Tribunal Criminal Tribunal for the Former Yugoslavia

Page 16

1 Friday, 2nd October, 1998

2 (Motion Hearing)

3 (Open session)

4 --- Upon commencing at 2.30 p.m.

5 JUDGE MUMBA: Good afternoon. Will the

6 registrar please call the case?

7 THE REGISTRAR: Good afternoon, Your Honour.

8 Case number IT-97-25-PT, the Prosecutor versus Milorad

9 Krnojelac.

10 JUDGE MUMBA: Thank you. May we have the

11 appearances?

12 MR. UERTZ-RETZLOFF: Good afternoon, Your

13 Honours. For the Prosecution, we have today, to my

14 left, Mrs. Peggy Kuo, and my name is Hildegard

15 Uertz-Retzloff.

16 JUDGE MUMBA: Thank you. For the Defence?

17 MR. BAKRAC: Good afternoon, Your Honour.

18 The lead counsel is Attorney Mihajlo Bakrac present

19 here today with Attorney Miroslav Vlasic as legal

20 counsel.

21 JUDGE MUMBA: Thank you. The accused, can

22 you hear me?


24 JUDGE MUMBA: The present hearing is for a

25 motion by the Prosecution on protective measures filed

Page 17

1 on the 16th of June, and the Defence did respond to the

2 motion by the Defence on the 10th of July. I would

3 like to find out if there is anything more that the

4 Prosecution would like to say about the motion?

5 MR. UERTZ-RETZLOFF: Your Honour, requested

6 is only a general measure to grant confidentiality in

7 the pre-trial stage. Similar measures have been

8 granted by this Tribunal on several occasions. Also,

9 from this Trial Chamber, the decision of the Kunarac

10 case dated 29 April, 1998 is about the same subject.

11 However, in this subject matter, we gave specifics, I

12 think, which are important here to mention.

13 Firstly, I refer to the Prosecutor's motion

14 to preserve evidence dated 16 June, 1998 in which it

15 was described that the accused was in the possession of

16 a false I.D. card. The accused seems to have

17 connections to criminal individuals who can provide

18 false I.D. cards of a very high quality.

19 Secondly, I refer to a decision of the

20 Registrar dated 13 July, 1998 restricting the accused's

21 contacts within the detention unit. It says, "Taking

22 into account that there are reasonable grounds for

23 believing that Mr. Milorad Krnojelac may interfere with

24 the administration of justice." I think these are two

25 additional points which I want to mention which makes

Page 18

1 it necessary to have this motion granted.

2 JUDGE MUMBA: Thank you. Any response,

3 besides what is in the response to the motion, by the

4 Defence?

5 MR. BAKRAC: Your Honour, we wish to add the

6 following to that which has already been written: This

7 request of the Prosecutor greatly reduces the right to

8 the Defence which is guaranteed by Articles 21 and 22

9 of the Statute, because this request of the Prosecutor,

10 to acquaint only the accused and his legal counsel with

11 the content, considerably reduces the scope of

12 defensibility and the rights involved.

13 Also, it was said that the family of the

14 accused could not become familiar with the statements

15 that indict the accused in this trial. This has made

16 far more difficult the accumulation of evidence by the

17 Defence, because it is only the accused that Defence

18 counsel can deal with, and especially from the point of

19 view of this time distance.

20 I think that because the family is aware of

21 the circumstances in which the accused lived and, also,

22 particularly, the time of the indictment, I think that

23 the family could help Defence counsel accumulate the

24 necessary material.

25 Of course, I do agree that protective

Page 19

1 measures have to exist, and we shall seek the same for

2 our own witnesses, that is to say, that the name and

3 identity of a person who is testifying should not be

4 disclosed. But if the contents itself cannot be

5 disclosed, then this considerably reduces the scope of

6 the possibilities extended by the Defence counsel.

7 This is in the Statute, too.

8 The Kunarac case is not a relevant case in

9 point, because this is a rape case, and it really

10 doesn't match, in any way, the indictment against

11 Mr. Krnojelac.

12 I believe that such a proposal of the

13 Prosecutor should be refused to the extent to which it

14 precludes the Defence the possibility of communicating

15 with the family of the accused, because the contents of

16 statements are very important for the Defence as well.

17 This is also in keeping with the Statute of the

18 Tribunal.

19 That is all I wish to say at this point. I

20 believe that such a proposal made by the Prosecutor

21 should be refused and that Defence should be allowed to

22 prepare rebuttal evidence in the best possible way.

23 Thank you.

24 JUDGE MUMBA: If I understand you correctly,

25 Mr. Defence Counsel, your concern is that the exclusion

Page 20

1 of the family of the accused from knowing the contents

2 of the witness statements, that is what is worrying

3 you, because you feel that that restricts the ability

4 of the Defence to prepare the actual defence for the

5 trial?

6 MR. BAKRAC: Certainly, Your Honour, for the

7 simple reason that I am an attorney from Belgrade, and

8 the accused is from Foca, and the accused is the only

9 person whom I can deal with. If I cannot deal with

10 anyone else, then my hands are tied, too, to a large

11 extent. I am not in a position equal to that of the

12 Prosecutor.

13 Of course, we all know that there have been

14 cases of abusing the contents of witness statements

15 here, and that they were even given to the media, and I

16 certainly agree with that, but such a case should not

17 tie the hands of the Defence in all future cases. You

18 see, this is a negative example, which I can only

19 condemn, but the contents of a statement have to be

20 presented to the next of kin, the people who are the

21 closest of all to the accused, so that we, on the other

22 hand, could gather evidence which suits the purposes of

23 the Defence, so to speak.

24 If you deny this motion, the Defence can

25 exclusively and only talk to the accused and also from

Page 21

1 this time distance and in this situation that he is in

2 now. Why could I not gather evidence and show

3 something to the wife of the accused and to his sons,

4 to show what the incriminating material is? Perhaps

5 they will remember certain details which may serve the

6 purposes of the Defence.

7 If you prevent me from doing so, then the

8 Prosecutor and the Defence are not going to be in a

9 position of equality. Also, the Statute cannot be

10 observed if you act in this way.

11 Thank you.

12 JUDGE MUMBA: Thank you very much, Counsel.

13 I think your concerns have been ably expressed, and the

14 Chamber will take time to consider as to what

15 exceptions to make to the motion of the Prosecution.

16 A written decision will be issued later.

17 In these open proceedings, is there anything

18 else, Ms. Prosecutor? Anything else, Mr. Defence

19 Counsel?

20 MR. BAKRAC: One more thing, Your Honour. As

21 we have taken care of this issue, there's another thing

22 which I also consider to be of great importance, and

23 that is the translation of evidence.

24 According to the new Rules, it is the

25 Prosecutor who is supposed to take care of that. We

Page 22

1 have obtained, so far, one-third of the evidence

2 material which we got from the registry. However,

3 two-thirds of the material we have not received yet.

4 JUDGE MUMBA: May I interrupt you,

5 Mr. Defence Counsel? I think we shall go into closed

6 session to discuss the preparations of the trial.

7 Those matters which you're raising now shall be in

8 closed session.

9 MR. BAKRAC: I agree.

10 JUDGE MUMBA: In view of the fact that the

11 matters for the motion are dealt with, the Court will

12 adjourn and move into closed session for a Status

13 Conference.

14 --- Whereupon the hearing adjourned at

15 2.40 p.m., to be reconvened sine die











page 23