Tribunal Criminal Tribunal for the Former Yugoslavia

Page 3619

1 Monday, 14 June 2004

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.04 a.m.

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

6 THE REGISTRAR: Case number IT-00-39-T, the Prosecutor versus

7 Momcilo Krajisnik.

8 JUDGE ORIE: Thank you, Madam Registrar.

9 Good morning to everyone. I first have to announce that I was

10 informed some 10 minutes ago that Mr. Harmon lost his voice and can't

11 examine the witness, and as far as I understand, time was too short to --

12 it being taken over by someone else.

13 MR. HANNIS: That's correct, Your Honour.

14 JUDGE ORIE: Yes. The Chamber personally observed -- well, you

15 wouldn't say observed, but convinced itself that Mr. Harmon really lost

16 his voice. He tried to say to us that he lost his voice, but he was not

17 able to do so. Therefore, the Chamber has decided that it's unfortunately

18 impossible to sit this morning. Mr. Harmon, I wouldn't say told us, but

19 expressed his firm belief that he would be able to speak tomorrow morning

20 again. Therefore, we'll not sit today. We'll adjourn soon. We'll start

21 tomorrow. But the testimony of this witness will have to be interrupted

22 once the videolink is in place for the next witness, because rearranging

23 all the facilities for the videolink would take an enormous amount of time

24 and rescheduling of travelling, and it would really take so much that the

25 Chamber prefers to interrupt the testimony of the next witness. And I

Page 3620

1 think the video has been -- videolink has been scheduled for next

2 Thursday.

3 Then the Chamber would like to use the time available to give an

4 opportunity to Mr. Krajisnik to express his concerns, as we understood.

5 There was no time last Monday, but, Mr. Krajisnik, this is not an

6 invitation to use the time until a quarter to 2.00, but at least to give

7 you an opportunity to express what you'd like to tell the Chamber.

8 THE ACCUSED: [Interpretation] Thank you, Your Honour. I do not

9 wish to take up a great deal of your time. I'm sure you have other

10 business to attend to. But what I would like to say is this: I don't

11 wish to repeat the words spoken by my lawyer, but I will try to summarise

12 what I have to say in a few sentences.

13 First of all, I fully support the position taken by my Defence

14 counsel and Defence team in that, in the present stage of this trial, the

15 entire process and case is being prepared with quite a lot of effort and

16 it is difficult to make all the necessary preparations. It's not an easy

17 process. But as I say, I wasn't going to lend my support to my Defence

18 counsel and take away your valuable time. What I wanted to do, Your

19 Honours, is to ask for the Court's indulgence, for a little of your

20 patience, for me to present another aspect which makes it difficult to

21 have a fair trial at all times in this courtroom.

22 Before the beginning of trial, I addressed you and I told you that

23 I was not guilty. But I didn't ask you -- and this would be completely

24 improper for you to believe me at my word when I say that I'm not guilty.

25 What I did do, however, was to ask you to help me establish the truth. It

Page 3621

1 is my aim to defend myself at this trial, of course, but also that the

2 truth prevail and the truth be established about everything that happened

3 in Bosnia-Herzegovina. I do not want to carry the anathema of something

4 that I took part in, just as I do not wish to hide the truth that did

5 happen to victims.

6 Now, what is making this case difficult and with full respect for

7 the mandate of the Prosecutor and his remit, I would like to say that

8 there is not a sufficiently well-balanced action taken by the Prosecution

9 in the field. I do believe that the Prosecution is not abreast of what

10 their investigators are doing. I can believe that. But the investigators

11 are intimidating and instilling fear, quite literally, into the minds of

12 our witnesses. I'm sure you're aware of all the possibilities and means

13 that the Prosecution has at its disposal, much greater than the Defence.

14 But the investigators and the OTP and the Prosecutor are exerting discrete

15 pressure, thereby preventing future witnesses from coming into Court to

16 testify.

17 Now, let's see how this process is taking place. It is taking

18 place in this way. The people over there are very frightened, and when

19 the Prosecutor appears, they are very willing to make statements to

20 prevent themselves from coming here and being accused. So that is the

21 psychological mood that prevails. And then the Prosecutor, or rather, the

22 investigator, does not interview people with respect to the Krajisnik

23 circumstances, but most of the investigations follow these lines: Did you

24 know Krajisnik? Did you not know him? And so on and so forth.

25 Your Honours, there was a war there. It was a civil war over

Page 3622

1 there, and 90 per cent of the population took part in that war over there.

2 So everybody is potentially afraid that they might stand accused. That is

3 why - and this is my first point - I entreat you that the Prosecution

4 should draw the attention of their investigator -- to their investigators,

5 and of course they do have to investigate, I'm fully conscious of that

6 fact, but in a way to tell them that they need not deal with Krajisnik as

7 a subject matter and they have undertaken so many investigations and if

8 they haven't so far, then I think that they ought to ask themselves what

9 they have been doing in these past four years.

10 The second point that I wish to raise and appeal to you, Your

11 Honours, is this: I am being tried here. It is my trial. But there is a

12 trial going on in Republika Srpska and Bosnia-Herzegovina simultaneously,

13 and that trial is being conducted by the people, the populous, and the

14 media are playing a very important role here. And they represent

15 everything here that is going on. And I wish all the people, the Serbs,

16 the Croats, and the Muslims, to try me there. Here we have the Sense

17 institution, which has a very unfortunate role. It is difficult to

18 summarise everything going on here in Court, but I think it is a port

19 parole [as interpreted] company or house of the Prosecution, of the OTP,

20 and I think the way in which they are portraying this trial and

21 broadcasting is tendentious and improper. They never give an objective

22 overview to the ordinary citizen, the man in the street. They don't give

23 him the proper idea of what is going on here in the courtroom. And I

24 think that if they represent the interests of the OTP and Prosecutor, they

25 should say during their newsreels that this is the opinion of the OTP and

Page 3623

1 Prosecutor. And if that is not so, then they should also present other

2 aspects presented here in Court.

3 I should also like to ask you the following, so let me say it this

4 way. My proposal is this: That you should devote your attentions to

5 these aspects because the people, the population, must condemn a crime,

6 but it is improper for them to condemn a crime on the basis of

7 tendentious, and I beg your pardon for using this word, but the

8 broadcasting done by Sense here which has the exclusive right of

9 presentation.

10 Now the next thing that makes it impossible for me to prepare

11 properly for trial is this: I do not have the possibility of directly

12 communicating with my counsel, with my lawyers, because -- and of course

13 my lawyer speaks English, I speak Serbian. Now, I have the right to a

14 privileged telephone line, as indeed do all the other inmates in the

15 Detention Centre. But I also have the right to part of the investigation

16 team who is -- which is in Republika Srpska. And you know full well that

17 the secretariat decided to clip the resources allotted to our side. I

18 respect that decision, and as far as finances go, I will continue to

19 prepare my case. I have full respect for the efforts you have invested.

20 And I won't make a problem out of the points that I have put forward to

21 you. Of course, I will do my best to keep within the rules and

22 regulations.

23 But what is happening? We are not in a possibility of engaging a

24 lawyer in Republika Srpska at this present time, and as we have not

25 engaged a lawyer over there, it is impossible for me to have a privileged

Page 3624

1 telephone line with the team at Pale, for instance. Quite simply, I am

2 unable to communicate with them, nor am I able to indicate my positions to

3 them or assist them in finding the proof and evidence necessary in my

4 case.

5 So I appeal to you if you could authorise me to have another

6 representative who would pro bono, at Pale, be working for me and for me

7 to avail myself of that privilege, as do the other detainees.

8 And the last point that I would like to raise here is this: I am

9 very grateful to the Detention Centre for having enabled us the use of the

10 computer. However, if I can put it this way, I am preparing my motions,

11 appeals, notes, and everything else that I would like to present to my

12 team, which my team will further on, so what my work on the computer, due

13 to the rules and regulations -- I don't know what those rules and

14 regulations are, but it appears that I cannot communicate via CDs and

15 copies. I have to copy it all out, photocopy it. Nor am I able to get

16 from my team material that does not directly come from the Prosecution.

17 My team tapes on a CD something at Pale, I'm not able to have that in my

18 possession because the original has to be supplied by the OTP.

19 So this is an enormous amount of material that I have in my room,

20 and as you know, you could get far more material and documents on CD than

21 you can get files and binders into a room. So for me to be able to

22 communicate with my team via CD-ROM and tapes and electronic mail, I

23 should like to be able to do this. Of course, everybody can look into

24 that material, those documents, but I would like to ensure that I receive

25 these documents efficiently, because my mail from Republika Srpska I

Page 3625

1 receive with a delay of two or three days, and this is a great problem,

2 especially during the weekends, Saturday and Sunday, whereas we have to be

3 as efficient as possible in preparing our case. And I hope you won't mind

4 me saying this next thing.

5 Your Honours, I should like to ask you, here and now, the

6 following: All people, Muslims, Croats, and everyone, I can readily

7 understand that they need protective measures, but protective measures for

8 Serbs coming in to testify here, in my deep opinion, is that they are

9 potential criminals, if they ask for them, or people who are hiding behind

10 protective measures because they don't have a clear conscience. And I was

11 able to see those with the example of everybody here. 90 per cent of the

12 testimonies given here have not been truthful on the part of witnesses who

13 have been granted protective measures.

14 I think that each Serb, every man, should be able to state in

15 public and say what he thinks about me in public. It's unfortunate that

16 we have to divide people into Serbs, Muslims, and Croats. But as I say,

17 there's a lot of difference. When a Serb asks for protective measures,

18 he's asking for protective measures to be able to tell untruths, to tell

19 what is incorrect and to protect himself. So I should like to prevail

20 upon you to eliminate protective measures, and I know that a lot of

21 Muslims and Croats don't need protective measures to testify. But as I

22 say, I think that everything should be stated in public, and any

23 condemnation should be stated loud and clear in public so that the people

24 in Serbia and Bosnia-Herzegovina can condemn each one of us, if need be,

25 because this will serve future generations not to commit crimes. So thank

Page 3626

1 you very much for hearing me out, and I do apologise for taking up your

2 valuable time. Thank you.

3 JUDGE ORIE: You don't have to apologise, Mr. Krajisnik, for

4 taking some time, since you did not take a lot of time from us. So

5 there's no problem as far as that is concerned.

6 I see that you raised four issues. The first one about

7 intimidation by OTP investigators. If there's any concrete claim about

8 intimidation by OTP investigators, the Chamber would like to hear about

9 it. I'm certain that if you tell it to Mr. Stewart, that he'll address

10 the matter.

11 What you said until now is a few things, and I'll not cover the

12 whole of your concerns. First of all, if OTP investigators appear that

13 this causes people to react in their own way is something the OTP, as

14 such, cannot be blamed for. You further asked to focus on certain issues

15 and not to focus on other issues. It is mainly to the OTP to decide what

16 issues they want to raise with a potential witness. But as I said before,

17 if there's any concrete reason to believe that a witness is intimidated,

18 either by words or by the way investigators of the OTP behave, the Chamber

19 would like to be informed. We then, of course, would give an opportunity

20 to the Office of the Prosecution to respond to that, and we'll certainly

21 take that very seriously.

22 The second issue you raised is the special position of Sense.

23 Mr. Hannis, is there -- could you explain to us whether there's any

24 special relation between the Office of the Prosecution and the Sense

25 agency.

Page 3627

1 MR. HANNIS: I'm sorry, Your Honour. I'm frankly unaware of any

2 specifics about that agency in relationship between our office. There are

3 other people in my office I'm certain who can give you that information

4 but I simply just don't know.

5 JUDGE ORIE: Yes. Would you please find out whether there's any,

6 I would say, privileged relationship between Sense and the Office of the

7 Prosecution, and if the answer would be anything different from what you

8 just told us - that you are not aware of any special relationship - would

9 you then, without delay, inform the Court.

10 MR. HANNIS: I'll certainly do that, Your Honour.

11 JUDGE ORIE: Mr. Krajisnik, in this same context, you also

12 expressed your concern on one-sided reporting on what happens in this

13 courtroom. The freedom of press, of course, leaves quite some room for

14 reporting on what happens in this courtroom in a one-sided way. Everyone

15 who carefully follows the press would see that reporting is sometimes more

16 in favour of an accused, a witness, the Tribunal. Well, if there's a

17 large margin of appreciation on what really happened in this Court.

18 The Chamber and the ICTY as such cannot interfere with this way of

19 using the freedom of press. This is not to say that if the reporting on

20 what happens in this Court is totally inadequate, that this is not

21 something of no concern to the Chamber and to the ICTY. As far as I know,

22 all the material, everything that happens in open court - that means

23 submissions, transcripts, even videotapes - are available, as far as I

24 understand, for free to all of the press.

25 The third issue you raised was to have a privileged line,

Page 3628

1 telephone line. This is an issue which is mainly in the hands of the

2 Registrar. If the way the Registrar uses his powers and his

3 responsibilities for the Detention Unit would have as a consequence that

4 the fairness of the trial would be affected, then, of course, the Chamber

5 has to play some role as well, and the Chamber would like then to be

6 informed specifically about what your complaints are, since the Chamber is

7 not in a position just to grant you a privileged line at this moment. You

8 should apply for it, giving all the details to the Registrar, and then, if

9 this is unsuccessful, you're certainly invited to come back with it to the

10 Chamber.

11 A similar observation should be made on the fourth issue you

12 raised, and that is the issue of what you are allowed to do with

13 electronic device.

14 By the way, you're standing. Please be seated, if you'd prefer to

15 sit.

16 You well understand that both in respect of privileged telephone

17 lines and electronic materials, that there are a lot of issues involved,

18 including security issues. The Chamber is not competent to deal with it

19 as a whole, but if the margins available to the Registrar are used in such

20 a way that it would, I use the same term, affect the fairness of the

21 trial, then the Chamber would come into play as well. We would then like

22 to be informed about it, what steps you made in order to get what you

23 want, what information you gave, what were the reasons why the Registry

24 would deny it to you, and then we'll see what the role of the Chamber

25 could be in this respect.

Page 3629

1 This is a very brief first observation on the issues you raised.

2 I have forgotten one thing; that is, the way the Chamber uses its power to

3 grant protective measures. I'd rather not make too many observations into

4 that. You may be aware that the Chamber is concerned about the public

5 character of this trial. The Chamber takes decisions on protective

6 measures on the basis of what is adduced by the party who has called that

7 witness. Until now, of course, these are witnesses called by the

8 Prosecution. But of course the same will be true once the Defence will

9 present its evidence, if it will ever come to that. It's good that you

10 expressed your concerns about it, and the Chamber certainly will take into

11 consideration the concerns you just expressed. But these are decisions on

12 a case-by-case basis. Case-by-case, I mean witness-by-witness basis.

13 We'll certainly further discuss the issues you raised, perhaps

14 even this morning, but this is just a first -- yes. You'd like to say a

15 few more words. Please do so, Mr. Krajisnik.

16 THE ACCUSED: [Interpretation] Thank you, Your Honour. Not wanting

17 to take up too much time, I did not expound my first point, but, Your

18 Honours, I completely support -- or Your Honour, I completely support

19 everything you have said so far. I completely understand your position.

20 But when it comes to the media and the OTP investigators, I can understand

21 that the media, of course, have their freedom; I understand that

22 completely. I do understand that the Prosecutor has to investigate. But

23 what happens? The Prosecutor goes to see our witnesses and they turn our

24 witnesses into their witnesses. I think that it would be fair play if the

25 witness says to the OTP, "I am Momcilo Krajisnik's witness in his case."

Page 3630

1 Then I don't think that the Prosecutor should go ahead with an interview

2 and examining that particular witness.

3 Now, the other thing: The media in Republika Srpska are engaged

4 in a lynch operation. The High Representative of the international

5 community, for example, states quite publicly who -- if anybody helps

6 those accused of war crimes, they will be punished for it and they are

7 arrested, they are incarcerated. And a man was killed by the police

8 recently. Because people accused here through the media are black sheep

9 and somebody can kill them there and not be held responsible, accountable.

10 So all I'm asking you is this: Perhaps it would be a good idea if you

11 were to draw the attention of the media to an objective reporting on each

12 crime. Any tendentiousness would be dangerous. I'm afraid somebody might

13 go and kill my children, for example. If somebody points a finger at

14 somebody and says that he is helping a war criminal, who knows what will

15 happen to them.

16 So they think that if people come to testify here, that they are

17 in fact helping out war criminals. So I do understand your position. I

18 have had a series of attacks by media through my lifetime, whether they

19 were proper ones or improper ones, but there is a lynch team being set up

20 there and they said these witnesses are helping war criminals. So in the

21 very near future we're not going to have any witnesses at all to call.

22 Now, our team has not had a chance of reading through all the

23 documents and the material - and this is another point - and you know that

24 Mr. Brashich was here for three years. So please give more scope, more

25 space, more time for this Defence team to be able to prepare as best as

Page 3631

1 possible for the defence case. I'm sorry, and Mr. Stewart is an excellent

2 lawyer, I would like him to have enough time to prepare. If he's unable

3 to prepare, he's unable to do his job. So everything can be done on time

4 had we been given more time for preparation.

5 So once again, thank you for your patience, and I do apologise for

6 taking up your time. I'm going to sit down and don't intend to take the

7 floor again. But thank you for giving me that opportunity.

8 JUDGE ORIE: Let me give you a few observations on the issues,

9 some of them new.

10 First of all, the reporting in the media certainly may have an

11 effect on willingness to testify, at least that's to be presumed. As far

12 as you suggested, that witnesses would have to tell the investigators of

13 the Office of the Prosecution that they are your witnesses and that then

14 the Office of the Prosecution should, well, leave them alone and not

15 interfere with them any more, that's a complex legal issue. If you would

16 ask an English lawyer or an American lawyer whether the line there's no

17 property in a witness should be strictly observed or not, you might

18 receive different answers. Of course, the Chamber does not know yet who

19 your witnesses are. We have not seen a list of your witnesses. If there

20 would be any legal issue on this point, then I'm certain that the parties

21 would address the Chamber and to ask the Chamber to instruct the parties

22 to avoid illegitimate conversations with witnesses. But it would give

23 them not an easy time to exactly point out what would be illegitimate in

24 this field or not.

25 Then you also raised the issue of sufficient time for the Defence

Page 3632

1 team to prepare. I don't know whether you had an opportunity yet to speak

2 with counsel, but at least on the table of the Chamber is at this moment a

3 commonly supported schedule by the parties, setting out how, for the

4 coming weeks, they'd like to continue their conversations, since it's only

5 on our table since last Thursday, you might not be aware of the details of

6 it. We haven't discussed it yet. The Chamber has not discussed it yet.

7 It's just my personal view that at least it is a constructive attempt to

8 make further progress.

9 These are my observations in respect of the issues you just made,

10 but the Chamber will further consider them.

11 Yes, Mr. Stewart.

12 MR. STEWART: Well, I don't mind if Mr. Hannis goes first, Your

13 Honour. I do have some observations, but Mr. Hannis was quicker to his

14 feet.

15 JUDGE ORIE: Yes. Well, let's not spend too much time on who is

16 going to be first. Mr. Hannis.

17 MR. HANNIS: Thank you, Your Honour. Just for the record with

18 regard to Mr. Krajisnik's comments about the OTP investigators, Your

19 Honour, on their behalf, I have to insist that if there are any specific

20 allegations concerning alleged improprieties by our investigators, we must

21 insist that Mr. Krajisnik and/or his counsel advise us of particulars of

22 that, names, dates, places, et cetera, so that we can take appropriate

23 action. Otherwise I don't think it's appropriate to make broad

24 allegations without some support. And if some witnesses appear to be

25 uncomfortable or nervous because they're talking with our investigators, I

Page 3633

1 suggest in some cases it may be because of a guilty conscience rather than

2 because of any wrong conduct on behalf of our investigators.

3 JUDGE ORIE: Yes. That's your interpretation of the situation.

4 But I would say that it goes without saying, which is of course an odd way

5 of expressing yourself, to say what goes without saying, that if there's

6 any specific concern, we of course would like to hear from the parties

7 immediately.

8 Mr. Stewart.

9 MR. STEWART: Your Honour, yes. First of all, just dealing with

10 that specific point. Such information as I have received from the region

11 puts me in the position where there is enough to create concern on the

12 other hand for us here than to investigate and find out very specifically

13 what happened in relation to a particular witness before we were then to

14 say, well, this is what happened and this is the problem, is itself, well,

15 on the one hand, it's quite a time-consuming exercise because ideally one

16 would want to speak directly to that witness rather than have it through

17 about three or four people, which gives rise to all sorts of Chinese

18 whispers, is a phrase we use, Your Honour, which lead to distortion.

19 What we can say is this, Your Honour: Simply that we suggest and

20 we don't think this would be -- we don't submit this wouldn't be

21 controversial, that there are it two simple guidelines which should be

22 followed, so far as they are being followed, then there isn't a problem.

23 So far as they're not being rigorously followed - which we believe may be

24 the position - then they should be. And they are simply this: That any

25 Prosecution investigator -- and this would apply to a Defence investigator

Page 3634

1 as well. Any Prosecution investigator should, please, make it absolutely

2 clear to anybody they propose to interview that all such interviews are

3 voluntary, unless steps have been taken through the courts, and that would

4 mean the local courts as well, unless steps have been taken through the

5 courts to produce a situation of any compulsion in relation to a witness,

6 we believe that it should be made expressly clear to every witness --

7 every potential interviewee that their cooperation at this point is

8 entirely voluntary.

9 The second point, which is related, is that we believe that it is

10 important that there should be no exaggeration at all by implication,

11 leave alone expressly no exaggeration of the real risks of anybody being

12 prosecuted for any crimes. The position, as far as this Tribunal is

13 concerned, we understand to be that for practical purposes, anybody who is

14 not in a leadership position is no longer seriously vulnerable to the

15 possibility of an indictment in front of this Tribunal unless such an

16 indictment has already been issued. And there, of course, are issues so

17 far as any local prosecutions are concerned, but even there, there are,

18 after all, the Rules of the Road procedures. So we believe that if those

19 two points are made carefully and expressly clear to any potential

20 interviewee, first of all, voluntary nature of any prospective interview,

21 and secondly, no exaggeration whatever of any risk, in fact, we suggest it

22 perhaps ought to be -- in the present circumstances, it's perhaps fair to

23 make it clear to any potential interviewee the relatively slight nature of

24 the risk, certainly as far as this Tribunal is concerned, in relation to

25 many prospective interviewees, very few of whom, after all, will meet the

Page 3635

1 leadership criteria. If those are rigorously followed, then that ought to

2 solve a great deal of the problem. Because that's such information as

3 we've got suggests that there is confusion about some of this and that

4 interviewees or prospective interviewees are not fully appreciating the

5 strictly voluntary nature of their cooperation.

6 I can tell Your Honours that what I have done, and this has been

7 discussed between myself and Mr. Krajisnik, I have written to -- well,

8 Pale specifically in our case, but I have written what I believe to be

9 suitable, if you like, guidelines or information which can be given to

10 prospective interviewees, just telling them what their position is, in as

11 neutral a way as I possibly can, broadly along the lines of what I've just

12 said. But we believe that if those guidelines are followed by any

13 investigators that ought to solve a great deal of the problem, and then

14 we'll just deal with any particular problems if and when they arise in the

15 way that the Trial Chamber has suggested.

16 JUDGE ORIE: Yes. Have you shared your guidelines with the

17 Prosecution so as to briefly discuss on whether there's any difference of

18 view in this respect?

19 MR. STEWART: I haven't. I haven't specifically shared what I

20 wrote to Pale, which was -- it was relatively recently. What I wrote was

21 in the nature of a private communication to them indicating what they

22 should pass on. But I don't have any hesitation in doing it. I can

23 certainly pick out the particular points from the letter, taking out

24 anything which was just private. I could certainly do that and indicate

25 exactly what it is I've said. I hope and believe that our Anglo-American

Page 3636

1 approach in front of this Tribunal will lead us to a high measure of

2 agreement.

3 I should add that, of course, Your Honour, we, from our particular

4 perspective -- and we believe that it is applicable anyway before this

5 Tribunal. We do, I on Mr. Krajisnik's behalf, as his lawyer, of course I

6 do accept the principle that broadly there isn't any property in a witness

7 and that the fact that somebody might potentially be a Defence witness

8 with respect to Mr. Krajisnik, if proper guidelines and fairness are

9 followed by Prosecution investigators, we have no right to prevent them

10 from approaching somebody, just as they would have no right to prevent us

11 from approaching somebody on our side, and that that has been a matter of

12 discussion between Mr. Krajisnik and me.

13 If I could then go on briefly to one or two other points, Your

14 Honour. We, the Defence team, we know and acknowledge that there are

15 security issues relating, for example, to the use of emails. To say it

16 would be an uphill task to persuade the Registrar and the United Nations

17 Detention Unit to allow detainees to communicate by email would be an

18 understatement, so we don't see that as an easy nut to crack. But, Your

19 Honour, there are a number of practical issues related to communication

20 between Mr. Krajisnik and his team, and it would apply to other detainees.

21 I don't propose to spend time on it today, Your Honour, because

22 it's actually -- it's one of -- it's an item on a very long shopping or

23 housekeeping list, which we, this Defence team, have to deal with when we

24 have the time to deal with it. So I won't take time, Your Honour, today,

25 but we are, and this is, if you like, a microissue of the rather broader

Page 3637

1 problem of time, we are in need of a window or a breathing space to catch

2 up on some of these simple, practical matters. There is a very long list.

3 Mr. Krajisnik has touched on some of them. There are others. There are

4 questions of the language issue. There are a lot of important issues

5 associated with this trial and communication between Mr. Krajisnik and the

6 defence team which we are simply from a practical point of view not able

7 to keep abreast of while we are going from day to day and week to week

8 with witnesses. But that said -- with a bit of luck, Your Honour, we will

9 reach some arrangement which will enable us, within a reasonable time, to

10 deal with those. So I won't spend time on those detailed matters.

11 And so far as the question of privileged line is concerned, that's

12 also something that we have to consider and discuss and look into outside

13 taking up the time of this Trial Chamber. We are aware of the issues. We

14 have discussed it with Mr. Krajisnik. I should say we have also given

15 Mr. Krajisnik on Friday afternoon a report of the discussions and the

16 document which is on the Trial Chamber's table. So Mr. Krajisnik is

17 abreast of that.

18 So far as the media are concerned, Your Honour, equally, of

19 course, we accept the freedom of expression principle. There can be no

20 argument about that. On that particular issue, again, we have had

21 discussion with Mr. Krajisnik, and I have explained my perception as his

22 lawyer of the media issues, and Your Honour uses the phrase margin of

23 appreciation, which we understand fully well. We've explained the

24 concept, and Mr. Krajisnik, after all, is, whatever else he is, is an

25 experienced politician. The media issues are not exactly completely

Page 3638

1 strange to him. So that's understood.

2 We will, and I won't spend time on it today, but we will be

3 writing to Your Honour again when we can go through our shopping list. We

4 will be writing about the Ms. Del Ponte issue, because this is to us an

5 important aspect of media communication. But we also would, of course, as

6 the Trial Chamber would appreciate, any results of -- hearing any results

7 of hearing Mr. Hannis's inquiries which he's undertaken to make in

8 relation to communications between the Prosecution and Sense.

9 So far as protective measures are concerned, I'm going to make no

10 submissions or go into any detail on that this morning, except to say that

11 Your Honour already knows the strength of the concerns on the Defence side

12 about particularly closed sessions. But that's a matter which, rather

13 than deal with just on the hoof this morning and make a few comments, we'd

14 rather have that dealt with both on a witness-by-witness basis in the

15 correct way, as Your Honour says, but with a clear investigation of the

16 principles when there's proper time for reflection and mature discussion.

17 So, Your Honour, without suggesting that that's a comprehensive

18 run-through of the points raised this morning, because I don't want to

19 spend time doing that. What I've indicated some of our thinking, as

20 Mr. Krajisnik's Defence team, and there are a number of other issues which

21 have been raised this morning which do require investigation, mature

22 reflection, so that we can try and deal with them all in a principled and

23 efficient way. So perhaps we might, when we judge fit, we might bring

24 these matters back as they need to be brought back from time to time. And

25 we'll sort as many of them as we can, sort out as many of them as we can

Page 3639

1 outside the Trial Chamber, without needing to trouble the Trial Chamber,

2 because it may be that a great deal of progress can be made in relation to

3 a number of these issues, and leaving just a residue of those matters that

4 we must bring before the Trial Chamber, because Your Honours are the only

5 people then who can fully and properly deal with those matters. So we'll

6 try and adopt that sifting process and satisfy Mr. Krajisnik. Of course,

7 that's our job to satisfy him on as many matters as we can, consistently

8 with the correct principles and the legal position.

9 JUDGE ORIE: Thank you, Mr. Stewart.

10 Mr. Hannis, any need to further respond?

11 MR. HANNIS: No, Your Honour. Thank you.

12 JUDGE ORIE: Yes. Thank you.

13 Then, trying to use our time as efficiently as possible, the

14 witness we heard in closed session last week, we still have to deal with

15 the exhibits. But I can imagine that you'd rather leave that to

16 Mr. Tieger than to deal with it yourself. What we could do is to

17 adjourn -- I don't know whether Mr. Tieger is in The Hague at this moment.

18 MR. HANNIS: He is in the office this morning, I believe, Your

19 Honour, but I haven't spoken with him.

20 JUDGE ORIE: Yes. Perhaps we could adjourn briefly and then deal

21 in closed session with the exhibits on which we still have to take a

22 decision in respect of the last witness we heard.

23 MR. STEWART: Indeed, Your Honour. No problem at all from the

24 Defence side as far as that's concerned.

25 I have a short-ish housekeeping matter in relation to some

Page 3640

1 exhibits from a while ago, which in the case of the ones that I'm putting

2 forth, the Court should be dealt with in open session. So I wonder if

3 it's convenient to deal with that now, Your Honour. It won't take more

4 than five minutes.

5 JUDGE ORIE: Yes. We could start with that, then, briefly

6 adjourn, or you might even be in a position to give Mr. Tieger a call and

7 see whether he could arrive in Court soon so as to deal with the other

8 exhibits.

9 I must say I'm a bit surprised by the developments this morning

10 myself, so therefore, if I do not know exactly which exhibits you had in

11 your mind, I remember that we had some Sanski Most exhibits which would be

12 dealt with in its totality rather than to deal with it immediately. I do

13 not remember, for example, by heart who was on the Prosecution's team when

14 we dealt with the exhibits you have on your list. Another way of doing it

15 is to -- if you have anything in writing, that we could just read it

16 during the break.

17 MR. STEWART: Your Honour, may I -- this is incredibly simple.

18 JUDGE ORIE: If it's incredibly simple --

19 MR. STEWART: It is, Your Honour. It won't take very much longer

20 than debating how to do it, Your Honour.

21 JUDGE ORIE: Yes. You say it's simple enough for the Chamber to

22 understand without further preparation.

23 MR. STEWART: I hope there wasn't an implication in what I said.

24 JUDGE ORIE: No, no. Please proceed, Mr. Stewart.

25 MR. STEWART: -- Your Honour. Your Honour, it relates to, in the

Page 3641

1 first place -- it's just a quick shopping list. Exhibit D5, do you

2 remember, Your Honour, we had some question about the particular form of

3 the Cutilheiro plan, the Lisbon Agreement, the Sarajevo Agreement, and so

4 on.


6 MR. STEWART: And we put in some documents which were provisional

7 in the Sense that it was felt there might be a better or more definitive

8 version.

9 Your Honour, the position as far as D5 is concerned is that we

10 have effectively a replacement version. This is what's called the

11 Sarajevo Agreement. It's the Sarajevo signed version of the Cutilheiro

12 plan. And what we're offering now as D5 is a version that was supplied

13 since that hearing, supplied by the Prosecution, and we are in agreement

14 with the Prosecution that it's a suitable version to submit as D5. So

15 this particular document becomes D5, the provisional D5, well, really gets

16 put on one side. And we've got copies of this, Your Honour.

17 So this document would become D5. That's the English version.

18 And we have had it translated by the translation unit, and that's

19 appended, the B/C/S version is appended to that. And that is an official

20 translation, as it were, done by the translation unit. So that's D5, Your

21 Honour, which Ms. Philpott had on her list as provisionally -- under date

22 admitted provisionally 20/04/04, and we hope that's clear enough to help

23 Ms. Philpott to tidy up the list and bring it up to date.

24 The next one is --

25 JUDGE ORIE: May I ask you one question in that respect.

Page 3642

1 MR. STEWART: Yes, Your Honour.

2 JUDGE ORIE: As a matter of fact, one question for you, one

3 question for the Prosecution. You say this is the Sarajevo signed version

4 of the Cutilheiro plan. I take it that you say that this is the text of

5 what has been signed. Because I see no signatures on this specific copy

6 of the document.

7 MR. STEWART: Yes. I beg your pardon, Your Honour. It's the --

8 JUDGE ORIE: Text that was finally signed --

9 MR. STEWART: It's the text of what is agreed to have been -- I

10 think there must have been a formal signature, but agreed and signed. It

11 expresses as agreed by the leaders of SDA, SDS, and HDZ parties. We

12 believe it was actually signed. That's -- it was what was agreed, anyway.

13 JUDGE ORIE: Yes. Mr. Hannis.

14 MR. HANNIS: Your Honour, basically I have no objection, but I do

15 have a question. I'm looking at my copy and looking at the ERN numbering,

16 starting -- the first page is 02093997. Then it goes 998 -- or 3998,

17 3999, and then the next page is 4001. The page number 4000 seems to be

18 missing. I don't know if there's something wrong in the numbering or if a

19 page has been omitted from the copy I have.

20 MR. STEWART: Yes, Your Honour. The explanation again is as

21 simple as the other things, but the question is a fair one. The page in

22 between is the map which is going to come up as D7.

23 MR. HANNIS: Fair enough. Then no objection.


25 MR. STEWART: Good question, Your Honour, but I think that's the

Page 3643

1 answer.

2 JUDGE ORIE: Yes. Well, no objections, so even Mr. Hannis agreed

3 that it was a good explanation you gave.

4 MR. STEWART: Well, Your Honour -- but yes.

5 JUDGE ORIE: Is there any need to keep the original D5 in order --

6 well --

7 MR. STEWART: No, Your Honour.

8 JUDGE ORIE: You never know. Perhaps we could mark that for

9 identification now.

10 MR. STEWART: Your Honour, we suggest no. It was put in

11 provisionally. It's not helpful to anybody to retain that piece paper.

12 It is really superceded by this, and I think we're both agreed,

13 Prosecution and Defence.

14 MR. HANNIS: I have no objection to that being entirely withdrawn.

15 JUDGE ORIE: Okay. Then we'll just withdraw, give the original to

16 madam -- and this is -- yes. You have received the new copy of D5.

17 So the provisionally admitted D5 is now replaced by the Sarajevo

18 Agreement, which is still based on the Lisbon Agreement but a later

19 version. I saw it was the 31st of March when it was completed, as we find

20 that on --

21 MR. STEWART: Well, it's the piece of paper we've just handed out,

22 Your Honour. That, I think, is the key.

23 JUDGE ORIE: Yes, of course. But Madam Registrar usually gives a

24 short -- and as a matter of fact, it seems to be two documents, the first

25 one being of the 18th of March and the annex to it on the 31st of March -

Page 3644

1 that's the famous page 4001 - where there's handwritten a new date on it,

2 if I'm correct. Yes. It's ERN number 02094001, is the additional part to

3 be added to part B of the statement of principles of the 18th of March,

4 1992, and we then find, between brackets, in handwriting, on March 31.

5 MR. STEWART: Indeed, Your Honour. Thank you.

6 JUDGE ORIE: Yes. That's clear, and also I take it gives

7 sufficient guidance for the registrar to put the document in a right way

8 in our list.

9 Yes, Mr. --

10 MR. STEWART: And Your Honour, then D6, we were in a similar

11 position with D6. D6 was the -- again provisionally was the Lisbon

12 Agreement, because there was the Lisbon Agreement, then the Sarajevo

13 Agreement. And again, what we have got is a version, once again, came

14 from the Office of the Prosecution, from the so-called -- its origins the

15 so-called Sarajevo collection, we understand. And again, it's accompanied

16 by a translation which has been done by the translation unit, and again we

17 would propose that the document originally submitted provisionally to the

18 Court should simply be jettisoned, because if we can cut down bits of

19 paper, we always should do, and we suggest in the same way that there's no

20 value in retaining what was originally put before the Court. So this is

21 similarly, Your Honours have it as statement of principles. It's

22 SA01-7151. And that goes through to 7153. And then the B/C/S translation

23 is appended to that document.

24 So may we deal with that, Your Honour, in the same way. And

25 that's D6.

Page 3645

1 JUDGE ORIE: So this is now the final version of D6, which

2 replaces the Cyrillic version we earlier had. And let me just check.

3 Yes. I've got the original here in my hands. I also see that it's not

4 perfectly identical, but this is the new copy that, for example, I see at

5 the very end of the document, there seems to be something like a date

6 which does not appear in the new version, on page 3 of the original

7 Cyrillic I see something about -- it looks as the 28th of February, 1992.

8 That doesn't appear any more on the --

9 MR. STEWART: Yes, agreed. The text is not dated, Your Honour.

10 We think the thing is that when this is given an exhibit number, it does,

11 after all, then tie in with the evidence that was actually given. So when

12 one reads that bit of the transcript and comes to D6 and sees that a

13 provisional document was put in, it will then be seen that D6 is in fact

14 this document.

15 JUDGE ORIE: Yes. Mr. Hannis, any -- yes, Mr. Tieger.

16 MR. TIEGER: Your Honour, I apologise for that, and I only rise

17 because I think this concerns a matter that I was in Court on at the time

18 it was originally raised, so I thought I might be of some assistance in

19 that.

20 JUDGE ORIE: We're talking about D6 at the moment. We have been

21 provided with a new English text and a B/C/S translation. And we

22 originally had as D6 a B/C/S version in Cyrillic, which seems not to be

23 exactly identical with the other one. But any objection?

24 MR. TIEGER: Well, I guess that is the nature of my concern.

25 Whether it rises to the level of objection I think depends upon the nature

Page 3646

1 of the difference.

2 JUDGE ORIE: Yes. So you'd rather --

3 MR. TIEGER: The document referred to in Court, if there's a

4 reference back to the document that was discussed in Court and it's not

5 the same document, we have a potential problem. If the differences

6 between the two documents have nothing to do with the evidence adduced in

7 Court, I can't see a problem.

8 JUDGE ORIE: So do I understand that you reserve your position

9 until you have identified that what might be a potential problem is no

10 problem?

11 MR. TIEGER: It seems to me that would be the most prudent course.

12 JUDGE ORIE: We'll hear, then, from you. Could we do it in such a

13 way, Mr. Tieger, that we admit the new D6 in evidence, but you're entitled

14 to revisit the issue whenever it suits you?

15 MR. TIEGER: Certainly, Your Honour. That would be fine.

16 JUDGE ORIE: And then exclusively on the basis of differences in

17 documents. I mean, otherwise we would have to -- if we do not hear from

18 the Prosecution, it's admitted. If the Prosecution at a later stage, on

19 the basis of the differences in the original, the initial D6 and D6 now

20 presented, if there would be anything substantially of concern to them,

21 we'll hear from them.

22 MR. STEWART: I wonder if we might do it this way, Your Honour,

23 which is pretty close, with respect to what's being suggested. I

24 apologise, by the way. My clothing seems to be falling apart this

25 morning. But better than the football.

Page 3647


2 MR. STEWART: Your Honour, if we proceed with what I'm suggesting,

3 because this document -- I'm sorry if there's been confusion about it.

4 This document was supplied to us by the Prosecution, which is why we

5 assume there wouldn't be a difficulty.

6 Could we leave it this way: That unless by the end of this week

7 the Prosecution indicate there's any problem, then Ms. Philpott could

8 simply draw up the list in accordance with what we've just been suggesting

9 and then everything would be in order, rather than leaving it open-ended

10 for the future.

11 JUDGE ORIE: Yes. Mr. Stewart suggests a time limit.

12 MR. TIEGER: I assumed there was an implied time limit in any

13 event, and I accept the time limit proposed.

14 JUDGE ORIE: Okay. If we do not hear by the end of this week,

15 then the new D6 is the one and only.

16 MR. STEWART: That's very practical and helpful, Your Honour.

17 D7 is the map with that number 02094000. It's not an easily

18 legible map, but many of them aren't. But again, we had a provisional

19 map. We were now putting this forward as the document -- it's a single

20 page, to be D7, and any previous D7 is inoperative. Again, we suggest

21 that's just put on one side.

22 JUDGE ORIE: Yes. Looking at it, I see that where the original D7

23 in the legenda has Muslim, Serb, and Croat, and Sarajevo, that the new one

24 in the legenda has no Sarajevo any more.

25 MR. STEWART: Yes. That's right, Your Honour. Again, this

Page 3648

1 document was -- came from the OTP, since that hearing. We are content for

2 it to be D7. If there's any lingering question mark, then I suggest we

3 deal with it in exactly the same way as the previous exhibit and we -- so

4 with the same time limit this week.

5 MR. TIEGER: Yes. I agree with that, Your Honour.

6 JUDGE ORIE: Yes. Would there be a possibility to provide the

7 Chamber with an enlargement? Because there's a lot of text, and I can

8 read Banja Luka and I can read a few others, but my eyes are not

9 sufficient to decipher all of what -- if there would be an enlarged

10 version, even if this would be the original one admitted into evidence.

11 But since there are no objections, at least this version is now admitted

12 into evidence and the Chamber would highly appreciate to have some side

13 aids to --

14 MR. STEWART: So would everybody else, Your Honour.

15 JUDGE ORIE: Yes. Well, you have the advantage. You can take off

16 your glasses, Mr. Stewart. I have no glasses, so I can't take them off in

17 order to see better. You have the advantage.

18 Yes, please proceed, Mr. Stewart.

19 MR. STEWART: Your Honour, then the last --

20 THE INTERPRETER: Microphone, please. Microphone, please.

21 MR. STEWART: Sorry. Your Honour, the last of this batch was D15,

22 and that is simply that we were asked, which we've done, to obtain an

23 official translation of a document which I think Ms. Cmeric had done a

24 very good but unofficial translation. And we have had that done. So what

25 we've got, it's actually -- it relates to a session, conclusions of the

Page 3649

1 Bosanski Novi Municipal Assembly.

2 The only tiny problem with this is that a question came up as to

3 what the date was at the top of the original -- well, photocopy original

4 B/C/S version, and I think His Honour Judge El Mahdi observed that it

5 wasn't crystal clear what the date was, and we agreed. The only thing is

6 that the suggestion adopted by the translators seems to be the one date

7 that it couldn't be. So that's --

8 JUDGE ORIE: It seems to complicate matters. Well, I take it that

9 the question mark under 3 means that the translators were not certain on

10 whether this was a 3 they were translating or whether this was any other

11 figure.

12 MR. STEWART: Yes. But presumably by putting 3, they've put 3 as

13 their preferred candidate. But since it's actually reporting decisions

14 reached on the 16th of June, the one date it clearly can't be is the 13th,

15 because it would have been written in advance. It's either the 16th or

16 the 18th. I must say, Your Honour, that it's pretty clear to us now that

17 it's the 18th. If the Prosecution agreed it's the 18th and if the Trial

18 Chamber wouldn't have a violent objection, it would really be rather

19 simpler to adopt it as the 18th, because that is the way it looks to us.

20 JUDGE ORIE: Yes. First of all, I'd like to emphasise that it's

21 good that the translators do not check the logic of documents but just

22 translate. So they should be praised for taking this approach rather than

23 to draw conclusions on logics. But of course it's up to us to see whether

24 there's still some logic in it.

25 MR. STEWART: Your Honour, I came to praise the interpreters, not

Page 3650

1 to bury them.


3 MR. HANNIS: Well, Your Honour, it seems logical it probably is

4 the 18th, and one thing that we might be able to do is check the numbering

5 of this document, where, on the first line, it's 120/92. We might be able

6 to look at other conclusions or decisions of the Bosanski Novi

7 municipality and see where this fits in the sequence of the numbering.

8 For example, if number 119 was on the 17th of June and number 121 was on

9 the 19th, then we'd feel quite comfortable that this is the 18th.

10 MR. STEWART: Yes. I'm delighted for Mr. Hannis to do that work,

11 Your Honour, and appreciate the offer greatly.

12 JUDGE ORIE: Yes. So the document is admitted into evidence, if

13 there are no objections, Mr. Hannis. And if the parties would like to

14 make any further comments on the part which is difficult to read, then the

15 Chamber has full understanding that this is an issue still to be raised.

16 I also have a look -- so the unofficial translation is now,

17 because the original remains the same, it's D15.1, I take it, now, which

18 is replaced, and not D15 itself.

19 MR. STEWART: Your Honour, I have nothing else, except may I

20 simply make this inquiry: On Thursday, Thursday afternoon, as we

21 understand, on Thursday afternoon we have the videoconferencing?

22 JUDGE ORIE: Madam Registrar, it's in the afternoon.

23 MR. STEWART: Yes.


25 MR. STEWART: Your Honour, can we take it that it is only that

Page 3651

1 witness who will be dealt with on Thursday? So the other witness that we

2 would have started this morning will not under any circumstances be in

3 Court on Thursday? I ask that, Your Honour, because that would be of

4 enormous practical help, given the slight rescheduling, to know that.

5 JUDGE ORIE: Yes. Well, I said that we have to interrupt the

6 testimony of the other witness as soon as the videolink is in place.

7 MR. HANNIS: Yes. It was my understanding as well, Your Honour,

8 that because of logistics, that has to take priority over the other

9 witnesses.


11 MR. STEWART: Is that a yes, Your Honour, to my question?

12 JUDGE ORIE: Yes. I think that's a yes.

13 MR. STEWART: I'm obliged, Your Honour. Thank you very much, Your

14 Honour. That's most helpful. I appreciate that.

15 JUDGE ORIE: Then I'd like to turn into closed session. Perhaps

16 it's not necessary to have any further ...

17 [Trial Chamber and registrar confer]

18 JUDGE ORIE: So D15 and D15.1 are now admitted into evidence and

19 not marked for identification any more, on the basis of the new

20 translation.

21 Then I'd like to turn into closed session to deal with the

22 exhibits of the witness we -- that was examined last.

23 [Closed session]

24 (redacted)

25 (redacted)

Page 3652












12 Page 3652 redacted, closed session














Page 3653












12 Page 3653 redacted, closed session














Page 3654












12 Page 3654 redacted, closed session














Page 3655

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 [Open session]

21 JUDGE ORIE: We'll adjourn until tomorrow morning, 9.00, in

22 Courtroom I, where we'll hear the testimony of the next witness, but

23 protective measures are in place.

24 We are adjourned.

25 --- Whereupon the hearing adjourned at 10.26 a.m. to

Page 3656

1 be reconvened on Tuesday, the 15th day of

2 June, 2004, at 9.00 a.m.