and substantial
8 breach of the defendant's rights guaranteed by the Tribunal Statute and
10 In conclusion, Praljak Defence requests a total of 97 hours for
11 presentation of the Defence case depending on the realisation of the
12 plans of other co-accused. Praljak defence will do whatever is necessary
13 in order to avoid repetitive or irrelevant evidence, and that is my
14 submission, Your Honour. Thank you.
15 JUDGE ANTONETTI: [Interpretation] Thank you very much,
16 Mr. Petkovic.
17 MS. ALABURIC: [Interpretation] Your Honours, allow me first of
18 all to compare the times planned here for particular Defence teams with
19 the time that was given to the Prosecution. All the Defence teams
20 together should be allocated to 301 and a half hours. At the same time,
21 the Prosecutor had a relatively more significant amount of time. At this
22 moment it is really not relevant whether the Prosecution has used the
23 time or not. We believe that this ratio between the time given to the
24 Prosecution and the six Defence teams together is not fair and that it
25 constitutes the breach of the rights of the accused to defence.
1 JUDGE ANTONETTI: [Interpretation] Ms. Alaburic, one correction.
2 The exact time for the -- allocated to the Prosecution was 217 hours.
3 297, correction.
4 MS. ALABURIC: [Interpretation] Your Honours --
5 JUDGE ANTONETTI: [Interpretation] And the Trial Chamber had
6 reduced the time that the Prosecution had requested and the Appeals
7 Chamber confirmed to us this reduction of time, and then the Prosecution
8 had requested additional -- an additional time of 27 hours or something
9 to that effect which was granted to them.
10 MS. ALABURIC: [Interpretation] Yes, precisely so, Your Honours.
11 And when you add up all the times, the Prosecution had at its disposal
12 319 hours, and the fact is that the Prosecution has not used all those
13 hours as a matter of certain circumstances or a conscious decision on the
14 part of the Prosecution.
15 If the Prosecution's time is compared with the times planned for
16 the Defence teams and in this particular moment I'm only interested in
17 the time allocated for general Petkovic's defence, we can see that this
18 allocation of time would not have been allocated to General Petkovic if
19 he was the only accused before the Trial Chamber, which constitutes a
20 breach of Rule 82 of the rules of evidence which says that the accused in
21 joint trials have the same rights and enjoy the same rights as in the
22 case of single accused.
23 This does not allow for a fair trial either for the
24 General Petkovic or his co-accused. And within that context I would like
25 to remind the Trial Chamber of your own words, and I would like to
1 paraphrase not in the same way as my learned friend Karnavas did.
2 In the Prosecution case the Defence teams often complained about
3 the times that was given to them for cross-examination of Prosecution
4 witnesses. We always complained about a lack of time to challenge the
5 Prosecutor's allegations, and we also complained that we did not have the
6 time to try and analyse or comment the evidence presented to us by the
7 Prosecution through certain witnesses.
8 In explaining the allocated time, the Trial Chamber as a rule
9 would tell us you would have enough time during your cases to challenge
10 all what the Prosecution has alleged and also comment upon the documents
11 that have been presented by the Prosecution.
12 I would like to point out at this moment that when allocating
13 times to certain Defence teams it doesn't really matter only how many
14 witnesses have been envisaged by a certain Defence team and how much
15 evidence, but it is also important to allow the Defence times to the
16 extent they deem relevant to challenge the Prosecution case and present
17 to the Trial Chamber in a different way the documents that have already
18 been admitted into evidence as tendered by the Prosecution.
19 Further on, if we analyse the Prosecution case, we will see that
20 most of the Prosecution witnesses as a rule were those that through which
21 documentary evidence was presented to the Trial Chamber, and this
22 evidence was then admitted into evidence. This will certainly be
23 expected from the Defence teams, and as may be seen from our list, the
24 Defence teams have prepared their -- their cases in a similar way.
25 That's why when calculating the time one should bear in mind how many
1 documents that are relevant for the case will be tendered into evidence
2 by the Defence teams. And it is very easy to make a calculation as to
3 how much within the 50 hours allocated time could be presented to the
4 Trial Chamber without hearing the witnesses.
5 I'm talking about 300 documents, which is approximately one-tenth
6 or one-twentieth of the documents that particular Defence teams have
7 planned to present in this courtroom.
8 If a Defence team is to be allowed to tender documents in the
9 same way the Prosecution did, then the Defence team should be allowed
10 more time than has been envisaged in the draft decision of the Honourable
12 Moreover, the Defence teams should be allowed to bring witnesses
13 that will support the Defence case to explain not only where the accused
14 were, what they did, what their knowledge and intentions were, but also
15 they have would to have an opportunity to explain about the body where
16 the accused work, how that body worked, and as General Praljak would put
17 it, they would also have to be able to present the situation on the
18 ground, the abilities or impossibilities to work in one way or another as
19 would normally be expected in a society where there are established rules
20 of behaviour and where there is a highly developed democracy.
21 Faced with the social changes that were taking place in
22 Bosnia-Herzegovina at the beginning of the 1990s, and now I'm going to
23 say something that is not disputed in the sociology of war, such social
24 changes and destruction of the former political social systems takes
25 place that it takes years upon years to establish new rules of the game.
1 We're trying individuals for acting or not acting in a certain
2 way and for events in which they did not have a role to play in the
3 moments of such a social breakdown when there were no judicial or any
4 other social bodies which could be expected to act in a way they would
5 normally do in developed democracies and stable systems.
6 In order to explain all that to the Trial Chamber, we really do
7 need a relatively more time than has been planned in draft decision. The
8 Defence for General Petkovic has tried to reduce both the number of
9 witnesses and the times allocated to them and I believe that our requests
10 should be adopted because the witnesses that we propose and the topics
11 that they will talk about go to all the counts in the indictment that all
12 concern the military and military commanders. Believe -- we believe that
13 these topics are of significance for all the accused, and we want to
14 demonstrate that by -- that when creating the HVO army and conducting
15 certain combat activities there was no criminal intent or a joint
16 criminal enterprise that our accused are charged with in the indictment.
17 That's why we're asking the Trial Chamber to consider the
18 possibility to take into consideration our proposal for the maximum of
19 allocated time, and if not, then we hope that any decision will be
20 explained in a sufficient measure to allow us to understand all the
21 restrictions so that if we deem that there is grounds for appeal that we
22 should be able to appeal any such decision.
23 Thank you very much.
24 JUDGE ANTONETTI: [Interpretation] [Previous translation
25 continues] ... for Mr. Coric.
1 MS. TOMASEGOVIC TOMIC: [Interpretation] Thank you, Your Honour.
2 I we will not repeat what we heard from my predecessors said. I can only
3 say that I agree with all of them and join them in their motions. As far
4 as the Coric Defence is concerned I would like to say the following.
5 When we were putting together our lists, we tried to reduce the number of
6 witnesses and the time needed to hear them in the courtroom and we have
7 tried to rationalise this in the best possible way and to reduce the time
8 to a minimum.
9 A majority of our witnesses is not a majority but all of them are
10 viva voce witnesses. They are viva voce not because we did not want them
11 to be 92 ter or 92 bis witnesses but because all these witnesses held
12 such positions and possessed such knowledge which entitles them to
13 testify not only about the documents that we have on our 65 ter list but
14 also about those documents that have already been admitted into evidence
15 in -- during the Prosecution case. That is why we have very little room
16 for manoeuvre and very little space to adapt to such a curtailed time.
17 The only way for us to hear these witnesses or to deal with these
18 witnesses is to give up on a number of them, and we, just like my learned
19 friend Karnavas had talked to a much larger number of people than are on
20 my list now, so we have already reduced our numbers and we can't go any
21 further than that, or alternatively we could hear some of them as 92 ter
22 witnesses instead of viva voce but this creates a problem.
23 If we introduce a witness as a 92 ter witness then the number of
24 documents that we can hear with the witness is limited, and we can
25 certainly not comment upon all those documents that have already been
1 admitted into evidence if we opt for these witnesses to be 92 ter.
2 This much from the Coric Defence. I would only kindly ask you to
3 take all our arguments together with the arguments that were presented so
4 far into consideration. Thank you very much.
5 MR. IBRISIMOVIC: [Interpretation] Thank you, Mr. President. We
6 asked for 22 and a half hours for Mr. Pusic's Defence and the Trial
7 Chamber agreed with that and we're satisfied that our interests at this
8 moment are well-served and we have no objections to the time allocated to
9 us for the Pusic Defence.
10 JUDGE ANTONETTI: [Interpretation] The Trial Chamber will
11 deliberate --
12 MR. SCOTT: Excuse me, Your Honour.
13 JUDGE ANTONETTI: [Interpretation] -- to set the time. We've
14 taken note of what you've said.
15 Mr. Scott is going to give us his pointed of view as well.
16 MR. SCOTT: Thank you, Your Honour. I'm happy that the Chamber
17 was going to allow the Prosecution some time to be heard on this issue.
18 Your Honour, very briefly. Everyone in this courtroom knows that
19 time has been an issue in this case for a very, very long time, and it
20 was the Prosecution case -- Prosecution which has the burden of proof,
21 the Prosecution which has the obligation to the victims of this case, to
22 the international community, and to the professional carrying out of its
23 functions, to present its case in a professional way and with those heavy
24 obligations in mind.
25 Having said that, the Chamber cut the Prosecution case
1 substantially. We had originally asked the Chamber for 450 hours, 450
2 hours. It was then initially cut to 290 -- 293 hours, which was about 65
3 per cent of the time we had asked for. Then we asked for some additional
4 time toward the end of our case, and although the Chamber granted it, we
5 actually wound up using 296 hours and 25 minutes. We'll call that 297
7 My very good friend Ms. Alaburic is not correct when she says
8 that we simply made a decision that Prosecution didn't use all the time
9 allowed and not using the entire 23 hours. What the record will plainly
10 show is that the Chamber in addition to the hours allocated also set a
11 date certain for the determination of the Prosecution case on the 24th of
12 January, 2008, and I'm sure that everyone in the courtroom will recall
13 that I very carefully and very deliberately did not rest the Prosecution
14 case. I did not say the Prosecution had no other evidence to present. I
15 did not say we had completed the Prosecution case. The time expired.
16 The Chamber had a stopwatch set for the 24th of January, 2008. We
17 reached 2008. The Prosecution sat down, walked out. The door was
18 closed. That was the end of the Prosecution case. We did not rest but
19 that was the time that the Chamber had given us.
20 I also refer to the Oric case, the decision that's been used and
21 the decision of the Appeals Chamber from the 20th of July, 2005. This
22 particular pertinent language has not been referenced just yet. On page
23 6, paragraph 7 of the Appeals Chamber's decision written and signed by
24 Judge Meron: "At a minimum equality of arms obligates a judicial body to
25 ensure that neither party," I emphasise the word "neither," that includes
1 the Prosecution, "that neither party is put at a disadvantage when
2 presenting its case, certainly in terms of procedural equity. This is
3 not to say, however, that an accused is necessarily entitled to precisely
4 the same amount of time or the same number of witnesses as the
5 Prosecution. The Prosecution has the burden of telling an entire story
6 or putting together a coherent narrative and proving every necessary
7 element of the crimes charged beyond a reasonable doubt. Defence
8 strategy by contrast," and this is not Ken Scott speaking, I'm quoting
9 the Appeals Chamber, "Defence strategy by contrast often focuses on
10 poking specifically targeted holes in the Prosecution case, an endeavour
11 which may require less time and fewer witnesses. This is sufficient
12 reason to explain why a principle of basic proportionality rather than a
13 strict principle of mathematical equality generally governs the
14 relationship between the time and witnesses allocated to the two sides."
15 The Prosecution, Your Honour, is never going to argue that if you
16 give a few additional hours to the Defence we got 293, they get 302, they
17 get 310, Prosecution is never going to argue about such a few additional
18 hours, but, and I have -- given the history of this case, I have to make
19 it very clear if the -- if the Chamber were to give the Defence
20 substantially greater time than it gave to the Prosecution in this case,
21 it would be a fundamental miscarriage of justice. It would not be fair
22 to the victims in the case -- in this case. It would not be fair to the
23 Prosecution. It would not be fair to international community and serious
24 question would have to be given if the trial could go forward under such
25 a cloud of such unfairness.
1 Thank you.
2 JUDGE ANTONETTI: [Interpretation] It's 7.00 p.m. The Judges will
3 review today's transcript. We'll issue a decision very shortly. The
4 parties will be in a position to view our decision. That's all I have to
6 Of course we ask the D1 team to send us their witness list very
7 shortly because we'll be starting on the 5th of May, in two weeks.
8 Have a pleasant evening, and we'll meet again on the 5th of May.
9 --- Whereupon the hearing adjourned at 7.00 p.m.
10 to be reconvened on Monday, the 5th day
11 of May, 2008, at 2.15 p.m.