Tribunal Criminal Tribunal for the Former Yugoslavia

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     1                                          Wednesday, 14th May 1997

     2      (10.00 am)

     3      JUDGE KARIBI WHYTE:   Good morning, ladies and gentlemen.

     4          Is this a new pattern now, you already kept the blinds

     5          closed?  Is that what you do now?  (Pause.)

     6                Now, we have before us listed three motions, which

     7          we have scheduled for this morning.   We will start with

     8          the first one: this is a request for a formal finding of

     9          the Trial Chamber that the accused Landzo is fit to

    10          stand trial; the second, the motion for extension of

    11          time in which to file motions pursuant to Rule 73A(3)

    12          and relief from waiver; the third, motion for leave to

    13          file motion to exclude evidence in connection with

    14          Delic; the fourth, the motion to exclude evidence that

    15          is filed by counsel for Mucic.

    16                Now, we will start with the first one before the

    17          Trial Chamber: the question for our finding about the

    18          fitness to stand trial.  That is a little bit of an

    19          enigma to me, why the prosecution is asking for that,

    20          but I suppose ...

    21      MR. OSTBERG:   Mrs McHenry will speak to that, your Honour.

    22      MS. McHENRY:   Thank you, your Honours.   We did not -- we do

    23          not suggest that this is, as far as we know, even a

    24          contested issue, but just so that the record was very

    25          clear, so that if there is subsequently appeal, there is

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     1          no question about it, the prosecution believe that it

     2          would be appropriate for the record to formally have a

     3          finding that the accused is fit to stand trial.

     4          Previously this issue had been raised.

     5                The accused was examined.   Two doctors found he

     6          was fit to stand trial and one doctor found he was not,

     7          in his opinion.   We believe that the more well reasoned

     8          and the more convincing of the findings of the two

     9          doctors are the doctors that found that the accused was

    10          fit to stand trial.   We believe that the accused's

    11          conduct, which even the Trial Chamber can observe during

    12          court -- conferring with his counsel, behaving

    13          appropriately -- such things indicate that he is fit to

    14          stand trial, and we assume by the fact that the

    15          proceedings have been on-going that there is an implicit

    16          finding by both this Chamber and an agreement by the

    17          defence that he is fit to stand trial, but without

    18          making it a significant deal, we just thought it would

    19          be best if there was a formal finding, even if it is an

    20          oral, one sentence finding, that the accused is fit to

    21          stand trial.   Thank you.

    22      MR. ACKERMAN:   Good morning, your Honours.   Just very

    23          briefly, I am puzzled, like Judge Karibi Whyte is

    24          puzzled, by this motion, since we have filed no motion

    25          contending that Mr. Landzo is not competent to stand

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     1          trial.   It is quite unusual for the Prosecutor to ask

     2          for such a finding when it has not been asserted by the

     3          defence in the first place.   Beyond that we have

     4          nothing further to say with regard to it.   Thank you.

     5      JUDGE KARIBI WHYTE:   Thank you very much.   I think this is

     6          the end of the matter.   We will give a Ruling later.

     7          There is nothing to pursue in this matter.

     8                The next motion is that filed by counsel for

     9          Landzo pursuant to Rule 73A and relief from waiver.

    10          I think counsel for Landzo can speak to that motion.

    11      MR. ACKERMAN:   Thank you, your Honours.   The basic heart of

    12          the motion that was filed is based upon the proposition

    13          that even though the record of the Landzo interview

    14          shows that he had counsel present at the time of the

    15          interview, and even though Mr. Landzo was advised at

    16          least to some extent by those conducting the interview

    17          of what his rights were, the contention that I wish to

    18          make, if I am permitted to file a motion to suppress, is

    19          that neither of those were sufficient to protect his

    20          rights.   It is based upon the following proposition.

    21                In most countries one could not represent an

    22          individual charged with a serious crime without first

    23          passing a Bar examination regarding all the law and the

    24          rules and procedures covering those kinds of proceedings

    25          that they would be appearing in.   Once that attorney

Page 2732

     1          has passed such a Bar examination and been admitted to

     2          the Bar, only then is he or she permitted to appear on

     3          behalf of an accused and advise an accused as to what he

     4          or she should do.

     5                The situation that existed at the time the

     6          statement was taken from Mr. Landzo was a situation in

     7          which he was represented by a very capable and

     8          honourable attorney by the name of Mustafa Brackovic.

     9          Mustafa Brackovic's training was in law and procedure in

    10          the former Yugoslavia.   Any examination that he took to

    11          become a lawyer in the former Yugoslavia would have been

    12          based on Yugoslavian law and procedure.   My

    13          understanding, and I would be prepared to prove, if I am

    14          permitted to file the motion, is that under Yugoslavian

    15          law a defendant is expected to make a statement -- an

    16          accused is expected to make a statement -- and that

    17          that statement can never be used against that accused

    18          without the accused's permission.   Under many of the

    19          civil law continental systems it is, in fact, a

    20          detriment to the accused if he fails to make such a

    21          statement.

    22                The making of a statement by an accused, if he is

    23          convicted of the offence for which he is charged, goes a

    24          long way towards mitigating punishment because he made

    25          such a statement.   It may cut punishment in half

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     1          because he made such a statement.   That is an entirely

     2          different procedure, dramatically different procedure,

     3          from what obtains under the common law and in the United

     4          States and the United Kingdom and other places where the

     5          common law is applied.

     6                I think the matter is especially a problem because

     7          of the presence at the interview of Mr. Landzo of Ms.

     8          Teresa McHenry.   Ms. Teresa McHenry is a Prosecutor in

     9          this case and comes to this court from the United States

    10          Department of Justice.   I am convinced, and will be

    11          prepared to prove, if I am allowed to, that she was

    12          fully aware at the time this interview was taken of the

    13          difference that I have described between the training of

    14          the honourable Mustafa Brackovic and the kind of

    15          training and experience that she received in her law

    16          school education and her Bar examination and in her

    17          experience with the Department of Justice:  it is the

    18          almost inevitable case under US law that the only way

    19          that a statement is taken from an accused is either it

    20          is done before the accused has counsel, or if done after

    21          the accused has counsel, pursuant to a plea agreement

    22          that has been entered into with the prosecution, where

    23          that accused may become a prosecution witness and

    24          testify against other defendants similarly charged.

    25                It is my contention that, having this knowledge

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     1          and having this experience, it was at the very least the

     2          duty of Ms. McHenry to tell Mr. Brackovic, knowing his

     3          background, that before advising his client about

     4          whether or not to make a statement that he should at

     5          least consult with a lawyer from a common law

     6          jurisdiction as to the ordinary procedure in those

     7          jurisdictions when accuseds are called upon by the

     8          prosecution to make a statement.   She failed to do

     9          so.

    10                The situation that Mr. Landzo found himself in the

    11          day that the prosecutors came to take his statement was

    12          a situation that no defendant could ever find himself in

    13          in the United Kingdom or in the United States.   It

    14          could not happen in either of those two jurisdictions,

    15          because it could not happen without counsel agreeing,

    16          and that counsel would have to be counsel that was

    17          admitted to the Bar of those jurisdictions.

    18                To turn it the other way around, if I were to

    19          appear in the former Yugoslavia by myself to represent

    20          someone accused of an offence in the former Yugoslavia,

    21          my initial reaction, when called upon to decide whether

    22          my accused should make a statement to the prosecution or

    23          not, would be absolutely not.   Under no circumstances

    24          do you give a statement to the Prosecution.   If I took

    25          that position without consulting with Yugoslavian

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     1          lawyers, I would be taking the wrong position, and

     2          I would not be serving my client well, but I would not

     3          know that I would not be serving my client well.

     4          I would believe that I was doing the right thing.

     5                Mr. Mustafa Brackovic, when he advised Esad Landzo,

     6          believed that he was doing the right thing.   It turns

     7          out that that is not the case.   It turns out that the

     8          statement can, in fact, be used against Mr. Landzo, all

     9          other things being equal.   Mr. Landzo, of course, at the

    10          time was 20 or 21 years old, with absolutely no

    11          experience of any kind with the law, and was absolutely

    12          dependent upon his attorney, Mr. Mustafa Brackovic, to

    13          advise him properly.

    14                Please understand -- I need the Tribunal to

    15          understand very clearly that I am not in any manner

    16          attacking the competence of the honourable Mustafa

    17          Brackovic.   He is an extremely competent lawyer and any

    18          accused in the former Yugoslavia that would have him as

    19          an attorney would be well served, absolutely.   It is

    20          only in the situation that he found himself here that he

    21          was unable to give the kind of advice that any common

    22          law lawyer would automatically have given to Esad Landzo

    23          with regard to giving the statement.   Thank you very

    24          much.

    25      JUDGE JAN:   Just a minute.

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     1      MR. ACKERMAN:   Okay.

     2      JUDGE JAN:   Was your client advised that he had a right to

     3          remain silent and that if he made a statement, it would

     4          be used in evidence against him?

     5      MR. ACKERMAN:   Yes, your Honour.   He was absolutely advised

     6          of both of those things.

     7      JUDGE JAN:   Would that not put his counsel on guard?

     8      MR. ACKERMAN:   Maybe; maybe not.   My client had come from a

     9          situation in Yugoslavia where, if he did not give a

    10          statement, he would likely be beaten.   He had been here

    11          a very, very short period of time.   He was in a new

    12          surrounding, in a new prison.   He had no idea what the

    13          situation would be here.   So to the extent that he made

    14          any kind of a decision himself about whether or not to

    15          give a statement, I submit to your Honours that that was

    16          not an informed decision, that it was based on a lot of

    17          factors that turned out to be not true:  a fear factor,

    18          advice from his lawyer, all the things that were not

    19          true, and when you waive rights, when you waive rights

    20          like the prosecution is suggesting that my client waived

    21          here, it is not just the fact of a waiver that counts;

    22          it is whether or not it is an intelligent and knowing

    23          waiver of those rights.   I submit to your Honours that

    24          there was not an intelligent and knowing waiver of those

    25          rights in this matter.

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     1      JUDGE KARIBI WHYTE:   Actually it appears you are basing

     2          your argument mainly on the protection given to your

     3          client by his counsel.

     4      MR. ACKERMAN:   Absolutely.   It is being based on that, but

     5          let me say once again that it is not an attack on his

     6          counsel.   His counsel was doing exactly what he was

     7          trained to do and what he knew to do.

     8      JUDGE KARIBI WHYTE:   I agree.   I consider that.   Are you

     9          saying only those trained in the common law are

    10          qualified to act as counsel to accused persons in these

    11          circumstances?

    12      MR. ACKERMAN:   Absolutely not, your Honour.   I could not

    13          say that with a straight face sitting next to Mme

    14          Residovic, because I have watched her performance and it

    15          has been exemplary.   What I am saying is when the

    16          prosecution seeks to take a statement from the accused,

    17          if that accused is represented by an attorney who is

    18          unfamiliar with common law procedure, the prosecution

    19          has an additional duty to advise the defendant, the

    20          accused and the accused's attorney.   It is like if

    21          Mr. Brackovic were to go to the United States to

    22          represent a defendant in the United States.   The courts

    23          of the United States would not even permit him to appear

    24          on behalf of a defendant unless he had obtained local

    25          counsel familiar with the local procedure and rules.

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     1          He could not appear alone to do that.   This court

     2          should adopt some kind of a procedure.

     3      JUDGE KARIBI WHYTE:   Have you looked at Rule 44 on the

     4          appointment of qualified counsel?

     5      MR. ACKERMAN:   Yes, I have and I am very familiar with the

     6          Rule, and I am totally in agreement that Mr. Brackovic

     7          was appointed in accordance with that Rule and

     8          absolutely properly appointed in accordance with that

     9          Rule.

    10      JUDGE KARIBI WHYTE:   What then makes any lawyer so

    11          appointed incompetent to discharge his duties to his

    12          client?

    13      MR. ACKERMAN:   I really need to say to your Honour that I am

    14          not suggesting that Mr. Brackovic was incompetent to

    15          discharge his duties.   I am only suggesting to your

    16          Honours that there were matters that he did not know,

    17          that he would have known had he gotten even five minutes

    18          of advice from Ms. McHenry to talk to a common law lawyer

    19          before he advised his client to give a statement.

    20          I think Ms. McHenry took unfair advantage of Mr. Brackovic

    21          by not giving him that kind of advice.   She knew the

    22          background he came from.   She knew he did not have the

    23          grounding in common law procedure that lawyers from

    24          common law jurisdictions would have.

    25      JUDGE KARIBI WHYTE:   Actually this is the basis of your

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     1          argument.

     2      MR. ACKERMAN:   It is the basis of my argument, and please

     3          keep in mind, your Honour, all I am asking to do at this

     4          point is to file a motion to suppress.   I am not

     5          arguing whether or not there should be a suppression.

     6      JUDGE KARIBI WHYTE:   Your argument should be weighty enough

     7          in terms of the first application.

     8      MR. ACKERMAN:   I hope it is weighty enough for this court to

     9          permit me to file a motion to suppress, which we can

    10          then hear at a later time.   I would propose to put on

    11          some evidence to support it regarding statements I have

    12          made out of my own mouth here today that I think I would

    13          need to prove to the Tribunal to consider that motion.

    14      JUDGE JAN:   You are quite right to say before a waiver can

    15          be made the person making the waiver must be fully aware

    16          of what his rights are.   That is quite right.

    17      MR. ACKERMAN:   Thank you, your Honour.

    18      JUDGE KARIBI WHYTE:   Can we hear the prosecution?

    19      MR. OSTBERG:   Thank you.   I will let Ms. McHenry answer the

    20          severe allegations put forward against her, but before I

    21          do that, I would put one question to Mr. Ackerman.

    22          What, Mr. Ackerman, would you have founded your motion on

    23          if I had been present instead of Ms. McHenry?  I am from

    24          the civil law system and I am before a international

    25          court and not before a US court and I am living by the

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     1          standard of this Statute and these Rules.   What could

     2          you have put forward as argument if I had, instead of

     3          Ms. Teresa McHenry, been sitting there with Mr. Brackovic

     4          that day when the statement was taken from Mr. Landzo.

     5      JUDGE JAN:   But you come from a civil law system where no

     6          beating takes place.

     7      MR. OSTBERG:   I beg your pardon?

     8      JUDGE JAN:   You come from a civil law system where the

     9          accused is not beaten for not making a statement.   That

    10          is what he is suggesting.

    11      MR. OSTBERG:   This suggestion is unfounded.   How could it

    12          be put forward before this Tribunal that a thing like

    13          that could be imagined before this Tribunal? .   I am

    14          waiting for your answer, Mr. Ackerman.

    15      JUDGE KARIBI WHYTE:   Strictly speaking I do not know.   It

    16          depends on -- questions are not put to counsel

    17          directly.   If you are doing so through the court --

    18      MR. OSTBERG:   I do so through the court.

    19      JUDGE KARIBI WHYTE:  Or in making your submissions, you can

    20          do so.

    21      MR. OSTBERG:   I make the submission --

    22      JUDGE KARIBI WHYTE:   It can be part of your submissions and

    23          he will answer this.

    24      MR. OSTBERG:   I ask you, your Honour, to put forward my

    25          question to Mr. Ackerman.

Page 2741

     1      JUDGE KARIBI WHYTE:   No, I do not think so.   After your

     2          submissions there will be answers to those

     3          submissions.

     4      MS. McHENRY:   Your Honour, just briefly, and other than to

     5          say that the allegations against me and, in fact,

     6          I think, against all civil law attorneys are in their

     7          own turn unfair.   I will not specifically respond to

     8          the specific attacks made on me and my integrity and

     9          conduct in this case.

    10                With respect to the merits of this situation, I

    11          will point out that what the accused is, as your Honours

    12          have pointed out, suggesting is that all civil law

    13          attorneys are in effect incompetent to give advice to

    14          their clients in this Tribunal because this is a common

    15          law Tribunal.   I would take issue with both those

    16          allegations.   This is not a common law Tribunal.   It

    17          is a mixture of both civil and common law.   For

    18          instance, we do not have a jury.   That is one of the

    19          most obvious things.   It is not the prosecution's duty

    20          and, in fact, it is really not the prosecution's

    21          business to interfere.  In the same way that I would not

    22          suggest to a civil law attorney how to conduct their

    23          defence, or to an accused, I would not suggest to an

    24          accused that it is somehow improper to have two common

    25          law attorneys instead of a civil law attorney.

Page 2742

     1                It is absolutely not the prosecution's business to

     2          give unsolicited advice.   The Rules were set up by

     3          these judges of this Tribunal, and, in fact, even by the

     4          UN with the Statute, in which certain rules were clearly

     5          laid out, and it is, of course, understood that there is

     6          no lawyer who comes from this particular system, unless

     7          at this point we get some of the Tadic lawyers, because

     8          it is a new system.   That is why the Rules are set out,

     9          and with respect to certain things, including the

    10          accused's rights with respect to interviews, the Rules

    11          are so very clear.   The Rules were made such that

    12          anyone, no matter what their system and what their

    13          background, can understand what is being said.

    14                In this case the Rules were followed in every

    15          respect.   I will also point out that Mr. Landzo had been

    16          in The Hague for over a month, approximately a month,

    17          I believe a month and two days, prior to his giving the

    18          statement.   I do not believe that there can be any

    19          allegation that he thought he would be beaten if he did

    20          not give one.  I also believe that it is clear that

    21          defence counsel consulted with Mr. Landzo before there

    22          was a decision made to do this.   I also point out as a

    23          matter of fact, although we emphasise that the law in

    24          any country is not controlling, that it is not correct

    25          that in Yugoslavia, at least as experts in Yugoslavian

Page 2743

     1          law have told us -- it is not correct that people are

     2          required to give statements, nor is it correct that if

     3          an accused gives a statement to, for instance, the

     4          investigating magistrate, that he can later decide

     5          whether or not to use that statement.   My fellow

     6          colleagues also tell me that it is the same thing with

     7          respect in other civil law systems.   It is not correct

     8          that an accused can always choose that.

     9                I will also just point out that even before

    10          Mr. Landzo decided to provide a statement, he had learned

    11          -- well, the defence counsel of Delalic had filed a

    12          motion seeking to exclude the first statement made by

    13          Mr. Delalic, in which it is abundantly clear that there

    14          is a difference between Yugoslavian -- there may be --

    15          there are allegations -- between Yugoslavian law and

    16          Tribunal law, and that was also known, and what the

    17          accused -- what the defence is doing is suggesting that

    18          what happens in the US, in which it may have been -- it

    19          may be that an accused would choose not to do so, must

    20          apply.

    21                I would point out that in this case this is not

    22          the US and, in fact, it may not even have been a

    23          decision -- I mean, a bad decision, but in any event it

    24          was an informed, knowing and voluntary decision, and

    25          just because new counsel comes in and has a different

Page 2744

     1          opinion, maybe based correctly or incorrectly on his own

     2          system, means that the initial waiver was somehow

     3          improper, involuntary or unknowing.  To the contrary,

     4          the record is very clear, and it is conceded that the

     5          Rules and the warnings, which are obvious on their face,

     6          were given and understood by all counsel.

     7                I will also just specifically with respect to the

     8          good cause motion point out that there has been a

     9          significant length of time in which common law attorneys

    10          have been part of this case, and though we reject

    11          entirely the notion that civil law attorneys cannot

    12          understand, or an accused himself cannot understand, the

    13          clear meaning of these rules, it has been the matter for

    14          several months that a common law attorney has been

    15          associated with this case, and to allow two months or

    16          more into trial allegations such as these, which we

    17          think are clearly lacking in merit on their face, to

    18          constitute good cause would really be a miscarriage of

    19          justice.   Thank you.

    20      MR. ACKERMAN:   Your Honours, I have just two very brief

    21          matters to give you in response.   The first is that it

    22          is now clear from what Ms. McHenry has told you that

    23          there is a factual dispute about what the law was in the

    24          former Yugoslavia, and that can only be resolved by

    25          documents or witnesses, if I am permitted to file the

Page 2745

     1          motion to suppress, and I would propose to do that, if

     2          the motion is permitted.

     3                Ms. McMurrey (sic) also told you that it is not the

     4          job of the prosecution to give the defendant, the

     5          accused, unsolicited advice, but if you read the very

     6          beginning of Mr. Landzo's statement, that is exactly what

     7          happened.   Mr. Landzo did not solicit any advice from

     8          the prosecution at all, but the prosecution did give

     9          advice.   That advice was, and it is not as clear, I do

    10          not think, as it should be -- that advice was:

    11                "You are not obliged to say anything unless you

    12          wish to do so, but whatever you say will be recorded and

    13          may be given in evidence."

    14      JUDGE KARIBI WHYTE:   There is a duty --

    15      THE INTERPRETER:  Microphone please.

    16      MR. ACKERMAN:   I am sorry, your Honour?

    17      JUDGE KARIBI WHYTE:   There is a duty for anybody

    18          interviewing a suspect or an accused person to tell him

    19          those things.   It is not necessarily advice.

    20      MR. ACKERMAN:   It is unsolicited advice.   There is a Rule

    21          saying it must be given and must be given in a way the

    22          defendant understands it.   There is also a Rule saying

    23          they must advise he will be assisted by counsel and

    24          counsel will be appointed for him if he cannot afford

    25          counsel.   All I am suggesting to this court is, in the

Page 2746

     1          process of giving that unsolicited advice, I think there

     2          should have been some additional unsolicited advice that

     3          I have already suggested to the court.

     4                Now I understand that my colleague, Mr. Greaves,

     5          would like to address the court regarding a perspective

     6          that may be different from mine in this regard.   Thank

     7          you.

     8      JUDGE KARIBI WHYTE:   In respect of this motion?

     9      MR. GREAVES:   I really want to wear my amicus hat this

    10          morning and assist the court with what I hope are

    11          helpful observations.   I am not taking part in the

    12          substance of the argument.   If the court would welcome

    13          such assistance, I would like to give it, if I may.

    14      JUDGE KARIBI WHYTE:   You can do so.

    15      MR. GREAVES:   Your Honours, it is entirely right what the

    16          prosecution says about the Rules of Procedure and

    17          Evidence in this court, that they are drawn from two of

    18          the great traditions of law, the common law and the

    19          civil law.   Anybody who, as I have, over the last eight

    20          weeks, learned a considerable amount about the civil law

    21          -- any common lawyer in those circumstances will

    22          understand that both the common law and the civil law

    23          have considerable advantages and considerable

    24          disadvantages, and my respect for civil lawyers and

    25          civil law grows by the day.   There are some aspects of

Page 2747

     1          it that I do not care for as a common lawyer, but that

     2          is another matter altogether.   The fact is our Rules of

     3          Evidence and Procedure are drawn from both systems,

     4          although it might be said that the common law has had a

     5          greater input into the Rules than perhaps the civil law

     6          has.   That is perhaps an argument for academics in due

     7          course.

     8                However, the Rules that have been drawn up for the

     9          protection of suspects in connection with their rights

    10          to counsel and what should happen during the course of

    11          interviews and so on and so forth are, in my submission,

    12          drawn almost exclusively from the common law tradition

    13          and any common lawyer picking up the Rules of Evidence

    14          and Procedure in this Tribunal would instantly be

    15          familiar with those particular aspects of the Rules.

    16                In my submission it is very likely, therefore,

    17          that this Tribunal would want to look at the way in

    18          which common law jurisdictions -- for assistance common

    19          law jurisdictions interpret and apply such laws in order

    20          to come to their own determination as to what the Rules

    21          mean and how it should be applied by this Tribunal

    22          applying its own Rules.

    23                I go on to say this:  The consequences of the

    24          warnings that are given typically in common law

    25          jurisdictions are both very important and are not

Page 2748

     1          straightforward, and indeed in most jurisdictions there

     2          is quite a degree of subtlety to them.   It comes to

     3          this:  where you have someone from a civil law

     4          jurisdiction, those subtleties and the degree of

     5          importance and the consequences and effects of the

     6          warnings and the failures to give them, if those take

     7          place, are matters which a common lawyer is, I have to

     8          say, very much better placed than his civil law

     9          colleague in giving advice to the defendant when he is

    10          being interviewed, and what he should say, whether he

    11          should say anything at all.

    12                So plainly the proposition that is being put is a

    13          civil lawyer is just as competent to advise them as a

    14          common lawyer.   It may not be seen to be entirely

    15          right, and I hope that the court will bear that in mind

    16          when coming to its determination on this issue.

    17                Can I add this:  there has been some exchange of

    18          views about the duties of various members of the

    19          prosecution team, the defence team and so forth.   I do

    20          not enter into those.   Can I just give your Honours my

    21          experience as a practitioner in the courts of England

    22          and Wales?  If I was to come across a young member of

    23          the Bar who was plainly inexperienced and plainly about

    24          to do something to the detriment of his client, I would

    25          not take advantage of that.   Instead, I would take him

Page 2749

     1          or her into one corner and give him some sound advice,

     2          as the Prosecutor -- sorry, not as the Prosecutor but as

     3          an officer of the court and a member of my profession,

     4          and say to that person: "Look, you are about to make a

     5          serious mistake which is going to harm your client.   My

     6          advice to you is either to seek advice from another

     7          member of the Bar or to do this."

     8                I would regard that as my duty, because my duty as

     9          a prosecutor is not to ensure a conviction at all costs,

    10          but to ensure that right and justice is done.   I hope

    11          that does not sound pompous, but it was something that

    12          was drilled into me from the very first day I joined

    13          this profession over 20 years ago.   It might be

    14          suggested if that is accepted as a proposition, then my

    15          learned friend for the prosecution, Ms. McHenry, might be

    16          thought to have a duty over and above that of being a

    17          Prosecutor.

    18                If there is anything I can assist you with any

    19          further, I will, of course, do so, but that is all

    20          I have to say.

    21      MS. RESIDOVIC (in interpretation):   Your Honours, may I join

    22          in the discussion of this issue, please?

    23      JUDGE KARIBI WHYTE:   Yes, you can.

    24      MS. RESIDOVIC (in interpretation):   Like my honourable

    25          colleagues, I also believe that we should ensure that

Page 2750

     1          this trial is fair and just in regard to all the

     2          defendants.   For this reason the defence of Mr. Delalic

     3          attempted on several occasions to indicate to this Trial

     4          Chamber certain lacks and deficiencies in the rules like

     5          Rule 89B.   As we all understand, this Tribunal is not

     6          bound by the international law, and we all have to

     7          respect the fact and appreciate that we are all coming

     8          from a certain legal tradition, and if this Trial

     9          Chamber wants this trial to be fair and just, it should

    10          bear this in mind, so that the trial should proceed in

    11          such a manner.

    12                I did not understand the submission of my

    13          colleague, Mr. Ackerman, as a critique or a comment on

    14          incompetence of all the lawyers who are coming from a

    15          different legal system.   I think that he was just

    16          trying to point to this Trial Chamber some things that

    17          ourselves and our clients have done; it is not ignoratia

    18          legis nocet.  In other words, we did these things

    19          because we did not know certain things and this could be

    20          detrimental to our clients.   We may have done certain

    21          things precisely because we may know certain things

    22          quite well, because they are part of our tradition, our

    23          legal systems in the countries that we are coming

    24          from.

    25                Besides the motion that we filed to exclude the

Page 2751

     1          first statement given by Mr. Delalic in Vienna, we were

     2          expecting to be given an opportunity to discuss these

     3          arguments in terms of voir dire, where we would call an

     4          expert in the criminal law from the territory of the

     5          former Yugoslavia, not from Bosnia and Herzegovina or

     6          even Croatia and Serbia, who may have been parties to

     7          the conflict, which this case is covering, but rather

     8          from Slovenia.   So I think it would be extremely

     9          important that our colleagues would be given an

    10          opportunity to produce such experts, persons who would

    11          explain what the legal practice and legal experience

    12          means as rights to the lawyer and a warning of the

    13          lawyer to his client as to what he should or should not

    14          do.

    15                Now I would like to respond to the comments made

    16          by my colleagues from the prosecution.   I myself spent

    17          part of my career as a Prosecutor, and I am able to

    18          submit to you, and we can produce experts to confirm

    19          this, that any statement given to the police or the

    20          investigating magistrate is immediately sealed and can

    21          never be used either to the advantage or -- either in

    22          the interest or against the accused unless the accused

    23          explicitly asks for that.

    24                When we first started working on this case, we did

    25          not know every detail about the procedures.   So I would

Page 2752

     1          like to request of the Trial Chamber and in order to

     2          respect the Article 21 to allow this argument to be

     3          presented so that in the future we would have a

     4          different way of presenting our case.   Then, bearing in

     5          mind all this, the defence of Mr. Delalic submitted a

     6          motion on 28th December asking for amendment of certain

     7          Rules to amend the procedure, because a number of

     8          issues, when I present them, you may not understand

     9          them, and when my colleagues from the common law systems

    10          present them, I may not understand them.

    11                In a hearing at which you presided, when I asked

    12          about the active role of my client, which I understood

    13          to mean that he could actively become involved in the

    14          case in confronting witnesses, asking questions of the

    15          co-defendants, the ultimate Ruling was that he could not

    16          do it unless he does it through my mouth as his defence

    17          representative.   Again I would like to point out our

    18          colleagues from the common law systems, I do not think

    19          they have critiqued us.   I just think they are pointing

    20          to the differences within the legal systems and this all

    21          points to the issue of the fair and just trial.   Thank

    22          you, your Honours.

    23      JUDGE KARIBI WHYTE:   Thank you very much, Ms. Residovic.

    24      MR. MORAN:   Your Honour, since I have almost an identical

    25          motion coming up next, if I can talk that now, and we

Page 2753

     1          could possibly save the Tribunal a little time.

     2      JUDGE KARIBI WHYTE:   You mean whether you are contributing

     3          to this motion or you are moving your own motion?

     4      MR. MORAN:   Your Honour, it is essentially the same thing.

     5          I think we can probably save a little time if we did

     6          them together, or at least let me state my position,

     7          help on this motion and at the same time save a bunch of

     8          time on the next motion, rather than having to repeat

     9          it.

    10      JUDGE KARIBI WHYTE:   You can combine them since they still

    11          come to the same thing, although they might differ in

    12          certain respects.

    13      MR. MORAN:   Your Honour, first I would adopt what Judge

    14          Ackerman had to say with a couple of additions and

    15          deletions.

    16                The first thing is: Rule 73 provides that these

    17          motions need to be filed within 60 days after the

    18          initial appearance.   One of the statements they want to

    19          introduce was taken more than 60 days after the initial

    20          appearance.   Under that strict application of the Rule

    21          you could never try to exclude it.   So the Rule has to

    22          have some flexibility there.

    23                Secondly, we have talked about our Rules here

    24          coming from different sources and they have, but they

    25          did not just spring full blown.   For instance, Rule 73

Page 2754

     1          is very, very familiar to me as an American

     2          practitioner, because it reads almost identical to

     3          Federal Rule of Criminal Procedure 12, I believe.   They

     4          are almost copied from each other.   The same thing with

     5          Rule 42.   The warnings in Rule 42 read a whole lot like

     6          our warnings in the case of Miranda versus Arizona from

     7          the United States Supreme Court.   In fact, I am told,

     8          although I have not read it, in response to a motion

     9          from Mr. Delalic last year the prosecution cited Miranda

    10          a lot of times and relied on Miranda.   Now, with that

    11          said, I will be real frank with the court as an officer

    12          of the court.   When I got here and found that Mr. Delic

    13          had given a couple of statements, the first thing I did

    14          was uttered an obscenity and just set it aside until

    15          I started thinking -- talking to Judge Ackerman after he

    16          arrived here a few weeks ago.

    17                What we have is a situation where for one reason

    18          or another apparently the former Yugoslavia adopted a

    19          procedure where a statement made to the police -- by the

    20          way, I think we need to draw a distinction between the

    21          police and the investigating magistrate, who are two

    22          different parties -- as I understand the law in the

    23          Yugoslavia it has to do with a statement to the police

    24          and not the investigating magistrate, which is a court

    25          proceeding.

Page 2755

     1                I don't know why the former Yugoslavia adopted

     2          that rule.   It probably has to do to some great extent

     3          with the history of that country and the history of that

     4          part of the world and possibly abuses of human rights

     5          that occurred at some time in the history of Yugoslavia

     6          and other Eastern European countries, but suffice to say

     7          that that was the rule.

     8                Sitting next to me is my good friend, my lead

     9          counsel.   He is a fine lawyer and I would not want

    10          anybody to think that he was not a fine lawyer or that

    11          I thought that he was not a fine lawyer, but the fact is

    12          he was thrown into a situation involving a legal system

    13          with entirely different procedures and, especially as it

    14          applies to statements to investigators, something that

    15          is entirely different from what he was used to.

    16          Without violating the attorney-client privilege, there

    17          is a statement by Mr. Delic attached to our motion that,

    18          after consulting with counsel, he believed that the

    19          situation was similar to that in the former

    20          Yugoslavia.   Now we attempted to get that sworn to, but

    21          apparently the Registrar did not feel they could swear

    22          him to that.   He is willing to file that as an

    23          affidavit.

    24                With that said, I think we need to take a look at

    25          the voluntariness of any kind of waiver of his rights

Page 2756

     1          under Rule 42, and what is it, 66, the Rule having to do

     2          with questioning of accused.   Rule 63.   Again I have

     3          to dance around this a little bit because of the

     4          attorney-client privilege and I do not want to violate

     5          that.   I think that Mr. Delic, if called upon for the

     6          limited purpose of testifying as to this, would testify

     7          consistent with his written statement.

     8                Finally, without trying to even come close to

     9          making a personal attack on my good friend Ms. McHenry,

    10          as I understand it, each one of us here, as lawyers, are

    11          bound by our ethical proceedings by our country, as our

    12          licensing authority.   So I am, for instance, bound by

    13          what the Texas Supreme Court says is my ethical

    14          obligations and Mr. Greaves would be bound by what the

    15          ethical considerations would be in the United Kingdom,

    16          etc.

    17                Well, our American Bar Association has model rules

    18          and those model rules have been adopted by just about

    19          every state in the country.   One of the things they

    20          talk about is the duty of a Prosecutor.   What they say

    21          is that the duty of a Prosecutor is not to gain

    22          convictions but to see that justice is done.   Again I

    23          am not trying to make an attack on anyone's ethics, but

    24          at some point, when someone is obviously unfamiliar with

    25          what is going on, either we have an obligation to say

Page 2757

     1          "Time out", or what occurs on the other side of it is

     2          we may have to take a look at the advice that was given

     3          and to see whether that advice by an attorney is the

     4          proper advice.   If it is not, then we have to see what

     5          the ramifications of that are.   If the ramifications

     6          were that a waiver is not a knowing, intelligent waiver,

     7          then we have to deal with that.   With that, your

     8          Honour, unless the court has some questions, I think I

     9          will just sit down and try to save the court -- like

    10          I say, I am just trying to save the court a little bit

    11          of time.

    12      JUDGE KARIBI WHYTE:   If you have other things to say, let

    13          us hear it.

    14      MR. MORAN:   Your Honour, I am done.

    15      MS. McHENRY:   Your Honour, again first let me state that the

    16          prosecution, myself included, but lead counsel and

    17          everyone else certainly agrees that the prosecution has

    18          a duty to truth and justice and not to gain a conviction

    19          at any cost, but we do not believe that there is

    20          anything here that suggests in any way, shape or form

    21          that there has been any straying from that fundamental

    22          principle, which is that the prosecution, both as

    23          officers of the court, as officers of their own system,

    24          and even as members of the Tribunal, have an obligation

    25          to ensure that justice is done.   That is certainly our

Page 2758

     1          aim, and we have demonstrated in many ways and there is

     2          nothing in this case which should cast doubt on that,

     3          because in effect what the defence is saying is that

     4          civil law attorneys, or at least attorneys from the

     5          former Yugoslavia, are not competent to give proper

     6          advice in this case, that they are not competent and

     7          really that accused are not competent to waive their own

     8          rights.

     9                We think that is entirely incorrect.   Had the

    10          judges wanted to state in the Rules: "No accused can

    11          ever give a statement because it is unfair", or:  "No

    12          accused can ever give a statement unless they first talk

    13          with a US lawyer", or something like that -- they did

    14          not.

    15                The Rules state very clearly that an accused must

    16          be informed of his rights, and that the accused must

    17          knowingly and voluntarily waive those rights.   We

    18          believe that the record will show that was done in this

    19          case.   The fact that attorneys may have come and have

    20          different strategy decisions which may or may not be

    21          right even is not a reason to do it.   I will also point

    22          out, although certainly as Yugoslavia law, whatever it

    23          is, is not controlling at this court, and there had been

    24          some discussion whether or not this Tribunal should

    25          adopt the Rules and Procedure of Yugoslavia and this

Page 2759

     1          Tribunal has said: "No.  We are going to adopt

     2          fundamental rights which can be understood by anyone, no

     3          matter what their system", and the Tribunal has done

     4          this.   Those rights were followed in all respects in

     5          this case.

     6                We do not -- I would also point out that the

     7          rights, specifically with respect to the rights of the

     8          accused, do not come from common law countries, although

     9          they may be familiar to people from common law

    10          countries, because we have similar things; they come

    11          from the European Convention of Human Rights.   So they

    12          may also come from the US, but it is not as from the US

    13          or England and even other common law countries.   They

    14          are unique.   The fundamental rights come from the

    15          European Convention of Human Rights, which apply in

    16          European and most other countries.

    17                Specifically with respect to Mr. Delic, let me

    18          respond to that for one minute.   I assume your Honours

    19          have received our responses both to Mr. Landzo's and

    20          Mr. Delic's, which were filed yesterday.   If not, I can

    21          go into our response in more detail, but in general we

    22          do not want to just repeat everything we said in our

    23          motion.   With respect to Mr. Delic, as with respect to

    24          Mr. Landzo, the issue is what constitutes good cause, and

    25          certainly the prosecution would agree if a statement is

Page 2760

     1          made 60 days after the initial appearance that could

     2          constitute good cause, for instance within reason some

     3          period of time close to when the statement was made.

     4                The second statement of Mr. Delic, which was made

     5          at his request, was made in January, in the beginning of

     6          January.   In fact, counsel, as he himself has conceded,

     7          came soon thereafter in January, and had they wanted to

     8          raise it then they could have.   What has happened is a

     9          new strategy decision has been made again without saying

    10          what in the end would turn out to be best for the

    11          accused -- I do not think anyone can know that now --

    12          and so they have decided to try to argue good cause.

    13          The asserted reason given in Mr. Delic's motion was a

    14          ruling by this Trial Chamber that involuntary statements

    15          are admissible.   Without repeating everything, we do

    16          not believe that this was a new finding by the Trial

    17          Chamber.   We believe that it is a fundamental principle

    18          of law, and had Mr. Delic or any of the accused wished to

    19          make a claim based on this statement, they could have,

    20          and no one would have argued that the law was anything

    21          other than that.   So we do not believe that anything

    22          they recently have constitute good cause.

    23                We again, with respect to Mr. Delic, so the record

    24          is clear -- both interviews of Mr. Delic were done in

    25          full accordance with the Tribunal Rules of Procedure.

Page 2761

     1          The accused and counsel were informed of all their

     2          rights.   This is all on the record.   They were

     3          specifically told this statement could be used in

     4          evidence.   If there were any questions,

     5          misunderstandings, confusion, they could have been

     6          asked, they could have been followed up, but they were

     7          not, because the accused and his counsel voluntarily

     8          chose to waive them.

     9                We point out some specific facts in our motion

    10          such as even by the time of the second interview the

    11          prosecution had already told the accused that they would

    12          use his statement in evidence against him.   That had

    13          already been done, and we believe that there cannot be

    14          any credible showing that Mr. Delic's statement was

    15          anything other than voluntary, knowing and

    16          intelligent.   Excuse me, your Honours.

    17                My civil law colleagues also just state that it is

    18          not incorrect in most civil law systems that the accused

    19          is expected to talk and it is not true that the accused

    20          can decide whether his statement will be used or not,

    21          and that the statements also made to the Prosecution

    22          here should not be compared with statements given to the

    23          police in civil law countries.   Thank you.

    24      MR. MORAN:   Your Honour, a couple of quick things in

    25          response.   First, I think that the court will, if it --

Page 2762

     1          will hear some evidence from Mr. Mucic that he was given

     2          some warnings by a Magistrate in Vienna that essentially

     3          said: "If you don't make a statement to the police,

     4          things are going to go hard on you."  Austria is a

     5          common law country -- excuse me -- civil law country.

     6                Secondly, it has been my experience, and I have a

     7          case involving my law firm that was just delivered to me

     8          Monday which supports this, that when there is a mistake

     9          by a lawyer and that mistake affects the trial, the

    10          courts tend to try and go and fix it.

    11                The case I am thinking of is a case on May 1st of

    12          this year where a Federal Judge in my jurisdiction

    13          vacated a death sentence on one of our clients because

    14          the trial lawyer did not understand the application of

    15          the law in his trial in 1982 -- I believe it was 1982.

    16          I am willing to provide a copy of the Decision to the

    17          court.   It is in my hotel room. I can go over at lunch

    18          and get it copied.   What we are asking for is a chance

    19          to show if there was a misunderstanding of the law on

    20          the part of counsel and whether that misunderstanding of

    21          the law led my client to waive, and that is in

    22          parentheses, rights, not understanding what they were.

    23          If there was, in fact, this misunderstanding of the law

    24          and if, in fact, that was a material part of the

    25          proceeding -- caused a material effect in the

Page 2763

     1          proceeding, then we can fix it.   We can fix it now.

     2          We do not have to wait -- in the case of my client this

     3          means fifteen years -- to fix it.   We can fix it right

     4          now.   Thank you, your Honour.

     5      JUDGE KARIBI WHYTE:   Actually when we concluded in the

     6          Mucic case and subsequently applications came tumbling

     7          in, actually I thought it was understood that what was

     8          being discussed in each case was whether a statement

     9          made by a suspect under certain conditions of coercion,

    10          fraud or force could be rejected on those grounds.

    11          This was, I thought, the common law Rule.   If that was

    12          the case, these factors have to be tried, and the

    13          prosecution which took the statements has to justify

    14          that there was no such coercion or fraud.   This is the

    15          understanding in the common law world about trying a

    16          statement which has been tainted with these vices.

    17                What I now hear, what is being submitted to the

    18          Trial Chamber, are matters going beyond a question of

    19          the validity of the statements themselves which were

    20          voluntarily made.   What is being argued is the motive

    21          for the voluntariness, why it was voluntary.   That is

    22          quite a different matter from whether, in fact, anybody

    23          induced the accused or suspect to do certain things.   I

    24          do not know.   This might be a new aspect of it all, but

    25          I think it is fairly different from the general rule.

Page 2764

     1          I admit the contention and especially when you talk

     2          about the position of the prosecution.   At least those

     3          who come from the common law experience, and I hear

     4          Mr. Christmas Humphries, as he put it, wanting justice

     5          first, justice second, conviction a very bad third,

     6          I think this is what everybody wants.   Nobody goes at

     7          conviction as a major factor.   It should be what the

     8          facts themselves disclose.

     9                From the arguments which we have heard you are

    10          going beyond the question of whether these witnesses

    11          were induced to give this evidence or were coerced to

    12          give these statements.   They are quite different

    13          things.   I do not know.   We still have to rule on the

    14          matter despite what it is.   It might be fairly

    15          difficult to talk about the question of voluntariness

    16          outside the grounds on which it has now been raised,

    17          because what Judge Ackerman has been stressing is

    18          perhaps the suspect did not have the best advice, so he

    19          was unable to give the best opinion which enabled him to

    20          exercise his choices.

    21                This is what I understand it to mean.   If he had

    22          got the best advice or the appropriate advice, he would

    23          have exercised his options properly.   He would not have

    24          made the statements as he has done.   It appears that

    25          Mr. Moran is not too far away from that same approach.

Page 2765

     1          That is what their clients understood from their

     2          background, and what they were familiar with was quite

     3          different from what we call it, and the result is they

     4          were making decisions unfamiliar with what they were

     5          required to do.

     6                Now I do not know how the Rules could have known

     7          and then particularly allowed every accused person to

     8          carry his own law around him.   It was not so done.

     9          What the Rules state was to formulate a general rule

    10          which could be applicable to everybody who came before

    11          the Tribunal, or who is affected by the exercise of

    12          jurisdiction by the Tribunal.   This is what they convey

    13          and this is why we have our provisions even up to Rule

    14          95, allowing evidence which was obtained improperly

    15          under current international law to be retracted, if it

    16          became necessary.   That is quite different from whether

    17          the evidence itself was voluntarily made.   It could be

    18          voluntarily made but it could be excluded if it

    19          contravened all the internationally made human right

    20          provisions.  That is a different thing.   (Pause).

    21                Gentlemen, I think we will give a Ruling when we

    22          come back after the break.   So we will now hear counsel

    23          for Mucic.

    24      MR. GREAVES:   Your Honours, what I have got to say is -- I

    25          am sorry.   My learned friend has popped up.   She

Page 2766

     1          plainly has something urgent to tell us.

     2      MS. McHENRY:   Your Honour, if it is the case that Mr. Greaves

     3          is going to speak to the actual motion about these

     4          statements, I would just state that the prosecution has

     5          not responded in part because it goes into details about

     6          what happened in Austria and Austrian law, and we

     7          anticipate that we will be able to have a full and

     8          complete response by the end of this week, and we do not

     9          believe that it is necessary for this Chamber to decide

    10          Mr. Mucic's motion at this moment.   We are -- after

    11          witness O we are going to have a witness who, because of

    12          the -- one, because of the severe allegation made, we

    13          want to clarify at least one part of what happened,

    14          which is what happened -- what the Office of the

    15          Prosecutor did, but with respect to the full evidence

    16          about this, including subsequent events and even

    17          potentially what happened with respect to the Viennese

    18          authorities, that may require a little time.   So

    19          obviously we will respond as much as we are able to

    20          whatever Mr. Greaves says about that issue, but with

    21          respect to our full response, we would be requesting at

    22          the minimum to supplement our response later on.   Thank

    23          you.

    24      JUDGE KARIBI WHYTE:   Actually, my understanding, and

    25          I think it is the correct law, is when such an

Page 2767

     1          allegation has been made about certain things done to

     2          his client, it is for you to justify that those things

     3          have not been done.  All the evidence necessary to show

     4          us that the witness made his statement voluntarily, he

     5          was not induced to do it, will be produced by you, and

     6          all counsel needs to do is to cross-examine you to show

     7          that it was not voluntary.

     8      MS. McHENRY:   Yes, your Honour.   I was not disagreeing with

     9          that or that procedure.   I was just saying with respect

    10          to certain -- and I was not suggesting that he was

    11          obligated to put on evidence about this matter.

    12      MR. GREAVES:   Thank you.   The matters raised by my learned

    13          friend bring me to the end of what I was going to say

    14          first rather than later.   If I can explain this: the

    15          contention that we have is that the process by which

    16          certain oral statements were procured from the defendant

    17          Mucic by the Office of the Prosecution are affected not

    18          just by allegations that I have to make to OTP

    19          investigators but by the whole of what had happened from

    20          the moment of his arrest on 18th March, and that

    21          involves the procedures of the Austrian Police and the

    22          Austrian courts, and then the sudden switch from the

    23          procedures and rights advised to him by the courts there

    24          -- the sudden switch to the procedures of the Rules of

    25          Procedure and Evidence that are applicable to interviews

Page 2768

     1          by the officer of the prosecution under rules 42 and

     2          43.

     3                So the position is this, and I have tried to

     4          explain this to the prosecution, and I fear that they

     5          have not understood it.   As your Lordship will recall,

     6          I addressed you last week on what I considered, and

     7          I hoped was going to be taken on board, the appropriate

     8          way in which to adduce evidence and for the issue of the

     9          admissibility of these statements to be tried by your

    10          Honours.   The only way in which your Honours are going

    11          logically to be able to understand the points that are

    12          raised by the defendant Mr. Mucic, and I on his behalf,

    13          are by hearing the case, the evidence, in proper

    14          chronological order.

    15                If the prosecution call Mr. Abribat and Mr. d'Hooge

    16          out of order before the Austrian police officer, your

    17          Honours are not going to understand this motion for a

    18          moment.   It is simply going to be completely

    19          incomprehensible.   I say that because I spent yesterday

    20          in the City of Vienna in the company of distinguished

    21          lawyers of the Austrian Bar.

    22                Firstly, there are matters of law that are going

    23          to have to be placed before your Honours, and I say to

    24          the prosecution now I anticipate, I hope, being able to

    25          designate an Austrian lawyer as an expert witness, who

Page 2769

     1          can assist your Honours, because you are going to need

     2          assistance as to what Austrian law is and what rights

     3          are accorded to persons who are arrested and accused, so

     4          that your Honours may better understand the state of

     5          mind of the defendant and also apply Rules 89D and Rule

     6          95.   Without hearing such evidence, your Honours are

     7          not going to be able to rule properly on this motion, a

     8          motion which is based both in law and in fact.

     9                Secondly, there are two witnesses as to fact whom

    10          I have discovered.   I have not yet had an opportunity

    11          to take from either of those witnesses a witness

    12          statement in connection with matters which took place in

    13          Vienna.   Until I am in possession of such a statement,

    14          I am not in a position to cross-examine properly either

    15          Mr. Abribat or Mr. d'Hooge.   There will be matters -- it

    16          may be neither of those witnesses helps me, but until

    17          I know what the position is, I simply cannot properly

    18          advance the case for the defendant.

    19                Thirdly, this morning I know -- and I am not

    20          criticising the prosecution in any way -- it was by

    21          mischance that material was placed in the wrong locker

    22          for the court for me.   I can hold it up for your

    23          Honours to see.   (Indicating).  It is that thick.   It

    24          concerns events that took place at Vienna.   Although

    25          much of it was translated, it was given to me shortly

Page 2770

     1          before your Honours came into court this morning.

     2          I simply have not had time to digest or understand what

     3          is contained in here or consider the implications of

     4          these documents and what implications they may have for

     5          my motion that I have placed before the court.   It may

     6          be that I would have to either amend or add to the

     7          motion to make it more comprehensible for your

     8          Honours.

     9                The next matter is this, and I now return to where

    10          I started, it is the proper procedure for determining

    11          the admissibility of Mr. Mucic's statement to the

    12          Austrian Police and the statements which he made to the

    13          Office of the Prosecution.   There has been some

    14          discussion in previous motions as to the way in which

    15          one holds a voir dire.   I am sure that both your

    16          Honours, who come from common law jurisdictions, will

    17          recall the procedure in trials for those before your

    18          Honour's courts in practice and as members of the

    19          judiciary.

    20                When an issue of admissibility is raised, the

    21          usual procedure in the common law jurisdictions, and I

    22          am sorry to harp on about common law jurisdictions to

    23          the disadvantage of my civil law colleagues across the

    24          way, but I hope you will bear with me for a moment, the

    25          procedure is this:  when the prosecution seeks to

Page 2771

     1          adduced contested evidence, evidence that is contested

     2          as to its admissibility, it should call that evidence

     3          and hear cross-examination of its own witness.   There

     4          is then an opportunity, if so advised, for the defence

     5          to call evidence, and it is called a trial within a

     6          trial.   So it is a trial of an issue , to call evidence

     7          on his own behalf as to what took place.

     8                That is the procedure that I urge on the court as

     9          being the most expeditious and fair way to dispose of

    10          this matter.   I say that because my submission to the

    11          court is this: the only way in which this court can

    12          properly and justly determine the issue of admissibility

    13          is to hear the prosecution's witnesses on this issue in

    14          a proper and logical order; otherwise your Honours are

    15          simply going to be left in the dark.   If your Honours

    16          are left in the dark, my client is not going to get

    17          justice.

    18                My submission to your Honours is that I know the

    19          prosecution are anxious to get on with their evidence,

    20          but I have noted in one of the motions or documents that

    21          has been served through the court this morning that they

    22          are keen for this evidence to be heard as soon as

    23          possible.   I ask this question: what is the hurry?  Why

    24          do we need to hurry this procedure?  I have raised what

    25          is a prima facie and serious matter.   The prosecution

Page 2772

     1          seem determined that it should be heard with unseemly

     2          haste.

     3                I would respectfully suggest to your Honours that

     4          you must now control the adducing of this evidence in a

     5          way that is just and proper and is best designed to

     6          assist your Honours to determine the issue fairly and

     7          properly, both in the interests of the defendant and,

     8          let me say it, in the interests of the prosecution.   I

     9          am not sure that they have understood the help that

    10          I have tried to give them, and help I have tried to

    11          do.   It is not in my interest to try to pull a trick on

    12          them or a fast one in any way.   I have tried to help

    13          them to understand how to do it in order for you to

    14          determine it, and it may be you determine in the

    15          prosecution's favour.   I know not.

    16                Unless it is done properly, a serious triable

    17          issue is going to be tried badly and unjustly.   My

    18          submission is quite clear:  this matter should not be

    19          heard now.   It should be heard in its proper way by the

    20          court.

    21                I support what is said about the question of

    22          Austrian law and it is plain that this matter in its

    23          totality has not been prepared either by the prosecution

    24          or by myself.   I make that quite plain.   Some of the

    25          advice I was given yesterday by an Austrian lawyer is in

Page 2773

     1          German.   Amongst my many accomplishments is not a full

     2          knowledge of the German language I have to tell you.

     3          So there are documents in German I have to have

     4          translated and upon which I have to get advice from

     5          someone who is qualified to give it, namely an Austrian

     6          lawyer.   I am simply not in a position to advance this

     7          motion on the defendant's behalf properly, and I would

     8          ask your Honours to say that this matter should be put

     9          back so that a proper timescale can be achieved for it,

    10          so that it can be tried properly and justly in the

    11          interests of both this court and the interests of the

    12          defendant and in the interests of the prosecution.

    13      MS. McHENRY:   Your Honour, may I respond to that?  The

    14          prosecution is not proceeding with unseemly haste.   To

    15          the contrary, we have a situation where the accused's

    16          defence has made a very serious allegation about the

    17          voluntary nature of his client's waiver, some of which

    18          may have to do with exactly what happened in Austrian

    19          proceedings and it may, although we will not concede

    20          this point, it may -- at least the defence may want to

    21          bring some specifics of Austrian law which we are not

    22          familiar with, and I, in fact, believe will argue are

    23          not controlling, but he has not argued them.

    24                He has also made an allegation about the conduct

    25          of the Office of the Prosecutor.   It is the case that

Page 2774

     1          the Office of the Prosecutor does want to act with haste

     2          to get that issue clarified, so that there is no

     3          allegation -- so that the evidence supports that the

     4          Office of the Prosecutor has not acted improperly or

     5          unfairly.   I understand that this issue -- that all of

     6          this issue may not be resolved immediately, but the

     7          prosecution has at great trouble, given this allegation,

     8          brought in the Chief Investigator who was in Vienna, who

     9          will not be able -- he is not an expert on Austrian

    10          procedure and Austrian law and he may not know all

    11          that.   Certainly he will be able to testify about what

    12          the Office of the Prosecutor did and how they handled

    13          themselves and show that the Office of the Prosecutor

    14          acted properly and fairly in all respects.

    15                He is no longer with the Tribunal.   He flew in

    16          this morning.   He has to fly out again tomorrow.   We

    17          wish to call him today after witness O, who also has his

    18          own scheduling problems, and if it is then necessary for

    19          the Chamber -- for the defence to recall him at some

    20          later time, of course that can be done, but what he has

    21          information about is what happened with respect to the

    22          Office of the Prosecutor.   We wish to present that

    23          evidence.   We believe it is the right of the

    24          prosecution to determine the manner in which it calls

    25          its witnesses, subject to supervision by your Honours,

Page 2775

     1          and we very much appreciate the advice given by

     2          Mr. Greaves concerning how we should conduct our case,

     3          and, like certain decisions, it may turn out not to be

     4          correct, but it is our considered opinion that we wish

     5          to dispel any notion immediately that the Office of the

     6          Prosecutor has acted improperly, and we wish to

     7          immediately call after witness O Mr. Abribat.

     8                If your Honours later decide that it is necessary

     9          for your understanding to call him back again, or the

    10          defence decides to do that, of course that is

    11          possible.   We do not anticipate that it will be

    12          necessary, but if it turns out that we were wrong, there

    13          is, in effect, no harm done, and we believe it is our

    14          right, even our duty, to clarify the matter as soon as

    15          possible, given the allegations made by defence

    16          counsel.

    17      JUDGE KARIBI WHYTE:   This is a matter between the two of

    18          you, the prosecution and the defence, and I think the

    19          burden is greater on the part of the prosecution, whose

    20          duty it is to prove that the statement they took was

    21          voluntary.   So in every case you have to liaise with

    22          the defence to know how you organise the arguments.

    23      MR. GREAVES:   Can I say this, your Honour:  if my learned

    24          friend calls Mr. Abribat shortly, I shall apply for an

    25          adjournment.   I am not fully in possession of the

Page 2776

     1          information I need to cross-examine him, and it is going

     2          to waste your Honours' time, in my submission.   I can

     3          well understand the prosecution do not like allegations

     4          being made about the conduct of their investigators, but

     5          in the real and robust world such allegations are

     6          frequently made in courts all over this continent and on

     7          other continents, and they are allegations which do not

     8          get tried for quite some time.

     9                It does not affect the integrity of the

    10          prosecution in any way, that one small part of their

    11          operation is called into question, and I do not suggest

    12          in any way that the allegations I have to make impugns

    13          other investigators who are not concerned with my client

    14          or any members of the prosecution team.   So the desire

    15          to remove this alleged stain with the haste that is

    16          being proposed is one which is not necessary to do.

    17          This issue must be tried properly and must be tried by

    18          the case being placed before you in proper order, so

    19          that you can understand it.

    20                You will have to trust me.   Hearing this evidence

    21          out of order and in the way that you are being invited

    22          is going to make it impossible for you to understand

    23          what is going on.   I cannot, with the greatest of

    24          respect to my learned friend, see what the urgency is.

    25          There is no proper justification, in my submission, for

Page 2777

     1          hurrying this important issue.   I was only aware,

     2          although it was at my invitation, when I arrived at

     3          court that Mr. Abribat had been placed on the

     4          prosecution's witness list.   I do not object to him

     5          being on the list, but it was perhaps unfortunate that

     6          the prosecution have chosen to fly him in specially in

     7          the knowledge of what I had suggested to them and what

     8          my likely response was to be, as it has been this

     9          morning, to the proposition that he should give evidence

    10          straightaway.   In my submission it was premature of

    11          them to fly him in and unwise, but they may need to

    12          reflect on that.

    13                I revert to my principal submission, which

    14          I invite your Honours to consider, and I would

    15          respectfully say that in the interests of justice, and

    16          that is, after all, why we are all here, your Honour

    17          should adopt the propositions that I have placed before

    18          you as to the proper conduct of this case.   Of course

    19          my learned friend says it is up to the prosecution in

    20          very large part to determine how and what evidence they

    21          call, but at the end of the day the residual discretion

    22          lies in this Honourable Tribunal to control its own

    23          proceedings, control its own proceedings so that the

    24          persons sitting on that Tribunal, your Honours, can

    25          properly try the issues laid before it.   That may

Page 2778

     1          require the giving of directions by this court as to how

     2          and when a particular issue will be tried.   That is a

     3          process that I am sure all of your Honours are familiar

     4          with, and it is a process which I respectfully invite

     5          your Honours to say is appropriate for the proper

     6          determination of the serious issue that I have raised,

     7          and I invite your Honours to accept the propositions

     8          that I have placed before you.

     9      JUDGE KARIBI WHYTE:   Mr. Greaves, do you not think that at

    10          the time you were making the allegations you were

    11          cognisant with the facts to support such allegation, so

    12          that if anyone was brought before you for trying those

    13          statements, then you would be able to justify them?

    14      MR. GREAVES:   I thought I had in my possession 100 per cent

    15          of the facts.  It was only as a result of going to

    16          Vienna yesterday that I became aware of some completely

    17          new matters.

    18      JUDGE KARIBI WHYTE:   Okay.

    19      MR. GREAVES:   Although I have spoken to the partner of a

    20          lawyer who may or may not be able to be a witness as to

    21          facts, I have not actually spoken to that actual person,

    22          because he was in Salzburg dealing with a matter of

    23          considerable importance of his own in his own

    24          professional conduct.   The simple answer is, since last

    25          speaking to your Honours, I have become aware of other

Page 2779

     1          things, and it is for that reason that I have made this

     2          application today.

     3      JUDGE KARIBI WHYTE:   We will consider how best to deal with

     4          it.

     5      MR. GREAVES:   Thank you.

     6      JUDGE KARIBI WHYTE:   I think the Trial Chamber will rise

     7          now and reassemble at 12 o'clock.

     8      (11.35 am)

     9                               (Short break)

    10      (12.10 pm)

    11      JUDGE KARIBI WHYTE:   We will start with our Ruling on the

    12          two motions.   I think we will take them together, since

    13          ideally the same conditions are applicable to them.

    14                We have reviewed the motions themselves and

    15          discussed amongst ourselves.   The Trial Chamber will

    16          give a more reasoned Ruling later, but for now we are

    17          satisfied that the procedural requirements for admitting

    18          these statements were not violated and therefore they

    19          could be admissible at this stage.   Now whether the

    20          parties actually tendering the statements met the

    21          substantial requirements about the validity themselves

    22          can be raised and challenged, but as statements for what

    23          happened at that time they are clearly admissible.   As

    24          I said earlier, the basis for going to -- trying a

    25          statement has not been established.   None of the

Page 2780

     1          grounds which have been put forward before us suggested

     2          any fraud or coercion or force in the obtaining of the

     3          statements, but whether those statements meet the

     4          standards required is a different matter.   I think that

     5          is all for now.

     6      JUDGE JAN:   At the end of the trial, when the entire

     7          evidence is before the Tribunal, it will be open to the

     8          defence to argue that these statements should be

     9          excluded from consideration as the safeguards provided

    10          in the Rules have not in substance been complied with.

    11      JUDGE KARIBI WHYTE:   Yes.  Can we hear you, Mr. Ostberg?

    12      MR. OSTBERG:   Thank you.   Yesterday, your Honour, we filed

    13          a motion on protection for a person formerly named.

    14          I asked for him to be given the pseudonym of Mr. O.

    15          I would now like to call this witness and ask for your

    16          Honours to rule on our request for protection before I

    17          do so.

    18      MR. MORAN:   Your Honour, we were served with this some time

    19          after -- I received it some time after 9 o'clock this

    20          morning in a stack of documents.   I have seen the name

    21          witness O about three or four times spread through these

    22          documents and nobody has bothered to tell me who the

    23          heck witness O is.   I would really like to know that.

    24      MR. OSTBERG:   That, of course, I cannot do in open court.

    25          If we enter private session, I will immediately tell

Page 2781

     1          everybody who it is.

     2      JUDGE JAN:   But have you not given the defence earlier the

     3          material, the particulars identifying the witness?

     4      MR. OSTBERG:   I have indeed, your Honour.   The question is

     5          that when this witness appears in The Hague and I meet

     6          him, he asks and gives reasons for asking for

     7          protection, and I could not say no to such a

     8          proposition, and that is why I filed this motion.

     9          I could not have done it earlier, because I was not

    10          informed of his concerns about his security until he

    11          arrived in The Hague.   So there has been no other way

    12          for me to do it, and I cannot even apologise to the

    13          defence for the late disclosure of this thing, because

    14          I had no idea myself before.

    15      JUDGE KARIBI WHYTE:   In all seriousness did you ever try to

    16          speak to the defence about it, knowing the sudden way in

    17          which you are springing him?

    18      MR. OSTBERG:   Just a moment.   (Pause).  I am informed from

    19          my case manager that yesterday every defence lawyer,

    20          lead defence lawyer, was informed over the phone of

    21          this, but we were not able to reach Mr. Karabdic.   That

    22          is why I have the objection of Mr. Moran, I suppose, but

    23          we tried twice.

    24      JUDGE JAN:   But you know the identity of the witness and

    25          you know the substance of the evidence which the witness

Page 2782

     1          is going to give?

     2      MR. MORAN:   Your Honour, before the break Ms. McHenry

     3          mentioned a title that attached to witness O, and that

     4          gives me a hint, and if it is who I think it is, there

     5          is two problems.   One was at 9.45 -- we had had five

     6          pages of statement from this witness.   At 9.45 this

     7          morning I was handed a total of fifteen pages, which

     8          included five pages with some big black X marks on it.

     9          Secondly, if it is the witness that I think it is,

    10          I have filed a motion which may need to be marked

    11          confidential, because his name is in it, an objection to

    12          appearance of undesignated expert witnesses.   If it is

    13          the person I think it is, in the material I was handed

    14          this morning there is a lot of things in Latin, having

    15          to do with medical diagnoses, and frankly, judge, high

    16          school was a long time ago.   My Latin is not nearly as

    17          good as it was then and it was not very good back

    18          then.   I have got ten pages' worth of things I have

    19          never seen before in my life.   It is possible that

    20          these things were served in Bosnian on the Bosnian

    21          lawyers, but I do not speak Bosnian at all.

    22      JUDGE JAN:   What you are really asking is not that the

    23          identity should not be disclosed or the evidence should

    24          not be taken in public, but that his evidence should not

    25          be recorded at all today, because you are not prepared?

Page 2783

     1      MR. MORAN:   Well, your Honour, there are two things: one,

     2          the Trial Chamber on January 25th of this year entered

     3          an Order on expert witnesses, which I am prepared to

     4          argue.   Basically what it said is you have to get a CV,

     5          you have to tell us what it is about, that kind of

     6          thing.   We have complied with it.   There is a

     7          provision for good cause which we have actually filed a

     8          motion on.   The Trial Chamber has not ruled on it yet

     9          but something came up during the trial.   We need an

    10          expert.   We gave as much notice as we could.   I think

    11          that you have to draw a distinction between a fact

    12          witness and an expert witness; an expert witness is

    13          giving opinions, testifying because of special

    14          expertise, and a fact witness, who says: "I saw this".

    15                These people -- as I recall, there were only two

    16          people that were designated as expert witness.  The one

    17          was Dr Calic and the other one is a Dutch general, whose

    18          name escapes me at the moment.  Just because someone is

    19          a professional person does not necessarily mean he is

    20          going to be giving opinion testimony or he is going to

    21          be testifying from special expertise.   If this person

    22          -- and it appears from the documents that I was handed

    23          this morning that he is going to be testifying

    24          concerning special expertise based on his training and

    25          experience -- we would like to know who the heck this

Page 2784

     1          man is.   I would like to run him through some computers

     2          to see if he has ever published anything, that kind of

     3          thing, your Honour.

     4      JUDGE JAN:   He is an expert witness.

     5      MR. OSTBERG:   I have the answer to all of this, your

     6          Honours.   We do not consider him an expert witness.

     7          He appears on our witness list, where we do include his

     8          name, as number 12.  Under number 12 he is named for the

     9          defence and also the court is put on notice as to what

    10          he is going to testify to.   As to the knowledge of the

    11          defence lawyers, I am utterly surprised, because defence

    12          was given a full set of what he is going to talk about

    13          in the court on dates which I can specify, and everyone

    14          got notice of it in due time during 1996, and everyone

    15          received a full set of what it is all about, everyone

    16          but Mr. Karabdic, who instead inspected them on 25th July

    17          1996.   English translations, they were given in

    18          original -- copies of the original, and English

    19          translation was received in full sets on 4th March 1997

    20          to Mr. Karabdic,.   Mr. Brackovic received a full set on

    21          19th February 1997.   Mr. Tapuskovic never asked for a

    22          translation but was put on notice what it was and knew

    23          what it was.   Mme Residovic received nine reports which

    24          were then being translated but had before been given a

    25          full set of it in Serbo-Croatian, which is the language

Page 2785

     1          of her own and her client.

     2                So the prosecution has done everything that it

     3          could possibly do to give the defence notice of what we

     4          are going to do here.   As a service to the defence

     5          lawyers, we have now provided them with a list in

     6          English of all the things I am going to ask the witness

     7          about, to be provided to them maybe today.   This is to

     8          be looked on as a clear service.   All disclosure asked

     9          for in the Rules has been provided in due time.  So I am

    10          stunned about this objection.   I cannot understand.

    11      MR. MORAN:   Your Honour, I would be happy to show the Trial

    12          Chamber, one, what I had in my file relating to this

    13          person I think is witness O as of 9 o'clock this

    14          morning, and then what I was handed at 9.45.   I have

    15          got them both in my hand.   One is a five-page

    16          document.   One is a fifteen-page document.   If I was

    17          given just a partial one, then I do not know quite what

    18          to say.   The fact is that looking at page 5 of the two

    19          sets of documents, they are not identical in that page 5

    20          that I have, the older one, as the Trial Chamber can

    21          see, has just one notation on it, and the one that I was

    22          handed this morning, as the Trial Chamber can see, has

    23          two.   Even if there is some kind of mistake in copying,

    24          there is something wrong with this picture.

    25      MR. OSTBERG:   There is nothing wrong with them.   They are

Page 2786

     1          just put together in another order.   The translations,

     2          some of them has been improved, I suppose, but the

     3          originals are in Serbo-Croat.   The person to be

     4          examined in this court is to be examined in that

     5          language.   He has written in his own language.   We

     6          have speakers of this language sitting on the defence

     7          bench.   There can be no misunderstanding whatsoever.

     8      MR. MORAN:   Your Honour, the last time I looked at the

     9          Statute, the two official languages of this Tribunal are

    10          English and French.   Serbo-Croatian is not one of

    11          them.   As I pointed out, I speak absolutely no

    12          Serbo-Croatian, read less, and the fact that something

    13          was served in Serbo-Croatian I do not know complies with

    14          the Statute and the Rules.

    15      JUDGE KARIBI WHYTE:   But you are a member of a team.

    16      MR. MORAN:   That is true, your Honour, and I will happily

    17          stipulate that my lead counsel is quite fluent in

    18          Serbo-Croatian.

    19      JUDGE KARIBI WHYTE:   Yes.

    20      MR. MORAN:   One other thing is this morning at about

    21          9 o'clock I received a change in order of witness list,

    22          which apparently changes the order in which this

    23          particular witness was going to appear.   We were

    24          expecting, when we left here on Thursday, the next

    25          witness to be Bart d'Hooge, and I walk in this morning

Page 2787

     1          and find, on somebody else's desk, I might add -- it was

     2          put in somebody else's box by accident and handed to me

     3          after 9 o'clock this morning -- a motion to change the

     4          witness list.   At some point if we are going to require

     5          witness lists and we are going to require that people

     6          have notice of when witnesses are going to appear so you

     7          can prepare for cross, you have got to have some time to

     8          do it.

     9      MR. OSTBERG:   I have an observation to that too, your

    10          Honour, if I may.   I am certain that the prosecution --

    11          the defence will experience when it comes to the defence

    12          case the same logistic and other problems we cope with

    13          every day.   This makes it necessary when bringing in

    14          witnesses from other parts of the world to try to put

    15          this together in a feasible way not to interfere all too

    16          much in their professional or private life.   So we have

    17          to, and you will do that in the same order when time

    18          comes -- we have to do changes in our witnesses.

    19          I cannot help it, your Honour, even if we try hard to.

    20      MR. MORAN:   There is no right for the defence to follow a

    21          witness list as I understand it under the Procedures

    22          adopted by this Trial Chamber.  We can call witnesses in

    23          any order we want.   There was, however, an order

    24          entered, I believe on 25th January, and do not hold me

    25          to that, about witness lists and the Prosecutor.

Page 2788

     1      MS. McMURREY:   Your Honour, if I might add for Esad Landzo

     2          at this point that we did only actively and

     3          constructively receive notice of the change of the

     4          witness schedule this morning at 9.45 before court

     5          resumed.   We attended this proceeding today thinking

     6          that the next witness was going to be Bart d'Hooge

     7          instead of witness number O, and it will highly

     8          prejudice this case if we are expected to perform and be

     9          prepared to cross-examine a witness that we were not

    10          expecting for several days from now at this point.

    11          Also, the changing of the witness list is one thing, but

    12          the protection of this witness that they are seeking

    13          I believe requires a hearing on this.

    14                At this point if the prosecution insist behind

    15          closed doors, because we have no reason to suspect why

    16          this person, who we are still not sure who it is -- we

    17          have never been notified exactly who Witness O is at

    18          this point -- we have never received notice of who

    19          Witness O is according to this document that we

    20          received.   It just says "Witness O".  Other than what

    21          Ms. McHenry -- the clue she gave us this morning -- we do

    22          not know who that person is.   So according to the

    23          schedule that we appeared on today, we were expecting

    24          Bart d'Hooge to be the next witness.   All of a sudden

    25          Witness O is brought in to testify today.   We are

Page 2789

     1          caught by surprise and will not be prepared to

     2          cross-examine that witness if he is allowed to go out of

     3          order today.   Thank you.

     4      JUDGE JAN:   But are you not aware of the identity of

     5          Witness O?

     6      MS. McMURREY:   No, your Honour.   We have never been

     7          provided with the knowledge of who Witness O is.

     8      MR. OSTBERG:   Lead counsel for Mr. Esad Landzo was informed

     9          yesterday at 2 o'clock.

    10      JUDGE JAN:   But you have not given any information with

    11          regard to identity of Witness O to the defence is what

    12          I hear from Ms. McMurrey.

    13      MR. OSTBERG:   Yes, informed of the identity of -- I think

    14          maybe -- we are talking about Mr. Brackovic, who is still

    15          the lead counsel for Mr. Esad Landzo, as far as I can

    16          understand.   He told us at 2 o'clock yesterday that he

    17          was going to tell Mr. Ackerman.   What happens by way of

    18          that I do not know, of course, but we try to do our best

    19          to give you all the information you may need.

    20      JUDGE KARIBI WHYTE:   Now bearing all that in mind, are you

    21          prepared to argue the question of the protection? .   If

    22          you are, then --

    23      MS. McMURREY:   Yes, your Honour, we would be happy to argue

    24          the issue of the protection, but we are not prepared at

    25          this moment to go forward with the cross-examination of

Page 2790

     1          a witness who we are caught by surprise on.

     2      MR. OSTBERG:   I maintain, your Honours, to say that we are

     3          not doing this on surprise.   We have had this witness

     4          on the list as number 12.   We have informed them

     5          yesterday that he has asked for protection and divulged

     6          to the lead counsel who he is.   I am quite prepared to

     7          go into a hearing about the protection which he has

     8          asked for, which for my part consists of the concerns

     9          that he gave me when he met me the day before yesterday,

    10          and then I immediately filed a motion.   I feel an

    11          obligation to protect the witnesses we call before the

    12          Tribunal.

    13      MS. McMURREY:   We are not contesting maybe there is a valid

    14          reason for protection.   What I would like the record to

    15          reflect and the Trial Chamber to understand is if

    16          Mr. Brackovic was given notice yesterday, it may be

    17          constructive notice for us, but we did not receive

    18          actual notice of this change in the schedule until 9.45

    19          this morning.

    20      MR. OSTBERG:   I think, your Honour, Ms. McHenry has some

    21          information to add to this which I have not been

    22          provided with.

    23      MS. McHENRY:   Because I am sitting down and I can look at

    24          the documents, I just want to point out it is the case

    25          on the modified witness list Mr. Bart d'Hooge was the

Page 2791

     1          next witness and the witness after that was this

     2          witness, Witness O.   It is always going to be the case,

     3          as my counsel has said, that there is going to be some

     4          change in witnesses because of availability.   The fact

     5          that this witness has now been moved up one position, I

     6          do not think that defence counsel could say they could

     7          never be prepared to cross-examine.   On behalf of all

     8          the prosecution, we will state that we are sure that

     9          this is not the last time this is going to happen.   It

    10          is an incredibly difficult situation -- Mr. Turone knows

    11          more about it than I do -- to try to get the witnesses

    12          here.  We act in good faith.   We tell the defence

    13          attorneys as soon as we know.   The fact that someone

    14          has been moved up one spot versus the other we do not

    15          believe can be any grounds for defence counsel to argue

    16          they are unprepared.

    17      JUDGE KARIBI WHYTE:   Yes, Mr. Ackerman?

    18      MR. ACKERMAN:   Your Honours, I am certainly prepared at this

    19          point on behalf of Mr. Landzo at least to accede to a new

    20          Rule, that new Rule being from this day forward we

    21          implicitly have notice from the prosecution that they

    22          may call any one of the next two or three witnesses so

    23          we can be prepared for as many as two or three at a

    24          time.   It is not my understanding that that had been

    25          the Rule up to this point.   Whether or not we should

Page 2792

     1          have had notice, whether or not we should have known is

     2          really beside the point.

     3                The position we are in right now is we are not

     4          prepared to conduct the cross-examination of this

     5          witness today.   We have just been handed a significant

     6          amount of material just this morning at 9.45 regarding

     7          what this witness did.   The witness obviously, now that

     8          he has been identified to us, is a doctor who conducted

     9          medical examinations and is apparently coming here to

    10          testify about the results of his medical examinations.

    11          Now how that cannot be an expert witness I have no idea,

    12          because were it not for his medical training, he would

    13          not be permitted to testify about the medical opinions

    14          that he has given here.   So by definition he is an

    15          expert.   We have not had the proper designation of this

    16          witness as an expert witness.

    17                So I have a proposal for the Trial Chamber: first

    18          of all, that the Trial Chamber make whatever decision

    19          the Trial Chamber might think is appropriate regarding

    20          the failure to designate this witness as an expert

    21          witness; second of all, that we adjourn the proceedings

    22          until 10 o'clock in the morning, when they can go ahead

    23          and put on their witness.   By that time if the witness

    24          is going to be called, in spite of the fact they failed

    25          to designate him as expert, then we can be prepared not

Page 2793

     1          only for that witness certainly but for the two

     2          following on the list.

     3      MS. RESIDOVIC (in interpretation):   May I ask your Honours

     4          to rule also on the fact that our learned colleague,

     5          Madame McHenry, referred to.   Is it possible for the

     6          defence to be informed of a change in the list of

     7          witnesses by telephone on the eve of the testimony of

     8          the witness?  Ms. McHenry said previously that the

     9          prosecution wanted to ensure a fair trial.   Information

    10          given by telephone at 4.00 pm on a Sunday for

    11          preparations for the cross-examination of a witness who

    12          was previously put on the list in my view does not

    13          contribute to that goal.

    14                I therefore also ask the Trial Chamber to rule

    15          particularly because we have been told there will be

    16          more such cases in the future.   I think that we need to

    17          know exactly the position of the Trial Chamber, that is

    18          that no changes can be made in the list of witnesses

    19          within such a short time period that will put them in a

    20          position not to be able to carry out the

    21          cross-examination.   Thank you.

    22      MR. GREAVES:   I wonder whether I can add something?  I was

    23          in Vienna yesterday.   The knowledge that this witness

    24          was to be called this morning arrived in my little brain

    25          at about 9.30 this morning.   Shortly after that this

Page 2794

     1          document was brought in by the representative of the

     2          prosecution.   It is true that we have what looks like a

     3          similar document in Serbo-Croat with all sorts of very

     4          interesting stamps and so on all over it.   My fellow

     5          counsel and I have not had an opportunity for a moment

     6          to compare whether this document bears any relationship

     7          whatever with what has been served on us previously.

     8                There are but 24 hours in the day, your Honours,

     9          and those 24 hours are occupied with other things.  As

    10          your Honours will be aware, I have just come back from

    11          preparing the matter that we were speaking about before

    12          the adjournment.   Although it may well be, and I am not

    13          sure at the moment, that I do not have a great number of

    14          questions for this witness, one of the duties of counsel

    15          is to -- in a case of this kind, where there are so many

    16          documents that appear in either Serbo-Croat or English,

    17          and have to be translated, it is one of our duties to

    18          check that the English version bears some resemblance to

    19          the Serbo-Croat version.

    20                It would be quite wrong if the court were to admit

    21          one of the entries in here was a bad translation of the

    22          Serbo-Croat.   It would be an appalling injustice if

    23          that was to be allowed in evidence without us having an

    24          opportunity to check the two documents match one

    25          another.   If someone can tell me how we can do that in

Page 2795

     1          fifteen minutes before coming into court, then they

     2          might like to patent it and sell it on the open

     3          market.   It is just not possible to do that checking

     4          process and to prepare a proper cross-examination if

     5          errors are found.   That is the problem.

     6      MR. OSTBERG:   Your Honour, not to prolong this debate,

     7          I again just have to stress that as to disclosure we

     8          have done all we can.  It is absolutely not right when

     9          Mr. Ackerman says there has not been a notice.  We cannot

    10          control the communication between lead counsel and other

    11          counsel on the side of the defence, and it is a Ruling

    12          by this trial that serving documents in the language of

    13          the defence lawyers and the accused, namely in

    14          Serbo-Croat, is sufficient.   They have been on notice

    15          that this witness is going to be called a long time.

    16          He is on our list as number 12, and I can read what is

    17          said in the -- what it is all about:

    18                "Physician.   He visited and issued medical

    19          certificates on a number of former detainees", etc,

    20          etc.

    21                I can disclose that without disclosing his

    22          identity.   So service has been done, and if there is

    23          miscommunication between counsels of different languages

    24          posed to me, I cannot cure that thing, and I have told

    25          your Honours that full disclosure has been done.

Page 2796

     1                The name is on the list.   Yesterday they have

     2          been informed what is going to happen and everybody

     3          knows what is going to happen.   This is, in my

     4          submission, not a surprise witness.   We are doing our

     5          best and I have had severe trouble to bring this

     6          gentleman to The Hague at all and even had to promise

     7          him that he could return reasonably.   Thank you very

     8          much, your Honours.   I have nothing more to add.   I am

     9          prepared to move on to the protection question.

    10      JUDGE KARIBI WHYTE:   The contention is that serving them

    11          with the papers this morning is sufficient notice?

    12      MR. OSTBERG:   No.  They have been served with these

    13          documents months ago, months ago.

    14      JUDGE KARIBI WHYTE:   What are the papers you are serving

    15          this morning?

    16      MR. OSTBERG:   As a service to them in a clear English

    17          translation of the documents they have had for a very

    18          long time.

    19      JUDGE KARIBI WHYTE:   What you served long ago?

    20      MR. OSTBERG:   Long ago.

    21      MR. GREAVES:   This is the translation that the court is

    22          going to be using.   Unless your Honours have suddenly

    23          developed a sudden taste for the Serbo-Croat language

    24          you are going to be using this, the English version;

    25          that was served on us at 9.45.   We have not checked it

Page 2797

     1          to see whether it is authentic.

     2      MR. MORAN:   Your Honour, I do not think we have even gotten

     3          yet to the initial question of the prosecution says this

     4          guy is just a fact witness.  If he is a physician and he

     5          is going to be testifying about diagnoses, about things

     6          that require special expertise and training, he is not a

     7          fact witness; he is an expert.

     8                Physicians can testify about a whole lot of

     9          things.   They can testify about traffic accidents they

    10          saw and that makes them fact witnesses but the minute

    11          they start saying: "I examined this person and he had

    12          X", they stop being fact witnesses and start becoming

    13          expert witnesses because you have their special training

    14          and expertise.

    15      JUDGE KARIBI WHYTE:   There are three issues here.   I can

    16          see perhaps serving papers this morning and arguing it

    17          is one -- almost this morning must be precipitant but

    18          possibly you could still argue the question of the

    19          protection, which is a different matter.   So after that

    20          we can talk about whether the witness can be available

    21          to you, because even if he testifies, it might take some

    22          time before we get to the conclusion of it, before

    23          cross-examination arises.   It might not be today.   So

    24          you still have time to look at some of those things.

    25          So I suppose we can go ahead and discuss the question of

Page 2798

     1          the protection.   The protection is in private, so we

     2          can do that now.

     3                           (In closed session)










    13  Pages 2798 to 2808 in closed session