The International Criminal Tribunal for the Former Yugoslavia

Case No.IT-96-21

  1. 1 Tuesday, 4th November 1997

    2 (10.00 am)

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

    4 Can we have the appearances, please?

    5 MR. NIEMANN: If your Honours please, my name is Grant

    6 Niemann and I appear with my colleagues, Ms. McHenry,

    7 Mr. Turone and Mr. Khan for the Prosecution.

    8 JUDGE KARIBI-WHYTE: Can we have appearances on the

    9 Defence?

    10 MS. RESIDOVIC: Good morning, your Honours. I am Edina

    11 Residovic, representing Mr. Zejnil Delalic, along with

    12 Mr. Eugene O'Sullivan, law professor from Canada.

    13 MR. OLUJIC: Good morning, your Honours, I am Zeljko Olujic,

    14 representing Mr. Zdravko Mucic, along with my colleague,

    15 Mr. Michael Greaves.

    16 MR. KARABDIC: Good morning, your Honours, I am Salih

    17 Karabdic, attorney from Sarajevo, representing Mr. Hazim

    18 Delic, along with Mr. Tom Moran, attorney from Houston,

    19 Texas.

    20 MR. ACKERMAN: Good morning, your Honours, I am John

    21 Ackerman, I appear here on behalf of Mr. Esad Landzo. My

    22 co-counsel, Ms. Cynthia McMurrey, is unavoidably

    23 delayed this morning and probably will not be able to be

    24 with us until the afternoon session, if there is such a

    25 session. Thank you.

  2. 1 JUDGE KARIBI-WHYTE: What is the position this morning?

    2 MR. NIEMANN: We are ready to proceed with the documents, a

    3 continuation of what we were doing yesterday, if

    4 your Honours please.

    5 JUDGE KARIBI-WHYTE: Then you may well proceed.

    6 MR. ACKERMAN: Your Honour, I do not know if you have

    7 noticed, but Mr. Landzo is not with us today. I have no

    8 indication from him whether he waives his presence here

    9 or not. I cannot do it myself. I therefore object to

    10 going forward without his presence. The rule is clear,

    11 that the defendant must be present at all stages of the

    12 proceeding. He has not waived his presence here today.

    13 I cannot waive it on his behalf. I have not had any

    14 conversation with him. I do not know what his situation

    15 is. I suspect there are people in the courtroom that

    16 know a great deal more about it than I do, but I very

    17 strongly object to going forward without his presence.

    18 There are matters coming up this morning that may

    19 directly affect him. I am without any instruction from

    20 him regarding those matters. There may be things that

    21 would come up in the presentation that he would like to

    22 communicate to me in terms of possible objections,

    23 things of that nature. I strongly object to the matter

    24 going forward without his presence.

    25 JUDGE KARIBI-WHYTE: Thank you very much.

  3. 1 MR. NIEMANN: Your Honours, the Prosecution is not aware of

    2 anything in relation to this and we are not able to

    3 assist your Honours. There is a possibility though

    4 your Honours that we could avoid the difficulty

    5 envisaged by Mr. Ackerman in terms of the documents,

    6 which may have the effect of making the proceedings run

    7 a little bit more smoothly anyway; namely that I could

    8 proceed without seeking to tender any of the documents

    9 and having individual argument on each document, go

    10 through and make my submission in relation to the

    11 totality of all the documents and materials that we seek

    12 to tender, and counsel is present, they can then raise

    13 their objections tomorrow or at such time if it is

    14 necessary for their clients to be here, Mr. Ackerman's

    15 client to be here, and then run the objection at the

    16 conclusion of my full submission.

    17 So it seems to me, your Honour, that we are really

    18 only dealing with matters of law in relation to

    19 documents which have been around for some considerable

    20 time, and have already been the subject of considerable

    21 testimony. It seems to me, your Honours, that if I was

    22 to proceed to make these submissions and continue to do

    23 so, through to the conclusion that then counsel could

    24 respond at a later stage and any issues that they wish

    25 to raise in relation to them could be raised at that

  4. 1 stage, and could presumably be raised in the presence of

    2 their client.

    3 JUDGE KARIBI-WHYTE: Mr. Ackerman, is this procedure

    4 acceptable to you?

    5 MR. ACKERMAN: No, your Honour, I have no indication from my

    6 client that he is willing for any part of this process

    7 to go forward without his presence. I do not think

    8 there is a procedure that can go forward without his

    9 waiver of presence, based upon the rather strict

    10 language of the Rule of this Tribunal. If the court

    11 decides to proceed without his presence, then I would

    12 also ask leave to be excused, because I think it would

    13 be inappropriate for me to participate without him being

    14 here.

    15 JUDGE KARIBI-WHYTE: I do not know whether you are listening

    16 to what the Prosecution said. All he was doing was to

    17 tender all the documents, make his submission, and then

    18 leave you to reply later on the basis of the documents

    19 you would have received. In that circumstance, you will

    20 find that no issue of fact arises out of that legal

    21 argument. Perhaps you might be able at the time you

    22 would reply to have consulted your client and have his

    23 views on what you want to say. If you have any

    24 considerable experience on the light of the Statute,

    25 made up your mind that as long as your client is not

  5. 1 here you will not participate even in legal argument, it

    2 is your option. You will well consult your client and

    3 the Trial Chamber will adjourn to enable you and your

    4 client to decide when the Trial Chamber will sit.

    5 Perhaps the Registrar might be able to give us an idea

    6 of what is happening in the camp of the accused.

    7 (Pause).

    8 I suppose since the main problem with Mr. Ackerman

    9 is that you have not seen your client and you have not

    10 been able to discuss with him. You would want to have a

    11 discussion with him and see whether he will be able to

    12 come in by 2.30 in the afternoon, if that suits you. Or

    13 if that does not suit you, you will agree with him when

    14 you think he can come in for the Trial Chamber to sit.

    15 MR. ACKERMAN: Your Honour, you are exactly right. I want to

    16 make my position very clear so that you all understand

    17 it fully. The right of a defendant to be present at his

    18 own trial is his own personal right. It is not a right

    19 that he may exercise through counsel, except of his own

    20 will. Until my client tells me that I have the right to

    21 stand before this Tribunal and waive his presence, I do

    22 not have that right. There is no way I can acquire that

    23 right except through him, because it is his personal

    24 right to be present that is implicated here. That right

    25 is not specific as to what is going on in the

  6. 1 courtroom. Therefore, I cannot agree to anything going

    2 on in this Trial Chamber unless I have from my client a

    3 waiver of his being here during that proceeding.

    4 I have very little information about why he is not

    5 here, very little, precious little. So I have no idea

    6 what the status of his health is, I have no idea whether

    7 he can be here in a hour or tomorrow or when. Until

    8 I can find those things out and have communication with

    9 him, all I can do is tell you what I have told you, that

    10 I do not have authority from him to waive his presence.

    11 JUDGE KARIBI-WHYTE: You have actually not replied to what

    12 I said. The Trial Chamber wishes to sit again at 2.30.

    13 Are you willing to see whether you can at that time

    14 consult him and let the Trial Chamber know when he will

    15 be able to come in. By now we have still not had any

    16 medical certificate excusing him, we have nothing in

    17 front of the Trial Chamber, so if by that time you still

    18 have nothing, then we will know what to do.

    19 JUDGE JAN: You can also take instructions from him.

    20 MR. ACKERMAN: Of course, and I am perfectly willing to do

    21 that as soon as I can walk out of the door of this Trial

    22 Chamber. I will begin the effort to try to find out

    23 what his status is --

    24 JUDGE JAN: I think you had better start to do that when we

    25 adjourn.

  7. 1 MR. ACKERMAN: I am perfectly willing to do that. This came

    2 to my attention maybe about 9.45 this morning, with very

    3 little time to find out what was going on. I think

    4 there was a lot of confusion about what is going on and

    5 I am still totally confused. I have no idea what his

    6 status is.

    7 JUDGE KARIBI-WHYTE: We are going through this process

    8 because Article 21 -- the right under Article 21 is not

    9 what can be exercised unreasonably, because if that

    10 exercise interferes with the exercise of justice,

    11 I think we will have a way of dealing with this. That

    12 is why you need to consult him, to see what can be done

    13 in the circumstance.

    14 MR. ACKERMAN: Your Honour is maybe suggesting, and I think

    15 you are, that what may be happening here is just a

    16 refusal by my client to come to court.

    17 JUDGE KARIBI-WHYTE: I do not know.

    18 MR. ACKERMAN: If that is what is happening, there certainly

    19 is a way to deal with that and it should be taken.

    20 JUDGE KARIBI-WHYTE: This is what I am saying. If you

    21 consult him and then we get the feedback and know what

    22 the position is then we will know how to conduct the

    23 remainder of the trial.

    24 MR. ACKERMAN: I am not only willing to do that but anxious.

    25 JUDGE KARIBI-WHYTE: Thank you.

  8. 1 MR. NIEMANN: Your Honours, as I said earlier, we do not know

    2 anything about the situation in terms of why he is not

    3 here, but might I just say that if Mr. Ackerman was good

    4 enough to raise with his client the proposal that I have

    5 advanced, namely that I would submit the legal argument

    6 today and that if he is ill and anticipates being able

    7 to come later in the week, then legal argument from the

    8 Defence perspective would be presented at that stage.

    9 JUDGE JAN: Mr. Niemann, can any proceedings be held in the

    10 absence of the accused, any proceedings of any sort at

    11 the trial?

    12 MR. NIEMANN: I believe so, your Honours.

    13 JUDGE JAN: Let us have a look at Article 21, the right to

    14 be tried in his presence. So any proceedings which form

    15 part of the trial, they have to be held in his

    16 presence. That is the difficulty with which we are

    17 faced. Article 21.

    18 MR. NIEMANN: I am not arguing that your Honours should

    19 proceed with the matter in terms of -- in the face of

    20 the fact that he may be ill and through no cause of his

    21 own he cannot be present. I am not trying to urge

    22 that --

    23 JUDGE JAN: We do not know why he is not present today.

    24 MR. NIEMANN: I do not know why not. All I am saying --

    25 JUDGE JAN: All proceedings must be held in his presence

  9. 1 unless we find good justification for --

    2 JUDGE KARIBI-WHYTE: I do not see the argument for his

    3 rights, the case is suspended while he is unable to be

    4 here. There is no dispute about that. He has a right

    5 to be here while the trial is going on.

    6 MR. NIEMANN: Yes, and he can do it through his counsel.

    7 JUDGE JAN: He can, but he has to authorise his counsel. It

    8 is exactly what Mr. Ackerman is saying, "I must consult

    9 my client".

    10 JUDGE KARIBI-WHYTE: If he wants to be here, he has a right

    11 to be here. There is no doubt about it.

    12 MR. NIEMANN: All I wish to do, show your Honours was under

    13 Article 21, paragraph 4(d). It says:

    14 "He has the right to be tried in his presence, to

    15 defend himself in person or through assistance of

    16 counsel -- legal assistance of his own choosing."

    17 So if he chooses, he can instruct Mr. Ackerman.

    18 What your Honours are saying is it is impossible for him

    19 to do it, for the case to go on even if he instructs

    20 Mr. Ackerman that he wants him to participate in the

    21 events in his absence; my answer is he can do that.

    22 JUDGE JAN: He can waive his right, but this is his right,

    23 therefore no part of the proceedings can be held in his

    24 absence, unless he waives his right and authorises

    25 Mr. Ackerman to represent him.

  10. 1 MR. NIEMANN: I am not arguing with that. Thank you very

    2 much.

    3 MS. RESIDOVIC: Your Honours, may I ask just one question

    4 which has nothing to do with what we have discussed so

    5 far? Can we request that this communication with

    6 Mr. Landzo be conducted sooner rather than later, because

    7 our clients are waiting, and while these consultations

    8 are going on our clients are in conditions that are less

    9 than perfect, so that we may continue either as soon as

    10 possible or that our clients are returned to the

    11 detention unit, so would it be possible to obtain some

    12 kind of information within one hour? Thank you.

    13 JUDGE KARIBI-WHYTE: I have suggested we come back at 2.30.

    14 At that time every necessary consultation must have been

    15 made and then we know what to do. I suppose you prefer

    16 a shorter time, I too would, but I am imagining that we

    17 might not be able to do that before that time.

    18 MR. GREAVES: I think the concern is that the defendants are

    19 going to be kept in the cells here until 2.30. The

    20 cells here are literally just holding cells and they are

    21 not places where you want to sit for four or five hours.

    22 JUDGE KARIBI-WHYTE: They would not mind sitting in the

    23 Trial Chamber.

    24 MR. GREAVES: I am sure it is very comfortable for them, but

    25 that is Ms. Residovic's concern, that our clients are

  11. 1 going to be kept here until 2.30 in the cells, which is

    2 not really very satisfactory. That is the concern.

    3 JUDGE JAN: Mr. Landzo has some mercy for his co-accused.

    4 MR. GREAVES: I am not even going to speculate. That is all

    5 I am bothered about.

    6 JUDGE KARIBI-WHYTE: We might devise something a little

    7 better than that. (Pause).

    8 Initially I was perhaps thinking that it might be

    9 possible both consultation and the ability of Landzo to

    10 attend the Trial Chamber today, but I think on the face

    11 of what is going on now, with nobody having a very good

    12 knowledge of what is happening, I think we might as well

    13 adjourn now until tomorrow morning at 10.00, instead of

    14 everybody having different types of discomfort between

    15 now and 2.30 and we come at 2.30 and we do not even know

    16 what is going on.

    17 JUDGE JAN: I hope this will not upset your programme.

    18 JUDGE KARIBI-WHYTE: I will also ask the Registry to find

    19 out what the position is. I think that is the way we

    20 have to solve the little difficulties which have cropped

    21 up.

    22 MR. ACKERMAN: Your Honour, the information that I got this

    23 morning could even permit one to conclude that my client

    24 is not even conscious and so having any kind of

    25 communication with him until he is, of course, would be

  12. 1 impossible. I do not know that that is the case, but

    2 that is an indication that I received this morning.

    3 I need you to know I have very little information,

    4 almost none.

    5 JUDGE KARIBI-WHYTE: I think the Trial Chamber will now rise

    6 and reassemble at 10.00 tomorrow morning.

    7 (10.30 am)

    8 (Hearing adjourned until 10.00 am the following day)