Page 2729
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
Page 2730
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
Page 2731
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
Page 2733
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
Page 2734
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
Page 2735
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.
Page 2736
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.
Page 2737
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.
Page 2738
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
Page 2739
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
Page 2740
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)
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