Tribunal Criminal Tribunal for the Former Yugoslavia

Page 121

1 Tuesday, 13 May 2003

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 4.02 p.m.

6 JUDGE ORIE: Madam Registrar, would you please call the case.

7 THE REGISTRAR: Case Number IT-00-39-PT, the Prosecutor versus

8 Momcilo Krajisnik.

9 JUDGE ORIE: Thank you, Madam Registrar.

10 Good afternoon to everyone. May I first have the appearances.

11 For the Prosecution.

12 MR. HARMON: Good afternoon, Mr. President, good afternoon,

13 Your Honours, colleagues from the Defence. My name is Mark Harmon. I

14 represent the Prosecutors' office this afternoon. Appearing with me to my

15 right, Mr. Alan Tieger, to his right, Mr. Thomas Hannis. And to my left,

16 Ms. Carmela Annink-Javier, who is the case manager.

17 JUDGE ORIE: Thank you very much, Mr. Harmon. And for the

18 Defence.

19 MR. NESKOVIC: [Interpretation] Good afternoon, Your Honours. My

20 name is Goran Neskovic, counsel. With me is Deyan Brashich.

21 JUDGE ORIE: Thank you, Mr. Neskovic. Before we start, I would

22 like to hear from the Defence who is this afternoon representing the

23 defendant. Is it you, Mr. Neskovic, as co-counsel, or Mr. Brashich?

24 MR. BRASHICH: Your Honour, I am appearing here only as a

25 temporary legal consultant.

Page 122

1 JUDGE ORIE: Yes. What about your duties under the rules? I

2 mean, if you are withdrawn, you are not supposed to --

3 MR. BRASHICH: Sorry, Your Honour, I didn't hear you.

4 JUDGE ORIE: If you have been withdrawn as lead counsel, that

5 does not immediately end your duties as counsel. Isn't that true? Have

6 you oriented yourself to what your duties are at this moment?

7 MR. BRASHICH: Yes, I have, Your Honour. And there is a decision

8 dated May 2nd, 2003, by the Registrar which outlines my continuing duties

9 to transfer the case to a lead counsel and to facilitate such transfer,

10 which I'm fully prepared to do. I do not believe that I can speak on

11 behalf of Mr. Krajisnik. My role, I think, is limited by that May 2nd

12 order of the registry.

13 JUDGE ORIE: Yes, you are withdrawn as lead counsel. At the same

14 time, Article 20 of the -- are you aware of what Article 20 of the

15 directive of assignment of Defence counsel instructs you to do?

16 MR. BRASHICH: I have read it, Your Honour, but as I stand here

17 and now, I cannot repeat it verbatim.

18 JUDGE ORIE: Yes. What would it be, not verbatim? What would be

19 your duty if --

20 MR. BRASHICH: It would be my duty to assist in the transfer of

21 materials, work product, and aid the incoming counsel.

22 JUDGE ORIE: Yes. Article 20 says that "when the assignment of

23 counsel is withdrawn, that counsel assigned may not withdraw from acting

24 until either a replacement counsel has been provided by the tribunal or

25 by the suspect or the accused or the suspect or accused has declared his

Page 123

1 intention in writing to conduct his own Defence." And paragraph (b)

2 reads that "the withdrawn counsel may in the interests of justice, may

3 continue to represent the suspects or the accused for a period of not

4 exceeding 30 days after the date on which the replacement is assigned."

5 So it's not -- but I do understand that you've chosen that Mr. Neskovic

6 today will act as counsel.

7 MR. BRASHICH: The reason I have done so, Your Honour, is that

8 there might be an appearance that I would be acting in conflict of a

9 court of competent jurisdiction. It is for that reason that that matter

10 will be cleared up on the 15th of May.

11 JUDGE ORIE: Yes. Let me just --

12 MR. BRASHICH: Should this Court, however, order me on the

13 transcript to continue representing the interests of Mr. Krajisnik, I'm

14 fully -- for this period of 30 days, I am fully prepared to do so if this

15 Court will so order.

16 JUDGE ORIE: No, I'm not asking you, but I'm just trying to find

17 out whether the Defence has taken its decision in full knowledge of the

18 applicable law in this respect.

19 Mr. Neskovic, I have been informed that Mr. Krajisnik would

20 prefer this Status Conference to be in closed session. Is that correct

21 information?

22 MR. NESKOVIC: [Interpretation] That's correct, Your Honour.

23 Mr. Krajisnik just informed me about this a moment ago.

24 JUDGE ORIE: Yes. You know that usually, the public character of

25 our hearings is considered to be of great importance. Could you or could

Page 124

1 Mr. Krajisnik give us the specific reasons why he would prefer to have

2 this matter - we don't even know what the matter is - but whether the

3 matter should be dealt with in closed session.

4 MR. NESKOVIC: [Interpretation] Mr. Krajisnik has asked to take

5 the floor and explain why he wishes a closed session, after which he

6 would explain his opinion to Their Honours.

7 JUDGE ORIE: Yes. I think private session would do, but I'm

8 looking to you, Madam Registrar. Private session means that we are not

9 pulling down all the curtains, but that whatever Mr. Krajisnik tells us

10 will not be made known to the public.

11 We'll then turn into private session.

12 [Private session]

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21 [Open session]

22 JUDGE ORIE: Yes. We are in open session again. Before we start

23 discussing the substance of what is on our desk, I'd first like since you

24 see new faces on the Bench, I'd first like to introduce to the Defence and

25 to the Prosecution, to you, Mr. Krajisnik, the Judges. This is the first

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1 time that this Chamber is sitting in the composition as it is assigned to

2 hear your case. That means, to the left of me is Judge Martin Canivell

3 who has been recently appointed and recently assigned to the case. And to

4 my right is Judge El Mahdi. I think I introduced myself already in the

5 previous hearing. My name is Judge Orie, and I'll preside the case.

6 Let's first spend a moment on the reason why we have a Status

7 Conference because there was a Pre-Trial Conference scheduled for Friday,

8 the 9th of May. It had to be cancelled, just as the commencement of the

9 trial which was scheduled for the 12th of May also had to be cancelled.

10 Reason for cancelling both the Pre-Trial Conference and the commencement

11 of the trial is the unavailability of lead counsel, Mr. Brashich. And

12 the reason of his unavailability is that Mr. Brashich was by disciplinary

13 decision suspended to practice by a court in New York. That therefore,

14 he could not continue to act as counsel before this Tribunal. This has

15 become known only recently within the Tribunal; and therefore, we were a

16 bit surprised by it.

17 The reason why you, Mr. Brashich, cannot continue to act as lead

18 counsel is that you do not fulfill the requirements any more, the

19 requirements of Article 14 of the directive on the assignment of counsel.

20 The Registrar is under Rule 19(C) under an obligation to withdraw your

21 assignment. That reads the Registrar shall withdraw, not may, but shall

22 withdraw the assignment of counsel where counsel no longer satisfies the

23 requirements of Article 14 (A), and the requirements of Article 14 (A) are

24 that the counsel is admitted to the practice of a law in a state and that

25 he has not been found guilty in relevant disciplinary proceedings against

Page 129

1 him where he is admitted to the practice of law. So that has changed.

2 We'll not spend much time on it, but may I ask you, Mr. Brashich, when was

3 this decision taken that you were suspended?

4 MR. BRASHICH: It was taken as of April 1. I received it on

5 April 6th. I notified the Court, this Tribunal, on the 10th of April.

6 JUDGE ORIE: Yes. Did you send it by telefax or --

7 MR. BRASHICH: I sent it both by telefax, and I thought without

8 enclosures. I then Federal Expressed the same letter, and each and every

9 relevant decision, some of which made recommendations that the proceedings

10 against me be dismissed, and another decision that recommended that I be

11 reprimanded.


13 Mr. Neskovic, when did you become aware of this situation?

14 MR. NESKOVIC: [Interpretation] I became aware of that situation

15 on the 29th of April when I was informed by Mr. Brashich about this in a

16 telephone conversation, except that that decision hadn't come into force

17 because Mr. Brashich appealed that decision. But officially, it was

18 only last week - I can't tell you the exact date - but that's when I was

19 officially informed that Mr. Brashich had been suspended. And I found

20 out about this Status Conference on Friday.

21 JUDGE ORIE: Mr. Brashich, why didn't you send a copy of the

22 letter that you sent to many people to co-counsel?

23 MR. BRASHICH: I have no answer for that, Your Honour. I made a

24 copy of it available to Mr. Kostic the same day that I made the letter

25 available to the Tribunal. I also sent a copy of the letter and

Page 130

1 enclosures, to my client, again by Federal Express --

2 JUDGE ORIE: Yes, we have listed on the bottom of your letter to

3 whom you sent copies. But my question was --

4 MR. BRASHICH: Frankly, I was taken aback when I received the

5 order. I did not expect it. And if I had not sent it to Mr. Neskovic,

6 that was my fault, and it was an oversight on my part.

7 JUDGE ORIE: Yes. Thank you for your answer, Mr. Brashich.

8 Mr. Neskovic, do I understand well that you're supposed to not be

9 present during the trial? Is that what you expected?

10 MR. NESKOVIC: [Interpretation] Well, in fact, in an agreement

11 that we had among the Defence, what we had planned was that I would be a

12 man in the field because I was appointed as a co-counsel two months ago.

13 And before that, I was a legal advisor. And I exclusively worked on the

14 matters preparing the Defence so there would be that stage of the trial

15 when the Defence would present its case. As far as the initial stage

16 when the Prosecution is presenting its case, I did not deal with these

17 matters, partly because I did not have the documents. And according to

18 our internal agreement, it was Mr. Brashich and Mr. Kostic who received

19 these documents, and they prepared the concept. But my task, according

20 to the instructions I received from the lawyers, is that in the field, in

21 Bosnia-Herzegovina, I would be gathering evidence we would be needing

22 when the Defence starts presenting its case.

23 JUDGE ORIE: Yes. Thank you. You said the agreement. Was this

24 a written agreement between you or has it been put down in

25 correspondence, or was it just an oral agreement on who would do what?

Page 131

1 MR. NESKOVIC: [Interpretation] That was a verbal agreement among

2 us. And of course, we agreed with our client.


4 MR. NESKOVIC: [Interpretation] I'm sorry. It's a very complex

5 case, Your Honour, and it's not just a small local case. This is a case

6 involving 34 municipalities. That is an entire state. It goes from

7 command responsibility of the army to police, legal authorities. So

8 really, one man has to coordinate all this work in the field so that we

9 can achieve maximum effect.


11 Mr. Krajisnik, I want to stress that you are not responsible for

12 the conduct of lead counsel in this case. I hope that you'll accept from

13 me that we are here to see how we can solve the problems, the problems

14 that you are confronted with, but for which you are not to be blamed

15 because it's not your fault, it's not your mistake. But nevertheless,

16 you're confronted with the consequences of it.

17 It seems that the Defence has to be reorganised one way or the

18 other. And that's the main reason why we're here, first to establish

19 what the reason is that your trial couldn't start, and now to see how we

20 can solve the problems in order that your trial will start as soon as

21 possible. I have a few questions. You don't have to stand up all the

22 time, because if I would speak longer to you, then please sit down if you

23 prefer to do so.

24 THE ACCUSED: [Interpretation] Thank you.

25 JUDGE ORIE: Let me first ask whether any of the other members of

Page 132

1 the Defence team, as it was constituted until now, has any similar

2 problems? Mr. Neskovic, have you ever had any disciplinary problems in

3 your own system or are you currently facing any similar problems?

4 MR. NESKOVIC: [Interpretation] No, Your Honour. Never, I have

5 never had any disciplinary proceedings issued against me, not just within

6 a bar association or any time in my life. This is a problem which has

7 obviously surprised me as well.

8 JUDGE ORIE: Yes. Of course I'm not suggesting that you ever

9 had, but you may understand that the Tribunal might be a bit more

10 concerned about disciplinary proceedings in the past or even in the

11 present.

12 Mr. Brashich, are you aware of any similar problems as far as

13 Mr. Kostic is concerned, who...?

14 MR. BRASHICH: I have spoken to Mr. Kostic when this came out,

15 and I don't believe that he has ever had any admonition, censure, or

16 anything similar.

17 JUDGE ORIE: Did you ask him specifically?

18 MR. BRASHICH: Yes, Your Honour, I spoke to him quite extensively

19 about it, yes.


21 MR. BRASHICH: I believe Mr. Neskovic has something to add, Your

22 Honour.

23 JUDGE ORIE: Yes, Mr. Neskovic.

24 MR. NESKOVIC: [Interpretation] About half an hour ago, I spoke to

25 Mr. Kostic. He phoned me in my office. He apologised for not being

Page 133

1 present at this Status Conference. It's because a relative of his was

2 seriously ill. And he said that he was prepared to continue working here.

3 JUDGE ORIE: Yes. Mr. Neskovic, to what extent would you please

4 available to continue to work either here in The Hague or in the field,

5 as you call it?

6 MR. NESKOVIC: [Interpretation] To be frank, I would be more

7 prepared, more willing to work in the field, for two reasons: First of

8 all, I'm very well acquainted with the situation in Bosnia and

9 Herzegovina. I know the people there. I know what the possibilities are

10 for finding evidence. But given that I'm not familiar with the

11 Anglo-Saxon system, it might be more difficult for me to be present here.

12 Up until now, I have been gathering this evidence, but someone who knows

13 the Anglo-Saxon system would know when, how, and in what manner to use

14 such evidence. But I by no means refuse to work in this Tribunal, nor do

15 I refuse to work for Mr. Krajisnik as I have been working for him for

16 three years now.

17 JUDGE ORIE: Would you be available, let's say, temporarily to

18 act as counsel here in The Hague? That means, for example, if you say I

19 prefer to work in the field, that until a new lead counsel has been

20 assigned, that you would be available, well, let's say, up until August?

21 Would that be something you would consider?

22 MR. NESKOVIC: [Interpretation] It's difficult for me to express a

23 position on that matter right now. It depends on the phase of the

24 proceedings in August. You know, if it's a matter of cross-examining

25 witnesses, that would be a little more difficult, and I don't have the

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Page 135

1 documents, nor do I have the conception of this case that Mr. Brashich

2 has. So I ought to think about this before I inform the Trial Chamber of

3 my decision. It's a rather sudden matter for me. I'm slightly surprised

4 by this matter.

5 JUDGE ORIE: Yes. Would you include in your consideration as

6 well that Mr. Brashich has been assigned as consultant in order to make

7 available his knowledge of the case to whomever would succeed him.

8 Mr. Krajisnik, I noticed that you'd like to say something.

9 THE ACCUSED: [Interpretation] I would like to be of assistance,

10 if I may, to assist you so that you can assist me.


12 THE ACCUSED: [Interpretation] Your Honours, I wouldn't want

13 Mr. Kostic or Mr. Neskovic to take over this case at this moment because

14 I don't know how familiar they are with this case. And this is why I'm

15 asking you, the Registrar, has made it possible for all the members of

16 the Defence team apart from Mr. Kostic for them to be with me tomorrow.

17 And then after we have discussed this, I'd be glad to have one of them as

18 lead counsel. But at the moment, I'm prepared to take a decision to find

19 a new lawyer. I was thinking of it -- I thought that this lawyer could

20 be someone like Mr. Brashich. I'm sorry if I'm speaking openly about

21 this matter, but at the moment I have to speak openly about it.

22 JUDGE ORIE: Yes, that's no problem. It's not my suggestion that

23 you had invited to give your final view by today because I do understand

24 that it needs more for you to make up your mind as to what direction we

25 would go. But I'm just trying to find out what would be possibilities

Page 136

1 and opportunities as far as the availability is concerned of the present

2 members of your Defence team.

3 As far as the -- well, the matter of being acquainted with the

4 case is concerned, the only thing I could tell you is that Mr. Kostic

5 until now spent approximately 2.400 hours on the case, so one would expect

6 him to know something about the case. And as far as Mr. Neskovic is

7 concerned, that would be 4.683 hours. So one would also expect that he

8 at least has a global knowledge of what the case is about.

9 My next question would be to you, Mr. Neskovic, or to you,

10 Mr. Brashich: You have recently spoken with Mr. Kostic. What would be

11 his availability?

12 MR. BRASHICH: Your Honour, we were prepared to try this case, as

13 Mr. Neskovic had stated, we had divided the responsibilities of the

14 Defence. Mr. Neskovic was -- his roll was to in the pre-trial stage

15 prepare for the actual Defence, and also in the pre-trial stage to help

16 with regard to meeting some of the issues --

17 JUDGE ORIE: Yes, but my question was whether Mr. Kostic was

18 available.

19 MR. BRASHICH: He was available, Your Honour, as I had said, that

20 we would divide the labour on the Prosecution's case between himself and

21 myself, on that understanding.

22 JUDGE ORIE: And is that unchanged? I mean, of course, the

23 situation has changed, but --

24 MR. BRASHICH: With regard to myself.

25 JUDGE ORIE: But would Mr. Kostic be available to come and to

Page 137

1 hear the opening statement of the Prosecution, and then start

2 cross-examining witnesses for the Prosecution? It's a very practical

3 question.

4 MR. BRASHICH: I believe that he would be, Your Honour.

5 JUDGE ORIE: On from when?

6 MR. BRASHICH: I believe we had an informal meeting. There

7 was -- I believe the term that Mr. Kostic used last week was that he

8 would need somewhat of some breathing room, and I'm putting that in

9 quotes, and somewhere in the beginning or middle of June. I believe that

10 was the statement that he made at that particular meeting to which I'm

11 sure that Your Honour remembers.


13 MR. BRASHICH: I think he stands by that commitment.

14 JUDGE ORIE: Yes. Would that then be an availability that would

15 be temporary or would that be for the rest of the trial?

16 MR. BRASHICH: My understanding, Your Honour, that would be for

17 the rest of the trial. The only caveat that I would have to point out,

18 that he had wanted some input and assistance from me because most of the

19 preparation that I had done is, unfortunately, locked in my brain, and I

20 can't download the knowledge that I have into his brain as from one

21 computer hard drive to another. That's the only caveat that I recall him

22 making.

23 JUDGE ORIE: Yes. So that is, may I say, a conditional

24 availability.

25 MR. BRASHICH: It's availability with that one caveat.

Page 138

1 JUDGE ORIE: Yes. Another issue that might be of some relevance

2 is that the registry has given recently as far as I understand

3 information as to the financial aspects of the Defence in this case.

4 Would that cause any reluctance to act as counsel as far as you're aware

5 of?

6 MR. BRASHICH: That is a matter of hot debate, Your Honour, which

7 is ongoing. I have not caucused with other members of the association.

8 We had a meeting on that issue with the registry last Thursday. I

9 thereafter spoke to Mr. Krajisnik and apprised him of the new regime. And

10 that matter is still up in the air. And after meeting with Mr. Krajisnik,

11 Mr. Kostic relayed to the senior legal officer, Mr. Harhoff, his views on

12 the resources issue, and I believe that is a memorandum dated the 8th of

13 May.

14 JUDGE ORIE: Yes, that matter should have been settled also

15 before we would know whether Mr. Kostic would be available.

16 MR. BRASHICH: There was a meeting which took place with the

17 registry and the executive -- at least one or two members of the

18 executive council of the association on Thursday -- I'm sorry, on Friday

19 evening at 5.00. There was a letter circulated to the membership of the

20 association by email. And I believe that the association is going to

21 take a position on that matter either today or tomorrow. I have not been

22 apprised as to exactly what action it's going to take.

23 Mr. Krajisnik voiced the opinion, which Mr. Kostic transmitted to

24 Mr. Harhoff, that under the new regime, he would -- the Defence team

25 could not be constituted in a fashion or to a level that Mr. Krajisnik

Page 139

1 feels his Defence should be afforded. The registry has taken the

2 position that the regime is the regime. And I believe that Mr. Kostic,

3 with a change of the present regime, not in dollars and cents, but in the

4 method of payment, would be willing to accept the role throughout the term

5 that the trial is expected to last.

6 JUDGE ORIE: Yes. I do understand that there's no full agreement

7 yet.

8 Do you have any idea on what has been spent on the Defence

9 just -- not costs, not travel expenses, et cetera, but --

10 MR. BRASHICH: I would estimate, Your Honour, and I haven't seen

11 any hard figures, but on a case of this magnitude, which has now lasted

12 over three years, when you have a number --

13 JUDGE ORIE: I'm just asking you whether you know --

14 MR. BRASHICH: Somewhere around 900.000 dollars to a million

15 dollars.

16 JUDGE ORIE: Yes, add 50 per cent, and you might be closer to the

17 outcome. Do you know how many hours have been spent on preparing this

18 case, all-included, counsel, consultants, investigators?

19 MR. BRASHICH: I would say with the Prosecution, probably

20 somewhere -- if both sides are considered --

21 JUDGE ORIE: I'm asking you about the Defence.

22 MR. BRASHICH: You asked me how many hours had been spent, Your

23 Honour.

24 JUDGE ORIE: Yes, on the preparation of the Defence and at this

25 moment the problems are -- have arisen in the Defence --

Page 140

1 MR. BRASHICH: Yes, Your Honour, I would probably estimate that

2 including investigators, all-told in hours, between 15 and 20.000 hours

3 for the 36 municipalities.

4 JUDGE ORIE: Yes. There, again, according to my information, you

5 could add 50 per cent to that figure in order to come closer to what the

6 actual figure is.

7 You'll understand that the Tribunal might have some concern about

8 how time and money is spent in preparing the Defence case, that after such

9 a long period of time, that the -- that there are difficulties to commence

10 with the trial, apart from the causes of these difficulties. But there

11 has been a considerable amount of money involved, a considerable number of

12 hours involved, and nevertheless, we are not in a position to start.

13 Mr. Krajisnik, I again emphasise that this is not your fault, not

14 your -- you're not to be blamed for that. And since I also do understand

15 that you might not be fully aware of what actually this system is, since

16 in the correspondence, it appears that there might be some

17 misunderstandings now and then, I'd like to explain to you in relative

18 detail what exactly this system of assignment of counsel includes.

19 So if you would please listen to that. First of all, the Statute

20 in Article 21, paragraph 4 under (d) entitles you to defend yourself in

21 person or through legal assistance of your own choosing, to be informed

22 if you have not legal assistance of this right to be assisted by counsel,

23 and to have legal assistance assigned to the accused in any case where

24 the interests of justice are required, and without payment by him in any

25 such case if he does not have sufficient means to pay for it. So that's

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Page 142

1 the basic rule.

2 Then, in the Rules of Procedure and Evidence, Rule 45, reference

3 is made to the directive on the assignment of Defence counsel. Article

4 45, under (c) -- no, I am making a mistake. Article 45, under (a) says

5 that "whenever the interests of justice so demands, counsel shall be

6 assigned to suspects or accused who lack the means to remunerate such

7 counsel." And reference is made to the directive on the assignment of

8 Defence counsel.

9 In this directive, you find further rules as to the assignment of

10 counsel. Paragraph 6 deals with the right to assign counsel. There

11 again it's repeated in 6 (a) that "suspects or accused who lack the means

12 to remunerate counsel shall be entitled to assignment of counsel paid for

13 by the Tribunal." It also says, under 6 (c), that "for suspects or

14 accused who dispose of means to partially remunerate counsel, the Tribunal

15 shall pay that portion which the suspect or accused does not have

16 sufficient means to pay for."

17 A decision on the assignment of counsel is given by the

18 Registrar. In Article 11, it reads that the Registrar, after having

19 examined the declaration of means and relevant information obtained, the

20 Registrar shall determine how far the suspect or accused lacks the means

21 to remunerate counsel and shall decide to assign counsel and choose for

22 this purpose a name from the list drawn up in accordance with the Rules of

23 Procedure and Evidence. So the registry will assign counsel and choose a

24 name from a list of counsel that are available.

25 But there is a possibility also to have counsel assigned whose

Page 143

1 name do not appear on the list in exceptional circumstances. Although it

2 seems that again such a decision of the Registrar, a decision to assign

3 counsel or to decide that you should partially pay for Defence counsel

4 assigned to you, it seems that under Rule 13 (b), that there's no remedy

5 against it. But if we look at Rule 18 (a) and (c), it seems that a

6 remedy, that means a review by the President of the Tribunal would be

7 available. At least, the Rules are not perfectly clear in this respect,

8 but I would say if you would not be -- if you would have difficulties to

9 accept such a decision, that at least under some circumstances, there is a

10 remedy, and you can ask for review of the decision by the President.

11 There does exist case law in this Tribunal which indicates that

12 the Registrar is under an obligation to consult you before counsel will

13 be assigned. There are several decisions, some suggesting that the

14 Registrar should follow your preference unless there are good reasons not

15 to do so; other decisions suggesting that the Registrar is not under an

16 obligation to follow your preference, but at least should give it full

17 consideration whether the Registrar should not follow your preference.

18 I do understand that you're not going to express yourself on your

19 preference since you have not talked to the members of your Defence team

20 at this very moment. But nevertheless, I think it's of importance to

21 look at the present situation and to see what as a matter of fact the

22 options are. But since this is not primarily the responsibility of the

23 Chamber, but of the registry, I would like to invite the registry to tell

24 this Chamber what, in the view of the registry, would be the options in

25 the present situation for you, reorganising your Defence team.

Page 144

1 I invited a representative of the registry, Mr. Pimentel. Could

2 you inform the Court on what in view of you would be the options available

3 at this very moment, keeping in mind that the Chamber very much would like

4 to start the trial as soon as possible. And that's in accordance with

5 what Mr. Krajisnik would like to happen. Would you inform the Chamber

6 about this.

7 MR. PIMENTEL: Your Honour, on behalf of the Registrar who could

8 not be here himself. I am appearing, I am David Pimentel, the chief of

9 court of management in the registry. Responding to your question, in

10 order to start the trial as soon as Your Honour has expressed that the

11 desire of the Chamber, there are relatively few options, given the amount

12 of preparation necessary to proceed.

13 The options as we see it are as follows: One would be to appoint

14 Mr. Kostic as lead counsel. The amount of time he has invested in

15 preparation of the case should prepare him adequately to assume a

16 competent role as lead counsel. Another option would be to assign

17 Mr. Neskovic or Mr. Kostic on a temporary basis to assume the role of

18 lead counsel while new counsel is appointed and prepares to take over on

19 an ongoing basis. The thought would be that that may be a period of two

20 or three months while new counsel gets up to speed and is in a position

21 to take over the case as lead counsel.

22 Another option that may be more difficult to implement but may

23 still be a possibility would be to bring in someone on a temporary basis,

24 someone else from outside the current Defence team, to assist -- to play

25 the role of lead counsel assisted by Mr. Neskovic and Mr. Brashich. I

Page 145

1 might add that under all of these scenarios, it's essential that

2 Mr. Brashich be retained as a legal consultant so that his knowledge of

3 the case would be available to whoever served in the lead counsel role.

4 Those, we see, as the essential options if the trial is to start

5 soon. If none of these options are available, either because the

6 attorneys involved are not willing to proceed under those circumstances,

7 or if it's determined that the Chamber will defer to Mr. Krajisnik's

8 preferences and he does not choose to go with one of these options, we

9 see no way to proceed with the case on a short-term basis. We believe it

10 will be necessary to delay the start of the trial for a period of at

11 least two to three months while new lead counsel is appointed and

12 prepares to take responsibility for the case.

13 JUDGE ORIE: Yes, that would bring us close to the summer recess,

14 which would then perhaps mean that we could start only in September. Is

15 that --

16 SPEAKER: As a practical matter, that would be the logical way to

17 approach it.

18 JUDGE ORIE: Yes. Thank you, Mr. Pimentel for informing the

19 Chamber. I would like to turn into private session for a moment.

20 [Private session]

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

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Page 153

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4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 [Open session]

16 THE ACCUSED: [Interpretation] Thank you very much, Your Honour.

17 JUDGE ORIE: We all are aware of the difficult circumstances we're

18 in. Mr. Krajisnik, you'd like the trial to start as soon as possible.

19 That's also what the Tribunal would like to happen. At the same time, you

20 are aware that you have to make up your mind. That's the reason why I

21 asked the registry what the options would be in their view. You've heard

22 them all, Mr. Kostic being assigned as lead counsel. And of course, we

23 would have to solve a few problems there as well, which I just pointed at

24 in my conversation with Mr. Brashich. There would be other solutions.

25 They have all been explained to you by the Defence. I'd like to stress

Page 154

1 again what the system is. The system is that your preference should be

2 taken into serious consideration. As you might be aware of, that your

3 preference until now of Mr. Brashich has resulted in -- well, I would say

4 this disastrous situation that we are in at this very moment. But

5 nevertheless, your preference, you should be consulted on the

6 preference -- I do understand that you will meet with all available

7 members of the Defence team soon, and I suggest to the registry that in

8 view of the Chamber, it would be fair to receive your view, well, let's

9 say, within approximately one week choosing of these options. If you

10 would consider also, and I noticed that you have done so before, if you

11 would consider also to ask for assignment of someone who's not yet

12 familiar with the case, and I can tell you that upon all your suggestions,

13 the registry has taken the necessary steps in order to see whether counsel

14 you mentioned were available or not. But if you would consider to be

15 assisted by counsel that are not part of your Defence team at this very

16 moment, that you, of course, could give your suggestions to that solution

17 as well whether it would be a temporary assignment, for example, I would

18 consider that the registry -- one of the options of the registry was

19 that, for example, Mr. Neskovic would assist a temporary but experienced

20 Defence counsel who would just assist you in the first stages of the

21 trial, and perhaps the counsel to be assigned on longer term making

22 himself acquainted with the case meanwhile. That's one of the options.

23 So that would require an outside counsel, counsel not yet known

24 to you to be assigned.

25 If you're thinking of this, also discuss the matter with the

Page 155












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13 English transcripts.













Page 156

1 registry. They know perhaps Defence counsel. They might inform you

2 about available Defence counsel, and then you could consider whether this

3 would be a solution. May I ask the representative of the registry also

4 whether they would be willing to assist Mr. Krajisnik if he would

5 consider to have counsel not yet known to him assigned to his team,

6 whether they could give him relevant information as to experienced and

7 available Defence counsel?

8 MR. PIMENTEL: Absolutely, Your Honour. We maintain a list of

9 counsel who have expressed interest and the association for Defence

10 counsel has verified the qualifications of a number of individuals. We

11 can make those names available to Mr. Krajisnik, and he may make a

12 selection from that list.

13 JUDGE ORIE: Yes. Could that be done in short term? I mean, I

14 suggest to you that in order to assign new lead counsel, or at least to

15 find a solution, a way out of this very embarrassing situation, that

16 Mr. Krajisnik should have some time to consider his position, to speak to

17 the available members of the present Defence team, and also to consult

18 you on any outsider who could join the team.

19 Mr. Krajisnik, how much time if the registry would give you

20 proper information and if you would have an opportunity to speak with the

21 present members of the team, how much time do you think you would need in

22 order to express preference as to the kind of solution to be found?

23 THE ACCUSED: [Interpretation] Your Honours, the only thing I

24 would like to ask is because we have three days during which I'm to meet

25 my Defence, I would like to meet also with Mr. Brashich. I don't know

Page 157

1 why the possibility has not been given to him to be present at this

2 meeting. I hope that next week, after I look at the whole situation, then

3 I would be able to make a decision. I'd like to have a lead counsel as

4 soon as possible so that the trial can start. But I would like to speak

5 to him as soon as possible, Your Honours, if you'll allow me just for a

6 few minutes.

7 JUDGE ORIE: Yes, at this very moment, you'd like to speak with

8 Mr. Brashich. No? Yes.

9 THE ACCUSED: [Interpretation] No.

10 JUDGE ORIE: I'm just trying to follow you. The perhaps I do not

11 understand exactly what you said. The transcript reads: "I would like to

12 meet also with Mr. Brashich. I don't know why the possibility has not

13 been given to him at this meeting."

14 THE ACCUSED: [Interpretation] Here is the situation. I have been

15 approved by the registry to have a meeting with the Defence team,

16 tomorrow, the day after tomorrow, and the day after tomorrow. And on

17 that list, Mr. Brashich is not present. This is to have consultations

18 regarding the case and these outstanding matters. And --

19 JUDGE ORIE: You say you'd like to meet with members of the

20 Defence team including the present consultant, Mr. Brashich.

21 THE ACCUSED: [Interpretation] Yes.

22 JUDGE ORIE: The message at least is clear. It is not this

23 Chamber who decides on who you are allowed to meet with, but your wish at

24 least is very clear. And then you'd say in approximately one week you'd

25 make up your mind as to what solution to find?

Page 158

1 THE ACCUSED: [Interpretation] That's correct, Your Honour. But

2 that's -- I'll give you the reason why I've mentioned Mr. Brashich,

3 because I believe this is relevant for today, because Mr. Brashich has

4 his case to be heard in New York, and there are certain obstacles for him

5 to be present at the meeting. Now, if the Trial Chamber would give an

6 order, then that would be sorted. He would be able to attend this meeting

7 with me and the other members of the Defence team.

8 JUDGE ORIE: Mr. Brashich, could you give any information as to

9 your availability for discussions with Mr. Krajisnik.

10 MR. BRASHICH: Your Honour, as I had advised Chambers, my

11 attorneys were contacted by the clerk of court of the appellate division

12 with a request that the motion for reconsideration and modification be

13 made. Before I came to The Hague, my attorneys filed that motion. I

14 have to be in New York on the 15th at 9.00 so as to also be able to

15 clarify should that motion not be granted the scope of what I can and

16 cannot do to help Mr. Krajisnik. I cannot adjourn the May 15th date

17 because every time that that is adjourned, the scope of my engagement for

18 Mr. Krajisnik is delayed. My attorneys have cautioned me that I should

19 not in any way give counsel or otherwise appear to act as an attorney

20 until this matter is clarified. The order of suspension is for one year.

21 I do not want to find myself at the end of 11 months from now in a

22 position where my reinstatement has been jeopardised by any actions that I

23 have taken which might have gone, if not against the letter, but then the

24 intent, or vice versa, of the order of suspension, Your Honour.

25 JUDGE ORIE: Yes, I do understand that it's in your interest to

Page 159

1 keep at a distance, and at the same time, it's quite clear that

2 Mr. Krajisnik says that he needs you at this very moment.

3 Would you be available for consultation tomorrow?

4 MR. BRASHICH: I have a flight 11.15, Your Honour. I would be

5 available between 8.00 and 9.30, whatever it takes to get to the airport.

6 JUDGE ORIE: Yes --

7 MR. BRASHICH: I hate to put another burden on the travel office,

8 which is overburdened, but as I had stated to the senior legal officer,

9 I'm fully prepared to do everything in my power to assist Mr. Krajisnik

10 and his confidence in me so that the problem that I have caused would have

11 as little impact on him and on this Tribunal.

12 JUDGE ORIE: Would you again be available on Friday?

13 MR. BRASHICH: Friday is the 15th, Your Honour.

14 JUDGE ORIE: Yes, that's right.

15 MR. BRASHICH: I can possibly take a late flight tomorrow, to be

16 able to get me in --

17 JUDGE ORIE: Okay. Would you please explore whatever

18 possibilities there are together with Mr. Krajisnik and the registry.

19 I'm not fully aware of the times with which you can meet with your client.

20 I do not know when the other members of the team are available. But would

21 you do the utmost possible --

22 MR. BRASHICH: Excuse me, Your Honour, may I consult with

23 Mr. Neskovic for one moment.

24 JUDGE ORIE: Yes, please do so.

25 [Legal consultant and Defence counsel confer]

Page 160

1 MR. BRASHICH: Mr. Neskovic advises me that they're arriving

2 tomorrow, and that he has a scheduled meeting at 1.00. Your Honour, I'll

3 make a representation that I will make every effort to be at that meeting

4 for whatever period of time. But I am conditioning that upon my

5 consultation with John Walsh and his associates who are acting as my

6 counsel in New York. And I would have to follow their advice as to the

7 attendance at the meeting.

8 JUDGE ORIE: Yes, which is quite apart from -- the views of

9 Mr. Walsh are not necessarily in accordance with what the Tribunal would

10 expect you to do. But since we do not know that view, I would just

11 indicate to you that however important such advice may be for you, but

12 it's finally your own responsibility what you'll do and what you'll not

13 do.

14 I think we have discussed at this very moment whatever has to be

15 discussed. I live in the expectation that having listened well to you,

16 Mr. Krajisnik as well, that this Chamber could expect that a constructive

17 solution could be worked on approximately one week from now on when you

18 have made up your mind.

19 I also hope that it's entirely clear to you that where the

20 registry is under an obligation to consult you and where your preference

21 is of importance for the decision of the registry, it might not be the

22 final word on who will be assigned because your right to be assisted by

23 counsel of your own choosing, even if you cannot afford to pay for it by

24 yourself or partially to pay for it by yourself, is not an absolute

25 right, but find its limits somewhere. And we might have come close to

Page 161

1 those limits if no workable solution is found on very short notice.

2 THE ACCUSED: [Interpretation] May I say something.


4 THE ACCUSED: [Interpretation] May I just say something. I just

5 wanted to ask you if I can have until the end of next week to decide,

6 because I have a meeting, and then there is a weekend, all that. So if I

7 can have time until the end of next week regarding my decision with

8 relation to the lead counsel.

9 JUDGE ORIE: Yes. Of course, I'm not granting you the time. The

10 only thing I'm indicating is that the sooner you come up with a suggestion

11 that could be followed or would be acceptable for the registry, the sooner

12 they might give a decision. And whether a week would be reasonable or six

13 days or eight days, that's not up for this Chamber to decide. But you may

14 be aware that the Chamber is very much concerned about the present

15 situation not created by yourself, but nevertheless existing, and a

16 solution has to be found as soon as possible. And the sooner you come up

17 with your own views and your own preferences, the better the chance that

18 they can taken into due consideration. Yes?

19 Is there anything else one of the parties would like to raise at

20 this very moment?

21 MR. HARMON: There's nothing on behalf of the Prosecution, Your

22 Honour.

23 JUDGE ORIE: Thank you, Mr. Harmon. Mr. Neskovic?

24 MR. NESKOVIC: [Interpretation] No, Your Honour.

25 JUDGE ORIE: Mr. Krajisnik, it's common that at Status

Page 162

1 Conferences, we always try to get proper information about your health

2 situation. It's not a long time ago that we had our last conference. So

3 if there would be any changes, the Chamber would like to be informed about

4 it; and then if you would prefer to do so, we could do it in private

5 session as well. If there have been no changes, then we can conclude this

6 Status Conference.

7 THE ACCUSED: [Interpretation] I would just like to thank you.

8 Thank you very much.


10 THE ACCUSED: [Interpretation] But I feel great, so there are no

11 problems.

12 JUDGE ORIE: This then concludes this Status Conference. I

13 indicate that even if a decision would be taken on short notice, that the

14 Prosecution would need at least until the 2nd of June to prepare for --

15 but that would be, I take it, on the assumption that a decision would be

16 taken by now. So if they would need approximately two and a half weeks

17 for preparation for the witnesses to appear, that whenever the decision

18 will be delayed, the start of the trial would be delayed accordingly. Is

19 that a correct understanding, Mr. Harmon?

20 MR. HARMON: It's my understanding after checking with the witness

21 unit that from the date of the decision, it would be approximately two

22 weeks for arrangements to be made for witnesses to start appearing.

23 JUDGE ORIE: Yes. So that would prevent a start on very short

24 notice anyhow. But the Chamber still would very much prefer to start

25 before the summer recess, and well in advance of the summer recess,

Page 163

1 because it's of no use to start on the 29th of July and go into recess on

2 the 2nd of August, or whatever date it will be. So I expect everyone,

3 but I'm especially looking to the Defence, and to you, Mr. Krajisnik, to

4 do whatever is possible to resolve the matter and enable the trial to

5 start as soon as possible.

6 The Chamber adjourns.

7 --- Whereupon the Status Conference adjourned

8 at 5.30 p.m.