080609ED

Tribunal Criminal Tribunal for the Former Yugoslavia

Page 29243

1 Monday, 9 June 2008

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 2.23 p.m.

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

6 case.

7 THE REGISTRAR: Good afternoon, Your Honours. Good afternoon,

8 everyone in and around the courtroom. This is case number IT-04-74-T,

9 the Prosecutor versus Prlic et al. Thank you, Your Honours.

10 JUDGE ANTONETTI: [Interpretation] Thank you.

11 Today is Monday. Good afternoon to the accused, to the Defence

12 counsel, to the Prosecution, and to everyone assisting us. We are

13 starting with a slight delay because the previous hearing ended with some

14 delay as well. That's why we've lost some time already.

15 I'm going now to deliver two oral rulings. The first one relates

16 to the procedure to be followed in terms of presentation of documents by

17 the Defence, documents that are not listed on the 65 ter list.

18 The Trial Chamber has noted that on several occasions at the

19 hearing, the Prlic Defence used documents that were not listed on its 65

20 ter (G) list, and that the Prlic Defence subsequently requested for these

21 documents to be added to the list in writing. In order to avoid any new

22 such applications, the Trial Chamber would like to specify the following.

23 The Trial Chamber rules that the principles outlined in its oral decision

24 of 21st of August, 2006, French transcript pages 5167 and 5168, a

25 decision related to the submission at the hearing of documents not listed

Page 29244

1 on the 65 ter list of the Prosecution, these principles should also apply

2 to the Defence. In order to allow for a proper preparation of

3 cross-examination and to guarantee a good administration of justice, the

4 party leading the examination-in-chief should as a matter of principle

5 only submit to the witness documents that have been listed on its 65 ter

6 (G) list. Any other document should only be submitted to the witness if

7 this document proves to be absolutely essential for the case. In such

8 cases, as a matter of principle, two weeks before the testimony of the

9 witness the Defence should specify which documents it intends to submit

10 to the witness and that are not listed on its 65 ter list. Then at the

11 hearing, as these documents are being submitted to the witness, the

12 Defence should inform the Chamber that such documents had not been listed

13 on its 65 ter list, and the Defence should justify its request for these

14 documents to be added to its list, and it should also justify the late

15 disclosure of these documents.

16 The Prosecution and the other Defence teams will then have to

17 specify whether they challenge the application or not, and the Chamber

18 will then make its determination.

19 This was the first decision. Let me move on to the second one,

20 oral decision related to the nature of cross-examination of Zdravko

21 Sancevic by the Praljak Defence.

22 At the hearing of the 27th of May, 2008, the accused Praljak

23 cross-examined Witness Zdravko Sancevic, a witness called by the Prlic

24 Defence, for two minutes. The accused Praljak put questions about four

25 maps related to military activities in Bosnia and Herzegovina, maps to be

Page 29245

1 found in a book published by the witness. At the hearing of 27th of May,

2 2008, the Trial Chamber unanimously allowed the accused Praljak to put

3 questions to the witness about this matter, but the Trial Chamber also

4 ruled that since the matter of military operations in Bosnia and

5 Herzegovina had not been raised during direct examination, then according

6 to guide-line number 6, paragraph 20, the time used by the accused

7 Praljak should be deducted from the overall amount of time allocated to

8 the Praljak Defence to present its case.

9 The Trial Chamber maintains its ruling and confirms that the time

10 used by the accused Praljak to cross-examine Zdravko Sancevic is to be

11 deducted from the time allocated to the Praljak Defence to present its

12 case, and that's a total of two minutes to be deducted. Judge Trechsel

13 wants to deliver a separate opinion that goes along the same lines.

14 JUDGE TRECHSEL: Welcome to everyone in the courtroom. What I

15 wish to add to this decision is not really an individual opinion to which

16 the other Judges would not have agreed; it is rather an observation which

17 we have all made but which it would have been linguistically and

18 technically awkward to try to integrate into the other decision because

19 it is not really a decision. It is just an observation, but I must say

20 it is a critical observation.

21 If I may recall the situation when the permission for the accused

22 Praljak to ask questions personally arose, I am referring to page 28645

23 of the English transcript, and this would be line 19 where this starts.

24 Mr. Kovacic asked for Mr. Praljak to be given the floor. I quote: "As

25 you well know, I add he is a soldier; he participated directly in these

Page 29246

1 events; he is well-suited to put these questions, better equipped to do

2 it than the Defence counsel."

3 Now, there has been a bit of the usual discussion which I can

4 happily jump across, and I go a few pages later on page 52, the end

5 figures, where we have the four questions, and they were first: "Have

6 you got the maps?

7 "A. Yes, I have."

8 Second question by Mr. Praljak: "Well, yes, these are maps

9 number 20, 21, 22, 23. Did you yourself draw these maps?

10 "A. I am the author of these maps," is the answer.

11 Third question: "Did you yourself enter the text under the maps,

12 description of the maps as a key?

13 "A. I believe that is self-explanatory. An expert will

14 understand the map without reading the text. A mere glance at the map

15 explains a lot of things, but I myself can explain what I have drawn."

16 Fourth and last question: "Today, after all the experience that

17 you gained in Bosnia-Herzegovina as an ambassador and as a person of

18 knowledge, would you change anything in these maps as incorrect according

19 to what you know today? Are these maps correct, and do they depict

20 clearly what really happened over there?

21 "A. Let me put it this way: There is always room for

22 improvement, but I believe that these maps are valid even today.

23 "Thank you very much, Mr. Ambassador."

24 That's the end of it.

25 Now, I must confess that I find it very difficult to detect in

Page 29247

1 this bit of questioning anything, anything, which in any way far-fetching

2 as one might wish to be, requires expertise of any sort. The only

3 expertise required is that of counsel namely to know how to put questions

4 pertaining to a document. And it has later been said on page 28653 by

5 counsel: "This is our door for introducing this piece of evidence."

6 I cannot help but wondering whether this was a loyal, correct use

7 of the privilege that the Chamber has generously bestowed upon the

8 accused Praljak to personally put questions to the witnesses, and I think

9 that it might be good to recall that this is a right which is granted

10 exceptionally and that it should only really be used in cases where the

11 conditions arise. Thank you.

12 MR. KOVACIC: Your Honour.

13 JUDGE ANTONETTI: [Interpretation] Fine.

14 JUDGE TRECHSEL: There is no reply to decisions of the Court.

15 JUDGE ANTONETTI: [Interpretation] We are not going to start a

16 discussion. The Trial Chamber has made its determination.

17 Mr. Kovacic, please be seated.

18 MR. KOVACIC: [Interpretation] Of course, if I may, just three

19 words. Of course, I'm not going to discuss the discussion at all. It

20 never crossed my mind --

21 JUDGE ANTONETTI: [Interpretation] My colleague has stated that

22 there would be no discussion.

23 JUDGE TRECHSEL: You have said that you did not want to discuss

24 it, Mr. Kovacic.

25 MR. KOVACIC: Absolutely.

Page 29248

1 JUDGE TRECHSEL: So I think we can -- we will hear what you want

2 to say, as it is not an unruly dispute, but we're interested to hear.

3 MR. KOVACIC: [Interpretation] Absolutely, Your Honour. We know

4 the rules. We have heard the decision. We have heard what Judge

5 Trechsel added to that, and it never crossed my mind to discuss the

6 decision. However, in view of the observation or additional explanation

7 provided by Judge Trechsel, I would kindly ask for three minutes - not

8 now because that would be inappropriate - just in relation to one

9 particular observation. In a way it was said - at least that's the

10 impression one gets - that we practically misled the Trial Chamber when

11 we asked -- when I asked specifically for you to give permission to

12 General Praljak to put questions, and the questions were only the ones

13 that we heard, indeed, that His Honour Judge Trechsel quoted just a

14 minute ago; and then comes Judge Trechsel's comment that obviously for

15 those questions one did not need any kind of special professional

16 knowledge on the part of the accused. This could have been brought into

17 evidence in another way.

18 I can explain why, but that would mean dealing with this

19 decision, so I don't want to take up time for that. But I kindly ask

20 that towards the end of the hearing today or tomorrow you give me just a

21 few minutes to give four sentences by way of an explanation. I can also

22 write this up if you prefer, but we have directly been accused of having

23 misled the Trial Chamber intentionally. That never crossed my mind, that

24 never crossed my client's mind to mislead the Trial Chamber in any way,

25 because there are other scenarios that could have come out on the basis

Page 29249

1 of that question, so that's the core of the matter.

2 JUDGE TRECHSEL: I must correct you, Mr. Karnavas [sic]. In one

3 point you have certainly not directly been so accused, and it was not

4 really my intention to accuse you of having misled the Chamber. I can

5 understand that this was sort of an accident, but principes opsta [phoen]

6 as our Latin forebearers used to say, and that's why I allowed myself to

7 make the observation. But I do not want to say, I did not want to charge

8 anyone with having gone out to mislead the Chamber. You can be assured

9 of that.

10 MR. KOVACIC: [Interpretation] Your Honour, I fully accept that.

11 If that is what you said, that is the way I take it; however, I have to

12 say one thing. If in a week, a month, a year, five years, if someone

13 writing a serious paper reads part -- this part of the transcript, they

14 will note that the Trial Chamber actually believed that the Defence made

15 the Trial Chamber decide to have the accused put his questions on his own

16 and that the Defence then abused the trust vested in it by the

17 Trial Chamber. That is the impression that somebody's going to get in a

18 year or two or three. So I wish to present our justification. You have

19 been here long enough, Your Honour, to know what surprises may come up.

20 This was cross-examination. The witness did not have to respond the way

21 he did. He could have said, Hmm, I have no idea; I had no idea that

22 things like that happened in that part of the front line. Now, that is

23 where there is this difference between the knowledge that Praljak has who

24 was there, what walked there, who waged war there and me on the other

25 hand that read up on this and examined people about it in this courtroom

Page 29250

1 and so on.

2 So that was the point. Now it seems I am entering a polemic, and

3 that is not what I had intended. Thank you.

4 [Trial Chamber confers]

5 JUDGE ANTONETTI: [Interpretation] Mr. Praljak, we see that you

6 are on your feet. The Trial Chamber has deliberated. Your counsel has

7 said everything that was to be said. The Trial Chamber will not allow

8 you to take the floor. Today or tomorrow, your counsel will deal with

9 that matter again; then we'll examine this matter again, but not now.

10 That's all I can tell you, Mr. Praljak. We're going to draw down the

11 blinds because we need to bring in the witness.

12 Yes, Mr. Khan.

13 MR. KHAN: Your Honour, I'm most grateful. In relation to the

14 first oral decision regarding 65 ter, I think on behalf of all of us

15 we're grateful for the guidance provided by the Trial Chamber. We've

16 been informed by the -- your legal officer that of course the Prlic

17 Defence have four outstanding motions, which Your Honours will decide

18 upon in due course. I want to formally note that no response will be

19 filed by the Defence. However, we do note that no objection is taken in

20 relation to those motions; no prejudice is caused were Mr. Karnavas's

21 motions to be granted. And I've spoken to my learned friends counsel for

22 Mr. Coric and also counsel for Mr. Pusic. That is the position for all

23 three of us. There will be no formal response, but no objection at all

24 is taken to the motions put forward by my learned friend, and no

25 prejudice in the least is caused were those motions to be granted.

Page 29251

1 JUDGE ANTONETTI: [Interpretation] Fine.

2 Let's move into closed session, Mr. Registrar.

3 [Closed session]

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Page 29252

11 Pages 29252-29316 redacted. Closed session.

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