Page 674
1 Tuesday, 3 November 2009
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.14 p.m.
5 JUDGE KWON: Would the Registrar please call the case.
6 THE REGISTRAR: Thank you and good afternoon, Your Honours. This
7 is case number IT-95-5/18-T, the Prosecutor versus Radovan Karadzic.
8 JUDGE KWON: Thank you. Good afternoon, everybody. The Chamber
9 is sitting in full Bench today, comprised of myself,
10 Judge Howard Morrison to my right, Judge Melville Baird to my left, and
11 Judge Flavia Lattanzi to my far right as our Reserve Judge.
12 This is an administrative hearing to discuss the manner in which
13 the trial will proceed. I would like first to have appearances for the
14 Prosecution.
15 MR. TIEGER: Good afternoon, Mr. President, Your Honours.
16 Alan Tieger, Hildegard Uertz-Retzlaff, and Iain Reid for the Prosecution.
17 JUDGE KWON: Thank you, Mr. Tieger.
18 Mr. Karadzic, I take it that you are following the proceedings in
19 the language you understand?
20 THE ACCUSED: [No interpretation]
21 JUDGE KWON: Thank you. I will not repeat that question in the
22 proceedings that will follow in the future, so if you could let me know
23 at any moment should you have any problem in following the proceedings in
24 the language you understand.
25 I note that you are here alone. I take it that you continue to
Page 675
1 represent yourself?
2 THE ACCUSED: [Interpretation] That's right, Your Excellency.
3 JUDGE KWON: Very well.
4 Last week, in light of the absence of Mr. Karadzic at the
5 commencement of trial and his continued voluntary absence during the
6 hearing of the Prosecution's opening statement, despite repeated warnings
7 from the Chamber, I announced that the Chamber would make its decision on
8 the manner in which the trial will proceed following oral submissions
9 from the parties today. I raised a number of specific matters for the
10 parties to consider and state their positions on. I will repeat these
11 now.
12 One: Proceedings with a trial in the absence of the accused and
13 in the absence of any counsel to represent him.
14 Two: The assignment of counsel to the accused and the various
15 roles an assigned counsel may be given, both in near future and as the
16 trial progresses.
17 Or three: The appointment of an amicus curiae.
18 And four: The possible adjournment of trial proceedings to allow
19 adequate time for an assigned counsel to prepare.
20 And, lastly, five: Other suggested ways of ensuring the trial
21 can proceed should the accused continue to voluntarily absent himself
22 from the courtroom.
23 Before discussing these issues in more detail, I would like to
24 ask you, Mr. Karadzic, whether you maintain your position that you will
25 not attend the trial proceedings and that you would therefore not attend
Page 676
1 tomorrow's hearing in which the Prosecution will commence the
2 presentation of its evidence?
3 THE ACCUSED: [Interpretation] Your Excellencies, I in no way wish
4 to boycott this process. It is both for me and the people I represent
5 and for all the people over there very important, and it is the last
6 defence, the last opportunity of arriving at the truth. And we can
7 arrive at that truth in the manner in which my -- if my Defence functions
8 properly. However, had we had this Trial Chamber with us from the
9 beginning, they would have been able to see how many times I've asked for
10 disclosure on a regular basis and on time. And even Lord Bonomy gave
11 certain instructions in that respect.
12 I don't want to boycott this -- these proceedings, but I cannot
13 take part in something that has been bad from the start and where my
14 fundamental rights have been violated, first of all, stemming from
15 Article 21 of the Statute, that is to say, the right to have enough time
16 to prepare my defence under proper circumstances.
17 So these proceedings cannot start out on the right footing and
18 end properly if you're expecting me, in five months, from the 18th of May
19 to the present day, to get through 1.300.000 pages which I received from
20 the Prosecution. And at least 700.000 pages of my own material which I
21 need to use to challenge the Prosecution case and the Prosecution
22 evidence in this courtroom.
23 So regardless of my position and attitude towards the entire
24 Tribunal, I'm going to file two motions in the coming days challenging
25 the jurisdiction of the Tribunal, but apart from that, I don't want
Page 677
1 anybody to think in this courtroom, least of all the Trial Chamber or the
2 other party, that there's any question of any personal disrespect. But
3 the situation is such that I would really be a criminal if I were to
4 accept these conditions, to enter a trial on proceedings for which I'm
5 not prepared. I cannot challenge anything that the Prosecution is going
6 to put forward with so much material unless I'm given more time. And
7 although certain reductions have been made with respect to the individual
8 municipalities, I still have 45.000 documents, 23.000 exhibits to get
9 through, a vast number of witnesses, and, as I said, 1.300.000 pages of
10 material and 300 days of audio and visual, especially audio testimony,
11 which I have to listen through. I have to listen through those tapes
12 because after all my English is not as good to allow me to get through it
13 very quickly.
14 So I can't understand you, Your Excellencies, in whose interest
15 is it for this trial not to be a good one, these proceedings not to be
16 good? I don't think it's even in the Prosecution's interests, but it is
17 in the interests of the Trial Chamber, the United Nations, and me -- or
18 rather, it cannot be in their interests for this trial not to be fair and
19 conducted properly. And it can't be conducted properly unless I'm well
20 prepared.
21 And let me remind you at the very outset that the Defence is
22 taking a very serious approach to the trial, and we have invested several
23 hundred motions. We filed several hundred motions properly written by
24 leading experts who are assisting me in my defence. And I have had
25 several hundred other communications with the Prosecution, with the
Page 678
1 Trial Chamber, and with the Registry as well, all of which proves that
2 we've been working throughout, the whole time, and we've been working
3 from May. For the past five months, I have invested inhuman effort. I
4 have given up my walks in the fresh air and sport to be able to focus on
5 the material at hand, but it's just too vast.
6 So what I want to say is that we are doing everything in our
7 power and we shall do everything in our power to be ready for trial. And
8 I'd like to apologise to you because Ms. Uertz-Retzlaff probably
9 misunderstood me. I wasn't clear enough. I said -- she said that I said
10 in my letter that I would come into court when I was ready. I will come
11 into court before the ten months expire, which is the dead-line I asked.
12 So I will come into court as soon as I'm ready, and I'll inform you all
13 two or three weeks in advance, and I'll come in. So this is my
14 fundamental right, to be prepared for trial; otherwise, what kind of a
15 trial is it going to be if the Defence isn't a proper Defence?
16 So that then is my position, and I would like you to take it
17 seriously because the Defence has been serious all the time. But it has
18 encountered obstacles. And I have to say that from the very beginning
19 the Defence has encountered nothing but obstacles.
20 JUDGE KWON: Mr. Karadzic, you are simply repeating the
21 submissions that you have made before this Trial Chamber and before the
22 Appeals Chamber concerning your views on the time that has been available
23 to you to prepare for the trial. This Trial Chamber and the
24 Appeals Chamber have carefully considered these submissions and
25 determined that you have had adequate preparation time. Clearly, you
Page 679
1 disagree with these decisions. However, as I previously stated to you,
2 it is the Trial Chamber, not an accused person, which determines
3 readiness for trial, taking into account all the relevant circumstances,
4 and ensuring that the trial is conducted fairly and expeditiously.
5 The Chamber appreciates that you are preparing your trial very
6 hard and appreciate your efforts; but at the same time, I note that you
7 were reminded and advised by the former Pre-Trial Judge Lord Bonomy, as
8 you referred to, on more than one occasion that you should be devoting
9 your resources to and concentrating your efforts on preparation for the
10 trial itself. So at the end of the day, I again remind you that it is in
11 your best interest to attend and participate fully in the trial so that
12 justice can be done.
13 That said, coming to the main agenda, I would now like to invite
14 the Prosecution to make its submission on the issues that I have
15 identified.
16 Ms. Uertz-Retzlaff, please.
17 MS. UERTZ-RETZLAFF: Thank you, Your Honour.
18 Your Honours, before I begin, let me just note for the record
19 that this is the first [sic] day of the trial proceedings. My submission
20 today will proceed in the following order: First, I will make a
21 preliminary point about the Trial Chamber's right to compel
22 Mr. Karadzic's attendance in the courtroom; and then I will address two
23 options for proceeding with the trial.
24 The first scenario explores options for commencing with
25 Mr. Karadzic's opening statement and the first three Prosecution
Page 680
1 witnesses within a short time-frame, coupled with the designation of a
2 duty counsel. The second scenario concerns the appointment of counsel if
3 Mr. Karadzic maintains his insistence that he cannot proceed with the
4 trial within a short time-frame.
5 Finally, I will make some additional submissions in answer to the
6 questions posed by Your Honour, Judge Kwon, for the parties to address
7 today.
8 Overall, our objective must be to ensure a fair and expeditious
9 conduct of the proceedings in accordance with Article 20 of the Statute.
10 As part of this objective, Mr. Karadzic cannot be permitted to manipulate
11 the proceedings through his decision to not attend hearings. As the
12 New South Wales Court of Criminal Appeal in Australia has stated:
13 "The trial process must not be allowed to degenerate, by reason
14 for manipulation by the accused, to the position where it is at his or
15 her mercy. This would be so inimical to the public interest and the
16 general administration of justice that it would necessarily lead to an
17 undermining of public confidence in the criminal justice system."
18 That's a quote from the case Regina versus BK from 2000.
19 As a preliminary point, we note that Mr. Karadzic, through his
20 attendance at the hearing today, is, in fact, attending his trial. If at
21 a future point the Chamber considers it appropriate to compel
22 Mr. Karadzic's attendance at this trial, there can be no doubt that the
23 Chamber has the power to do so. This includes compelling Mr. Karadzic's
24 attendance for the beginning of the evidence.
25 If necessary, force can be used to secure his presence in the
Page 681
1 courtroom. This is inherent in the fact that Mr. Karadzic has been
2 deprived of his liberty. Mr. Karadzic was arrested and transferred to
3 the United Nations Detention Unit and is there ever since detained
4 precisely for the purpose of ensuring his appearance to answer to the
5 criminal charges against him.
6 The fact that Mr. Karadzic has a right to be present for trial, a
7 right that he can waive, does not negate the fact that he also has an
8 obligation to be present. I am prepared to make further submission on
9 this particular point if it would assist the Trial Chamber and I would do
10 so later on.
11 Let me now first turn to option one in a way we can proceed. As
12 a first step, the Prosecution suggests that the Trial Chamber may wish to
13 explore options for allowing the trial to proceed within a short period
14 of time with Mr. Karadzic's opening statement and the first three
15 witnesses on the Prosecution's list.
16 In this respect, the Trial Chamber may wish to ask Mr. Karadzic
17 the following questions: Is there any reason why Mr. Karadzic could not,
18 in a few days' time, give his opening statement on the understanding that
19 he would be permitted to make a supplementary opening statement at the
20 commencement of his defence case if he so wishes? How much time does
21 Mr. Karadzic consider that he would need before being able to make his
22 initial opening statement? If he claims that he still needs a
23 substantial period of time to prepare even an initial opening statement,
24 he should explain why.
25 The next question would be: How much time does Mr. Karadzic
Page 682
1 consider that he needs to prepare for cross-examination of the
2 Prosecution's first three witnesses? I note that we have two witnesses
3 lined up to commence their evidence tomorrow. Given the fact that these
4 three first witnesses are crime base witnesses, if Mr. Karadzic claims he
5 needs more than a few days to prepare for each of them, he should explain
6 why.
7 Assuming that the trial could, within a short period of time,
8 proceed with Mr. Karadzic's initial opening statement and these first
9 three crime base witnesses, the Chamber may wish to take this path. The
10 Chamber could then, on a rolling basis, entertain requests from
11 Mr. Karadzic for further short adjournments as the trial proceeds,
12 assuming, of course, that Mr. Karadzic is able to show good cause for
13 each requested adjournment.
14 However, at the same time, the Trial Chamber should seriously
15 consider designation of duty counsel, stand-by counsel. In this
16 scenario, stand-by counsel would start familiarising themselves with the
17 case but would not play an active role in these proceedings. The
18 appointment of stand-by counsel to perform this function would not, in
19 any way, limit or undermine Mr. Karadzic's right to self-representation.
20 Stand-by counsel would only be given an active role in these proceedings
21 if it becomes necessary to restrict or terminate Mr. Karadzic's right to
22 self-representation in the future. If that happens, stand-by counsel
23 could step in with a minimum of delay.
24 However, if Mr. Karadzic participates in the proceedings, does
25 not obstruct the progress of the trial, and it is not otherwise in the
Page 683
1 interests of justice to appoint counsel, the stand-by counsel need not
2 play a role in these proceedings at all.
3 The rationale for appointing a stand-by counsel to perform this
4 type of reserve function is similar to that underlying the appointment of
5 a fourth Judge in a large and complex trial like this one.
6 Let me now turn to the second option. If Mr. Karadzic maintains
7 his refusal to participate in the proceedings - and it appears he
8 does - the Trial Chamber should consider terminating his right of
9 self-representation, and impose counsel. The very purposes that led to
10 the establishment of this Tribunal must not be thwarted by a
11 self-represented accused. In this scenario, by his voluntary and
12 persistent absence from the proceedings, Mr. Karadzic will have waived
13 his right to be present at trial. The trial can then proceed in his
14 absence, provided that counsel be imposed to represent his interests.
15 As the ICTR Appeals Chamber confirmed in the case of Barayagwiza.
16 "... where an accused who is in the custody of the Tribunal
17 decides voluntarily not to be present at trial, it is in the interests of
18 justice to assign him or her counsel in order, in particular, to
19 guarantee the effective exercise of the other rights enshrined in
20 Article 20 of the Statute."
21 That's from the Nahimana appeal judgement, paragraph 109.
22 Mr. Karadzic's persistent refusal to attend court and to comply
23 with the orders of both the Trial Chamber and the Appeals Chamber
24 regarding the commencement of trial constitutes good grounds for
25 terminating his right of self-representation. Mr. Karadzic failed to
Page 684
1 appear for the Prosecution's opening statement, and he has stated his
2 intention to persist in his boycott of many months. He may not call it
3 boycott, but it amounts to it. This was confirmed most recently in his
4 letter to Your Honour Judge Kwon on the 1st of November and today as
5 well.
6 If Mr. Karadzic maintains his position today, that he will not be
7 ready for many months and refuses to participate, he is acting in a
8 manner where his self-representation would substantially and persistently
9 obstruct the proper and expeditious conduct of trial. Pursuant to the
10 Appeals Chamber's ruling of the 1st November, 2004, in the
11 Slobodan Milosevic case, paragraph 13, a defendant's right to
12 self-representation can be curtailed in these circumstances.
13 I also refer to the Appeals Chamber decision of the
14 8th of December, 2006, case, paragraph 25, finding that the Trial Chamber
15 was entitled to impose counsel on Seselj in light of his behaviour, which
16 included "refusing to appear in court to represent himself."
17 This case law is consistent with Rule 45 ter of the
18 Rules of Procedure and Evidence, which permits a Chamber to assign
19 counsel to represent the interests of the accused when the interests of
20 justice so requires. Once counsel is imposed, the trial can proceed even
21 in Mr. Karadzic's absence.
22 Your Honour, Judge Kwon, has already adequately warned
23 Mr. Karadzic that if he persists in his refusal to attend court, counsel
24 may be imposed. I refer to Your Honour's remarks in the court on the
25 27th of October, 2009, where you told Mr. Karadzic that if he persisted
Page 685
1 in his refusal to attend the trial, the Chamber may decide to continue
2 the trial in his absence and to assign counsel to represent his interest
3 for the remainder of the proceedings pursuant to Rule 45 ter.
4 You also indicated your intention to hear Mr. Karadzic on this
5 issue, and that's why we are here today. Your Honour reiterated the
6 warning to Mr. Karadzic at the conclusion of yesterday's proceedings.
7 You stated that it was the third consecutive day of Mr. Karadzic's
8 absence from court, despite having received several warnings, and that
9 such attempts to obstruct the proper progress of the trial should not be
10 tolerated.
11 Your Honour, Judge Kwon, repeated the previous warning, that if
12 Karadzic continues to stay away, the Chamber may proceed in his absence
13 and assign counsel to represent him. Mr. Karadzic was advised to
14 consider this warning carefully in advance of making his submissions.
15 Following the present hearing and in accordance with the
16 Appeals Chamber's 20 October 2006 decision in the Seselj case, and I
17 refer to paragraph 25, the Trial Chamber would be entitled to impose
18 counsel and proceed with the trial without Mr. Karadzic present. As a
19 result of Mr. Karadzic's attendance here today, in combination with
20 events preceding it, there can be no doubt that Mr. Karadzic is aware
21 that the proceedings will commence with evidence being called against
22 him; that his failure to attend the court constitutes a waiver of his
23 right to be present; his intentional absence substantially and
24 persistently obstructs a proper and expeditious conduct of his trial and
25 may result in the termination of his right to self-representation; and
Page 686
1 that counsel can and will be imposed to make sure his interests are
2 represented.
3 Once counsel is imposed due to Mr. Karadzic's obstructive
4 conduct, Mr. Karadzic would not be entitled to re-assert his right to
5 self-representation at some future point at his will. An accused person
6 who has lost the right of self-representation cannot simply opt back in
7 at any time of his choosing by belatedly promising to stop the
8 obstructive behaviour notwithstanding prior warnings leading to the
9 appointment of counsel.
10 If the appointment of counsel could be reversed at any time, the
11 requirement of a warning to the accused to give them an opportunity to
12 correct their behaviour prior to the imposition of counsel would be
13 meaningless. It would also run counter to the general notion that the
14 right of self-representation must be asserted and arguably, therefore,
15 pursued in a timely manner.
16 And as an example, I would like to refer to the
17 Krajisnik Trial Chamber decision of 18 August 2005, paragraphs 22 to 35,
18 and Rule 45(F), requiring an accused to notify the Registrar of his or
19 her intention to self-represent at the first opportunity.
20 If, in the future, Mr. Karadzic decides that he wants to attend
21 the proceedings and to participate in his defence, consideration could be
22 given at that time to whether and in what manner that is appropriate.
23 However, regardless of any role subsequently played by Mr. Karadzic in
24 the courtroom, imposed counsel would continue to have primary
25 responsibility for the conduct of the Defence.
Page 687
1 In setting out these two options for proceeding, I have already
2 answered, in part, the five questions raised by Your Honour, Judge Kwon,
3 for the parties to address today. I supplement these answers with the
4 following: First, on the question of proceeding with the trial in the
5 absence of the accused and in the absence of any counsel to represent
6 him. The Prosecution leaves open the possibility that there may be
7 circumstances in which a trial could proceed in the absence of the
8 accused and in the absence of counsel; however, we were not aware of any
9 such situation. However, the Prosecution considers that in the
10 circumstances of this case the interests of justice require the
11 imposition of counsel if Mr. Karadzic is absent from the courtroom. This
12 is consistent with the Appeals Chamber's decision in Barayagwiza, the
13 case that I have already referred to.
14 The next point is the question of appointing amicus curiae. It
15 is difficult to see how the appointment of amicus curiae would serve the
16 interests of justice in the circumstances of this present case. If
17 Mr. Karadzic is not present in court, counsel should be assigned to
18 represent his interests before the trial can proceed. This -- the
19 appointment of amicus curiae could not substitute for appointment of
20 counsel. Appointment of amicus curiae is rather a supplemental means in
21 case of a self-represented accused who exercises his right to
22 self-representation. I refer here to the Milosevic case,
23 Slobodan Milosevic case, and to the order inviting designation of amicus
24 curiae of the 30th of August, 2001, where just this situation was
25 addressed.
Page 688
1 The next point I want to turn to is adjournment of the trial to
2 allow time for counsel to prepare. Under option one that I have outlined
3 in my submission today, where the trial would proceed with Mr. Karadzic
4 representing himself and participating in trial, there would be no need
5 to appoint counsel to represent him or to delay the proceedings
6 significantly. Stand-by counsel could be appointed as a back-up measure
7 without any need to delay the proceedings.
8 Under option two, where counsel is appointed to represent
9 Mr. Karadzic's interests, there would inevitably be some delay because
10 the assigned counsel needs time to prepare. However, the delay at this
11 juncture may be a reasonable price to pay for ensuring that the trial can
12 thereafter proceed expeditiously with assigned counsel in place.
13 Your Honour, I can make, if you wish so -- can make additional
14 submission on the ability to -- of the Court to compel Mr. Karadzic's
15 attendance in court, but I don't know whether you wish to address that or
16 whether this should be left for later. And I can also give a few
17 additional remarks on the role of amicus curiae with a -- more
18 references, if you wish me to do so. Otherwise, these would be the
19 submissions of the Prosecution.
20 JUDGE KWON: How long would it take if you are to make
21 supplemental submission on the compelled attendance?
22 MS. UERTZ-RETZLAFF: It's another five minutes I think.
23 JUDGE KWON: Speaking for myself, I'm interested in hearing that.
24 Could you be brief on that?
25 MS. UERTZ-RETZLAFF: Yes, okay.
Page 689
1 The right of the Court to compel the attendance of the accused in
2 courtroom is so basic that it's not always mentioned expressly in the
3 Rules; however, this principle underpins the language in many provisions
4 in the Tribunal's Rules of Procedure and Evidence. And I will list some:
5 Rule 40 bis (F), referring to an accused's first appearance states:
6 "The suspect assisted by counsel shall be brought without delay
7 before the Judge."
8 Rule 62 states:
9 "The accused shall be brought before that -- before Trial Chamber
10 or a Judge thereof without delay and shall be formally charged."
11 Rule 64 authorises an accused's detention.
12 Rule 65(C) authorises a Trial Chamber to set any conditions
13 regarding provisional release as are necessary to ensure the presence of
14 the accused for trial.
15 Rule 83 authorises the use of restraints such as handcuffs in the
16 transfer of the accused to the court.
17 Around the world, Judges routinely order that those accused of
18 crimes be brought before them regardless of whether they want to or not.
19 For example, in France, Germany, the US, and Austria, if the accused does
20 not appear in court, he can be summoned or brought in, including brought
21 in by force. I can, if the Court wishes so, make some citation to these
22 country's rules and their jurisprudence. In relation to France,
23 Article 320 of the Code of Criminal Procedure:
24 "If the accused does not comply with the summons, the president
25 may order him to be brought forcibly before the Court. He may also,
Page 690
1 after having the official record providing the accused's resistance read
2 in court, order that despite his absence the hearing shall proceed
3 notwithstanding."
4 There are two other provisions that relate to this same matter.
5 Germany, there are the sections 230 and 231 of the Code of
6 Criminal Procedure. Section 230 states:
7 "No main hearing shall be held against the defendant who fails to
8 appear.
9 "If there is no sufficient excuse for the defendant's failure to
10 appear, an order shall be made to bring him before the Court, or a
11 warrant of arrest shall be issued."
12 And the section 231 says:
13 "A defendant who has appeared may not absent himself from the
14 hearing. The Presiding Judge may take proper measures to prevent him
15 from absenting himself; he may also have the defendant kept in custody
16 during interruption of the hearing.
17 "If the defendant, nevertheless absents himself, or fails to
18 appear, or an interrupted main hearing is continued, the main hearing may
19 be concluded during his absence if he was already heard ..."
20 And so on so forth.
21 And I have also a decision here from the Federal Supreme Court in
22 the Neue Strasrecht Zeitung in 1993, 446.
23 "It is acknowledged in the jurisprudence that an accused who is
24 in detention does not have the power to stay away of his own volition
25 from the main hearing, after an interruption of the hearing, because the
Page 691
1 Court has a duty and the possibility to enforce his continuous presence
2 if need to be bring him to court by force."
3 From the United States, I have, in fact, four decisions that have
4 the similar references. If the Judges would like to hear them, I can
5 state them. It's United States versus Cannatella and
6 United States versus Moore. It's both US Federal Appeals Court
7 decisions. The former is -- states:
8 "Normally a judge can and should compel a defendant to be present
9 at all stages of a felony trial pursuant to Rule 43(a)."
10 That's a -- the decision is in 597 F.2d 27. And the other one,
11 in the Moore case:
12 "There is no perceptible due process violation by demanding that
13 the defendant attend trial ... the defendant may not defeat the very
14 purpose of the trial - the ascertainment of guilt vel non - by claiming a
15 right of absence ... under Rule 43 F.R. Criminal Procedure."
16 In the case People against Gardner, that's a decision of the
17 New York Court of Appeals, it states:
18 "For the orderly conduct of a criminal court it is requisite that
19 the trial judge should have the power to say what place the prisoner
20 shall occupy in the courtroom, and whether at any time he shall stand or
21 sit, and be covered or uncovered; and he must have the power at all times
22 to keep the prisoner within sight of the Court, the jury, the counsel,
23 and the witnesses."
24 And then yet another case: Copeland versus Walker. That's a
25 decision of the Federal Trial Court. And it states:
Page 692
1 "Even if a defendant might have a right to waive his presence at
2 trial due to exceptional circumstances, that is, serious health concerns,
3 he does not have a right to 'a selective waiver whereby the defendant
4 could appear and disappear at will, whenever he decided he might garner
5 some tactical advantage in doing so.'"
6 And finally, Austria, section 239 of the Code of
7 Criminal Procedure:
8 "The main hearing shall begin when the case is called. The
9 accused shall appear without shackles, however, if he is in pre-trial
10 detention be accompanied by a guard."
11 These are the references that we have. I have also an example
12 from the UK House of Lords that has stated that:
13 "For very many years the law of England and Wales has recognised
14 the right of a defendant to attend his trial and, in trials on
15 indictments, has imposed an obligation on him to do so."
16 And that's from the case against Jones in 2002, decision of the
17 20th February, 2002.
18 Finally, I would make one point on this same issue. The Judges
19 of this Tribunal have the power to compel the attendance of witnesses,
20 even the victims of crimes. Although this happens relatively rarely and
21 only after other measures to facilitate the appearance of a witness has
22 been exhausted, the fact remains that Judges in this Tribunal have issued
23 arrest warrants for witnesses who have refused to attend to ensure that
24 justice was not frustrated. If justice can demand and compel the
25 appearance of a victim witness or other witnesses where necessary,
Page 693
1 certainly justice can compel the presence of the accused.
2 Your Honour, that's the point on this issue.
3 JUDGE KWON: Thank you, Ms. Uertz-Retzlaff.
4 If an accused person who has been brought in such a manner by
5 force does not participate in the proceedings and does not cooperate with
6 the proceedings, would there be any difference from the situation where
7 the proceedings can proceed in the absence of an accused?
8 MS. UERTZ-RETZLAFF: [Microphone not activated]
9 Sorry. We also have discussed this, whether we could - after the
10 accused would be brought in by force - whether when he states clearly
11 that he does not want to execute his right of self-representation, it
12 wouldn't make a difference.
13 JUDGE KWON: Going back to your submission overall, the very
14 minor points to start with, I'm surprised to hear you say that this is
15 the first day of the trial -- I would say this is the third day of the
16 trial.
17 MS. UERTZ-RETZLAFF: Then I have misspoken. I actually
18 thought it was -- I wanted to say it's the fourth day.
19 JUDGE KWON: Oh.
20 MS. UERTZ-RETZLAFF: I thought I had started with saying that's
21 the fourth day of the trial.
22 JUDGE KWON: That correction could be made. Thank you.
23 As regards the option one you referred to, this -- that -- the
24 success of that option is entirely dependent upon the will of the
25 accused, whether he would accept it or not.
Page 694
1 MS. UERTZ-RETZLAFF: Yes, but we found it helpful to actually
2 know how much time would, in such a scenario, Mr. Karadzic need. What
3 would be his answers? How much time would he really need for three crime
4 base witnesses or an initial opening statement? We found it, actually,
5 important information that would help and assist the Trial Chamber.
6 JUDGE KWON: As regards the option two, how do you envisage the
7 situation where the appointed counsel cannot get a co-operation with or
8 instruction from the accused at all? How would you expect that counsel
9 to conduct the proceedings?
10 MS. UERTZ-RETZLAFF: Your Honour, there is, in fact, a decision
11 by the Milosevic Trial Chamber that dealt with that very point. And it's
12 a decision on assigned counsel's motion for withdrawal of the
13 7th of December, 2004. And in this decision it was basically stated that
14 the -- let me just see where it is. I just -- it was stated that, in
15 such a case, the Defence counsel has to act in the best interest of the
16 accused. That's what is in that decision. I'm just -- at the moment
17 can't find it.
18 JUDGE KWON: The Chamber -- I think we can find it later on.
19 MS. UERTZ-RETZLAFF: It's actually expressly said so because the
20 counsel in this case was the former amicus curiae, Mr. Kay, and he
21 actually brought up this point. And in special -- especially stressed
22 the point that he would not get directions, and that was actually the
23 answer of the Trial Chamber to this situation, that he would then have to
24 act in the best interest.
25 JUDGE KWON: Thank you, Ms. Uertz-Retzlaff.
Page 695
1 With respect to the third or fourth question, how much time the
2 appointed counsel would need to familiarise himself or herself with the
3 case. You just mentioned some delay which would be a reasonable price.
4 Could you elaborate with a bit more specificity how much time would be
5 warranted.
6 MS. UERTZ-RETZLAFF: I think it very much depends on who is
7 selected to function as an imposed counsel. Because if it would be a
8 counsel that is already familiar with this case, it would be a few
9 months. Or at least if someone is familiar with part of the case, then I
10 would think it's not -- it would be a matter of months, a few months.
11 But it's very hard to say -- in absence of the -- more circumstances.
12 JUDGE KWON: When making submission on -- with respect to option
13 one, you referred to, at one point of time, a duty counsel, a stand-by
14 counsel. But do you not see the possibility of allowing some time for
15 that counsel to be prepared?
16 MS. UERTZ-RETZLAFF: No, actually our position in relation to the
17 stand-by counsel would be that stand-by counsel would prepare and get up
18 to speed while the accused is representing himself; and therefore, he
19 would not have to act immediately. But in case it arises, then -- is
20 question, Is he prepared at this point in time or is he not? At least
21 for these proceedings as we are now, in the state as we are now, we
22 cannot foresee that stand-by counsel would delay proceedings. Then it's
23 rather a matter of whether Mr. Karadzic would be willing to make an
24 initial statement and proceed with the through -- with the three crime
25 base witnesses.
Page 696
1 JUDGE KWON: Second-last question from myself: You do not
2 exclude the possibility of proceeding in the absence of the accused as
3 well as in the absence of the -- any counsel to represent him?
4 MS. UERTZ-RETZLAFF: As I said, we cannot exclude it entirely,
5 but our proposal would be that the interests of justice makes it
6 necessary to impose counsel. But we do not exclude that it is possible.
7 JUDGE KWON: Very well. My last question is a matter of law
8 which was dealt with in the Appeals Chamber decision in Milosevic which
9 referred to the principle of proportionality. How would you compromise
10 that with -- the option two with that principle?
11 MS. UERTZ-RETZLAFF: The -- of course the Trial Chamber has to
12 find the less intrusive way of proceed. However, in the -- in this
13 particular situation where Mr. Karadzic has said, "I'm not attending," I
14 can't really see any other way to overcome this situation. Later on,
15 when Mr. Karadzic appears in court, then the question arises in which way
16 can the roles be divided between the imposed counsel and Mr. Karadzic.
17 But at that moment where Mr. Karadzic says, "I'm not coming
18 for -- unless I am prepared, "and I understand that to mean it will take
19 some months, I can't really see how a different means or role of counsel
20 could help to overcome this. And therefore, I think to impose now
21 counsel taking over completely in this situation is proportional because
22 there is no other way as we think.
23 JUDGE KWON: Thank you.
24 [Trial Chamber confers]
25 JUDGE KWON: Thank you.
Page 697
1 Then I'll turn to the accused. Mr. Karadzic, do you have any
2 further submission on any of these issues or have any other comments on
3 the manner in which the trial should proceed?
4 THE ACCUSED: [Interpretation] Yes. Thank you, Your Excellency.
5 I would like to say a few words about what I've heard from the other
6 side. First of all, I hope that this is not some kind of a trick that
7 I'm attending the trial. I'm attending a Status Conference that
8 Your Excellency convened for today. As for being deprived of one's
9 liberty, I believe that once I've been deprived of my liberty, I've been
10 deprived of the possibility of having a proper family life and social
11 life, but I have not been deprived of my rights, including the right to a
12 proper defence. That is, after all, enshrined in the Statute of this
13 Tribunal as well.
14 I agree that an accused person cannot manipulate the proceedings;
15 however, the Prosecution cannot do that either, but they are manipulating
16 the proceedings. I'm sorry to say that. It's not that I want to attack
17 Mr. Tieger or Ms. Uertz-Retzlaff; however, they did not give me relevant
18 material for nine months. No decision by any Chamber can change the fact
19 that I have had only five months. With all due respect, it is five
20 months only. I have been snowed under with all this material. The
21 Prosecution was not trial ready. They probably thought that the
22 Holbrooke Agreement would be respected on my non-prosecution, so they
23 were not ready. That's what the Trial Chamber said a few times.
24 And Lord Bonomy asked in no uncertain terms several times that
25 the Prosecution start behaving rationally and properly to me with respect
Page 698
1 to disclosure.
2 Further on, I cannot agree with these enumerations of how each
3 and every system functions. This is enough of a bastard system which
4 consists of several different systems, and the Rules have been modified
5 so many times. We cannot take bits and pieces from the Austrian system,
6 bits and pieces from another system. Every system is a whole in its own
7 right. All of this is far removed from the system that I come from and
8 where I possibly could have been used to various things. So through the
9 backdoor, the OTP is trying to unofficially amend the
10 Rules of Procedure and Evidence. I do oppose that indeed.
11 Furthermore, as regards the questions that have been raised here
12 and that have to do with me personally and also what I have to state, I
13 wish to say the following: It is with joy that I am preparing for these
14 proceedings. I have a very accurate vision as to what has been
15 mis-ascertained here until now, in spite of the many Defence counsel who
16 acted here, many people have been sentenced who are innocent. This is
17 not something I hold against Trial Chambers but against the Defence teams
18 that were not in a position to process such voluminous material, and they
19 did not present it as proper defence.
20 So I cannot do this in piecemeal fashion. I cannot present my
21 opening statement and then deal with three Prosecution witnesses. I have
22 to look at the case in its entirety. So I have to look at the witnesses
23 from the first to the last one. The first three witnesses will come and
24 go. I'm not even ready to deal with them at this point. I also have
25 major problems in the field. My investigators are not being paid a cent,
Page 699
1 although some funds have been allotted. I need to know everything with
2 regard to crime-based cases because things are not the way they are
3 stated in the indictment. So the OTP is trying to take into their own
4 hands everything that is going on, and that will diminish the already
5 diminished credibility of this Tribunal. It is -- I have to be in the
6 hands of the Chamber, not of the OTP.
7 There is not a single lawyer who can be prepared within a year
8 and a half or two. This is many, many pages. This is lots of material.
9 45.000 documents that have to be verified, checked on the ground. These
10 are things that I find so unclear. I cannot be prepared to make an
11 opening statement and to deal with the first witnesses. I cannot prepare
12 during trial. It is before trial that I have to be prepared and have a
13 view of the trial in its entirety. Of course there will be surprises
14 that will be coming from the Prosecution side, and I certainly will be
15 kept busy during the breaks, during weekends, et cetera. Even short
16 delays during the proceedings do not really mean a thing, and they could
17 not be helpful. They could just put me into a whirlpool of confusion, of
18 exhaustion. And there were such cases.
19 Mr. Krajisnik was most unfortunate with his Defence counsel. I
20 know that he is an innocent man, but he has been convicted. It's not the
21 problem of the Trial Chamber. The Appeals Chamber even recognised that
22 he did not have an adequate Defence.
23 Just a moment, please. Yes.
24 I don't need new lawyers. I have excellent associates. I have
25 associates from the entire world who are working pro bono. As for the
Page 700
1 legal part, they've done a great deal of work, high-quality work at that.
2 You can see that for yourselves. All of this has been filed. I don't
3 need other people; I just need time. There is not a single lawyer who
4 will need less time to prepare than this Defence, this Defence under my
5 leadership, that is.
6 Or, if the distinguished ladies and gentlemen of the Prosecution
7 believe that they can go ahead without a Defence counsel and without an
8 accused, then they can act without a Chamber either, then let them write
9 up the decision, the verdict, and send it to me. I have been working
10 throughout, and I would like to these proceedings to take place
11 lege artis, and I would like this to be an exemplary proceeding for cases
12 of this kind. However, nothing can alter the fact that it was only on
13 the 18th of May that the OTP started sending me relevant material and
14 that this material has been chaotic at that.
15 If this Prosecution does not wish to present 45.000 documents but
16 30.000, let them say which 15.000 they don't want to deal with. 30.000
17 is more than enough. After all, the Chamber, perhaps, will not agree to
18 that either. But why do I have 45.000 documents that I have to study?
19 So this is manipulation coming from the side of the Prosecution, not the
20 accused. And I believe that the Prosecution does not have more rights to
21 manipulate the proceedings than an accused person would.
22 So in my view, I don't need new lawyers. You have seen all the
23 people who are helping me. These are prominent names from the legal
24 world: Australia, South Africa, New Zealand, Holland, Britain, America,
25 these are excellent people, Norway, and so on and so forth. I don't want
Page 701
1 to forget anyone. However, the fact remains that in the space of five
2 months, I was not able to get through all that material. And I won't be
3 able to get through all that material in the coming months nor would
4 anybody else be able to do so. So should I be a victim here of the
5 strategy pursued by the Tribunal? No I should not. And we must not
6 forget that this trial, these proceedings, are of enormous importance for
7 the people over there and as a president for future trials, as an example
8 to future trials.
9 It's not important what importance this has for me, but it's
10 important for the Tribunal because if the credibility of the Tribunal
11 topples during this trial, then what have you done? And it won't be
12 because of the Prosecution [as interpreted] or the Defence, it will be
13 because of the Prosecution that wasn't trial ready. Had I received the
14 material on time and had I known the indictment -- what the indictment
15 said on time, then today or at least at the beginning of December I would
16 be trial-ready. However, that manipulation by them that I spent nine
17 months sitting in detention with no material forthcoming, we had 45
18 municipalities, then 27 municipalities, then the number was reduced again
19 to 20 municipalities, but the scope of the material remains the same.
20 The number of counts in the indictment remains the same. The number of
21 witnesses remain the same or have been just slightly altered. So it is
22 the gentlemen of the Prosecution that just reduced their own task and
23 burden, what they are going to present; whereas, the burden on the
24 Defence has remained the same, exactly the same.
25 And I consider, Your Excellencies, that it would be cheapest and
Page 702
1 easiest with fewest problems to give me more time to prepare. And once
2 we start, I'm not going to ask that the Prosecution repeat their opening
3 statement. I will count this as being the fourth day of trial because
4 it's not my goal to set up any obstacles to these proceedings. The basic
5 thing for me is that I must view the entire case, and I'm capable of
6 defending myself, and I already have assistance in the -- to the legal
7 side of the question. And, of course, the Trial Chamber will protect my
8 rights when it comes to legal matters. But nobody can get through all
9 this material better than I do, no lawyer.
10 I know what was going on; I know what needs to be pointed out and
11 emphasised and presented. So I think that the best possible solution
12 would be with the least problems that the Defence be given sufficient
13 time - and I hope you will realise that it is only as of May this year
14 that I've been disclosed material on a regular basis. So this is not the
15 fault of the Trial Chamber or the accused but because of the Prosecution
16 that wasn't trial ready.
17 So I would like to request that the Defence be given more time.
18 Of course, the Registry will have a few problems remunerating people
19 working for me in the field, travelling around the municipalities,
20 checking out the facts, and so on and so forth. That is an additional
21 point.
22 However, the -- what the Defence needs most is not new lawyers,
23 new legal advisors, but more time, in view of the fact that we've lost
24 six months due to the will of the Prosecution and that in the space of
25 five months nobody can get through this vast material, 1.300.000 pages of
Page 703
1 theirs. And I have my own pages that are voluminous that I have to get
2 through. Just looking at the Prosecution case and challenging that
3 without going into the Defence case when that starts, but just to
4 challenge and refute what the Prosecution is saying. So it's 2 million
5 pages. What lawyer can get through all that? What respectable lawyer
6 would undertake such a great feat? I don't think anybody would agree to
7 that kind of undertaking. Thank you.
8 JUDGE KWON: Mr. Karadzic, I find it unfortunate that you are
9 just simply repeating your earlier submissions. There are two points I
10 make -- I want to make sure at the outset. The first thing is that this
11 is no trick at all. The Chamber is not engaged in tricks and this
12 hearing is of an administrative nature to determine the way forward. The
13 second thing is that I want to emphasise that it is you, as an
14 individual, Mr. Karadzic, that is on trial, not the people nor any
15 previously convicted person. This is never an opportunity to re-try all
16 those people again. So, as I said to you earlier on, and like
17 Judge Bonomy, please concentrate on -- devote your resources on your
18 trial itself.
19 I give the floor to Judge Morrison briefly.
20 JUDGE MORRISON: Dr. Karadzic, your position seems clear from
21 what I understand it. You say you're not boycotting your trial in
22 principle, but you're not attending until the Defence is ready. It would
23 be helpful to know, in assisting the Trial Chamber - because obviously we
24 have to consider all of the options which may fall to be
25 available - whether or not you are preparing your case in chronological
Page 704
1 order or indictment order, where that changes?
2 THE ACCUSED: [Interpretation] Your Excellency, I am preparing my
3 case according to chronological order. But the fact remains that the
4 Prosecution will present evidence and witnesses in different ways. And
5 it is also a fact that I cannot examine and cross-examine witnesses
6 unless I have the entire -- unless the entire case is clear to me. But
7 if I don't know what the Prosecution case is in actual fact, what it is
8 that they have against me, and what I can address -- for example, in the
9 pre-trial brief there is several thousand 65 ter documents, and I know
10 for a fact that 45.000 might crop up. So I don't know what is going to
11 be presented, and I have to get through all this material in order to be
12 able to participate.
13 We're doing a great deal of work. My associates and I have
14 examined many witnesses under 65 bis, for example, or 92 bis and 92 ter.
15 We're going to accept some witnesses under Rule 92 ter. We've already
16 stated our views on that. But, with the best will in the world, we are
17 taking part and are active to the best of our ability.
18 However, the most important thing, as far as I'm concerned, is
19 this: I have to see the entire case for me to be able to take part in
20 the trial. I can't have partial scraps because that won't be a proper
21 trial then, and nobody will be able to defend me and defend me success --
22 or not defend me successfully but, at least, to defend me, and it won't
23 be a fair trial unless I have the whole case open to me, regardless of
24 the position of the Trial Chamber to protect my interests.
25 I do believe that the Trial Chamber will protect my rights, but I
Page 705
1 have to have rights in the first place for them to be protected and for
2 me to avail myself of those rights.
3 JUDGE MORRISON: A supplementary question following on from my
4 first. Insofar as the material that has been disclosed to you is
5 concerned, is it in a form that enables you to judge its chronological
6 content or does it all have to be read before the chronology or
7 indictment order becomes apparent?
8 THE ACCUSED: [Interpretation] I have to read everything, although
9 I group the facts according to the topics and municipalities and also
10 chronologically, so that my associates have to re-organise all this vast
11 material, complete reorganisation. That's what that requires because
12 it's all chaotic. 1990 and 1991 refers to the political aspects of the
13 situation. And although this Trial Chamber is not trying me for
14 responsibility for the outbreak of war, my side - me and the people I
15 worked with and the people I represented - are being accused for the
16 outbreak of the war. And we can prove that the responsibility for the
17 outbreak of the war is somebody else's.
18 So I have to defend myself from that Prosecution position. I
19 have to defend the political life which has been brought into question
20 through the indictment and the Prosecution's position that this is a
21 mistake and a fault of ours and that we're guilty of that. It
22 is something -- that it is something that we demanded. So this is a vast
23 complex of questions that we have to deal with and go through for 1990
24 and 1991. And the war just began in April 1992 or the 25th or the
25 26th of March, 1992.
Page 706
1 So this is the crux of the matter, Your Excellency. There is a
2 very fine fibre that is being tested here. They want to involve us in a
3 civil war. They're saying that we wanted to throw out the Muslims and
4 Croats from the territories to which we aspired and thought we had a
5 right to, so --
6 JUDGE MORRISON: The answer to my question was much more simple
7 than that, and I think it was no.
8 THE ACCUSED: [Interpretation] No, I have to look through all the
9 material for me to systematise them. And we are rapidly creating a
10 system, but we can't do it faster than we're doing now because there are
11 piles of material that arrived in a very chaotic way. That's what
12 happened.
13 [Trial Chamber and Registrar confer]
14 JUDGE KWON: So it is your intention, Mr. Karadzic, that -- not
15 to attend the trial at all, even if the option one is to be followed as
16 suggested by the Prosecution?
17 THE ACCUSED: [Interpretation] Your Excellencies, for me to enter
18 the proceedings, my fundamental right must be fulfilled, my fundamental
19 right to a defence, the preparation of a defence. Now, what sense would
20 it have for me to participate during proceedings which, from the very
21 beginning, were wrong and cannot be successful? Because if something
22 starts out on the wrong foot, it will finish on the wrong foot,
23 regardless of all the confidence that I have in the Trial Chamber. The
24 fact remains that without preparation, you cannot have a valid defence.
25 And without a valid defence, you cannot have a trial. We are working on
Page 707
1 it. And whatever decision the Trial Chamber makes, we're going to
2 continue our preparations, and our Defence case will be better than any
3 other. It will be more efficacious, speedier than any other solution.
4 JUDGE KWON: The Chamber will confer a minute.
5 [Trial Chamber confers]
6 JUDGE KWON: Are there any points to raise from the parties?
7 Mr. Tieger.
8 MR. TIEGER: Just one point, Your Honour. In the course of
9 reiterating his previous submissions, both the second time it was done
10 today and the first time, the accused is making points he made before the
11 Trial Chamber and the Appeals Chamber, I certainly don't want the fact
12 that the Prosecution is not accepting the invitation to re-open the issue
13 that has been decided upon by the Trial Chamber and the Appeals Chamber
14 to be taken as any acquiescence whatsoever in the allegations that are
15 made, including, for example, the assertion that disclosure was chaotic
16 and so on. The point is the crux of this matter is not as stated by the
17 accused; the crux of the matter is the fact that the submissions were
18 made, rulings were issued by the Trial Chamber and then the
19 Appeals Chamber, and we now find ourselves in the position that brought
20 us to this court today about which the Trial Chamber attempted to receive
21 responsive submissions from both parties.
22 So, again, I just say, the Prosecution attempted to limit its
23 remarks to the issues at hand rather than the extraneous issues raised by
24 the accused.
25 JUDGE KWON: Thank you.
Page 708
1 The Trial Chamber will carefully consider the position and all of
2 your submissions and issue its decision on this matter in writing later
3 this week. We will therefore cancel the hearing scheduled for tomorrow,
4 and adjourn the trial, pending the Chamber's decision, which will set out
5 the time when the trial will resume and the manner in which we will
6 proceed.
7 The proceedings are now adjourned.
8 --- Whereupon the hearing adjourned at 3.31 p.m.
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