1 Monday, 6 October 2008
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.15 p.m.
5 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, could you call
6 the case, please.
7 THE REGISTRAR: Good afternoon, Your Honours. Good afternoon,
8 everyone in and around the courtroom.
9 This is case number IT-04-74-T, the Prosecutor versus Prlic
10 et al.
11 Thank you, Your Honours.
12 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Registrar.
13 Today, Monday, the 6th of October, 2008. I would like to first
14 of all greet the accused, the Defence teams, Mr. Stringer and his
15 associates, as well as all the those assisting us, including the Court
17 We have two rather lengthy decisions to render, so I'll take my
18 time to read them out.
19 The first decision:
20 Request for information concerning the request referred to by
21 Ms. Alaburic.
22 On the 11th of September, 2008, counsel for the accused Praljak
23 and Petkovic filed a written motion in which they asked the Trial Chamber
24 to re-examine an oral decision of the 4th of September, 2008. The
25 Defence is opposed to the Chamber authorising the Prosecution to put
1 questions to a witness in the course of the cross-examination if these
2 questions go beyond the scope of the examination-in-chief.
3 On the 25th of September, 2008, the Prosecution filed a response,
4 and on the 29th of September, 2008, the Defence teams filed their
6 At the hearing held on the 24th of September, 2008, the Petkovic
7 Defence stated that it was opposed to the Prosecution tendering certain
8 documents in the course of the cross-examination. The Defence says that
9 these documents related to the Prosecution's case and were not included
10 in the list of exhibits filed by the Prosecution pursuant to Rule 65 ter.
11 The Defence stated that they wanted to file a written request with regard
12 to this matter.
13 The Chamber notes that the two issues have to do with the same
14 subject; namely, the scope of cross-examination. As a result, the Trial
15 Chamber would like to deal with these matters together. This is the
16 reason for which the Chamber would like to know whether the Petkovic
17 Defence still intends to file a written request in relation to the
18 presentation of documents by the Prosecution in the course of the
19 cross-examination. If that is the case, the Trial Chamber is requesting
20 that this request be filed as expeditiously as possible and no later than
21 the 10th of October, 2008.
22 The Trial Chamber will wait to receive written submissions from
23 the Petkovic or Praljak Defence teams, and from any other Defence teams
24 if they so desire. This also concerns the Prosecution.
25 Now, for the second decision, I'll read it out slowly.
1 Oral decision concerning the testimony of Witness Zdravko
3 In a letter dated the 15th of September, 2008, the Prlic Defence
4 notified the other parties and the Trial Chamber that it wanted to call
5 Witness Zdravko Batinic from the 6th to the 9th of October, 2008.
6 On the 1st of October, 2008, the Prosecution requested that the
7 Trial Chamber dismiss the testimony of Zdravko Batinic or, alternatively,
8 to order the Prlic Defence to provide a detailed summary of the facts
9 with regard to which the witness would be testifying. On that very same
10 day, the Trial Chamber rendered an oral decision in which it requested
11 that the Prlic Defence file, by Friday, the 3rd of October, 2008, at the
12 latest, a more detailed 65 ter summary pursuant to Rule 65 ter (G)(i)(b)
13 of the Rules of Procedure.
14 On the 3rd of October, 2008, at 2.30 p.m. to be precise, the
15 Trial Chamber's legal officer sent an e-mail to the Prlic Defence, in
16 which it requested that they provide additional information. At 1800
17 hours on that very same day, the Prlic Defence responded in an e-mail and
18 said that it would comply with the request.
19 On the 4th and 5th of October, 2008, the Prlic Defence sent to
20 the Trial Chamber, by e-mail, and to the other parties as well, various
21 elements of information. At the present time, the Trial Chamber notes
22 that on the basis of the information received, the Prlic Defence was
23 satisfied by providing additional information with regard to the
24 political and professional background of the witness, as well as with
25 regard to the events that took place in Gornji Vakuf in January 1993, but
1 it did not attach a detailed 65 ter summary concerning the content of the
2 witness's testimony.
3 The Trial Chamber considers that the Prlic Defence has not
4 complied with the order to file by the order 3rd of October 2008 a
5 detailed summary of facts and subjects with regard to which the witness
6 was supposed to testify. This causes prejudice not only to the other
7 parties but also to the Trial Chamber.
8 Given that the Prlic Defence has failed to comply with the
9 request, this could be sanctioned, as stated by the Prosecution, by
10 refusing to hear the witness. However, such steps might be excessive,
11 since the witness has already travelled to The Hague, so a severe
12 sanction is necessary.
13 As a result, the Trial Chamber will reduce the time allocated for
14 the examination-in-chief of this witness to two hours. This means that
15 the other Defence teams will have an hour for the cross-examination and
16 the Prosecution will have two hours.
17 I forgot to give the floor to the Registrar. He has to give us
18 two IC numbers.
19 Mr. Registrar, you have the floor.
20 THE REGISTRAR: Thank you, Your Honour.
21 Some parties have submitted a list of documents to be tendered
22 through witness Palameta Miroslav. The list submitted by 1D shall be
23 given Exhibit number IC 00860, and the list submitted by the Prosecution
24 shall be given number IC 00861.
25 Thank you, Your Honours.
1 MR. STRINGER: Excuse me.
2 JUDGE ANTONETTI: [Interpretation] Just a minute. I'll give you
3 the floor in a minute. I haven't finished yet.
4 I also wanted to inform all the parties about the following.
5 The Security Council adopted a resolution last week extending the
6 term of office for permanent and ad litem Judges until the completion of
7 their trials, so our trial will finish when it has to finish, and it is
8 not necessary to take into account the completion strategy for this
9 Tribunal. This resolution is dated the 29th of September, 2008.
10 Mr. Karnavas.
11 MR. KARNAVAS: Thank you.
12 I take it from your last -- your response, then, Your Honours,
13 that the completion strategy has, in effect, been the driving force, the
14 engine behind many of the decisions by this Trial Chamber, which we have
15 indicated throughout the trial have been unfair and have resulted in our
16 client's rights being abused on various occasions, and I accept that
17 acknowledgment on your part and on the part of the Security Council; that
18 is, that they put upon -- they put pressure upon this Tribunal to meet a
19 completion strategy, as opposed to meet the interests of justice. That's
20 how I interpret that response.
21 But let me go back and respond to your decision.
22 First of all, I was assured that my witness would be here on
23 Thursday. Regrettably, he was not contacted by the Victims and Witness
24 Section until very late, and as a result he did not come in to The Hague
25 until Friday, and I was only able to see him at 2.00 on Friday afternoon.
1 Secondly, I don't know why the notice was given to the legal
2 officer so late. We had indicated earlier, but we had -- that we would
3 be meeting with the witness, but we did explain the reasons why we're
4 unable, at that point in time, to provide anything. I am sure the legal
5 officer -- in fact, I am dead sure that the legal officer was explained
6 the reasons why, and I didn't see that in the decision. So I point it
7 out as a fact. Perhaps you weren't aware of it.
8 Thirdly, based on what I hear from the Trial Chamber, the Trial
9 Chamber has now decided to institute a rule which is not in the current
10 Rules of Procedure and Evidence, and that is that summaries of witnesses'
11 statements are no longer summaries, but you are, in fact, asking us for
12 complete statements. That is unacceptable and, I think, needs to be
13 appealed. And, of course, we are at a disadvantage at this point, but
14 that's how I read it. It's the Trial Chamber trying to go through the
15 back door and trying to force all of the Defence of taking statements
16 when statements are not required. We find your collective decision,
17 unless it was a split decision, as many decisions have been made by this
18 Trial Chamber, we find it very regrettable, because we see this as
19 another attempt to appease the Prosecution at the expense of the Defence.
20 That's how I see it.
21 I believe that we provided all of the necessary information that
22 was required. We provided it on a basis of what is required and as
23 timely as we possibly could. We worked with the gentleman until
24 approximately 10.00 on Friday night, working through a working dinner as
25 well, and then on Saturday we began, and we took a pause in order for me
1 to type up the remarks, keeping in mind that there is translation, it
2 takes time, and then also running the details back with the witness to
3 make sure that we don't overstate or understate any particular facts
4 which would come back later to haunt us. Sunday, we did the same thing.
5 As soon as we learned more information, we took a pause and we provided
6 that information.
7 Now, I take it you've made your decision. I'm not going to ask
8 you to overturn your decision, but in light of the fact that, as I
9 understand it, with all due respect to all members of the Trial Chamber,
10 that your experience as trial lawyers is limited in understanding what it
11 takes to put together a direct examination or a cross-examination, and
12 you're limiting my time, that now I'm unable to go forward today. That
13 should be well understood by anyone of experience, because now I have to
14 rationalise and cut four hours into two.
15 So given your decision, I'm unable to go forward. It would be
16 ineffective assistance of counsel. You would be forcing me to violate my
17 oath of ethics and professional responsibility. You would be asking me
18 to violate Dr. Jadranko Prlic's rights, which he does have rights, and
19 I'm not about to waive them. I'm not in a position to waive those
20 rights, nor will I accept his waiver, because I think this is not
21 something that is -- that can be waived so easily, and therefore we would
22 ask that the proceedings be suspected until tomorrow, at which time I
23 could then meet with the witness again, rationalise our testimony -- the
24 testimony of the witness in order to comply with your -- with your
1 And with that, I have no intention of standing up and directing
2 this witness, based on this decision. I will not be forced to conduct
3 this trial as if it is some sort of a charade. I cannot go forward with
4 this important testimony on two hours on the drop of a hat, and I say
5 this with all due respect. And that is my final position. If you wish
6 to sanction me, go ahead.
7 I think I acted in every professional manner that a lawyer can
8 possibly act under the circumstances, and I find it regrettable that the
9 members of the Trial Chamber simply fail to understand what it takes to
10 prepare a witness to be directed, under short deadlines, with lots of
11 documents, a complex story, and I see what is happening. This is not
12 against Prlic. This is for all the other accused, and the marker has
13 been set -- put down by the Trial Chamber. You are demanding statements.
14 And if that is the case, then you should come out clearly and squarely
15 and say it, not beat about the bush. And for those of us who are willing
16 to provide statements, and I'm perfectly happy to do so, then give us one
17 month, one month, of a delay so we can go out and take statements,
18 because that's what is required. I cannot have somebody else take a
19 statement for a witness.
20 Now that we know the documents that we want to put forward with
21 each witness, we have to go there and sit two or three days with the
22 witness in order to prepare them for a statement. That's what it takes.
23 And I say this with all due regret, because it seems to me that
24 there is a lack of appreciation of the craft of trial advocacy.
25 I have nothing further.
1 JUDGE ANTONETTI: [Interpretation] Mr. Karnavas, I'll give the
2 floor to Mr. Stringer, but first there are two things I would like to
3 say. I think my colleagues will share this opinion.
4 We don't want to receive a statement, perhaps there's an
5 erroneous use of terms. We want a detailed summary, not a statement, a
6 summary that is detailed.
7 Secondly, while you were addressing us, I went through the 42
8 documents very rapidly. I was made aware of them a few minutes ago.
9 Most of the documents have to do with Gornji Vakuf municipality, the
10 manner in which the municipality operated, issues concerning the
11 Territorial Defence, the various issues that we have discussed at length
12 with regard to various municipalities, so it would be interesting to know
13 how things worked in Gornji Vakuf.
14 In the light of the documents that we have, I assume that your
15 examination-in-chief will have to do with how the municipality and the
16 crisis cell and the HVO in Gornji Vakuf functioned, and so on and so
17 forth, so these are subjects that are very well known. This isn't the
18 first time that we have encountered this kind of problem.
19 A long time ago, the Trial Chamber told you that we would be
20 requesting detailed summaries because we have had some difficulty in
21 determining the time that should be allocated for each Defence team. And
22 given what you have said a minute ago, we weren't under the pressure of
23 the completion strategy when we took our decision. It was on the basis
24 of the summary. So it's on the base of the summary on the base of a
25 certain number of facts that we allocated a certain amount of time for
1 the examination-in-chief, and this is how you were allocated 95 hours, if
2 I'm not mistaken. A long time ago, I said that the preparation for the
3 Defence shouldn't be done at the last minute, it should be done at the
4 pre-trial stage, that you should start preparing this at the pre-trial
5 stage. I don't have all the transcripts of the pre-trial stage, but if
6 my memory doesn't fail me, that that's what I said much.
7 I know you have a lot of difficulties to face. The task is
8 immense, your task, and I'm well aware of your enormous workload and the
9 amount of time you must have spent to prepare for this witness, but I
10 have already said, and I have said this on a number of occasions, that
11 when you want to call a witness, you have the possibility of telling
12 Mr. X that you want to call that witness for the Prlic Defence, and you
13 could request a memo regarding what the witness might say about your
14 client. The witness could then give you a memo and tell you, in writing,
15 about subjects he intends to address. And on that basis, on the basis of
16 the documents, you can compile a summary which covers, roughly speaking,
17 the issues that the witness will be testifying about.
18 I know that you do have a lot of witnesses to deal with. It's
19 very difficult to carry out this task. I'm well aware of the
20 difficulties that you face.
21 You may have noted that last week, on a number of occasions, you
22 were told to do your best. The Prosecution wants us to cancel the
23 hearing for next week, and I asked you to act so that the Prosecution and
24 the Chamber could have a full summary, a detailed summary. We couldn't
25 know that your witness had difficulties in coming here. We thought he
1 would come earlier. He came later. We were told, or, rather, informed
2 about this, although we didn't mention this in the oral decision. But
3 this morning, when we were deliberating, this was a factor that was taken
4 into account.
5 You are asking for us to start hearing this witness tomorrow so
6 that you can prepare for your examination, so that you can rework your
7 examination. The Judges have to discuss that. Why not?
8 But I think that Mr. Stringer has something to say, because this
9 concerns him too, and this issue has arised because of the Prosecution.
10 Mr. Stringer, I give you the floor.
11 MR. STRINGER: Thank you, Mr. President, and good afternoon to
12 you, good afternoon to Your Honours, Counsel, and all the other people
13 around the courtroom today.
14 I first wanted to make one very brief comment with respect to the
15 first ruling issued by the Trial Chamber this afternoon in respect of the
16 issues previously raised by counsel for Mr. Petkovic and the deadline
17 that the Trial Chamber has issued for filing a written submission by the
18 Petkovic Defence in respect of the issue of documents on
19 cross-examination. Just to make clear, I'm assuming that the Trial
20 Chamber understands that the Prosecution will want to file a written
21 response to that submission, in the same way that it filed a response to
22 the other related issue that is already before the Trial Chamber on that.
23 So we would certainly be anxious to see the Defence submissions on this,
24 and the Prosecution would then intend to file a written response as well.
25 And then in respect of the current witness, Mr. President, just a
1 very few brief comments.
2 I disagree with counsel. Rather, I do agree with what you've
3 said already, Mr. President. We don't understand the Trial Chamber's
4 ruling today as one that requires the Defence or any Defence team to make
5 a witness statement, per se. And, in fact, I think the Tribunal's rules
6 and jurisprudence are against that. However, the Tribunal's Rules very
7 clearly state that each party, whether the Prosecution or the Defence,
8 has to provide the other parties with witness summaries under Rule
9 65 ter. And we also know, and the Prosecution has briefed on several
10 occasions, what that means under the jurisprudence of the Tribunal, and I
11 won't repeat the jurisprudence because we all know it. But, in any
12 event, we don't understand the Trial Chamber's ruling today as requiring
13 a witness statement. Rather, it's simply a reiteration of its own
14 previous rulings as well as the jurisprudence of this Tribunal, which
15 requires sufficient witness summaries be provided under Rule 65 ter.
16 We understand the difficulties in witness preparation, as
17 counsel's referred to that. We also believe that counsel prepares his
18 cases carefully and with lots of preparation.
19 I note that in the October 4th letter we got over the weekend,
20 which provided additional information, there was, in fact, a reference to
21 a meeting that the Prlic team had with this witness going back to the
22 year 2005, and clearly I think there's a basis for the Defence to know
23 and to have better information about what the witness is going to say,
24 something that goes beyond simply providing a list of topics of things
25 that the witness will testify about.
1 We believe that what we've seen over the weekend, and it's the
2 rule rather than the exception now, is that, as I'd say in English, the
3 tail is wagging the dog. That is, the proofing note, which is what this
4 is, and the proofing note is something that the Trial Chamber has
5 referred to previously in its 24 April 2008 guidelines on the Defence
6 cases, if new information comes up over the course of the weekend where
7 the witness is being proofed, as we all know, the practice is to make a
8 proofing note and to send that information across to the other parties
9 and the Trial Chamber so that everyone knows that there's going to be
10 some new information.
11 What's happened now is that the witness summaries, being so
12 deficient, really the Prosecution has been in a position of having to
13 wait until the weekend before the testimony to look for a proofing note
14 or expect a proofing note in those situations where the Trial Chamber has
15 ordered it, and in fact we've seen, over the course of this weekend, that
16 a lot of detailed information has come across that it's really a proofing
17 note, and it's fact that we've gotten it in advance is helpful, but again
18 it's not the situation that's contemplated by the rules that require
19 witness summaries under 65 ter to be provided actually much further in
20 advance than simply the weekend before the witness testifies.
21 And it's for this reason, Mr. President, that although we've got
22 this additional information, the Trial Chamber may be inclined to grant
23 more time now to allow counsel to reorganise his direct examination. We
24 still view this as essentially a proofing note that we got over the
25 weekend, and we are going to retain or seek to reserve our right to
1 object to any issues which, in our view, go outside the scope of this
2 information that's been provided to us over the weekend.
3 Obviously, we're not in the direct examination, and we'll see how
4 that goes, but we will object if there's more information coming in
5 that's not contained in the information that's already been provided to
7 My final point, Mr. President, is that in respect of counsel's
8 request to stop the proceedings today and to continue tomorrow instead,
9 the Prosecution has no position on that. We think it's for the Trial
10 Chamber, in its discretion, to rule.
11 Thank you, Mr. President.
12 MS. ALABURIC: [Interpretation] Your Honour, if I may address you
13 with a few words.
14 In view of the fact that summaries of witness statements, which
15 are prepared by colleagues in other Defence cases, are not intended
16 exclusively for the Prosecution, and their purpose is not just to enable
17 the Prosecution to prepare for the cross-examination, but it is also
18 addressed to all the other Defence counsel in this case, which are also
19 entitled to cross-examine the witness, I believe that the issue we are
20 discussing now is not of interest only for Mr. Prlic's Defence and the
21 Prosecution, but for all of us. That is why I should like to remind the
22 respected Trial Chamber and all those present that summaries of witness
23 statements were not the primary source of information about the witness
24 and the contents of his testimony, neither in the Prosecution case, nor
25 in the course of the Prlic Defence case. The reason is simple, because
1 in addition to the summary, we also received a list of documents that the
2 party intends to discuss with the witness, and which it intends to tender
3 into evidence.
4 From our own experience, we all know that documents have become a
5 kind of guide for the examination of witnesses and that, as a result, we
6 frequently filed objections that the Prosecution can lead the witness,
7 but we established such rules of the game and we have all agreed to them,
8 in a sense.
9 I should like to recall you -- refer to an example when colleague
10 Bos examined a witness, Jacqueline Carter, who was not a protected
11 witness, who started talking about the incident with the flag in
12 Gornji Vakuf, and she said that the flag of Bosnia-Herzegovina had been
13 removed and that HVO soldiers set fire to it, and then colleague Bos
14 showed her a document of BritBat, saying that this flag was an Ustasha
15 flag, in quotation marks. So documents were always used by us as
16 guidelines when examining a witness.
17 If the summary prepared by the counsel for Mr. Prlic, together
18 with all the information that we have received, as well as the documents
19 which were announced already in the 65 ter (G) list, if we take all those
20 sources of information together with respect to this witness, then the
21 Defence of General Petkovic had no difficulty in preparing its own
22 cross-examination of this witness, and I submit that in view of all this
23 information, the Prosecution also would not have any difficulty in
24 preparing the cross-examination. As the purpose of these summaries is to
25 prepare for the cross-examination, it is my view that the Defence counsel
1 of Mr. Prlic has provided sufficient information about this witness, so
2 I think the Chamber could re-examine its decision and allow Mr. Prlic's
3 Defence to have as much time as they feel is necessary for them to
4 examine this witness.
5 JUDGE ANTONETTI: [Interpretation] Yes, Mr. Prlic.
6 THE ACCUSED PRLIC: [Interpretation] As the trial has long since
7 entered a stage which is reminiscent of diplomatic mediation between two
8 parties, I would like to request a break so that I may consult with my
9 Defence counsel.
10 MR. KHAN: If it please Your Honours, a few observations and
11 submissions on this unfortunate position that we find ourselves in today.
12 With respect, I would adopt the submissions put forward by my
13 learned friend for General Petkovic. It is, of course, particularly in a
14 very -- and considered by the Prosecution an exceptionally document-heavy
15 case, unnecessary and rather incomplete to simply view the sufficiency of
16 a witness statement through the contents of the written page. It must be
17 viewed through the prism of the documents supplied with that statement.
18 The Prosecution have been notified as to the broad thrust of a
19 witness's testimony, but what must be of huge assistance to them is that
20 they have been pointed out which documents from the 65 ter list they -- a
21 prospective Defence party is going to put through a particular witness.
22 Now, they know, of course, the general contours of this case, and
23 the sufficiency of a summary must be read in that light.
24 Your Honour, in my respectful submission, the Prosecution have
25 labored for an unnecessary amount of time under a false apprehension.
1 I think it's been mentioned in terms, in fact, by Mr. Scott. I may be
2 wrong. This is not an issue of equality of arms, not a bit of it.
3 Rule 66 and 68 detail the Prosecution's disclosure requirements.
4 Those disclosure requirements flow from the obligation that they bring
5 this case, and they must prove this case beyond reasonable doubt. In my
6 submission, Rule 65 ter does not -- was never intended to focus on
7 equality of arms. In fact, the Rule itself is quite clearly phrased as
8 dealing with a Pre-Trial Judge. It was a Rule that was enacted, in my
9 respectful submission, as part of the completion strategy and a desire of
10 the Judges, quite rightly, quite rightly, to ensure that time was not
11 unduly wasted.
12 And if one looks at 65 ter, which we've heard so much about, we
13 can perhaps get a flavour of the purpose of this Rule. It talks about
14 the name of the witness, the pseudonym. At 65 ter (G)(1)(b), a summary
15 of the facts. But the rest of it, whether or not a witness will give
16 evidence viva voce or 92 ter, 92 bis, the number of witnesses, the count,
17 this is clearly, quite clearly, a case management rule. It's not because
18 the Prosecution have a right of equality to get to know what the Defence
19 position is. They can't read into this Rule an obligation that the
20 Defence does their job for them. It is not a rule that in some manner,
21 shape, or form alleviates the Prosecution or is a crutch for the
22 Prosecution to lean on to help make the Defence do the Prosecution's job,
23 which is to prove the case beyond all reasonable doubt.
24 The position, of course, is this: The Defence would be within
25 its complete and unchallenged rights to sit on their hands and say, "You
1 have brought this case. You prove it. We will not whisper, we will not
2 say a word."
3 Now, Your Honours, being in this court already a few months, that
4 may have many advantages, but it is not a requirement of the Rule and it
5 is not -- this Rule is not a stick to beat the Defence with.
6 Now, my learned friend, with whom I have the greatest respect
7 professionally and personally, has mentioned a reference to some
8 correspondence that my learned friend, Mr. Karnavas, gave him about
9 contact with the witness some time ago. Now, again, there is no
10 obligation upon the Defence in any Rule in any case to detail when they
11 first had contact with a particular witness, and the terms of the
12 contact, and the length of the contact, and when and if this information
13 is provided in good faith, it is used as a stick to beat the Defence in
14 some shape or form, it is contrary, in my respectful submission, to the
15 whole architecture of these Rules of Procedure and Evidence.
16 Your Honour, another point. There is no magic -- there is no
17 magic at all as a document being classified as a witness statement or a
18 proofing note or a summary. The obligation really must be, in my
19 respectful submission, that sufficient information should be given to the
20 Trial Chamber so that they can properly organise their case, you can
21 properly organise scheduling, time allotment, and to ensure that time is
22 not wasted to ensure an efficient trial process. There is no obligation
23 on the Defence, first and foremost, to provide a proofing note at all.
24 The only qualification I would give is that if the Defence, if in the
25 course of proofing new information comes to light which the Defence are
1 intending to elicit, which could not have been reasonably anticipated
2 within the four walls of a 65 ter summary or the exhibits, then of course
3 it must be provided to the Prosecution. But the reason the Prosecution
4 provide proofing notes is quite different. It's because they do have an
5 obligation to give, at any time, even after the trial, Rule 68 material,
6 and they have an obligation -- a non-derogable [sic] obligation to give
7 disclosure under a quite separate rule which goes to the equality of arms
8 and the burden of proof.
9 Now, Your Honour, it would be completely unfair, in my respectful
10 submission, to require the Defence, in terms, to give additional
11 information when that is not clearly required under the Rules. I think
12 that must be the starting point. There is no obligation upon the Defence
13 to provide a witness statement. The Judges in plenary could have done
14 that. The permanent Judges of this Tribunal, in plenary, did not do
16 For this Trial Chamber to, in my respectful submission, in
17 effect, and it may be unintended, but to require a detailed -- very
18 detailed information to be given is improper.
19 Now, Mr. President, I couldn't help but notice that on a couple
20 of occasions in the oral decision and in the very illuminating comments
21 to my learned friend Mr. Karnavas after the decision was rendered, refer
22 to a detailed summary of the facts. Well, that's not in the Rules. The
23 Rules talk about a summary of the facts. So some clarification is needed
24 as to what is required of the Defence. This can't be made up as we go
25 along. It will cause delay, it causes unfairness, and in my respectful
1 submission, it erodes the burden of proof which the Prosecution have.
2 Your Honour, the other issue is, of course, Your Honours have,
3 and I don't contest it for a moment, a right to sanction any party for
4 inappropriate conduct or for disregarding a decision of the Trial
5 Chamber. I leave that to one side as unchallenged and untested.
6 However, it is my respectful submission that perhaps reduction of time is
7 a rather blunt tool -- a rather blunt sanction in this particular case,
8 because it does have consequences for the other parties for the Defence.
9 We have prepared and my learned leader has prepared
10 cross-examination under already very tight control of the Trial Chamber,
11 the very limited time that was granted, and on the basis of the exhibits
12 my learned friend Mr. Karnavas disclosed as were relevant to this
13 witness. Now, to suddenly halve that time and leave the other Defence
14 teams lurching in the dark, grasping at which witnesses are going to be
15 put -- for which exhibits are going to be put, and expecting the Defence
16 to somehow to respond on the hoof is a rather unfortunate position and it
17 is one, in my respectful submission, is perhaps unnecessary on the facts
18 of this case, particularly when no reference has been made by the
19 Prosecution, or perhaps even by the Trial Chamber, to the utility of the
20 exhibit list that the parties present in relation to each witness.
21 So in summary, Your Honours, I do urge a reconsideration of the
22 decision, and I would -- I do make, with as much force as I can make, the
23 comments about the obligations of the Defence to provide information of
24 such detail to the Prosecution that is not required in the Rules and
25 should not be read into them.
1 Your Honour, those are my submissions on this issue.
2 MR. STEWART: Your Honours, I have a separate very short
3 application, but just following on what Mr. Karnavas said, the Petkovic
4 Defence certainly supports the observations which he's made in relation
5 to the inappropriateness of the cutting of time as a sanction in this
6 particular instance as a matter of principle.
7 Also, it is perfectly correct, if one looks at the entire
8 structure of the Rules 65 ter and then moving on to 73 bis, pre-trial
9 conference for the Prosecution, 73 ter pre-Defence conference, and the
10 65 ter summaries, and the time for them to be produced, strongly supports
11 what Mr. Karnavas says as to their primary purposes. But, Your Honours,
12 that is all I have to say on that topic.
13 My separate and, I think, very short application relates to the
14 motion mentioned earlier, Your Honours have set a deadline by this
15 Friday, which is entirely acceptable, and even if it weren't acceptable,
16 it's what Your Honours say and we note what the Prosecution have said.
17 Your Honour, that draft is well-advanced. Your Honour, my application is
18 for an increase in the normal time limit -- normal word limit, the normal
19 limit being 3.000, and I'm beginning to see already, Your Honour, a need
20 for an increase. Your Honour, I'm going to ask for 4.000 words, and
21 that's not done as a horse trade, Your Honour, in the hope that you would
22 give me three and a half thousand. The four thousand is already going to
23 require some significant editing just to reduce the wording. But there
24 are some issues of complexity here and there are a number of decision,
25 Your Honour, which elaborate.
1 I won't take an inordinate time to make this application, just to
2 say, Your Honour, may we have 4.000 words for the motion which Your
3 Honours have directed to be filed this week?
4 JUDGE ANTONETTI: [Interpretation] I will consult with my
5 colleagues, whether we can have 3.000 or 4.000 words.
6 MS. PINTER: [Interpretation] Your Honours -- oh, sorry.
7 [Trial Chamber confers]
8 JUDGE ANTONETTI: [Interpretation] The Chamber has deliberated
9 and grants the request of Mr. Stewart to provide a submission up to 4.000
10 words, in view of the fact that Mr. Prlic has asked a break to consult
11 with his counsel, the Chamber will grant this and we will have a break.
12 I would like to know, because the Chamber will also be
13 deliberating in order to see whether we will resume work tomorrow or not,
14 Mr. Karnavas, what should be done to avoid wasting time, because as you
15 know, the Chamber wishes to manage the time and avoid all waste. What we
16 could do is have the witness take the solemn declaration and you could
17 just ask him about his curriculum vitae, or you cannot do that?
18 MR. KARNAVAS: No, I can't, because then --
19 JUDGE ANTONETTI: [Interpretation] Why not?
20 MR. KARNAVAS: Because. Again, I must caution the Trial Chamber.
21 I understand, and I don't mean to be disrespectful, but there
22 seems to be a limited experience on the Bench as far as what the Defence
23 has to do on prepping witnesses. Once he takes that oath, I can't meet
24 with him. How can I possibly rationalise now the four hours into the two
25 hours? What you're trying to do, then, is put me into a trap where, in
1 effect, my witness then is unable to give evidence. That feeds into the
2 Prosecution, that helps the Prosecution.
3 I understand that there are some in this courtroom that feel the
4 need to balance the rights of the victims with the balance of the rights
5 of the Defence. That is not what a criminal trial is all about. Burden
6 of proof, that's their obligation, so that's why he cannot take the oath.
7 Also, I should be very clear that we were going to meet with our
8 client, and it is unclear to me, because I'm going to advise my client,
9 full disclosure, that in light of the importance of this witness, we will
10 not be able to do him in two hours and that it is best to call it off for
11 the week, and we'll just waste a week and bring him back at some other
12 point or find another method of dealing with this, but he's far too
13 important. We don't -- you know, and I take exception to the
14 Prosecution's remarks as to somehow we don't know what we're doing. We
15 met with these folks years ago and all of a sudden these are proofing
16 notes. These are not proofing notes. They have all the information.
17 The question you should be asking yourselves, Your Honours, is
18 why is that they have brought in a whole case on Gornji Vakuf and never
19 once talked to this particular gentleman, when in fact in 2002 they took
20 a statement from someone which was only disclosed recently to us, from
21 Gornji Vakuf. Why did they not talk to the president of the Executive
22 Board of Gornji Vakuf if they were so concerned about the truth? And now
23 they have the audacity, they have the temerity to come in and say that
24 they don't have enough information? I'm sorry, they do.
25 But we can take our break. I'm going to advise my client that I
1 cannot do him in two hours, and we'll take it from there. But I stand
2 firm in my ground that we did everything under the Rules, as we were
3 required, as I was required in previous cases, nothing more, nothing
4 less. In fact, in this case I've done even more with this particular
5 witness. And so I do not see how the Bench all of a sudden has come up
6 with this decision, because effectively you are asking for a statement.
7 You're not calling it one, but a rose by any other name is a rose, and
8 that's what I see. I see you're asking us for a statement. And if that
9 is the case, then we need to know in advance so that when we are in the
10 field, we can take detailed statements. But that's not what the
11 Rules require, and I think it would disadvantage everybody if that was
12 going to be the case.
13 MR. KHAN: Your Honour, before my learned friend for the
14 Prosecution, just one correction.
15 Your Honour, page 19, line 12 and 13, I misspoke and I said that
16 there's no obligation on the Defence to provide a witness statement. Of
17 course, I meant there's an obligation on the Defence to take a witness
18 statement, that there is a big distinction between the two.
19 MR. STEWART: While we're on transcript points, what's at present
20 on page 21, line 3, I was following on what Mr. Khan said. There was no
21 disparagement of Mr. Karnavas, but in that particular instance I was
22 following on and adopting what Mr. Khan had said.
23 JUDGE ANTONETTI: [Interpretation] Very well, yes.
24 MS. PINTER: [Interpretation] Your Honour, on behalf of the
25 Defence of General Praljak, I feel it necessary to convey our position on
1 such a serious issue. I do not wish to be repetitious. I fully respect
2 the arguments offered by Mr. Karnavas, Mr. Khan, and Ms. Alaburic. I
3 just wish to add one further point, and that is: By shortening and
4 punishing Dr. Prlic's Defence and refusing the time of the direct to two
5 hours simultaneously punishes all the five other co-accused, because we
6 have six accused here who are providing their Defence, because in that
7 case they also would be punished because they counted on a certain amount
8 of time for the cross-examination.
9 I just wish to add to what Mr. Karnavas said, the Prosecution has
10 been conducting an investigation relating to Gornji Vakuf for many years,
11 and it cannot be caught by surprise by any information that the Defence
12 may provide, because they should be aware about all this because they
13 discussed the matter with persons who were in the executive, in the
14 political bodies, and in the military bodies, and there were many points
15 of information that we did not receive during the Prosecution case which
16 we could not use to check out the statements made by the witnesses in the
17 Prosecution case, and thereby we were put in an unequal position. And
18 now we are further limited in our ability to elucidate the circumstances
19 under which certain acts which are the subject of this indictment took
21 JUDGE ANTONETTI: [Interpretation] Wait a moment, Mr. Stringer,
23 If the Chamber was prompted to reduce the time to two hours, it
24 was because the Prosecution, in its submissions last week, asked us to
25 annul the hearing of this witness because they did not have in their
1 possession a detailed summary. That was -- that is the issue here.
2 The Chamber did everything for this summary to be made available,
3 we followed, minute by minute, everything that happened, and being in the
4 office from 6.00 in the morning I also verified to see whether there was
5 information. I'm saying this, that all these things have been under
6 control over the past few days.
7 The Chamber deliberated this morning and came to the conclusion
8 that we do not have in our possession the necessary elements, and that is
9 why we decided that we would limit the time to two hours.
10 Now, the Defence is telling us that they need absolutely four
11 hours and that they will provide a detailed summary to the Prosecutor, in
12 which case we could postpone the hearing of this witness to another at
13 any time.
14 We are now going to have a 20-minute break. Mr. Karnavas will
15 consult with his client, Mr. Prlic. The Chamber will look into all the
16 possibilities, and when we return we will give the floor to Mr. Karnavas,
17 who will tell us what his position is. Either he will do what he wants
18 to do in two hours or he absolutely needs four hours, in which case he
19 will provide us a detailed summary justifying four hours, because on the
20 basis of the summary I have, I wonder why four hours may be needed. I
21 may be wrong, but I see that the witness was a founder of the HDZ, that
22 he was the president of the Executive Council in Gornji Vakuf, that he
23 was a member of the HVO. He started out as a soldier. Then he was
24 deployed to Gornji Vakuf for the HVO, and from the 22nd of June until
25 November, he was the commander for the defence of the industrial zone.
1 And then from 1993 to 1994, he worked in the Famos factory, and after
2 that he was the director of the Unis Factory in Gornji Vakuf. That is
3 what we have, and on that basis we thought the two hours would be
4 absolutely sufficient.
5 Mr. Stringer.
6 MR. STRINGER: Just a few brief remarks to what's been said by
7 the various counsel.
8 I have to -- I have to observe that sometimes I've been sitting
9 here wondering whether this Tribunal has any rules, whether it has any
10 jurisprudence, because listening to some of the remarks that have been
11 made, I think that that's what one could conclude.
12 Mr. Alaburic suggested that the fact that we are given a number
13 of documents to look at before the witness arrives should give us enough
14 information about what it is the witness will say. The Prosecution
15 rejects that assertion in no uncertain terms.
16 As you know, Mr. President, these witnesses have been accompanied
17 by scores, dozens, in some cases hundreds of documents when they arrive
18 here, and for the Prosecution to have to sift through those, knowing that
19 a very small fraction of them will be the documents that the witness
20 actually looks at during his direct examination, because that's always
21 been the case, puts us in a situation where it's, of course, impossible
22 to read these volumes of documents and to know enough about what the
23 witness is going to say.
24 Now, Mr. Khan suggested that the Defence has no burden, and he's
25 right, they don't have a burden, they don't have to call one witness,
1 they don't have to tender one document into evidence. But, of course,
2 when they elect to do so, then each Defence team is required to follow
3 the Rules of this Tribunal, and those Rules require sufficiently-detailed
4 65 ter summaries so that the other parties, whether it's the Prosecution
5 or the other Defence, are not ambushed, and that's what's behind all
6 this. They don't have the right to ambush the Prosecution by withholding
7 information. They don't have a right to ambush other parties. The
8 jurisprudence that we've been citing to the Trial Chamber in all of our
9 submissions asking for greater information and summaries provides that
10 the parties, the other parties, are entitled to know what the witness is
11 going to say. And, absolutely, it's an imperfect process and the
12 situation can evolve, but it requires a good-faith basis to inform the
13 other parties of what the witness is going to say, and we're entitled to
14 that in order so that we're not ambushed, that we're entitled and
15 permitted to take the time necessary to prepare an effective
16 cross-examination which is absolutely essential to the fair trial.
17 And so that's what this is about. It's not about whether they
18 have to make a witness statement or whether it has to be mathematically
19 perfect and serve as essentially a transcript of what the witness will
20 say. Of course not. We understand that, but we're entitled to much
21 better than we've been getting, and that's a fact. And I just want to
22 say that once the Defence, despite what's being asserted here, elects to
23 tender witnesses and to bring them here and to put them here and to
24 subject them to cross-examination by other parties, that's the moment
25 which that Defence team undertakes to provide the other parties with
1 sufficient witness summaries, as required by Rule 65 ter.
2 You know, the consequences -- as Ms. Pinter pointed out, there
3 are consequences to the other Defence teams now in view of the fact that
4 this witness's direct examination might be curtailed, and I don't know
5 what the Trial Chamber's decision will be on that, but, you know, that's
6 just the way it goes, because what happens is the consequence to the
7 Prosecution is that we're not able to prepare sufficiently for our
8 cross-examination when the witness summaries do not satisfy the law and
9 the jurisprudence of the Tribunal. So there are consequences all around,
10 and I recognise it makes life more difficult for Mr. Karnavas. He may
11 have to go back and reorganise, et cetera. But the bottom line is that
12 we're all here about a fair trial, and that means no ambush, no big
13 surprises, and good faith on the part of all the parties to provide
14 viable, sufficient witness summaries so that the other parties know not
15 just the topics of the testimony, but in fact what it is the witness will
16 say. And that's what we've continued to assert, and I think that that's
17 what we will certainly continue to assert throughout the remainder of
18 these Defence cases.
19 MR. KARNAVAS: I make reference to my letter of October 4,
20 because -- and I take exception, Mr. President, to your characterization
21 as to what evidence was provided or what information was provided.
22 You have his background. Fine. And, of course, they would have
23 got the background through the security services, because we know they
24 contact the security services in Bosnia-Herzegovina on all of our
25 witnesses to do a detailed background check.
1 Two, political activities, HDZ. It outlines exactly what the
2 topics -- the areas in detail about HDZ, his involvement.
3 From there, if you look at this part and you look at the
4 documents concerning HDZ, you have to be virtually blind not to see the
5 essence of the direct examination.
6 Then you go to the next part, which is the HVO. The HVO,
7 Gornji Vakuf. This has to do with the civilian aspect of HVO. Again,
8 you can see he has very limited involvement in that, if any. He's not a
9 member of the HVO Gornji Vakuf executive, the civilian aspect of it. So
10 then you go to the Gornji Vakuf Executive Committee Crisis Staff, War
11 Presidency, paragraph 16, 17 and 18. From there, you can discern exactly
12 what he was involved in and what his testimony is going to be about.
13 Now, if that's not a summary, please provide me with a summary
14 sample, because this is exactly what he's going to talk about, what they
15 did, how this functioned, how it was transformed from the Crisis Staff to
16 the War Presidency, what the War Presidency did and so on. And you have
17 to look at this in conjunction with -- in conjunction with the documents.
18 Now, they say that they can't be expected to read all these
19 documents. Well, what about the Defence? They overwhelmed us with
20 documents. How do you think we prepare? How was I able to prepare every
21 day, witness after witness? These people come in here, having a week or
22 two weeks' break, and they still don't seem to have enough time to
24 We're spelling it out. Look at the details in there and look at
25 the documents. Where can the possible surprise be?
1 Then military activity, again - and I focus you back to the
2 questions that they asked. They had a couple of questions. We provided
3 that earlier statement summary of the military activities. And we go
4 again and we repeat some of the information for them. And then
5 miscellaneous, other topics that may come up during the testimony.
6 When you look at this in conjunction with the documents, it's
7 rather clear.
8 Why the four hours? The four hours was necessary because for the
9 first time -- for the first time, you will hear a Croat speak about
10 Gornji Vakuf. You will hear someone who was in the executive authority,
11 in the government. He will be able to describe to you the events about
12 what was happening, the political involvement. He was there all the way
13 until 11 January, when the war broke out. He went to work that day. His
14 family was back at home, his little children. He left at 3.00, at 5.00
15 the fighting broke off.
16 Now, you have the Prosecution claiming that there is this
17 ultimatum of January 15th and that ignites the situation in Gornji Vakuf.
18 Here, for the first time, you will have somebody to give you all the
19 details of what was happening in the political sense. This is something
20 that cannot be told in 10 or 15 minutes, especially when we have
21 documents to go through. There is the HDZ, which has been demonised
22 throughout this trial by the Prosecution, they are a member -- the party
23 itself is a member of the joint criminal enterprise. We need to cover
25 So there are all sorts of aspects. I find it very difficult to
1 believe that the Trial Chamber, when they look at everything that has
2 been submitted, not just on the 4th and the 5th of October, but
3 everything else, how can you possibly claim that we have not provided
4 them with sufficient information to prepare their cross-examination,
5 especially when some of the Prosecution have two or three weeks to
6 prepare for a witness? I find it very, very difficult to conceive of
7 this situation.
8 However, we can take our break and I will meet with my client. I
9 am certainly not going to jeopardise his case, and I apologise to my
10 colleagues for also -- for the inconvenience causing them and them being
11 punished as well, because we put on our case, they have their case, and
12 they are entitled to put on their case through cross-examination. That
13 is part of the process, and that's also evidence.
14 JUDGE ANTONETTI: [Interpretation] Yes, please go ahead.
15 MS. TOMASEGOVIC-TOMIC: [Interpretation] Thank you, Your Honour.
16 I agree with everything my colleagues have said. However, there
17 is another issue that is concerning me.
18 The last time you took the floor, you said that if my colleague
19 Karnavas provides a sufficiently-detailed summary that would justify four
20 hours, in that case he would be allocated four hours for his examination,
21 but when time was allocated to the Defence teams, we were allocated a
22 total amount of time for our Defence. But we didn't receive a decision,
23 and this is the practice here, in which we could see how much time we had
24 for a given witness on our list. I can't remember a certain witness, but
25 I know that Mr. Karnavas asked for more time for examination-in-chief.
1 He said he'd need an hour, an additional hour, so the Trial Chamber said
2 that he should take that hour, but he has to use his time that will be
3 deducted from the total amount of time he has been granted, so he'll have
4 less time for another witness.
5 So this is worrying me, because we're now introducing new rules
6 of some kind, and we don't know how much time we can have for our summary
7 for a given witness, so this is something important.
8 Thank you, Your Honours.
9 JUDGE ANTONETTI: [Interpretation] The Trial Chamber will bring
10 this to a halt in a minute, but Mr. Ibrisimovic hasn't yet addressed us.
11 You have the floor.
12 MR. IBRISIMOVIC: [Interpretation] Thank you, Mr. President.
13 We've heard everything, we read through what the Prosecution said
14 with regard to this witness, but he forgot to say one thing. For
15 example, on Monday the fax is switched on, I knew what it was all about.
16 This was additional information that the Prosecution was sending to us
17 with regard to a witness. So this was a few hours before the witness
18 appeared in the courtroom. Naturally, we didn't ask for this witness be
19 deleted from the witness list or for the Prosecution to be sanctioned.
20 For this reason, we performed our cross-examination in accordance with
21 the Rules. So please bear this in mind, too. The Defence, just like the
22 Prosecution, when it becomes aware of new information, it has to inform
23 the other party as soon as possible. Mr. Karnavas, I believe, complied
24 with this obligation over the weekend.
25 JUDGE ANTONETTI: [Interpretation] I'll give the floor to my
1 colleague, who would like to say something.
2 JUDGE TRECHSEL: Mr. President, I greet everyone, too, and this
3 is going to be an anti-climax because I'm jumping back to page 5 of the
4 transcript, lines 4 to 8, where the President has informed about the 29th
5 September resolution of the Security Council. And what can be read in
6 the English is not really what happened.
7 The Security Council prolonged but did not necessarily set an
8 end, but prolonged the mandates of all except the Appeals Chamber Judges
9 until 31 December 2009
10 about this because there's nothing to deliberate about. We are firmly
11 committed to a fair trial, and if the Security Council were to cut us all
12 off, that would be it. But there can be no way that we, in any decision
13 of ours or ordinance, cut back time in order or under the influence of
14 this completion strategy. I can assure both parties that this is the
15 intention of the Chamber so far every time we have raised it. So that is
16 not really something that should give cause for concern.
17 JUDGE ANTONETTI: [Interpretation] We'll have a 20-minute break
18 now and we'll resume in 20 minutes.
19 --- Recess taken at 3.26 p.m.
20 --- On resuming at 3.53 p.m.
21 JUDGE ANTONETTI: [Interpretation] We'll now resume.
22 I give you the floor, Mr. Karnavas.
23 MR. KARNAVAS: Thank you, Mr. President and Your Honours.
24 We will be sending our witness back. We'll try to arrange for
25 him to come back at some other point. That is the only acceptable
1 solution. We do insist on doing -- spending at least four hours with the
2 witness, and we will provide, you know, what -- we'll take another stab
3 at providing a summary, although I think we have provided a summary.
4 We'll try again, and perhaps next time the Prosecution won't wait ten
5 days before they get back to us, making a request or filing a motion that
6 they don't have enough information. And if they wish to submit for us,
7 for instance, some guidelines on how to make a summary, we would welcome
8 that, I mean, because they're the ones that seem to be complaining that
9 the information that we provide -- so if they want to give us a summary,
10 and of course they can point to the Rules as to what a summary looks like
11 and what details and what information should be in it, we would welcome
12 that. But that's the only acceptable solution.
13 Now, I'm sure the Trial Chamber probably has entertained the
14 notion that we could go forward with direct, then perhaps give the
15 Prosecution time -- send the gentleman back, give the Prosecution time,
16 now that they've been fully apprised of all the evidence, to prepare and
17 bring the witness back again. In fairness to the witness that would not
18 be appropriate but also that would give an unfair advantage to the
19 Prosecution. In essence what they would have is more time and then they
20 would do this on each and every occasion.
21 Frankly, I must say as I've said perhaps on other occasions, that
22 we cannot take the Prosecution as bona fides when it comes to certain
23 issues. This is one of them. We've given them all the information. We
24 think that perhaps they're using this as a way -- this opportunity as a
25 way of forcing the Trial Chamber to force the Defence to give statements,
1 although calling them summaries.
2 So what we're going to do is we're going to respectfully request
3 that we call this witness some other time, and that's going to be -- it's
4 regrettable, but that's the only solution that we can find under the
6 JUDGE ANTONETTI: [Interpretation] Very well.
7 Yes, just a minute. Mr. Khan.
8 MR. KHAN: Your Honour, with your leave, the only qualification I
9 would submit in relation to what my learned friend Mr. Karnavas has
10 stated now relates to page 35, lines 2 and 3.
11 The Prosecution have had the opportunity of filing motions and
12 making submissions on the issue of the statements and the 65 ter (G)
13 summary, and Your Honours have -- you heard from the Defence as well. Of
14 course, if any guidelines are to be issued, that's the province of the
15 Trial Chamber and it's for the Trial Chamber to issue guidelines, not the
17 Your Honour, that's my only comment.
18 MR. STRINGER: Thank you, Mr. President.
19 I'm not going to address everything that counsel said here. He's
20 very -- he's very freely wearing on his sleeve these assertions about
21 lack of bona fides these days. I can only inform the Trial Chamber, if
22 you're not aware, that this certainly goes both ways, based on the many
23 months of unfortunate experience we've had with this particular counsel.
24 Beyond that, let me say this, Mr. President: In terms of
25 guidelines, and as Mr. Khan's correctly stated, it's the Trial Chamber,
1 the Judges, who are the ones ultimately to determine the sufficiency of
2 65 ter summaries. I'd only suggest that Mr. Karnavas read the
3 jurisprudence that we keep putting in motions or filing asking for better
4 witness summaries. A number of those motions obviously the Trial
5 Chamber's agreed with and has, in fact, ordered that additional better
6 summaries be provided.
7 Secondly, in terms of potential guidelines, the more detailed
8 information that counsel provided to the Prosecution hit my e-mail
9 Saturday night at 18 minutes after 6.00 in the evening. Now, if we
10 could -- I can't say and I'm not going to say whether this is accurate --
11 or adequate, I should say, not accurate. It may, in fact, be adequate
12 we'll have to see when we hear the witness's testimony. Certainly if we
13 had something like this it's possible we would not have even been
14 litigating this issue for the last two or three weeks, or however long
15 it's been. But the point is this, to come in across at 6.18 on a
16 Saturday evening prior to the witness taking the stand is insufficient.
17 This is the sort of information, at a minimum, that we expect to see and
18 are entitled to see in the 65 ter summaries.
19 Those are my only remarks, Mr. President.
20 JUDGE ANTONETTI: [Interpretation] Very well. I'll confer with
21 my colleagues.
22 [Trial Chamber confers]
23 JUDGE ANTONETTI: [Interpretation] Very well.
24 The Trial Chamber notes that this witness will return as soon as
25 possible, and the Defence has undertaken to provide a more detailed
1 summary, which should allow the Prosecution to prepare for the witness's
2 cross-examination. Mr. Karnavas, your request has been granted and we
3 have no problems as far as this matter is concerned. Now we'll have the
4 pleasure of seeing this witness a little later, but you should tell him
5 the reasons for which he won't be heard today, in spite of the fact that
6 he's been here for a couple of days now. He'll have to leave and then
7 return, but you'll explain the situation to him and tell him that it's
8 for procedural reasons that this is being done.
9 Mr. Karnavas, with regard to our decision to reduce the time
10 allocated to you to two hours, should we take it that you want to appeal
11 this decision, appeal against this decision, or have you nothing to say
12 about this now, since the witness will be returning?
13 MR. KARNAVAS: Well, first and foremost, my position is that you
14 have no right to reduce my witness to two hours, given the -- how the
15 events are unfolding. If, when I present additional information, you
16 feel that you need to reduce the hours to two hours, then we'll take up
17 the matter. But as far as I'm concerned, that issue is moot. We're
18 sending the witness back. In the meantime, I will prepare more
19 information. Hopefully, you know, it will satisfy the Prosecution. I
20 wasn't asking them to give me the guidelines, I was asking for a sample,
21 because it seems that no matter what we do, they're complaining.
22 But as I understand it, we're being given an opportunity to
23 rectify this so-called situation, which I don't see to be one, but
24 nonetheless we will provide additional information and we'll try to
25 reschedule the witness to come back again. We will provide that summary
1 expeditiously so that the Prosecution, hopefully, will not wait ten days
2 and ambush us, like they did this last time; hence my word about
3 bona fides, because if you look at my letter, they wanted information, I
4 provided it. The next day, I gave them the information. They waited ten
5 days and they filed a motion. I don't consider that good faith. They
6 filed that motion last Thursday. I don't consider that good faith,
7 because if they wanted more information, they certainly could have asked
8 for it. So they played the tactic, they won the day, but we'll bring
9 back the witness and we'll see.
10 And I suggest that this Trial Chamber should have adopted the
11 procedure that's adopted before all other Trial Chambers, and that is,
12 during the pre-trial conference that the Defence face, if there are
13 insufficient summaries, that's the time to ask for more -- for additional
15 We've operated under the impression that we had provided
16 sufficient information and that there may be some additional information
17 that was required, and on a case-by-case basis, that's what we've been
18 doing. So to suggest now that somehow we are the guilty party, I think
19 that's not in keeping with the facts. The Prosecution objected. The
20 Trial Chamber at the time thought that the summaries were sufficient and
21 then, on a case-by-case basis, asked for additional information. Now
22 we're being told that none of our summaries are sufficient, and I take
23 exception to that.
24 So I suggest that now's the time for the Prosecution to inform us
25 of which summaries that we have provided them are insufficient so perhaps
1 we can begin to rectify them, but again you have to understand that this
2 is not -- because we're trying to be precise, this is not something that
3 I can have somebody in the field do. We're trying to be as precise,
4 we're trying to be professional. Nobody's trying to sabotage these
5 folks. On Gornji Vakuf, they are ten years over there, beating the
6 bushes, speaking to witnesses, so they should know their facts.
7 JUDGE ANTONETTI: [Interpretation] Mr. Stringer, I think that
8 Mr. Karnavas is right, but as I have already said, it would be good if,
9 on the basis of all the summaries for future witnesses, you could
10 identify which summaries are problematic, in your opinion, so that
11 Mr. Karnavas can do his utmost to deal with the issue, to solve the
12 problem. I don't know which summaries -- well, he thinks that all the
13 summaries are complete. You perhaps have a different opinion, but you
14 should nevertheless tell us what your opinion is, because we were
15 somewhat surprised that, at the very last minute, we received a written
16 request last week, in spite of the fact that for several months you were
17 aware of the fact that the witness would be appearing and testifying on
18 the basis of this summary. So try and demonstrate good faith or try and
19 show that you have the will to deal with this and say that such-and-such
20 summary is not satisfactory and "we require more detail."
21 There shouldn't really be any problems. We know that you are all
22 on good terms outside the courtroom, and in such context it's possible to
23 have a dialogue in order to solve such problems, rather than to waste
24 time and to have the Judges intervening, whereas in fact it's a matter
25 for the parties to deal with.
1 Yes, Mr. Stringer, go ahead.
2 MR. STRINGER: We will do that. Certainly, we're approaching the
3 end of the Prlic Defence case, and I think we're in a position to look at
4 the remaining witnesses and to try to identify those which we believe to
5 be particularly lacking in sufficient detail.
6 I can inform the Trial Chamber, as well as the parties, I think
7 the Prosecution is in the process of preparing a motion asking for a more
8 detailed witness summary for one of the witnesses. I'm not sure if he's
9 a protected witness, and so I'm not going to say the name now. I can
10 inform Mr. Karnavas after today's proceedings. He's someone who's going
11 to be talking about financial aspects of the case. But we can look at
12 the remaining witnesses as well.
13 As you know, we haven't filed -- I think my personal opinion, if
14 I may say, is that virtually all the witness summaries have been
15 inadequate. However, the OTP has not filed motions challenging all of
16 those throughout the Prlic case in chief. We've, if I may say, tried in
17 good faith to work with what we had, understanding that there are times
18 when you don't know exactly what the witness is going to say until you're
19 closer to the time of testimony or proofing.
20 We haven't challenged all of them. We've challenged only the
21 ones which we thought really left us completely in the dark. And in
22 respect of this particular witness, we don't file any motions lightly and
23 we didn't file this one lightly. And there was a delay, I admit that,
24 but it's not because of any tactical objectives on the part of the
25 Prosecution. It was an attempt to work with the information that was
1 coming in, and ultimately it was decided that we just didn't have
2 sufficient information, and so we had to reapply again. But we will
3 inform the Trial Chamber of any remaining summaries that we think are
4 lacking so that everyone can be informed of that in advance.
5 Mr. President, one additional unrelated housekeeping issue. If I
6 may go into that now, and if I may have just one moment.
7 JUDGE ANTONETTI: [Interpretation] Before I give you the floor to
8 deal with other issues, I'd first like to ask Mr. Karnavas for some
10 You've provided us with a list of the exhibits in the order that
11 you're going to present them to the witness. You have five chapters for
12 this witness, 1D 02960 is the first exhibit. I think it's a plan of
13 streets, et cetera. Why don't you have a title for each chapter, each
14 section, so that we can know the context this occurs in? Why don't you
15 have titles? It would perhaps be clearer. I like the document you have
16 presented us with, but I think it would be even better if we had titles.
17 MR. KARNAVAS: We could do that. Normally, believe it or not, on
18 a Monday morning we get up around 5.00 to go over the documents again,
19 and that's when we try to reorganise the documents into sort of chapters
20 and that's when we give them titles. Sometimes the titles are just to
21 help us, but we can do that. That's not a problem, and if that would
22 help, we certainly will do that.
23 JUDGE ANTONETTI: [Interpretation] Yes. In fact, that could help
24 us, because under Chapter 5 there were 28 documents. Perhaps if we had
25 had a title, I would have told myself, well, two hours, it's not
1 sufficient, perhaps more time is needed, et cetera. But I have the
2 numbers of various documents. Sometimes I don't even have the documents,
3 because when there are new documents, I'm not familiar with them. But,
4 on the other hand, if we had titles, well, this could assist the Chamber.
5 It's just to assist us, not so that we can have precise knowledge of your
6 entire strategy. We just want to know the order in which the documents
7 will be presented. If we know the order of the chapters, that could be
9 And that's what I wanted to say to close this chapter.
10 Yes, Mr. Karnavas.
11 MR. KARNAVAS: It should also be understood, and probably you can
12 see it from the way we do our direct examination, or at least the way I
13 structure it, is first we begin with the narrative of about 35 minutes,
14 40 minutes. This witness, we thought the narrative was going to be, in
15 all due candour, approximately an hour and a half, and then now that you
16 have the background, the context, you know, then we should show -- go
17 through the documents; in other words, the telling and showing part. And
18 sometimes the documents may not necessarily reflect the amount of time.
19 Sometimes we have a lot of documents, sometimes fewer documents, and just
20 because we have fewer documents doesn't necessarily mean that the time
21 isn't required. But we felt with this particular witness, the narrative
22 was very, very important, and we also factored in that there would
23 probably be a lot of questions from the Bench during that part, so -- but
24 we will endeavour to provide the chapters, but keep in mind that this is
25 the technique at least that I tried to use is give you a short narrative,
1 sometimes it's 20 minutes, sometimes it's an hour, for contextual
2 purposes, and then to go through the documents, because then we can move
3 more efficiently through the documents.
4 JUDGE ANTONETTI: [Interpretation] Very well.
5 And one final administrative matter. The Registrar has given us
6 all the -- all of us information on the time used by the various parties
7 since the beginning of the Prlic case, the Prlic Defence's case. It
8 seems that the Prlic Defence, according to this table, has used
9 practically 60 hours up. 20 per cent of the time was used to deal with
10 procedural matters. That's an enormous amount of time. And in addition,
11 we note that the Prosecution has used 25 per cent of the time in
12 cross-examination. The Defence has used almost 37 per cent, and Judges'
13 questions 16 per cent, so we're still between 16 and 17 per cent. That's
14 the general ratio.
15 In September, calculations were also made, and the ratio is the
16 same as the Defence, 30 per cent; the Prosecution, 25 per cent;
17 procedural matters, 18 per cent; Judges' questions, 17 per cent.
18 So these figures allow everyone to focus on these issues.
19 Mr. Stringer.
20 MR. STRINGER: Thank you, Mr. President.
21 And just to follow up on the witness summaries issue, as I
22 indicated, the Prosecution would be submitting one motion for additional
23 clarification of one remaining fact witnesses. Counsel also knows,
24 because there's been recent correspondence on this, the Prosecution will
25 be filing, I believe today, an additional submission regarding the
1 expert -- the two remaining expert witnesses whom the Prlic Defence
2 intends to call. That's a motion that will be filed today, I believe.
3 The housekeeping matter, Mr. President, relates to Witness --
4 JUDGE ANTONETTI: [Interpretation] Just a moment, please.
5 Will you please explain to me what you have just said? My
6 understanding was that you were going to file a submission concerning two
7 witnesses. These are witnesses for Mr. Prlic, are they?
8 MR. STRINGER: Yes, Mr. President. Actually, there will be --
9 there are three witnesses involved. One is a witness who's not an expert
10 witness, and then there will also be a motion filed today with regard to
11 two expert witnesses whom the Prlic Defence is intending to call as well,
12 so that these two motions will relate to three of the remaining Prlic
13 Defence witnesses. We will review the 65 ter summaries for the remaining
14 Prlic Defence witnesses to see whether additional motions for
15 clarification or further facts would be appropriate, and we will take
16 care of all of that here within the very near future so that everyone
17 knows who are the witnesses that are -- whose testimonies could be
19 And the housekeeping matter relates to Witness Mr. Ilija Kozulj.
20 On the 1st of October, the Prlic Defence filed its objections to the
21 Prosecution exhibits tendered through Mr. Kozulj, and I'm at this point
22 asking the Trial Chamber, on behalf of the Prosecution, for leave to file
23 a reply to that Prlic Defence objections, and so that's the reason for my
24 inquiry at this point, leave to reply to the Prlic objections.
25 JUDGE ANTONETTI: [Interpretation] Let me consult with my
2 [Trial Chamber confers]
3 JUDGE ANTONETTI: [Interpretation] The Chamber that has just
4 deliberated grants you leave to file a response.
5 I wish to inform Mr. Prlic that the decision of the Chamber has
6 been recorded regarding Witness Kozulj. The Chamber has rejected a
7 certain number of documents unanimously. I'm sorry, Raguz, Witness
8 Raguz -- and others by a majority of votes, and you will be able to see
9 this. This decision took time because it consists of several pages.
10 There are many documents, a large number of documents that the Defence
11 wished to tender, and we needed to look into them document by document in
12 order to reach this decision, and so I ask you to read that decision.
13 That is what I am able to say. Are there any other questions to
14 be raised, as for once we have time?
15 Mr. Stringer, no more questions? Yes.
16 MR. STRINGER: No, Mr. President, no questions or issues.
17 JUDGE ANTONETTI: [Interpretation] Very well.
18 Are there any by Defence counsel? One, two, three, four, five,
19 six, no questions. I am looking at the accused. No questions from them
21 So we are going to adjourn. We're all going to work now, and we
22 will meet again for the next witness who's planned for next Monday.
23 Thank you.
24 --- Whereupon the hearing adjourned at 4.18 p.m.
25 to be reconvened on Monday, the 13th day of
1 October, 2008, at 2.15 p.m.