1 Monday, 3 August 1998
2 --- Upon commencing at 2.40 p.m.
3 (In open session).
4 JUDGE KARIBI-WHYTE: Good afternoon, ladies
5 and gentlemen. We have an application before us by the
6 Prosecutor to call new evidence. May we hear if there
7 is any objection to it.
8 MS. RESIDOVIC: Yes, there are objections and
9 the defence of Mr. Delalic has provided its objections
10 to the Prosecutor's office as requested. We are
11 gathered here today upon your order in order to hear
12 the arguments regarding this motion by the
14 JUDGE KARIBI-WHYTE: Mrs. McHenry, can we
15 hear you on your motion then.
16 MS. McHENRY: Good afternoon, Your Honours.
17 JUDGE KARIBI-WHYTE: Good afternoon.
18 MS. McHENRY: Thank you, Your Honours. I am
19 not going to go over what has already been set forth in
20 our motion. What I would like to do today is just to
21 briefly summarise some of what is set out in our motion
22 and then to answer any questions the Chamber might
24 In brief, the Prosecution seeks to introduce
25 three brief witnesses to introduce a limited number of
1 documents recently obtained by the Prosecution. I
2 believe one of the first questions that comes up is,
3 are the documents relevant? It is clear, I think, from
4 any review of the documents that they are of direct
5 relevance to a number of issues that have arisen in
6 these proceedings. They are of crucial importance and,
7 indeed, the Defence, I do not hear to argue that the
8 documents are not extremely relevant to the matters
9 before Your Honour.
10 A second question is, did the Prosecution
11 make reasonable efforts to obtain the documents prior
12 to closing its case? In our motion we have described
13 just some of the efforts and they are so numerous that
14 I will not bother going through them each in detail.
15 But certainly, the evidence, the record indicates that
16 we attempted to obtain all relevant documents from a
17 number of witnesses and from the Government of
19 Finally, the Prosecution did resort to
20 requesting and obtaining search warrants, which
21 assisted us in finally obtaining a number of the
22 documents. And really, another question is, will the
23 introduction of these documents unfairly prejudice the
24 Defence? And again, the Prosecution submits that the
25 answer is clearly no. Indeed, I don't see the Defence
1 to argue that they are prejudiced. Any sort of slight
2 prejudice that might be suffered can be remedied by
3 allowing them to call additional evidence if necessary,
4 given the limited scope of the material that the
5 Prosecution seeks to introduce that would not require a
6 lengthy delay in this trial.
7 The Prosecution submits that overall the
8 question is, will the documents, the additional
9 evidence, aid this Chamber in arriving at the truth and
10 in arriving at justice in these proceedings? And when
11 you look at all the circumstances, the Prosecution
12 submits that the answer must be yes, that these
13 documents will aid, the truth finding process will aid
14 the reaching of justice in this case and will not in
15 any way result in an unfair trial to the accused. To
16 the contrary, it will result in a fair trial to
17 everyone involved.
18 Unless Your Honours have any specific factual
19 questions or any question that I might assist, I
20 believe the other specifics are set forth in our
22 JUDGE KARIBI-WHYTE: Let's hear the Defence.
23 MS. RESIDOVIC: Your Honours, may I go to the
24 other microphone because I seem to be having some
25 technical difficulties with the headphones here.
1 JUDGE KARIBI-WHYTE: Yes, yes, you may do
3 MS. RESIDOVIC: Your Honours, I must make it
4 clear straight away what my position is regarding the
5 comment of my learned colleague, Ms. McHenry, by saying
6 that the Defence emphatically deems that at this point
7 in time there is no cause to discuss the relevance of
8 evidence, nor does it consider that regarding the
9 position of Zejnil Delalic, the offered documents have
10 any relevance. I also wish to state at the outset that
11 the re-opening of the case, as opposed to the
12 understanding for the position of the Defence shown by
13 my colleague, are indeed harmful to the position of my
14 defendant and imply a direct violation of the rights
15 envisaged by Articles 20 and 21 of the Statute.
16 In my written response filed at the request
17 of the Prosecution, with the Court on the 31st of July,
18 '98, we have referred Your Honours to only those
19 issues which have any significance and which warrant
20 the raising of the question of the re-opening of the
21 case because of alleged new evidence. In that regard,
22 we were guided by the position of this Trial Chamber,
23 which was quite clearly stated on the 24th of July,
24 when it instructed the Prosecutor to provide valid
25 reasons as to whether it has invested sufficient effort
1 in these proceedings which have been going on, as far
2 as the Prosecution is concerned, since 1995, in order
3 to obtain this evidence in a timely fashion and to
4 produce them in court.
5 That is why I shall refer very briefly to
6 what we said in our written response. But in my oral
7 argument I should like to focus on Chapter 4, which the
8 Prosecution, without any legal grounds, has introduced
9 into the proceedings at this stage claiming that the
10 question of the re-opening of the criminal proceedings
11 after the termination of the case of the Prosecution
12 and the Defence that the relevance of the new evidence
13 is of primary importance.
14 The position of Delalic's Defence is as
15 follows: First, at a session on the 24th of July, a
16 representative of the Prosecution orally made the
17 request that it be allowed to re-open the case on the
18 basis of new evidence. We submit that this Trial
19 Chamber ruled at the time regarding this oral request.
20 Secondly, the Prosecutor has not met the legal criteria
21 required for the re-opening of the case, nor has she
22 proven that she has undertaken reasonable measures in
23 order to gain possession of the evidence prior to the
24 completion of the presentation of its own evidence on
25 the 16th of February, 1998. And thirdly, the
1 Prosecutor, contrary to the criteria questions put to
2 it by the Trial Chamber has introduced in this Chamber
3 the question of the alleged relevance of the newly
4 obtained evidence.
5 With regard to the first question as we have
6 stated in our written submission, we feel that the
7 Court has decided on the 24th of July, that it is not
8 possible to present evidence through the testimony of
9 Rajko Dordic, Stephen Chambers because this is new
10 evidence and then it has also ruled that the question
11 of new evidence cannot be raised. This Chamber has
12 also ruled that Professor Stegnar cannot testify
13 because the question of her expert opinion and report
14 has already been determined by this Trial Chamber as
15 well as by the appellate, Appeals Chamber.
16 Opposition has clearly been stated earlier on
17 and also in our written response to the Prosecutor's
18 request to re-open the case. We submit that legal
19 causes are required for the re-opening of the case as
20 stated by this Trial Chamber on the 24th of July. That
21 is that the Prosecutor is obliged to show that he has
22 taken all reasonable steps to obtain the evidence, the
23 witnesses or documents, prior to the conclusion of its
24 case on the 16th of February, 1998.
25 Mr. President, you, yourself, have
1 specifically indicated the criteria that need to be met
2 and those criteria can be found in the transcript on
3 pages 14.950 and 14.972. Any different action would be
4 contrary to the provisions of an expeditious and fair
5 trial as envisaged by Articles 20 and 21 of the Court's
7 Wishing to provide grounds for the Trial
8 Chamber for it to be able to rely on decisions of other
9 Trial Chambers of this Court. In its request, the
10 Prosecutor has cited decisions in the Kovacevic and
11 Furundzija cases, neither of which in the position of
12 the Defence has any connection with the legal issue
13 before this Trial Chamber. In this way, an intent is
14 being made to assert that there is a precedent in this
15 Court along these lines. However, in the Kovacevic
16 case, it was a question of amending the indictment in
17 the pre-trial proceedings and at a time when the
18 accused had spent only ten months in detention. In our
19 case, the legal issue of re-opening the case is being
20 raised when both the Prosecution and the Defence cases
21 have been completed and after almost a year and a half
22 since the beginning of the trial and almost two and a
23 half years since the accused have been in detention.
24 The legal and actual facts regarding the
25 Furundzija case are clearly quite different and this is
1 something that we have explained in our written
2 submission. I should just like to add on this occasion
3 that those issues were raised after the accused had
4 spent only six months in detention.
5 The Prosecutor in its request could not
6 confirm that the authorities of Bosnia and Herzegovina
7 did not cooperate with her. Attached to our response
8 are Annexes 1 A and B, containing the statements of our
9 learned colleague Mr. Niemann before this Trial Chamber
10 regarding the proposal for a subpoena; the statement of
11 our learned colleague, Ms. McHenry when witness Mr.
12 Omerkic was testifying and also memos exchanged between
13 Bosnia-Herzegovina and the Prosecution.
14 It is also clear that the Prosecution and we
15 always bore in mind Articles 29 of the Statute and if
16 the Prosecutor encountered any problem in the area of
17 cooperation with competent authorities, it had a
18 possibility to request assistance from the Trial
19 Chamber. I should like you, Your Honours, that you,
20 yourself, during the Defence case did on a number of
21 occasions, draw attention to this article of the
22 statute, indicating the consequences for the Defence if
23 it does not request the assistance of the Trial Chamber
24 on time.
25 The Prosecutor also asserts that it did not
1 have any police forces at its disposal and we wish to
2 add that the testimony of the Prosecution witness,
3 Regis Abribat, stated that since the spring of '95,
4 twelve investigators were conducting investigations in
5 the territory of Bosnia-Herzegovina. And that also
6 since '96, the Prosecutor had a standing office in
7 Bosnia-Herzegovina. That it also had at its disposal
8 other instruments. And, more recently, the possibility
9 of eliciting the cooperation of the S-4 forces.
10 Furthermore, the Trial Chamber rightly
11 indicated to the Prosecutor that these were state
12 institutions. That these institutions exist for many
13 years. And that given greater effort, a higher degree
14 of efficiency, it could have been possible to review
15 the archives in a timely fashion when this would have
16 been in the interest of an expeditious and fair trial.
17 It can be seen from the Prosecutor's motion
18 itself that it has been collaborating with state
19 institutions for three years now. And, for two and a
20 half years, it has had contacts with a person who,
21 according to her allegations, did not disclose certain
22 documents. It failed to take any steps to summon a
23 witness or to gain possession of the necessary
24 documents. As anyone coming to this Court knows Jasna
25 Dorko -- Jasmin Kajunhor (Phoen), then it is very
1 strange that the Prosecutor should have learned of her
2 address only two months ago. And also strange that the
3 Prosecution did not request assistance from the Court,
4 a subpoena or any other kind of relief from the Court
5 to help it in obtaining evidence which it may have been
6 considered to be relevant.
7 In connection with the testimony of Rajko
8 Dordic, in our previous motion, when we opposed the
9 rebuttal, we presented sufficient arguments at the
10 hearing of the 24th of July, as well as arguments
11 regarding the testimony of Professor Stegnar.
12 Therefore, Mr. Delalic's Defence counsel is
13 very explicit in opposing the re-opening of the case
14 and a further continuation of proceedings because, as
15 we have pointed out in responding to the new schedule
16 of the Trial Chamber, a re-opening of the case would
17 mean a significant prolongation of the proceedings and
18 a serious threat to the rights of the accused under
19 Articles 20 and 21.
20 In the event of re-opening, the Prosecutor
21 would have to present new evidence and prove all the
22 elements of that evidence. The Defence would
23 necessarily have the right to undertake certain
24 investigations to verify that evidence and then to
25 present its own evidence. In that case, the Prosecutor
1 would be entitled to a rebuttal case and then the
2 Defence again would have the right to a rejoinder. Let
3 me just say that quite recently the Prosecutor has
4 disclosed this to us, not only what it has provided you
5 with, but all this evidence, which, given a more
6 detailed review, could fully reject this evidence that
7 is being proposed. A very brief and superficial
8 verification of the place from where this documentation
9 was taken has given us indication to believe that
10 though we did ask the Prosecutor to provide us with all
11 the documents seized there. We have not been given an
12 all the documents. But, on the other hand, we were
13 given documents that were not at all found there, but
15 Therefore, this kind of re-opening would
16 require proceedings which would last several weeks,
17 maybe even months in order to review any possible new
18 evidence in terms of its authenticity, its probative
19 value and its relevance.
20 May I now be allowed, Your Honours, to
21 comment on Part 4 of the Prosecutor's request? I have
22 already referred to the criteria and the requirements
23 made by the Trial Chamber to the Prosecution on the
24 24th of July. But in this request, the Prosecutor, in
25 Chapter 4 reviews the relevance of the documents.
1 Relying partly also on the question of the
2 admissibility of evidence according to the civil law
3 system and the Prosecutor feels that this is decisive
4 for your decision.
5 In addition to the request in which it
6 describes the documents and assesses them as if they
7 had already been presented in court, the Prosecutor,
8 this time, discloses to the Court all the documents it
9 has in mind. We have been in the proceedings for a
10 year and a half and the Trial Chamber has guided us and
11 taught us as to proper procedure. But it seems to us
12 that this is not in line with that proper procedure for
13 the proceedings to be fair and expeditious and in line
14 with the Statute. I am not trying to say this if such
15 a procedure were not be adopted, then a Trial Chamber
16 could ask the parties before starting a trial for them
17 to submit all possible documents for it to assess its
18 relevance and only then to start the trial. This kind
19 of legal procedure and actual approach to the
20 examination of any evidence, in my opinion, is not
21 acceptable and Mr. Delalic's Defence will try to
22 influence the Trial Chamber to rule in a different
24 However, even though we feel that the
25 documents proposed do not have the relevance or
1 probative value that could change the position of our
2 client, I will, being forced to react by the list of
3 documents given by the Prosecution, I shall have to
4 comment on a part of those documents.
5 As the Prosecutor relies on the legal
6 experiences and legal practices of various legal
7 systems, may I remind Your Honours that you too have
8 examined these issues and ruled on two occasions.
9 Once, when a decision had to be taken on the admission
10 of Exhibit 155 into evidence and the request of the
11 Prosecution to be ordered to submit an example of his
12 handwriting on the 19th of January and regarding the
13 decision to admit certain evidence. That is, the
14 Vienna document of the same date.
15 In both cases, Your Honours, you reviewed in
16 detail the question of relevance, reliability and
17 probative value. In both rulings, analysing various
18 national systems of the civil law and common law
19 systems, you took the position that the concept of
20 relevance implicitly contains the demand for the
21 existence of probative value.
22 As a lawyer active in criminal law in a civil
23 law system, the question of relevance in this stage of
24 the proceedings, that is new evidence, it is very
25 restrictively interpreted in law in general and it
1 contains inherently the need for two substantive
2 elements. First, to prove that this is new
3 subsequently found evidence which is in no way the
4 fault of the party offering it. And, secondly, that
5 this subsequently found evidence has such probative
6 value that it can result in a completely different view
7 of your already established facts. By way of example,
8 a situation that may lead to acquittal or, on the other
9 hand, that may lead to sentencing when the previous
10 impression was the opposite. Therefore, procedural
11 law, when assessing the relevance of new evidence,
12 focuses on the main elements of the charges made
13 against an accused, and only if it can result in a
14 substantive change of the position of the accused can
15 it be considered new and acceptable.
16 The Defence of Delalic deems that not one of
17 the documents offered is such evidence whereby things
18 that have already been said cannot be considered new
19 evidence or relevant evidence.
20 And I should like to remind you, Your
21 Honours, of the fact that during the presentation of
22 evidence by the Defence, you cautioned me repeatedly
23 that the presentation of new evidence about facts which
24 have already been testified to, that is, that the
25 multiplication of evidence does not affect its
1 probative value, nor its relevance.
2 In the position of Mr. Delalic's defence, the
3 documents described by the Prosecution, Chapter 4, page
4 11, from A to Z, is considered by us to be totally
5 irrelevant for this case. And the position of the
6 Prosecution in point 46 would mean just multiplication
7 of numerous evidence presented regarding the status of
8 detainees in Celebici. Therefore, numerous repeated
9 evidence regarding the status of prisoners, which is a
10 legal issue, and about which only this Trial Chamber
11 can rule.
12 The documents listed in the same chapter by
13 the Prosecutor on page 11, point 45, C to F, even if
14 they were authentic, would be totally irrelevant. They
15 do not refer to the points in the indictment and have
16 no significance for the position of the accused, and
17 particularly not for the position of Mr. Delalic.
18 The document referred to on point 45 F,
19 presented by the Prosecution during the Defence case
20 and shown to one of the Defence witnesses, regardless
21 of the fact that it is not authentic or reliable, it is
22 not even relevant. Because if the Prosecutor felt that
23 it was relevant, then it would have tendered it to the
24 Court as relevant evidence in line with Rule 89 C and
25 would have proposed it into evidence as it has done on
1 a number of occasions during this trial.
2 As for items 48 and 49 of the request, the
3 Prosecutor describes and alleges the relevance of an
4 allegedly found letter of Zejnil Delalic. At this
5 point in time I do not wish to go into it, as there is
6 a Court ruling regarding material found in a similar
7 fashion; but I wish to say that by commenting on this
8 document and trying to prove its relevance, the
9 Prosecutor himself interprets the letter on the basis
10 of hearsay, what the investigator told the Prosecutor,
11 and a third person to the Prosecutor, and then somebody
13 This letter, too, is in no way related to the
14 charges in the indictment and the position of
15 Mr. Zejnil Delalic. Maybe from the standpoint of
16 interference with a witness it could be relevant, but
17 even this fact is not mentioned here; because the
18 person identified on whom allegedly this letter was
19 found was never a witness on the Prosecutor's list or
20 on the Defence list.
21 The document referred to on point 50 I is not
22 relevant and has no probative value for the charges in
23 the indictment. It simply confirms that some documents
24 authored by the Prosecution were in the possession of
25 the State Commission in Sarajevo since February, '97.
1 And in view of the cooperation between the Prosecutor
2 and the authorities in Bosnia-Herzegovina, if the
3 Prosecutor had been diligent it could have gained
4 possession of those documents.
5 Delalic's defence simply cannot understand
6 that an unsigned document dated the 30th of May '92,
7 can be offered as a relevant piece of evidence.
8 In point 55 of its request, the Prosecutor
9 refers, attaches this document to Mr. Delalic, although
10 he is not mentioned in it. The document is not signed,
11 and if we were to assess it in terms of the names typed
12 by a typewriter, we could find the name of the
13 commander of the TO, the commander of the HVO, the
14 chief of police and the coordinator of combat
15 formations. There is absolutely no name attached to
16 that position.
17 The evidence presented in Court has clearly
18 shown so far that Mr. Delalic has absolutely no
19 connection with the coordinators of combat units, nor
20 did he ever hold such a position. We knew, we know who
21 was the coordinator of the battles in Bradina, in the
22 operation Oganj and other operations, but it was never
23 Zejnil Delalic. Therefore, its relevance from the
24 standpoint of this trial, as an unsigned form that has
25 no connection with any of the accused, is absolutely
2 The document on H is also irrelevant because
3 it reviews questions of the exchange of prisoners, and
4 the question of exchange of prisoners are not described
5 in any of the points of the indictment. Not only does
6 the Prosecutor have to prove the chain of custody and
7 its authenticity, from the standpoint of the
8 responsibility of Mr. Delalic it has no relevance,
9 because the superior authority and control over guards
10 has nothing to do with the exchange of prisoners.
11 The document mentioned on point 50 L is also
12 quite irrelevant from the standpoint of the
13 responsibility of Mr. Delalic in point 7 of the
14 indictment. Even if the authenticity of this document
15 were to be proven, this would just be one in a series
16 of documents and testimony that this Trial Chamber has
17 already heard, that the tactical group was used for the
18 transfer of information because it was in the immediate
19 vicinity of Sarajevo. That is, tactical groups were
20 used for the transfer of information between certain
21 bodies in Sarajevo and municipal authorities in Konjic.
22 The document referred to on item 50 M also
23 cannot be considered new evidence for the already
24 mentioned reasons, because it was agreed on the 28th of
25 August -- because it was dated 28th of August '92, and
1 it shows that the coordinator of the tactical group
2 transferred orders from Sarajevo to local authorities.
3 Documents 50 N and O also cannot be
4 considered relevant because even if they were authentic
5 and reliable, they are multiplication of previously
6 presented evidence on interrogation records and release
8 We have seen witnesses released in this way,
9 we have seen videotapes, and a part, a set of such
10 documents presented in Court.
11 The documents referred to under 52 P and Q
12 also cannot be considered new evidence because this
13 Trial Chamber has had a number of witnesses of the
14 Prosecution and the Defence regarding Zeljko Klimenta
15 and the Prosecutor, pursuant to its obligations under
16 Rule 66, submitted to the Defence already in '96 a
17 statement of the person who caused the death of Zeljko
18 Klimenta. And this fact was known to the Prosecutor in
19 1996 and, therefore, cannot be considered as new
21 If this fact had been relevant for the
22 Prosecution, it could have presented it in Court
23 earlier on.
24 The document under 52 R would also be a
25 multiplication of evidence showing that even the
1 commander of the prison didn't have knowledge as to the
2 real cause of death of individual persons. And
3 evidence has been presented in Court, the certificates
4 of the standard enterprise, its employee, the
5 statements of Dr. Petko Grubac and other witnesses; so
6 I don't wish to dwell on this at length. This is not
7 new evidence, but a document which would be
8 multiplication of evidence already presented.
9 Regarding Zejnil Delalic and documents under
10 52 Q and R have no relevance to his position or
11 responsibility for the charges contained in the
13 The document referred to in point 52 S is
14 commented on by the Prosecutor in 54 and 49, claiming
15 that it shows position of authority over the Celebici
16 prison and is linked to the statement of Hazim Delic of
17 19th of July.
18 This is a photocopy of a document, and in
19 connection with it, the Defence of Zejnil Delalic
20 wishes to state that it has no connection with the
21 position of Mr. Delalic, and at the same time it
22 objects to the interpretation made by the Prosecution
23 for the following reason: First, the Prosecution,
24 without any basis, contrary to the decision of this
25 Trial Chamber takes advantage of a statement of one of
1 the accused against another.
2 Furthermore, it uses this statement in an
3 inadequate manner, citing only parts of that statement,
4 neglecting to mention that even in that statement Hazim
5 Delic clearly responded to a specific question that
6 with regard to a particular document he was not present
7 when that document was signed by Zejnil Delalic.
8 That document in itself is contradictory. A
9 photocopy is not an authentic or reliable document, and
10 it was found, according to the Prosecutor, in places
11 with which Zejnil Delalic has no physical or
12 professional connections.
13 Even if there were a signature on such a
14 document, it would be the signature of a witness of the
15 take-over of the document and not of the person actually
16 issuing it.
17 Regarding the interpretation of this
18 statement of the accused Delic, we want to point out
19 that the same accused gave a very different
20 interpretation in his other statement of July '97, and
21 the Prosecution has not taken into account how these
22 statements were changing over a period of time.
23 Also, in assessing this statement as, this
24 document, as to its reliability, it cannot be accepted;
25 and if we should look at it from the standpoint of our
1 own practice here at this Tribunal regarding its
2 relevance and its potential value as a new document, it
3 is obvious that no new facts can be reached from this
4 statement, which includes Divjak statement, Olujic,
5 Pasalic and other numerous documents which all point to
6 who had command responsibility over the prison, and
7 then a number of documents which again point out that
8 Mr. Delalic had no authority over the prison and the
9 guards therein all the way down to the last witness who
10 testified in that regard, which was the witness of the
11 accused Landzo who had, who was fully protected, but it
12 was a witness who sent the guards from his unit and who
13 confirmed before this Trial Chamber who had the
14 authority over the guards there. In any event, it was
15 not Zejnil Delalic.
16 In other words, no documents which relevance
17 is being sought by the Prosecution are not relevant
18 with respect to the practice of this Trial Chamber and
19 this legal system, and in that respect they cannot be
20 perceived as new and relevant.
21 Therefore, we believe that the Prosecution
22 could not even have raised this issue, and once having
23 raised it, that they have not supported it by any
24 documents which should induce this Trial Chamber to
25 change its position and reopen this case.
1 Your Honours, let me point out again that my
2 client has been detained since 18 March 1996, and that
3 his psychological capacity to withstand continuation of
4 these proceedings will be a real test.
5 And also, we want to point out that the
6 Defence does not appreciate being put in a position to
7 have to argue the relevance of documents which have
8 clearly been produced, which have not been produced as
9 relevant documents at all.
10 We also say that Mr. Zejnil Delalic has
11 absolutely no relation to any of the charges stemming
12 from these newly offered documents, and therefore, we
13 believe that it is not relevant for the indictment
14 itself. Thank you.
15 JUDGE KARIBI-WHYTE: Thank you very much. Is
16 Mr. Olujic making any contribution?
17 MR. OLUJIC: Yes, Your Honour, with your
18 permission I will be much briefer in comparison to my
19 learned colleague.
20 With respect to the motion of the Prosecution
21 of the 30th of July of this year, and I must say that a
22 lot of effort was put into this motion in order to
23 reach what we call the reopening of the trial, the main
24 trial hearing. The Defence of Mr. Mucic will only
25 highlight some of the arguments already set forth by my
1 learned colleague, and let me enumerate them.
2 Number one, let me point out that any
3 reference to other precedent in other cases, let me
4 point out that each case is unique, and that the very
5 need to bring new witnesses on the part of the
6 Prosecution needs to be previously tested and proven.
7 This has not been done in this particular case, and
8 therefore, can be considered irrelevant.
9 Regarding the experts which the Prosecution
10 is asking to investigate: They could have been brought
11 forth previously, and by analysing their statements we
12 have not reached a single new fact in these proceedings
13 for which these new witnesses could or should be
15 We would also like to point out and I believe
16 the Trial Chamber is aware of this, the Prosecution had
17 ample time, more time and more resources for their own
18 investigation and anything else that they used in the
19 presentation of their evidence. If you will, they had
20 more investigators, and it has also produced more
21 witnesses than the Defence did.
22 Thirdly, Your Honours, this is a criminal
23 case during which all of the accused have been in
24 detention. And the Prosecution has literally had years
25 in order to investigate this case, and what can we say
1 to such a Prosecution which now is asking yet
2 additional time for it?
3 Given the information and the reasoning are
4 really not very convincing, and they are not legally
5 relevant for the outcome of these proceedings; in other
6 words, none of these documents cannot contribute to
7 this case to all the information that we have already
8 reached during these proceedings.
9 So, in order not to belabour the point, my, I
10 move, Your Honours, to reject the motion of the
11 Prosecution. Thank you very much.
12 JUDGE KARIBI-WHYTE: Thank you very much.
13 MR. MORAN: Your Honour, quite briefly, all
14 good things have to come to an end. And Judge Jan
15 promised me a year ago I would be home for Christmas.
16 JUDGE JAN: Which Christmas?
17 MR. MORAN: I was going to say you didn't
18 mention which Christmas. I noticed we have the
19 distinguished visitor Mr. Ostberg here, and March 10th
20 of last year he stood up at that podium and made his
21 opening statement, which was about a week short of a
22 year from the time the indictment was returned. At
23 some point this thing has to end.
24 If the Trial Chamber is going to find my
25 client innocent, he needs to be out of jail and home.
1 If the Trial Chamber is going to find my client is
2 guilty of some or all of the counts with which he is
3 charged, my client has a right to know how much of the
4 rest of his life he's going to spend in prison. It's
5 time to end this thing.
6 The Prosecution's had plenty of time, they
7 should have had enough evidence to prove their
8 indictment beyond a reasonable doubt in March, 1996
9 when they returned the indictment and ordered these
10 defendants arrested. Thank you very much, Your Honour.
11 JUDGE KARIBI-WHYTE: Any contribution?
12 MS. BOLER: Your Honour, the Defence of Esad
13 Landzo is in agreement with the other Defence counsel
14 and goes along with what's been said here today.
15 JUDGE KARIBI-WHYTE: Any replies by the
17 MS. McHENRY: Yes, Your Honour, and my reply
18 will be brief, although, if Your Honours wish me to go
19 through the documents one by one, or various efforts
20 one by one, I will do that. Otherwise, I will respond
21 very briefly.
22 Just, I think, to clarify maybe a couple of
23 misunderstandings that may have come up with Defence
24 counsel. One is with respect to the expert witness, it
25 is the case that some evidence that she would be
1 prepared to give is not new evidence, but Your Honours
2 have already ruled that is not rebuttal and we would
3 not intend to ask her questions about that material.
4 Her evidence would be very brief and would be limited
5 to the documents recently obtained by the Prosecution.
6 I thought maybe one Defence counsel had a
8 Similarly, with respect to the investigators
9 the Prosecution never stated that it had no
10 investigators. The issue with respect to something
11 that was said with respect to search warrants is that
12 the Tribunal's investigators are not, as in normal
13 police cases, armed; so their ability to do, for
14 instance, forcible entries.
15 JUDGE JAN: But can be armed. Rule 54.
16 MS. McHENRY: I can't speak to that
17 specifically. So --
18 JUDGE JAN: Can be armed.
19 MS. McHENRY: And then, finally, just with
20 respect to Mrs. Residovic pointing out that
21 multiplication of testimony does not in and of itself
22 make something true. We would certainly agree with
23 that, but these are not other witnesses who are just
24 going to repeat what other witnesses have said. These
25 are witnesses who will introduce documents from 1992
1 itself, usually signed by the accused themselves, for
2 matters that are directly relevant.
3 And finally, just again to emphasise that
4 this will not unduly delay the proceedings. It is
5 something that we know is of concern to everyone,
6 including us. The scope of the testimony would be
7 limited, we would be prepared to start tomorrow and it
8 would not delay the proceedings inordinately. And
9 certainly when you compare any sort of test to see how
10 much this would aid the Tribunal in reaching Justice,
11 any minimal delay we would submit acceptable. Thank
13 JUDGE KARIBI-WHYTE: Please, before you sit
14 down, what actually were your fears before you wanted
15 to introduce these documents? Which areas of it do you
16 think are not supported before you needed this
18 MS. McHENRY: Well, when Your Honour says
19 properly supported, the Prosecution is not stating that
20 it had no evidence or that it is insufficient evidence
21 for Your Honours to find guilt.
22 The Prosecution is certainly stating, though,
23 however, with respect to a number of issues, and let me
24 just pick out a couple, with respect to whether or not
25 Mr. Delalic had authority, any authority over Celebici
1 when he was coordinator. There is a document signed by
2 Mr. Delalic as coordinator directing that certain
3 people, it's an order from Mr. Delalic to the head of
4 the prison that, I believe, certain people should be
6 Similarly, the document with respect to the
7 hand over of authority, for instance, the document
8 dated November 17th, specifically indicates that
9 Mr. Delalic, among other things, appointed, as tactical
10 group one commander, officially appointed the commander
11 of the prison.
12 So, although I would not want to say there is
13 no evidence whatsoever, the Prosecution certainly
14 believes these documents give very specific evidence
15 about some of the contested issues in this trial, and
16 therefore would be of great assistance to Your Honours
17 in understanding the truth about what was happening in
18 1992 and coming up with a just verdict.
19 If Your Honours would like, I can go through
20 more documents specifically.
21 JUDGE KARIBI-WHYTE: Yes, yes, I think you
22 might. Of course, that is the business for which you
23 wanted new evidence to be introduced, to justify why
24 you are introducing it.
25 MS. McHENRY: Your Honours, with respect to
1 the, some of the first documents, which would include
2 documents A through F, at least, these documents, among
3 other things, are directly relevant to, one, the
4 prisoner of war status of the accused; and two, at
5 least with respect to one of the documents, discusses
6 the fact that Tactical Group 1 had authority over
7 Celebici prison.
8 JUDGE KARIBI-WHYTE: You know why I asked
9 this question? Your additional or new evidence which
10 you have now suggested appears to have implicit in it
11 the idea that you knew your investigation was not
12 exhausted at the time you brought the case.
13 MS. McHENRY: No, Your Honour, certainly the
14 Prosecution would not be suggesting that.
15 JUDGE KARIBI-WHYTE: Because these things you
16 are now trying to adduce are matters supplementary to
17 all the other evidence you have suggested before,
18 additional to what you have done before.
19 MS. McHENRY: Yes, and the Prosecution, in
20 fact, the Prosecution would point to the fact that
21 these documents are not raising new issues that no one
22 has thought about before, as proof both of how directly
23 relevant they are, and as an indication of how the
24 accused will not be prejudiced by their introduction.
25 But what they are is extremely relevant evidence,
1 documents from 1992, the time at issue, which speak to
2 the issues that are being disputed in this trial.
3 JUDGE KARIBI-WHYTE: You were aware of these
5 MS. McHENRY: Your Honours, at least with
6 respect to one of these documents, we were aware of its
7 existence because Mr. Delic, for instance, talked about
8 it, and the Prosecution had undergone significant
9 efforts to try to obtain this document, and other
11 Certainly it is the case that the Prosecution
12 believes and still believes that there are relevant
13 documents, and the Defence actually in their Defence
14 case had some, and these are some. But these are
15 particularly relevant documents that help Your Honours
16 and the fact finding function of Your Honours with
17 respect to the disputed issues.
18 So, we're not saying that there is no
19 evidence whatsoever, but we are saying that these
20 documents, which we tried to obtain all relevant
21 documents and have been for a long time; but without
22 going into great detail, there are difficulties in
23 obtaining evidence for all cases before the Tribunal.
24 In this case, the Prosecution did exercise
25 diligence and acted reasonably and recently obtained
1 these documents which go in some cases to the very
2 heart of the matter. We would say that the Defence is
3 not prejudiced by their introduction and that they will
4 assist Your Honours in this Tribunal in reaching a just
6 THE INTERPRETER: Microphone, Your Honour.
7 How did you obtain these documents now and not four
8 years ago?
9 MS. McHENRY: Well, Your Honour, I think that
10 with respect to most of the documents, they
11 were ultimately obtained after the Prosecution obtained
12 a search warrant.
13 JUDGE JAN: Why was not a search warrant
14 obtained earlier?
15 MS. McHENRY: For, among other things, just
16 one, the Prosecution had been trying, certainly before
17 a search warrant is requested. The Prosecution wants
18 to take all reasonable efforts before it seeks that
19 extraordinary measure. Here, we had requests, both
20 oral, both written and then official requests for
21 assistance under the Tribunal Statute to the Bosnia
22 government asking for all relevant documents and then
23 follow up requests, specifically, for instance, asking
24 that all members of previous commissions, including
25 Jasna turn over all documents. I would also point out
1 that a search warrant is an extraordinary measure,
2 especially in this situation where there is always the
3 possibility for violence.
4 JUDGE KARIBI-WHYTE: Ms. McHenry, are you
5 suggesting that even by the time you started your case
6 against the accused persons, you still did consider it
7 is time to have issued a search warrant?
8 JUDGE JAN: When did you realise that all the
9 documents are not being handed over to you?
10 MS. McHENRY: Well, Your Honour, I don't know
11 that I would say --
12 JUDGE JAN: You should know it because you
13 should have applied for a search warrant sometime
14 before March, '97.
15 MS. McHENRY: Well, Your Honour, certainly
16 the Prosecution did not, we believe, have sufficient
17 evidence to obtain a search warrant in March of 1997.
18 I would point out that a search warrant in the views of
19 the Prosecution is particularly given the situation in
20 the former Yugoslavia is not something that you go to
21 first because it entails potentially danger for any
22 number of people.
23 JUDGE JAN: You have not answered the
24 question. When did you realise that all the documents
25 are not being handed over to you?
1 MS. McHENRY: Well, certainly, Your Honour,
2 at various points we believed that all documents were
3 not being handed over to us, but we did not know
4 exactly where those documents were. And, in fact, if
5 you follow the chronology, you can see that some of the
6 documents have followed relatively circuitous routes to
7 get where they were ultimately seized. So the reason
8 we kept making multiple requests is because we believe
9 that there were more documents. And certainly when the
10 Defence counsel started to have documents that we knew
11 that we had not seen before, we certainly renewed our
12 efforts in that regard too.
13 JUDGE JAN: That is after you closed your
15 MS. McHENRY: That is with respect to that
16 issue, yes. But I would certainly say before we closed
17 our case, we were continuing from the highest levels of
18 the Office of the Prosecutor to the highest levels of
19 the Government of Bosnia-Herzegovina to make sure that
20 we had obtained all documents. Thank you, Your
22 MS. RESIDOVIC: Your Honours, may I just add
23 a couple of remarks. Regarding certain specific
24 documents, I think that I gave specific arguments, but
25 what my learned colleague has just said is opposite to
1 what they have produced in their written motion. It is
2 clear from it that they had contacted Jasmine Kajunhor
3 (Phoen) as early as '96 and at that she showed them
4 some document. So this was our only on, and the
5 Prosecution should have known and could have known
6 about the existence of a certain document two years
7 ago. And if there was any avoidance, I don't know,
8 there were no search warrant requested. I am not sure
9 whether these documents will produce, possibly, some
10 violence here, I am not going to comment on that. But
11 I believe that the Prosecution did obtain a number of
12 documents and they did so in a very friendly manner.
13 MR. MORAN: Your Honour, I don't know what
14 the policies are in regard to search warrants or the
15 practices are in other countries, but I think that in
16 the jurisdiction that I am familiar with, it's been
17 presented that it requires an act of congress or
18 something to get a search warrant. When, in fact, it's
19 been my experience that at least I could say dealing
20 with the United States Department of Justice, they're
21 pretty darn quick to get those things and pretty darn
22 quick to serve them, presuming that they have probable
23 cause. I don't think that it's such a shocking thing
24 to apply for a search warrant.
25 JUDGE KARIBI-WHYTE: Counsel was mainly
1 referring to the volatile situation in the jurisdiction
2 at that time. It was not such which you should just
3 apply for search warrant against such functionaries who
4 are dealing with the matter.
5 MR. MORAN: Of course search warrants by
6 their very nature can lead to very volatile
7 situations. People that engage, for instance, in the
8 drug trade and search warrants executed on them that
9 there is always a high, high degree danger of
11 JUDGE KARIBI-WHYTE: Thank you very much. I
12 think we'll make our ruling at 2.30 tomorrow
13 afternoon. We shall give a ruling.
14 MS. BOLER: Your Honours, before we close,
15 might I just bring up one matter that is set for
16 tomorrow morning at ten. I believe that last week Mr.
17 Landzo --
18 THE INTERPRETER: Microphone, please,
20 JUDGE KARIBI-WHYTE: I am not aware of any
21 matters tomorrow morning.
22 MS. BOLER: Perhaps I'll just not mention
23 anything more and I'll speak to Mr. Hocking at the
24 close of the session.
25 JUDGE KARIBI-WHYTE: Yes, I suppose it's a
1 matter not for the Trial Chamber, so you better mention
3 MR. MORAN: Your Honours, you do want us in
4 the courtroom tomorrow afternoon, the defendants and
5 us, just for our planning?
6 JUDGE KARIBI-WHYTE: I beg your pardon? I
7 didn't understand what you said.
8 MR. MORAN: Yes, Your Honour, you said you're
9 going to rule at 2.30 tomorrow.
10 JUDGE KARIBI-WHYTE: Two-thirty tomorrow.
12 MR. MORAN: I just wanted to make sure that
13 will be a session of the Court rather than a written
14 decision being handed out.
15 JUDGE KARIBI-WHYTE: A decision of the
16 Court. It could be a preliminary ruling and then I
17 give a fuller ruling later on.
18 MR. MORAN: That's fine, Your Honour. I just
19 wanted to know where I was supposed to be at 2.30
21 --- Whereupon proceedings adjourned at
22 3.50 p.m., to be reconvened on Tuesday,
23 the 4th day of August, 1998, at
24 2.30 p.m.