Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Monday, 26 October 2009

 2                           [Open session]

 3                           [The accused not present]

 4                           --- Upon commencing at 9.03 a.m.

 5             JUDGE KWON:  Would the Registrar please call the case.

 6             THE REGISTRAR:  Thank you and good morning, Your Honours.  This

 7     is case number IT-95-5/18-T, the Prosecutor versus Radovan Karadzic.

 8             JUDGE KWON:  Good morning, everyone.

 9             The Trial Chamber is sitting today to commence the trial in this

10     case, as intimated in our Scheduling Order issued on 14th October.  I

11     would like first to have appearances for the Prosecution.

12             MR. TIEGER:  Good morning, Mr. President, Your Honours.

13     Alan Tieger, Hildegard Uertz-Retzlaff, and Iain Reid appear for the

14     Prosecution.

15             JUDGE KWON:  Thank you, Mr. Tieger.

16             I note that the accused, Mr. Karadzic, is not present.  I also

17     note that as he has chosen to represent himself in these proceedings to

18     date, there's no counsel present on his behalf.  Last week, on

19     21st of October, Mr. Karadzic filed a submission, stating that he would

20     not appear for today's hearing on the basis that he's not fully prepared

21     for the commencement of trial.  The Trial Chamber carefully considered

22     this submission, and on 22nd October we sent a letter to Mr. Karadzic,

23     urging him to reconsider his decision.  Clearly, he has not done so.

24             I would now like to read a portion of that letter.  I quote:

25             "I remind you that it is the statutory responsibility of the

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 1     Chamber to ensure the fair and expeditious conduct of the trial.  As the

 2     Chamber has done throughout the pre-trial phase, we will continue to do

 3     our utmost to ensure that your rights are protected during the trial.  I

 4     also note the Trial and Appeals Chamber decisions determining that your

 5     case is ready for trial and that you have had sufficient time to prepare

 6     for it.  There has been no adverse consideration as to timing or any

 7     other issue in respect of your election to self-representation.  Indeed,

 8     for one example, the element of rights of audience to Mr. Peter Robinson,

 9     legal advisor, took that election very much into consideration.  The

10     Trial Chamber would regret the loss of Mr. Robinson if that was to be a

11     consequence of your non-attendance at trial.

12             "While the Statute of the Tribunal guarantees all accused persons

13     the right to be tried in their presence and to defend themselves in

14     person or through legal assistance, there are circumstances in which

15     trials can proceed in the absence of an accused who has voluntarily

16     waived his right to be present.  There are also circumstances in which a

17     Chamber can assign counsel to an accused if his self-representation is

18     substantially and persistently obstructing the proper and expeditious

19     conduct of the trial.  I encourage you to take this into consideration in

20     your decision on whether to attend the 26th October hearing.

21             "I would also like to note that pursuant to Rule 84 of the

22     Tribunal's Rules of Procedure and Evidence, you may elect to make your

23     opening statement after the conclusion of the Prosecution's case rather

24     than at the commencement of the trial.  Therefore, should you consider

25     that you are not in a position to make your opening statement at this

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 1     time, you may make it at a later stage.

 2             "Furthermore, should you determine during trial that you are not

 3     in a position to cross-examine any of the Prosecution's witnesses, you

 4     may bring this to the attention of the Chamber, giving reasons.  The

 5     matter will then be considered by the Chamber on a case-by-case basis and

 6     appropriate relief may be granted."

 7             Mr. Karadzic sent a letter in response on 23rd October,

 8     reiterating his earlier position.  The Registry will convey the

 9     transcript and audio recording of today's proceedings to the accused and

10     his assigned legal advisors.  By this method, the Chamber wishes to again

11     encourage Mr. Karadzic to attend these proceedings and reiterates that

12     there are measures that may be taken should he continue to obstruct the

13     progress of the trial.

14             Before going any further, I would like to hear from the

15     Prosecution on whether it has anything to say on the matter at this time.

16             Ms. Uertz-Retzlaff.

17             MS. UERTZ-RETZLAFF:  Thank you, Your Honour.  The accused, while

18     all the way opposing today's start of trial, has used all the legal

19     remedies he had available.  He has appealed the decision of the

20     commencement of trial.  His appeal was dismissed in a decision of the

21     Appeals Chamber on the 13th of October this year.  The accused, despite

22     having exhausted the legal remedies, now wants to delay the commencement

23     of trial through other means.  Despite the clear decisions of the

24     Trial Chamber and the Appeals Chamber that this trial is ready to start,

25     in his submission of the 21st October, he states he's not ready to start.

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 1     And he also says in this submission:

 2             "As soon as I am prepared, I will be happy to inform the

 3     Trial Chamber and the OTP a few weeks in advance."

 4             In other words, the trial can only start if the accused says it

 5     should.  However, as the Presiding Judge has pointed out and as was

 6     stated in the letter of the Trial Chamber of the 22nd of October, 2009,

 7     it's a statutory obligation of the Trial Chamber to decide on this

 8     matter.  And the Trial Chamber has decided on this matter and has

 9     scheduled the trial to start today.  And that is why my colleague,

10     Mr. Tieger, is prepared to give his opening statement today.

11             In his submission of the 21st October, the accused only

12     reiterates his earlier submissions on why the trial should not start.

13     There is nothing new in there.  Of course it is a complex case and of

14     course the disclosure is massive, but that was already considered by the

15     Trial Chamber and as well by the Appeals Chamber.  The accused, again in

16     his submission of the 21st of October, has argued that he's unable to

17     review all material and he cannot be prepared -- his preparation cannot

18     be completed by today's date.  But that's not needed and the accused was

19     told so in both decisions that I just mentioned.

20             I only want to address four additional points that were not

21     specifically addressed in that -- in the two decisions, but they do have

22     a bearing on the fact that he can start this trial today.  The first one

23     is the Trial Chamber will sit only three days in the week until Christmas

24     break.  This gives the accused additional time to prepare for each of the

25     witnesses that are coming.

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 1             JUDGE KWON:  Just a correction, two or three days.

 2             MS. UERTZ-RETZLAFF:  Two or three days.  Even worse.  The accused

 3     has been provided with a witness list not only for October, November,

 4     December, but actually up to mid-February, so he can plan long-term and

 5     he can use the Christmas break for further preparations.

 6             The first three witnesses of the Prosecution, they will be victim

 7     witnesses and there is no extensive preparation needed for victim

 8     witnesses.  The next two witnesses, of course, are quite complex and the

 9     Prosecution is not generally opposed to the provision of additional time

10     for preparation of the accused.  However, this should be decided during

11     the trial on a case-by-case basis and not on the day before we start.

12             In its order on the procedure for the conduct of trial on the

13     8th of October, 2009, the Trial Chamber permitted the accused's legal

14     advisor, Mr. Robinson, to be present in court and to address the Court.

15     That's an additional element that assists the accused, and this is why I

16     sum up and say there is no reason today to not start the trial.

17             The accused has decided not to attend the trial and he has

18     indicated in his letter that he will persist in failing to attend the

19     trial until he thinks he should come.  This will substantially and

20     persistently obstruct the proper and expeditious conduct of trial.

21             This Trial Chamber is faced with two choices:  Either allowing

22     the accused to continue to represent himself and thus frustrate these

23     proceedings; or to assign counsel.  As a self-represented accused his

24     presence is necessary to start this trial and his refusal to attend

25     effectively blocks the commencement.  The Trial Chamber should therefore

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 1     impose counsel in order to prevent the fundamental obstructions of these

 2     proceedings.

 3             There are -- there is a legal standard.  The legal standard is

 4     actually met.  An accused's right to be present at this trial can be

 5     waived subject to certain conditions.  One such condition is that the

 6     interests of the accused be represented by counsel in order to safe-guard

 7     the accused's other rights.  Because he is currently self represented,

 8     the accused's presence in court is necessary in order to guarantee the

 9     effective exercise of its rights and this applies actually from the very

10     start, including the opening statement.  As a result, the accused's

11     failure to attend would prevent the trial to commence, and taken his word

12     and his previous submissions, it would actually be on hold for

13     approximately eight months because two months ago he was speaking about

14     ten months he would need.

15             Preventing the commencement of trial in this manner would

16     substantially and persistently obstruct the proper and expeditious

17     conduct of this trial and the only way to overcome this is to -- is

18     imposition of counsel.

19             Your Honour, the other aspect that I would like to address

20     briefly is the necessary warning that is needed to the accused.  The

21     Trial Chamber in its letter of the 22nd of October, 2009, has referred to

22     that, that this would be the possible consequence of the accused's

23     behaviour.  However, the Appeals Chamber in the decision of

24     20 October 2006 in the Seselj case has stated in relation to the need and

25     the nature of the warning that it should specifically indicate that the

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 1     disruptive conduct, if it persists, could result in a very specific

 2     restriction.  I refer here to its decisions and the paragraphs 22 to 25

 3     in that decision.  The Prosecution, therefore, requests the Trial Chamber

 4     to issue this specific warning today.  Thereafter, if the accused still

 5     refuses to appear for the commencement of trial, at that time the

 6     Trial Chamber should impose counsel on the accused.

 7             Your Honour, I'm not sure whether the Trial Chamber wants to hear

 8     further presentation of the Prosecution on the practical difficulties in

 9     assignment of counsel in this case.  That's an issue that was also

10     addressed in the Seselj Appeal decision that I just mentioned, but it may

11     be premature to do that.

12             JUDGE KWON:  I think we'll have another time to hear submission

13     on that -- in that regard.

14             MS. UERTZ-RETZLAFF:  Thank you, Your Honour.

15             JUDGE KWON:  Thank you, Madam Uertz-Retzlaff.

16             In relation to your submission, I have to note the last paragraph

17     of the accused's response.  He said -- although he said he's not

18     prepared -- that if he's not prepared, there would not be a trial at all.

19     He said at the end:

20             "I would never boycott my trial.  I'm sure that there must be a

21     fair solution."

22             There must be one as long as he comes into the courtroom, as you

23     indicated.

24                           [Trial Chamber confers]

25             JUDGE KWON:  In light of the absence of the accused and of

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 1     counsel to represent him, the Chamber will adjourn these proceedings

 2     today.  However, we will reconvene tomorrow at 2.15 p.m., at which time

 3     we will hear the Prosecution's opening statement.  We request

 4     Mr. Karadzic to attend so that the trial is not further obstructed.

 5             The hearing is adjourned.

 6                           --- Whereupon the hearing adjourned at 9.21 a.m.,

 7                           to be reconvened on Tuesday, the 27th day of

 8                           October, 2009, at 2.15 p.m.