Tribunal Criminal Tribunal for the Former Yugoslavia

Page 4448

1 Friday, 16 July 2004

2 [Motion Hearing]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.27 p.m.

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

7 THE REGISTRAR: IT-00-39-T, the Prosecutor versus Momcilo

8 Krajisnik.

9 JUDGE ORIE: Thank you very much, Mr. Registrar.

10 Good afternoon to everyone. We are here to hear a motion filed on

11 the 14th of July, Defence motion for adjournment. The Chamber has

12 carefully read that motion but would like to hear any additional

13 submissions the parties would like to make, and since there is not a

14 written response by the Prosecution, the Prosecution will have an

15 opportunity to respond. And perhaps we first hear the Prosecution to hear

16 what they've got to say about this motion and then hear further

17 submissions by the Defence.

18 Please proceed, Mr. Harmon.

19 MR. HARMON: Good afternoon, Mr. President, Your Honours, counsel.

20 My name is Mark Harmon. Appearing with me is Mr. Alan Tieger, Ms. Carmela

21 Annink-Javier from the Office of the Prosecutor.

22 We did not file a response, Your Honour. We felt that we could

23 make any oral submissions after we heard the submissions of the Defence.

24 Therefore, since it's not our motion, Your Honour, I would defer to the

25 Defence to make its submissions and we would then reply if we deem replies

Page 4449

1 are necessary.

2 JUDGE ORIE: Yes. I had in mind, as a matter of fact, that you

3 would respond to the written motion and the Defence would then have an

4 opportunity to include that in its further submissions. So -- but if the

5 parties could agree, like in the Rules of Procedure and Evidence of the

6 ICC where the parties are supposed to agree on the order in court --

7 MR. STEWART: Your Honour, we have absolutely no problem with

8 Mr. Harmon's suggestion. That seems to be a side issue, really, that we

9 can deal with everything effectively in the way that he suggests.

10 JUDGE ORIE: Let's then follow it. Mr. Stewart, you have an

11 opportunity to make further submissions related to this motion.

12 MR. STEWART: Yes, thank you, Your Honour. The -- Your Honour,

13 what I -- there -- there -- we did put in quite a lot of factual detail in

14 our motion and we outlined our legal submissions, but as Your Honour will

15 appreciate, in the light of the enormous importance to Mr. Krajisnik and

16 the Defence of this matter, there are quite a number of points that we

17 would like to make clear.

18 The -- what I'd like to do first, which may seem a little bit

19 strange, but I'm going to run through several points to make it clear what

20 this hearing isn't about. And it is important, Your Honour, because in

21 order to understand clearly what this hearing is not about, that will

22 focus on what it is about, and of course they are related. And it avoids

23 any possible confusion of thinking or misunderstanding about the position

24 of the Defence and the approach.

25 So first of all, what this hearing is not about, is not about

Page 4450

1 money. It's not about the financial allowance by the Registry in the

2 sense that there is no application or complaint whatever -- Your Honour,

3 I'm sorry, I should say I'm accompanied by my co-counsel Ms. Chrissa

4 Loukas and our case manager Ms. Tatjana Cmeric. I apologise --


6 MR. HARMON: -- for overlooking that. Whenever I say "I" I mean

7 we anyway, Your Honour, because these are our submissions.

8 It's -- there's no application, no complaint about that. Your

9 Honour knows the basic system, of course is very familiar with it.

10 Mr. Krajisnik is treated as partly indigent in this case so that there is

11 a -- at this stage of the proceedings there is a gross monthly allowance

12 -- that's a slight simplification, but there is a gross monthly

13 allocation by the Registry for Defence costs to cover everything.

14 Mr. Krajisnik has been assessed as liable to make a contribution to that,

15 and, Your Honour, of course this Trial Chamber has dealt with that

16 particular aspect of the matter and so is familiar with it and it's not

17 appropriate or necessary for me to go into the details of the figures

18 there, but that is the broad position as a matter of principle.

19 This hearing is also nothing to do with any question about

20 Mr. Krajisnik's contribution or any question of whether it's paid or not.

21 That has not affected anything so far and the arrangements on which -- as

22 a matter of fact, I am insisting as between myself and Mr. Krajisnik -

23 which are absolutely not necessary to go into in the light of what I'm

24 saying - mean that it shouldn't significantly affect the position in

25 future either. So Your Honours can treat the matter on the footing that

Page 4451

1 what the Defence team has had at its disposal and what it has at its

2 disposal to manage this case and run this case with the people that we

3 have in The Hague and the people that we have out in -- well, it's mainly

4 in Pale, Bosnia Herzegovina, Republika Srpska, that we are managing that

5 with the amount which is allocated to us by the Registry, which is a

6 standard amount for a category 3, the most difficult and leadership case.

7 If the Trial Chamber has any concerns about that basic point as

8 I've put it, then, as I will under a number of other points, I invite the

9 Trial Chamber to express any such doubts and questions so I can answer

10 them, because there is an answer to that. We clearly don't -- we want to

11 avoid any misunderstanding and we don't want to hear in a judgement at any

12 point some misunderstanding which we believe we could have cleared up.

13 JUDGE ORIE: Mr. Stewart, I could give you an answer to that right

14 away. Of course we -- it will not surprise you that the Chamber has

15 already exchanged some views on -- on this motion, and it was clearly

16 understood and it's the starting point for the Chamber that it will not

17 interfere with how and whether or not Mr. Krajisnik fulfils his

18 obligations to contribute. The Chamber just takes it for granted that a

19 full Defence team is functioning. The size of the team, of course, has

20 been mentioned, but it's not something the Chamber is concerned about at

21 this moment as to whether you can function on the basis of the decision of

22 the Registrar as it stands after review by the Chamber.

23 MR. STEWART: Yes. Your Honour, with respect, there is a slightly

24 different point. The question of how we are able to function on that

25 allowance is a question, and it is relevant to what we have. The -- the

Page 4452

1 point is a very slightly different one but I think it's probably wrapped

2 up in what Your Honour was saying anyway, which is that the Trial Chamber

3 can take it that there is no difference from the practical point of view

4 of this application, this hearing. There's no difference between the

5 situation as it would be if Mr. Krajisnik had been assessed at a nil

6 contribution and we were getting the whole amount from the Registry and

7 the situation where we're not. That's --

8 JUDGE ORIE: That is what, perhaps not very precisely, I wanted to

9 express.

10 MR. STEWART: I understand. That's extremely helpful, Your

11 Honour, because that clears that point out of the way straight away.

12 The second matter it's not about is the project, as I will call

13 it.

14 JUDGE ORIE: The third already. The first was the money, the

15 second was the contribution and --

16 MR. STEWART: The contribution is very much part of the money.

17 I've got my own numbering system.

18 JUDGE ORIE: I will not interfere any more.

19 MR. STEWART: I beg your pardon, Your Honour, that was all part of

20 number one. So I'm moving on to number 2.

21 What -- the second thing this hearing is not about is the project,

22 as we called it, and its end last Monday. And perhaps in about two or

23 three sentences, Your Honour, I should recap what the project was because

24 it's a public hearing.

25 It's now aborted, in a sense. Whether it's dead or it's comatose

Page 4453

1 or it's sleeping depends on point of view and where we might go in future.

2 But Your Honour knows that what we did was that we -- well, I hope Your

3 Honour accepts that we conscientiously, Prosecution and Defence, explored

4 agreement on facts, particularly in relation to municipalities and,

5 although we hadn't got very far on experts, the question of agreement of

6 expert evidence, consistently with our duties to Mr. Krajisnik on our side

7 and the Tribunal on both sides, but in -- on -- and what we had, as Your

8 Honours know, we had a programme or a schedule which might have run quite

9 a number of weeks into the future and after the recess during which we

10 would attempt to agree facts in relation to a whole series of

11 municipalities in the interests of, in the end, trying to avoid

12 unnecessary disputes and trying to, in everybody's interests, move this

13 trial on, consistently, of course, with Mr. Krajisnik's interests and our

14 duties to the Tribunal.

15 In a nutshell, Your Honour knows, of course, our duties to the

16 Tribunal don't positively require the Defence to agree facts where it's

17 not in Mr. Krajisnik's interests, because it's accepted as a basic

18 principle that the defendant has a right that the Prosecution proves every

19 single ingredient in their case. It may be not a productive approach to

20 adopt in a case overall, but it is a defendant's right. And Your Honour

21 I'm far from saying that we are intending to exercise that right to the

22 full in those terms. That's -- we don't see that as being our

23 professional position and necessary in Mr. Krajisnik's interests, but as

24 far as the particular project is concerned, Your Honour knows, because I

25 wrote, having decided over the weekend that it was no longer in

Page 4454

1 Mr. Krajisnik's interests, that was my professional judgement, shared by

2 our team, that it was correct to inform the Tribunal immediately and

3 notify the Trial Chamber immediately so that there was no room for further

4 misunderstanding and no unnecessary work by anybody.

5 The -- we -- so that's -- well, I think, actually, I can move on

6 from number 2, because number 3 - and I make this a separate point because

7 it's related to the project but it is important - is again what this

8 hearing is not about is the project timetable. We spent, as Your Honour

9 knows, a few weeks ago we all - by which I mean many members of the

10 Prosecution team and for practical purposes all members of the Defence

11 core team; myself, Ms. Loukas and Ms. Cmeric - spent, for practical

12 purposes, a week planning the project, producing a schedule. That was

13 quite a heavy exercise in itself. We also spent, for practical purposes,

14 pretty much the whole of the last two weeks, not including this current

15 week but the previous two weeks, almost entirely on that work because we

16 were implementing the project at that stage.

17 So those two weeks, for practical purposes, disappeared on that

18 exercise. The idea of the extended adjournment, or one of the important

19 ideas of the extended adjournment, and certainly from the Defence point of

20 view, was that it would enable us to have a certain amount of time to

21 catch up on the preparation of this case which we have so far not been

22 able anywhere near to complete, which is the basis of this application.

23 So even if one were to take the project timetable as the guide, we

24 would need the time contemplated in the schedule, because we've already

25 had -- and a lot of this week has gone by as well and not been available

Page 4455

1 because of this motion for proper preparation on the case. So we are

2 effectively three weeks on from when even that schedule had to begin. But

3 I do emphasise the point that the schedule inherent in that project was a

4 negotiated time. It was a compromise. We did, on the Defence side, and

5 we put it frankly, we did wish to avoid the risks of this sort of

6 application because, after all, we hope and trust in the end that our

7 application will be granted, but it would be naive of me to stand here and

8 say that I don't know, as an experienced advocate, that there are risks

9 inherent in this application. That's not in any way to suggest that it

10 doesn't have absolute strength, shouldn't be granted, but we know there

11 are risks; otherwise, the Trial Chamber would just be saying, fine, you

12 can have what you want and the Prosecution would be saying that's fine, we

13 go along with that. We know that's not the position. Here we are having

14 to fight it very hard.

15 So that was a negotiated compromise which, in our view, in the

16 end, with all the other elements, and Your Honour knows from the meeting

17 last Friday it's our position we don't suggest that the Trial Chamber

18 agree with us at the moment and we don't know whether the trial -- the

19 Prosecution agree with us or not, really, showed insufficient concern for

20 Mr. Krajisnik's interests, but we hope that the project at least has the

21 merit of enabling the Tribunal to see some of the whole picture.

22 The test now is what's needed to ensure a fair trial for

23 Mr. Krajisnik from now, from this moment. And if the Trial Chamber draws

24 the inference that because we would have compromised in all sorts of ways

25 on a particular period and on the footing of clear assurances on which we

Page 4456

1 could rely as to the time we would have, that that's all we reasonably

2 need, then that's a wrong inference because that is not the position.

3 We accept the obligation this afternoon to flesh out that point

4 and to indicate very clearly, in a way that perhaps we have not

5 sufficiently done before, and perhaps the opportunity, circumstances

6 haven't arisen because we haven't had a motion in this form. It's our

7 obligation, of course, to give the Tribunal -- to give the Trial Chamber

8 the clear facts, because we are asking - we acknowledge that - we are

9 asking for a very significant adjournment in a very heavy case, but we

10 accept that obligation and we will do that.

11 The fourth point that this hearing isn't about, except in a very

12 -- in an indirect way, it's not about the time or money spent by or on the

13 previous Defence team. The time and money spent, and just again to recap,

14 we're in a public hearing: Mr. Krajisnik has been in prison here in The

15 Hague since April 2000. His trial, with a team of lead and co-counsel,

16 the lead counsel being Mr. Brashich, was due to start -- I can never

17 remember the precise date. It was either the 12th or 17th of May, but

18 it was some date in the middle of May 2003. And as Your Honours know all

19 too well, a matter of a few weeks before that trial Mr. Brashich had to be

20 or was removed from the case because he basically lost his qualification

21 because he was suspended from practice by the New York Bar. Whether it's

22 city or state, again I don't know, but his Bar. He was suspended from

23 practice from the 1st of May, 2003, and normally speaking, and certainly

24 that was the position adopted in relation to Mr. Brashich, a lawyer who

25 loses his standing for a period or permanently in his or her own

Page 4457

1 jurisdiction is, by the same token, going to lose his or her standing and

2 right to appear in front of this Tribunal unless a special dispensation is

3 offered, and it wasn't.

4 Mr. Brashich's co-counsel was apparently also not ready and

5 equipped or, in effect, expecting ever to have to step into the position

6 of actually having to do the case as an advocate, so he had to go as

7 well. Whether had to go or did go, it's -- I leave that entirely open, I

8 can't remember which it was, and I don't mean any -- he certainty wasn't

9 in the same position as Mr. Brashich. I don't wish to suggest or imply

10 that so far as the reasons for removal of his own. Basically, he went

11 with Mr. Brashich. That's what happened.

12 There was then a period of a few months over the summer until I

13 was assigned as lead counsel on 31st of July, 2003, and then Ms. Loukas

14 signed as co-counsel on a date which she may remember but I don't -- 16th

15 of September, 2003. Thank you.

16 The reason why I say the time and money spent by the previous team

17 are completely irrelevant, they're completely irrelevant except so far as

18 they affect the time, and I can put in brackets money but it's really the

19 time, the time required by the present team. So it's actually only such

20 time saving as the present team is able to, if you like, have achieved or

21 such time saving as transferred over to us when we took over the case by

22 virtue of the fact that work had already been done by the previous Defence

23 team which is of any relevance at all.

24 Now, there was some, of course, because there were some

25 preliminary motions. There were some steps along the way, some procedural

Page 4458

1 steps which any Defence team would have to be engaged in, which

2 Mr. Brashich and his co-counsel were engaged in. There was some water

3 under the bridge. There were some steps which simply didn't have to be

4 repeated. Those were relatively -- relatively minor in the overall

5 context of preparation of the case.

6 The previous Defence team did also file a Defence pre-trial brief.

7 They have saved us time, it's true, in the sense that we have not been

8 required -- we were given the opportunity of supplementing the pre-trial

9 brief, but frankly, we were not in the business of volunteering any tasks

10 that we didn't absolutely have to undertake at that stage. So although

11 the pre-trial brief might be thought to be rather less informative than

12 pre-trial briefs sometimes are, and that's a bit of an understatement, it

13 is true that we have not actually had to prepare a pre-trial brief. So we

14 have never suggested that there was no saving whatever, that we are in

15 exactly the same position as a new team taking over from scratch with

16 nothing. But that still raises the question of how far we really have

17 been saved the requirements of normal preparation time by the work done by

18 the previous Defence team. And the simple answer is not very far.

19 Now, one of the problems here is that, in a way, the people in the

20 best position to judge, if I might usurp that word but not intending to

21 usurp Your Honours' functions -- perhaps assess is a better word. The

22 people best able to assess whether that really has been a savings is us,

23 actually, the Defence team, because we know because we see because we got

24 the results of that work --

25 THE INTERPRETER: Could the counsel please slow down for the

Page 4459

1 benefit of the interpreters.

2 MR. STEWART: I'm asked to slow down, which I will try to remember

3 to do.

4 The -- so however unsatisfactory the Krajisnik case past and

5 present expenditure might look, and we know and they're quite notorious

6 some aspects of the financial expenditure on this case up to Easter last

7 year, but however unsatisfactory the expenditure might look and the budget

8 might look, and we're quite sure they do, we can imagine perfectly well

9 there's been plenty of anxious discussion about the expenditure on the

10 Krajisnik case here and in New York, and anywhere else for that matter

11 that has an interest in the matter, but none of that money can properly be

12 retrieved by cutting corners on what's needed from this moment on for the

13 presentation of Mr. Krajisnik's defence. We are very sorry to say but it

14 is a fact that that money is just lost. It's bygones. If it is regarded

15 by those in control of the money as wasted, then again we are very sorry.

16 I don't mean we lose sleep over it, Your Honour, because, frankly, we have

17 other things to do, but it is unfortunate, of course. Any wasted money at

18 that level is unfortunate, very unfortunate. But it is not

19 Mr. Krajisnik's responsibility, it is not for Mr. Krajisnik to pay for it

20 directly, indirectly. It is not for any part of this institution and

21 certainly not for this Trial Chamber with the heavy responsibility to

22 attempt any retrieval of that money or any compensation for that money or

23 time lost by cutting corners on what is needed. That is absolutely

24 fundamentally wrong in principle.

25 The fifth point that this hearing is not about -- and I've nearly

Page 4460

1 got to the end of the points it's not about, Your Honour, because I'm

2 quite sure the Trial Chamber would like me to move on to what it is, that

3 seems a reasonable request. The fifth point it's not about is it's not

4 about Mr. Krajisnik's right to expedition of his trial. I've given the

5 basic timetable. The removal of Mr. Krajisnik's previous team from his

6 defence wasn't his fault. The circumstances of Mr. Brashich's suspension

7 by the New York Bar were absolutely unrelated to anything to do with this

8 Tribunal, as far as one could see anyway. It certainly wasn't

9 Mr. Krajisnik's fault. He has never had any incentive to delay his case a

10 day longer than needed for it to be properly prepared and presented. He

11 is adamant he's not guilty. Of course he pleads not guilty, but he

12 doesn't seek and hasn't sought to seek to delay -- he hasn't sought to

13 delay or defer the trial. And certainly, Your Honour, we can assure you

14 we have seen not a single thing to suggest that since we took over.

15 It is his right -- I might put it this way; it sounds a bit, well,

16 tendentious. A lot of things are tendentious, but in a way, it's his

17 right to have the trial slowed down rather than expedited. It is his

18 right to have the trial slowed down slower than perhaps others with a

19 different perspective might think was a good thing so far as necessary to

20 enable his Defence team and him to conduct his defence properly. So it

21 sounds an odd way of putting it but that's certainly his right. It's his

22 right to have the trial proceed no faster than is consistent with his

23 being able properly to present his defence.

24 JUDGE ORIE: That's one of the issues the Chamber, Mr. Stewart,

25 has already exchanged views on. The right of Mr. Krajisnik to an

Page 4461

1 expeditious trial will not be used against him.

2 MR. STEWART: Your Honour, I'm obliged. Thank you. I can move

3 straight on.

4 What this hearing isn't about as well is -- well, it either is or

5 it isn't in a way. It's certainly not about hard work. It is about hard

6 work in the fundamental sense; it's hard work for everybody involved. But

7 it's certainly not about hard work in the sense that I believe that -- and

8 I express a personal belief here, I don't believe anybody is suggesting or

9 ever has suggested that Mr. Krajisnik's Defence team doesn't work

10 enormously hard. Certainly as far as every other member of my team is

11 concerned, apart from where I stand, that's undoubtedly true. So we take

12 it as accepted as a given some of my team work superhumanly hard.

13 So with that, I can move on to what this hearing is about.

14 Well, obviously it's about adequate time to prepare. That's

15 apparent. That's in the motion. It's about, in a sense, if I acknowledge

16 that there is a balance of resources and time, that isn't to suggest or to

17 resile from the basic point that we must have whatever time is necessary

18 to present Mr. Krajisnik's defence properly, and there is no balance or

19 there is no equation to be achieved between the budget for this case and

20 that. There is no trade-off that is permissible there if a particular

21 step or a particular timetable or a particular schedule carries any

22 significant risk in relation to the fair presentation of Mr. Krajisnik's

23 defence. Then, and we put it very starkly in order to highlight the

24 principle in our motion, there is a stark choice there. Either the trial

25 does not proceed in that way and an adjustment is made to allow

Page 4462

1 Mr. Krajisnik to present his defence fairly, or the charges have to be

2 dropped and he must be released. There is no middle way. This is not

3 possible for a Trial Chamber for this Tribunal, it is not possible for any

4 trial to be conducted, whatever the cost, in a way which does not allow

5 the defendant the adequate opportunity of presenting his defence.

6 We have summarised in our motion what we regard as the key points

7 in relation to this aspect of the matter, and Your Honour finds those, I

8 hope conveniently, summarised in paragraph 10 of the written motion. And

9 then in each case we have expanded them a little bit in two or three

10 paragraphs usually. We've given a summary of what we say are the key

11 points under those chapter headings, if you like. And some of the points,

12 some more closely than others, some of the points tie in with the

13 relatively detailed chronology which we have annexed to the motion which

14 essentially describes what's happened in relation to the conduct of the

15 defence case, in relation to materials, broadly in relation to the nature

16 of the involvement of the particular people, right through to date since I

17 first came into the case at the very end of July 2003, right through up

18 until we wrote -- well, until we filed this motion this week.

19 The -- the wide range of issues, as we say in the motion, this is

20 well understood by the Chamber but we thought it helpful given the nature

21 of the hearing and Your Honours' expressed concerns that the public should

22 understand what is going on. We felt it helpful to summarise, and perhaps

23 summarising a case of this size in about three paragraphs is itself a

24 task, but we hope we've done that accurately. It's -- again, we take it

25 as a given the Trial Chamber knows what the issues are. The Trial Chamber

Page 4463

1 knows what the wide-ranging and complex nature of the issues in this case,

2 involving as they do very detailed evidence often about local events but

3 the thrust of the case being to link them to the central leadership of the

4 SDS and particularly, of course, to link them to this defendant,

5 Mr. Krajisnik. And it's summarised, and I don't think I need go through

6 the summary there. It's available publicly anyway what we set out.

7 Some of what we say in the motion we still think it's useful

8 background to put in but, of course, it's obvious. Of course to present

9 Mr. Krajisnik's defence requires a sound knowledge and understanding of

10 the historical and political context. That's, in a sense, it's a

11 statement of the obvious, but it ties in with this, Your Honour: Some of

12 these issues overlap. The -- when Ms. Loukas and I came into the case,

13 broadly at the same time because although assigned in September Ms. Loukas

14 came here in August with a view to being assigned to the case and we did

15 spend a few days when Mr. Brashich was also in The Hague, so I don't

16 suggest Ms. Loukas came into the case cold in the middle of September,

17 because she did, of course, begin to get involved in August. We came into

18 the matter like many but not all Defence counsel in this case, of course,

19 with at least we would like to think that we had as much knowledge of the

20 events in former Yugoslavia and in the early 1990s as what we like to

21 think we are, which is educated layman as far as that is concerned. We

22 don't claim any more. We would be reluctant to admit to any less but

23 perhaps others can judge that. But I do suggest that nobody should

24 overestimate what that actually involves.

25 I can give Your Honours a very simple example. And Your Honour

Page 4464

1 has been a Defence counsel in this Tribunal and knows, for example, the

2 sometimes troublesome matter of invoices and what you can get paid for and

3 so on. We've had a query raised. We have had -- we're not making a big

4 issue of this with the Registry about this, it's just an illustration. We

5 have had a charge for time either rejected or queried, I forget which but

6 I think it was rejected, on the basis that time spent finding out about

7 the setting up of Republika Srpska and the way it was constituted, we

8 can't charge for that because we're supposed to know it.

9 Well, I asked four or five people where I work in London if they'd

10 ever heard of it, and I don't mean any offence to Mr. Krajisnik but not

11 one of them had ever heard of it or had any idea what it was. And my

12 colleagues are at least averagely well-educated, I will say that in their

13 favour. It's a bit unreal, that. We don't come with that sort of

14 knowledge. But the point is not to have a moan about charging. We could

15 be here for weeks if we do that. The point is to indicate that there's a

16 huge amount of -- it is in fact non-chargeable, as it happens, but there

17 is a huge amount of background work to be done by anybody coming, as we

18 did, straight into a case like this. And we also came into it, may we

19 respectfully remind the Court, we came into it in circumstances where

20 there wasn't a lead-in to it. There wasn't a negotiation and

21 understanding that we come into the case and then in two or three months

22 time it would start to get going and we'd be at phase 1 and so on and then

23 there would be the preliminary motions and so on. We came into it pretty

24 much like that in the late summer of 2003. Now, I confess there was only

25 so much I could do in August because - surprise, surprise - I have four

Page 4465

1 children, as it happens, we needn't go into the details, but everybody has

2 commitments in the summer. Everybody has things -- they really can't just

3 drop everything and get started and work every day on this case but not

4 going into all those personal things, that would be inappropriate. But

5 it's just an obvious point.

6 Actually I'm also, apart from that, I'm a practising barrister.

7 That's what I do, and so I do, if I'm lucky, have clients. I do -- I do

8 have a job. I am in London. Ms. Loukas had a job in Sydney at the time,

9 which she has actually given up to come and do this case full time. But

10 she couldn't do that immediately, she had a couple of months to get out of

11 her job. She had awhile to come out of Australia. Actually, as it

12 happens, she came here to The Hague full time much earlier than is deemed

13 necessary by this institution, and "deemed" in the sense of deemed and

14 ready to pay for it. The official position of this institution so far has

15 been that co-counsel can turn up a week before the trial. That, of

16 course, is so absurd that we took upon ourselves the considerable amount

17 of the responsibility and expense of ensuring that it wasn't left until

18 that point and we provided that degree of those extra facilities and that

19 extra work, so that, as it happens, Ms. Loukas arrived in November,

20 November the 15th, just before the financial hearing that Your Honour may

21 remember. She wasn't so directly involved in that but she happened to

22 arrive around that time. And she's been here, for practical purposes,

23 with a few odd days here and there where she can twist my arm, somewhere

24 else, but pretty much here all the time.

25 I haven't in the same way because, after all, I live in London and

Page 4466

1 I work in London so it's not quite the same problem, although -- well Your

2 Honours have seen me here quite a lot. I am, for practical purposes, here

3 now and I've hardly been to London recently very much except for a few

4 hours here and there at a time.

5 So the -- the -- what I'm coming to Your Honour, is the first two,

6 three months -- and we can produce detailed figures but we don't believe

7 that the point necessarily requires or lends itself to some tremendous

8 elaborate statistical analysis -- the first few months we were not anyway

9 able simply to -- sorry, Your Honour, for that gesture. We were not able

10 to -- get the sound effects as well, probably. But we were not able to

11 switch just immediately to full-time work on this case. There had to be a

12 run-in. By the time we got to the end of the year, and really it took

13 about that long, by the time we got to the end of the year, yes, we were.

14 Certainly Ms. Loukas, when she was here was able to. I did have more

15 difficulty, frankly, and I've indicated -- I should say on the chronology,

16 memory plays tricks. Although the broad thrust of what I say about March

17 is true, I'd actually misremembered the balance, as Your Honour may see.

18 There's a reference to other commitments I had and time I spent. On

19 checking, it turns out that actually the balance was slightly different

20 and I spent more time in The Hague in the first half of the month, less

21 time in the second half of the month but, Your Honour, I assure you the

22 thrust of what we're saying is broadly correct there, it's just that I've

23 misremembered the details of it. But the fact is, Your Honour, there was

24 no -- there was no escaping that obligation on which -- as a matter of

25 fact, the other clients were incredibly patient because I had to defer a

Page 4467

1 whole lot of work there for two months to accommodate the start date of

2 this trial on the 3rd of February. There's no need to go into detail

3 about that, Your Honour, and of course I can't and shouldn't in relation

4 to that other matter anyway.

5 JUDGE ORIE: Nevertheless, if you allow me to ask you one question

6 in this respect. You were talking about the month of March whereas on the

7 23rd of April during a hearing where time was also an issue discussed, you

8 then said that you were not able to work, as you said it, on this case

9 from Wednesday morning through Sunday evening. You even said that you

10 were perfectly happy to explain the reasons, they were essentially a

11 combination of professional and personal. That's something different from

12 what --

13 MR. STEWART: Which date was that, Your Honour? I beg your

14 pardon.

15 JUDGE ORIE: The 23rd of April.

16 MR. STEWART: Well, it -- it -- it would have been an entirely

17 different matter, Your Honour.

18 JUDGE ORIE: I just wanted to know whether it's the same as you're

19 referring to in the annex to the motion as early March and what you now

20 say might well have been the second part of March.

21 MR. STEWART: Your Honour, just on reflection, I can't say that

22 for sure. What I can say is that the matter that I was dealt -- that I

23 dealt with in March was very largely concluded and dealt with by the time

24 it got to the end of April but there was a bit residual work but I doubt

25 -- all I can say, Your Honour, I doubt whether that would have demanded

Page 4468

1 very much of my time but the combination of -- the combination of

2 professional and personal, as I described it, I frankly can't remember

3 what it was, Your Honour, but from time to time, especially with being

4 here all the time and things getting deferred, from time to time there are

5 things personal that just have to be dealt with. So I -- I can't remember

6 what it was, Your Honour. To be frank.

7 JUDGE ORIE: I just wanted to know whether it was the same or --

8 MR. STEWART: I don't know --

9 JUDGE ORIE: Please proceed.

10 MR. STEWART: -- but it was a sort of residual sorting out of the

11 final bits and pieces in relation to that particular matter.

12 JUDGE ORIE: Yes. Please proceed.

13 MR. STEWART: Thank you, Your Honour. The -- and that matter has

14 totally gone and was totally gone a month or two ago now, which is just as

15 well, but it was very demanding. It was, as I made clear, it was a

16 pre-existing commitment when I -- when I took on this particular trial but

17 I didn't know the scale of timing of that commitment because it's as

18 unpredictable as many matters are. I'm not apologetic about it, Your

19 Honour, I just -- I just give it to the Tribunal frankly, as I should do,

20 as -- in the professional spirit of open disclosure in relation to such

21 matters. That's my job, to be -- to be frank with the Trial Chamber.

22 It's part of my job. My job's also to defend Mr. Krajisnik, of course.

23 The -- so -- so far as the -- well, the range of issues -- I don't

24 think I need elaborate that.

25 The circumstances in which Ms. Loukas and I came to the case, we

Page 4469

1 inherited Ms. Cmeric. I'm extremely glad we did, as it happens. She

2 chose herself but we would certainly have chosen her, had we known, and we

3 do. So we inherited Ms. Cmeric who had, in fact, been involved in this

4 case, well, most of the time though there was a period of about three or

5 four months when she'd actually resigned and was then coaxed back but she

6 hasn't done that to us yet.

7 So -- so Ms. Cmeric actually joined us in the sense of joining our

8 team early on, though she was not able to come to The Hague except for odd

9 days. She was specifically involved in the financial hearing and she was

10 paid for by the Registry to come here, but there's no question of them

11 paying for her to come here in the pre-trial period until immediately

12 before the trial. And these are -- it is not easy to prepare for a case

13 of this size on the footing that your team are not even allowed to

14 constitute themselves in the same place at the same time with the case

15 materials. And that's simply a fact. It's not -- it doesn't matter

16 whether it's right, wrong, what the complaints are, you know, what -- what

17 beefs we have about the money, it is simply a fact as far as the ability

18 to prepare for this case is concerned, which is what's important for

19 present purposes.

20 The -- so far as the case materials are concerned, we have set out

21 in some detail the -- as part of the hand-over from the previous team, the

22 difficulties that we had in relation to previous case materials. We got

23 previous case materials -- case materials which have been in the hands of

24 the previous team. It's -- in a way, it's hard to -- it's hard to get

25 across the complete shambles in which that material was. We describe it

Page 4470

1 in black and white. It was an absolute mess. The stuff we got from

2 Mr. Kostich was just packed up in boxes, many of which had never been

3 opened. They'd come from somewhere else, and we couldn't tell from the

4 outside what they were anyway. We couldn't tell on the inside sometimes

5 what they were at the stage we looked at them. It was a complete mess.

6 We have indicated Mr. Brashich's material -- we have to say this bluntly,

7 and frankly we -- it's not proper for us to say anything which is not

8 true. It's not part our brief to attack Mr. Brashich and Mr. Kostich, but

9 it is part of our Defence of Mr. Krajisnik to say absolutely frankly what

10 we found and what we received.

11 We have -- we must say we have the strongest suspicion, and we

12 voiced this, that the time during which we did not receive the material

13 from Mr. Brashich, who was supposed to bring it with him when he came in

14 August, a week was arranged for him to come in the first half of August, I

15 believe, around the 11th, 12th, something like that -- I just confirm that

16 is about roughly right -- he was supposed to bring the case materials with

17 him because he had been ordered by the Registry originally and then again

18 ordered to hand over the materials, but he didn't. He brought a few bits

19 and pieces of paper here and there, but we didn't get that stuff and we

20 didn't get it for about another six or seven weeks from Mr. Brashich, and

21 we have the strongest suspicion that those six and seven weeks were used

22 to give some semblance of order to the material and he simply wasn't in a

23 position to hand it over. We'll never know that but that's the way it

24 looked to us.

25 But we got that material. I had dozens, I think it was, it felt

Page 4471

1 like dozens and it certainly was more than just two or three or four, it

2 was seven, eight, nine, ten, it was something like that, constant stream

3 of emails and fax communication with Mr. Brashich to try to get the

4 material out of Mr. Kostich, which we were told for a long time was about

5 the same order in terms of volume as Mr. Brashich had got. That turned

6 out not to be true. It was about two or three times as much probably in

7 sheer quantity of paper, though what it amounted to is perhaps another

8 matter.

9 We have -- I went down to our office this morning, Your Honour,

10 where we have had, as we indicate, teams of interns and assistants

11 working. We now have quite a large team. We've actually got a list of

12 our team, but just recently because it's that time of year as well. We've

13 got an influx of extra help. We actually have -- I must say, looking at

14 their CVs, we have a team I'll be amazed if a couple of them aren't Judges

15 in international tribunals in years to come, but certainly at the moment

16 they're young people with legal -- law degrees and so on. We have two

17 B/C/S speakers now as legal assistants, which is a great help to us,

18 because may I also remind the Trial Chamber that an advantage which

19 Mr. Brashich and Mr. Kostich had which we don't have is they both spoke

20 Serbian. They -- they are Serbs, in fact, and US citizens but

21 Mr. Brashich's born in Belgrade. They didn't have any difficulty with

22 Serbian. They didn't need to have documents translated. So we -- we got

23 the stuff, and we can't complain about that because that's the position

24 they were in when they were working on the case, so no complaint about

25 that. But of course the material that came from Mr. Brashich and

Page 4472

1 Mr. Kostich was a mixture of English and material in Serbian. Plenty was

2 in English and plenty have been translated, and of course all the court

3 documents are in English. We're not suggesting -- I don't want to

4 exaggerate it, but there is lots and lots, and I mean lots and lots and

5 lots of material which is not in English. And we have had one of the two

6 young people that we've had working sorting out for months now in the way

7 that we described does read easily. He -- he also is of a family from

8 that part of the world. In fact, he's a Dutch citizen and lives here and

9 studies here but he works for us part time. We have had that. We now

10 have another young man who -- he is a Swedish citizen, but again he speaks

11 absolutely -- and Ms. Cmeric confirms that his Serbian is as good as hers.

12 He has no trouble at all with that.

13 So we do have people and have had people for a long time who are

14 able to do that sifting. But we haven't even finished the job yet because

15 we -- we can't do it as far as the Serbian stuff is concerned but there

16 are limits, and I know from observations that Your Honour has made in the

17 past that Your Honour wouldn't expect and would be slightly dismayed if he

18 and Your Honour's colleagues felt that Ms. Loukas and I had spent large

19 numbers of hours sifting through boxes down at the office because that

20 isn't really what we should be doing. That wouldn't be good management of

21 the case.

22 This task has not even been finished. I went down there this

23 morning, obviously deliberately with a view to -- it's not the first time

24 I've been there this week, I don't mean that. I've been down there quite

25 a bit. But I went down there this morning to do a random sample just to

Page 4473

1 give Your Honours an indication, and it was completely random, and the

2 first pile of papers that I picked up not yet sorted, I opened it like a

3 pack of cards and I came across a report of the Secretary-General from the

4 Security Council, or Security Council report 11th of November, 1992,

5 relating to the International Conference on the Former Yugoslavia. That's

6 what Mr. Okun was giving evidence about. Now, that material is available

7 in the world, but we -- we couldn't go -- realistically go foraging around

8 in the world to find all those reports. We didn't have the time and the

9 facilities and the opportunity to do that before we cross-examined

10 Mr. Okun. It's a pity that when we got stuff like that -- I

11 haven't read it this morning, Your Honour, I've had a look at it -- it's a

12 pity that when we have stuff like that actually in our physical possession

13 but have not time to know that we've got it in our physical possession

14 that we ended up having to cross-examine Mr. Okun without reading that

15 material. And I've indicated to Your Honour that this problem of unread

16 material is enormous, and we do rather suggest that we doubt that the

17 Prosecution have large quantities of material in their possession which no

18 member of the Prosecution team has read. We would be surprised if

19 equality of arms in this case had led to the position where both sides had

20 very substantial quantities of absolutely unread material. And that's a

21 very serious problem for us.

22 The second item I picked out at random from a different pile was

23 minutes of the War Presidency of the county, it was called in translation,

24 the opstina at Celinac, 23rd of July, 1992. Now, I can't say that's not

25 somewhere else in the papers. I can't at this second recall. It might be

Page 4474

1 there as one of the documents in Mr. Treanor's material. It might easily

2 be. But I'm just saying what I found.

3 I found a draft translation of a statement from somebody I'm not

4 able to identify from the contents relating to Bosanski Brod. Not a

5 municipality we've got to yet, as it happens, as luck would have it, but

6 there's no reason to suppose there's not similar material lurking in those

7 papers relating to some municipalities we have already dealt with.

8 I found a duplicate of set of statements. That was fine. We've

9 got 70 per cent of the way to having a complete and well organised file of

10 all the material relating to all the witnesses on the Prosecution list.

11 I found some surrogate sheets, videos. Those don't really amount

12 to a row of beans. That's the surrogate sheets don't amount to a row of

13 beans, really. An interview with Mr. Karadzic from an organisation called

14 Rights and Wrongs, The Global Centre, in May 1993.

15 I found -- I found some articles which might or might not be

16 helpful. I found a many page summary of a documentation database from an

17 international human rights law institute. It would be quite nice to

18 actually look through there and see what is of interest there, but they're

19 not direct case materials.

20 And then I -- a big stack of stuff in Serbian - and I call it

21 Serbian because I think it is Serbian in this case, Your Honour - which

22 our assistant Mr. Jonovic went through with me. It contains some

23 extremely strange items, such as an advertisement for something to do with

24 the upbringing of snakes, which doesn't seem very directly related to the

25 case but the problem is we're not actually able to know that without

Page 4475

1 reading it. We have no idea what it is. It's extraordinary stuff.

2 But there are some journals. There's some material relating to

3 somebody who worked for the -- or was paid out of the public funds of

4 Republika Srpska. As far as this morning's exercise, impossible for me to

5 know what all this stuff is about, but certainly the stuff to do with

6 snakes was a bit weird.

7 Something to do with export-export, something called Uniset

8 Export-Import Banja Luka. Neither Mr. Jonovic nor I were able, in most

9 cases, to have the faintest idea what it was really about, just on a

10 cursory reading, because I was only asking him just what is it? What's

11 the nature of it? One seems to be a poem and then it's to do with snakes,

12 and then -- but then more official looking documents. There's all sorts

13 of, maybe it's drafts, maybe it's significant; I simply don't know is the

14 answer. But the scale of this problem is very large for us. We -- I --

15 there are enough problems for us with simply that material.

16 The additional matters we've indicated, this -- the question of

17 Bosnia and Herzegovina. We said, and Your Honour knows, that we -- we've

18 not spent nearly as much, nearly as much time out there as we would have

19 liked to. I cancelled the planned trip in March. I caught up with it up

20 to a point in May. I had to chop that shorter than I wanted to because I

21 simply didn't feel safe about spending that much time away from here. I

22 haven't -- as I indicated, I have had no opportunity -- I haven't been

23 round Bosnia and Herzegovina, Republika Srpska. I haven't had a chance to

24 look at any of these municipalities. I don't mean I've never set foot in

25 them. I've been to Banja Luka. I've been to Doboj. I've been through

Page 4476

1 Zvornik. I've driven through no doubt a few other places, but that's all.

2 I've had meetings in some of those places. I haven't -- I've seen some of

3 the relevant locations and places in Sarajevo and Pale. I have seen those

4 because they're -- they're pretty close by and Pale is where we go and

5 that's where our office is. I have seen those; I've seen the parliament

6 building and where the deputy's club was. I've seen those. That's about

7 it. And I had never been. I'd been to that part of the world before.

8 I'd never been to Bosnia and Herzegovina before in my life until I became

9 involved in this case. Ms. Loukas has been once, just for about two days.

10 There is an enormous quantity of material in the office in Pale.

11 It's -- the question of management of the team in Pale and the question of

12 management of their work is a serious one. There is -- in a sense there's

13 a -- there's a difficulty that -- of course, Mr. Krajisnik takes on some

14 of that management. I'll be absolutely blunt: Mr. Krajisnik is here. He

15 and I don't always see eye-to-eye about the management of such matters.

16 Because I am lead counsel in this case, Mr. Krajisnik, though is the

17 person who faces these very serious charges, and it's pretty obvious the

18 sort of issues that that might give rise to.

19 The problem is there isn't time to resolve these issues. That's

20 the difficulty. There isn't time and there hasn't been time to instruct

21 them properly and control them properly, frankly, to sift the material.

22 If we ask for a report from them, there's not properly time to go through

23 it. We have simply been, since the beginning of this case, even with the

24 breaks that we've had -- and we know and we understand, Your Honour, that

25 that was a -- that was a valiant attempt by all concerned to make up for

Page 4477

1 the fact that we did have to start this trial on the 3rd of February when

2 we were really not ready. And that was, I believe, fully accepted that at

3 that point this trial could not genuinely start as a functioning trial for

4 the longer term on the 3rd of February. Whatever the reasons for starting

5 it then, that was the position.

6 There has been -- we appreciated that the Tribunal offered

7 flexibility in relation to those first few weeks and there was then a

8 valiant attempt by all concerned to enable us to catch up on it.

9 Unfortunately, that attempt has failed. Whatever the reasons, it has

10 failed. The -- that period -- and I've been frank about difficulties I

11 faced in catching up with other matters during that period. I'm

12 absolutely open about that, as I will be about everything else, Your

13 Honour. But as far as the team who were in The Hague all the time during

14 that period was concerned - I was here quite a lot of time, after all, as

15 well - they were absolutely swamped; 92 bis stuff and just went on from

16 one week to the next. There was never the opportunity to stand back.

17 There was never the opportunity to sort the matter out. And we have

18 constant To Do lists. Everybody has To Do lists but we have lists of To

19 Do lists. And we haven't done them. We've done some of them. And

20 Mr. Krajisnik is, quite fairly, always saying what about all these items

21 on the To Do list? And I'm having to say I can't do them because I've got

22 another To Do list and I've got to try and do that To Do list before I do

23 the other To Do list.

24 Now, much litigation and many cases are like that because it's a

25 very demanding, heavy business, and any team and any lawyers are used to

Page 4478

1 something which not in every other job, there are other hard jobs in the

2 world, of course there are, but in many other jobs in many other areas of

3 activity that would be -- people wouldn't want to live a life like that

4 and they wouldn't want to do it, but in some masochistic way we like doing

5 it and this is what we do for a job. But there are limits and we have

6 gone well beyond them in this case because what we don't like -- and if we

7 may put it that way, Your Honour, we accept the obligation to work very

8 hard. We accept that there are pressures. We accept that sometimes one

9 has to take a robust view on what can and can't be done.

10 What we feel very uncomfortable and very unhappy about accepting

11 is when we have to put what would normally be regarded as essential tasks

12 and essential work on the case on one side because we just can't do it.

13 And when we are prioritising between six essential tasks and we can only

14 do two of them, we come to the conclusion that we are not able to defend

15 Mr. Krajisnik properly, and he knows it and we know it, and it is a hard

16 task and we found it a hard task. We hope that in the end it will be a

17 successful task, to explain and give this Trial Chamber more information,

18 as we are trying to do today, so that Your Honours have the advantage,

19 which we haven't been able to give you before, of really understanding

20 what is the problem here. And we must always remind ourselves, with

21 respect, of the utmost gravity of the charges faced by Mr. Krajisnik.

22 These are -- we don't feel that this is capable of much contradiction --

23 they are really the gravest criminal charges it is possible for a person

24 to face. Genocide. There isn't a more serious charge. And that's what

25 Mr. Krajisnik faces. And a whole lot of other charges as well. And we

Page 4479

1 don't even need to enter into what the sentence might be for Mr. Krajisnik

2 if he's convicted on all these charges, because it doesn't really need

3 much thought to know that it's -- it's not going to be a light sentence.

4 So that Mr. Krajisnik, as a 59-year-old man - I believe he's 59 - faces

5 the most serious charges possible, and whatever the history of this

6 matter, corners simply cannot be cut.

7 We have never invited -- well, perhaps we have, I don't know. If

8 we have invited Your Honours to accept simply as a professional assertion

9 by us that we haven't been and aren't in a position to defend

10 Mr. Krajisnik properly, perhaps we have put it that way, and it's not

11 improper for us to put it that way, but we do understand that the Trial

12 Chamber has the responsibility to be sure that it knows enough about what

13 the position is to make a judgement, and that's what we're trying to do

14 this afternoon. We're entirely open to any questions on the matter, apart

15 from those matters which are obviously privileged and obviously we must

16 keep them to ourselves and we can't be expected to answer, we have not the

17 slightest compunction in dealing with any question and being entirely open

18 about anything that we are doing in any aspect of the preparation of this

19 case. We have absolutely nothing to hide, because the more the

20 circumstances of this matter are exposed and the more it becomes clear

21 what it is we're faced with, what we've had to do and what we have to do,

22 the more obvious it is that we cannot defend Mr. Krajisnik at the moment

23 without this adjournment that we seek, and then there is the question then

24 of how we proceed, because we are a small team. And the point we made, we

25 like to think we make up in quality, but others can judge that, but what

Page 4480

1 we must have, the only way, as we say in the motion, the Prosecution have

2 a larger team. They do. We don't blame them for that. We're not

3 requiring them to jettison two or three of their people because we feel

4 it's a bit hard that they've got more people than us. I mean, they're

5 very nice people, but we don't ask them to do that. But what it does mean

6 is that because we are a smaller team, and we always will be because

7 there's absolutely no way that that amount of money, the gross figure

8 which we're allowed, there's no way it's going to finance an extra

9 counsel. We are always, on those figures, with the need for people in

10 Bosnia and Herzegovina and the need for a first class case manager, and

11 because of Ms. Loukas being a Greek Australian - that's a complimentary

12 term, especially this month - and me being English, which is a neutral

13 term, no doubt, but it's simply a fact, we need Ms. Cmeric and we need

14 Ms. Cmeric's Serbian desperately. She is a tremendous asset to the team.

15 But we will never have the ability, on these arrangements, to put in an

16 extra counsel. We are doing what we can, and it costs us money as well,

17 but we plugged in a very high quality team of assistants and interns but

18 that is as much as we will ever be able to do. And with Ms. Loukas and me

19 as the -- having to do between us all the witnesses, all the burden, it is

20 always going to be necessary throughout this trial for there to be careful

21 assessment of positions so that the equality between us and the

22 Prosecution can be achieved by ensuring that because we are a smaller team

23 we're not faced with an inappropriate burden which does then produce a

24 disparity.

25 So the -- Your Honours have, and we appreciate that very much,

Page 4481

1 Your Honours have given us a very full opportunity this afternoon of

2 elaborating these points, and we are grateful for that because we feel

3 that it has been necessary to do so. We -- we would wish to draw to Your

4 Honours' attention particularly one matter and perhaps I should just

5 explain by way of introduction because it's something to be just slightly

6 cautious about the way I present it to Your Honours.

7 I -- Your Honour may or may not know this, I'm a member of the

8 advisory panel of this institution, and we had a meeting last week. There

9 are various documents. They're not only available to members of the

10 advisory panel, as it happens, but I was able to see them in that

11 context. They're also available to members of the Association of Defence

12 Counsel but they're publicly available. There are negotiations under way

13 between the Registry and the Association of Defence Counsel in relation to

14 various aspects of payment schemes. Those are in negotiation. There is a

15 lot of confidential material. I'm not proposing to lay that confidential

16 material before the Tribunal this afternoon, but I want to make it clear

17 that is only because some of it is confidential and not because we have

18 any wish to withhold any of that material or to take anything out of

19 context, but I have spoken to the Registry in the course of the morning

20 because I indicated to them particular points that I did wish to bring to

21 the attention of this Trial Chamber out of that material, as a courtesy,

22 but also in case they did have any objection and we were able to reach an

23 understanding about what I might fairly tell the Trial Chamber. And what

24 I can tell you, Your Honour, is that pre-trial preparation being split,

25 for the purposes of those discussions, into phases 1, 2 and 3, but phase 1

Page 4482

1 being a very short phase, actually, the sort of introductory phase, phase

2 2 being preliminary motions and suchlike matters, and not being an

3 enormous phase itself, so phase 3 then being really the substantial

4 preparation, preserving the category of 1, 2 and 3 of cases, so that the

5 top level, or the most demanding level, is a category 3 case in which this

6 falls. Not very many cases do fall in category 3, but even when they do,

7 this is actually -- this case is pretty high up the range within category

8 3, so it's certainly not simply an average category 3 case. If there were

9 a category 4, this case would be in it. I assert that, but I assert it

10 confidently.

11 JUDGE ORIE: You say a heavy category 3?

12 MR. STEWART: "Heavy category 3" is absolutely apt for my

13 purposes, Your Honour. I'm obliged.

14 Now, for a category 3 case, simply as a single, undifferentiated

15 category, the proposal is -- and there does seem to be a measure of

16 agreement, as it happens, in relation to the matter. The proposal is

17 that, as a guideline, preparation will involve nine months full time for

18 lead counsel and five months full time co-counsel.

19 Now, of course the Trial Chamber's not bound by that view. That's

20 part of a payment scheme. On the other hand, it does, after all, reflect

21 proposals. The Registry is not likely to make financial proposals which

22 are out of line with -- well, they're not likely to overstate the amount

23 of time needed to prepare a case. I'm not implying they would understate,

24 but I'm simply making the fairly obvious assertion that, as husbanders of

25 the budget as well, they're not likely to overstate it and wish to pay for

Page 4483

1 much longer periods. So that the guidelines, nine months full time lead

2 counsel, five months co-counsel, it's just -- it's a very valuable

3 cross-check, Your Honour.

4 We're not coming here and saying: That's what's under

5 discussion. That's the answer. Give us that. And in fact, we're not

6 asking for that anywhere, as it happens. But the disparity between that

7 sort of assessment of an average category 3 case, if I can call that,

8 because any category 3 case is far from average, in any serious sense of

9 the matter, and what we have had. Even if you put together every week

10 that is, if you like, theoretically -- or has theoretically been at our

11 disposal, and for all sorts of reasons they haven't been, and even

12 if you assume, if you like, just normal in all the essential aspects of

13 the case, we have had nowhere near that. And that is a most valuable

14 cross-check, but simply supportive of everything else we said. We don't

15 rely on that. That's not the answer. That's not -- we finish there.

16 Because it's not our starting point. It is not, in a sense, our finishing

17 point. It's just -- we're nearly finished, I think. It's just a very

18 useful cross-check.

19 So even if we were to count every break we've had as a hundred

20 per cent preparation time, which, for all sorts of reasons, as we've given

21 them, is absolutely unreal, we come absolutely nowhere near. So where we

22 do finish, and we nearly are there, Your Honour, is that the Defence don't

23 deny that resources are relevant in the management of a case. Of course

24 they are. And as it happens, both Ms. Loukas and I have experience in

25 sitting as judges as well. So we do know a little bit about that from

Page 4484

1 different perspectives. But we wouldn't want that remark to be quoted out

2 of context, because where resources are limited, we accept that no

3 defendant can expect more than the minimum needed for a fair trial. He

4 might get it at times, but they're not entitled to it. They can't expect

5 it. So the minimum needed for fair trial and fair presentation is the

6 entitlement. And of course, a Defence team can expect to be put under

7 heavy demands, as professionals, because that's what we like to think we

8 are, and we technically certainly are. It shouldn't be to the point

9 where it's unconscionable or in breach of any basis on which we join the

10 case, but risks cannot be taken with a fair trial. If there's

11 any doubt, you give the benefit to the defendant.

12 Now, we live in the real world. The gravity of the charges and

13 the potential sentence if convicted are highly material. It's common

14 sense that while the principles are the same, courts don't agonise all

15 that much if somebody is up on a careless driving charge. It's not the

16 end of the world there. It's a fair trial, if there is a trial in

17 relation to such a charge, is the principle. It is what's achieved. But

18 of course it's a different exercise. It's of a totally different

19 scale, or a minor assault. The courts have got to be careful, but they

20 don't have to -- they don't have the heavy responsibility as any Trial

21 Chamber has in relation to these sort of charges in this sort of case.

22 There are competing pressures. We acknowledge that. There's the

23 budget. There's always a budget. There's always a budget everywhere in

24 the world, on everything. There's the UN budget. Heaven knows it's got

25 its own problems. There's the Security Council. Heaven knows they've got

Page 4485

1 their problems and worries too. Of course it's the responsibility of the

2 President of this Tribunal to manage the entire institution, and

3 it's -- of course it's the part of the important function of Your Honours

4 to support the President and loyally to participate in the effective

5 management of this institution.

6 We know that out there in the real world - and it's in this

7 building - is the completion strategy. We know that. All these things

8 tie in together. And, well, to say that the budget is hard to control,

9 everybody knows that as well. And it's not always successful, but there

10 isn't always success. We know all that. But none of this can override

11 essential rights.

12 When we are not within the confines of this courtroom - because

13 the public is out there and they're here in the gallery and they're out in

14 the world outside - but when we are in this courtroom, those pressures are

15 there, but Your Honours, as the Judges on any particular case, there comes

16 a point where those pressures just have to be ignored. If they involve

17 any significant risk to a fair defence, they have to be put on one side.

18 And logically, and in practice, they are irrelevant to the assessment of

19 the time needed. Once it is clear that time is necessary, not a luxury,

20 once it's clear that time is necessary for a fair trial and a fair

21 opportunity to present a defence, there are only two choices: the time is

22 allowed or the charges are dropped. Those are the only two possible

23 choices.

24 So I -- and with an apology, Your Honour, I shouldn't have

25 underestimated this problem for so long, and I shouldn't have brushed

Page 4486

1 aside, as I sometimes did, some of the things that my own Defence team

2 said. It's my job sometimes to brush things aside. Sometimes you get it

3 right brushing things aside and sometimes you don't. And I should have

4 brought all this very specifically to the Trial Chamber a long time

5 ago, and I wish I had, but I have done today, and the Trial Chamber has

6 to look at it now, in the circumstances now, and we do need this time.

7 JUDGE ORIE: Mr. Stewart, before I give an opportunity to the

8 Prosecution -- but perhaps we first have a -- we need a break anyhow, also

9 for technical reasons, such as tapes. So therefore, I take the

10 opportunity at least to put one question to you.

11 When you are talking about the nine month and the five month,

12 nine months for lead counsel, five months for co-counsel, would that stage

13 of the proceedings include the preparation of a pre-trial brief?

14 MR. STEWART: Oh, I'm sure it would. I can double-check that,

15 Your Honour but I --

16 JUDGE ORIE: But just for my --

17 MR. STEWART: Yes.

18 JUDGE ORIE: It's new information for us.

19 MR. STEWART: Your Honour, I'll double-check that over the break,

20 but I'm --


22 MR. STEWART: I'm 99 per cent sure it does, of course, and

23 I've acknowledged that that task was done.

24 JUDGE ORIE: And you mentioned two very important members of

25 the -- of what constitutes a Defence team. At the same time, and I think

Page 4487

1 rightly, you have drawn our attention also to the case manager. So

2 would -- is there any standard for case management, involvement in that

3 time as well?

4 MR. STEWART: Yes, there is, Your Honour. May I -- I might be

5 able to check this immediately, actually, and then that would be a help

6 to Your Honours. But if not, then I -- perhaps I might do that over

7 the -- over the break.

8 I rather -- I rather promised the Registry that I wouldn't

9 quote from this document. May I say --

10 JUDGE ORIE: There's another matter. Then perhaps, if we have a

11 break anyhow, perhaps you could be in touch with the Registrar and ask

12 permission to give some quotes in private session. Well, then, it will

13 only take one or two minutes, and then you could fully inform us. It's

14 new information for us. We'd like to be as well informed as possible.

15 MR. STEWART: Indeed. Well, Your Honour, certainly that

16 suggestion is very helpful. I also did -- it may not be necessary. I'll

17 follow Your Honour's suggestion immediately. It was indicated to me that,

18 of course, if the Trial Chamber felt at any time that it would like to see

19 this material, then it --

20 JUDGE ORIE: Well, if it could be -- yes. Well, perhaps you

21 first seek permission to give the few quotes you had in mind.

22 MR. STEWART: Well, I half suspect that some of the people

23 involved might even be watching and listening to what Your Honour is

24 saying anyway, so the communication might be quite rapid.

25 JUDGE ORIE: Yes. Yes, it could be, if everyone is watching on

Page 4488

1 the screen. Then as far as these proceedings are concerned, I'd like to

2 adjourn for 20 minutes. I'd then like to give an opportunity to the

3 Prosecution to respond.

4 Do you have any idea, Mr. Harmon, how much time that would take?

5 MR. HARMON: Not more than 15 minutes, Your Honour.

6 JUDGE ORIE: Not more than 15 minutes. So that means I would then

7 like to give an additional opportunity to respond, to the extent wished,

8 to the observations made by the Prosecution. So that altogether I take it

9 would informing the Chamber hearing not more than 15 minutes, I take it

10 that your response could also be brief.

11 MR. STEWART: It's bound to be pretty short, Your Honour, in the

12 circumstances.

13 JUDGE ORIE: So that would take altogether approximately half an

14 hour. Then I'd like to adjourn again so that the Judges can deliberate on

15 the question whether we'd give a decision right away, even if that would

16 be just an oral decision at this moment, which does not mean that such a

17 decision would not be put on paper, and then it would be put on paper

18 quite soon. But I also do understand that the Prosecution needs an answer

19 very quickly on how we will proceed, because they're at this moment

20 presenting their case. So therefore, for scheduling, I think we should

21 give a decision as soon as possible, but of course we have to consider

22 whether we can do it this afternoon or not, and therefore I'd like to ask

23 the parties to remain available after this half hour when we are

24 adjourning and to come back in Court as soon as we have made up our mind

25 whether to decide this afternoon yes or no.

Page 4489

1 We will then adjourn until five minutes past four.

2 --- Recess taken at 3.46 p.m.

3 --- On resuming at 4.16 p.m.

4 JUDGE ORIE: We apologise for a bit of a late start, but just as

5 we are convinced that the Defence is using its time as efficiently as

6 possible even if we don't see it, the parties are invited to believe that

7 the Trial Chamber used its time as efficiently as possible, even for the

8 additional ten minutes.

9 Mr. Harmon, perhaps first we ask Mr. Stewart whether there is any

10 additional information.

11 MR. STEWART: Your Honour, I spoke to the acting chief of OLAD.

12 To be fair, they are a little reluctant to have --

13 JUDGE ORIE: Then we have to go into private session.

14 MR. STEWART: One question I can answer, Your Honour, which is in

15 relation to the question Your Honour asked me at the very end. The -- the

16 case manager is not specifically identified as an item because the policy,

17 I think, is to allow flexibility to lead counsel in how the team is

18 constituted, so the -- what -- I don't think there's any mystery about

19 this bit: Lump sum payments, which is the way it's done at the moment,

20 after all, it's done on the basis that it requires one counsel, which

21 would be lead counsel, and five support staff full time for nine months --

22 sorry, I'm reading the wrong -- I think I'm reading -- that's right. One

23 counsel, five support staff and nine months, and then co-counsel to join

24 for the last five months. So it's simply described as five support staff

25 and it can be done anyway you like, but that's a very general term, and of

Page 4490

1 course, well, it includes people whether they're here, there, or in Bosnia

2 or whatever.

3 JUDGE ORIE: Could be investigators as well.


5 JUDGE ORIE: May I take it that when we're talking about month

6 that we're talking about calendar month and not about -- you understand

7 what I mean by a month? A month is --

8 MR. STEWART: I understand what you mean. I --

9 JUDGE ORIE: -- actually 22, 23 working days rather than 30

10 working days. Of course, I'm not saying that you're never working the

11 weekend but --

12 MR. STEWART: I wasn't sure whether Your Honour was talking about

13 lunar months for a moment, I wasn't quite sure whether they came into it.

14 But Your Honour, what I understand to be meant by "months," actually,

15 although it isn't spelled out, I think, there, is -- and I think this has

16 been a feature of the similar arrangements for a long, long time is I

17 think the figure taken has been 175 hours.


19 MR. STEWART: Working hours, so I rather thought it as a rough

20 guideline. I haven't really thought about it specifically, Your Honour,

21 until a few minutes ago but --

22 JUDGE ORIE: But that's approximately 22, 23 times eight hours a

23 day.

24 MR. STEWART: It's up to the individual how to spread it, Your

25 Honour, but I think that's the position, yes.

Page 4491

1 JUDGE ORIE: Just a better understanding.

2 MR. STEWART: Just to indicate what rather reflected the

3 discussion this morning, the suggestion was that if at some point the

4 Trial Chamber felt it really did want to know more, then the options were

5 private session, which was specifically acknowledged by OLAD, or also --

6 and/or a request by the Trial Chamber to OLAD to have the document.

7 JUDGE ORIE: Let me just --

8 MR. STEWART: Sorry. I didn't make myself clear, Your Honour.

9 The -- OLAD were not suggesting hand over the document to Your Honours and

10 go into private session. What they were saying was, well, to quote bits

11 from the document and explore some of these points, they would really wish

12 it to be private session.


14 MR. STEWART: If Your Honours wish to have the whole document,

15 then they would appreciate the Trial Chamber making that request.

16 JUDGE ORIE: Well --

17 [Trial Chamber confers]

18 JUDGE ORIE: I think the Chamber got answers to the points that

19 were unclear to it, and therefore, as far as the Chamber is concerned,

20 there's no need to go into private session since we have no further

21 questions on it and there's no specific wish to be provided with the

22 document.

23 MR. STEWART: Your Honour, I did hand in a document because it

24 really ties in very directly with the very questions Your Honour has just

25 been asking in relation to --

Page 4492

1 JUDGE ORIE: Just for verification, then. Well, first of all, if

2 you give this information, Mr. Stewart, the Chamber is, as such, inclined

3 to believe you, unless you say there's really very relevant information on

4 those in this document as well which would not -- would -- if -- if we

5 would not have knowledge of that, it would prevent us from understanding

6 what we wanted to know, and that is approximately what time and what

7 resources are granted in this third pre-trial stage.

8 MR. STEWART: No, as far as that's concerned, Your Honour, that

9 topic is -- I appreciate what Your Honour has just said. As far as I'm

10 concerned, it can be left there, we don't press any more. No. The other

11 document that was tied in with this was -- and we would ask for this to be

12 confidential, Your Honour, if that's the right way of dealing with it.

13 We've given a schedule of the billable hours that the three of us here,

14 myself, Ms. Loukas and Ms. Cmeric, did for August through to April.

15 JUDGE ORIE: That's the time you have presented to the Registry as

16 time used.

17 MR. STEWART: Yes.

18 JUDGE ORIE: Yes. The Chamber would very much like to receive

19 that as a confidential document.

20 MR. STEWART: Yes, indeed.


22 MR. STEWART: Your Honour, should I comment on it now, or perhaps

23 -- it's a very brief comment but there is a little bit of explanation. I

24 can deal it easily after Mr. Harmon --

25 JUDGE ORIE: Would you like to deal with it in private session,

Page 4493

1 being the document confidential or --

2 MR. STEWART: Actually, I'm not so -- I'm not so worried about

3 that, Your Honour, no. I'd prefer that the entire document were not

4 simply in the public domain, but the points I'm going to make --

5 JUDGE ORIE: The document then is not in the public domain. That

6 means that it's -- that it's submitted confidentially to the Trial

7 Chamber. Then I think it has to get an exhibit number as well. Are you

8 aware of what exhibit number should be attributed to it, Mr. Registrar?

9 Let's deal with the number at a later stage. Even if it would not

10 have immediately a number, it gets a number and there could be no

11 confusion about the document.

12 Could you please provide the copies of the documents to the

13 Judges. Thank you very much.

14 Yes.

15 MR. STEWART: Yes.

16 JUDGE ORIE: If you say you could briefly make some observations.

17 Take it in a couple of minutes, please proceed.

18 MR. STEWART: Yes, I can, Your Honour. The way -- what I'm

19 saying, by definition I'm quite happy to say in open court. The normal

20 allowance for preparation for the Defence counsel was 2.800 hours as far

21 as the Registry was concerned. They allowed us 2.100 hours of pre-trial

22 preparation on the footing that-- fairly rough and ready, but on the

23 footing that 700 hours had effectively been saved for us by the work of

24 Mr. Brashich, our predecessors. Actually, these figures total up -- then

25 because the trial was started, in a sense, prematurely -- I think that is

Page 4494

1 at least acknowledged --

2 JUDGE ORIE: May I ask you, 2.100 would be counsel hours?

3 MR. STEWART: Counsel hours.

4 JUDGE ORIE: Counsel hours.


6 JUDGE ORIE: That would include you and Mrs. Loukas and would

7 exclude Ms. Cmeric?

8 MR. STEWART: Excluding Ms. Cmeric --


10 MR. STEWART: -- but included -- it actually also included legal

11 consultant hours. So some of those hours went to Mr. Neskovic since we

12 came on board, but not a significant number, Your Honour. This can -- for

13 the purposes of this hearing, really, that can be disregarded. The -- the

14 point is that the total -- we've had to estimate for March and April

15 because I'm afraid we haven't found time to do the billing which -- for

16 which a deadline comes up very soon.


18 MR. STEWART: There are some notes indicating this. But the total

19 then is 834 for me - that's right up to Easter - and 813 and some minutes

20 -- say 814, if you round it up, for Ms. Loukas. So the reason I mention

21 this, Your Honour, because it responds to Your Honour's observation about

22 what's a month. If we take a month as 175 hours, which is, we'd suggest,

23 that is a reasonable guideline, that's a full-time month, that seems --

24 that seems fair.

25 The -- Your Honour can see the pattern. The -- in August, for

Page 4495

1 example, with Ms. Loukas, in August she was here for that period in

2 August, and we -- that's a period during which, for example, we spent a

3 week with a lot of time with Mr. Krajisnik, some time with Mr. Brashich.

4 As a matter of fact, at that point, bluntly, there was also a question of

5 whether Ms. Loukas would be assigned, and lots of meetings with

6 Mr. Krajisnik with the circumstances of the changeover were necessary.

7 Quite a few were necessary before he was at all comfortable with me and

8 then it's a question of appointment of co-counsel. So it wasn't so much

9 work on the case there as convincing Mr. Krajisnik that we were the people

10 who should represent him.

11 The -- and then Your Honour can see that Ms. Loukas, in September,

12 that's not much at all because she's still at work in Australia. The --

13 the big advantage, among her many other qualities, of course, of having

14 Ms. Loukas involved, is she is full time and is available to be here in

15 The Hague, much more than somebody who is having to jump backwards and

16 forwards to London might be. So Your Honour can see the pattern.

17 And also, with me, I simply observe, for example, Your Honour can

18 see in December, it's quite obvious that in December that I -- I wasn't

19 inclined to sit around and twiddle my thumbs for a period and just have a

20 huge long rest. Although I can't and there's no reason why I should give

21 Your Honour the details, of course I couldn't. Obviously, I must have

22 been also engaged on -- on other things, which is unsurprising because I

23 had to be, really, at many points. So that was just a fact. I am a

24 full-time practising barrister who jumped into this case in -- in August,

25 and frankly, anybody else they might have got in that category would have

Page 4496

1 been in a similar position, unless, of course, they were pretty useless

2 altogether and had nothing else to do.

3 So that's the position, and Your Honour can see the pattern.

4 And may I also point out, Your Honour, that in February we had of

5 course started the trial, so during that month we spent many hours in

6 court, but these are in addition to the hours in court. But of course by

7 that time it's all getting tangled up with trial work as well. So a lot

8 of what we're doing in February is actually not really pre-trial work at

9 all but we're in trial. So it's -- these hours would in effect

10 overstate.

11 The last observation I'd make, Your Honour, and this is on the

12 pre-trial brief, that the pre-trial brief has in fact -- the fact that it

13 had been done by Mr. Brashich and Mr. Kostich, one shouldn't look at

14 whatever hours they did or didn't put in. One way of starting it is,

15 well, yes, it has saved us the task of doing that but what it's actually

16 saved us is the task of writing out the pre-trial brief because it's left

17 us with the task of doing the work. Because so far as the information and

18 material is not there in the pre-trial brief handed over to us, and it

19 largely isn't, frankly, because it doesn't tell you very much that you

20 wouldn't be able to glean from the indictment and a couple of other

21 documents, we've still got to do the work. It does save us the time of

22 actually writing out the pre-trial brief, because once you've done the

23 work, writing out these things is not the big task. I can write these

24 things out in a day or two, or less sometimes.

25 JUDGE ORIE: You mean to say that repeating the word "no" very

Page 4497

1 often or denying something doesn't take that much time, is that --

2 MR. STEWART: Well, that's -- that's -- that's one point, Your

3 Honour. But my other point was this: Because that didn't tell us very

4 much, so as part of our pre-trial preparation we've got to do the work

5 that would be required. Writing out more than "no" is not most of the

6 work. The writing out is -- that's not the work. It's knowing what

7 you're going to write.

8 JUDGE ORIE: Making up your mind.


10 JUDGE ORIE: Yes. May I just ask you, to see whether I followed

11 you well. First of all, I think you said something about 813, 814 hours,

12 something you were not quite sure about. Could you please repeat it

13 because I missed that.

14 MR. STEWART: Yes, Your Honour. It's the addition of all the

15 figures in the column under my initials. The addition of all the figures

16 there is 834 and 40 minutes, actually.

17 JUDGE ORIE: You say in addition.

18 MR. STEWART: Yes.

19 JUDGE ORIE: Could I ask you just to follow my calculation and to

20 comment on it where it seems to be incorrect, because of course we've only

21 been provided with the document --

22 MR. STEWART: Appreciate that, Your Honour, of course.

23 JUDGE ORIE: I tried to add all the time for two counsel, that is

24 therefore Stewart, Loukas, up till the start of the trial, and I took that

25 August up till January -- including January 2004, since the trial started.

Page 4498

1 MR. STEWART: Yes, we've done that, Your Honour, so we can double

2 check the figures.

3 JUDGE ORIE: I come to approximately -- it's a rough calculation,

4 but approximately 1.050 hours for the two counsel up to January. Is that

5 a --

6 MR. STEWART: Yes, that would -- well, yes, because we've actually

7 calculated through to February, and I can see immediately just looking at

8 the figures that Your Honour's figures are as close -- I'm sure they're

9 absolutely accurate.

10 JUDGE ORIE: I had in mind approximately 1.045.

11 MR. STEWART: Your Honour is correct, yes.

12 JUDGE ORIE: If I would then take you to the subsequent period,

13 would you agree with me that if a trial starts normally, that part of the

14 day is absorbed by activity at trial itself and then in court and some

15 time remaining which is very often used for either preparing for the next

16 day witness or the next week witness and some additional information and

17 perhaps writing a motion or whatever. So it's additional work.

18 MR. STEWART: That is how life goes, Your Honour, we agree 100 per

19 cent with that, yes.

20 JUDGE ORIE: So therefore for every day we're not sitting --

21 MR. STEWART: Yes.

22 JUDGE ORIE: -- more time is available because if the next day we

23 are not sitting either, then of course you don't have to prepare for the

24 witness of tomorrow and you're not spending any time in court. I

25 calculated that -- well, let's say approximately up till this moment we

Page 4499

1 have not been sitting for approximately 70 days where we could have been

2 sitting. I'm not saying that -- that there are not several ways of using

3 those days. Seventy days, two counsel, make 140 days. Let's just assume

4 eight hours a day. That would make eight times 140, would make 1.120

5 hours.


7 JUDGE ORIE: 1.045 and 1.120, taken together, is approximately

8 2.150, which is approximately the time, as I understand, attributed by the

9 Registry for the third stage where 2.800 hours were reduced to 2.100

10 hours. Is that a correct calculation? Not whether or not it's fair to

11 grant only 2.100 but --

12 MR. STEWART: Yes, the arithmetic works, Your Honour, yes.

13 JUDGE ORIE: Would it therefore be correct to say that the time

14 you used up till the start of the trial in -- on the 3rd of February and

15 the time that became available by not sitting - I'm not talking about

16 negotiation, whatever, but just that time together - equals approximate

17 2.100 hours as was granted to you by the Registrar for the first stage of

18 the --

19 MR. STEWART: Your Honour, the extraordinarily simplistic

20 arithmetic works, yes. Yes, it does.

21 JUDGE ORIE: I just wanted to know that.

22 MR. STEWART: Yes.

23 JUDGE ORIE: Whether I'm simple or not is another matter but ---

24 MR. STEWART: Your Honour is not in the least bit simple, but

25 complex highly intelligent people can produce very simplistic

Page 4500

1 calculations, Your Honour, is what we're saying. And they are. When I

2 get an opportunity, it might be better --

3 JUDGE ORIE: You'll get an opportunity to respond to that.

4 MR. STEWART: Thank you, Your Honour, because I would like to make

5 my assertion good on that.


7 MR. STEWART: Thank you.

8 JUDGE ORIE: We'd first like to hear from the Prosecution to

9 respond to what has been said until now.

10 MR. HARMON: Your Honour, this is a unique motion. It is not one

11 that I have seen nor had to respond to, and it's one that I should say the

12 Prosecutor has always stated in this case that it's ready to proceed on

13 any schedule provided by this Court, and I would like to reiterate that.

14 We're prepared to continue with the trial on the schedule with the

15 allotted number of hours and the allotted number of witnesses that the

16 Court has indicated previously. This is an application by the Defence

17 that's based on unique reasons given by the Defence for problems that they

18 believe have impeded their ability to prepare completely for this trial

19 and for which they believe impinge on Mr. Krajisnik's right to a fair

20 trial. Many of those reasons we don't take issue with nor can we. The

21 condition of the materials that were transmitted by the previous Defence

22 team, the organisation of those materials to Mr. Stewart are factors that

23 we offer no comment on and we accept without reservation the descriptions

24 provided by Mr. Stewart.

25 There are some matters in the submissions, both the written and

Page 4501

1 oral submissions of Mr. Stewart, that I do think deserve some observations

2 by the Prosecutor. Mr. Stewart came on this case on the 30th of July,

3 2003, and when we -- when he came on the case, and he says, and quite

4 candidly, that he was unfamiliar other than as an educated person with

5 facts dealing with the events in Yugoslavia, we helped or tried to assist

6 Mr. Stewart when he came because we provided him on that day with a copy

7 of the amended consolidated indictment, our pre-trial brief of the 2nd of

8 May, 2002. We provided him with a list of witnesses pursuant to Rule 65

9 ter, a list of exhibits. We provided him with a revised exhibit list. We

10 provided him with 92 bis material and yet another revised list of

11 exhibits. So right away there was material that we attempted to provide

12 to Mr. Stewart and his team that would have assisted Mr. Stewart in

13 understanding this case.

14 Additionally, there is an individual whose name I just heard,

15 Goran Neskovic. Mr. Neskovic -- and if I'm wrong, Mr. Stewart can assist

16 me and correct me on this, but if I'm wrong, Mr. Neskovic may still be

17 associated with this case in some capacity. I'm speculating perhaps, and

18 Mr. Stewart, if you can --

19 MR. STEWART: That's correct. He is still officially a member of

20 the Defence team. That's as much as I'm saying, but he is, yes.

21 MR. HARMON: Well, Mr. Neskovic was initially lead counsel on this

22 case for a period of three months. He was then co-counsel in this case

23 for a number of months, and then he was a consultant. And I just refer

24 Your Honours to a pleading that I do believe is a public pleading of July

25 the 1st, 2002. It's the Registry comments, and it reflects that

Page 4502

1 Mr. Neskovic at least billed approximately 4.300 hours to this institution

2 for his work in the capacities of counsel and as a consultant. So

3 Mr. Neskovic is somebody who has been a member of this team and who is

4 familiar with this case. And indeed in a hearing that was before this

5 Tribunal on the 13th of May 2003, and before Your Honour Judge Orie,

6 Mr. Neskovic said, and I quote, and this is found at page 133 of the

7 hearing of May the 13th, first of all, and I am quoting him: "I am very

8 well acquainted with the situation in Bosnia and Herzegovina. I know the

9 people," and as he goes on to say, "I have been working for Mr. Krajisnik

10 for three years now."

11 So in terms of understanding this case and developing a competent

12 and complete understanding of this case, at least Mr. Neskovic was

13 available for consultations and assisting the Defence.

14 In addition, in terms of the opportunities to prepare, as a matter

15 of public record, the Trial Chamber was accommodating. It did have a

16 schedule that was -- the first part of this trial was, I think, 17 or 17

17 and a half days, followed by a recess, and we as members of the

18 Prosecution team attempted to assist the Defence as well by identifying

19 well in advance the names of the witnesses and the materials that the

20 witnesses would be referring to to the Defence, and indeed sometimes we

21 took our witnesses who we would call in particular order of proof out of

22 schedule, out of sync in order to accommodate the Defence so they would

23 have more time to prepare.

24 I do think there is one matter that is raised in written the

25 submissions of Mr. Stewart that I think deserves comment, and I do indeed

Page 4503

1 want to comment on it. And it is found on page 7 of the submission in

2 point 18. And I know it's not an issue, the size of the Prosecution team,

3 however, I think it is worth mentioning where Mr. Stewart says that

4 compared to the Prosecution team, six different counsel have conducted

5 witness examinations. We do have a core Prosecution team. It consists of

6 four lawyers; myself, Mr. Tieger, Mr. Hannis, and Ms. Karagiannakis, who

7 will soon be leaving the Tribunal, so we will be down to three. In, I

8 think it was May of -- I'll find the exact date for Your Honours, if I

9 can. I don't have it at my disposal but it was in 2002, in a 65 ter

10 conference with Judge May, I explicitly raised the issue of young lawyers

11 participating in Tribunal proceedings in order to assist them in career

12 development because it was my belief and it remains my belief that young

13 lawyers are the future of this type of law and this type of work, and I

14 raised the issue with Defence counsel then and with Judge May later, and I

15 do believe possibly with this Chamber, because I was anxious to avoid any

16 criticism of the optics of having more lawyers in court than the Defence.

17 And in the hearing before -- it was Yvonne Featherstone in the 65 ter

18 conference, I received an assurance from the Defence, that Defence team,

19 that that would not be considered to be an issue. Now, I know it's not an

20 issue, the size of the Prosecution team is not an issue in this case.

21 Mr. Stewart says he has an adequately sized Defence team, but I wanted to

22 bring that -- I wanted to comment on that particular aspect of the written

23 submission.

24 And I'd like to comment as well, just to make the record perfectly

25 clear, that the -- and Mr. Stewart acknowledges in his written submission

Page 4504

1 that Prosecution counsel - and the core counsel is what I'm referring to

2 but also the junior lawyers - have additional responsibilities. It is not

3 as though the Office of the Prosecutor lawyers are working exclusively and

4 solely on this case. I will just briefly and very quickly identify, for

5 example, at the same time I have been working on this case I was involved

6 in the Deronjic case and I was involved in the Cesic case. We've been

7 involved in the Ljubicic prosecution. I've been involved in other matters

8 that I need not elaborate further.

9 Mr. Tieger has been involved in the Mrdja case at the same time.

10 Mr. Hannis has been involved in the Cesic case at the same time. My point

11 is, so the record is perfectly clear, the Prosecution lawyers who are

12 assigned to this case do indeed have additional responsibilities and

13 fulsome responsibilities.

14 Having said that, Your Honour, and having said that I do believe

15 we are ready to proceed at any time on any schedule that Your Honours give

16 us, I would like to point out two things that we do require, and Your

17 Honour mentioned one of them. We do need to have a date certain at least

18 for when the trial will start. We need to do that because we have motions

19 outstanding. We would like to have -- make applications for the issuance

20 of subpoenas and there could be no return on those subpoenas absent a firm

21 court date.

22 Second of all, there are a number of motions for which we await a

23 decision -- decisions, and those motions have been suspended during the

24 opportunity -- during the opportunity the Court gave the parties to try to

25 resolve agreed upon facts. We are awaiting now -- it seems to me the

Page 4505

1 landscape has changed, and we are awaiting a decision -- decisions from

2 the Court that will help guide us in our further planning and presentation

3 of the evidence. I specifically refer to 92 bis applications, decisions

4 in Banja Luka, Prijedor, and Bosanska Krupa, as well as an outstanding

5 decision on adjudicated facts.

6 We have submitted virtually all of our 92 bis applications. We

7 may be making some supplemental submissions in light of additional

8 testimonies that have occurred since we made those submissions, but we had

9 agreed earlier to have a schedule of responses given by the Defence.

10 We're prepared, and we will as soon as we get a date and we formulate the

11 next order of proof, we will be resubmitting to the Defence a schedule by

12 which we think is reasonable for them to respond.

13 In the final analysis, Your Honours, the submissions made by the

14 Defence must stand on virtually the facts asserted in the motion. As I

15 say, we will take a neutral position in this motion. We cannot contest

16 many of the facts that have been submitted by the Defence, and with that,

17 Your Honour, I have no further submissions. Thank you.

18 JUDGE ORIE: Thank you. Thank you, Mr. Harmon.

19 [Trial Chamber confers]

20 JUDGE ORIE: Since the Bench has no questions for you, Mr. Harmon,

21 Mr. Stewart, you are given the opportunity now to respond. But perhaps

22 before doing so, you could perhaps include some of the -- some of the few

23 questions I would have -- I would like to put to you just for my better

24 understanding of the confidential document.

25 Do I well understand that March and April, the figures appearing

Page 4506

1 there are the approximate figures of time spent in addition to the trial

2 work? That means preparation for trial and -- is that a correct

3 understanding or --

4 MR. STEWART: We weren't in trial, Your Honour. I'm sorry. I'm

5 not quite following. In which months; March and April?

6 JUDGE ORIE: March and April. Well, in April we had some trial

7 time.

8 MR. STEWART: Well, the April figures only go up to Easter, Your

9 Honour.

10 JUDGE ORIE: Yes, and --

11 MR. STEWART: We finished on the 27th of February.

12 JUDGE ORIE: March is then -- well, let's say the figures then are

13 the figures spent -- and do I then also understand that the number

14 appearing for March, as far as you're concerned, is influenced by what you

15 have written down as other matters you had to deal with.

16 MR. STEWART: Definitely, Your Honour.

17 JUDGE ORIE: Yes I'm just trying --

18 MR. STEWART: Indeed. I'm confirming Your Honour's view. It's

19 the explanation, Your Honour, indeed.

20 JUDGE ORIE: April, you say, is only up to Easter, and Easter was

21 the 11th and the 12th.

22 MR. STEWART: Good Friday was the 9th, Sunday was the 11th. I was

23 due to go away until the 12th but cut short the time and abandoned my

24 daughter in France in order to come back to be ready for trial.


Page 4507

1 MR. STEWART: Typical pattern over the last few months.

2 JUDGE ORIE: Yes. I -- the situation is not totally unknown to

3 me, Mr. Stewart. I'm afraid that it's a situation which is --

4 MR. STEWART: It should be disregarded, Your Honour. It's not

5 unknown. It's just something that from time to time should be disregarded

6 and not allowed to continue month-in month-out over a year or so of a

7 trial.

8 JUDGE ORIE: Then, Mr. Stewart, the time we find for the month of

9 February, would that be the time in addition to what we have been

10 sitting?

11 MR. STEWART: Indeed, Your Honour, yes.

12 JUDGE ORIE: That's clear to me. Yes. It's perfectly clear to me

13 now what --

14 MR. STEWART: Yes.


16 MR. STEWART: Yes, Your Honour, may I -- I'll come back to that

17 arithmetical point in a moment.

18 Your Honour, may I just say in -- with reference to my last

19 slightly irritable response, I see my own Defence team but I don't see

20 myself as immune from this. We have worked beyond what -- I say "at

21 least" in the motion. We have worked beyond what any Trial Chamber can

22 reasonably expect. If you allow -- I take out that lump, for example, and

23 I had to be engaged on something else, but I was working then as well,

24 after all. But when we have been here day in, day out, we have worked

25 beyond it. That's -- that's a simple fact. And we just ask some regard

Page 4508

1 to be paid to that. We are professionals. We did come here expecting to

2 work hard, but month in, month out, we must not be abused, with respect.

3 And I will not allow my team to be abused. That is why I made it clear to

4 Your Honour that I'm insisting that my team have a proper break over the

5 imminent recess. I will not allow, with respect, I simply will not allow

6 that recess to be absorbed by adding work for them when they must have

7 that break. And I say no more about that, Your Honour, because it's the

8 facts, really, that speak for themselves here, and I don't -- I don't wish

9 to pursue that particular tone, but I am the leader of this Defence team,

10 and I do have some strong feelings in that area, Your Honour.

11 The -- so far as the observations made by Mr. Harmon are

12 concerned, Mr. Neskovic -- actually, I had no idea whatever, I'm afraid,

13 that Mr. Neskovic had billed 4.300 hours in this case, because most of his

14 billing, after all, was during a period of which I was not concerned. As

15 a matter of fact, I'm shocked, but never mind. That's ancient history,

16 but as far as our preparation of the case is concerned.

17 Mr. Neskovic is in Doboj. Mr. Neskovic doesn't speak English.

18 I'm not in Doboj. I am -- I live in London when I'm not here, which I now

19 am pretty much all the time. I don't speak Serbian. I'm afraid --

20 Mr. Harmon was not intending to be in the least bit unhelpful. Mr. Harmon

21 is giving the Court the facts. I can't possibly quarrel with that. But

22 the facts are that whatever Mr. Neskovic has been doing, he doesn't speak

23 English, I don't speak Serbian, he's in Doboj, I'm not in Doboj, the

24 opportunity -- we have had some input from Mr. Neskovic, yes, occasionally

25 had a briefing, but it has to come, effectively, in writing from

Page 4509

1 Mr. Neskovic through Ms. Cmeric to me. It's not the most effective way of

2 transmitting information from one brain to another. It might be more

3 effective for the Brashich matter, but it's marginal, Your Honour.

4 So that really is no significant benefit, and that's not

5 disparaging Mr. Neskovic who has a Serbian speaking lawyer in Doboj, and

6 I'm not criticising him for that, it's just that he can be of limited help

7 to us.

8 Mr. Harmon is right; I make not the slightest criticism of the

9 size of the Prosecution team. I'm not blaming Mr. Harmon for not

10 jettisoning bits of his team, and I did positively endorse his suggestion

11 in relation to bringing other people on the team and I make absolutely no

12 criticism of it at all. I simply observe that, again, I don't require the

13 Prosecution team to jettison the knowledge they have in their brain but

14 these three very experienced lawyers who constitute the core Prosecution

15 team have absorbed years and years of knowledge of the background in

16 relation to all these matters from their involvement in other cases,

17 knowledge which we do not have and have had to catch up on. And it's

18 quite true that Mr. Harmon did supply me with much of that material. The

19 consolidated indictment is available on the website anyway, but thank you,

20 I appreciated having the hard copies. The -- but that's not what I was

21 talking about anyway. There's a lot of extra work to actually understand

22 what's going on.

23 The -- Your Honour also will be aware from being involved in these

24 matters that there's a tremendous lot of time for which you don't get to

25 charge at all. When I spent four days Belgrade-Bosnia, Bosnia-Belgrade, I

Page 4510

1 was only actually able to charge 12 hours for being away four days, from

2 early in the morning to getting back late on Friday night. And 12 hours,

3 12 chargeable hours because you can't charge when you're driving from Pale

4 to Banja Luka or whatever. You can't do it. And Your Honour knows the

5 way that works. So -- and when I'm, in the early days, travelling

6 backwards and forwards from London, there are an awful lot of hours

7 devoted to this case which don't appear there. But -- so that's just

8 extra strain on the team if it has to do that, but the actual arithmetic

9 when one adds it up here, once we get into the trial stage -- the problem

10 in February is that when we look, for example, at those more or less a

11 hundred hours each for Ms. Loukas and myself, so we were doing -- we had

12 17 and a bit days in court, so we had about 85 hours or something like

13 that in court, so we got 185 hours, plus I've got about a day or so a

14 month of all this admin. and billing and invoicing and so on. Every day,

15 of course, I have lots of other stuff for which I can't charge, it's not

16 in court, so actually it's a lot more, as a physical exercise, it's a lot

17 more than that full time working month, there is no question about that.

18 But those hours in February, a lot of them are not then pre-trial

19 preparation at all. They're -- and I hope the Registry are not going to

20 start chopping great chunks off our bill because I make that comment, and

21 that would rather peeve me, I must say, but the simple fact is that it's

22 not, that once you're in trial, you're working on the trial. The day, as

23 Your Honour described it, is exactly right, but the month in February,

24 which was intensely high pressure for us -- and that was acknowledged by

25 Mr. Harhoff expressly in e-mails, it's certainly acknowledged by the

Page 4511

1 Prosecution and Your Honours. There's no pre-trial preparation worth

2 speaking of there, so you can please chop out those hours for a start.

3 When we -- when we get into March, the fact that on a calculation

4 of days out of court so many hours are available, well, for reasons I've

5 given to Your Honour they weren't available, and neither Mr. Krajisnik nor

6 I can or should be penalised for the fact that in the circumstances in

7 which I came into this case I was not available all the time every month

8 every day to do this case. I've made myself available when I can. Once

9 we get into March and April, well, in a way, yes, sort of pre-trial

10 preparation in the sense that I'm -- a lot of time spent preparing for

11 Mr. Treanor, but once you've started the trial you're then wrapped up in

12 all sorts of things which are to do with the trial and not pre-trial

13 preparations.

14 So the -- the arithmetic -- that's why, with respect, Your Honour,

15 I say it's simplistic, the arithmetic simply doesn't work. And what I'm

16 beginning to get concerned about here, Your Honour, is that I've given

17 Your Honour these figures as a cross-check, and myself, I didn't suggest

18 they were any more than some sort of broad cross-check, and immediately,

19 with respect, Your Honour is coming back at me, doing the calculations,

20 doing the arithmetic, in the way we've become so familiar with in this

21 case, to demonstrate something which is simply a fact, which is we have

22 not had enough time to prepare this case. We are overwhelmed with

23 material for this case, we simply must have time to do it. It was only a

24 cross-check. It is a fact, and you could put a mainframe computer on it

25 for years, and whatever result the mainframe computer produces it is a

Page 4512

1 simple fact that we need this time to prepare. And I do believe that

2 arithmetic aside, I do believe that I have explained it all sorts of ways,

3 the features of this case. The arithmetic doesn't alter the piles of

4 documents still to be examined, still to be read. It doesn't read them.

5 And presenting documents to us doesn't read them for us, and Mr. Neskovic

6 out in Doboj doesn't read this stuff for us. We have to do this. And in

7 fact, Your Honour, if one makes an actual practical adjustment of the

8 figures, and if you allow for the fact that the 92 bis stuff, which is not

9 pre-trial preparation really, even if it can come up at pre-trial stage,

10 it really isn't, the way the 92 bis stuff overwhelmed the two other

11 members of my team here during that period was absolutely obvious to me.

12 It's basically what they did. Ms. Loukas is pretty much known as Ms. 92

13 bis. That's what she did for all that time. And with Ms. Cmeric, sorting

14 out all the stuff so we could work on it, most of the time. And then in

15 the -- in the later stages, it has been a valiant attempt, I do appreciate

16 that, Your Honour, to try to work around -- you know that, Your Honour, we

17 did refuse to elect between those two options given to us some weeks ago,

18 so we've never quite seen eye-to-eye on this, with respect, but there's at

19 least been an attempt. But that on-off, on-off way of working has never

20 really given us the opportunity to get on top of this.

21 It's not just the days out of court. Whenever we finished a

22 session of a couple of weeks' of evidence, there are days of catching up

23 then. Even after a couple of weeks, there's at least two or three days of

24 just sweeping up and catching up and sorting it out, and then if you're

25 going to be back in court to do more evidence, then you've got days of

Page 4513

1 getting ready for that. And it's a lot of days. The witnesses that have

2 been dealt with, they're not lightweight witnesses, as Your Honour will

3 appreciate, many of them. Quite an enormous amount of work.

4 So the idea that this arithmetic can be done in such a way that it

5 actually produces for us anything remotely like that, always in bearing in

6 mind also, Your Honour, that inherent in all these schemes is the ability

7 to -- to provide more funds. We're not asking for more funds, we're not

8 saying that, but simply reminding Your Honour that those simple

9 cross-check figures of nine months and five months and so on, those are

10 for a category 3 case. And Your Honour rather accepted the proposition

11 this is a heavy category 3 case, and once it becomes -- there simply isn't

12 another category beyond 3. That's the thing; if there were, we'd be in

13 it, but there isn't. Category 3 is, if you like, it's a category that's

14 going to range from heavy cases to absolutely massive cases, and this is a

15 massive case.

16 I don't believe there is anything else I can say, Your Honour,

17 except for the tiny point that I think 175 hours a month really works out

18 to more of a 7-hour day rather than an 8-hour day, but that's a rather

19 lame note to finish on, that's because we don't -- we use the arithmetic

20 as a convenient cross-check, but all the circumstances of this case, as

21 we've laid them out, just demonstrate, as we believe we've demonstrated,

22 that we must have a fair trial for Mr. Krajisnik by having more time.

23 JUDGE ORIE: Thank you, Mr. Stewart.

24 [Trial Chamber confers]

25 JUDGE ORIE: Mr. Harmon, I take it that there are no further

Page 4514

1 submissions.

2 MR. HARMON: There are none, Your Honour.

3 JUDGE ORIE: I suggest to the parties that we'll adjourn for a

4 time still unknown, but I take it that it will not take more than 25

5 minutes to half an hour, in order to allow us to make up our mind as to

6 whether we will give a decision today on the motion, even if that would

7 not be a completely written down decision but at least a core of the

8 decision clear. If we would do that, I think we should then also give the

9 Prosecution immediately the -- well, the plans we would have as a

10 consequence of our decision, or perhaps even as a part of our decision.

11 And if we cannot do it, we'll give a decision as soon as possible, and the

12 Chamber is aware that this would have consequences for the preparation of

13 the Prosecution to call witnesses.

14 Mr. Harmon, if a decision would be given today, when would be the

15 earliest opportunity to hear evidence in the Prosecution's case? Would

16 that be -- would -- it's now Friday. Would be Monday in one week enough?

17 So that's, let's say, another ten days from now?

18 MR. HARMON: We were --

19 JUDGE ORIE: You were invited, I think, to consider that.

20 MR. HARMON: We did consider it. We have identified certain

21 potential witnesses. We are waiting to hear from the Court if we would

22 indeed proceed. We were looking at the last week that was available in

23 July when we could start.

24 JUDGE ORIE: Yes. Thank you very much.

25 We will adjourn and we would like the parties to remain standby,

Page 4515

1 perhaps not in the first 20, 25 minutes, but in approximately half an

2 hour.

3 --- Recess taken at 5.05 p.m.

4 --- On resuming at 5.55 p.m.

5 JUDGE ORIE: The Chamber has preferred to take a little bit more

6 time and give its decision orally at this moment. I will give the reasons

7 for the decision to the extent possible. That means that it might not be

8 complete. It might not be in every single word the reasons that will

9 later on appear in a written decision, so the written decision is

10 authoritative but leaving you without any idea of the reasons at all is

11 not what the Chamber considered appropriate to do.

12 This is then the decision on the Defence motion for adjournment.

13 Defence counsel has relied on the fair trial guarantee as embodied

14 in Article 21 of the Statute and asked for additional time for preparation

15 of its Defence. As the Defence puts it, an opportunity to test every

16 aspect of the Prosecution's case and to present the accused's defence is

17 an essential element of a fair hearing. In paragraph 6 of its motion the

18 Defence elaborates on sections 4 B, D, E of Article 21 of the Statute.

19 Since the Defence does not claim that no opportunity has been

20 given to it until now to examine Prosecution witnesses, and since the

21 trial has not yet reached the stage when Defence is required to present

22 its witness list and when decisions are taken on the number of witnesses

23 that may be called or on the time available to the Defence to present its

24 witnesses, the emphasis in the motion is on the right of the accused,

25 assisted in this respect by counsel, to have adequate time and facilities

Page 4516

1 for the preparation of the defence.

2 The essential issue, therefore, as rightly has been pointed out in

3 paragraph 7 of the motion, is whether the time and facilities, and

4 especially the time, given to the Defence are adequate. Time, together

5 with other resources, is a vital factor when preparing a defence. The

6 other resources will turn out to be without effect if no time is available

7 to use them. The question of access to financial resources has been

8 thoroughly litigated in this case, leaving only time as the main issue.

9 What might be considered adequate time for the preparation of the

10 defence? The case law of the international bodies, such as the European

11 Court on Human Rights and the UN Committee on Human Rights is not of great

12 guidance when it comes to making decisions on the specifics of this case.

13 In general, however, the circumstances and the complexity of the case are

14 mentioned as critical factors.

15 The past and the present factual circumstances relating to the

16 preparation of the Defence case does not seem to be in dispute. It is

17 understood that the current Defence team took over from the former team

18 with considerable difficulties. The Chamber is aware of only two members

19 of the current team who have served on the former team, even if not

20 throughout, the two of them. The communication with the accused, who is

21 in detention, takes time and so does the travel of members of the team to

22 the former Yugoslavia.

23 The emphasis put by the Defence on the complexity of the case is

24 therefore of special relevance, both as it relates to the factual

25 allegations, namely the alleged crimes in a large number of municipalities

Page 4517

1 involving a large number of actors and victims, and as it relates to

2 questions of law. For example, it transpires from the indictment and from

3 related documents that the legal responsibility charged encompasses joint

4 criminal enterprise and the other aspects of Article 7.1 responsibility as

5 well as command responsibility under Article 7.3. The Defence in that

6 motion mainly concentrate on the extensive allegations of fact and the

7 context as illustrated by the large amount of material involved in this

8 case.

9 The complexity of the cases before the Tribunal is obvious,

10 especially in the category of so-called leadership cases. The essential

11 aspects of the Prosecution's case seem to be fairly reflected by the

12 Defence in paragraph 12 of its motion. The question, therefore, is what

13 does adequate time mean in the context of this type of a case.

14 A case in which the number of events and the structure of power

15 and responsibility underlying the criminal charges cover a large

16 territory, a long period of time, and many victims cannot possibly be

17 dealt with as a whole at the same level of detail as a case of a different

18 scale. This justifies limitations -- limitations in case presentation by

19 the parties and it requires parties to find a balance between aspects to

20 which greater or lesser attention will be given in the presentation of

21 their cases -- of their cases. Within these limits, the full exploration

22 of the historical context of the armed conflict necessarily competes, for

23 example, for time with the need to verify or introduce details on the

24 so-called crime base evidence or with the need to acquire a detailed

25 understanding of the interactions in the various environments in which the

Page 4518

1 accused is said to have operated.

2 Having established that the -- that mastery of a case is a

3 relative concept, as it also is in domestic trials of a complex nature,

4 the Chamber has to determine whether the time granted in this case to the

5 Defence for preparation has reasonably allowed it and will reasonably

6 allow it to develop a competent defence while being aware, of course, that

7 one always wishes to do better and always wishes to have more time in

8 which to do so. Certainly it would be unacceptable if the time granted to

9 Defence would fall below the minimum necessary to make the trial fair to

10 the accused.

11 Having taken into account the complexity of the case as outlined

12 above, the late start of the present Defence team and the difficulties it

13 faced and still faces, the chronology presented by the Defence including

14 facts and circumstances beyond and within the control of the accused and

15 the Defence team, the size of the Defence team and the contribution to the

16 Defence the accused could provide, the time spent in court since the start

17 of the trial, the time already granted to the Defence in the course of the

18 trial as well as before the trial began, time granted to prepare, the

19 general practice in this Tribunal, as in existence at this moment, to

20 grant 2.800 counsel hours for the whole of the pre-trial stage in level 3

21 cases, the information provided by the Defence on the working hours

22 reported to the Registry, and the performance of the highly qualified and

23 competent Defence team until today, and having also considered all the

24 submissions of the Defence and all their details, the Defence has not

25 convinced the Chamber that either the schedule followed to this day or the

Page 4519

1 envisaged schedule for the near future, which I shall outline in a moment

2 and which includes further allowances for preparation, has violated or

3 will violate the accused's right to adequate time for preparation of his

4 Defence or that it has been or will be prejudicial to the fairness of the

5 trial. The Trial Chamber will continue to closely monitor the issue as

6 the trial continues.

7 In conclusion, the Trial Chamber denies the motion and orders the

8 trial to continue in accordance with the following schedule covering the

9 period up until the 1st of November, 2004.

10 The schedule is that in July, we will sit on the 26th, the 27th,

11 the 28th, with some reservations which I will explain, and on the 29th and

12 the 30th of July. I immediately give the explanation for this specific

13 week.

14 The last week of July the Plenary takes place, Plenary meeting of

15 the Judges. That's the reason why we'll try to start, if courtrooms are

16 available, in the morning hours, if possible including the 28th of July.

17 On the other hand, we will try to sit on the 29th in the afternoon. So

18 there is some reservation because the Judges have some duties in respect

19 of attendance of the Plenary meeting. On the other hand, we'll try, to

20 the extent possible, to sit on the 30th in the morning.

21 We will then not sit in the week of the 23rd of August. So we

22 will have a later start, that is, we'll sit starting the 30th of August up

23 till the 3rd of September. That's one week. We'll sit on the 6th and the

24 7th of September. We will then resume on the -- let me check that I do

25 not make any mistake. We will then resume on the 20th of September, and

Page 4520

1 we'll continue sitting on from then the whole month of October.

2 The schedule I have just read out results in 18 non-consecutive

3 out-of-court days for further preparation instead of the 40 consecutive

4 days the Defence has requested.

5 The written decision will follow soon. This is the decision.

6 Is there any other issue to be raised at this moment?

7 MS. LOUKAS: Your Honour, yes. Thank you, Your Honour. Not in

8 relation to that decision, but just in relation to the Prosecution's

9 motion for protective measures. I raised that last Friday and sought an

10 extension until this Friday, but in view of the -- dealing with this

11 motion this week, the priorities have been rather changed, and we would

12 just be seeking a further extension until Monday.

13 JUDGE ORIE: Yes. And that's for -- yes. Mr. Harmon --

14 MR. HARMON: We have no objection.

15 JUDGE ORIE: Yes. Then a further time until Monday is granted,

16 Ms. Loukas.

17 MS. LOUKAS: Thank you.

18 JUDGE ORIE: Then perhaps the -- I should inform the Prosecution.

19 The Prosecution has asked the Chamber now to concentrate on the

20 adjudicated facts on protective measures. The Chamber will do that. And

21 I would add to that that the Chamber is considering at this moment also

22 the total number of 92 bis witnesses in the Prosecution's case to be

23 reduced. We have not made finally up our mind, but this is just an

24 indication that we are considering this aspect of the presentation of the

25 -- the presentation of the Prosecution's case.

Page 4521

1 Mr. Stewart.

2 MR. STEWART: Your Honour, I have one other point. Again, it's a

3 separate point from this motion. Your Honour knows that in relation to a

4 witness - and in fact it's a more general point - who gave evidence in

5 closed session --


7 MR. STEWART: -- we did suggest that there should be regular

8 reports as to the position, since when, over weeks, we have heard

9 absolutely nothing.

10 JUDGE ORIE: Yes. I -- we have discussed this week this matter

11 again because there are two issues. The first one is that a recent

12 decision still has to be pronounced in open court, which has not been done

13 yet. We will do that presumably in the last week of July. And then, as

14 far as reports are concerned, the Chamber will address the Prosecution to

15 be further informed about any developments either in the situation or in

16 the position the Prosecution has taken.

17 MR. STEWART: It does not -- I simply do not know the answer to

18 this question I ask: Does not the Victims and Witnesses Section report

19 directly to the Trial Chamber?

20 JUDGE ORIE: We have had reports, but I prefer to -- if it needs

21 any further discussion, we will have to do that in private or closed

22 session.

23 MR. STEWART: Understood, Your Honour, yes.

24 JUDGE ORIE: I prefer not to do that at this very moment, Friday,

25 ten minutes past six, not because it's not a suitable moment but rather

Page 4522

1 spend more time on it then once we have resumed.

2 Any further issues?

3 MR. STEWART: No, Your Honour, not from the Defence.

4 MR. HARMON: Nothing from the Prosecution, Your Honour. Thank

5 you.

6 JUDGE ORIE: Then we will adjourn until the 26th of July,

7 courtroom and time to be further indicated on short notice.

8 --- Whereupon the Motion Hearing adjourned

9 at 6.12 p.m.