1 Monday, 19th April, 1999
2 (Open session)
3 (The Appellant entered court)
4 --- Upon commencing at 2.04 p.m.
5 JUDGE SHAHABUDDEEN: Mr. Registrar, will you
6 please call the case next on the list?
7 THE REGISTRAR: Case number IT-94-1-A, the
8 Prosecutor versus Dusko Tadic.
9 JUDGE SHAHABUDDEEN: Mr. Tadic, you can hear
11 THE APPELLANT: (No translation)
12 JUDGE SHAHABUDDEEN: May I take the
13 appearances, please? First, counsel for Mr. Tadic?
14 MR. CLEGG: Mr. Clegg and Mr. Livingston
15 appear on behalf of Mr. Tadic.
16 JUDGE SHAHABUDDEEN: In all appeals?
17 MR. CLEGG: In all appeals.
18 JUDGE SHAHABUDDEEN: Mr. Prosecutor?
19 MR. YAPA: May it please Your Honours, I
20 appear as senior appeals counsel, Your Honours, for the
21 Prosecutor with Brenda Hollis, senior trial attorney,
22 Michael Keegan, trial attorney, and Ann Sutherland,
23 legal officer.
24 JUDGE SHAHABUDDEEN: Now, there are two
25 motions before the court. We have received, firstly, a
1 motion for adjournment by Mr. Tadic.
2 Mr. Clegg, will you move?
3 MR. CLEGG: I do. Can I say by way of
4 introduction that we are not anxious to achieve any
5 adjournment, we are only anxious to ensure that the
6 position of the appellant is not compromised by the
7 adjournment last week of the contempt hearing.
8 The position appears to us to be that the
9 hearing that is now fixed for next week could possibly
10 result in evidence emerging that could be relevant to
11 this appeal. Whether that is likely or unlikely is
12 perhaps a matter of speculation, but no one could argue
13 that such evidence, at any rate theoretically, could
14 not emerge next week.
15 I am anxious to achieve a position whereby
16 the appellant is not prejudiced in the order in which
17 the hearings are heard. We would submit that could be
18 achieved in the following way: We would invite the
19 Court to consider proceeding this week to hear the
20 effective appeal against conviction and the
21 cross-appeal of the respondent. We would anticipate
22 that, in any event, judgement would be reserved in
23 relation to this appeal, and if that judgement could be
24 reserved until after judgement has been given in the
25 contempt hearing, then that would enable any fresh
1 ground of appeal that did emerge or any fresh evidence
2 that emerged that was relevant to any of the existing
3 grounds to be aired before the Appeals Chamber while it
4 was still seized of the appeal. In our submission,
5 that would have the effect of making the best use of
6 court time this week because no adjournment would, in
7 fact, be necessary, and would enable the appellant's
8 position to be protected in the event, however
9 unlikely, that something were to emerge next week that
10 was relevant in considering the appeal that the Court
11 is seized of now.
12 My application would be, firstly, to invite
13 the Court to adopt this suggestion for proceeding, and
14 if the Chamber were to grant that application, then I
15 would not pursue the motion to adjourn. If the Court
16 felt unable to proceed in the way that I have
17 respectfully suggested, then I would reluctantly apply
18 to adjourn the entire appeal until after the conclusion
19 of the hearing next week in case anything emerged that
20 impacted on the appeal.
21 It is, of course, no fault of the appellant
22 that the hearings have had to be reversed. The Appeal
23 Chamber, of course, arranged the contempt hearing first
24 in time with the appeal to follow. That would have
25 enabled anything that did emerge to have been aired in
1 the course of the appeal if it be relevant. It was, of
2 course, the unforeseen hostilities in Bosnia that -- in
3 Serbia that resulted in the hearings being reversed,
4 and I am just anxious that the appellant's position
5 ought not to be prejudiced as a result of those events.
6 Could I also indicate a position so far as
7 the appeal against sentence is concerned? For
8 completely separate reasons, we would apply to adjourn
9 the appeal against sentence until the same time but for
10 unconnected reasons. I think one of the reasons that I
11 need to advance in support of that application ought to
12 be aired in private session with the consent of the
14 JUDGE SHAHABUDDEEN: You would like to
15 present this aspect of your argument now?
16 MR. CLEGG: Yes.
17 JUDGE SHAHABUDDEEN: Perhaps I had better
18 hear from the Prosecution. Do you have any objections
19 to a private hearing?
20 MR. YAPA: We have no objections.
21 JUDGE SHAHABUDDEEN: Then Mr. Registrar, will
22 you ...
23 We have, in this institution, a whole house
24 and a halfway house: We have a closed session and we
25 have a halfway house in the form of a private session.
1 Which are you asking for?
2 MR. CLEGG: I think the halfway house will
4 JUDGE SHAHABUDDEEN: Halfway house. I
5 thought so. Private session.
6 (Private session)
13 Page 323 redacted - in private session
13 Page 324 redacted - in private session
13 (Open session)
14 JUDGE SHAHABUDDEEN: Would you say that that
15 Rule, Mr. Clegg, visualises that before the
16 commencement of the hearing of the appeal the applying
17 party should be in a position to specify the particular
18 evidence which it wishes to have admitted as additional
19 evidence? Now, I gather you are at the moment only
20 conjecturally in a position to do that, your position
21 being that whether or not you make a motion would
22 depend on what eventuates in the contempt proceedings
23 which are yet to take place?
24 MR. CLEGG: Yes. The Rule, in our
25 submission, ought to be read in the following way,
1 namely, not less than 15 days before the date of the
2 hearing when the additional evidence is to be
3 presented. So an appeal hearing may, theoretically, be
4 adjourned over many weeks or months. There's no
5 statute of limitations so far as the appeal is
6 concerned, and there is, in our submission, nothing
7 contrary to the Rules if, theoretically, next week
8 something were to emerge that everybody recognised
9 provided a powerful and compelling ground of appeal.
10 If one assumed that for one moment, then notice could
11 be given then 15 days before the hearing of the appeal
12 hearing when that evidence would then be tendered. I
13 don't accept that this Rule was intended to apply to 15
14 days before the beginning of the hearing. It's the
15 hearing when the witnesses are called, on the day when
16 the witnesses are called.
17 Of course, the purpose of the Rule is clearly
18 designed to allow the other side to have an opportunity
19 to consider the evidence and to make investigations as
20 to the veracity and accuracy of the evidence, which, of
21 course, will all be done, in fact, in the contempt
22 hearing, even, I anticipate, the extent of a judgement
23 being given as to whether the evidence is accepted by
24 this Appeals Chamber or not.
25 There's nothing in the Rule that would
1 prevent this. Indeed, if one just reflects for a
2 moment, it would be an absurdity if the Rule were to be
3 interpreted in that way because that could mean that
4 the most powerful and compelling evidence could not be
5 presented to the Appeals Tribunal merely because of an
6 entirely technical rule that had no merit behind it at
8 Hypothetically, next week, Mr. Vujin could
9 say that he had deliberately compromised the
10 appellant's trial. No one anticipates him to give
11 evidence to that effect but it's theoretically possible
12 that he did. If he were to say that, can it seriously
13 be the case that the Appeals Chamber would have to
14 close their mind to evidence of that nature? In our
15 submission, the answer to that must clearly be "no."
16 In considering how to apply Rules that, of
17 course, have been drafted, in a sense, in a vacuum
18 because these were drafted before the Court had ever
19 sat, they must be interpreted in a way that is
20 consistent with the interests of justice, as long as
21 that doesn't do violence to the words of the Rule.
22 In our submission, the only interpretation of
23 this Rule that doesn't do violence to the principles of
24 justice is the one that we have just adumbrated. I
25 would also submit that, despite the wording of the
1 Rules, there must be power for the parties to agree,
2 with the consent of the Court, to a shorter time limit,
3 if necessary. Obviously, I would anticipate in certain
4 circumstances one side or the other could apply for an
5 extension beyond 15 days.
6 We would submit that there's nothing in the
7 Rule to prevent this approach which I accede is
8 unusual, but it is borne out of a desire to ensure that
9 the appellant's case is not compromised as a result of
10 an unfortunate reversal of listing.
11 JUDGE SHAHABUDDEEN: Mr. Clegg, if I may say
12 so, that's a stimulatingly adventurous interpretation
13 of these facts. Perhaps we'd better hear from the
15 Mr. Prosecutor?
16 MR. YAPA: Your Honours, with great respect,
17 I beg to disagree with my learned friend on his
18 interpretation of the Rules that deal with the
19 admission of additional evidence.
20 Your Honours will be pleased to see that the
21 Rule that is material here is Rule 115 which comes in
22 Part Seven of the compendium of Rules under the heading
23 "Appellate Proceedings." Your Honours will see that
24 in terms of 115, there is a requirement that the motion
25 for the admission of additional evidence should be
1 served on the other party, in this case on the
2 Prosecution, and filed with the registrar not less than
3 15 days before the date of the hearing. This
4 particular hearing that is referred to is the hearing
5 before Your Honours, so that is what should have been
6 complied with.
7 Your Honours will be pleased to remember that
8 at a previous hearing too, I submitted to Your Honours
9 that with respect to the Rules, the Rules must be
10 implemented in the way that the Rules have been
11 formulated. So here it is quite clear, as the
12 Presiding Judge was pleased to say, that this
13 requirement in Rule 115 should have been complied
14 with. It is my submission that that has not been
15 complied with in this instance.
16 I thank Your Honours.
17 JUDGE SHAHABUDDEEN: Very good.
18 (Trial Chamber deliberates)
19 JUDGE SHAHABUDDEEN: The Court will suspend
20 for a few minutes to deliberate on your motion.
21 --- Break taken at 2.29 p.m.
22 --- On resuming at 2.48 p.m.
23 JUDGE SHAHABUDDEEN: The Court has
24 deliberated on the motion, and I pause to establish
25 this position, that we are dealing with one of the two
1 motions only; is that correct?
2 MR. CLEGG: That is right.
3 JUDGE SHAHABUDDEEN: Now, I should say in a
4 preliminary way that the Court does not agree with your
5 presentation insofar as it might have been designed to
6 suggest that the Court itself thought there was any
7 linkage in the sequence of hearings. It was only
8 accidentally and without forethought that the hearing
9 in the contempt matter was fixed before the hearing in
10 the appeal proper. So nothing really turns on the fact
11 that the hearing of the contempt matter may now take
12 place after the hearing of the appeal proper. The
13 motion for adjournment is refused.
14 The Court does not accept that the decision
15 in the appeal proper is to be dependent on a decision
16 in the contempt matter being first made. However, if,
17 in fact, the contempt matter is heard before a decision
18 is rendered in the appeal proper and if, in the course
19 of the hearing of the contempt matter, new evidence
20 surfaces, the Court will be prepared to consider any
21 motion by the appellant for the admission of such
22 additional evidence as additional evidence.
23 As regards the matter which was discussed in
24 private session a while ago, the position is this, that
25 the Court will ask the Prosecutor to report by 10.00 on
1 Wednesday as to whether the material to which you
2 alluded has any impact or would have any impact on the
3 sentencing exercise lying before us. What we will say
4 is that no decision on the sentencing aspects of the
5 case will be made before the Prosecutor has examined
6 the material and has reported back to the Court.
7 Now we will hear the second motion.
8 MR. CLEGG: I hope to briefly deal with the
9 second motion. It is an application under Rule 115,
10 not 15 days sadly before the hearing of the appeal, as
11 I have become consciously aware of during the course of
12 the afternoon.
13 To recall a witness who gave evidence at
14 trial who was given the identification mark of "W," he
15 has made a fresh statement in which he says that some
16 of his original evidence given before the Trial Chamber
17 was untrue and he's made a fresh statement correcting
18 that. The appellant personally is very anxious for
19 that to be brought to the attention of the Appeals
20 Chamber, and on his behalf, application is made under
21 Rule 115 to call this evidence to correct the false
22 position that arose at trial when he gave evidence
23 before the Trial Chamber. (redacted)
3 It is, of course, a matter entirely for the discretion
4 of the Appeal Chamber whether they wish to hear from
5 this witness or not.
6 JUDGE SHAHABUDDEEN: Mr. Clegg, would you
7 like to address the Court on an aspect which you
8 mentioned but which evidently you did not feel there
9 was any need for you to expand on, and that is the
10 reference in the Rule to 15 days. Would you say that
11 such an application should be made, at the latest, 15
12 days before the hearing?
13 MR. CLEGG: Well, the date on the statement
14 of the witness -- the witness statement has been made
15 within the last 15 days, so it has obviously been
16 impossible to comply with the Rule, but we would submit
17 that Rule 89(B) does enable the Chamber to admit the
18 evidence if the Chamber itself is satisfied that it is
19 necessary to do so in order for there to be a fair
20 determination of the appeal. Rule 89(B) provides:
21 "In cases not otherwise provided for in this
22 Section, the Chamber shall apply rules of evidence
23 which will best favour a fair determination of the
24 matter before it and are consonant with the spirit of
25 the Statute and the general principles of law."
1 Paragraph (C) also may be of some relevance:
2 "A Chamber may admit any relevant evidence
3 which it deems to have probative value."
4 We would submit that where evidence comes to
5 light not less than 15 days before the date -- less
6 than 15 days before the date of the hearing, there must
7 be a power, an inherent power, that the Appeal Chamber
8 has to admit the evidence. We would invite the Court
9 to determine the application on its merits rather than
10 on what we would submit is a procedural technicality.
11 JUDGE SHAHABUDDEEN: I ask you that question
12 because I think you yourself will appreciate that the
13 Court received this motion just minutes before the
14 Judges assembled on the Bench. My copy was received at
15 exactly a quarter to two this afternoon, and I don't
16 know that my colleagues were in a more advantageous
17 position than I.
18 Now, there are rules which give to the Court
19 a certain discretion in weighing and evaluating
20 evidence so as to make sure that justice is done, but
21 am I right that those rules imply that the evidence has
22 been admitted in accordance with the Rules of
23 Procedure? If the evidence has been admitted in
24 accordance with the Rules of Procedure, then the Court
25 may proceed to evaluate the evidence in the most just
1 manner. But do the Rules which you have read authorise
2 the Appeals Chamber to ignore any particular Rule?
3 There is a difference between saying that the Court may
4 evaluate evidence and saying that that authorises the
5 Court to bend or to ignore a Rule which regulates the
6 admission of evidence.
7 MR. CLEGG: I think the way that I would put
8 it, I think the only way that I can put it to the
9 Appeals Chamber is that if evidence does come to light
10 late in the day, then the Rules must be sufficiently
11 flexible to cater for that eventuality. The 15-day
12 rule is an entirely arbitrary time set, and, of course,
13 it is one that must be complied with where possible,
14 but where it is impossible to comply with a rule, then
15 we would argue that the general provisions apply and
16 take precedence.
17 I don't think I can put it any more
18 attractively than that.
19 JUDGE SHAHABUDDEEN: That is very attractive,
20 Mr. Clegg.
21 May I turn to the Prosecution and ask for any
23 MR. YAPA: If Your Honours will permit Brenda
24 Hollis, senior trial attorney, to respond to this?
25 MS. HOLLIS: Your Honours, the Prosecution
1 position is that this motion should be dismissed out of
2 hand for two reasons.
3 The first reason is that it is untimely, and
4 certainly if good cause is shown, any Court may suspend
5 a rule regarding the timing of filing something, but no
6 good cause has been shown here.
7 We find three things of interest to the
8 timing of this motion. First of all, if you look at
9 the date and time that this motion was faxed, it was
10 apparently faxed on the 16th of April. If you look at
11 the statement itself in the original language, it
12 appears that the date at the bottom of that is typed
13 the 17th of April.
22 We suggest the Defence knew of this evidence
23 as early as November of last year, that they have shown
24 no good cause as to why they waited until just before
25 this appeals hearing began to raise this issue, and
1 therefore, it is untimely, no good cause has been
2 shown, and it should be dismissed for that reason as
4 The second basis for our submission that this
5 should be dismissed out of hand is that if you look at
6 the substance of what they have submitted, you will see
7 that the substance has no significant variance from
8 what this witness testified to at trial. (redacted)
14 (redacted). So the
15 evidence itself is not relevant and it would have no
16 impact on the decision in this case.
17 For those two reasons, Your Honours, we ask
18 that you dismiss this motion out of hand. Thank you.
19 JUDGE SHAHABUDDEEN: Yes, Mr. Clegg.
20 MR. CLEGG: Save but to indicate that, in
21 fact, on the original fax, although it looks like a 7,
22 it is actually a 5. It is the 15th of April, is the
23 first fax, and I have the original here. But other
24 than just to clarify that, there is nothing that I wish
25 to say by way of reply.
1 JUDGE SHAHABUDDEEN: Mr. Clegg, the Court has
2 considered the motion, and the decision is that the
3 motion stands dismissed.
4 We turn to the appeals proper.
5 There is one case, and in that one case,
6 there are three appeals. On behalf of Mr. Tadic, there
7 are two appeals: one against conviction, one against
8 sentence. On behalf of the Prosecution, there is one
9 appeal against certain aspects of the judgement which
10 acquitted the appellant.
11 Now, we agreed on the 25th of January -- I
12 think that was the date when we last met -- that the
13 hearing would be comprehended within the time span of
14 this working week, and I think you, Mr. Clegg, were
15 good enough to say, well, it might even end one day
16 before, but we could keep the other day in cold storage
17 in case one needs to go beyond that.
18 I shall ask the registrar to pass around a
19 piece of paper in which we present a profile of the
20 time arrangements for this week. There are indicative
21 statements of time allotments in respect of each
22 speaker in each appeal and there are indicative
23 arrangements of the court's sitting time.
24 Let me start with the latter first. Today,
25 Monday, we are proposing to sit from 2.00 until 5.00
1 with a break, which we will take in a few minutes'
2 time, half-an-hour break; and on the following days, we
3 will sit from 10.00 in the morning until 5.30 in the
4 afternoon with two half-an-hour breaks and the lunch
5 break. We hope in this way to conclude by Thursday
6 afternoon at the latest.
7 Now, as for the time slots for each speaker,
8 those are set out in the upper part of this scheme, and
9 you will see what they are. Unless you have any
10 objections, the Court would propose that we proceed on
11 the basis of an arrangement of this kind, it being
12 understood that there will be flexibility to be
13 exercised whenever the occasion requires an exercise.
14 I will give each side a chance to pore over
15 the suggestions, they are only suggestions at this
16 stage, and then we will resume.
17 I may say that the members of the Bench have
18 read diligently the literature provided by each side,
19 and so we expect that counsel would be good enough to
20 see value in spending their time by merely highlighting
21 those particular aspects which they wish to emphasise.
22 MR. CLEGG: Having just cast an eye over the
23 time allotments, the period allotted for the
24 appellant's response to the Prosecution's cross-appeal
25 I think would be very tight.
1 JUDGE SHAHABUDDEEN: What would you like to
2 make it?
3 MR. CLEGG: I think two hours.
4 JUDGE SHAHABUDDEEN: Two hours. All right,
6 MR. CLEGG: I'm not sure whether the Appeal
7 Chamber has resolved to hear the sentence appeal before
8 judgement or was attracted at all to the suggestion that
9 I made of hearing the appeal on sentencing after
10 judgement when one knew for what offences the appellant
11 will be sentenced for.
12 JUDGE SHAHABUDDEEN: You mean after the
13 decision --
14 MR. CLEGG: After the decision, yes.
15 JUDGE SHAHABUDDEEN: -- on the appeal on
17 MR. CLEGG: Yes.
18 JUDGE SHAHABUDDEEN: Is that what you mean?
19 MR. CLEGG: Yes. Because there is a --
20 JUDGE SHAHABUDDEEN: You don't have any
21 objections to the appeal on sentence being heard?
22 MR. CLEGG: Yes. I would prefer to advance
23 our submissions in relation to sentencing once we knew
24 the decision on the appeal and cross-appeal.
25 JUDGE SHAHABUDDEEN: Isn't the position
1 this: If, if, the Prosecution were to succeed in its
2 appeal which challenges the acquittals in some cases,
3 then there would have to be a distinct sentencing
4 procedure insofar as the Prosecution succeeds. If they
5 fail, mind you, that's an end to the case. Wouldn't
6 that help you?
7 MR. CLEGG: Yes, it would. I think that
8 solved the problem.
9 JUDGE SHAHABUDDEEN: Isn't that what you were
10 saying, Mr. Yapa, this morning?
11 MR. YAPA: I think Your Honour has expressed
12 the meaning of the situation because the present appeal
13 on sentencing is the appeal from the judgement in the
14 trial court. The next stage will come after.
15 JUDGE SHAHABUDDEEN: So, Mr. Clegg, we are
16 now on the appellant's appeal on judgement. It is
17 nearly a quarter after three, very near to break time.
18 Would it be convenient for you to open your case at a
19 quarter to four?
20 MR. CLEGG: It would.
21 JUDGE SHAHABUDDEEN: In half an hour's time.
22 MR. CLEGG: It would.
23 JUDGE SHAHABUDDEEN: Then the court is
25 --- Recess taken at 3.14 p.m.
1 --- On resuming at 3.45 p.m.
2 JUDGE SHAHABUDDEEN: Mr. Clegg, you have the
3 floor for two and a half hours. We do not have the
4 signal lighting system, the red light system, under
5 which you are supposed to stop in the middle of the
6 word "if" when the light goes on, but we will ask the
7 registrar to keep time for us and to indicate when your
8 period has come to an end. You have two and a half
9 hours, and it's now, I would say, a quarter to four.
10 Yes, Mr. Prosecutor?
11 MR. YAPA: If Your Honours will be pleased to
12 give me a few moments and if my learned friend will
13 bear with me, my presence here as senior appeals
14 counsel in this appeal, if I may use the term, is
15 merely as a matter of formality. The appeal proper
16 will be argued by Ms. Brenda Hollis and Mr. William
17 Fenrick, who is due to come. He is indisposed today;
18 he will be coming subsequently. The others will
19 appear, I must say, because when I assumed the duty of
20 appeals counsel, the necessary papers had already been
21 filed and the work had been done by the team who will
22 be arguing the appeal. I thank you.
23 JUDGE SHAHABUDDEEN: We appreciate those
24 remarks. They are very graceful. We understand the
25 position entirely. We grasped that from a reading of
1 the skeleton arguments and so on.
2 I will return the microphone to Mr. Clegg.
3 MR. CLEGG: May I begin by considering the
4 first of the amended grounds of appeal which embraces
5 the question of whether the appellant had a fair trial
6 and whether his right to a fair trial was prejudiced by
7 the prevailing circumstances in which the trial was
8 conducted and the linked concept of whether there was
9 an equality of arms between the Prosecution and the
11 The starting point, in our submission, must
12 be Article 21 of the Statute to the Tribunal which says
13 in paragraph 2:
14 "In the determination of charges against
15 him, the accused shall be entitled to a fair and public
16 hearing, subject to Article 22."
17 So far as it may be relevant, in 4(b),
18 Article 21 says:
19 "In the determination of any charge against
20 the accused pursuant to the present Statute, the
21 accused shall be entitled to the following minimum
22 guarantees, in full equality:
23 "4(b) to have adequate and facilities for the
24 preparation of his defence and to communicate with
25 counsel of his own choosing."
1 Now, the words contained there in Article 21,
2 "entitled to a fair and public hearing," are words
3 that have been lifted effectively from Article 6 of the
4 European Convention on Human Rights where one can see a
5 mirror image of those very words appearing. We would
6 submit that, as a consequence of that, it's not just
7 legitimate but must be intended to use the case law
8 from the European Court in order to assist the Tribunal
9 in determining what amounts to a fair and public
11 Turning briefly to the development of this
12 law as embraced by the European Court, one can see how,
13 from the early days of the European Court, the
14 principles of a fair hearing and equality of arms was
15 embraced by the Court in a number of decisions that are
16 included in the appellant's bundle.
17 As early as the case of Kaufman and Kaufman
18 behind the second divider of the appellant's bundle,
19 one can see on page 115 a view by the commission, and I
20 emphasise "the commission," not the European Court
21 itself, but the commission, expressing an opinion that
22 the right to a fair hearing is a right which includes
23 the principle of equality of arms, and on the facts of
24 that case, it goes on to indicate that it does not
25 preclude States from regulating the exchange of
2 That principle is to be found in a series of
3 cases embracing, as it does, the principle of equality
4 of arms so far as parity exists between the Prosecution
5 and the Defence so far as access to the court is
6 concerned in relation to, in particular, the Court of
7 Cassation in Belgium, it embraces the principle of a
8 fair trial insofar as disclosure of information to the
9 Defence is concerned from information that is within
10 the knowledge of the Prosecutor, and it embraces the
11 principle that sufficient time must be allowed to the
12 Defence in order to prepare a case for trial.
13 All these principles are to be set out in the
14 cases contained in the appellant's bundle and they
15 embrace, in our submission, a principle of equality of
16 arms that, so far as the Courts have been able, seeks
17 to balance the position between Prosecution and Defence
18 in a criminal trial so that the greater resources that
19 are inevitably available to the Prosecution ought not
20 to work in such a way as to disadvantage a defendant.
21 In domestic courts, the same principles, we
22 would submit, have emerged under sometimes different
23 titles and different descriptions. Under the English
24 common law, the concept of staying a prosecution has
25 evolved by which the judge has an inherent power to
1 stop a prosecution being conducted where the conduct of
2 the prosecution amounts to an abuse of the process of
3 the court. Under the English common law as it's
4 evolved where no equality of arms existed, this could
5 cause an indictment to be stayed. In other words, a
6 judge could exercise his inherent jurisdiction to
7 prevent a trial proceeding.
8 Illustrations of that are to be found where
9 there has been excessive delay in bringing a
10 prosecution as a result of the prosecution failing to
11 proceed with the matter expeditiously; likewise, a
12 failure to disclose material evidence can also result
13 in that power being exercised.
14 Now, almost inevitably, because most
15 litigation is conducted within a national forum, the
16 concept of equality of arms has developed as a
17 balancing act between the Prosecution or the State and
18 the accused. In domestic jurisdictions, the situations
19 where a separate State has any influence in the conduct
20 of the criminal trial will be few and far between. So
21 one can see that the development of the law in relation
22 to equality of arms in both the national and
23 international jurisdictions has been developed in a way
24 that seeks to control a balance between the State or
25 the prosecutor on one side and the defendant on the
1 other, and hence one has issues such as access to
2 lawyers, reasonable time to prepare, disclosure of
3 material, all being factors which the court has
4 concluded must be balanced when one has an
5 investigation into whether there has been a fair
7 The distinction in this case is that the
8 fundamental complaint of the appellant is that it's not
9 the Prosecution who have been responsible for any
10 inequality of arms but it is the actions of an
11 independent government, namely, Republika Srpska which
12 we say has been responsible for the accused in this
13 case and the appellant here in being denied a fair
14 trial by obstruction of the Defence in the pre-trial
15 process and in failing to cooperate with the Defence.
16 Now, of course, that is something that is
17 quite outside the control of the Prosecutor and, in
18 reality, outside the control of the Trial Chamber.
19 Indeed, both the Trial Chamber and the Prosecutor
20 wanted the Defence to have a fair trial because all
21 were engaged in the pursuit of justice and justice can
22 only follow a fair trial.
23 The difficulty that one has to face in
24 considering this ground of appeal is assessing the lack
25 of equality between the parties brought about by an
1 outside agency separate and apart from the Court,
2 separate and apart from the Prosecution, namely, the
3 Republika Srpska. It is, in some sense, an extension
4 of the application of the principle of equality of arms
5 that we are inviting the Court to entertain in this
7 The Prosecutor's response to the grounds
8 advanced by the Defence clearly identifies this issue,
9 and they submit that, as a matter of settled law, the
10 complaint raised cannot amount to a ground of appeal on
11 the principle that the equality of arms has been
12 frustrated, because they indicate, and rightly so, that
13 the decided authorities are confined to circumstances
14 where the Court has some control over and jurisdiction
15 over the party that we submit is responsible for the
16 frustration of the fair trial.
17 I can indicate that we accept their analysis
18 and the limitations of the case that each side has
19 quoted, namely, Dombo Beheer and The Netherlands, which
20 is dealt with at paragraph 316 of the Prosecution's
21 reply, and I do not dissent from that analysis of the
23 There is, we would submit, no clear appellate
24 authority either way on the issue of extending the
25 principle of equality of arms to matters that are not
1 within the control of the Court or the Prosecutor. The
2 principle, however, we submit, that is fundamental to
3 the criminal code of all civilised countries is the
4 principle that an accused person should have a fair
5 trial. Rule 89 of the Rules of Procedure and Evidence
6 of this Tribunal import into the international arena
7 that concept of a fair trial that is hitherto developed
8 in various national courts.
9 In a wholly different context, I have already
10 referred the Court to those Rules this afternoon, but
11 they are, we submit, of vital importance for the
12 determination of this ground of appeal. Rule 89(B)
14 "In cases not otherwise provided for by this
15 Section, a Chamber should apply rules of evidence which
16 will best favour a fair determination of the matter
17 before it and are consonant with the spirit of the
18 Statute and the general principles of law."
19 Rule 89(D):
20 "A Chamber may exclude evidence if its
21 probative value is substantially outweighed by the need
22 to ensure a fair trial."
23 So it is quite clear, we would submit, that
24 the draftsman of the Rules plainly had at its forefront
25 the question of ensuring that the need for a fair trial
1 was inherent to the trial process set up under the
2 Security Council for this particular case.
3 In a number of domestic jurisdictions, courts
4 at first instance have wrestled with the difficulty of
5 trying people where it has been alleged that outside
6 agencies have frustrated the need or the possibility of
7 a fair trial. In recent years, the English courts have
8 tackled the difficult problem of trying men accused of
9 war crimes committed in Eastern Europe in the Second
10 World War. As part of that trial process, applications
11 were made that a fair trial was not possible because of
12 the actions of the Russian and Belarussian government
13 and government agencies in effectively frustrating the
14 defendant's attempts to obtain both documents and
15 witnesses from each of those jurisdictions.
16 On the evidence in each of those cases, the
17 court held that the Defence had not satisfied the court
18 that any such frustration had occurred or if it had
19 that it had any material effect on the fairness of the
20 proceedings, but the court entertained the application,
21 and by the entertaining of the application was their
22 acceding to the principle that if it could have been
23 demonstrated that an outside agency, namely, the
24 government of either Russia or Belarussia, had been
25 demonstrated to have frustrated the object of the court
1 to have a fair trial, then the court indicated that it
2 would, in fact, have stayed the indictment by which the
3 judge would have intervened and prevented the trial
4 proceeding if he had felt that that action had
5 prejudiced the --
6 JUDGE SHAHABUDDEEN: Mr. Clegg, was there a
7 written ruling?
8 MR. CLEGG: There was no written judgement in
9 either of those cases. It were heard only at first
10 instance and not on appeal. In relation to the first
11 such case, the defendant was found medically unfit to
12 stand his trial, so there was no appeal.
13 JUDGE SHAHABUDDEEN: In this case, did the
14 Defence move at the trial level for the Court to stay
15 the proceedings on the ground of lack of cooperation on
16 the part of a certain state?
17 MR. CLEGG: Yes.
18 JUDGE SHAHABUDDEEN: There was a motion?
19 MR. CLEGG: There was. That was one I made
21 JUDGE SHAHABUDDEEN: In time, you will draw
22 attention to that, please.
23 MR. CLEGG: Yes. The position so far as that
24 case -- in fact, there were two cases -- were
25 concerned, that have been the only two trials in
1 England of alleged war criminals from the Second World
2 War, in each case a motion was made to the trial judge
3 before the jury were impannelled, inviting the trial
4 judge to intervene and stay the indictment by which he
5 would have prevented the Prosecution from continuing on
6 the grounds that the governments of Russia and
7 Belarussia had, through the agency, primarily the KGB,
8 either refused to disclose documents to the Defence
9 that were submitted would be relevant and helpful
10 and/or frustrated the Defence's attempt to contact
12 As a question of evidence under the common
13 law, there is a burden on the Defence to satisfy the
14 Court on a balance of probabilities that that
15 evidential position has been achieved, and the Court
16 held in each case that the Defence had not discharged
17 the evidential burden that was on them in order to
18 demonstrate that such frustration had taken place. But
19 the reliance, such as it is, that I place upon that
20 decision, as an illustration of the common law,
21 entertaining such an application where the frustration
22 or, another way of putting it, the lack of equality
23 between the parties, was not something that the Court
24 itself had any direct control over -- indeed the
25 Prosecution had no direct control over it -- it was
1 something that was orchestrated by an outside agency,
2 if it be orchestrated at all, and the Court held that
3 there was no evidence that there had, in fact, been
4 frustration, but by entertaining the application, the
5 Court was thereby indicating that certainly under the
6 common law as it has developed, the pursuit of a fair
7 trial and the pursuit of a concept of a fair trial was
8 such that they would have prevented a case continuing
9 if they were satisfied that an outside agency, such as
10 an organ of the state of Belarussia or Russia, had
11 prevented the Defence either obtaining exhibits or
12 witnesses in such a way that, in the opinion of the
13 Court, frustrated the object of a fair trial.
14 So that is the way I use those cases, merely
15 as an illustration of how the common law has developed,
16 and indeed we would submit that the cross-appellant's
17 response to the appellant's brief on appeal, filed on
18 the 12th of January of 1998, concedes at paragraph 3.21
19 this concept. If I could perhaps read from the
20 cross-appellant's brief? It says under the heading of
21 (d) of "Manifest injustice":
22 "The Prosecution does not deny that in
23 certain circumstances it could amount to a violation of
24 fundamental fairness or a manifest injustice to convict
25 an accused who was unable to secure the attendance at
1 trial of significant Defence witnesses."
2 It goes on to say:
3 "At the same time, it is clear that a court
4 cannot be prevented from trying and convicting a person
5 merely because the accused claims that there are
6 witnesses who could prove his or her innocence but who
7 cannot be made to testify. Any accused can make this
8 claim. It is not per se a manifest injustice to
9 convict an accused following a trial at which one or
10 more potential witnesses were unavailable."
11 There is there a quote from authority in both
12 the United States of America and Europe.
13 The cross-appellant's submissions continue:
14 "It is therefore necessary in each specific
15 case to examine the exact circumstances which are said
16 to have prevented the attendance of the relevant
18 "In cases where the Defence encounters
19 difficulties either identifying or obtaining the
20 presence of Defence witnesses, there are a variety of
21 measures that can be ordered by the Trial Chamber ..."
22 And it there sets them out.
23 It then says at paragraph 3.25:
24 "If the Defence is unable to obtain the
25 presence of certain witnesses, this may be because:
1 (1) either the Defence was not aware of the
2 existence of the witnesses or, being aware of their
3 existence, failed to inform the Trial Chamber of the
4 difficulties and request that measures of this kind be
5 ordered; or
6 (2) the Defence did request measures of this
7 type, but the Trial Chamber refused to grant them; or.
8 (3) the Trial Chamber did order measures of
9 this kind, but the witnesses nevertheless did not
10 attend ..."
11 Now, as a principle of the proper approach to
12 this submission, we would respectfully adopt the
13 argument contained in the cross-appellant's response,
14 and the crucial paragraph, we submit, is 3.21 where the
15 Prosecution says:
16 "The Prosecution does not deny that in
17 certain circumstances it could amount to a violation of
18 fundamental fairness or a manifest injustice to convict
19 an accused who was unable to secure the attendance at
20 trial of significant Defence witnesses."
21 We would submit that that is a concession
22 rightly made by the Prosecution, that the state of the
23 law as developed does embrace the position whereby the
24 frustration of a fair trial is due to the actions of an
25 outside agency not under the control of either the
1 parties to the case or the Trial Chamber themselves.
2 From that starting point, we would invite the
3 Court to proceed to consider whether, on the facts of
4 this case, the appellant can demonstrate that there has
5 here been a violation of the fundamental fairness
6 and/or the manifest injustice spoken of by the
7 Prosecution resulting from the inability to secure the
8 attendance of significant Defence witnesses. In our
9 submission, the Court can be so satisfied.
10 Since the filing of the Prosecution's
11 response on the 12th of January of 1998, judgement was
12 given in the Rule 115 application made on behalf of the
13 appellant on the 15th of October of that same year.
14 The judgement, in our submission, is of considerable
16 The Court held in that judgement that the
17 witnesses for which application was made fell into a
18 number of different categories. One of those
19 categories, Category 3, was a category of witness and
20 evidence which existed at trial but of which the
21 Defence was unaware; and so far as that category is
22 concerned, the Appeals Chamber found that the appellant
23 had proved sufficient indication that these witnesses
24 and materials were unknown to the Defence despite the
25 exercise of due diligence and thus not available at the
1 time of trial.
2 This evidence, in our submission, reflects
3 the difficulty faced by Defence counsel in preparing
4 and conducting this particular case at trial and
5 reflects and is reflective of the lack of cooperation
6 that existed from the government of Republika Srpska.
7 There was a separate category of evidence
8 considered by the Appeals Chamber in the same judgement,
9 and that was Category 4, which was headed "Material
10 which the Appellant was unable to adduce at trial," and
11 that category related to witnesses of whom the Defence
12 was aware at the time of trial but whose evidence they
13 were unable to produce, and the material fell into a
14 number of sub-categories, one of which was witnesses
15 who were alleged to have been intimidated.
16 Now, so far as that category of witnesses is
17 concerned, it is right to say that the Appeals Chamber
18 was satisfied that due diligence was not exercised
19 because no attempts had been made to obtain protection
20 for those witnesses from this Tribunal, and I don't
21 seek in any way to go behind that decision, but if one
22 reflects for a moment on the two categories that I have
23 just analysed, one is witnesses who were intimidated
24 and, secondly, those witnesses of whom the Defence were
25 unaware, it is not possible, in our submission, to draw
1 a clean line between those two categories of
2 witnesses. There must be, inevitably, an overlap
3 between the two.
4 The clear inference -- indeed it is more than
5 an inference; it is the only conclusion consistent with
6 the judgement -- of why witnesses could not be found, in
7 other words, why were there so many witnesses of which
8 the Defence were unaware, the reason for that was
9 because of the lack of cooperation that had been given
10 by the government of Republika Srpska who did
11 everything that they could to seek to frustrate the
12 legitimate attempts of the Defence in seeking to
13 identify and locate and bring to this Trial Chamber
14 witnesses who would be able to assist the Court.
15 The effect, in our submission, of the actions
16 of the Republika in frustrating the work of those
17 charged with defence of this appellant before the Trial
18 Chamber, has been to deny the appellant the right of
19 calling before the Trial Chamber evidence that is
20 relevant and admissible, and it is that, we submit,
21 that is a fundamental frustration of his right to a
22 fair trial.
23 The witnesses that fell into the category of
24 potential witnesses of which the Defence were unaware
25 were all witnesses whom the Appeals Chamber accepted
1 were witnesses who could give relevant evidence, they
2 were all witnesses who could give admissible evidence,
3 they were all witnesses who were capable of providing
4 evidence that would be probative of the charges laid
5 against the accused. The fact is that the Trial
6 Chamber heard none of those witnesses. Had the
7 appellant's lawyers charged with his defence before the
8 Trial Chamber known of the existence of those
9 witnesses, then the Court may be satisfied that
10 exercising the due diligence that they showed
11 throughout the trial below, then they would have called
12 those witnesses as part of the appellant's case and he
13 had an absolute right for that evidence to be called.
14 Nobody could prevent him calling relevant and
15 admissible evidence.
16 The position is that as a result of the
17 obstruction that the Defence team received from
18 Republika Srpska, which one can see illustrated in the
19 judgement of this Appeals Chamber who have accepted the
20 allegations of intimidation in relation to other
21 witnesses so their actions in frustrating the Defence
22 are clearly identified, the effect of that is that the
23 evidence that would otherwise have been admissible as
24 of a right was only admissible -- and I am reading from
25 paragraph 72 of the Appeals Chamber judgement; this is
1 the 115 judgement of this Chamber on the 15th of
2 October, 1998, paragraph 72:
3 "The Appeals Chamber would only add that in
4 applying these --"
5 Sorry. It is paragraph 71.
6 "The task of the Appeals Chamber at this
7 stage is to apply a somewhat more flexible formula of
8 Rule 115 of the Rules, which requires the Chamber to
9 'authorise the presentation of such evidence if it
10 considers that the interests of justice so require.'
11 For the purposes of this case, the Chamber considers
12 that the interests of justice require admission only
14 (a) the evidence is relevant to a material
16 (b) the evidence is credible; and.
17 (c) the evidence is such that it would
18 probably show that the conviction was unsafe."
19 It is those words, "probably show that the
20 conviction was unsafe," that in our submission
21 demonstrate how the trial of the appellant was rendered
22 unfair by the Defence being prevented from access to
23 this class of witnesses.
24 The decision of the Appeals Chamber clearly
25 indicates that there is a burden on the appellant to
1 show that the conviction was unsafe before evidence
2 would be admitted. The effect of that is to reverse
3 the burden of proof at the Appellate stage. At Trial
4 Chamber stage, the appellant had an absolute right to
5 call those witnesses. He didn't have to satisfy any
6 burden of demonstrating that it would probably show
7 that he was not guilty or any other hurdle. He had an
8 absolute right to call that evidence. He lost that
9 right after conviction and, at the Appellate stage, he
10 has to discharge a burden placed on him before evidence
11 can be admitted at this stage. One reason for that, of
12 course, being the necessity to have the principle of
14 I am not suggesting that the Appeals Chamber,
15 this Chamber, adopted the wrong test in the judgement
16 that it gave in October of last year; what I am doing
17 is demonstrating how, if that test is the right test,
18 and I accept it is at this stage, the burden being on
19 the appellant, that if the appellant can demonstrate
20 that those witnesses or some of those witnesses who
21 fall into that category would have been available to
22 him at the trial stage, then he has suffered unfairness
23 in that he has lost the opportunity and the right to
24 present witnesses before the Court, which is absolute.
25 Therefore, the question for the Court to
1 address, I would submit, is whether the conclusion from
2 what happened at the trial, and what has happened
3 since, can be safely drawn that there was obstruction
4 of the Defence and that without that obstruction, one
5 could reasonably presume that those witnesses or, at
6 any rate, some of them, would have been able to have
7 been found in time for the appellant to have called
8 them in his trial, and we would submit that if we can
9 demonstrate that witnesses were not called or could not
10 be found because of obstruction and they were relevant
11 and material, then the appellant did lose his right to
12 a fair trial because he lost the right to present his
13 case in its best light and he lost the right to call
14 witnesses on his behalf because he has no right to do
15 so on appeal, he only has the power to call them if he
16 discharges the burden that rightly exists on him and
17 the Court exercises discretion in his favour. He has
18 no right to do it thereafter. If he has lost that
19 right, then we would submit he has lost his right to a
20 fair trial.
21 If we go back just for a moment to the
22 skeleton of the Prosecution, the Prosecution does not
23 deny that in certain circumstances it could amount to a
24 violation of the fundamental fairness or a manifest
25 injustice to convict an accused who was unable to
1 secure the attendance at trial of significant Defence
2 witnesses. Now, that concession having been made, we
3 have and can identify significant Defence witnesses who
4 we were unable to secure the attendance at trial of.
5 We know for one reason that the Court has accepted,
6 that the trial lawyers exercised due diligence in their
7 search for witnesses, so we know that it is not the
8 fault of the Defence lawyers that they were not found.
9 We also know, and they are sobering words to
10 reflect on today, that in the opening remarks of
11 Mr. Wladimiroff, then lead counsel on behalf of the
12 appellant at his trial, he said at page 9 -- this is
13 all, I think, in Annex 1 of the appellant's amended
15 "The fact that this trial is starting today
16 does not provide us with a definitive answer. It
17 should be seriously considered that the conditions
18 required for a fair trial may ultimately not be
19 fulfilled. The reasons have already been given.
20 Uncertainty as to whether, at a certain stage, a point
21 is reached at which the conclusion has to be that a
22 fair trial is no longer possible is a great cause of
23 concern to the Defence."
24 A little later, he said, page 11:
25 "The people living in this area are
1 scattered, they are threatened, they are afraid, and
2 the local authorities are answerable for that. Under
3 such conditions, it is very hard to conduct a fair
4 trial. Should it appear that the legal and factual
5 circumstances prevent the Tribunal from finding the
6 truth, then in our opinion, the limit of fairness is
7 exceeded. The intention to conduct a fair trial is not
8 sufficient. The point is that all conditions for a
9 fair trial should actually be fulfilled."
10 At page 17:
11 "The pre-trial proceedings have shown a
12 serious inequality of arms in that all the Prosecution
13 witnesses are outside Republika Srpska and that all
14 authorities, except those of Republika Srpska, have
15 fully cooperated with the Prosecution in this case. In
16 the weeks to come, we shall see how this lack of
17 equality of arms affects the trial itself."
18 Finally, at page 28:
19 "We have informed you of our grave concerns
20 about the proceedings of this trial. There are many
21 problems which have not been solved and there are many
22 indications that these problems will not be solved. We
23 are, therefore, deeply concerned about the quality of
24 this trial. We fear that eventually it will not meet
25 the demands of justice."
1 So they are sobering words --
2 JUDGE SHAHABUDDEEN: Mr. Clegg, at what stage
3 did Mr. Wladimiroff make that statement?
4 MR. CLEGG: He made that statement on the
5 very first day of the trial, and, of course, it is
6 perfectly right to say that in the intervening months,
7 of which there were many, the Trial Chamber did
8 everything that it could to assist the Defence, and,
9 indeed, at the close of the Prosecution's case, there
10 was a substantial adjournment of weeks rather than days
11 to enable the Defence to make further efforts in the
12 material area to try to trace and find witnesses.
13 I make it plain that we are not suggesting
14 for one minute that the Trial Chamber did anything
15 other than its utmost to try to ensure that there was a
16 fair trial. They gave every assistance that they could
17 to Mr. Wladimiroff and his team, and it is, of course,
18 not suggested that the Prosecution in any way sought to
19 frustrate the object of a fair trial.
20 The effect, nonetheless, was that despite
21 every assistance, despite the substantial adjournment
22 that was granted, despite all the cooperation, the
23 witness protection, the anonymity, the taking of
24 evidence by video, and every other expediency that the
25 Court used, despite all that, we know that there was a
1 substantial body of relevant and admissible evidence
2 that was not identified despite the exercise of due
3 diligence by Mr. Wladimiroff and his team.
4 Before the case commenced, he had indicated
5 in the clearest of terms that the Defence and he were
6 concerned about the ultimate fairness of the trial, and
7 we would invite the Court to accept that he is not an
8 advocate that would have used words like that lightly.
9 It was clearly --
10 JUDGE SHAHABUDDEEN: Did he later, in the
11 course of the proceedings, revert to that matter by
12 making a motion for staying the proceedings on the
13 ground that it was materially impossible to ensure a
14 quality of arms?
15 MR. CLEGG: He did not. The difficulty, I
16 think, was two-fold, and the first is identified in
17 another passage in his opening where he says -- and I
18 hope I do justice to his words -- he asks the question
19 rhetorically of the Trial Chamber, "Why, you may ask
20 yourselves, am I not applying for an adjournment if we
21 cannot have a fair trial?" He answers that question by
22 saying that the appellant Tadic had by then been in
23 custody for two years waiting for his trial and that
24 there must obviously be a limit to how long a man can
25 be kept in prison unconvicted whilst the trial is being
2 Therefore, it is a difficult balancing act
3 for Defence advocates in a situation such as
4 Mr. Wladimiroff had in weighing up the conflicting
5 pressures of the need for a reasonably speedy trial -
6 to use the word "speedy" after two years is a little
7 bit difficult, but the Court understands what I mean by
8 that - against the disadvantages of yet more delay,
9 perhaps an open-ended delay, whilst one waits for real
11 The other difficulty, of course, is that the
12 very nature of the obstruction that Mr. Wladimiroff and
13 his team faced prevented them knowing of the existence
14 of the witnesses who could help, and, therefore, he was
15 not in a position in relation to the witnesses who fall
16 into that category whom I identified as witnesses who,
17 despite the exercise of all due diligence, could not be
18 traced, without knowing of their existence, it was
19 clearly impossible to make any sensible motion to the
20 Trial Chamber seeking to adjourn the hearing.
21 One of the inherent problems with the type of
22 frustration that he identified here and the court has
23 examples of is that the ground conditions were such and
24 the response of the local authorities was such that you
25 didn't know whether there were, in fact, any witnesses
1 there who would be able to help.
2 If one had been preparing the case in a
3 situation in which one would be more familiar, in a
4 domestic jurisdiction, then there would be no
5 difficulty in seeking to trace witnesses by any one of
6 the many methods that I used in the preparation of any
7 domestic criminal trial, by using private investigators
8 or relying upon the assistance of the police
9 authorities in helping to trace witnesses, so on and so
10 forth. None of that realistically was possible in the
11 preparation of the Defence case here. Indeed, the
12 police were as obstructive as they could conceivably
13 be. The Appeals Chamber has had experience of having
14 to make orders of compulsion against the State in order
15 to seek to force cooperation at the appellate stage.
16 So one can see a history of consistent obstruction and
17 frustration of the Defence case.
18 We would invite the Appeals Chamber not to
19 regard the failure of Mr. Wladimiroff, his failure in
20 seeking to make a motion to adjourn, as reflective of
21 the fact that he was in any way satisfied that the
22 preparation of the defence of the appellant was not
23 being frustrated. It may be it wasn't being frustrated
24 as much as he -- maybe he was not aware of the degree
25 of frustration. There's no reason why he could have
1 been, and clearly he could not have known that these
2 particular witnesses had been kept out of his way, if
3 that's a polite way of putting it. He had not been
4 allowed access to clearly material witnesses on the
5 visits that we all know that he made to the area.
6 We would say that his failure to raise the
7 matter again by way of formal motion ought not to be
8 held against the appellant at this stage.
9 Mr. Wladimiroff certainly did, at the end of the
10 Prosecution case, obtain a significant adjournment to
11 try to remedy matters. I think that the adjournment
12 was something like four weeks at that stage of the
13 trial, but I'll check the exact period overnight.
14 If I could perhaps conclude this evening by
15 drawing together the strands of our submission so far
16 as the first ground of appeal are concerned. I have
17 taken the Court very swiftly, and I hope not too
18 swiftly, through what we say has been the development
19 of the principle of equality of arms and the principle
20 of a fair trial through both the international
21 jurisdiction of the European Court and national
22 jurisdictions concentrating, I confess, largely on the
23 English common law, but they are, we would submit,
24 principles that are well-founded and to be found really
25 within most jurisdictions of the world.
1 The effect, we say, of the frustration of the
2 Defence was that witnesses who the Court has determined
3 were relevant and would have been admissible at trial
4 stage were not called. They are identified. The Court
5 will never hear from them. That has the capacity of
6 preventing a fair trial. The Prosecution concede that
7 in their own skeleton.
8 The first question, we submit, that the
9 Appeals Chamber needs to address is whether the Court
10 can be satisfied that the Defence at trial were denied
11 access to those witnesses by the Government of Srpska,
12 by their policy of non-cooperation. We would submit
13 that the effect of the judgement already delivered by
14 this Chamber is to recognise that there was that
15 element of frustration and obstruction.
16 The second question is whether that so
17 created such an imbalance between the parties that the
18 right to a fair trial was frustrated. Clearly, if one
19 witness had been kept hidden from the Defence on some
20 marginal and peripheral issue in the case, then the
21 absence of that one witness would not by itself be
22 sufficient to demonstrate that there had been an
23 inequality between the Prosecution and the Defence such
24 that would render the trial unfair.
25 It is a question, we would submit, of weight
1 and balance, and we would submit that the volume of
2 evidence and the effect of the evidence that the Trial
3 Chamber was, in reality, denied here was such that
4 created such an imbalance between the Prosecution and
5 the Defence that the defendant's right to a fair trial
6 was, in truth, frustrated.
7 Now, there's nothing, Your Honour, like the
8 pressure of a timetable to bring an advocate very
9 swiftly through his argument, and I don't think I
10 really need to say or want to say anything further
11 about the first ground of the appeal. It is now just
12 after ten minutes to five. I think I would prefer, if
13 the Trial Chamber agreed, to deal with the third ground
14 of appeal in one submission tomorrow morning, rather
15 than have it divided overnight. I will conclude well
16 inside my allotted two and a half hours. I'm building
17 up some credit already.
18 JUDGE SHAHABUDDEEN: Mr. Clegg, the Chamber
19 agrees with your proposal that you should break new
20 ground in the morning, and I think I speak on behalf of
21 my colleagues in saying that we appreciate that the
22 time schedule which we presented has had this good
23 effect, as demonstrated by your presentation that you
24 have been able to focus on matters of central
25 importance to the point which you have dealt with.
1 Perhaps tomorrow when you return, you might
2 like to think of one point which has occurred to me,
3 and it is this: Is it conceivable that, in a possible
4 case, the Prosecution can be in a position similar to
5 that which you have been presenting? So that if the
6 accused were acquitted, could the Prosecution appeal
7 from the acquittal on the ground that there had been no
8 material equality of arms? Perhaps in the morning you
9 would like to help the bench with your thoughts on that
11 MR. CLEGG: I will reflect on that
13 JUDGE SHAHABUDDEEN: Any objections to an
14 adjournment at this stage?
15 MR. YAPA: No. No objections.
16 JUDGE SHAHABUDDEEN: Then the Court stands
17 adjourned until 10.00 in the morning.
18 --- Whereupon the hearing adjourned at
19 4.53 p.m., to be reconvened on Tuesday,
20 the 20th day of April, 1999 at
21 10 a.m.