Tribunal Criminal Tribunal for the Former Yugoslavia

Page 2930

1 Wednesday, 28th May 1997

2 (10.00 am)

3 (In open session)

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

5 From what I hear this morning, it is very good news.

6 We adjourned two days so we will report back to the

7 Trial Chamber the result of the investigation we

8 referred to the President to conduct into the complaints

9 by the Prosecutor concerning the leakage of the list of

10 witnesses including protected witnesses.

11 MR. OSTBERG: Your Honour, may I just make the point that we

12 are now in open session, so your Honour is quite aware

13 of that.

14 JUDGE KARIBI WHYTE: I am aware of this. Now following

15 the decision of the Trial Chamber, we referred the

16 complaint to the President for investigation. In

17 making our reference we requested that the investigation

18 should go into the circumstances of the leakage of the

19 information of the list of witnesses; secondly, to make

20 a determination as to the responsibility otherwise of

21 any one counsel appearing in the Celebici proceedings

22 and to other persons connected with the custody of the

23 witness lists; three, we also requested there should be

24 a determination of the fact of the leakage upon the

25 current proceedings.

Page 2931

1 I hear the report has been circulated to all

2 counsel, and the Prosecutor.


4 JUDGE KARIBI WHYTE: So you all have copies. Now instead

5 of going into the lengths of the report, I think the

6 important part is just paragraph 7, which concludes --

7 and the conclusions of the President are stated in

8 paragraph 7(a) and (b). Paragraph (a) clearly stated

9 that:

10 "There is no evidence of misconduct -- with regard

11 to Defence Counsel Edina Residovic and Mr. Eugene

12 O'Sullivan there is no evidence of misconduct on their

13 part.

14 (b) With regard to the Defendant Zejnil Delalic,

15 it would seem likely that the Defendant Zejnil Delalic

16 gave a telephone interview to the magazine Sloboda

17 Hercegovina. This interview was published in the 15

18 April 1997 issue of the said magazine. It would seem

19 that in the course of interview the Defendant Zenjil

20 Delalic mentioned the name of at least one witness which

21 appears on the Prosecutor's witness list that is the

22 subject of the Order for Non-Disclosure. It would

23 therefore appear that the Defendant Zejnil Delalic might

24 have acted in contempt of the Order for

25 Non-Disclosure. In this regard the Prosecutor may want

Page 2932

1 to consider whether it is appropriate to initiate

2 proceedings against Mr. Delalic for contempt of the

3 Tribunal pursuant to Rule 77(C) of the Rules of

4 Procedure and Evidence.

5 (c) With regard to the author of the articles in

6 question, Mr. Tahir Pervan, and the editor of the

7 newspaper in question, regretfully investigations have

8 been inconclusive".

9 This is the conclusion of the President.

10 As far as the Trial Chamber is concerned, since

11 all participating in the judicial process here have been

12 cleared of any wrongdoing, I think we are comfortable in

13 carrying on as we have always done. As I said at the

14 beginning and I think this has been confirmed by the

15 investigation, we have always had the highest regard for

16 the integrity, professional competence and dedication of

17 counsel in this case in doing all they can in bringing

18 justice before this Trial Chamber. We have been

19 justified in this conviction. I think this is all the

20 Trial Chamber has to say on this investigation.

21 MR. MORRISON: May I address the court? I appear for

22 Mr. Delalic on this particular issue of contempt in the

23 President's report. You will see my name mentioned

24 there. I was brought in to deal with this particular

25 matter because of the conflict that there was between

Page 2933

1 this matter and his lawyers on the main indictment. As

2 you have stated in the opening remarks, the object of

3 the exercise was to seek a determination of the issues

4 and I, with respect, echo your Honour's observations as

5 to the finding in respect of the lawyers involved.

6 That may be regarded as a determination, although it is

7 not for me to say so, but it is plain there has been no

8 determination of the issue in respect of Mr. Delalic. A

9 determination of an issue means the issue has been

10 decided one way or the other.

11 THE INTERPRETER: Could counsel please speak up a bit?

12 MR. MORRISON: Yes. Determination --

13 THE INTERPRETER: Please switch on your microphone.

14 Sorry.

15 MR. OSTBERG: You can leave it.

16 MR. MORRISON: Is it working now.

17 JUDGE ODIO BENITO: Take your finger out.

18 MR. MORRISON: I am grateful for that assistance. A

19 determination presupposes that an issue has been

20 decided. In this case the issue, the central issue, is

21 whether or not there had been a material contempt of

22 this court in respect of the publication of information

23 or names that should not have been published under the

24 rules of the court.

25 We are left in this position, with respect, that

Page 2934

1 Mr. Delalic is in exactly the same position that he was

2 in when the issue was first raised some week ago. It

3 is still not clear whether or not he faces an issue for

4 contempt or indeed how that issue of contempt may be

5 resolved. It can, with respect, only be resolved by

6 the accumulation of evidence which is accumulated and

7 presented within the rules of the Tribunal. That is

8 that witnesses would be seen, they would be interviewed

9 under caution, and either by oral or videotape that

10 evidence would be presented to the defence and they

11 would be able to conduct their own investigation in

12 exactly the same way as any other matter that came

13 before the Tribunal.

14 Now, that position has simply not yet been

15 reached. What the Honourable President has done is

16 effectively invited the prosecution to consider whether

17 or not they intend to proceed along that path, and if I

18 may, with respect, quote from paragraph 7B, what the

19 learned President has done is to draw sort of

20 suppositions from the material which is available, the

21 newspaper articles, which one could have drawn a week

22 ago and, of course, he had no option but to do that,

23 because there is, in fact, no evidence beyond those

24 articles.

25 That is demonstrated clearly, with respect, by the

Page 2935

1 use of these words. Paragraph 7(b):

2 "With regard to the Defendant Zejnil Delalic, it

3 would seem likely that he gave a telephone interview".

4 I turn over the page. The first words of the

5 first sentence on page 4:

6 "It would seem that in the course of the interview

7 ..."

8 I go on four lines down:

9 "It would therefore appear that ..."

10 On the same line:

11 "... might have acted in contempt of the Order for

12 Non-Disclosure.

13 It goes on to say:

14 "The Prosecutor may want to consider ..."

15 All that may mitigate against there having been

16 any determination of this matter in any manner, shape or

17 form. The matter is still very much at large. In my

18 respectful submission, your Honour, the problem is this,

19 that if there is an attempt to go forward in this case

20 without having first resolved, determined the issue of

21 contempt, which was the object of the exercise a week

22 ago, any evidence which is now called in respect of this

23 matter by the prosecution is going to be tainted by the

24 suspicion, because suspicion it remains, that Mr. Delalic

25 has had something to do with a fundamental concept,

Page 2936

1 which may go to the very heart of that evidence. This

2 is not a peripheral contempt of court that is being

3 alleged. Sometimes there is a contempt of court where

4 a witness makes an outburst, where somebody in the

5 public gallery does something. That is a relatively

6 minor and peripheral contempt that can be dealt with on

7 a summary basis and is often done so, but this is a

8 fundamental allegation of a contempt which goes to the

9 very heart of the case and to the probity of any

10 evidence which is called. That is as to the

11 Prosecution evidence. It is even worse, in my

12 submission when we come to consider the evidence that

13 the defendant may give on his own behalf or may call on

14 his behalf or indeed that other defendants may give or

15 may call, although that is a matter of consideration by

16 their counsel, because all of that evidence is going to

17 be tainted with the suspicion until the matter is

18 determined one way or the other that that evidence is

19 coloured by a consideration of contempt for this

20 Tribunal.

21 Now, in those circumstances it is my submission

22 that it would be impossible for this or, indeed, any

23 Tribunal to consider that evidence in the absence of the

24 prejudice that would arise by virtue of that contempt.

25 We know it is a fundamental principle of the rule of

Page 2937

1 justice that justice must not only be done but it must

2 manifestly be seen to be done. May I draw an analogy?

3 If there was a trial by jury where the Tribunal was

4 concerning just issues of law and the jury were

5 concerning issues of fact, the question of any contempt,

6 as indeed the existence of any other indictment, would

7 be withheld from the jury. The reason it would be

8 withheld from the jury is the reason that I have just

9 submitted, because of the devastating effect it would

10 have upon their consideration of the evidence.

11 In this Tribunal, as a matter of fact and

12 procedure, of course the Tribunal sits on both questions

13 of fact and law, but where that is the case, then

14 everything must be done that is practicable to be done

15 to make the proceedings as fair and just as possible for

16 the defendants and the co-defendants, so that any

17 suspicion that the Tribunal might have had other matters

18 in their mind at the time they were concerning the

19 central issues on the indictment can safely be put to

20 one side. It is practicable in this case to achieve

21 that position. In my submission, it is practicable in

22 this way.

23 The Honourable President has invited the

24 prosecution to consider their position and to determine

25 whether or not they wish to pursue contempt proceedings

Page 2938

1 against Mr. Delalic. They now have the opportunity to

2 do that in a way where they can gather evidence that

3 would fall within the Rules of Procedure of this

4 Tribunal. People can be interviewed under caution and

5 on tape and the weight of that evidence can be

6 determined, because at the moment it is mere

7 supposition, and they will need to gather evidence to be

8 in a position to be able to say properly to themselves

9 and properly to this Tribunal: "We have evidence that we

10 consider is proper, probative evidence that goes to this

11 contempt and therefore it would be proper to try this

12 man." As a rough rule of thumb, and I can only speak

13 for my own jurisdiction, the Crown Prosecution Service

14 in the United Kingdom only prosecute a case whereupon

15 consideration of the evidence there is at least a 50 per

16 cent chance of a conviction.

17 It would seem, with the greatest respect, in my

18 submission, there is nothing wrong with that approach

19 for the prosecution in this case. They cannot do that

20 until they have got evidence as opposed to material from

21 only which supposition can be drawn. They are,

22 therefore, now in a position to devise a procedure to

23 have an independent investigator, who would have all the

24 powers of investigation within the rules of the

25 Tribunal, to accumulate that evidence and to bring it

Page 2939

1 before this Tribunal.

2 I say it, and I say it with the greatest respect,

3 it is perhaps a good thing that, in fact, the Honourable

4 President did not manage to accumulate anything which

5 would be properly regarded as evidence, because when one

6 thinks about it, he would have been in this invidious

7 position, that had he done so he might have been in a

8 position where he would have to be called as a witness

9 before this Tribunal, which would have been a difficult

10 state of affairs. It is so much better if there is an

11 independent investigator appointed by the Prosecutor who

12 can become a witness in the case and perhaps almost

13 inevitably would become a witness in the case and can

14 give evidence before this Tribunal without the

15 difficulties and embarrassment it would have caused had

16 the Honourable President been put into that difficult

17 position.

18 What I say in my closing submission is this: it

19 is impossible in this case for the defendant Mr. Delalic

20 to have this case continue against him and feel that the

21 Tribunal is able to distinguish between the suspicion

22 that falls against him and remains against him until the

23 matter is determined and have the matters contained on

24 indictment considered in isolation, the necessary

25 isolation to give those matters the proper weight and

Page 2940

1 consideration to which he is entitled, and to which as a

2 matter of practicalities the prosecution is also

3 entitled, because if he is not, one can see how that

4 could well in the fullness of time give rise to an

5 expensive and time-consuming appellate hearing. With

6 the greatest respect, my submissions are designed not to

7 create but to avoid delay.

8 JUDGE KARIBI-WHITE: Thank you very much, Mr. Morrison. I

9 appreciate your position and your apprehension about the

10 subsequent course of events. I suppose in this regard

11 -- I think the trump card lies with the prosecution,

12 because they have merely called upon to consider whether

13 there is sufficient evidence to proceed against him.

14 They need not proceed unless they are convinced that it

15 is worth proceeding and there is sufficient evidence for

16 them to do so. It is only on that basis that the

17 prosecution would take up the invitation for them to do

18 so by the President. I think we might hear them when

19 they might have considered the matter. To see what

20 cause of action they tend to adopt.

21 MR. MORRISON: The position in my submission is plain. The

22 prosecution have been invited and they must make up

23 their mind how to proceed. It is not, with the

24 greatest of respect, a burden upon the Tribunal. It is

25 a burden upon the prosecution, but the fundamental

Page 2941

1 problem remains, and I would invite them to do as

2 speedily as is practical, that evidence before -- I

3 appreciate in the English Bar the prosecutors can defend

4 and I probably prosecute more than I defend so I do

5 appreciate the difficulties they have, but the reality

6 of that position is they cannot make that decision until

7 they are in posession of the evidence. It seems to be,

8 looking at the report of the honourable president, that

9 the evidence really falls into a very narrow orbit. He

10 has concentrated on and there is a named individual -- I

11 will not name him; he is the journalist named in

12 paragraph 6 and his editor -- it seems to me with a

13 certain amount of diligence and enthusiasm the question

14 of any evidence from that source can be investigated

15 really within a matter of a day or two. The Honourable

16 President managed to track this man down and would have

17 been in a position, had he been interested in giving

18 evidence, to take evidence from him. The prosecution

19 are perhaps in a better position than the Honourable

20 President was, because they can appoint a Prosecutor,

21 and that can be done really in a matter -- an

22 investigator rather. That can be done as a matter of

23 urgency. This matter could be resolved in a matter of

24 days if the conclusion is that the prosecution are not

25 going to proceed with any allegation of contempt, and

Page 2942

1 the Tribunal can then get back to its main task of

2 considering the indictment. If the prosecution,

3 however, on considering the evidence come to the

4 conclusion that there is a prosecutable offence, then

5 plainly the question of whether or not that should be

6 done before, as I have submitted it should be, the

7 continuation of the trial remains a live issue.

8 JUDGE KARIBI WHYTE: Thank you very much. Ms. Residovic?

9 MS RESIDOVIC (in interpretation): Your Honours, please

10 allow me to present two issues related to the

11 consideration of the report submitted by Mr. President.

12 First of all, I would like to thank both the Trial

13 Chamber and the President for trying to resolve very

14 serious issues in such a short time, the issues that

15 came before this Trial Chamber. I have been able to go

16 through the report, in particular through the paragraph

17 7, and please allow me, therefore, to say two things.

18 The President in paragraph 7 submitted his personal

19 conclusion related to the facts he has been able to

20 establish in the course of his investigation. I am

21 glad and I appreciate the position taken by this Trial

22 Chamber when it comes to the defence of Mr. Delalic,

23 defence counsel, and their attempts to continue to

24 provide a fair and just defence for their clients.

25 However, your Honours, I think that even as regards this

Page 2943

1 issue we did not go much further than at the last

2 hearing before this Chamber. The personal conclusion

3 of the President contained in his report on the

4 investigations conducted, as far as I am familiar with

5 the rules of this Tribunal, is not a basis on which the

6 defence counsel could be absolutely excluded from any

7 further proceedings which are in the sole domain of the

8 Prosecutor.

9 I would like to remind you, your Honours, that the

10 discussion on this issue began with the question made by

11 the Prosecutor and his statement -- their statement

12 before this Trial Chamber. I refer to the French

13 transcript, page 1731, lines 31, where it was stated

14 before this Trial Chamber that:

15 "This case in all probability, as it appeared at

16 that time that, one of the defence counsel and one of

17 the defendants was involved in this case".

18 So when this first situation is in question, the

19 way that the defence counsel should be treated has not

20 been resolved in this report by the President. It

21 should be resolved by the Prosecutor and the Prosecutor

22 should make their position clear.

23 As regards any future or existing facts that may

24 come up in the investigations conducted by the

25 prosecution, we do not have any position from them on

Page 2944

1 that, and therefore it is my view that the position of

2 the defence counsel in this case has not changed, let

3 alone the position of our client. I, therefore, think

4 that even this paragraph without the clear position made

5 by the prosecution cannot be completely unequivocal

6 before this Trial Chamber, and therefore our view in the

7 continuation of this proceeding as regards any future

8 possible conflict of interests between us and the client

9 will also remain unchanged as to what I said last time.

10 The second issue is the question of our client.

11 Your Honours, both myself and Professor O'Sullivan are

12 here in this court room only to represent and to defend

13 the interests of our client. We do not wish to put him

14 in a position which may either in this proceeding or in

15 some other proceedings endanger his interests. So if

16 the issue of the position of his defence counsel is

17 solved once and for all decisively, then we as his

18 defence counsel in this proceeding will honour the

19 position of our learned colleague, Mr. Morrison, whether

20 the continuation of this proceeding could prejudice his

21 interest as to any other proceedings. Therefore, I

22 would like to ask this Trial Chamber to request that the

23 prosecution solve the entirety of this problem because I

24 think we cannot have a fair trial of my client without

25 this.

Page 2945

1 JUDGE KARIBI WHYTE: Thank you, Ms. Residovic. Tom Moran,

2 do you have anything to say?

3 MR. MORAN: Yes, your Honour. Tom Moran for Hazim Delic.

4 Judge, initially I want to make it very clear that I do

5 not have a dog in the fight with Mr. Delalic, but I would

6 like to introduce for the purposes of this only a

7 decision signed by the Registrar on the 23rd, and which

8 was delivered to me today. My big worry is prejudice

9 to my client. I move to introduce this as Delic

10 exhibit next just for the purposes of this proceeding.

11 I have not thought through what I think needs to be

12 done, because I just got this an hour and a half ago,

13 but I am worried the fall-out could hurt my client.

14 The Registrar has found that there is reasonable grounds

15 for believing that my client, Mr. Landzo and Mr. Mucic may

16 attempt to interfere or intimidate witnesses or

17 otherwise disturb the maintenance and good order of the

18 detention unit. I believe this is growing out of the

19 same type of allegations. Now, I have heard no

20 evidence from anyone that my client is involved in this,

21 yet I find a distinguished former judge, the Registrar

22 of this court, of the Tribunal, making this kind of

23 finding. The fact that my client's phone calls are

24 going to be monitored do not bother me one way or the

25 other. I do not particularly care. What I am worried

Page 2946

1 about is there is this broad brush painting of people

2 when there is no evidence at all that I have heard, no

3 reasonable grounds that my client did anything. I

4 would like to see this issue put to bed so that Hazim

5 Delic does not get hurt by the fall-out. Thank you

6 very much, judge.

7 JUDGE KARIBI WHYTE: Thank you very much, Mr. Moran. This

8 is an administrative decision.

9 MR. MORAN: That is correct, your Honour.

10 JUDGE KARIBI WHYTE: I think the channel of complaint is to

11 the President, not directly to the Trial Chamber.

12 MR. MORAN: Yes, your Honour, I concede that. I am not

13 asking the Trial Chamber to do anything about this. I

14 am just pointing out that if the Registrar, who is a

15 person that I admire very much, makes this kind of

16 finding, I am worried that perhaps in all good faith in

17 this courtroom some of this fall-out may hit my

18 client. It makes me again very nervous. I would like

19 this thing put to bed and somebody to stand up there and

20 say "Hazim Delic may have done a lot of things in his

21 life, but this is not one of them".

22 JUDGE KARIBI WHYTE: Can we hear the Prosecutor as to what

23 he thinks?

24 MR. OSTBERG: Just to the point raised by Mr. Moran, this is

25 an administrative thing which we dealt with in the 64

Page 2947

1 hearing this morning, and I think that is nothing -- as

2 your Honour just said, nothing for the Trial Chamber to

3 worry about.

4 To the main issue, I just, as all of us, got this

5 report from the President and I read 7A with regard to

6 the defence counsel Edina Residovic and Eugene

7 O'Sullivan there is no evidence of misconduct on their

8 part and I have nothing to add at all to that. I would

9 just say that that made me -- should make me stand up

10 and say: "We are ready to proceed." Speaking for the

11 civil law system where I come from, the question of

12 contempt of court would be dealt with totally separately

13 and should not be considered in the way now raised

14 before this Tribunal. In my view this could also from

15 our point of view be handled separately without --

16 I have the absolute conviction that the Trial Chamber

17 can separate the one thing from the other, and that it

18 should not be tolerated to taint anything at all during

19 the proceedings.

20 I cannot now, just having read this, say exactly

21 what is the Prosecutor going to do about the invitation

22 from the President. Something might or might not be

23 done, but I cannot stand up here today and say: "We are

24 not going to do anything at all or Prosecutor is going

25 to do this in that way at that time or what time." I

Page 2948

1 know nothing about that. My position is that this is a

2 separate matter that should not delay these

3 proceedings. I would ask your Honour to invite

4 Ms.. McHenry to have some points of view from the common

5 law points of view maybe. Thank you.

6 MS McHENRY: Very briefly, your Honour, the matter was

7 referred to the President and he has given us a report

8 in which he states that there is no evidence suggesting

9 that defence counsel was involved. The prosecution has

10 never suggested that defence counsel was involved, and I

11 believe that -- I do not know if there is a

12 mistranslation, but at least the English transcript

13 makes clear that the prosecution has not suggested that

14 defence counsel was involved. As I believe Mr. Ostberg

15 has said on several occasions, we do not have evidence

16 and we are not suggesting that defence counsel is

17 involved. We believe that we can, with both the

18 finding of the President and the current state, we can

19 proceed and that there is not a conflict of interest.

20 The matter has been referred to the prosecution for

21 consideration. As Mr. Ostberg has said, the prosecution

22 will consider what to do about it, but that does not

23 impact on the ability of these proceedings to go

24 forward. I believe even the suggestion that has been

25 raised, and this is really an issue for Mr. Delalic and

Page 2949

1 Ms. Residovic with respect to the pending proceedings

2 that are on-going, that somehow even the suggestion

3 might taint the Trial Chamber, and we have no -- the

4 prosecution has no doubt whatsoever that your Honours

5 will be able to hear the pending proceedings, which is

6 the indictment against Mr. Delalic and the others, based

7 upon the evidence that is brought before you here in

8 court, and that you will not be tainted in any way

9 whatsoever by any suppositions or things outside what is

10 brought here as evidence. Your Honours do this every

11 day. The situation is no different than if there was

12 another indictment against Mr. Delalic which was separate

13 from the current case. Certainly your Honours would be

14 able to hear one case without considering the fact that

15 there is an indictment or whatever. Here we have even

16 less. There is no charge against Mr. Delalic for

17 anything. There is absolutely no reason why this case,

18 the indictment against Mr. Delalic and the other accused

19 cannot go forward now. What, if anything, the

20 prosecution chooses to do separately with the contempt

21 does not now have any impact on these proceedings.

22 MR. MORRISON: Your Honours, that was a matter which really

23 related to the submission I made. May I just answer it

24 briefly? With great respect to my learned friend, she

25 is misdirecting her mind as to the issue. The question

Page 2950

1 of whether or not Mr. Delalic faced a separate indictment

2 is easily distinguishable on this basis. If he faced a

3 separate indictment that this Trial Chamber knew about,

4 it would be a separate indictment that involved quite

5 separate issues of evidence. If it did not involve

6 separate issues of evidence it would hardly be a

7 separate indictment. The problem in this case is that

8 the contempt relates to the evidence before the tribunal

9 on this indictment, the indictment that they are

10 hearing, and that is the fundamental difference.

11 MR. MORAN: There seems to be some kind of problem in the

12 interpretation booth.

13 THE INTERPRETER: We are having problems with the volume.

14 Could you please speak up a little bit. We are asking

15 the technicians to increase the volume.

16 MR. MORRISON: I am sorry. It is just my lack of desire to

17 shout, but I will do better. The issue is

18 fundamentally different. It is not just different in

19 issue; it is different in kind. This is an issue which

20 goes to the heart of the evidence on this indictment.

21 To suggest that there is an analogy between a case where

22 there is another indictment concerning completely

23 different evidence is, with great respect, misguided.

24 The question of the strength and indeed the expansion of

25 my submission is only one that can be made in reality

Page 2951

1 before this Tribunal once the Prosecution have acceded

2 to the learned President's invitation and made up their

3 mind whether they are going to go ahead and prosecute

4 Mr. Delalic for contempt. If they choose not to do so,

5 all well and good. If they choose to do so, then the

6 question of whether or not that hearing should take

7 place before, during or after the main indictment is a

8 separate issue to be determined at that stage, but what

9 has to be determined first is the issue of whether or

10 not the prosecution in this case are going to pursue a

11 charge or indictment against Mr. Delalic.

12 Secondly, a minor point, the question of conflict

13 of interests between a lawyer and client, that is

14 between Mr. Delalic and his other lawyers in this case,

15 is a matter for them and for Mr. Delalic. It is not,

16 with the greatest respect, a matter for the prosecution.

17 MR. MORAN: Your Honour, I would just like to add one quick

18 thing. Mr. Ostberg said that my complaint was settled

19 in a Rule 64 hearing this morning. I know there was a

20 Rule 64 hearing this morning. I was not a party to it,

21 was not invited to it. In fact, it was in closed

22 session. If my client was dealt with in a hearing

23 which we had no notice of and, in fact, were not each

24 allowed to hear, I would be very surprised.

25 JUDGE KARIBI WHYTE: Mr. Ostberg, let me find out. You

Page 2952

1 have been invited by the President to consider the

2 question of contempt of the Tribunal.


4 JUDGE KARIBI WHYTE: Now are you making up your mind

5 outside the findings of the President or within the

6 findings which we are relying upon?

7 MR. OSTBERG: I cannot rule out that that would be

8 considered with finding outside what the President has

9 found in this report.

10 MR. GREAVES: I wonder whether I might just take a moment of

11 your Honour's time? Can I explain what I think may be

12 the difficulty in this case?

13 JUDGE KARIBI WHYTE: Yes, you can.

14 MR. GREAVES: Let us suppose for a moment that the trial

15 continues on the main indictment and the prosecution are

16 carrying out a parallel investigation and indict

17 Mr. Delalic with an offence of contempt and that matter

18 remains unresolved. During the course of the trial a

19 witness for the prosecution shows all the signs of

20 having become a hostile witness and for whatever reason

21 it then becomes a matter of suspicion as to why that

22 witness has become hostile. In that manner I hope I

23 demonstrate the possibility that there is a potential

24 connection between a parallel investigation as yet

25 unresolved into a question of contempt and to the issue

Page 2953

1 of why a witness has become hostile. Your Honours have

2 to sit here and assess each witness as they come to give

3 evidence and as they give evidence determine whether

4 they are witnesses who are both honest and accurate.

5 If at the back of everybody's mind is the issue of

6 whether or not Mr. Delalic has committed a contempt by

7 attempting to intimidate witnesses and there is any

8 suspicion that a witness has become hostile because of

9 that activity, there is the clear relationship between

10 the on-going, unresolved inquiry into contempt and the

11 trial. It would be an injustice if at the end of the

12 case Mr. Delalic was cleared of the contempt but for a

13 time consideration of witnesses had been conducted by

14 your Honours against the background of that on-going

15 suspicion.

16 So your Honours, in my submission, have to look at

17 each witness knowing what the position as far as

18 Mr. Delalic is concerned is, so that you can assess have

19 they been interfered with. Is that the reason why they

20 are giving evidence in this way? Until the conclusion

21 has been reached one way or the other, and I enter not

22 into the Prosecution's decision in any way, but until

23 that matter is resolved, your Honours, with respect, and

24 I mean this with respect, cannot be seen by the outside

25 world -- it comes back to my learned friend

Page 2954

1 Mr. Morrison's phrase about justice not only being done

2 but manifestly being seen to be done -- if there is any

3 suspicion that there is any interference with a witness

4 and that consideration has been coloured by the

5 accusation or the suspicion, then there is a danger that

6 the consideration -- the defendant's interests are being

7 damaged in some way. That is the concern I think that

8 may exist. That is where the relationship lies between

9 the inquiry into contempt, which is a fundamental one,

10 and this trial.

11 JUDGE JAN: Please read Rule 77C.

12 MR. GREAVES: I am going to have to ask one of my learned

13 friends to lend me a copy because I have left mine in

14 the robing room, for which I apologise for being

15 adequately equipped.

16 JUDGE JAN: This is probably the one you have in mind.

17 77C.

18 MR. GREAVES: My learned friend Mr. Morrison has kindly lent

19 me his. That is right.

20 JUDGE JAN: That would have to be a separate enquiry

21 altogether, namely disclosure of names of the witnesses

22 will not be tantamount to interfering or intimidating a

23 witness. Why do you suppose if a witness turns hostile

24 the assumption would be that he has been interfered with

25 or intimidated?

Page 2955

1 MR. GREAVES: One has to go back to the basics.

2 JUDGE JAN: Every time a witness turns hostile we would be

3 holding an inquiry?

4 MR. GREAVES: No, I am not suggesting that. What I am

5 suggesting is let us suppose it is one of those, for

6 example, to whom protection measures relate. Why are

7 there protection measures in existence in relation to a

8 particular witness? It is in order to prevent them from

9 becoming intimidated. If they unexpectedly turn

10 hostile and theirs was one of the names that was named

11 in the list, there is the relationship, that --

12 JUDGE JAN: It is a big jump.

13 MR. GREAVES: I do not think it is.

14 JUDGE JAN: Interfere with, some positive act.

15 THE INTERPRETER: Microphone, please, your Honour.

16 JUDGE JAN: Interfere with is a positive act.

17 Intimidation is a positive act.

18 MR. GREAVES: Of course, but one then looks at the idea of,

19 if you will bear this in -- let us assume for the moment

20 that the act was done by the defendant. What would be

21 --

22 JUDGE JAN: It is a big jump.

23 MR. GREAVES: Yes, but what would be the purpose of

24 publishing these things other than to do that, if that

25 is what he did and I do not for the moment --

Page 2956

1 JUDGE JAN: There is no evidence for the moment that he did

2 and the President has left the question entirely open.

3 Maybe the prosecution decides not --

4 THE INTERPRETER: Microphone, your Honour.

5 JUDGE JAN: Maybe the prosecution decides not to proceed

6 further. Why should we hold up the trial?

7 MR. GREAVES: Absolutely, but what I am trying to

8 demonstrate is that there is the potential which can

9 arise. Again it is the crystal ball thing. We cannot

10 see a week down the line where someone turns up to

11 court, gives evidence and immediately gives signs of

12 having been interfered with by somebody.

13 JUDGE JAN: That will then be a separate inquiry

14 altogether, not connected with this inquiry.

15 MR. GREAVES: Of course, but at the back of the defendant's

16 mind, as he sees your Honour considering the witnesses,

17 what is he thinking? He may be thinking: "Gosh! They

18 think I have done this".

19 JUDGE JAN: That is why he has legal counsel available to

20 him.

21 MR. GREAVES: Yes, I accept that. All I am trying to

22 demonstrate is there is a potential relationship between

23 the on-going inquiry and what might happen here. It is

24 not, I think, a fanciful one. It is one that is

25 potentially realistic. That is the relationship and

Page 2957

1 the concern that he may have. I do not know. I may

2 be entirely wrong about that, but I can well see that

3 that might happen and be thought to cause a difficulty.

4 JUDGE JAN: What might happen is an entirely different --

5 anything can happen.

6 MR. GREAVES: Of course.

7 JUDGE JAN: You cannot hold up proceedings because

8 something might happen.

9 MR. GREAVES: No, but I am merely trying to demonstrate the

10 potential relationship that exists between the on-going

11 inquiry and this trial. They cannot be viewed

12 completely in isolation, one from the other, there is a

13 relationship. The defendant is a defendant in this

14 trial and a potential defendant in another trial. It

15 is a matter between the two things there is a

16 relationship. They are not things which you pigeon

17 hole and say they are completely separate and can have

18 no effect one upon the other.

19 JUDGE KARIBI WHYTE: Thank you very much, Mr. Greaves. I

20 am directing this to the Prosecutor. How long do you

21 think it will take you to make up your mind, because, as

22 you very well would agree, there is a fundamental

23 relationship between this case and the fall-out which is

24 now affecting Delalic, because it all arose out of the

25 same transaction which is the apparent case. If you

Page 2958

1 really want to continue, definitely you put his mind at

2 rest whether you are proceeding against him for the

3 contempt of the Trial Chamber.

4 JUDGE JAN: May I add before you answer, I think Mr. Delalic

5 in his statement to the President has disowned the

6 interview, that he did not give any interview at all.

7 MR. OSTBERG: Yes, that is true. To make up our mind to do

8 or not to do anything can be made very, very quickly.

9 This is not up to me. I have to, of course, consult

10 with the Prosecutor, Madam Arbour, about this. I

11 believe that something should be done. The prosecution

12 must take this invitation from the Honourable President

13 earnestly and really make up their mind what to do or to

14 decide we are not going to pursue this. The question

15 whether we are going to pursue or not pursue I can bring

16 to the Trial Chamber pretty quickly, I suppose, during

17 this day even.

18 JUDGE KARIBI WHYTE: This is exactly what I want to hear.

19 We can get to know what you intend doing in view of the

20 evidence before everyone here.

21 JUDGE JAN: The impression which I have gathered -- maybe

22 my impression is incorrect -- the reporter or the

23 journalist is not prepared to give any statement. This

24 is my impression. I may be wrong.

25 MR. OSTBERG: You can have any guess -- it is a good guess

Page 2959

1 what should happen. Something might be done. I can

2 give you an answer to the question if we are going to

3 pursue or if we are not going to pursue it.

4 JUDGE JAN: As a rule the journalists never disclose the

5 source of their information. They have gone to jail on

6 so many occasions, but they do not give the source of

7 their information.

8 MR. OSTBERG: I am very well aware of that, your Honour.

9 JUDGE KARIBI WHYTE: Is it possible we assemble here again

10 at 4.30 to hear a decision?

11 MR. OSTBERG: Sorry, your Honour. I did not quite hear.

12 JUDGE KARIBI WHYTE: If we can assemble today by any time

13 this afternoon to hear a decision, because I think we

14 are receiving Madeleine Albright here about 2 o'clock or

15 3 o'clock, I suppose. After that still about 4 o'clock

16 we should be able to --

17 MR. OSTBERG: I will be back with some kind of an answer,

18 your Honour.

19 JUDGE KARIBI WHYTE: Let us know exactly what is going on

20 instead of keeping us --

21 MR. OSTBERG: Of course. We have the same interest, of

22 course. Our fundamental idea of what is going to go on

23 is quite clear from what I have said before.

24 JUDGE KARIBI WHYTE: For me personally it was a little

25 difficult for counsel for Delalic to have the matter

Page 2960

1 hanging over the head of him arising out of the same

2 proceedings.

3 MR. OSTBERG: I appreciate their concerns.

4 JUDGE KARIBI WHYTE: So we will rise and reassemble at

5 about 4 o'clock.

6 (11.10 am)

7 (Hearing adjourned until 4 o'clock this afternoon)

8 (4.00 pm)

9 JUDGE KARIBI WHYTE: Good afternoon, ladies and

10 gentlemen. Can we hear the reports from the

11 Prosecutor?

12 MR. OSTBERG: Thank you, your Honour. We have tried to

13 give copies of a written statement to the court and to

14 the defence lawyers, and I will not read it out: I will

15 just point to the main points in it, these points being

16 that the prosecution looks upon the on-going trial and

17 the contempt issue as two separate matters. In the

18 submission of the prosecution there is no reason for

19 delay and we can see no conflict of interests between

20 defence lawyer and defendant.

21 However, there is an obligation in the submission

22 of the prosecution to pursue the contempt issue, and

23 that is impossible for the prosecution to predict the

24 outcome or the time-frame of such an investigation, and,

25 lastly, that the prosecution cannot possibly promise not

Page 2961

1 to bring charges that would grant some kind of immunity

2 from contempt proceedings to anybody, your Honour.

3 JUDGE KARIBI WHYTE: Before you sit down, a few

4 clarifications.


6 JUDGE KARIBI WHYTE: I am sure you have relied on the

7 reports of the President in respect of these things.


9 JUDGE KARIBI WHYTE: Now that is not a parallel future

10 investigation, because you have made a complaint to the

11 Trial Chamber and that complaint was referred for

12 investigation and investigation has reported and in

13 their report a recommendation was made for a possible

14 prosecution. You exercise your discretion. Does that

15 mean you have found there is not sufficient evidence for

16 proceeding with the contempt proceeding relying on that

17 -- on the facts of that --

18 MR. OSTBERG: As far as the defence lawyers go. On the

19 other hand there was an attempt to assist the

20 prosecution whether it has to go on on its own to find

21 out what is behind this very grave matter. That is

22 what the Prosecutor has decided to do.

23 JUDGE KARIBI WHYTE: I am not challenging what you have

24 decided to do. What I am saying is all your actions

25 have impinged on the report of the investigation so far.

Page 2962

1 MR. OSTBERG: Yes, so far.

2 JUDGE KARIBI WHYTE: That is all I wanted to know.

3 MR. MORRISON: Your Honour, if I may respond to that, the

4 prosecution made a complaint and produced before the

5 Tribunal evidence, such as it is, of two articles

6 written and the list of witnesses. This is not a

7 question of hypothesis. Those documents exist; the

8 list of witnesses exist. The whole of the procedure

9 hitherto followed by the Honourable President was to

10 attempt to investigate this matter based upon the

11 complaint, the source of the complaint put before the

12 Tribunal by the prosecution. It falls within a fairly

13 narrow register. The principal person who, in my

14 submission, could assist this Tribunal in the

15 determination of the central issue and the central issue

16 is in reality an allegation against Mr. Delalic of

17 contempt is the named journalist in paragraph 6 of the

18 President's report, Mr. Tahir Pervan and an unnamed

19 editor.

20 It seems to me, with the greatest respect, that

21 the only evidence that would be capable of founding a

22 charge of contempt would flow from information from

23 Mr. Pervan and the editor. Those are the people who

24 would have received the information. Those are the

25 people who would have been responsible for its

Page 2963

1 publication. So we are not dealing with long-term or

2 impossible hypotheses. We are dealing with hard

3 information that already exists, the two articles and

4 named people who are the best possible source of the

5 information that this Tribunal might want.

6 If it was the case that the prosecution were

7 saying that they had no present intention to investigate

8 this matter until the conclusion of the proceedings,

9 that would be one thing, and one would have to look at

10 that upon its merits, but what the prosecution say in

11 the second paragraph of their response is that they do

12 not have evidence such that it may bring contempt

13 charges and thus has no present intention to bring

14 contempt charges against anyone. What it does not say

15 is there is no present intention to investigate the

16 matter until the conclusion of the case.

17 Indeed, the first sentence of the third paragraph

18 says in reality just the opposite:

19 "The prosecution intends to vigorously pursue how

20 names of particular witnesses were published and the

21 possible violation of court orders".

22 I take no point as to that. The prosecution have

23 been invited by the learned President in the last

24 paragraph of his report to consider whether it is

25 appropriate to initiate proceedings. The only way

Page 2964

1 whether they can see whether it is appropriate to

2 initiate proceedings is to vigorously pursue the case to

3 get the evidence, but that falls, in my submission, into

4 a very small compass in this case.

5 What is not going to assist this Tribunal, and

6 I now go to the latter part of the third paragraph of

7 the prosecution response to the inquiry, if in two days

8 or in two years or, indeed, in two months or two weeks

9 this matter is again brought to a standstill because of

10 a desire to investigate or something else that is

11 discovered that could be discovered by a relatively

12 simple inquiry now.

13 The reality of the position is this, that if

14 Mr. Tahir Pervan and the editor of the newspaper in

15 question are simply going to refuse to give evidence, it

16 is impossible to see in as much as one can see into the

17 future as a reasonable Prosecutor, a reasonable

18 advocate, how there could be any evidence to bring in

19 contempt before the court as a charge. It is a

20 relatively easy matter to determine. It is not going

21 to get any better if it is left in abeyance for two

22 days, two weeks, two months or two years.

23 This is an issue, as I said this morning, which

24 goes to the very heart of the case. There was a

25 suggestion made just a moment ago, with the greatest

Page 2965

1 respect, that contempt and the trial are two separate

2 issues. That is not the case in my respectful

3 submission. If the contempt and the evidence were two

4 separate issues, I doubt very much if the prosecution in

5 this case would have raised the issue as and when they

6 did or brought any suggestion that anyone in particular

7 might have been responsible for the contempt. It is

8 because that contempt goes to the very heart of the

9 evidence that they raise the matter in the way they

10 did. They are inseparable, interwoven, and they cannot

11 easily be taken apart except by determination that the

12 available evidence or available source of evidence is

13 simply not sufficient.

14 The visit of Madeline Albright, in my respectful

15 submission, today, your Honour, is a useful

16 demonstration how this Tribunal operates in the eyes of

17 the world. It has a group of eminent and carefully

18 selected judges, and the world community is, therefore,

19 entitled to look at the Tribunal's decisions and to find

20 the highest and most careful considerations being given

21 to the fundamental issues and the rights of those being

22 tried before this Tribunal. Similar exacting standards

23 are, of course, expected of the prosecution and the

24 defence both as entities and by individual

25 professionals.

Page 2966

1 Here we have a case where Mr. Delalic's counsel,

2 Madame Residovic and Professor O'Sullivan, have plainly

3 indicated that they cannot continue to represent

4 Mr. Delalic on the main issue until the collateral issue

5 of contempt is determined. I hark back to the very

6 first words that your Honour spoke this morning. The

7 object of the exercise of the last week or so has been

8 to determine this issue. The danger is that we may not

9 be a further step forward.

10 Now, this is not an allegation, as I say, of a

11 minor contempt. It is one which goes to the very core

12 of the evidence and which has the most serious

13 implications for the probity and weight of that

14 evidence. Indeed, it is arguable that if it is proved,

15 it is not merely a contempt, but it is either an attempt

16 to pervert or an actual perversion of the course of

17 justice, one of the most serious matters that comes

18 before a criminal court.

19 The argument that evidence can be properly

20 received and judicially considered without the prior

21 determination of an issue of that magnitude without

22 glaring risk of prejudice to both the defence and,

23 frankly, to the Prosecution is fundamentally flawed and

24 raises, in my submission, avoidable difficulties. It

25 is a rhetorical question, but justice would not be seen

Page 2967

1 to be done by the world community in this case if an

2 avoidable issue was not avoided.

3 I propose, in my submission, the following simple

4 steps. The basis for the collation of the evidence is

5 plain. It is the individuals that I have named. With

6 diligence that could be done in a matter of days. Its

7 weight could be considered in a matter of hours within

8 the competence of any experienced Prosecutor. They

9 then make a final decision whether or not to

10 prosecute. That really is done at one and the same

11 time as the weight of the evidence is considered. It

12 is based upon the quality of the evidence. If the

13 decision is made not to prosecute, having considered

14 that evidence, then all well and good. One can

15 immediately restart the trial. If they do decide to

16 prosecute, having considered any evidence from the two

17 individuals from whom it is likely to come, that is

18 disclosed as it is disclosable within the rules and as

19 necessary for the defence to take necessary steps to

20 seek and clarify it. That is a matter of days. With

21 the greatest respect, if I was involved, a matter of a

22 day or two. I see no difficulty or complication in

23 that.

24 The matter then comes before this Tribunal to try

25 the contempt issue as rapidly as practicable. I would

Page 2968

1 estimate a day or two. With expedition, this could and

2 ought to be done in a timescale that need not exceed two

3 weeks. It is relatively quick, it is simple and as far

4 as the issue is concerned, has the enormous advantage

5 and benefit of being final, because there would be a

6 determination by the Tribunal on the evidence. That,

7 in my respectful submission, is the proper judicial and

8 jurisprudence course. Anything else is not only second

9 best, but it is likely to create more difficulties and

10 delays than it solves.

11 I anticipate, with the greatest respect, that this

12 Tribunal being of the nature and the seniority that it

13 is, is not interested in second best.

14 JUDGE KARIBI WHYTE: Mr. Moran, you have something to add to

15 it?

16 MR. MORAN: I think you have caught it but in the outside

17 chance that you did not see it, I will just point out

18 two things. The second to the last paragraph in the

19 Prosecutor's submission begins:

20 "Presently there has been no evidence presented in

21 the current proceeding suggesting that any accused has

22 committed contempt".

23 I would suggest that the Trial Chamber compares

24 that with paragraph 7 (b) of President Cassese's report

25 this morning. I would suggest one of two things has

Page 2969

1 occurred. Either I have greater faith in President

2 Cassese's ability as a fact-finder than other parties,

3 but the prosecution does not consider the judicial

4 inquiry to be the current proceeding. Clearly I think

5 paragraph 7 (b) presents some evidence.

6 JUDGE KARIBI WHYTE: I am not sure the Prosecutor

7 interpreted it the same way you do. He did not come to

8 the same conclusion.

9 MR. MORAN: Like I say, it very well could be that they take

10 a much narrower view of what President Cassese had found

11 and than I do. I may take a broader view of his

12 findings.

13 JUDGE KARIBI WHYTE: Actually we are not going into the

14 merits of what the report looks like now.

15 A recommendation has been made to the Prosecutor to do

16 certain things and they have decided to do other

17 things. He had in his own presentation indicated that

18 he was not actually proceeding with the prosecution for

19 contempt, but he is deciding to do other things outside

20 that. That is quite different. Ms. Residovic?

21 MS RESIDOVIC (in interpretation): Your Honour, in addition

22 to what has already been said by my learned colleagues,

23 I should like to make a few additional remarks, namely

24 it is correct that in paragraph 2 of this report the

25 Prosecutor said that for the present he has no intention

Page 2970

1 to prosecute, but also in the third paragraph he says

2 that he intends to pursue another path that you, your

3 Honour, have just referred to. Thereby the situation

4 we found ourselves in at the beginning has not been

5 substantively changed, because the last sentence of the

6 third paragraph states clearly that the Prosecutor will

7 pursue the investigation for two days or two years, and

8 he also says that no one can be in advance relieved of

9 any responsibility.

10 I , therefore, see a certain contradiction between

11 this position of the Prosecutor presented in his

12 response and the position when he said that at this

13 moment he does not see the evidence to be able to bring

14 contempt charges and especially no evidence that defence

15 counsel had any part in all this. The sentence that:

16 "Noone, the accused or anyone else, can be

17 exempted from this investigation by the Prosecutor",

18 actually places ourselves in the same position

19 that we found ourselves in at the beginning of the

20 discussion of this case. The Prosecutor sees no

21 conflict of interest and he elaborates on this.

22 I should like to draw attention at the last

23 paragraph of the prosecution's statement. I think

24 there was a misunderstanding of the position taken by

25 Mr. Delalic's defence counsel, namely if the position of

Page 2971

1 his defence counsel in this case were completely clear

2 and that there was absolutely no suspicion and that

3 there was no evidence today or tomorrow against them,

4 the question of their professional and ethical attitude

5 towards the client remains open, and according to them

6 they cannot participate in the proceedings if those

7 proceedings are linked to the investigation the

8 Prosecutor intends to conduct, and in the course of that

9 investigation certain evidence may be presented which

10 could be to the detriment of the defendant.

11 Our distinguished colleague, Mr. Greaves, tried to

12 give an example of such a possible situation. The

13 Prosecutor offers a possibility which is in accordance

14 with the rules of this Tribunal, namely it is true that

15 colleague O'Sullivan and myself were appointed by this

16 Tribunal as defence counsel. It is also true that this

17 Tribunal has the possibility to appoint other defence

18 counsel, which they feel would best protect his

19 interests and ensure a fair trial.

20 I cannot speak on behalf of future potential

21 counsel, but I know that as an attorney, if I were to

22 find myself in a situation to participate in a

23 proceedings when, due to an investigation which may last

24 two days or two years, and if this could result in any

25 prejudice towards my defendant, I would not be able to

Page 2972

1 participate in such proceedings. However, as I cannot

2 speak on behalf of anybody else but myself, I just wish

3 to draw the Trial Chamber's attention to this. Thank

4 you.

5 JUDGE JAN: Why not take paragraph 2 as it is and proceed

6 further in the matter? In the event the prosecution

7 gets any information that anybody is responsible for the

8 leakage the prosecution will bring it to our notice and

9 we will consider what is to be done. At this stage

10 there is no evidence at all, merely on the assumption

11 that something might be found we hold up the trial.

12 I just do not understand that. Take the paragraph as

13 it is. There is no evidence against anyone at all.

14 MR. MORRISON: Your Honour, with respect, I think it is

15 probably for me to try to answer the inquiry which your

16 Honour has made. It is this, that we are operating

17 within a very small sphere here. It is not suggested

18 that there is a large group of people who are potential

19 contemnors. It is suggested that Mr. Delalic is a

20 contemnor. It is suggested he has acted in concert

21 with two named individuals. That is apparent from the

22 article itself. If those two named individuals are

23 seen by an independent investigator and unequivocally

24 state that they have no intention of giving evidence or

25 coming before this Tribunal, then I find it wholly

Page 2973

1 inconceivable how this issue of contempt could be taken

2 any further. That is resolvable in a very short space

3 of time.

4 JUDGE JAN: May I say something?

5 MR. MORRISON: Of course.

6 JUDGE JAN: The prosecution concedes that at this stage it

7 has no evidence. Maybe from some other source apart

8 from these press men later on, maybe after this trial is

9 over, it comes to know who is responsible for the leak.

10 Would it not give any finding -- if the prosecution

11 gives any undertaking, would it not bind its hands in

12 future?

13 MR. MORRISON: If the prosecution were to give an

14 undertaking that they would not pursue this matter of

15 contempt until the conclusion of the main indictment, I

16 can see how that is a suggestion that would have to be

17 carefully considered on its merits by the defendant, and

18 I cannot speak without obviously consulting him, and

19 would also, no doubt, be considered by other counsel who

20 appear before him, but that is not what is said. What

21 is said is it has no present intention to bring contempt

22 charges. That is, with respect, not much of an

23 offer. Without evidence they could not bring contempt

24 charges. It is rather like me saying that I have no

25 present intention of winning the 100 metres at the next

Page 2974

1 Olympics. It is a matter of impossibility. I cannot

2 do that. They are in exactly the same impossible

3 situation. I undertake not to try to train to win the

4 100 metres at the next Olympics. If they undertake not

5 to try to obtain any evidence until the conclusion of

6 the trial, that is a different matter. It is a very

7 small compass and it is resolvable within a very small

8 compass. I am not seeking delay; I am seeking

9 expedition. This matter can be resolved quickly by the

10 efficient use of the procedures which are available.

11 I see terrible difficulties ahead if it is simply left

12 in abeyance that it might be resolved in two days, two

13 weeks, two months or two years.

14 MS McHENRY: Your Honour, if I may just briefly respond,

15 I think your Honour has -- I think the prosecution has

16 tried to be very clear and honest with everyone about

17 exactly the present situation, which is that there is

18 now no evidence against anyone and now no intention to

19 bring charges. Of course, it is the prosecution's duty

20 to investigate the matter and it will do so, and

21 although the prosecution, with all due respect,

22 appreciates defence counsel's advice as to how to

23 proceed and how long it will take, that is really a

24 matter for the prosecution. The issue before this

25 Chamber at the present time is; is there anything about

Page 2975

1 a yet possible future investigation and what will happen

2 in the future -- does it interfere with this case? Your

3 Honour, certainly with respect to any of the accused

4 there is absolutely nothing about the investigation

5 which would now cause any problem with this trial

6 proceeding.

7 Your Honours are going to decide the indictment

8 against the accused based upon the evidence brought

9 before you, witnesses, documents admitted into evidence

10 and such other things, and that is -- there cannot be

11 any realistic suggestion that your Honours will base

12 your decision on anything else. That is the issue now:

13 can the proceedings -- the indictment against the four

14 accused proceed? There is nothing which would mean that

15 the contempt proceedings which are hypothetically in the

16 future, which would cause any problems with this. In

17 fact, even the investigation -- my respectful colleague,

18 Mr. Morrison, suggests the prosecution should undertake

19 not to investigate. Your Honour, there is no reason

20 that the investigation is going to interfere again with

21 the pending proceedings and, in fact -- at least the

22 people on this bench will not be pursuing the

23 investigation. The issue is: can this proceeding go

24 forward, and I believe that is an issue for the accused

25 and his defence Ms. Residovic and Mr. O'Sullivan. The

Page 2976

1 prosecution can now not give anyone immunity. What the

2 defence is now asking the prosecution to do is say right

3 now: "We promise all of you immunity." We cannot do

4 that with respect to ourselves, with respect to anyone,

5 and there is no reason to do that.

6 The only issue that I believe is a conflict of

7 interest issue, and the prosecution does not believe

8 that there is any conflict of interest, because we do

9 not believe there is any evidence or even suggestion

10 that defence counsel was involved in this. As defence

11 counsel has pointed out, it is not the prosecution's job

12 to decide on conflict of interest. We do not see one.

13 If defence counsel, Ms. Residovic, because I do not

14 believe that this is an issue for Mr. Morrison, with all

15 due respect -- it is an issue for Ms. Residovic and

16 Mr. O'Sullivan -- if they believe there is a conflict of

17 interest, the prosecution regrets it and disagrees with

18 it, but if that is the case and they continue with that,

19 then the only thing we can suggest and this court is

20 obligated to pursue these matters expeditiously, is that

21 new counsel be appointed. If new counsel were

22 appointed, there would be no conflict of interest,

23 because certainly new counsel -- it cannot even be

24 imagined hypothetically that new counsel would have had

25 anything to do with the past possible contempt, and then

Page 2977

1 these proceedings could go forward.

2 Again, I emphasise we do not believe there is a

3 conflict of interest. There is absolutely no evidence

4 and absolutely no suggestion from anyone on the

5 prosecution bench that Ms. Residovic or Mr. O'Sullivan

6 were involved in this, but we cannot give anybody

7 immunity, and there is no necessity to give anyone

8 immunity, because what this Chamber is deciding at the

9 present time is the indictment against the four

10 accused. There are no contempt proceedings on-going.

11 All that is on-going right now is the indictment against

12 the four accused, which your Honours will have to decide

13 based upon the evidence brought in the trial proceedings

14 and, your Honour, we respectfully suggest that that can

15 go on immediately.

16 JUDGE KARIBI WHYTE: I think I had better get -- let us

17 have our bearing. All we are discussing now is the

18 reports of the investigation of the President into the

19 complaint made to this Trial Chamber. The

20 investigation came out to clear the two defence counsel

21 of any wrongdoing and suggest a possible contempt

22 proceedings against their clients, the first accused.

23 Now, you have also looked into the proceedings and

24 you have found that there is not sufficient evidence to

25 prosecute for that contempt. Is that not so?

Page 2978

1 MS McHENRY: At the present time, your Honour, that is

2 exactly correct right based on the investigation.

3 MS McHENRY: Your Honour, it is the case that based on the

4 investigation done by the President in the report, the

5 prosecution does not believe at the present time there

6 is sufficient evidence to bring forth contempt

7 proceedings.

8 JUDGE JAN: Are you talking about sufficient evidence or no

9 evidence?

10 JUDGE KARIBI WHYTE: No evidence.

11 MS McHENRY: Well, your Honour --

12 JUDGE JAN: Are you talking of sufficient evidence or no

13 evidence?

14 JUDGE KARIBI WHYTE: No evidence at all.

15 MS McHENRY: Your Honour, the prosecution -- if you would

16 --

17 JUDGE JAN: Because I find from your response you said no

18 evidence.

19 JUDGE KARIBI WHYTE: That is what you stated.

20 JUDGE JAN: Because insufficient evidence probably might

21 include innuendos also.

22 JUDGE KARIBI WHYTE: Now follow the sequence I am

23 adopting. You have also not found any evidence on

24 which you have to prosecute the first accused.

25 MS McHENRY: Correct.

Page 2979

1 JUDGE KARIBI WHYTE: Yes. Now I do not see the basis of

2 any further proceedings against anybody two weeks, two

3 years or any other time. I find it difficult to see

4 the basis for that.

5 MS McHENRY: Well, your Honour, if --

6 JUDGE KARIBI WHYTE: Especially those involved in this

7 investigation. I am not saying that you might not find

8 other persons somewhere else who might be involved, but

9 not these persons who have been investigated.

10 MS McHENRY: Your Honour, the prosecution believes that the

11 President has invited the prosecution to consider

12 whether it is appropriate to initiate proceedings

13 against Mr. Delalic for contempt of the Tribunal.


15 MS McHENRY: The prosecution is going to consider that.

16 JUDGE KARIBI WHYTE: No, it has now stated:

17 " ... does not now have evidence".

18 MS McHENRY: That is correct. The prosecution does not

19 now, based on this report, that is correct.

20 JUDGE KARIBI WHYTE: Yes. So in any event if you are not

21 investigating the issue, you are only looking for other

22 sources, not the same sources declared here.

23 MS McHENRY: Your Honour, the prosecution does not

24 understand the President's order to be a clearing of,

25 for instance, all of the accused, nor does it interpret

Page 2980

1 the President's order to mean that the prosecution

2 cannot undertake as part of its own duties an

3 investigation.

4 JUDGE KARIBI WHYTE: The prosecution is always obliged to

5 investigate anything that it wants to investigate. It

6 can do that, but when an investigation has started,

7 which has in any event been inconclusive, well, I do not

8 know. It depends on how you look at it, but I do not

9 think it is wise even as a Prosecutor.

10 MS McHENRY: I understand your Honour's point but I do not

11 believe that the prosecution interprets the President's

12 report to mean that no further investigation can take

13 place with respect to, for instance, Mr. Delalic.

14 JUDGE JAN: If at any time any evidence comes to your

15 notice that anyone is involved, will you immediately

16 bring it to the notice of this Tribunal?

17 MR. OSTBERG: Absolutely, your Honour. How could we not?

18 We think we have an obligation to try to find --

19 JUDGE JAN: Then we can consider what is to be done. At

20 this stage there is no evidence but if at any stage you

21 get any evidence, will you immediately bring this to the

22 notice of the Tribunal?

23 MR. OSTBERG: Of course.

24 MR. MORRISON: Your Honour, the difficulty with this is --

25 JUDGE JAN: There should be no difficulty, because if there

Page 2981

1 is any evidence available involving anyone, they will

2 bring it to our notice, and we can consider what will be

3 done, whether the trial is to be held up so the whole

4 thing is cleared up or nothing is to be done further.

5 At this stage it is too premature to say anything.

6 MR. MORRISON: Your Honour, that is an observation with

7 which I , with respect, entirely agree. It is an

8 observation which should have had its effect when this

9 information first came into the hands of the

10 prosecution. The prosecution chose, to use an English

11 expression, to raise a hare. The hare is running --

12 JUDGE JAN: May I say something before you start? You have

13 seen the second article, not the interview but the

14 second article, that the list of witnesses is available

15 to so many people. The defence counsel insist on the

16 paper not to publish the list because it might affect

17 their duty towards the Tribunal. So defence counsel

18 were, in fact, against the publication of any list.

19 How did the paper obtain the list? The paper has

20 indicated -- the article itself indicates from where it

21 could have obtained the list for a small amount of

22 money. At the moment there is nothing against anyone,

23 not only Delalic, because he has disowned the interview.

24 MR. MORRISON: Your Honour, with the greatest of respect,

25 exactly. If that had been the position without it

Page 2982

1 being raised and left to this Tribunal and the

2 defendants and the defence, in the last week or

3 thereabouts, however long it has been and I can't say

4 because I have not been here, this trial would have

5 carried on hearing the evidence on indictment as if

6 nothing has happened, because in reality nothing had

7 happened up until the prosecution made it happen. The

8 prosecution did not produce evidence. They produced

9 supposition. With the greatest of respect, what should

10 have happened is that the prosecution should have put

11 into train an investigation to see if there was

12 evidence, and that evidence should have been put before

13 the Tribunal.

14 JUDGE JAN: Then they would have another complaint by the

15 defence that "they are investigating us", so they

16 brought it to our notice.

17 MR. MORRISON: That may be the case, but in my respectful

18 submission, that would have been the proper way, the

19 judicial with a small "j" way of doing it, so that the

20 Tribunal was presented with evidence and not with

21 supposition. What we have ended up with is a long

22 delay and no doubt considerable expense based upon

23 supposition, and what have we ended up with?

24 Supposition. We are no further forward, but what it

25 has created -- the only thing that has come out of it is

Page 2983

1 ill. What it has created is this difficulty for the

2 defendant Mr. Delalic and his counsel. To say there was

3 not a suggestion he has been involved in contempt is

4 disingenuous. There has plainly been a suggestion

5 before the Tribunal that he is.

6 JUDGE JAN: That is why the prosecution have said plainly

7 in paragraph 2 "we have no evidence." I am not using

8 the word "insufficient" as used by Miss McHenry. "No

9 evidence against anyone." The doubt earlier created,

10 that should clear it now, and their undertaking to

11 inform the Tribunal the moment they get any evidence

12 against anyone.

13 MR. MORRISON: Well, your Honour, if the prosecution want to

14 run after the hare, catch it and put it back in the box,

15 I would be happier than anybody.

16 JUDGE JAN: They seem to have done in this paragraph 2.

17 JUDGE KARIBI WHYTE: Actually what worries me is the

18 indefinite nature of whatever investigation you intend

19 to pursue.

20 MR. OSTBERG: This, your Honour, has to do with the

21 impossibility to predict what will be the result of an

22 investigation. I cannot see a Prosecutor at the

23 Tribunal, this one or anywhere, who could sit down and

24 find a contempt such as this one we have experienced and

25 not look into it. We started with the -- to try to

Page 2984

1 find a fast way, having the President or somebody named

2 by him, as we asked for, to see if it was possible to

3 find a leak rapidly. That ended up in a way

4 inconclusively, without any conclusion, and an

5 invitation to continue to look at it in a matter of this

6 gravity. It is impossible for a Prosecutor, I believe,

7 to say: "We will do that in three weeks, four weeks."

8 We cannot tell that. We think it is an obligation of

9 the Prosecutor here, as always, to see if we can find

10 and stop this, and I find it utterly important, looking

11 on our responsibilities we have against the witnesses we

12 bring and the protections we give them, and I can find

13 no -- listening to Mr. Morrison that we should have kept

14 quiet and gone on, I cannot see this would have been a

15 possibility. We brought a fact, namely the fact that

16 our protected and other witnesses had been divulged in

17 the paper in the former Yugoslavia. I would like to say

18 we can do this in one week, no problem, and in

19 Mr. Morrison's words, to make it final, but this is

20 against nature. It cannot be done. It cannot be

21 done. We do not know -- one day every Prosecutor has

22 to close its case and send it to the archives, of

23 course, but this is not the situation for the moment,

24 and it is the standpoint of the Prosecutor that we have

25 to look into it and say we cannot say when it is

Page 2985

1 finished.

2 JUDGE KARIBI WHYTE: No, but in this case is it not the

3 involvement of Delalic that is worrying now?

4 MR. OSTBERG: That is of course worrying.

5 JUDGE KARIBI WHYTE: That is the only thing you are

6 pursuing now.

7 MR. OSTBERG: No. No. No. What the prosecution has in

8 mind is not something so narrow.

9 JUDGE KARIBI WHYTE: What is the person before the Trial

10 Chamber who needs to be cleared of any wrongdoing?

11 MR. OSTBERG: Yes.

12 JUDGE KARIBI WHYTE: If you actually intend to follow his

13 case as vigorously as you put it, you can follow the

14 case to conclusion.

15 MR. OSTBERG: I can indeed.

16 JUDGE KARIBI WHYTE: Knowing the participation in the whole

17 business.

18 MR. OSTBERG: As this case stands, as far as I can see

19 Mr. Delalic belongs to the suspects. He stands out as

20 giving -- the man who gave the interview, the man who

21 gave the names of at least somebody, etc.

22 JUDGE JAN: But he has disowned it and the paper does not

23 say the list of witnesses comes from him. It does not

24 say that.

25 MR. OSTBERG: The same thing is we can again -- I can at

Page 2986

1 least not say to be honest that that is easy to find

2 out. I do not think it is easy to find out but I think

3 it lies in the ambit of what the Prosecutor should do.

4 JUDGE KARIBI WHYTE: No. Here is a person restricted

5 somewhere. His mobility and his sources are

6 controlled. You think you cannot try to check those

7 things and know how easily he could be involved in the

8 article.

9 MR. OSTBERG: Of course. It sounds to me an impossibility

10 that this can be done in so much days and then we have

11 exhausted our ways to find out what happened.

12 JUDGE JAN: There have been so many instances of fake

13 interviews appearing in so many cases. Why not accept

14 Mr. Delalic's statement as it is, unless you have

15 evidence, and you have undertaken to bring any evidence

16 that you have as soon as you receive it before the

17 Tribunal?

18 MR. OSTBERG: The standpoint of the Prosecutor is that we

19 cannot promise a time frame.

20 JUDGE JAN: That is what I pointed out to Mr. Morrison.

21 Maybe you get the evidence three or four years later.

22 So how can you sort of bind yourself to any undertaking

23 given at this stage?

24 MR. OSTBERG: There is a time limit to everything, of

25 course.

Page 2987

1 JUDGE KARIBI WHYTE: Actually has anyone contradicted his

2 denial?

3 MR. OSTBERG: Not so far. This investigation has not even

4 started. The investigation initiated by the invitation

5 of the President has not yet started. It will not be

6 pursued by any of us standing here. It will be some

7 other organ of the Office of the Prosecutor.

8 JUDGE KARIBI WHYTE: It will be safer for you to announce

9 how soon you can proceed with your investigation so that

10 all those involved in this trial will know exactly how

11 to take their positions.

12 MR. OSTBERG: I have no mandate to say that to the Trial

13 Chamber today.

14 MR. MORRISON: I would not want to repeat myself, your

15 Honour, but the reality is that this does exist within a

16 small compass. The learned President has found out the

17 name of the journalist and his editor. With the

18 greatest respect, it seems inconceivable that if

19 evidence is not forthcoming from one or both of those

20 two named individuals, then there will be no evidence

21 forthcoming upon which any reasonable Tribunal could

22 convict.

23 JUDGE JAN: At this stage. At this stage.

24 MR. MORRISON: At this stage.

25 JUDGE JAN: Maybe some time later, maybe a month later they

Page 2988

1 get the information from some other source. How can

2 anybody bind themselves down at this stage?

3 MR. MORRISON: Your Honour, with respect, I am perhaps being

4 misunderstood. I am not asking for immunity. I am

5 not asking for a binding. What I am asking is that the

6 investigation is carried out swiftly within the

7 parameters of what is known.

8 JUDGE JAN: That is paragraph 2.

9 MR. MORRISON: And in reality that can be done quickly.

10 There are two named individuals. With all the

11 facilities at the disposal of the prosecution it is

12 inconceivable, in my respectful submission, that they

13 cannot be seen and this be determined. Is there

14 anything that they are going to say that could remotely

15 be considered as probative evidence in this case? Are

16 they going to say anything? Are they going to be

17 cautioned and simply keep quiet? That is something that

18 an investigating detective has to do day in, day out in

19 cases large and small. When he has done it, it usually

20 takes an hour or two of careful questioning to determine

21 what the outcome is. If that course is undertaken with

22 these two people and they, as I anticipate, either stand

23 upon their right of silence or simply refuse to give any

24 indication at all, then the prospect of any evidence

25 being gleaned from those sources, which are the

Page 2989

1 principal and probably the only sources that the

2 prosecution could rely upon, means that this matter can

3 be made final. They can -- a line can be drawn

4 underneath this element of the case. The Tribunal can

5 get on with it. With the greatest respect to my

6 learned friend, I do not see how this can take more than

7 a few days if it is done with expedition.

8 JUDGE JAN: But you have seen the reply of the counsel who

9 spoke to the President. He has advised his clients not

10 to answer, to give any answers. Now, in my country

11 journalists prefer to go to jail for contempt rather

12 than disclose their source of information and I think

13 this probably is the stance taken by the journalist in

14 Sarajevo.

15 MR. MORRISON: With great respect, your Honour, I suspect it

16 will be. If he is seen by an empowered Prosecutor who

17 interviews him under caution and he says that, then we

18 can draw a line under this case, and that can be done

19 very quickly indeed.

20 JUDGE JAN: But, as I said, maybe from some other source

21 they find out who had disclosed the names, then would

22 that not bind the hands of the prosecution at this

23 stage?

24 MR. MORRISON: No. With respect, it would not. If the

25 prosecution finds at some point in the future other

Page 2990

1 evidence which goes to show that Mr. Delalic or anybody

2 else is guilty of a contempt, of course they are free to

3 consider that information, and if it is viable, bring it

4 before the Tribunal, but that is speculative and in the

5 future. This is not speculative. These are names

6 that are known. These are articles which have been

7 written and are known. Their parameters and their

8 contents are finite. There is nothing in this for

9 speculation. This can be done very quickly indeed.

10 Unless it is done, my fear is that this Tribunal is

11 going to be put to a great deal more delay and expense

12 than is necessary. This is a resolvable problem.

13 What it needs is someone, with the greatest respect, to

14 -- I use another English expression, get a grip on it,

15 get it over and done with in the Prosecutor's Office.

16 MS McHENRY: Your Honour, we will just briefly respond.

17 With all due respect, it is not for defence counsel to

18 tell the prosecution exactly how to conduct the

19 investigation or how long it will take. The

20 prosecution will undertake vigorously an investigation

21 and, as the Chamber has directed, we will immediately

22 notify the Chamber if there is evidence against anyone

23 involved, but at the present time there are no contempt

24 proceedings. If there are later hypothetical contempt

25 proceedings, they do not and need not affect these

Page 2991

1 proceedings, and the prosecution believes that we can go

2 forward immediately with this trial.


4 MR. ACKERMAN: Your Honours, I have tried quite hard to

5 remain silent throughout this, and I find it now

6 impossible. I rise with the indulgence of the court

7 more in the nature of amicus curiae. It seems to me

8 that a great lot is being made out of very little with

9 regard to this matter. The prosecution has now had 13

10 days since they discovered this. On the first day this

11 was discovered the name of the journalist who wrote the

12 article was known to the Prosecution. I do not know

13 how many investigators are employed by the Prosecutor's

14 office, but it is a lot. There are several of them.

15 It seems to me that it is so simple to put an

16 investigator on an airplane, send him to see this

17 journalist and find out if the journalist is going to

18 talk. I think that quickly deals with the issues that

19 are before this court. I am getting very frustrated

20 with the delays that are being caused in this case by

21 what I think is a matter that could have been solved

22 rather quickly and can still be solved rather quickly.

23 This court, I believe, contrary to what the

24 prosecution has suggested to you, based upon its

25 responsibility to the defendants in case and to justice,

Page 2992

1 has certain supervisory powers over the conduct of the

2 prosecution and over the conduct of the defence, and

3 I think it would be entirely appropriate for this court

4 to order the prosecution within the next three days to

5 have an investigator contact these two witnesses that

6 have been identified by President Cassese and report

7 back as to whether or not they are willing to give

8 statements regarding this matter. If they are not,

9 I think that ends it. If they are, then we will have

10 information. My guess is they are going to say: "We're

11 not talking to anybody", and that we can move forward

12 with this trial. We should be able to do that as

13 quickly as Monday or Tuesday.

14 If I were to stand up in this court at the end of

15 the defence case and say to your Honours, as the

16 Prosecutor is saying to you now: "I have learned

17 information in the course of listening to the

18 Prosecution's case that requires me to conduct an

19 investigation. I have no idea how long that will take

20 your Honours. I will let you know when the defence is

21 ready to put on the defence case", you would find that

22 outrageous. You would not permit me to do that.

23 Yet the prosecution stands up in this court and

24 says: "But we are the prosecution and we are permitted

25 to take as long as we want to conduct an investigation

Page 2993

1 and cause as many difficulties to this case as we want,

2 because we are the prosecution." I think it is totally

3 appropriate for this court to say: "No. You are

4 ordered to conduct what investigation you want to

5 conduct especially with regard to this reporter and this

6 editor by Monday and tell us by Monday whether you have

7 found out any information or not. If they are not

8 going to talk to you, then we are going forward Monday

9 afternoon or Tuesday morning, or whenever, but we need

10 to move this case". Thank you.

11 JUDGE KARIBI WHYTE: Thank you very much, Mr. Ackerman. If

12 you look at paragraph 6 of the President's report, the

13 unwillingness of Tahir Pervan to give evidence there

14 before a magistrate or by telephone has been very

15 clearly stated. He has no intention to give any

16 evidence. In addition to that when, in fact, the

17 President got back to his counsel, his counsel clearly

18 stated he has advised the editor or Pervan not to say

19 anything.

20 Now, I do not know what going there again would do

21 to such a group of persons. I suppose the presence of

22 an investigator there might make a difference, but it

23 seems fairly clear that they are not cooperating, and if

24 this is the only source of evidence against the suspect,

25 I think it is fairly remote to think that one can get

Page 2994

1 anything other than being fanciful or guessing as to

2 what had transpired between them. It appears the

3 prosecution is taking a different line of action. What

4 they are now doing possibly is to investigate a

5 different line, not actually the terms of reference

6 which talks about the leakage of the information to the

7 press, but whether Delalic was the one who disclosed

8 certain names to the journalists. This is -- I do not

9 know whether -- this is not in my opinion from the terms

10 of reference. The terms of reference were quite clear

11 and precise. I agree it is contempt if the first accused

12 did that, but whether that is part of the whole

13 proceedings is a different matter.

14 At any stage the prosecution is entitled to

15 investigate whatever has been an offence within the

16 Tribunal and they are free to do that, but whether it

17 falls within the parameters of the reference is what

18 really beats me. Since they are bent on investigating

19 it, I suppose they will have to do the investigation and

20 report to the Trial Chamber, but, you see, if from their

21 first -- second paragraph here, if they have no evidence

22 now for contempt proceedings, it means the investigation

23 is looking for evidence to support contempt

24 proceedings. This is what occurs to me.

25 (Pause).. We have some problems about the

Page 2995

1 decision as relatively as easy as it is. I think a few

2 difficulties still arise. Actually our problem is the

3 unwillingness of counsel for Delalic to continue in the

4 face of investigation. I do not know whether

5 Ms. Residovic would not mind carrying on until it is

6 solved, because there is no suspicion against you or

7 Professor O'Sullivan. You have been cleared. The

8 only subject matter for investigation the prosecution

9 now says is your client. So I do not see how you are

10 indicted or seriously affected by what is going on,

11 because even if you want to withdraw, we are not sure

12 what Delalic's position will be because he might

13 object. Can we hear your views on what position you

14 are taking on this matter?

15 MS RESIDOVIC (in interpretation): Please allow me a moment

16 to consult with my colleague. (Pause).

17 MR. MORRISON: Your Honour, while that consultation is

18 taking place, may I simply indicate paragraph 6 of the

19 learned President's report. Though he deals with the

20 position of Mr. Tahir Pervan, there is no indication that

21 the editor has been seen or that his views have been

22 determined.

23 MS RESIDOVIC (in interpretation): Your Honours, after

24 consulting with my colleague Professor O'Sullivan,

25 essentially we think that our professional and ethical

Page 2996

1 position remains unchanged with respect to the former

2 position. However, we have not consulted with our

3 client, and our position being as it is, perhaps a

4 consultation with our client would either re-confirm

5 this position or provide additional explanations.

6 However, our original position remains unchanged.

7 Unfortunately Mr. Delalic is not here, so that we can

8 re-confirm this position with him as well.

9 JUDGE KARIBI WHYTE: Actually is it your position that if

10 your client is charged with contempt, you will be in a

11 difficulty to defend him?

12 MS RESIDOVIC (in interpretation): Your Honours, we had not

13 addressed that issue. We addressed the issue on the

14 situation in which we would find ourselves when we would

15 continue to represent our client during the course of

16 the investigation that may point to a conflict of

17 interest or a situation which would make the position of

18 our client more difficult and in which we participate as

19 his defence counsel. So that is the issue, not the

20 right of the Prosecutor to conduct an investigation, or

21 if he has any evidence to point to the person or persons

22 responsible for the orders issued by the Tribunal.

23 JUDGE KARIBI WHYTE: The issue in this case now is the

24 possibility of investigating your client for a possible

25 contempt proceedings. That is the only thing that is

Page 2997

1 in issue now. The prosecution says for the time being

2 the investigation of the President has not revealed any

3 evidence, but they keep their options open in case there

4 is evidence. So it is only in that case that there

5 will be a proceeding against him.

6 Now, is it your suggestion that if such a

7 situation arises, that is in conflict with your

8 professional duty?

9 JUDGE JAN: In any case, the prosecution bring to our

10 notice any time they discover any evidence against your

11 client. Why not defer your decision? If there is any

12 evidence which is brought to our notice, we will

13 immediately consider all the grounds which you are

14 taking now. It is premature at the moment to take a

15 final decision in this regard for you. There is no

16 evidence so far. If there is any, it will be brought

17 to your notice immediately. Then you can decide

18 whether you want to continue or not.

19 JUDGE KARIBI WHYTE: You have a continuing duty to defend

20 him whatever charges are brought against him, and that

21 does not conflict with your position as defence

22 counsel.

23 JUDGE ODIO BENITO: Madame Residovic, it is clear for the

24 Trial Chamber, if you allow me, that with regard to

25 defence counsel, Edina Residovic and Eugene O'Sullivan,

Page 2998

1 there is no evidence of misconduct on their part

2 according to the report of President Cassese and

3 according to the report of the prosecution also, because

4 they stated clearly:

5 "The Prosecution has no evidence that any defence

6 counsel was involved in any contempt, and the

7 prosecution has not and does not suggest in any way that

8 any defence counsel was involved".

9 So for the trial chamber it is clear that both of

10 you have not any problem to continue with the

11 proceedings. So the only problem we have here is to

12 determine the situation of Mr. Delalic according to the

13 President's report but not against you and Professor

14 O'Sullivan.

15 MS RESIDOVIC (in interpretation): Yes. So we are

16 revisiting the previous issue, and that is the issue of

17 us as counsel when we asked to make sure there was no

18 conflict and interest so that we could vigorously and

19 could vigorously defend our client, which would

20 constitute a fair and just trial before this Trial

21 Chamber. This was our original position, and it is

22 possible that it may have been resolved by some of the

23 quotes you have just offered from the report of the

24 President as well as the prosecution's response.

25 However, with the continuing investigation, I do not see

Page 2999

1 -- I cannot foresee how much conflict of interest can

2 arise from it, and therefore, your Honours, I thought

3 that at the beginning of this hearing today it seemed to

4 me pretty clear that the prosecution had within a

5 certain deadline to provide a clear answer whether there

6 is any suspicion with respect to either of us so that we

7 could continue with this trial, but in a continuing

8 investigation it is always possible that this situation

9 be brought back to its very beginning. I do not know

10 whether I have been clear enough, but the continuing

11 investigation against our client which can put him in a

12 position like that continues to be a problem.

13 JUDGE KARIBI WHYTE: I do not see how you will abandon your

14 client merely because there is proceedings against him

15 for contempt, or there is a likelihood to be one.

16 Nobody has said there is any now. There is nobody

17 saying there is proceedings now. All the prosecution

18 is saying is it is investigating whether there could

19 be. So you do not abandon him by talking about your

20 conflict, because I do not see what conflict. In fact,

21 you are duty-bound to defend him as his counsel.

22 MS RESIDOVIC (in interpretation): Your Honours, at no time

23 did we say before this Tribunal that we would leave the

24 defence of our client. It was something that came from

25 the other side of the bench. At this point we will

Page 3000

1 continue to defend our client. We will continue to

2 defend him before this Trial Chamber with no

3 restrictions, provided there is no conflict of

4 interest. We will continue to defend him and we will

5 continue to respect his position. That issue was never

6 raised among us.

7 JUDGE KARIBI WHYTE: Thank you very much. So you are not

8 abandoning him.

9 MS McHENRY: We will just clarify. The prosecution does

10 not believe there is any suspicion either against

11 counsel. So the record is clear, I notice that Ms.

12 Residovic has indicated that her client is not

13 present. We note that three of the accused are not

14 present. So the record is clear, I understand that all

15 of the accused have waived their right to appear.

16 MR. MORAN: To clarify the record on that point, I have

17 conferred with my client. He has authorised me to

18 waive his presence here this afternoon on his behalf for

19 this hearing.

20 JUDGE KARIBI WHYTE: Thank you very much.

21 MR. GREAVES: I have been desperately trying not to say a

22 word all afternoon on the grounds that occasional

23 silence from Mr.. Greaves is probably a good thing. Can

24 I offer this. I support my learned friend Mr.. Ackerman's

25 suggestion. Those of us who have the responsibility

Page 3001

1 from time to time of prosecuting cases at home have it

2 as part of our task that we advise the Crown Prosecution

3 Service as to what evidence should be sought. So

4 I hope the Tribunal will accept from me that both my

5 learned friend Mr.. Morrison and I , and I am sure other

6 prosecutors in court have experience of directing what

7 should be done in order to efficaciously bring a matter

8 to fruition. I have been sitting here all afternoon

9 trying to think of who in the next couple of years might

10 possibly turn up out of the woodwork and proffer

11 evidence to assist the prosecution in any way at all.

12 There are a very limited number of places where I, if I

13 was giving an advice on evidence in this case, could

14 conceivably think of sending my investigators to go and

15 ask questions. They are these: counsel for the

16 defence could properly be interviewed. It is likely

17 that they would say nothing, exercising their right of

18 silence. The defendant can be interviewed. Again it

19 is likely he would either exercise his right to silence

20 or say a very limited amount of things. There are two

21 other potential witnesses. One of those has already

22 been seen. One of the reasons that he gives for being

23 unable to travel to The Hague is he has lost his

24 passport. There are ways round that. Travel papers

25 can be provided to assist him to come to The Hague and

Page 3002

1 give his account about it. There is one other person

2 who comes to mind who might have information and that is

3 the editor, who has not yet been seen. It will be the

4 matter of a moment over this weekend for the

5 Prosecutor's investigators to lay hands on this man and

6 talk to him. As I say, beyond those people, I am

7 struggling to think of anybody who is conceivably able

8 to give any evidence relating to this matter. If

9 I have missed somebody, I am sure the prosecution will

10 no doubt bring that person's attention -- name to our

11 attention. So the reality is, as my learned friend

12 Mr.. Ackerman said, if your Honours are prepared to do

13 this, you are entitled to direct the prosecution to

14 conduct an investigation and to put a time limit on it,

15 and to tell them: "If you have not come up with anything

16 at that stage, that is an end of the matter." It will

17 resolve every problem.

18 JUDGE KARIBI WHYTE: Mr.. Ostberg, have you any reaction to

19 this before we terminate this dialogue?

20 MR. OSTBERG: I will indeed. We have heard suggestions as

21 to what the Prosecutor should do to easily and rapidly

22 conclude his investigation and come up with a final

23 decision, and I have tried to bring to the Trial Chamber

24 my view on that. That is not possible. That is not

25 possible to do. There are lots of avenues that I am

Page 3003

1 not mandated to bring to the Trial Chamber or the

2 defence for the prosecution's investigating personnel to

3 look into this matter. Of course, I cannot preclude

4 the Trial Chamber to prevent the Prosecutor to do things

5 and set up time-frames, but from the side of the

6 prosecution I cannot promise to do just these few things

7 that have been suggested. There are many other things

8 to be done. I concur totally with your Honour in

9 saying that this is, as far as I understood, nothing

10 that prevents this trial to go on. We stand by our

11 first view on this. These are two different matters

12 and I do hope that Madam Residovic's sees no conflict of

13 interest and that this trial can just go on, which is

14 exactly what the prosecution wants to do.

15 JUDGE KARIBI WHYTE: Actually the position you are taking

16 is that the investigation about the complicity of

17 Delalic goes beyond the persons we have now known that

18 are involved in it.

19 MR. OSTBERG: It must also be encompassed in it. He is not

20 ruled out and other persons who may pop up I can have no

21 prediction of.

22 JUDGE KARIBI WHYTE: So you still keep your likelihood of

23 investigation to two weeks or two months or years,

24 indefinite?

25 MR. OSTBERG: Might be.

Page 3004


2 MR. OSTBERG: I have tried to say from my prosecutorial

3 experience it is not possible to say this day and then

4 it is final.

5 JUDGE KARIBI WHYTE: I understand you to say that he is

6 still the subject matter of investigation for this

7 purpose?

8 MR. OSTBERG: Yes. That is the position.

9 JUDGE KARIBI WHYTE: That is what you say?

10 MR. OSTBERG: That is the position.

11 JUDGE KARIBI WHYTE: (Pause). I am very grateful for all

12 the assistance counsel have given to the Trial Chamber

13 in resolving this issue. I started with all optimism

14 and good wishes. I thought that things were easy.

15 I did not expect such a protracted argument for matters

16 which are as simple as these are. The Prosecutor has

17 decided that all is not over and that there is still

18 something left for investigations. I suppose that is

19 his discretion, if he wants to do it that way.

20 I think the issues are not as simple as that. He

21 knows the implications of delaying and those are

22 difficulties that might ensue if things go contrary to

23 how the arguments have been going and I think he will

24 expedite every facility he has to make sure that this

25 thing is concluded within a very short time.

Page 3005

1 Now, I do not think counsel for Delalic will have

2 any conflict. They have been very clear -- they have

3 been cleared of any wrongdoing. If, in fact, it

4 arises, all they need do here is to defend their client

5 with all the vigour at their disposal, but I think also

6 it is not in the best interests of the Prosecutor to

7 delay clearing this fog which is still hanging around

8 the accused persons. Even if one might say it is a

9 little different from the same thing, it is still a

10 matter which arises from the same transaction. The

11 whole episode arose from the trial he is standing, and

12 if there should be something incriminating against him

13 in addition to his trial, it should be cleared as early

14 as possible. It should not be allowed to hang over him

15 and let him continue feeling jittery about its coming

16 after.

17 It is not unusual -- I am surprised that Mr..

18 Ostberg and Ms. McHenry are not comfortable with defence

19 counsel making suggestions. I think it is a very

20 common thing. It is common for defence counsel

21 assisting suggesting as to how you can go about a

22 particular Prosecution, because it is possible you have

23 not thought about that. Some others with considerable

24 experience might have adverted to this issue and found

25 ways of getting over them. In this regard I still

Page 3006

1 believe -- I agree with them -- the earlier the matter

2 is settled, the better for everyone, because it does not

3 reflect well on the prosecution, which had all the

4 opportunities to turn over evidence to the President

5 when he was making his investigation. You had all

6 opportunity to make suggestions and direct us to what

7 should be done when the investigation was going on.

8 For the time being the Trial Chamber will adjourn

9 until 10.00 am tomorrow. Thank you very much.

10 (5.30 pm)

11 (Hearing adjourned until 10.00 tomorrow morning)

12 --ooOoo--