Tribunal Criminal Tribunal for the Former Yugoslavia

Page 32927

 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

16     reporter.

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

Page 32928

 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

 5     response.

 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.

Page 32929

 1             Oral decision concerning the testimony of Witness Zdravko

 2     Batinic.

 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

Page 32930

 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.

Page 32931

 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.

Page 32932

 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

Page 32933

 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

25     decision.

Page 32934

 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.

Page 32935

 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

Page 32936

 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

Page 32937

 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

Page 32938

 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.

Page 32939

 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

Page 32940

 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

 6     us.

 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

Page 32941

 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

Page 32942

 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.

Page 32943

 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

Page 32944

 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

Page 32945

 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

15     that.

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

Page 32946

 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.

Page 32947

 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.

Page 32948

 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

Page 32949

 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

Page 32950

 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

Page 32951

 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

20     place.

21             JUDGE ANTONETTI: [Interpretation]  Wait a moment, Mr. Stringer,

22     please.

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

Page 32952

 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.

Page 32953

 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,

Page 32954

 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

Page 32955

 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.

Page 32956

 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

23     prepare.

24             We're spelling it out.  Look at the details in there and look at

25     the documents.  Where can the possible surprise be?

Page 32957

 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

24     that.

25             So there are all sorts of aspects.  I find it very difficult to

Page 32958

 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.

Page 32959

 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

Page 32960

 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.  Our Chamber has not really deliberated much

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

Page 32961

 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,

Page 32962

 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

 5     circumstances.

 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

16     Prosecution.

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,

Page 32963

 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

Page 32964

 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

Page 32965

 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

14     information.

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

Page 32966

 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.

Page 32967

 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

Page 32968

 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

 9     information.

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

Page 32969

 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

 8     useful.

 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,

Page 32970

 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

Page 32971

 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

18     impacted.

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

Page 32972

 1     colleagues.

 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

20     either.

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

Page 32973

 1                           October, 2008, at 2.15 p.m.