Tribunal Criminal Tribunal for the Former Yugoslavia

Page 402

1 Thursday, 16 February 2006

2 [Status Conference]

3 [Open session]

4 [The accused not present in court]

5 [The accused Praljak appearing via videolink]

6 --- Upon commencing at 9.00 a.m.

7 JUDGE ANTONETTI: [Interpretation] Very well. Would you please

8 call the case, Madam Registrar.

9 THE REGISTRAR: Good morning, Your Honour. This is case number

10 IT-04-74-PT, the Prosecutor versus Jadranko Prlic and others.

11 JUDGE ANTONETTI: [Interpretation] Thank you very much. I'm now

12 turning to the Prosecution for appearances.

13 MR. SCOTT: Good morning, Your Honour. Ken Scott for the

14 Prosecution.

15 THE INTERPRETER: Microphone, please.

16 MR. SCOTT: Ken Scott for the Prosecution, Your Honour.

17 MR. MUNDIS: Daryl Mundis for the Prosecution.

18 MS. D'AOUST: [Interpretation] Good morning, Your Honour. Josee

19 D'Aoust for the Prosecution.

20 JUDGE ANTONETTI: I have a technical problem, please.

21 [Interpretation] I can't hear the interpretation.

22 Very well. I'm now turning to the Defence.

23 MR. KARNAVAS: Good morning, Your Honour. Michael Karnavas for

24 Dr. Prlic; and with me is Suzana Tomanovic, co-counsel for Dr. Prlic.

25 MS. NOZICA: [Interpretation] Good morning, I'm co-counsel for

Page 403

1 Mr. Bruno Stojic.

2 MS. ALABURIC: [Interpretation] Good morning, Your Honour. Vesna

3 Alaburic, Defence counsel for Milivoj Petkovic.

4 MR. JONJIC: [Interpretation] Good morning, Your Honour. Tomislav

5 Jonjic, Defence counsel for the accused Valentin Coric.

6 MR. IBRISIMOVIC: [Interpretation] Good morning, Your Honour. For

7 the Defence of Mr. Berislav Pusic, Fahrudin Ibrisimovic, and my legal

8 assistant.

9 JUDGE ANTONETTI: [Interpretation] Very well. Let me greet all the

10 people present in the courtroom: The Prosecution, the Defence counsel,

11 Mr. Praljak, too. I guess he's in Zagreb. I hope we soon can see him.

12 Yes, we can see him in the picture.

13 I also have a problem with interpretation. I'd like somebody to

14 come over and check. For the technical booth, apparently the volume is

15 not high enough.

16 Very well. We can proceed. As you know, this Status Conference

17 has been convened for two reasons: On the one hand, we want to take stock

18 of the pre-trial procedure, and we also want to settle a few problems in

19 view of opening this trial.

20 As you know, I have a draft agenda for the beginning of the trial

21 proceedings. If all goes well, we should start on the 25th of April, it's

22 being understood that on the day before, on the 24th, we would have a

23 Pre-Trial Conference. In other words, by that date, the Prosecution will

24 have to comply with obligations expressed in a previous order. They have

25 to provide us with charts and lists so that the Trial Chamber and the

Page 404

1 Defence counsel can cross-reference the 9.500 exhibits disclosed to the

2 Defence and the 400 Prosecution witnesses.

3 To date, I am not able at all to know which exhibit is going to be

4 introduced through which witness. As you know, Rule 90 is very specific.

5 It provides that the Chamber must control the proceedings, see how the

6 witness is going to testify, and -- so exercise the control over the mode

7 of interrogating witnesses and presenting evidence so as to make the

8 interrogation presentation effective for the ascertainment of the truth

9 and to avoid needless consumption of time. And as a Pre-Trial Judge, as I

10 told you already, once I believe that the case is trial ready, I must

11 report to the other two Judges of the Trial Chamber, pass the full file on

12 to them. And this can only be done if I am in a position to tell the

13 Judges how long the trial is likely to last, what the witnesses are going

14 to be doing in relation to the charges in the indictment, and to check

15 whether there are not too many witnesses or too many exhibits. In order

16 to do so, very quickly I must receive from the Prosecution the information

17 requested.

18 So this is not a small case where you have accused pleading guilty

19 that should be wrapped up in a matter of two or three months. Here we

20 have six accused, they all plead not guilty, and as I said, we have 9.500

21 exhibits and a forecast of 400 witnesses. If you add onto this and

22 looking at previous cases, the Hadzihasanovic-Kubura case, for instance,

23 if the Defence were to provide as many documents as the Prosecution, or

24 even more, we would be in peaks like the Himalayas when it comes to

25 deducing evidence. Equally, if the Prosecution were -- the Defence were

Page 405

1 to call as many witnesses as the Prosecution, we would have hundreds of

2 witnesses.

3 In addition to this, if I think back of a trial currently

4 happening, the Slobodan Milosevic, from what I read last week, to date 400

5 witnesses were heard and some 1.250 Prosecution exhibits were tendered,

6 including 200 video clips, and that trial has been going on for five

7 years. So if we take this as a yardstick as well as the

8 Hadzihasanovic-Kubura case, and given our current forecasts - I want to

9 avoid any misunderstanding - I can tell you that at a minimum this trial

10 is going to take at least four years, not taking into account possible

11 interruptions because of illness or other reasons, because that, too, can

12 cause delay.

13 So in order to see clearly, I really absolutely need to know the

14 following: How are the 9.500 exhibits going to be processed? How are

15 they going to be broken down, witness by witness?

16 But first of all, I must remind everybody, as this had been done

17 by the Blagojevic Chamber in a decision on the admissibility of evidence,

18 the following had been said, and I fully share their view. Pursuant to

19 the Statute, this Tribunal has as a mission to create conditions that may

20 create peace in the former Yugoslavia. In a decision of January 2003 it

21 had been said that there is no peace without justice, and to have justice,

22 you have to have truth, and you have to establish truth, and this can only

23 be done once witnesses have been heard and once evidence has been

24 produced.

25 In respect of evidence, 9.500 documents, that is, in order to help

Page 406

1 you clarify matters, next week I shall issue a decision. This has been

2 done by many Chambers, including the Blagojevic Chamber, regarding the

3 test or criteria for the admissibility of evidence. So in a nutshell, I'm

4 going to tell you - you know that, of course, but I think it's worth

5 reminding ourselves - of these criteria. You know that our Rules of

6 Procedure and Evidence is a very wise and sophisticated mix of common law

7 and civil law. With regard to evidence, the Judges of this Tribunal do

8 not have to look into evidence just on the basis of Australian law or

9 American law or German law. We must be based on the Rules, because this

10 is our main reference tool.

11 So with this as a starting point, when you look into the Rules

12 themselves, you can see that they're very flexible. In the letter and in

13 the spirit of the Rules it is rather easy to have evidence admitted, but

14 of course there are certain conditions to be fulfilled. Both Prosecution

15 and Defence must keep the following in mind: The mere fact that a

16 document is admitted as evidence during the trial proceedings does not

17 mean that the evidence is reliable, relevant, and has probative value.

18 These elements can only be determined at the end of the trial proceedings.

19 It can very well be that evidence introduced through a witness in the

20 courtroom is not very reliable or not at all prima facie, but if you think

21 that it is hardly reliable but one, two, three years down the track it can

22 be altogether different. So the fate of this evidence is determined when

23 the Judges discuss the case at the end of the trial. Only then is the

24 relevance and is the probative value determined, and this is scrutinised,

25 of course, in the light of the parties' contributions to assessing the

Page 407

1 evidence through the examination-in-chief, through cross-examination, or

2 through filings or through the final briefs.

3 Therefore -- so there can only be opposition to a piece of

4 evidence being tendered only if there is some real doubt as to the

5 authenticity of the said evidence. If the Prosecution tenders this, of

6 course the Defence can say, well, objection as to the authenticity, and of

7 course the Trial Chamber will look into the issue.

8 As to the reliability, do not confuse authenticity and

9 reliability. These are two different matters. The reliability is the

10 contents of the document. What can be said as to a given fact or as to

11 reliability of an individual? Reliability can come out in the

12 examination-in-chief, in cross-examination, or in the witness statements

13 as such, and through the system we can have an idea of the indicia of

14 reliability. But even at this stage of the proceedings we are not very

15 sure, but in the Prosecution's or the Defence's strategy, if the evidence

16 is being tendered it means that the one asking for it to be tendered

17 believes that there are other elements that are going to support this very

18 piece of evidence.

19 On the other hand, do not forget that when an exhibit is given a

20 number, if later on it turns out that it is not an authentic exhibit, if

21 it -- if problems arise, the Trial Chamber, upon request by the parties,

22 can exclude the exhibit. You know how it works.

23 And also there is this other Rule of the preponderance of

24 evidence. You know it very well, so no need to dwell on it.

25 This being said, this is my goal. This is going to be a

Page 408

1 megatrial, a multiple accused trial.

2 I can't see Mr. Praljak any more.

3 THE INTERPRETER: Interpreter's correction: It is "the best

4 evidence rule" instead of "preponderance of evidence."

5 JUDGE ANTONETTI: [Interpretation] Yes, here he is again.

6 So in order not to waste time, we must develop a system in such a

7 manner that the -- if you have a witness in the courtroom, if there is

8 evidence to be tendered, there should not be any objections, or if there

9 are any, they should only be based on the issue of authenticity, because

10 if we start having discussions on the authenticity of exhibits, that means

11 that the trial's going to be paralysed. So the mechanism we need to

12 evolve is as follows: We've got the 9.500 documents, and they've been

13 classified by date, origin, source. Of course we still haven't got the

14 witnesses. I hope that by then we will receive from the Prosecution the

15 witness list matching the exhibit list. So we've got 9.500 documents, and

16 they could already now be given numbers for identification purposes. So

17 we could have numbers from 1 to 9.499. Thereafter, when we have the

18 witnesses in the courtroom, the Prosecution will submit to the witness and

19 the Judges of the Trial Chamber a folder, a binder, containing the

20 documents to be adduced because the witness is here in the courtroom and

21 is in a position to provide information on the said documents, because

22 they have authored the documents or because they had knowledge of the

23 documents at the time. This means that once the witness has finished his

24 or her testimony, the documents will be given final numbers. And this

25 also, of course, will apply to the Defence when comes the time of the

Page 409

1 Defence case.

2 So starting from this, we have another problem that arises; the

3 e-court problem, or system. I guess you have been trained or initiated

4 into this system. Soon I'm going to issue an order on this. We're going

5 to have a specific hearing devoted to the e-court system so that the

6 Registry can come and tell everybody how a hearing can take place with the

7 e-court system. You know, it's highly sophisticated technology, and it

8 can make us save a lot of time during trial, but I personally believe that

9 there is a shortcoming with this system. The documents that are going to

10 be admitted into evidence have been scanned, will have received numbers,

11 but as a Judge, I need, when a document is presented to a witness, I need

12 to see, to feel, touch the document and compare it with other documents,

13 and this cannot happen when I'm looking at you, when I'm listening, when I

14 look at the transcript, and when I'm still using my computer. It can't be

15 done. But whilst I'm leafing through documents in a binder, I can very

16 well look at you and listen to you.

17 So I know that the Prosecution is used to doing this. It has done

18 so in previous cases when we have witnesses. The Prosecution is going to

19 have an exhibit list in relation to the specific witness.

20 This brings me to another issue. Presently I do not want the

21 Prosecution to operate in the following manner: You have a witness in the

22 courtroom. He or she is being submitted a document or two, and then a few

23 months later we have a filing for the admission of documents that could

24 have been submitted to the witness when he or she was in court. In other

25 words - and this is a very common law type of proceeding - documents must

Page 410

1 be submitted when the witness is in court. Personally, I would find it

2 very difficult to admit documents without any discussion around it or

3 around them, and discussions can only take place when the witness

4 concerned is in court.

5 I'm looking at Mr. Mundis while saying so. He knows perfectly

6 well what I'm thinking of, because we have had previous examples of this

7 type of procedure by the Prosecution.

8 A witness must be submitted all the exhibits to be tendered. Of

9 course such exhibits will be cross-examined, and the Defence will, in

10 turn, produce evidence to support their case during cross-examination. It

11 shows how important Defence counsel are. They play a major part. And

12 this was settled yesterday. Mr. Praljak must know this already.

13 Yesterday, we made a decision, asking the Registrar, in the interests of

14 justice, to assign counsel to Mr. Praljak. So in the next few days

15 Mr. Praljak will be assigned counsel. I'm sure he will be pleased by this

16 decision, but there's another side to the decision. There is an annex in

17 which Mr. Praljak is asked to answer a number of questions. So once

18 Mr. Praljak is given the decision, he will have to answer the questions

19 put by the Chamber so we will be able to move ahead much faster. In the

20 pre-trial stage now, this issue of counsel is settled. So at our next

21 meeting, we'll have a new lawyer representing Mr. Praljak.

22 At this juncture, before going on with the agenda, let me speak to

23 the pending requests before dealing with the so-called technical issues.

24 First of all, the reminder: We issued a decision yesterday

25 regarding Mr. Praljak's counsel. I've just said so.

Page 411

1 On the 3rd of February, we denied the Prosecution request for

2 judicial notice pursuant to Rule 94(A) and 89(C). On the 9th of February,

3 we also denied the Prosecution request dated 26th of January, 2006, for

4 admission of evidence by ECMM.

5 So you will have understood straight away that since these

6 requests were denied, there's no point in putting or in filing new motions

7 or requests. They could have the same fate.

8 Now, you have this chart or witness and exhibit lists. I've

9 mentioned this before. It might be that the Prosecution will want to give

10 me an answer later, but I just point out now that as a Pre-Trial Judge, I

11 have asked a similar list in the Dragomir Milosevic case, and in that case

12 the OTP largely met my request. They used the Excel software to do so

13 whilst you here say it's not possible to do so.

14 Pending requests. There's one filed on the 4th of April, 2005

15 regarding judicial notice pursuant to Rule 94(B). Soon you will have a

16 decision on this.

17 There is a Prosecution request asking the Defence to possibly

18 notify the use of the alibi special defence but that may be a motion

19 regarding the difference. There are four confidential motions regarding

20 Rule 92 bis (A), (B), (C) and (D). You will soon have a decision. They

21 will probably be joined into one single motion with one decision.

22 Then we have a September 2005 motion regarding the suppression of

23 a witness statement. Yesterday I prepared a draft decision. Therefore,

24 you should have the decision very soon.

25 There's also a motion for the production of documents. It's

Page 412

1 addressed to Croatia. That shouldn't raise too many problems. There is

2 another motion for admission of UNPROFOR documents from the Spanish

3 Battalion. Here, too, you'll soon have a decision, all the more since a

4 Spanish Battalion witness will make it possible to settle this issue very

5 soon.

6 Then we have a motion by Mr. Praljak regarding translation

7 problems for documents, but within a few days he should have a Defence

8 counsel, so this will be moot.

9 So this is regarding pending motions. I'm trying to speed up the

10 decision-making process so that they should be all settled by the 24th of

11 April. But you know I issue a decision on a daily basis. This represents

12 a lot of work.

13 Before giving the floor to the Prosecution, I believe I should

14 provide you a number of information you probably have already about the

15 preparation of the trial regarding the Judges, regarding the assistants

16 who will be helping the Chamber during the trial and who have been

17 assigned to us by the Registrar.

18 As for the Judges, I've already said so before, I will be the

19 Presiding Judge in this case, and I will be assisted by two Ad Litem

20 Judges who will be appointed by the UN Secretary-General two weeks before

21 the commencement of the trial. These two Judges will have two weeks to

22 familiarise themselves with the main exhibits, with the main materials in

23 this case. That means that we will find out, all of us, the identity of

24 these Judges around the 10th of April.

25 There is also something that is pending that has not been resolved

Page 413

1 yet. That is the question of whether we should have an additional Ad

2 Litem Judge. Therefore, if a Judge was to disappear during the trial -

3 that's happened before, unfortunately - or if a Judge is taken ill, then

4 the trial will be able to go ahead. At the moment, this is under

5 discussion in New York, but if there was to be a fourth Judge, then there

6 would be the -- the issue raised would be that of the amendment of the

7 Rules, because that is not provided for by the Rules. A lot of things are

8 provided for by the Rules, but not that case where you have an additional

9 Judge in a Trial Chamber. But this could be done very quickly. And then

10 -- but if we have the additional Judge, there would be other questions

11 that would have to be solved. Will the Judge -- would the Judge have to

12 be there during the full four years of the trial or just in case he or she

13 is needed or just at the beginning of the Prosecution case, at the time

14 when the 98 bis motions are considered or -- and at the end. These are

15 all questions that will have to be solved, answered, if that Judge, if

16 that fourth Judge is appointed. But I can't tell you any more. I know

17 the issue was raised in New York, but we have not had any feedback from

18 New York yet.

19 Now, as for the staff assisting the Trial Chamber, at the moment I

20 only have with me the legal officer, who is sitting before me, and the

21 assistant, who is sitting to my right, as well as a P4 assistant; and the

22 team of assistants will be -- receiving new members in the next few days,

23 I hope. In any case, I addressed the Registrar about that issue myself,

24 because you can perfectly understand, all of you here, that when you have

25 a case where the accused pleads guilty and the case takes four months, you

Page 414

1 need at least four assistants. But here are we in a case of a completely

2 different magnitude, and we need very much higher number of assistants

3 than in a regular case. But as of today, I do -- haven't received any

4 feedback about that particular issue. But in any case, let me tell you

5 that if I do not have at my disposal the necessary team to face with all

6 the work entailed by the trial, I will then be forced to seize the Bureau

7 of the matter, stating that I cannot preside over such a trial if I do not

8 have the necessary human resources. But in that particular matter as

9 well, I am expecting the leadership of the Tribunal to be aware of that

10 particular problem.

11 I know that, as for the Registrar, he is very aware that the

12 outcome of the trial is vital for the completion strategy, for us to

13 finish the mandate of the Tribunal before 2010. But I hope that in the

14 very near future I will be informed about the resources that will be

15 provided to the Chamber, and I will immediately inform you about that,

16 because I know that your work depends also on the response the Judges can

17 give to your motions.

18 Let me just give you an example. When you have one accused with

19 one Defence counsel, and if there is a motion, then there can be a

20 response immediately, but when you have six accused, several motions,

21 responses, et cetera, then that's a lot of work. And in order to face

22 that workload, you need to have the necessary resources. But I'm very

23 hopeful. I'm very hopeful that the necessary resources will be provided

24 to the Chamber in order to allow us to begin in the best possible

25 conditions.

Page 415

1 For the past three months, I have been working almost 24 hours a

2 day on this case, almost, although at the same time I have to work on a

3 judgement that will be issued very shortly. But you have to be aware that

4 I am dealing very closely with this particular case in order to allow the

5 Prosecution and the Defence to start the trial in the best possible

6 conditions. And as for the commencement of -- and as for this trial, I

7 mentioned earlier on that it is a trial that is likely to last a few

8 years. And on that issue, I would like to remind you all of the

9 following, and I'd like to have your reaction on that point as well: As

10 you know, it's likely that we will sit on that case for a few years.

11 That's a fact. Considering that fact, is it reasonable to have five-day

12 sittings, from Monday to Friday without any interruptions? Whereas this

13 case, because of the number of witnesses and exhibits involved, this case

14 requires a lot of work upstream and downstream by the parties. If we sit

15 from Monday to Friday, will the Defence be in a position to meet with the

16 accused in order to take stock of the situation, to consider and -- to

17 consider the cross-examinations, the Defence case, et cetera? Under such

18 circumstances, would it not be a good idea to consider a trial schedule

19 that would allow the Defence and the Prosecution two or three days to --

20 of preparation at the end of the week?

21 In that spirit, I would consider the following schedule: We could

22 begin on Monday afternoon each week, have a hearing on Tuesday, Wednesday,

23 and Thursday. Four hearings a day -- a week, in other words, to allow the

24 Defence to -- preparation time on Friday, Saturday, and Sunday, in order

25 to start work again on the following week, and so on.

Page 416

1 If the trial was to last only three or four months, then a

2 five-day working week would be perfectly acceptable, but we're looking at

3 a trial that is probably going to last a few years, so then it's

4 completely different. And when you compare the situation of this case

5 with other cases, for example Baghdad with the Saddam Hussein trial, you

6 see that in that particular case there are a few days of hearing in the

7 courtroom and then an interruption for a few weeks. In some

8 jurisdictions, hearings are held for a few days, one, two, or three days,

9 and then followed by a break of a week or so. I've had that experience

10 myself of five days of hearing in a row, and it can be quite exhausting

11 for all parties involved.

12 These are a few comments I wanted to share with you to get your

13 reaction on that point, because I would be -- I would like to have your

14 position on that particular point, particularly from the Defence counsel,

15 who of course have to work on the defence, on the preparation of the

16 defence of their respective clients.

17 But before covering the remaining items on the agenda, I would

18 like to turn to the Prosecution and ask the representatives of the

19 Prosecution where they stand currently in terms of these charts, of the

20 preparation of the charts.

21 MR. SCOTT: May it please the Court, Your Honour, we have stated

22 our position repeatedly, as you know, both in writing and orally,

23 expressing our views on this topic and the great deal of time and effort

24 that is involved in preparing these charts, which have not previously been

25 required in any case that we're aware of, and we are -- all I can say now

Page 417

1 is that we are engaged in very intense and extensive efforts to prepare

2 these charts and proceeding to complete them as soon as possible.

3 JUDGE ANTONETTI: [Interpretation] Very well. This leads me to the

4 following observations: Let me give you a background about the

5 confirmation of this case, because I was the Confirming Judge in this

6 case.

7 One day, as the Confirming Judge, I received your request for

8 confirming the indictment, and I received about two square metres of --

9 worth of documents. I did not measure all these documents precisely, but

10 I was faced with a mountain of documents. I myself, with the help of my

11 assistant, made a prima facie verification, trying to verify whether what

12 was stated in the indictment was justified by documents provided by you.

13 So there was a verification conducted using this mountain of documents

14 that had been given to us.

15 Following that process, the indictment was confirmed. But when

16 the Prosecution provided us with that mountain of documents, I tend to

17 think that the Prosecution already had an idea about the names of the

18 witnesses who are going to testify in the case and their nexus with the

19 exhibits, the material. Last time, the Defence reminded us that the

20 Prosecution has been preparing this case for the past eight years. If

21 after eight years you're not in a position to tell us today which exhibit,

22 which document will be put to each witness, this raises a major -- a

23 fundamental issue.

24 If we look at the indictment and the pre-trial brief, which is a

25 rehash of the indictment, in this pre-trial brief we had information about

Page 418

1 the way the evidence was going to put forward, and it is my duty to check

2 that. You have planned to deal with the issue of the joint criminal

3 enterprise. That's what I can read at paragraph 17 of the indictment.

4 The joint criminal enterprise, you will have to establish it, you will

5 have to demonstrate that there was a joint criminal enterprise. In order

6 to do so, you will have to call witnesses, and you have to use documents,

7 because before coming criminal, a common enterprise can be of a political

8 nature, and it only becomes a criminal enterprise once a number of crimes

9 have been committed. Therefore, you must know what witnesses will come to

10 demonstrate the existence of this joint criminal enterprise, all the more

11 so since, from what I understand, that's where you want to start the

12 trial.

13 In the second part of the pre-trial brief and of the indictment,

14 you deal with the liability of each accused under Article 7(1) of the

15 Statute, based on the joint criminal enterprise theory. In the

16 indictment, the Article 7(3) is also mentioned. It is stated in the

17 indictment that the accused are liable under Article 7(1) and/or Article

18 7(3). Therefore, Article 7(3) is mentioned in the indictment.

19 As you know, there is case law that has been developed around

20 Article 7(3); effective control on clearly identified subordinate units.

21 You also have the idea of knowledge, the concept of reasonable measures

22 that might have been taken to prevent or to stop actions, and there's also

23 the concept of punishment, penalties. And when I read the pre-trial

24 brief, I do not find much on that subject.

25 In my order, I had asked the Prosecution to prepare, take charts,

Page 419

1 taking into account Article 7(1) and 7(3), but for the time being I have

2 not received any information about that.

3 Yesterday, I read the response to the pre-trial brief by one of

4 the accused, and in at that response it was stated that the accused was

5 not in a position to know exactly what he was charged with. Furthermore,

6 if I read your submissions, I find that, according to what you say, the

7 joint criminal enterprise involved a number of persons who are dead today.

8 Thus, I do not know whether as part of your evidence you will introduce

9 evidence to show or to establish that these people who are dead today were

10 part of the joint criminal enterprise. In any case, they -- they are

11 mentioned in the indictment.

12 I also read that three persons - Kordic, Naletelic, and Blaskic -

13 three people who were convicted, were part of this joint criminal

14 enterprise. And yesterday, I found out that Blaskic and Kordic were not

15 charged with joint criminal enterprise counts. I read that with great

16 interest yesterday.

17 Therefore, it's all the more important for us to be able to

18 receive as quickly as possible this cross-reference between the exhibits

19 and between witnesses, because at the moment what we have is witnesses

20 that you have cross-referenced with the various paragraphs of the

21 indictment. This will only make sense when we have the cross-reference

22 with the exhibits, because from what I understand from your case -- but

23 what I'm saying is also in the interests of the Judges and in the

24 interests of the Defence; we all need to know where we are going, and in

25 order to know where we are going, we need to have a clear idea about the

Page 420

1 Prosecution case, about what you want to establish.

2 From what I understand, you are trying to establish there was a

3 joint criminal enterprise, then you want to move on to the individual

4 liabilities of each accused, and then you want to move on to the point of

5 the acts and crimes committed in each municipality. That's what you

6 mentioned yesterday. It's a very interesting plan of action, and that's

7 very understandable, but in order for us to work with that, the Defence

8 has to be in a position to cross-examine the witnesses, and the Judges

9 should not be confused with all the ten thousands of documents you want to

10 tender. So we need to know what documents are going to be tendered for

11 each witness, for what purpose.

12 That's why I'd like to turn to you again to tell you that it's

13 absolutely vital for us to know to which witness what exhibit is related

14 and for what purpose, to demonstrate what.

15 So what can the Prosecution tell me about this? And then

16 afterwards I will give the floor to the Defence, because I'm sure that

17 Defence counsel have a number of comments to make about this point.

18 MR. SCOTT: Mr. President, I can only say what we've said before

19 in our filings and orally. That is that the charts that Your Honour has

20 asked us to prepare are not required by Rule 65 ter and other Rules. They

21 were not required by the previous Trial Chamber, previous Pre-Trial Judge.

22 The Chamber has imposed a very large and considerable burden on the

23 Prosecution to prepare these particular charts, and it should not come as

24 any surprise to anyone that they will take very considerable time and

25 effort to prepare. It is an entirely false argument and a false position

Page 421

1 for anyone to suggest that the Prosecution is not prepared to go to trial,

2 because we have repeatedly stated that we are prepared, and we stated so

3 in our filing on the 30th of January, 2006. However, if the Pre-Trial

4 Judge wishes to impose new and additional requirements, then in all

5 respect to the Judge, you have to allow us sufficient time to prepare

6 those documents. They were not prepared before and they were never

7 required before.

8 So all I can say, Your Honour, is that the Prosecution is engaged

9 in intense efforts, in extensive efforts to prepare the material as soon

10 as we possibly can.

11 JUDGE ANTONETTI: [Interpretation] Very well. I take good note of

12 the fact of what you've just said, and I'm going to give the floor to the

13 Defence counsel later, but let me try to assist you here.

14 I had a look at the crimes committed in the Capljina municipality,

15 and when I read your submissions, I find that a number of events took

16 place on the 10th of May, 1993; on the 20th of April, 1993; on the 13th of

17 July, 1993; from the 13th of -- to the 15th of July, 1993; on the 11th of

18 August; and then events took place between the 27th and the 5th of August,

19 1993; and then other events in August and September in that municipality.

20 In other words, based on these, these -- or during these periods, at these

21 dates, a number of events took place.

22 Let me just take three of them. There was a case of wilful

23 killing, or murder, of an 83-year-old person. Twelve people disappeared

24 in Brdo, and two women are alleged to have been killed in Kevcici. So if

25 we just take these specific events, within 15 to 20 minutes, based on the

Page 422

1 list of exhibits - and I can do that myself - you should be in a position

2 to tell us what exhibits will be used to demonstrate that an 80-year-old

3 person was killed in Kevcici.

4 If we stay in the same municipality, we see that three mosques

5 were destroyed there: The Oplicici mosque in Lokve, and the one located

6 in Visici. That's what we can read in your submissions. Three mosques

7 were destroyed. But that's not enough. You have to prove that these

8 mosques were indeed destroyed. How can you prove? Through witnesses or

9 through documents. So you have to look through your documents, any

10 reference to these three mosques, but I don't think that such an exercise

11 will take weeks. And I can give you further examples.

12 If you do not conduct that exercise, if you do not do that work, I

13 will have to do it instead of you. In other words, you're asking the

14 Judge to do what it is your duty to do, to do your work for you.

15 I would now like to give the floor to the Defence.

16 MR. KARNAVAS: Again, Mr. President, good morning. First let me

17 just touch upon this last issue. I believe the Prosecution is in error

18 when it states that never before has it been required to provide the sort

19 of charts that has been requested by this particular Chamber. It is my

20 understanding that in the Stakic case and in the Blagojevic case both

21 Trial Chambers requested what they called proofing charts. Judge

22 Schomburg began that tradition. It was very useful, because again it

23 assists everyone, including the Defence, but also, more importantly, the

24 Trial Chamber, because unlike in the civil tradition, there is no dossier,

25 and of course the Trial Chamber is entitled to be prepared because they

Page 423

1 have certain mandates, one of which is questioning witnesses if they feel

2 it necessary.

3 So I believe there has been a procedure set in place, one that was

4 used in the past, one that the Prosecution was aware of, one that should

5 have been done by the Prosecution irrespective of the Trial Chamber's

6 order, because I think, in a case of this magnitude, it is humanly

7 impossible to sift through the 9.000 plus exhibits, or whatever the number

8 is, and try to figure out what it is they're trying to prove.

9 What compounds the situation is the fact -- is the way the

10 indictment has been drafted, which in my opinion is done so in a very

11 American approach, and I say that having practised in the United States

12 where the tradition is to charge everything that is virtually within the

13 Statute so nothing is left out in case the jury may come back and find one

14 scrap of evidence to convict on something.

15 The Trial Chamber quite rightly pointed out the Rules of Evidence

16 that are applied in this Court which are of a much more flexible nature,

17 one that is primarily based on the civil law system and one that makes

18 complete sense. Keeping that in mind, however, doesn't mean that the

19 Defence should put in a position where it literally has to try to find the

20 needle in the haystack. Preparing a case of this magnitude for the

21 Defence is virtually -- it's made virtually impossible by the way the

22 indictment is drafted. They have -- if you go through it carefully, and

23 when you sit down and you try to have a discussion with the Prosecution at

24 the 65 ter meetings, it is quite obvious that it is not just the charges

25 themselves but it's everything that's contained within the four corners of

Page 424

1 those documents called the indictment, that the Prosecution wishes to use

2 at some point or another, be it -- be it what they call background

3 information or what have you, they want to use anything that they possibly

4 can so that at the end of the trial they can argue that, one, that the

5 Defence had sufficient notice; and two, if it was stated in the indictment

6 and it wasn't challenged, you can accept it and make it part -- or factor

7 it into your conclusions at the end of the trial.

8 I think the Trial Chamber is correct in pointing out that when, as

9 I believe I understand the Trial Chamber's concern, was when the

10 indictment comes forward to be confirmed, in essence if you are being

11 provided with about two metres of documents, that in and of itself would

12 give an indication that, one, the Prosecution should be at that point in

13 time prepared to go to trial; and two, they would at least know what their

14 case is. I always like to say, when I teach trial advocacy, you have to

15 know your destination in order to get there. But we have, however -- the

16 tradition, unfortunately, in this Tribunal has emerged is one where you

17 can indict and then, as the years go by, continue to investigate and hope

18 and pray that somehow you will find evidence that will support something

19 that you have alleged in the indictment because you are alleging

20 everything, God forbid something you should miss and somebody might be

21 acquitted. I think that's the approach they have taken.

22 So as -- here we are, and rightly so, Your Honour, you pointed out

23 that eight years or so they have been working on these cases, because they

24 have been building it up. You're also right in noting that in the

25 previous cases, Blaskic, Kordic, Naletelic and Martinovic, joint criminal

Page 425

1 enterprise, they were never claimed to have been members of the joint

2 criminal enterprise yet today we find that they are included in that and

3 the Prosecution wishes to use those judgements as a basis of forming

4 adjudicated facts and agreed facts and also to bring in all sorts of

5 testimony and documents uncorroborated in this particular trial, and we

6 find that objectionable.

7 Why? If you look at -- and I've mentioned this before in some of

8 the 65 ter meetings: If you look at what was alleged in those cases and

9 if you, for instance, approach it from a very continental approach, you're

10 going to only direct your defence based on what you're being charged. So

11 if they're bringing in concepts such as whether there was an international

12 armed conflict or whether there was -- what the structure of the HVO

13 government was, or Herceg-Bosna was, and those are not part of the charges

14 that a Defence has to attack in order to represent his client, much of

15 that goes unchallenged and now we find ourselves in the situation where

16 the Prosecution is trying to bring it in as already-establish facts and

17 therefore they don't need to prove it.

18 I don't want to go on, and I certainly want to stay on point. The

19 point is this: It's becoming increasingly impossible to prepare this case

20 and to provide our clients, particularly my client, a reasonable degree of

21 effective assistance of counsel. I think he deserves that. The

22 Prosecutor Madam Del Ponte goes around the world preaching about how

23 countries, certain countries, including Croatia being one of them,

24 need to comply with the Tribunal, and I think that is her duty and that's

25 her obligation, and I commend her for that. But at the same time it

Page 426

1 should be noted that when an accused comes over here, when a country

2 either brings somebody over here or an individual volunteers, as all of

3 these individuals volunteered to come here upon learning they were

4 indicted, once they come here, the Prosecution is entitled to treat them

5 with fairness and dignity and to make sure their rights are being

6 protected. And I think that obligation also extends to the Registry as

7 well to making sure that those accused have the sufficient funds and

8 resources to adequately prepare their cases. Equality of arms doesn't

9 just mean just adequacy of resources. It also means when we come into

10 court, it should be a level playing field, and we cannot have a level

11 playing field if I'm trying to figure out what exactly the Prosecution is

12 attempting to prove in his or her case because of the way the indictment

13 has been constructed and because of the way the evidence is coming in.

14 I understand that Mr. Scott is being asked to do something at this

15 point in time which perhaps will take a great deal of energy, effort, and

16 coordination within his team. That -- however, what I -- I must say, and

17 I say this with all due respect and with a little bit of sadness, that

18 what I'm hearing is some resistance from that aisle. I sense that somehow

19 they feel that if they provide the Defence with adequate notice, not just

20 through the indictment but also in the way they present their case, in the

21 way they document their evidence, in the way they present the proofing

22 charts which assist the Chamber, that somehow they will lose some sort of

23 a disadvantage, and unfortunately that is what I call -- that's what I say

24 that almost the worst of the American habits that we find in our own legal

25 system has creeped into this particular Tribunal and that it has become a

Page 427

1 game. It has become such an adversarial game that first and foremost it

2 becomes a winners gain all. It's all about winning and not necessarily

3 providing the Defence with an opportunity to test their evidence and of

4 course assist the Trial Chamber in arriving at the truth. And as I said,

5 I can go on and on, but I share all of your frustrations, and frankly, I'm

6 heartened by the fact that what I'm hearing from the Trial Chamber that

7 you are really, truly interested in providing us with a fair opportunity

8 to test the evidence and for us to present our cases and we cannot do so

9 unless we do have this continuing pressure put upon by the Prosecution to

10 meet its obligations in spite of the fact that they may have to work a

11 little bit extra and maybe do things that they don't quite feel

12 comfortable about doing, but nonetheless an order from the Trial Chamber

13 is an order, and I think we all have an ethical and professional

14 obligation to abide by the Court's order whether we like them or not.

15 Thank you, Your Honour.

16 JUDGE ANTONETTI: [Interpretation] Very well. Thank you for these

17 comments. I'm going give the floor to the Defence. I just wanted to

18 react to what you have just said.

19 In the indictment, the criminal -- joint criminal enterprise, JCE,

20 is described in 12 ways, numbered from page 9 to page 12. So there are 12

21 modes. I guess -- but I guess that mentally speaking it must also be the

22 situation the Defence find themselves in. You are going to prove through

23 your evidence each of these 12 modes.

24 First mode: You say that the JCE was created, organised, funded,

25 various government mechanisms. This is based on documents, I suppose. So

Page 428

1 at this present stage when you drafted this, you knew what documents, what

2 testimony you were basing this on. What is there that prevents you or

3 prevented you in the pre-trial brief to put in a footnote with references

4 to it? Nothing prevented you from doing so. And there is nothing in

5 here. In your filings, later on, you mention individual liability.

6 Regarding Prlic, I see 24 cases under which, pursuant to 7(1) he

7 could be accused of this or the other. There are 24 items, from page 12

8 in the indictment to 18. So I guess that out of the 24 cases, you are

9 going to adduce evidence through witnesses or documents to say -- let's

10 take (e). You say that he had the power to assign and to dismiss high

11 officials. Well, I guess you're going to introduce documentary evidence

12 showing that he had the power, the legal power, to assign or dismiss. I

13 guess all this has been prepared already. So what is it that would

14 prevent you from giving me a list of witnesses so that the Defence later,

15 since they would know that you're going to introduce a given document

16 through a given witness, they can prepare themselves for it. No. They

17 can show that they did not have or he did not have the power to do that.

18 So these are questions that are quite legitimate at this juncture.

19 I'm going to go on, but I want everybody to express their views.

20 You have the floor, madam.

21 MS. NOZICA: [Interpretation] Thank you, Your Honour. It seems to

22 me that after the arguments presented by my learned friend Mr. Karnavas,

23 there is practically nothing to add. However, I wish to point out that

24 there is a logic involved here. If you have an indictment before you

25 which is very exact and accurate in terms of specifying the charges

Page 429

1 brought against each and every accused person and evidence to support it,

2 then practically all of this would not be necessary. However, what we

3 have in front of us is a highly imprecise indictment. From the point of

4 view of the Court, and especially from the point of view of the Defence,

5 it is necessary to spell out precisely what evidence pertains to each and

6 every one of the counts.

7 It seems to me what you indicated in two cases, especially the

8 latter example at the end of your remarks, all of that clearly indicates

9 that the Prosecutor certainly had all this evidence concentrated when the

10 indictment was being written, because truth to tell, there is no other way

11 of writing an indictment. You have evidence, you have witnesses, and then

12 you come up with the counts, the charges in the indictment. If that is

13 the logic involved, it doesn't seem complicated to me to do all of that in

14 the kind of table that you requested.

15 I'm afraid that refusing to do that, or being unwilling to do that

16 only works to the disadvantage of the Defence. That is why I fully

17 support your proposal. I believe that it will make easier the work of the

18 Court and considerably assist the work of the Defence in terms of fair

19 proceedings in this courtroom. Thank you.

20 JUDGE ANTONETTI: [Interpretation] Thank you.

21 MS. ALABURIC: [Interpretation] Thank you, Your Honour. I fully

22 subscribe to what my learned friend said. I just wish to say one more

23 thing. It seems to me that from day one in our preliminary motions, we

24 indicated that the indictment was very unclear, very imprecise, and that

25 it was constructed as a kind of story into which six other persons could

Page 430

1 be fitted in, six other persons who held relatively high office in

2 Herceg-Bosna, and it would only be necessary to change 17.1 and perhaps

3 other paragraphs in the indictment describing every one of the accused.

4 However, our attempts to get a clarification of the indictment

5 through our objections totally failed, so it is with great relief and with

6 great pleasure that we received your orders, Your Honour, that the

7 indictment should finally be linked up properly to all the acts, all the

8 accused, and to present proper evidence in terms of all the charges

9 brought against the accused. That is why I would fully support your

10 insistence that the Prosecution make this kind of table as soon as

11 possible, and I think that this table is truly a prerequisite for all of

12 us entering this courtroom trial-ready, that is to say the Prosecution and

13 the Defence. Thank you.

14 MR. JONJIC: [Interpretation] Your Honours, the Defence of Valentin

15 Coric fully subscribes to what our colleagues have already said,

16 especially because we presented our objections to this effect in our

17 pre-trial brief as well. Thank you.

18 MR. IBRISIMOVIC: [Interpretation] Your Honour, the Defence of

19 Mr. Pusic has no new comments to make and we don't want to engage in any

20 kind of repetition in terms of what our colleagues have already said. I'm

21 sure that the Prosecution is going to do what you asked them to do and

22 within the deadlines requested. I just want to focus on what you've said

23 in terms of the lengthy proceedings that you envisage. Perhaps this table

24 would make it easier to expedite the matter. So maybe that is one of the

25 ways in which the trial can be shortened.

Page 431

1 I shall make a small digression, since I already have some

2 experience from the Hadzihasanovic-Kubura trial that I worked on. We

3 worked four days a week, and that proved to be very useful, very

4 beneficial in terms of consultations with our colleagues and everybody

5 else involved. So I would like to subscribe to your proposal, sir.

6 JUDGE ANTONETTI: [Interpretation] Wait a second. Mr. Praljak

7 wants to speak to us.

8 Mr. Praljak, if you can hear us from Zagreb, where you are at the

9 moment, what can you tell us?

10 THE ACCUSED PRALJAK: [Interpretation] Am I supposed to get up, or

11 can I go on sitting?

12 I do have something to say, Your Honour. When I heard that I

13 would be accused before The Hague Tribunal, that was quite a while ago.

14 This story has been bandied about for the past eight years, and I must

15 say --

16 JUDGE ANTONETTI: [Interpretation] Mr. Praljak --

17 THE ACCUSED PRALJAK: [Interpretation] Two sentences, please.

18 JUDGE ANTONETTI: [Interpretation] Praljak, hold on. I can hear

19 you, but apparently the interpreters can't hear you. Just a second,

20 please.

21 THE INTERPRETER: Can you hear the English channel?

22 JUDGE ANTONETTI: [Interpretation] Okay. We'll try again now.

23 THE ACCUSED PRALJAK: [Interpretation] Your Honour, can you hear me

24 now and can the interpreters hear me?

25 THE INTERPRETER: The English booth notes yes.

Page 432

1 THE ACCUSED PRALJAK: [Interpretation] May I start? All right.

2 It's been eight years now that the Prosecution, at least in Croatia, has

3 been saying that some people from Herceg-Bosna who held high office will

4 be charged before The Hague Tribunal. At least 30 times I stated that in

5 that case I will volunteer -- voluntarily surrender and seek to have the

6 truth established before the Judges.

7 Your Honour Judge Antonetti, during my initial appearance before

8 you I said that the Prosecution is trying to speak from shards, thousands

9 of shards from a mirror and trying to present the truth in that way. Let

10 us hope that the Prosecution has good intentions as far as documentation

11 is concerned, but I don't think they have good intentions. I think that

12 the Prosecution knows how flimsy their evidence is, and they are trying to

13 complicate the presentation of evidence as much as they can, although

14 you've requested this.

15 As far as I can remember, on the 30th of November, 2005, the

16 Prosecution got an order from you, Your Honour, in terms of how they

17 should deal with their evidence. An order is not something that the

18 Prosecution can debate. They have to carry this out, just like I have to

19 carry this out, just like I have to carry out every order that you've

20 made. They did not do that, and they don't want to do that. And they are

21 trying to place themselves on an equal footing with the Court. In my

22 opinion, it is the Court that decides, and the Prosecution has to do the

23 same thing that the Defence does.

24 I think it is very regrettable that in The Hague often the

25 Prosecution prevailed over the Trial Chambers. That is another -- there

Page 433

1 is another thing I wish to say. I have 250.000 pages in my computers. I

2 have over 500.000 documents, 150 witness statements that I've already sent

3 to The Hague to be translated. I sent over 25.000 documents, and my

4 computer expert can act in accordance with your order and fill out your

5 table exactly how you wanted it to be filled out. If I, with my meager

6 financial resources, still on my own, can meet your request, then the only

7 thing I can offer is that I give my own computer expert to the Prosecution

8 so that they can get their documents organised as well.

9 Your Honour, I came to The Hague immediately in order to have the

10 truth established and in order to have a fair judgement passed. However,

11 the intention of the Prosecution is different. It is true that crimes

12 were committed. Quite a few of them, at that. However, in terms of the

13 -- in terms of the actual liability involved and the responsibility

14 involved and the bad history involved, there is nothing specified in the

15 indictment.

16 For example, in America there are 21 million crimes committed,

17 7 million of which are grave crimes, but on the basis of that you cannot

18 come to the conclusion that there is a joint criminal enterprise involved.

19 You have to call evidence on each and every one of the crimes. A war is a

20 very difficult thing.

21 I am going to ask for the trial to go on for a hundred years

22 before they prove my liability, because I am fully convinced that what I

23 did was only proper.

24 Also, as far as my attorneys are concerned, I would like to thank

25 you for the fact that this will hopefully be resolved as it should. My

Page 434

1 two attorneys, Mr. Kovacic and Ms. Pinter, were not there only for

2 technical reasons, however I would like to ask them to come back, although

3 they were away for a few months, but they are fully aware of the case and

4 it would be very difficult for somebody else to be involved with the

5 abundance of documents that has to be dealt with. Thank you.

6 JUDGE ANTONETTI: [Interpretation] Very well. Thank you,

7 Mr. Praljak. We've lost you. We can't see you on the screen any more,

8 but we were able to hear you.

9 It's 25 past ten. We will have a technical break now, and after

10 the break I will give the floor to the Prosecution to allow them to

11 respond to the Defence. It's 25 past ten. We will resume at five to

12 eleven.

13 --- Recess taken at 10.23 a.m.

14 --- On resuming at 10.54 a.m.

15 JUDGE ANTONETTI: [Interpretation] The hearing is resumed. Before

16 I give the floor to the Prosecution for them to answer, I want to point

17 out the following: What I'm saying to the Prosecution now is something

18 I'm going to tell to Defence counsel if they were not to comply with the

19 instructions given by the Trial Chamber. I do not treat them differently.

20 It is just so that in the pre-trial stage the Prosecution are on the front

21 line because they are the first to adduce evidence. So that's the reason

22 why I turn to you. But in the reverse case, I would have said the same to

23 the Defence if they had not complied with their obligations.

24 So I'm going to listen to you with great care. I would like you

25 to answer what the Defence counsel and Mr. Praljak said, and the gist of

Page 435

1 it is that the Defence believe that you do not want to disclose this to

2 keep an edge. You want to keep your advantage, which would be stupid at

3 this stage. We're not here to keep an edge on the other party. The

4 judicial process is an adversarial process which is done in all honesty

5 between the parties, and if you do not want to disclose something in order

6 to have an advantage over the other party, that would be totally stupid,

7 all the more so since you know that in the end the Judges will assess the

8 evidence individually, or every allegation will be checked, scrutinised

9 very closely, so there is no advantage whatsoever. I believe it is in

10 your interest to be as transparent as possible, and within this judicial

11 arena to provide your evidence. You have started to do so in your

12 pre-trial brief. You have to continue doing so through your witnesses and

13 your evidence.

14 You have the floor.

15 MR. SCOTT: Thank you, Mr. President. I want to start out by just

16 clearing the air on the Prosecution's approach to this case, because a

17 great deal of liberty has been taken with the nature and history of this

18 case and the Prosecution conduct of this case in the last few minutes. A

19 great deal of false information has been given to this Chamber, and there

20 is a false story being given that I want to make clear is contrary to the

21 fact.

22 This Prosecution team has worked as hard or harder than any other

23 Prosecution team that I am aware of to prepare this case, a large case, a

24 complex case, to prepare it for trial in as efficient and effective way as

25 possible. This Prosecution team knows its responsibilities. I have been

Page 436

1 prosecuting complex cases for the last 25 years in a common law system,

2 and this is not the first large complex case that I've prosecuted. I do

3 not have to be reminded by Defence counsel of my responsibilities.

4 The Prosecution is anxious to present this case in as effective

5 and efficient and fair way as possible, and we indeed have worked -- we

6 tried to work with the previous Trial Chamber and with the Pre-Trial Judge

7 and with the senior legal officer to move this case forward. We have done

8 everything possible to move this case forward efficiently. We've tried --

9 we've proposed adjudicated facts. That motion was filed almost one year

10 ago, on the 4th of April, 2005. We're trying to follow a very

11 well-endorsed and accepted practice in the Tribunal of taking much of the

12 evidence, especially the so-called crime base evidence, on paper. We have

13 filed no fewer than four 92 bis motions dating back to the 30th of June

14 last year for this to be done. All those motions are still pending. We

15 have made extensive efforts to get agreed facts from the Defence. We made

16 extensive submissions and exchanges with the Defence over a period of

17 months on agreed facts, which led essentially, Your Honour, to nothing, to

18 nothing from these six Defence teams. So we don't need to be reminded of

19 that, but Your Honour might not be aware of that fact.

20 Mr. Praljak said a few moments ago that he admits - and I quote

21 from the transcript - he admits that "quite a few crimes were committed."

22 I would like to know which crimes he admits were committed so we don't

23 have to prove those. Mr. Praljak said he admits crimes were committed.

24 Well, I'd like him to tell us which crimes in the indictment he admits

25 were committed.

Page 437

1 This Prosecution team is doing everything possible to present this

2 case. Its positions are not tactical or based on gaining advantage at

3 all, and I fully reject out of hand Mr. Karnavas's attacks in particular

4 as completely unfounded and completely unprofessional, and I will say

5 right now that this Prosecution team will not stand by and let such

6 accusations be made and not respond to them in full force.

7 Extensive motions were filed, Your Honour, in this case,

8 challenging the indictment. Many of the complaints you've heard this

9 morning, Your Honour, go to the form of the indictment, the way the

10 indictment is charged. Your Honour, there was extensive litigation on

11 this before the previous Trial Chamber. Motions were filed and

12 extensively litigated, discussed, and adjudicated. By and large the

13 previous Trial Chamber rejected all of the Defence attacks on the

14 indictment, with a few exceptions, and an amended indictment was prepared.

15 But overall, the indictment as charged in this case was fully affirmed by

16 the Trial Chamber and there is no point in the Defence getting up and

17 going back and talking about those issues again. The Trial Chamber found

18 the indictment fully sufficient, proper, legally sufficient and providing

19 extensive information to these accused. And as I've said before, and I've

20 looked at many indictments filed at this Tribunal in the last ten years,

21 and this is one of the most detailed indictments that has ever been filed

22 by the OTP to date.

23 There was references to the JCE and the fact that perhaps other

24 members of the JCE that are listed in the indictment, Kordic, Blaskic and

25 others, they weren't charged with a JCE. Well, first of all, I don't

Page 438

1 think that's required at all. I don't think the fact that someone is

2 named in a subsequent case as a member of the JCE, there's no requirement

3 that that person be charged in their own indictment as a JCE, the

4 Prosecution might proceed on an entirely different theory. So the fact

5 whether Blaskic was charged under JCE or not is totally irrelevant for

6 what's before this Chamber. I would say correct the record to say that in

7 fact Mr. Kordic was charged. The doctrine at that time - as Your Honour

8 well knows, the language and the nature of this doctrine has evolved

9 through the years - back in those days this doctrine was being called the

10 common purpose doctrine, and if one goes back and reviews the Kordic trial

11 judgement and Kordic appeals judgement, you will find in fact that Mr.

12 Kordic was, contrary to what was represented a few moments ago, charged

13 and convicted based in part on a common purpose, or a JCE, theory.

14 In terms of adjudicated facts, I've said before, Your Honour, I'll

15 say it again: The Defence repeatedly dismisses these out of hand as if

16 they're somehow completely irrelevant to this case. Your Honour, the

17 proposed adjudicated facts come from closely related cases. Other Bosnian

18 Croat cases, the Kordic case, the Blaskic case, the Tuta-Stela case, that

19 are closely related to this case. These issues have not just been lightly

20 treated; they have been actively fought, actively litigated, actively

21 contested in these other cases, and at the end of the day, after extensive

22 litigation, after extensive evidence on both sides by the Prosecution and

23 the Defence, the Judges have made rulings. They've issued judgements, as

24 you know, Your Honour, Judges do, and in those judgements they made

25 findings of fact and they made conclusions on many points relevant to this

Page 439

1 case. This Tribunal has come under great criticism for how slow these

2 proceedings are, that the same facts are litigated over and over and over

3 again when they've been litigated in other cases, and Your Honour we have

4 proposed extensive facts - did it almost a year ago - 515 facts from these

5 other cases, and we're still waiting for a ruling on that.

6 I've mentioned one specific example in particular, the existence

7 of an international armed conflict. That issue has been litigated up,

8 down, left, right, ten different times and every Judge - every Judge - in

9 this institution, Trial Judge, Appeals Judge, every Judge who has looked

10 at the issue has universally and unequivocally found the existence of an

11 international armed conflict involving the Republic of Croatia in

12 Bosnia-Herzegovina and the extensive involvement and control of the

13 Croatian government.

14 Now, if we have to litigate those issues all over again when every

15 Judge in this institution for the last eight years has found that already,

16 we would suggest, Your Honour, that is a waste of judicial resources and

17 should not be necessary.

18 On the charts, Your Honour, I say again I want to make it very

19 clear, I reject entirely any suggestion the Prosecution's not prepared to

20 start its trial. We will. We will stand up on the 25th of April and we

21 will make our opening statement, and following that we will call our first

22 witnesses and we will -- we are prepared for this trial and we will go

23 forward. The fact that certain charts in a certain way presenting certain

24 information in a certain way using a particular format, the fact the

25 particular charts have not been prepared to date is no reflection, has

Page 440

1 nothing to do with whether this case for the Prosecution is fairly and

2 adequately prepared this case for trial. We have and we will and we'll go

3 forward and we'll present this case, Your Honour, and, Your Honour, I

4 think, will be ultimately be quite pleased with the way the Prosecution

5 presents its case because it's going to be well organised and we'll

6 present it to you as effectively as we possibly can.

7 Now, I cannot speak for the Defence. I'm sure it's in the Defence

8 interest to obstruct our case and delay our case and do everything

9 possible to keep this evidence from coming in. I can't speak to them.

10 All I can say is, Your Honour, that the Prosecution will do everything

11 within its power to present this case to you and your colleagues in as

12 effective a way as we possibly can.

13 In terms of the charts in other cases Your Honour, based on the

14 information I've been able to gather, including in the last 45 minutes, we

15 stand, and I point this out by purposes of information -- let me preface

16 my comments by saying, Your Honour, there is no resistance to doing the

17 charts you've ordered, it's simply a matter of time and effort. And I

18 again reject the Defence counsel who have stood up and said we think the

19 Prosecution is being tactical, we detect some resistance on their part.

20 That is false. That is completely wrong, and we reject it.

21 We are prepared to do as much as we possibly can to prepare these

22 charts, but they do come, Your Honour, with all great respect, late in the

23 pre-trial process. This case has been in pre-trial for over a year with

24 another Pre-Trial Chamber and another Pre-Trial Judge, and the Prosecution

25 prepared its case under the Rules of Procedure and Evidence and under the

Page 441

1 guidance and direction of another Trial Chamber and another Pre-Trial

2 Judge. At no time in that history were these requirements set out or put

3 upon us, so we prepared our case but not in the particular way, Your

4 Honour, you would like us to prepare it. Now you give us the time and

5 opportunity to do it, we will do it. We'll do everything in our power to

6 provide the information that you desire.

7 Now, let me make it very clear: We stand by our position, Your

8 Honour, that no charts like this have in fact been provided or required in

9 any other case except for, of course, Your Honour's other case, the

10 Dragomir Milosevic case. I'll come to that case in a moment. But in no

11 other case, and we checked, including the Stakic case, including the

12 Blagojevic case, in no other such case was there anything similar to these

13 kinds of charts required.

14 Let me be very specific: In the Blagojevic case what was required

15 was a list indicating the witness -- the name of the witness, a summary of

16 the testimony, the paragraph of the indictment that the testimony related

17 to. That's what was required in the Blagojevic case. That is exactly and

18 no more than what Rule 65 ter on its face requires. It is no more and no

19 different than what the Prosecution submitted to the Chamber on the 19th

20 of January. What we submitted on the 19th of January, and I'm just -- I'm

21 looking, for example, at page 38 of our witness list: The name of the

22 witness, a summary of the witness's expected evidence, the counts of the

23 indictment to which it relates, the paragraphs to which it relates, the

24 relevant accused, and the expected time for the testimony. That is all or

25 more than was required in the Blagojevic case, and there was nothing about

Page 442

1 linking exhibits or listing exhibits or linking exhibits to witnesses.

2 This was for -- the first witness in the Blagojevic case started on the

3 15th of May, 2003, and a working copy of the very summary that I talked

4 about that gives you all this information was first provided in that case

5 on the 2nd -- on the 2nd of May, 13 days before the trial started, and it

6 was a much limited -- much more limited than the information than Your

7 Honour would like.

8 The same as in the other cases. There was no such filing or

9 requirement in the Stakic case. In the Blagojevic case, again, Judge

10 Schomburg required a proofing chart, and that proofing chart was once

11 again nothing more than what Rule 65 ter requires. The proofing chart

12 gave the name of the witness, a summary of the witness's testimony, and

13 the counts of the indictment to which they related. And we've done all of

14 that. We've done absolutely all of that, and that's all that the proofing

15 chart in the Blagojevic case required.

16 And I have a transcript of that -- of a hearing before Judge

17 Schomburg on that, where he talks about that. Judge Schomburg, the 27th

18 of March, 2003: "To be quite clear on this, we shouldn't mix up apples

19 and pears. This proofing chart is basically an outline based on the

20 paragraphs of the indictment and telling us from the point of the view of

21 the Prosecution what a witness allegedly will testify as to each paragraph

22 and each count." That was all. And our 65 ter filing on the 19th of

23 January do exactly that. In that case, in fact, that information was

24 provided on a witness-by-witness basis approximately two days before each

25 witness testified. That's when the proofing charts, the individual

Page 443

1 proofing charts, were required. There was one that was done pre-trial,

2 about 14 days before the trial started, much more limited information, and

3 then supplemental or additional proofing charts provided approximately two

4 days before each witness testified. That's the story of the proofing

5 charts in the Blagojevic case, Judge Schomburg's ruling.

6 Your Honour, if we could go -- refer to some potentially

7 confidential material and if we could go into private session for a

8 moment, I would appreciate that.

9 JUDGE ANTONETTI: [Interpretation] Yes, let's move to private

10 session.

11 [Private session]

12 (redacted)

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Page 444

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14 (redacted)

15 [Open session]

16 MR. SCOTT: Your Honour, there is no resistance to doing this.

17 The Prosecution is not being tactical. It's simply a matter of effort and

18 time, and with the greatest of respect if -- if a new -- if a new referee

19 comes into the game of football in the last period of the game and changes

20 the rules of the game, and perhaps it's his prerogative to do so, and Your

21 Honour if you want to ask us to do these charts, we will do everything we

22 can to prepare them, but if it comes in in the last few minutes of the

23 football game and each side has to then completely prepare its case in a

24 different way, to change its game plan and organise themselves in a

25 different way, it takes time. The only thing that the Prosecution has

Page 445

1 consistently said -- we said it before, we told to it your legal officers,

2 we've said it in our filing on the 30th of January, I said it in the

3 Status Conference on the 30th of January, the only thing we've ever said

4 was if Your Honour indeed wants this information, we will do our very best

5 to provide it to you but it cannot be done without a tremendous amount of

6 time and effort. And we will do that. We are making our best efforts to

7 do that now. We're working very hard, very intensively to prepare as much

8 of this information for you as we can, and all I can ever promise, Your

9 Honour, is to use my best faith -- good faith and best effort to do -- to

10 satisfy Your Honour's wishes. That's all I can ever do, and we will do.

11 Thank you.

12 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Scott, for your

13 explanations, and I do take note of your will and determination to do

14 everything you can so that we can see the efforts you've made and to have

15 the best situation to start the trial.

16 In relation to what you have just said, you were referring back to

17 previous cases, you are quite right; it is true to say at that before, we

18 just had a witness list and a summary list of the contents of their

19 testimony as well as some other information, but since then major things

20 happened. Let me mention a few of them.

21 First of all, the international community realised that if we kept

22 up this pace, this Tribunal will work for another century. It was

23 therefore decided in New York that a deadline would be set, and the

24 deadline is 2010. On the basis of that time line, the OTP were asked to

25 conclude their investigation. You were under the obligation to conclude

Page 446

1 your investigations and the so-called referral procedure was set in place

2 under Rule 11 bis. But we did more than that.

3 The Judges in this Tribunal, under the authority of President

4 Meron, looked into the matter in order to see how to be most efficient in

5 order to meet the caseload, cases prepared by the Prosecution. A

6 committee was created. It was presided over by Judge Bonomy, and there

7 were also other Judges, Judge Hanoteau, on that committee which gave a

8 preliminary report, and last week we got its final report. This committee

9 was officially announced in the Security Council in order to convey the

10 message to the international community that this Tribunal and the Judges

11 in particular were taking this thing very seriously and had established

12 new procedures, among which we have the part played by the Pre-Trial

13 Judge. This working committee concluded that the Pre-Trial Judge had to

14 be fully committed to the pre-trial stage and had to settle upstream

15 problems that, unfortunately so sometimes, crop up during the trial. So

16 this is the spirit in which I committed myself, first of all. Not just

17 this case, because initially I was not supposed on this case. I was

18 supposed to be on the Pandurevic et al. case, Srebrenica 2 case, because I

19 thought that I would be in charge of that case. But for reasons outside

20 my control, some months ago I was told -- more exactly, the then-president

21 told me that I would be sitting on the Prlic case. I didn't quite

22 understand why there was this shift inasmuch as the Prlic accused were on

23 provisional release, and I thought it was not that urgent to call this

24 case, whilst the Pandurevic case was different. The accused were in

25 detention, and I thought that it was better to start with that case, but

Page 447

1 for reasons I do not understand it was deemed necessary to decide

2 otherwise. And this is how I came to be the Pre-Trial Judge.

3 But from the very beginning, in keeping with the conclusions of

4 the Bonomy report, I did not ask my senior legal officer to deal with the

5 case, because that's usually how it used to be before. The senior legal

6 officer would be the one who would call meetings between the parties and

7 would try, at their level, to settle issues, and the pre-trial hearing

8 presided over by the Pre-Trial Judge, as was done only yesterday, would

9 take only 20 minutes and that would be it.

10 This is not how I see the pre-trial stage. I believe all the

11 problems have to be aired and solved so that the trial can be held in the

12 best conditions possible.

13 You stated that Rule 65 ter never mentioned the issue of charts or

14 tables. You are absolutely right in saying so. But there's not just Rule

15 65 ter. There is Rule 90 and other Rules which make it necessary for the

16 Trial Chamber to establish a witness list and an exhibit list. Now, how

17 can you reasonably do so if you do not have something to go by?

18 Moreover, you filed various motions for judicial notice of

19 specific facts or for admission of evidence, statements coming from other

20 cases, or under 92 bis. You know very well that Rule 92 bis makes it

21 possible to admit written testimony under certain conditions, but, for

22 instance, when it could be of cumulative nature. Now, how can I determine

23 whether there is something cumulative under 92 bis as compared to another

24 witness? I need to know the contents of the testimony of that other

25 witness, and I have to check by reference to the other evidence. If I

Page 448

1 don't have that, how can I work? So there is the two ways of going about

2 it; the classical way, which unfortunately was in force until now, where

3 you prepare your list, as you just said, and you realise the magnitude of

4 the problems during trial. The other option would be that the parties and

5 the Pre-Trial Judge sit together to see under what conditions we can have

6 a trial, fully complying with respective jurisdictions and skills and

7 competencies. I don't think you are opposed to that. But today you are

8 telling me that when the referee changes the rules of the game at the last

9 minute, that raises problems for you. You're right. You're right.

10 However, this is not the last minute. I've been talking about this for

11 several months. And let's take up an analogy. Somewhere I'm the

12 quarterback in American football. I'm trying to steer the game,

13 everybody's game, so that the people looking at the game, but I mean at

14 least that from the outside, one has the feeling that the pre-trial is

15 efficient and quick.

16 I do take note of the fact that you have only limited resources,

17 that this is a Herculean task. I'm very well aware of it, because your

18 job has been mine, or was mine several years ago. So I do know what it

19 entails to be a Prosecutor. And since I know that personally, I'm in a

20 position to tell you that if by the 24th of April you are not able to do

21 all this work, just -- just try to have it done for the first wave of

22 witnesses you're going to call. And if I understood properly, of course

23 sometimes the Prosecution will change tack in midstream. I believe I

24 understood that you first want to establish the political background, the

25 historical background, to then move on to the JCE, and the Chamber will

Page 449

1 only hear evidence on crimes in municipalities toward the later stage,

2 towards the end. So you still have enough leeway to get prepared and to

3 let everybody know what you're going to do with your first witnesses and

4 to let us know what exhibits you're going to produce through them.

5 If I understood properly, we're going to have among the first

6 witnesses expert witnesses. Well, they're going to come here, and they's

7 going to testify so that the truth can be ascertained. The witnesses are

8 going to speak to the then political background and situation, and you

9 were seeking to have admission of 550 facts. If your request is not met,

10 within a matter of seconds you can ask your expert witness whether he or

11 she can confirm that on a specific date Mr. X or Y and Z met in order to

12 prepare a decision by the government on a given point, and your expert

13 witness will say, "Yes, indeed," because the Official Gazette mentions it.

14 It takes a few seconds, no more, and it's done by your expert witness, and

15 so on and so forth. This is one way to go about it.

16 There again, this raises other problems. The expert witness, I

17 guess that he's going to come up with the -- a report of 400, 500, maybe a

18 thousand pages. You will seek to tender this report. We have six

19 accused, and through their counsel they are going to make submissions. If

20 you have a thousand pages from your expert, it is likely that each accused

21 will have 50 or 100 pages of comments. If you multiply all those by six,

22 you can imagine what a mountain of work we can expect on the Bench,

23 because we have to make a decision on this report. So I have a worry

24 there. You have expert witnesses. I don't know who is going to come so

25 far, what they're going to speak about, what exhibits. We have to get

Page 450

1 prepared. You can't just say that in the last minute Mr. XYZ is going to

2 come to speak about the Banovina area.

3 So I think it's in your interest to prepare accordingly. Of

4 course, the Defence will have to do their job. And I repeat it: We are

5 here to make sure that the rights of the accused are preserved. This is

6 about equality of arms. We are not in a system where you have an

7 all-powerful Prosecution and then, snowed under by so much evidence, the

8 Defence counsel could not fulfil their mission.

9 The Judges are here to maintain or redress that balance without

10 any bias, because we do not have any bias with regard to the allegations.

11 It is only when we will -- or when we decide on the basis of the evidence,

12 that we can decide, but now we don't know where we're going. But steer us

13 in a given direction, this is what you do in your Prosecution case, and

14 then we'll have the Defence. You have to present your case on the basis

15 of evidence so that we, in all serenity, we can start the trial.

16 So this is what I can offer you. I suppose you have a schedule.

17 And I mentioned this to my colleagues in Trial Chamber II, and they told

18 me that I have to ask you your timetable for the first months. If you

19 have a timetable, you have the names for your witnesses, and also you know

20 how many exhibits you're going to introduce. Of course when I told my

21 colleagues that we were going to have 400 witnesses, they were amazed.

22 I'm not so amazed because of the many facts in the indictment. And you

23 are very right, and I want to congratulate, commend you on this. Your

24 indictment is the most detailed indictment in the history of this

25 Tribunal. It's true. Over a hundred pages, it is a very comprehensive

Page 451

1 indictment, which is good. Personally speaking, if I had been in your

2 shoes, the indictment would have been a thousand pages long, given the

3 scope. At least 1.000 pages.

4 Well, everybody does their best, but in a case like this, in my

5 view, everything had to be said so that pursuant to the principle of

6 equality of arms people can meet the allegations, because if you have

7 something general, how can you counter that?

8 So I think we'll get there. We'll be able to start the trial on

9 the 25th of April in the best conditions possible. I take due note of

10 your intention, but I never doubted your intention. I do hear that you do

11 not want to gain advantage over the Defence. Anyway, that would not have

12 been appropriate, because to take up your analogy, remember that Judges

13 are also referees, so if there is a mistake it will be sanctioned. So

14 before we go any further, let me give the floor to the Defence counsel.

15 MR. KARNAVAS: Thank you, Mr. President. In the Blagojevic case,

16 as in the Stakic case, the proofing chart was prepared. Whether it was

17 prepared in the greatest of detail required by this Court, nonetheless one

18 was prepared and an order was issued and an order was followed.

19 In my tradition, which is the same tradition Mr. Scott comes from,

20 when an order isn't complied by, especially if you were in a federal

21 court, you would be sanctioned, and you would be sanctioned severely as an

22 individual, and not be spared because you are a member of an organisation

23 called the Office of the Prosecution.

24 Mr. Scott says that over 25 years he has been working on complex

25 cases, and I'm sure that he has. In preparing an indictment, one would

Page 452

1 think that, as he prepares it, he would have the name, what the person is

2 going to talk about, how it relates to a particular element in the

3 indictment, and any documents that would go to that. That in and of

4 itself would be sort of the case map and the guide for preparing the

5 chart. One would think as that as the case was prepared for --

6 additionally prepared for the investigative phase, every time you came

7 across a document that was relevant to a particular element within a

8 charge mentioned in the indictment, one would merely just put it into that

9 folder. So I see no complexity in this procedure. As I noted earlier,

10 one has to know their destination before they get there, and I would

11 assume that before they filed this indictment - because after all the

12 Prosecution files it when they're good and ready - one would think that

13 they were absolutely ready. I dare say that the Prosecution has been

14 preparing their case and continues to prepare their case by investigating

15 continuously ever since they filed the indictment. And I go back and I

16 say that had the Prosecution been prepared -- they should have been

17 prepared at the moment the indictment was filed.

18 However, we know from our own experience and from being in the

19 field that witnesses continue to be -- major witnesses continue to be

20 investigated, continue to be questioned, and they're still out there,

21 trying to locate evidence to somehow support this highly comprehensive and

22 detailed indictment.

23 If you look at, Mr. President, 17.1, paragraph 17.1 of the

24 indictment, and then you see -- you look at it, say how on earth can

25 someone defend against all these different alternatives? Do they have a

Page 453

1 theory? If they have a theory for each and every one of them, every

2 single word that is in that, they should be able to prove it. They should

3 have it already. It shouldn't be a guessing game. And I do stand by my

4 comments and I say so with all due respect to my friends on the

5 Prosecution side, that to some degree, at least from our perspective, it

6 appears as if this is a trial by ambush. Why do I say that? Because if

7 they were prepared as they say they are prepared - they claim they will be

8 on April 25th, but I dare say they should be prepared already, if not

9 sooner - why is it so difficult for them to say here is the order of our

10 witnesses so you can prepare in advance, Defence, because we don't want to

11 have an unfair advantage -- because I'm going to get back to that

12 obstructing and delaying comment that Mr. Scott made, which I find

13 offensive -- but here is the list, here are the documents that we intend

14 to use for each one of those witness. And in fact, if you read -- and

15 here are the specific paragraphs to which this witness and these documents

16 will go to. What's so difficult about that? Nothing.

17 However, perhaps because we are in this mixed system and some are

18 stuck in their own legal traditions, in the adversarial process, that is,

19 that we fear that giving anything away to the Defence might be to our

20 disadvantage because, after all, a weak Defence will ensure a conviction

21 but not necessarily the truth. And so I say they should be prepared today

22 - if not today, tomorrow - to give us a comprehensive list of all of

23 their witnesses, the order in which they want to present them, in groups,

24 in blocks, whether it's the political, the historical, the leadership,

25 whatever that may be, so we can begin to prepare today.

Page 454

1 You talk about a Herculean task. Imagine being on this side,

2 where we don't have that fleet of resources that is available to the

3 Prosecution, where we're constantly having to struggle for finances. I'm

4 going to be talking about that at some point, hopefully later on today.

5 However, it makes it much more difficult for us to try to figure

6 out what it is that they're trying to do. They talk about 92 bis motions.

7 If they had a clear objective in mind from the beginning, and I dare say a

8 good prosecutor, an organised prosecutor, one who is really wanting to be

9 there for the truth and assist the Court, and of course his brethren on

10 the other side, would have been able to say here are the list of all the

11 92 bis witnesses that we wish to present. You know, the written

12 statements through 92 bis.

13 What happens? As you recently noted, we just got another motion.

14 That motion comes with a CD. That CD contains hundreds of pages of

15 documents. So here, while I'm trying to prepare for the beginning of the

16 trial, I'm having to deal with these sorts of matters. Now, it's not by

17 accident. And why do I say that? Because I've been around the block too.

18 I've been practising close to 25 years. I know how it works, and these

19 are tactics that are used in order to bog down the Defence with these

20 sorts of things rather than being prepared for trial. I don't blame them.

21 The Rules don't say, look, you have to file it all in advance, but cry me

22 a river when you talk to me about having worked so hard and trying to

23 prepare this case, and in spite of all of that, they're unable to meet the

24 Court's order of November 30th 2005. It doesn't make any sense.

25 They talk about agreed facts. If you look closely at the agreed

Page 455

1 facts, Mr. President, you will see they're taken from the indictment. So

2 what do they want me to do? They want me to agree to the indictment,

3 slowly, incrementally, piece by piece out of context, taking agreed facts

4 that are selected by them that suits their purposes, and they want me to

5 do their job. They're here to prove their case beyond a reasonable

6 doubt. The burden is on them, not on me. They need to do it, and I'm not

7 here to help them.

8 They talk about adjudicated facts. I couldn't agree more, to some

9 extent, with Mr. Scott that these facts come from previous judgements.

10 However, we must keep in mind a couple of things. One, as I noted

11 earlier, if the indictment is structured in a particular way and it

12 charges certain incidents, the lawyers in those cases may not necessarily

13 challenge facts which the Prosecution obviously from the get go, from the

14 -- and when I see this, it seems to me very clear that they already had

15 this trial in mind when they began, sort of as a pyramid structure, this

16 is how it's done in these complex cases. Because what do they do? They

17 didn't charge everything, they didn't charge them with joint criminal

18 enterprise, although they included certain things, and then they began to

19 prove certain things, such as the international armed conflict, such as

20 whether -- what was the structure of the HVO. Why? Because the Defence

21 in those cases, with the limited resources and for tactical reasons, may

22 not necessarily challenge that because it doesn't go to the nature of the

23 crimes for which the accused is being charged. So if you're dealing with

24 Blaskic, for instance, what were the big issues in Blaskic? It was

25 basically the Lasva Valley incident and his role as a commander and

Page 456

1 whether he would have been responsible for any crimes that were

2 committed. What does it have to do with the HVO leadership what the

3 Herceg-Bosna was -- the Croatian Community of Herceg-Bosna was trying to

4 accomplish, whether it was a state within a state? All these issues that

5 of course are relevant in this particular case. So if I'm the accused in

6 that particular case, and I have limited resources, as we all do, I might

7 try to focus on the very strict nature of the crimes for which I'm being

8 -- I'm committed. And that's why we find offensive to try to certain --

9 to just accept adjudicated facts when we know now, having the benefit of

10 more documents, more archives, more resources, that perhaps some of those

11 adjudicated facts were wrongly founded, and it's our obligation to

12 challenge. And of course the Prosecution has stated its position. I in

13 good faith apply the technique that was used in the Blagojevic case, which

14 was we can take an adjudicated fact, if we can agree on some common

15 language, to tweak it so that it's more -- that it's put into context,

16 that adjudicated fact then becomes an agreed fact and thereby it's a

17 stipulation.

18 The Prosecution over and over, and you can go back and look at the

19 transcripts, Mr. Scott was like a broken record. Over and over again he

20 objected to this concept, as if somehow I was doing violence to these

21 adjudicated facts when in fact all I was merely suggesting is if we put

22 them in context and if we can agree to some common language that would be

23 both beneficial to the Prosecution and to the Defence, then these would be

24 stipulated facts not subject to dispute, you know, and it won't be just a

25 mere presumption. It would be a fact upon which you, Your Honour, and

Page 457

1 your colleagues could -- could rely on in reaching your -- making your

2 findings of facts and conclusions of law.

3 So in -- very briefly, I just want to say that I still believe

4 that the Prosecution, while they're trying their level best, can do

5 better. And I'm hopeful that we can work with the Prosecution. I'm not

6 predisposed to trying to work out in advance a manner and means by which

7 we can all go forward. I do take exception to Mr. Scott saying, well, you

8 know, as Prosecutors they're professional and somehow the sleazy Defence

9 lawyers on this side, they obstruct, they delay, we know what they're all

10 about, you really can't trust them. When we come into this court,

11 Mr. President, I'm as equal as the Prosecution. He is no more higher than

12 I am. I sit at the same level. He has no more power than I do. And his

13 voice is no more important than mine, he is no more credible than I am.

14 We all stand by our word. We all know that. And I take exception to the

15 Defence being characterised as a bunch of hoodlums trying to obstruct and

16 delay the process. We're here as professionals. We have a job to do. We

17 are in a position where we have to challenge the credibility of the

18 witness, the credibility of the documents; that's our job. And if we do

19 our job properly and if by any chance a conviction is then found, at least

20 we can all rest assured that the evidence was tested properly and the

21 accused got a good defence, and the Judge, based on the evidence that he

22 heard in this rather adversarial proceeding, arrived at the right

23 conclusion. So I do take exception to being characterised as someone who

24 obstructs and delays.

25 With those comments, Your Honour, I have nothing further to add

Page 458

1 with respect to what has been just discussed, only to suggest that the

2 Prosecution should be ordered - if not ordered, cajoled, perhaps - to

3 provide us as soon as possible with at least the first group or groups of

4 witnesses that they intend to introduce and all of the exhibits, all --

5 everything that they intend to rely on. It makes it easier for us if I

6 know that the first ten witnesses will be experts, I know their names, I

7 know what they're going to be relying on. I can begin to prepare in that

8 fashion. Short of that, I'm constantly trying to figure out what is next,

9 and to get it one week before trial is not good enough. They're not

10 obligated to do that. It may be because Mr. Scott comes from a federal

11 system, perhaps, where in a federal system in the United States you're not

12 entitled to any evidence other than your client's statement until you get

13 to court. So there we have sort of this dancing in the dark, as it were,

14 for the Defence. Maybe that's the habit he's bringing over here, I don't

15 know, and I don't think so, but I think that he could help us and he could

16 assist the Trial Chamber, because also, as you well know, you and your

17 colleagues must be prepared for the questioning, and the sooner you have

18 that information, the sooner that you can begin in looking at that

19 information.

20 And again I have no reason to believe that they're not acting on

21 good faith, but I do think that we all come with our own traditions and

22 our own habits, and perhaps sometimes our habits get the best of us. But

23 I don't want to suggest in any way, shape, or form that I believe that

24 they're not acting in good interests, however, I think perhaps they may be

25 playing a rather clever game, all within the bounds of the Rules, but

Page 459

1 nonetheless it does put us at a grave disadvantage. Thank you.

2 JUDGE ANTONETTI: [Interpretation] Very well. The other lawyer?

3 MS. NOZICA: [Interpretation] I'll be brief and I'll say this: I

4 have to notice that I did not wholly understand the presentation made by

5 my learned friend Mr. Scott because in what he said we noted a

6 contradiction. My colleague says that the Prosecution is ready to go

7 ahead with the trial on the 24th or, rather, the 25th April, and on the

8 other hand there is quite obviously resistance in complying with the

9 request made by the Court, which is very important for the Defence. It

10 seems to me to be quite logical that if the Prosecution stands trial-ready

11 on the 25th and -- 24th or 25th of April, that in fact they have all the

12 material the Court requires of them. Therefore, I consider it logical

13 just for them to hand it over to the Court in the manner and way in which

14 the Court has asked for it. Thank you.

15 JUDGE ANTONETTI: [Interpretation] Thank you.

16 MS. ALABURIC: [Interpretation] Thank you. I have nothing to add

17 to what my colleagues have already said, so I fully endorse all the

18 positions and proposals made by Mr. Karnavas and my colleague Ms. Senka

19 Nozica.

20 MR. JONJIC: [Interpretation] And the Defence for Valentin Coric

21 also would like to join in with what my colleagues have already said.

22 MR. IBRISIMOVIC: [Interpretation] Your Honour, I also come from a

23 system where we respect Court orders, as Mr. Karnavas has already said,

24 but I did not gain the impression that Mr. Scott wishes to say he does not

25 wish to comply with the Court order. What I understood him to say was

Page 460

1 that he would comply, as is fit that he does. All I would like to say is

2 this; that partial compliance in a month or two would not be that bad for

3 contributing to what we asked. It would be, of course, much better for us

4 if we had the list straight away, a comprehensive list with all the

5 documents on it, as you have indeed requested. Thank you.

6 JUDGE ANTONETTI: [Interpretation] Mr. Praljak.

7 THE ACCUSED PRALJAK: [Interpretation] By ruling of the Court on

8 the 13th of November, 2005, it expressly states that Mr. Scott has to

9 compile the charts. In response to Mr. Scott, the provisions of the Court

10 and the Court order and ruling which goes under the heading of "Headlines

11 --" of "Guidelines," but that Mr. Scott treats the Court as a party with

12 which he can deliberate without any appeals and the provision takes the

13 form of guidelines.

14 From the 30th of November to the present day, had there not been

15 any resistance, a chart could have been compiled as was instructed by the

16 Court. And from this we are able to conclude that the question is not a

17 technical one but one of substance, and it is one of substance because

18 putting all the documents in order, compiling charts for witnesses and so

19 on and so forth will topple the indictment of Mr. Scott, and therefore he

20 would like, as we would say colloquially, he would like to have murky

21 waters to fish in.

22 Now, as far as that famous problem that we've talked about, what

23 can be taken from previous trials and previous proceedings, is this: Many

24 assertions were made about the facts, whereas too little facts were

25 quoted, and I'm going to quote just a few facts, not to take up too much

Page 461

1 of your time.

2 Nowhere is it stated that 12.000 wounded persons were treated,

3 that is wounded Muslims were treated in Croatian hospitals. When I say

4 12.000, then Mr. Scott would have to know that there were 720.000, the

5 same as America treating 700.000-odd or 100.000-odd, if you're talking

6 about France. It would cost 72 million -- billion dollars for America to

7 do that and it would cost France 30 billion, and that all this was going

8 on in a country that was occupied to one-third of its territory, that it

9 had 15.000 dead and wounded, or 30 -- 40.000 wounded as well, and this was

10 never stated. It was never stated that Croatia took over 340.000 refugees

11 from Bosnia-Herzegovina, that it paid for them, that humanitarian aid

12 arrived only in the form of food. Nowhere is it stated that one brigade

13 from Rijeka, for example, was made up a thousand men that went to fight in

14 the BH army, and therefore it was Croatia's involvement into the war but

15 in the army of BH in this case, and the 500 and 600 names were never

16 listed, that on the territory of the Republic of Croatia continuously

17 Bosniak Muslims worked to arm the army of Bosnia-Herzegovina. That was

18 never mentioned. Nor did we have tables and charts saying how many

19 thousands of tonnes of ammunition went over there. This Court never

20 discussed the 227 documents of Franjo Tudjman which relate to

21 Bosnia-Herzegovina, but it was just the rumours going round the corridors

22 that were discussed.

23 And that is why these proceedings, Your Honour, is important for

24 historical truth, to determine the role played by Croatia, what certain

25 indictees did over there, and that is why this trial -- it is important

Page 462

1 that this trial take on all the forms and shapes which would lead to the

2 truth without fishing in murky waters, as Mr. Scott was prone to do until

3 now. Thank you.

4 JUDGE ANTONETTI: [Interpretation] Very well. We'll now move on to

5 another point, but let me say that next week I will issue an order

6 clarifying all these issues, requesting a very specific schedule as of the

7 25th of April for the months of April, May, and June, with the list of

8 witnesses and exhibits to be used.

9 Let me now move on to another point, something I mentioned earlier

10 on, but I did not get any straightforward answer about this. It is a

11 matter that is of great interest to the Defence. Regarding the

12 admissibility of evidence, of exhibits. A solution would be to avoid

13 discussions beforehand about the exhibits, including American-style,

14 American-type objections about such-and-such document as not being

15 relevant, as not having any probative value, et cetera, et cetera.

16 In many Trial Chambers, this issue has been solved in a very

17 efficient way, and if we look at the Milosevic case, we can see that there

18 are very few objections raised when it comes to the admission of exhibits.

19 So now I'd like to turn to the Defence to get very quickly their

20 position on that specific issue. Mr. Karnavas.

21 MR. KARNAVAS: Thank you Mr. President. When I listened to your

22 earlier remarks regarding the admissibility of evidence, I could not put

23 it more eloquently and succinctly. I totally agree with you about the way

24 the Rules have been fashioned in this Court, and I totally agree that

25 barring one exception, and that would be authenticity, normally the

Page 463

1 procedure has been and perhaps should remain that evidence should come in

2 provided there is some indicia of reliability as well, but I don't think

3 that that's going to be much of a problem.

4 The way I have practised before, and the way I will continue to

5 practice, is if I see a document that the Prosecution wishes to put

6 forward, especially if I know in advance what documents they intend to put

7 forward on a particular day and I have some advance notice, if I have any

8 objections, I tend to raise them first with the Prosecution, alerting them

9 to what I believe might be some problems in trying to reach some sort of

10 agreement. If there is a problem with respect to authenticity, obviously

11 I will be objecting, but normally I know that the documents come in, and I

12 fully agree with -- with you, Mr. President, that simply because a

13 document is admitted it doesn't mean that it will -- it will be given any

14 particular weight. That is for you to decide based on the totality of the

15 evidence and other matters as well.

16 The cardinal rules that I tend to believe in are: Is a document

17 authentic? Is it reliable in the sense that it hasn't been tampered with?

18 And of course it's relevant, and even once it's relevant we still need to

19 do the probative test. So I believe that you've articulated quite

20 nicely. In fact, I noted to my colleague here that I wanted to take out

21 that excerpt of the transcript because I think it's quite instructive.

22 Thank you.

23 JUDGE ANTONETTI: [Interpretation] Thank you very much.

24 MS. NOZICA: [Interpretation] Thank you, Your Honour. I fully

25 agree with what Mr. Karnavas has said and your proposal given today. I

Page 464

1 think that the possibility of subsequently challenging authenticity is

2 something that will ensure a fair defence. Thank you.

3 MS. ALABURIC: [Interpretation] Your Honour, I also consider that

4 your instructions this morning and your arguments that any complaints and

5 objections should boil down to the question of authenticity and is in

6 keeping with court practice and legal practice, and I think that that is

7 what we should do in this trial, too, and leave the question of relevance

8 for later on when evidence is produced.

9 MR. JONJIC: [Interpretation] Your Honour, as the Defence of

10 Mr. Coric, I do agree in principle with what my colleagues said before me.

11 However, I should like at this point in time to emphasise something that I

12 noticed.

13 The experience gained in these trials, these legal proceedings,

14 lead me to observe that in the period before the indictment was raised

15 that there was some manipulation with documents in different archives on

16 the territory of the former Yugoslavia, and unfortunately, part of the

17 documentation from those archives is still lacking and inaccessible, and

18 that perhaps or when we are thinking of admissibility of evidence, one

19 should bear in mind the admissibility of the Presidency transcripts, that

20 the Prosecution is basing a good part of its Prosecution case on. And we

21 must also take into account the problems with intelligence data and

22 documentation, that is to say documents that come from intelligence

23 sources which very often came into being subsequently. Or if it was

24 contemporaneous with the event, very often it was compiled with a lack of

25 documentation of the event but are masking the real reasons behind an

Page 465

1 event.

2 So I think that when a decision is made on admissibility of

3 documents, we must bear in mind what I have just said, those

4 considerations as well. Thank you.

5 MR. IBRISIMOVIC: [Interpretation] Thank you, Your Honour. Apart

6 from the comments made by Mr. Karnavas, which I fully endorse, as indeed I

7 do what the other Defence counsel said, I don't wish to make any comments.

8 JUDGE ANTONETTI: [Interpretation] Very well. Mr. Praljak, we are

9 dealing with a highly technical issue, but you might have your own opinion

10 about it.

11 THE ACCUSED PRALJAK: [Interpretation] Your Honour, I have nothing

12 to add to what you yourself have said and what Mr. Karnavas has said, but

13 the fact is that many major forces have tried to hide the truth about the

14 war in our territory, or distort it to serve some other purposes and aims

15 and not the truth, and in that respect we have many forgeries,

16 falsifications which are quite evident, which intend to show something in

17 a different light than it was, but that is your decision ultimately. So I

18 thank you.

19 JUDGE ANTONETTI: [Interpretation] Very well. Thank you for that

20 comment. Of course, when an exhibit is put forward and if the Defence

21 says that they challenge the exhibit because they have information showing

22 that the document is a forgery, of course the Chamber will take it into

23 account, but of course the Defence will have to prove that the evidence,

24 that the exhibit is a forgery. It's not enough that you say it is a

25 forgery; you have to explain why it is so.

Page 466

1 In any case, I note -- I take note that we've made a lot of

2 progress on that issue. I take note of that with a great deal of

3 satisfaction. What I'm saying is valid for you too. When you put forward

4 exhibits, the Prosecution will have also to apply the same conduct, not

5 just merely saying objection, probative value, everything. But of course

6 if the Defence put forward an exhibit that is a forgery, of course the

7 Prosecution will be entitled to challenge it.

8 Mr. Scott or Mr. Mundis, about that last issue, would you like to

9 add something?

10 MR. SCOTT: Yes, Your Honour, if I may. Just very briefly. First

11 off, I just want to express my appreciation for Mr. Karnavas's comments

12 and confirming that in fact the Office of the Prosecutor is acting in

13 these matters in all good faith and doing the very best we can.

14 I also, Your Honour, taking up the Court's last comments, I just

15 want to put a line under what you just said. It's all too easy in the

16 experience at this Tribunal for counsel to stand up and allege that a

17 document has been forged or falsified in some way, but I completely agree

18 with Your Honour that the mere allegation or the mere assertion by counsel

19 is not sufficient. And if any counsel, either the Prosecution or the

20 Defence side, make an allegation that a document is inauthentic or is

21 forged or falsified, we will certainly expect that they immediately

22 provide the basis for that and not mere -- not their mere assertion.

23 Your Honour, we would like to -- we would like to address the

24 question of documents as well because it's also very important to us,

25 because indeed it is the Prosecution that will initially have the burden

Page 467

1 of presenting its evidence. The Defence, if it chooses -- if they choose

2 to present evidence and if they choose to present their own case, that, we

3 can all agree, is sometime in the future. So of course the presentation

4 of evidence and the manner in which Your Honour wishes to proceed is of

5 the great -- is of great importance to the Prosecution since we are the

6 ones that will have to go forward first.

7 In that respect, Your Honour, I have to say, to be perfectly

8 transparent with Your Honour, a bit concerned about the admission of the

9 exhibits, because we noted in your Status Conference on the 8th of

10 November and again the 30th of January, that you had indicated, quite

11 clearly, we thought, that you were inclined and intended to admit all the

12 tendered numbered exhibits prior to trial. That would be the way to

13 proceed. You said this on the 8th of November at pages 329 to 331 of the

14 transcript, and you said that again on the 30th of January at pages 61 and

15 62 of the transcript, that you were inclined to number and admit all the

16 exhibits prior to trial.

17 Now, taking our guidance from what Your Honour said, we have

18 prepared several motions that we have filed in the last 30 or 60 days,

19 first concerning the so-called UN documents, and then concerning the ECMM

20 documents, and then finally, and before there was a ruling -- I want the

21 record to be clear: Before there was a ruling on the ECMM documents, we

22 had also filed a similar motion on the so-called Spanish Battalion

23 documents.

24 Now, I have to tell Your Honour that we thought we were acting

25 completely consistently with Your Honour's wishes to indeed accept and

Page 468

1 admit the exhibits prior to trial. So we were in fact a bit surprised and

2 a little disappointed, if I might say, to receive the rulings on the 3rd

3 of February and 9th of February indicating that none of this would be

4 allowed and it would just kind of be the old-fashioned common law way, one

5 document by one document. It's going to take a long time, with 9.500

6 documents, to admit them one at a time on a day-to-day-to-day-to-day

7 witness-to-witness basis.

8 We were also concerned that we're getting a bit mixed messages,

9 Your Honour, with all respect to you and with all respect to the Chamber.

10 On the one hand we were told in the Status Conference how you would like

11 to proceed and we try to conduct ourselves accordingly, and yet then we

12 get orders from the Chamber as a whole that seem to us to be completely

13 contrary to the guidance that you have given to us.

14 There are also indications, Your Honour, in some of the recent

15 decisions - the one on the 3rd of February and the 9th of February - that

16 many of the pre-trial issues in fact cannot be resolved and will not be

17 resolved until the Ad Litem Judges are in place and the actual Trial

18 Chamber that will hear this case is in place. I think Your Honour, based

19 on your observations today, is astute enough to know the problems that

20 presents for us. That means, if I understand these rulings correctly,

21 that there are a large number of pre-trial matters which will not be

22 resolved until after the Ad Litem Judges get here. And you've indicated

23 several times, and I've confirmed it in speaking with other members of

24 this institution, that the Ad Litem Judges will not arrive until

25 approximately two weeks before this case starts. Now, Your Honour, that

Page 469

1 flies entirely in the face of pre-trial management. If the practice of

2 this Tribunal is to be that pre-trial motions and issues can't be resolved

3 except only two weeks prior to trial, that is not sufficient and that is

4 not a good practice for anyone. It's not good for the Chamber, it's not

5 good for the Prosecution, it's not good for the Defence.

6 So we just simply point this out and would have to say that if

7 that in fact is the intention of the Chamber and the intention of how to

8 proceed, we have to alert the Chamber that we would fully expect that once

9 the Ad Litem Judges arrive on approximately perhaps the 12th or the 10th

10 to the 12th of April, we would be filing a number of motions then after

11 they arrive that will need to be resolved, or renewing motions that have

12 been filed in the past, like the ones that have just recently been denied.

13 We will renew and file those motions again after the Chamber is fully

14 constituted with the Ad Litem Judges and put those motions in front of the

15 actual Trial Chamber.

16 Let me give you a specific example, Your Honour. As you've

17 indicated yourself today, this Tribunal has endorsed the practice of

18 using 92 bis evidence. We have tried to do that. We've made several

19 filings to that effect. Some of these witnesses who would be proposed 92

20 bis witnesses may indeed lay the foundations for certain documentary

21 evidence which -- that -- concerning that evidence, we might choose to use

22 some of that evidence early in our trial. However, until we know -- until

23 the 92 bis motions are ruled upon and until we know whether that evidence

24 has been admitted, makes it very difficult to plan how to proceed with

25 particular exhibits and particular related evidence because we don't know

Page 470

1 if those statements have been -- will be admitted or not.

2 The point of that, Your Honour, is to say that we would very much

3 appreciate the Chamber's additional, very detailed guidance on how it

4 wishes to proceed with the admission evidence. We had thought -- we had

5 thought that we had heard the Chamber say that it wished to admit this

6 evidence prior to trial, but now there are some indications that seem

7 quite the contrary. So the Prosecution, Your Honour, would very much

8 appreciate particular guidance on the admission of exhibits. We have

9 numbered all the exhibits. They're all pre-numbered. They're all on our

10 exhibit list, and if we can offer them all at one time ... We thought we

11 would offer them in certain relevant batches; the UN documents, the ECMM

12 documents, the Spanish Battalion documents. There might be other bundles

13 or batches of documents in the future that are all logically related to

14 each other from a particular collection. We had thought that was a

15 reasonable way to proceed, but we would very much invite Your Honour's

16 additional guidance on that. Thank you.

17 JUDGE ANTONETTI: [Interpretation] Very well. You're quite right

18 in your comments, and I will indeed provide you with a number of

19 clarifications.

20 First of all, we are faced with the difficulty that you're aware

21 of. The current Trial Chamber - myself, Judge Parker, Judge Agius - is

22 not the Chamber that will hear the case. The Chamber that will hear the

23 case will be made up by myself and two Ad Litem Judges. You have to keep

24 this in mind.

25 Secondly, second important item I would like to mention, when I

Page 471

1 requested that you prepare charts with the exhibits, and you did it with

2 exhibits listed chronologically, I asked you to give them numbers. You

3 complied. So you've accomplished 70 per cent of the work I requested from

4 you. The 30 per cent to be done is to establish the link between the

5 exhibits and the witnesses.

6 I also told you, and maybe there was a lack of clarity on my part

7 in that respect, I also stated that according to me, the de jure admission

8 of exhibits happens when the witness is in court and when the exhibits are

9 put to the witness. Why is it so? Because then there will be a debate

10 with the Defence, because otherwise if we do not proceed that way, if we

11 enter -- admit a document, let's take the example of the Spanish Battalion

12 documents, if we admit the documents, we are talking about several dozens

13 of documents, the Spanish Battalion documents are admitted. Let's suppose

14 that you do not call any witnesses from the Spanish Battalion. What

15 happens then is that the Defence will not be in a position to

16 cross-examine people from the Spanish Battalion. Therefore, you will be

17 placed at an advantage, unduly so, because the exhibits have been admitted

18 there might not be a discussion about these exhibits.

19 Personally speaking - and the two other Judges share my position,

20 I must say - personally I would like to invite you, I would like to

21 encourage you to do the following: These motions, 92 bis motions or other

22 motions should be filed with the Trial Chamber that will hear the case,

23 not with the current Trial Chamber, because the current Trial Chamber is

24 not the one that is going to hear the case. I believe that it is up for

25 the triers of fact to say the law and to assess the exhibits. It's not up

Page 472

1 to the Judges who are not going to hear the case to rule in any way about

2 these exhibits.

3 As a result, the charts you've provided have been numbered. We

4 are going to stay with these numbers. These numbers have been given for

5 identification purposes. For example, as for the Spanish Battalion

6 documents, we only need one witness from the Spanish Battalion for all the

7 exhibits to be admitted once the witness comes to testify.

8 As for the admission of exhibits, it is made through an oral or

9 written decision that occurs during the trial and not before the trial,

10 because, as I said before, once a document has been admitted, if no one

11 mentions the exhibit again, at -- when it comes to issuing the judgement,

12 the Judges will be able to use that exhibit but the Defence will not have

13 been able to raise the issue of that particular exhibit. And as I said

14 before, once a witness is here in the courtroom, when you put a document

15 to him, let's say -- let's take the example of the Spanish Battalion

16 documents. You put to the commander of the Spanish Battalion one or two

17 documents. You refer to a specific paragraph, and the Defence might

18 cross-examine about this specific paragraph as well or other passages in

19 the document. It's quite possible that the Judges will ask questions

20 about other passages of the document, but there might be paragraphs of the

21 document that have not been raised when the witness is here, but it's

22 quite possible that the Judges later on realise how important the other

23 passages of the document are, and they might very well rely on the rest of

24 the document. That's why I very quietly, very clearly said last time, I

25 very clearly warned everyone here that when we have a document, we are

Page 473

1 talking about the entire document, the document in its entirety.

2 I noticed that we have a document amounting to 395 pages. It's a

3 report from the Prosecution. Three hundred and ninety-four, 95 pages.

4 There might be only one question about the document. I would be very

5 surprised if questions were raised about every single page of this

6 394-page document, but I as a Judge will receive the 394 pages, and I will

7 read them, all these pages, and I might very well refer to one paragraph

8 of these -- of this document that has not been cross-examined or raised

9 during the examination-in-chief because the document had been admitted

10 beforehand.

11 So in order to be extremely clear on that point, I would like to

12 state that the chart you have prepared, that you have partly included in

13 your pre-trial brief and that you might use later on, it's a chart that is

14 there. It's very useful because we have dates in this chart, numbers in

15 this chart, but you will need, when witnesses -- witnesses come to

16 testify, you will need to put the documents to the witnesses.

17 As for 92 bis, we are considering the matter with the other

18 Judges. Personally, I would be in favour of referring the matter to the

19 Trial Chamber that will hear the case. So for the time being, you should

20 say the following, you should think the following: We have 400 witnesses.

21 We have to prepare the examination of these 400 witnesses. We know, of

22 course, that some of these witnesses will not show up. Some will die in

23 the meantime. Some will disappear. We won't have 400 witnesses in the

24 end, but you have to work on the assumption that 400 witnesses will come

25 here to testify. And later on, you might possibly realise that you've

Page 474

1 called a witness and that another witness who was on the list is not

2 necessary any more because the first witness already -- has already said

3 anything.

4 But in any way, in your plannings -- in the planning phase you

5 have to work with the list of 400 witnesses. Only during the trial will

6 you realise that some witnesses are not useful any more and they do not

7 need to be called and part of their testimony could be admitted under Rule

8 92 bis, subject, naturally, to the right of the Defence to have these

9 witnesses here in the courtroom to cross-examine them, although in some

10 cases the Defence my decide not to cross-examine the witnesses.

11 I hope I have clarified the issue. You should work on the

12 assumption that the 400 witnesses will come here to testify. But then

13 later on, once we have the two Ad Litem Judges, we'll have to deal with

14 these issues. The two Ad Litem Judges will start from scratch, and once

15 they see the cubic metres of documents, they will go -- undergo an

16 emotional shock and they will need some time to recover. Of course we are

17 dealing with professional Judges and they will get down to it very

18 quickly.

19 So you have to work on the hypothesis that your motions are not

20 moot. The fact that they've been denied does not really -- does not

21 matter. You can reintroduce your motions once the trial has begun.

22 I hope I have been clear enough about the issue of documents.

23 Now, once -- when comes the time for the Defence to cross-examine,

24 I suppose you will use documents during the cross-examination. So in

25 order for you to start working already, what I would like you to do is,

Page 475

1 when the Prosecution witness is here and you all have your documents, I

2 don't know if they will be exactly the same documents, it's up to the

3 various Defence teams to agree with that, but what I would like you to do

4 is to submit your documents to the Judges. If you have 15 documents or 15

5 binders of documents, you will -- you will want to -- or 15 documents you

6 want to use during the cross-examination, I would like you to give these

7 documents to us for me and my colleagues to be able to read these

8 documents, because with the e-court system, I can't move from one document

9 to the next. So I will need the hard copies of the documents you want --

10 you will be using during cross-examination.

11 I know that some of you are very familiar with that system, that

12 practice I've just outlined, so I don't think it should be -- it should

13 pose any difficulty to any of you.

14 If there is no other issue with regard to the documents, I would

15 like to raise another issue before we break. This will probably go down

16 in history as the longest Pre-Trial Conference ever, but let me move on to

17 the last item on the agenda before we start.

18 Practice has shown that during the pre-trial stage, and also

19 during trial, the Prosecution continue with their investigations. They do

20 so in order to obtain new documents, in order to produce new witnesses

21 that they had not scheduled. Mr. Karnavas mentioned this earlier on.

22 As you know, it may well be that at the end of the Prosecution

23 case, and after the Defence have started their Defence case, call their

24 first witnesses, it may well be that the Prosecution came up with a

25 request for reopening the case. Our case law is very clear about this,

Page 476

1 and I just want to spell it out for you.

2 In so doing, you do not want to be prejudicial to the accused. I

3 believe that if a -- there is an undergoing investigation, the Chamber

4 must be alerted to it, and the Defence must be told that the Prosecution

5 investigation goes on, without giving any details concerning a given

6 individual. However, when you receive a document, so says the case law,

7 you are under the obligation to disclose it straight away to the Defence.

8 You should not keep it for weeks if not months. Indeed, let's imagine you

9 receive the document in June without disclosing it to the other parties,

10 and if six months later you want your case to be reopened, you know what

11 the result will be: It will be denied.

12 So this is what I advise you to do: Do read what the Kubura --

13 Hadzihasanovic-Kubura Chamber issued as a ruling, because it says it all.

14 So this is what I wanted to tell you so that you are all in the

15 know of things and the Defence counsel know it. They know that the

16 Prosecution investigation goes on, but you get documents when you

17 investigate, and under Rule 66 and 68, such documents must be disclosed.

18 If there is a motion for reopening because of late disclosure, you can

19 rest assured it is not likely to be granted.

20 We're going to break for about 20 minutes. We'll start at ten

21 past one [as interpreted], and we'll stop at quarter to two, because

22 that's what the trade union rules say. We won't be able to deal with all

23 the items, but anyway, we'll meet again soon.

24 THE INTERPRETER: Sorry, ten to one. Interpreter's correction:

25 We'll resume at ten to one.

Page 477

1 --- Recess taken at 12.24 p.m.

2 --- On resuming at 12.51 p.m.

3 JUDGE ANTONETTI: [Interpretation] Very well. The hearing is

4 resumed. We have an hour to look into the other matters on the agenda.

5 First of all, I'd like to deal with the duration of the

6 cross-examination. We mentioned this last time, and I seem to understand

7 that there had been contacts between the Prosecution and the Defence. The

8 new counsel who is going to be appointed - I hope it will be Mr. Kovacic -

9 of course, he will join you in the Defence's meetings with the Prosecution

10 so as to best prepare cross-examination.

11 I'm going to give you the floor to take stock of the situation,

12 but some preliminary observations before I do so. On the basis of the

13 witness list and the scheduled length of the examination-in-chief, you

14 have some indicia. Of course you need the documentary evidence, but you

15 will get that very shortly, so you have an idea of the likely duration of

16 the direct examination. As was stated by the Prosecutor, he initially

17 intends to call witnesses as to the general political, military, or

18 geographical background. So inevitably, we will be steeped in the very

19 heart of the matter as presented by the Prosecution when it comes to the

20 topic of the joint criminal enterprise.

21 I don't know what everybody's position is, but I have an idea, and

22 I imagine that there may be differences appearing among the accused or a

23 different way of looking at a given problem. Then the accused, through

24 their counsel, will be in a position to cross-examine the Prosecution

25 witnesses as they wish. So two options are open: It may well be that the

Page 478

1 Defence teams will agree among themselves, notwithstanding their

2 differences, so that there will be only one main counsel, as it were, who

3 will lead the cross-examination, whilst the other Defence counsel may

4 intervene on side issues. If there is a failure by the Defence counsel to

5 agree, then we will have to have a fair breakdown of time allotted for

6 cross-examination.

7 So these are very complicated matters, as you see. You might say

8 that the Judge is there to make a decision. Of course that's his job if

9 there is a problem. But as you know, the Judges would rather see the

10 problem solved upstream, because when it is done so, it's much better for

11 everybody, because if a Judge makes a decision, of course, there's always

12 one person happy with the decision, another unhappy. Sometimes two people

13 involved are unhappy with the decision. So that the Judges don't have to

14 decide, you must agree. I don't know whether you can agree or to what

15 extent you can agree amongst yourselves, but I told you last time, for the

16 sake of fair trial and the equality of arms, it is my initial feeling, but

17 of course I will talk about it with my fellow Judges, but my impression is

18 that if an accused, to be defended properly, if the direct examination

19 took three hours and he needs three hours, well, he used the three hours.

20 I find it difficult to say to an accused you only have an hour whilst the

21 Prosecution would have had three hours. Of course, ideally speaking, if

22 the Prosecution need three hours, there should be an agreement among

23 Defence counsel. But failing such an agreement, we'll have to see case by

24 case.

25 In the beginning, we might have the most problems with the first

Page 479

1 witnesses, especially if they speak about political matters. But there

2 may be, as it were, hard cores within the political matters which may be

3 agreed on by the various accused, but it'll be up to you to tell me so.

4 Mr. Scott, how far have you got -- well, Mr. Mundis, how far have

5 you got in your discussions?

6 MR. MUNDIS: Thank you, Mr. President. Following the last Status

7 Conference where this issue was addressed, last week we submitted a letter

8 to the Defence, asking them if they had come up with a common proposal or

9 counter-proposal that could be a starting point for moving discussions

10 forward. I understand, perhaps in light of commitments attendant to the

11 pre-trial briefs being filed by the Defence, that perhaps this was not an

12 issue that they were able to spend much time on, but the way we left it

13 after the last meeting was the Defence would discuss it amongst themselves

14 and get back to us with some kind of proposal or counter-proposal to the

15 one we had advanced at our initial meeting. We sent a letter last week

16 and to date I haven't heard anything back from the Defence, so I don't

17 really at this point have anything further to report on this matter from

18 the Prosecution side.

19 JUDGE ANTONETTI: [Interpretation] Very well. You have the floor.

20 Mr. Karnavas, you were lucky, in a way, because you were in a case with

21 four accused, in the Blagojevic case, so you are experienced in the

22 matter. I only know the case I sat on where we had two accused, but I

23 think with four is better than with two, isn't it, Mr. Karnavas?

24 MR. KARNAVAS: Well, at some point they did -- a couple of them

25 pled out, Your Honour. But I have been in multiple cases, and here is my

Page 480

1 approach, Your Honour: Each witness has to be dealt separately. Once I

2 see who the witness is, irrespective of the amount of time that the

3 Prosecution intends to take with that witness, depending on what that

4 witness has to testify to, I can pretty much guesstimate the amount of

5 time that I would need to cross-examine that particular witness. Having

6 said that, much of what I might cross-examine on might be about 90 per

7 cent of what all of us would want to cross-examine on anyway because of

8 the nature of the witness.

9 Of course, I would intend to rely on contacts with my colleagues,

10 but at the end of the day, I want to make it rather clear that my

11 obligation is one to my client and to make a very clear record in the

12 event this case finds itself before the Appeals Chamber, and that is my

13 primary concern, is making a very, very clear record, both so at the end

14 of the trial I can point to the record concretely for the trial bench as

15 to what they should look at in trying to find alternative plausible

16 explanations to the circumstantial evidence upon which the Prosecution is

17 going to rely on in making its arguments. So I need to make my record.

18 I would be able to -- in advance, to guesstimate how long it would

19 take, and I believe that would be useful for the Trial Chamber.

20 I have spoken with some of the members of the Defence team and

21 sort of -- I don't want to use the word "lobby," but I have spoken with

22 them. When Mr. Kovacic was still on the case I have had extensive

23 dealings with him. He's an extremely professional lawyer with experience,

24 and he is of the like opinion that you should only cross-examine on what

25 is absolutely relevant and of assistance to the Trial Chamber, and I think

Page 481

1 that's what I intend to do. I'm sure my colleagues will probably feel the

2 same way.

3 Our approach will be, probably, that we will be consulting each

4 other to talk, to find out in advance and what points each of us wish to

5 make, and perhaps the first person who would be cross-examining would be

6 making many of the points with the others perhaps adding to it, depending

7 on the witness. It would be my position, and I would stick to it unless

8 ordered to do otherwise, that since Mr. Prlic is at the top of the list,

9 that we go first on every single witness. I say this not because I view

10 him as the most important individual, although as my client he is, but he

11 is the first person on the list and he is at the apex of the indictment

12 given that the others who are in this joint criminal enterprise will be

13 tried in absentia. And I say this with all due respect, but I'm sure the

14 Prosecution intends to be prosecuting the late President Tudjman, the late

15 Susak and Mate Boban and the others.

16 So we are going to be going first. However, there may be

17 instances where I will not need to cross-examine at all and I may reserve

18 my -- my cross-examination to maybe asking a question or two at the end,

19 it all depends. I certainly will try to abide by any timetables the Trial

20 Chamber imposes on me. However, I can certainly say that in the previous

21 case that I had before Judge Liu, who runs a rather tight but fair ship,

22 we were always able to meet the time constraints because I believe as long

23 as I could demonstrate in good faith that I was cross-examining in an area

24 that was fertile for the Defence, establish that it was relevant to a

25 particular defence, Judge Liu was kind enough and generous enough to allow

Page 482

1 me to pursue that, and of course I did not abuse that, and I think that's

2 one of the things that you will have -- you and your colleagues will have

3 to judge us by; that is, we will need to establish our bona fides each and

4 every time we stand up with the Trial Chamber.

5 I might add, just as an example, the Prosecution in that

6 particular case brought in a Mr. Butler, one of these homegrown, in-house

7 what they call experts. Actually, he was an OTP employee who had since

8 left. And I say that because that's what he was, an employee who they

9 characterised as an analyst who then testified as an expert. He testified

10 on direct examination for five days. My cross-examination alone was six

11 days of Mr. Butler, and I believe counsel for Mr. Jokic had one full day

12 and then there was a day for re-direct and re-cross-examination, and I

13 believe at the end of the 11 or 12 days that the Trial Chamber had very

14 few questions. That's an exception, although there were others that were

15 four days or two days or three days, but that's just to give you an

16 example.

17 One of the things that I also wish to point out, that there may be

18 instances where the Prosecution will be trying to tender a witness that

19 will bring in their expert report, for instance, and they may only

20 question the witness for half hour, an hour, and then more or less resting

21 on the report itself. And of course under those circumstances, we should

22 be entitled to full and fair cross-examination. That was done in previous

23 cases. I know in one particular case there was a demographer,

24 Mr. Broomberg. He came in, it was no less than an hour on direct, and he

25 was on the stand for two hours being cross-examined -- two days. He was

Page 483

1 -- for two full days he was cross-examined, all of which was relevant.

2 Another example was Mr. Deronjic. I believe he testified for one

3 day, I cross-examined him for four days. Again, all of it was relevant

4 and pertinent to the case and Judge Liu allowed me to do so based on my

5 professionalism and my ability to demonstrate that all the areas which I

6 was exploring were relevant to the Defence and he was allowing me to make

7 my full and fair record, as I'm entitled to do so.

8 I don't know if I'm answering Your Honour's question, but I think

9 at some point you'll, at least in the beginning you'll have to take us at

10 our word, and it's up to us to demonstrate to you and the rest of the

11 Bench that we know what we're doing, we're prepared, we're not engaging in

12 some fishing expedition, it's quite relevant, and we're actually trying to

13 ask questions that are pertinent in not only exploring the truth but also

14 assisting the Trial Chamber in making its findings of facts and

15 conclusions of law. Thank you.

16 JUDGE ANTONETTI: [Interpretation] Thank you. I appreciate what

17 you have just said. You stressed one point in particular that seems

18 fundamental to me. You explained that the questions you would put are

19 there to help the Judges, and it is indeed an attitude that would be the

20 attitude of everybody, be it in the examination-in-chief or in the

21 cross-examination. You're not putting questions to please the witness or

22 the people outside this courtroom. You put questions so that Judges may

23 draw conclusions from what they hear.

24 This, therefore, requires a professional attitude by everybody and

25 a very clear objective, which is to inform the Judges of particular

Page 484

1 things. And I keep saying that. In your questions do endeavour to go to

2 the core of the matter. Do not drown the witness in irrelevant questions.

3 Well, sometimes you want to drown the Judges as well but, you know, if the

4 Judge is a professional, he is never drowned in anything. You will see

5 that early enough.

6 I fully share what you have just said. You stressed the issue of

7 the expert witnesses. Indeed, experience has shown us that when you have

8 an expert witness, you also have a report, and the expert witness is

9 examined-in-chief for an hour or two by the Prosecution on the main points

10 in the report. Thereafter, the Defence will need much more time for its

11 cross-examination. That's obvious. No problem regarding expert

12 witnesses. But when it comes to factual witnesses who are going to speak

13 to crimes allegedly committed in municipalities, whether they were victims

14 or eyewitnesses to those facts, then fairness requires that if the

15 Prosecution have two hours, there will be two hours for the Defence. But

16 of course if there is another Defence counsel who wants another two hours,

17 he must agree.

18 So nothing else to say. No major objection to what you have just

19 said at this stage. Of course I wish to know what the other Defence

20 counsel think about it.

21 Second Defence counsel.

22 MS. NOZICA: [Interpretation] Thank you, Your Honour. Actually, I

23 really have nothing to add what you said just now. I think that this is a

24 principle which is perfectly valid. As far as these other witnesses are

25 concerned, we will really try to have the Defence attorneys put questions

Page 485

1 that only have to do with their own clients. We're not going to waste

2 time and I'm sure that we will be able to reach agreement on everything.

3 It is a fact, of course, that sometimes more time will be required for

4 cross-examination, perhaps of one single attorney in relation to the time

5 that the Prosecutor had, but the Prosecutor gave us an approximation of

6 the time required and perhaps he will not be able to abide by it all the

7 time. Sometimes he will need less time; sometimes he will need more time.

8 So if we want to conduct these proceedings in a serious and responsible

9 manner, we as the Defence, too, if we put questions that can only be of

10 assistance to the Court, then I believe that we can easily reach agreement

11 with regard to every specific witness and every particular case. Thank

12 you.

13 MS. ALABURIC: [Interpretation] Your Honour, if we've agreed on

14 expert witnesses, where we should be relatively flexible in terms of the

15 time required and to allow cross-examination to go on even longer than the

16 direct examination, I believe that we should also reach agreement on other

17 witnesses too. I believe that we should be very flexible in this regard

18 as well.

19 First of all, I think that it is unacceptable for the entire

20 Defence to get the same amount of time as the Prosecution or, rather, I'm

21 trying to say that the Defence should have considerably more time. I

22 agree that this time should not be multiplied with the number six, that is

23 to say the number of the accused. Perhaps it is possible to find a

24 different reasonable figure, but at any rate, I believe there should be

25 more time, manyfold at that. Whether we're going to use it every time or

Page 486

1 not depends on the circumstances involved. I'm sure we are not going to

2 be putting questions that we do not consider relevant for our case and for

3 the Court.

4 So perhaps we should all give this some time, how much time this

5 would actually be. But we should also bear flexibility in mind. If it

6 would be expedient for these proceedings, then perhaps we should use even

7 more time for examining some particular witnesses, so let us do it without

8 a major problem.

9 As for the order of questioning, I would agree with Mr. Karnavas

10 on that. Regardless of the witness's particular testimony, we should take

11 the witnesses in a set order. If we know that somebody has greater

12 interest and a larger number of questions, then of course we will

13 accommodate that person and leave them more time.

14 MR. JONJIC: [Interpretation] Your Honour, the Defence of Valentin

15 Coric subscribes to what our colleagues have said. We believe that

16 setting a firm and definitive criterion would not be in the interests of a

17 fair trial. We particularly subscribe to Mr. Karnavas's proposal, and

18 supported by Ms. Alaburic, that we stick to the set order from the

19 Prosecution and the indictment itself.

20 MR. IBRISIMOVIC: [Interpretation] Thank you, Mr. President. I was

21 in a case where there were two accused persons, and we used 50 per cent

22 more time than the Prosecutor had for the direct examination. The

23 situation is far more delicate here. There are six accused persons. And

24 as the Defence counsel for Mr. Petkovic said, I believe that we should

25 have the same amount of time but, on the other hand, it's not realistic if

Page 487

1 we all have the same amount of time. So we have to reduce this to a

2 realistic framework, say two times more or three times more, what

3 Mr. Karnavas elaborated on. First of all, not only in the question in

4 respect of expert witnesses but lay witnesses as well, probably more time

5 will be required, more time than used by the Prosecution.

6 My experience before you, Mr. President, was very positive. We

7 always found elegant solutions, if I may say so, and we always managed to

8 deal with the questions in a way that would be of assistance to the Court

9 and the interests of a fair trial. Thank you.

10 JUDGE ANTONETTI: [Interpretation] Mr. Praljak, I know that you

11 would have liked to cross-examine yourself, but now you have a lawyer to

12 represent you, so you will miss this opportunity. Nevertheless, I give

13 you the floor in case you have something to say.

14 THE ACCUSED PRALJAK: [Interpretation] Your Honour, while I had a

15 lawyer, and I hope that I'm going to get Mr. Kovacic again and Mrs. Nika

16 Pinter, I asked for myself to be given the right as well to cross-examine

17 witnesses, in part, and this is why, sir: Until now, unfortunately, in

18 many hearings before The Hague Tribunal some things were not treated the

19 way they should be, in my judgement. Many facts important for

20 understanding the events in the former Yugoslavia remained distorted to

21 such a degree they led to total misinterpretation. I'm sorry to say, and

22 perhaps it would not be a proper thing for me to say, but then I am an

23 accused person here, I have been indicted: I have a degree in sociology,

24 philosophy, electrical engineering, and I have other degrees, and I

25 believe I'm intellectually capable of dealing with these matters, and I

Page 488

1 know about a great many things, even about things that professional

2 lawyers don't know about, given their limited remit.

3 If you look at my experience from 1968 onwards and in the war, I

4 held about 15 important offices, and I believe that in the history of

5 philosophy, in the sociology of war, the theory of war, the behaviour of a

6 group in extreme and chaotic situations, in the spell of evil, the

7 quantity of evil that appears in regulated states and also the discovered

8 crimes in organised states, and if we look at the history of Croatia, I

9 can give such relevant facts, and I can relevantly examine experts in

10 particular. And, Your Honour, I'm going to ask for this to be made

11 possible for me, parallel to my lawyers in some cases where I believe this

12 would be a good thing, I would like to speak together with my lawyers and

13 to put my own questions. Thank you.

14 JUDGE ANTONETTI: [Interpretation] Well, Mr. Praljak, I listened to

15 you with great care. However, you raise a new problem there. You want to

16 know whether, in spite of the Rules, an accused person may have, in

17 addition to his lawyer, the right to put questions to a witness. Well,

18 I'll think it over.

19 So I believe you are making an oral application here which you

20 have reasoned by saying that this is going to deal with political matters

21 and that you have been involved in politics since 1968, so you are better

22 able than your lawyer to put questions to an expert witness should this

23 expert mention this type of question.

24 Well, I'll think it over, as I said. I don't know what

25 Mr. Prlic's lawyer feels about it, or the other lawyers, but I guess it's

Page 489

1 a question for them too. Quite a challenge. So this is on standby, as it

2 were, for the time being, but there will be an answer.

3 Turning to the Prosecution, do you have some light to shed on

4 this?

5 MR. MUNDIS: Mr. President, I'm not sure we can shed any light on

6 it but let me try with a relatively small flashlight. I don't think at

7 this point we can take this discussion much further, but let me just point

8 out two other factors that we believe are important at this point. First

9 of all, in the event that the Trial Chamber would like to hear arguments

10 of the parties on the issue raised just now by Mr. Praljak, I can assure

11 you that the Prosecution would like to be heard on that matter and our

12 initial position would be that we do not believe it is permissible for an

13 accused to cross-examine witnesses when that accused is represented by

14 counsel, but we would certainly be -- like to be given an opportunity to

15 fully brief and argue that matter in the event that the Trial Chamber or

16 the Pre-Trial Judge thinks that would be helpful in order to advance that

17 limited issue.

18 And the final point I would like to put on the record at this

19 point, Your Honour, again to go -- to take the issue of trial protocols

20 kind of to an extreme, the Prosecution would point out that we do not

21 believe that it is fair in a situation where we're given two hours to

22 conduct a direct examination, for each of the six accused to be allotted

23 two hours as well, thus meaning in effect there's 12 hours for the

24 cumulative Defence teams whereby there would be obviously a high degree of

25 overlap on many if not most of the issues that will be before Your

Page 490

1 Honours, and we would simply reiterate that we don't believe it's fair to

2 have a system whereby we're allowed two hours for direct examination and

3 the combined Defence teams are allowed 12 hours to cross-examine that same

4 witness.

5 JUDGE ANTONETTI: [Interpretation] Mr. Karnavas.

6 MR. KARNAVAS: Thank you, Your Honour. If I could just respond to

7 a couple of points. First, I think Mr. Praljak's request is a reasonable

8 one under certain circumstances, depending on the witness, and of course I

9 noticed yesterday's order giving him counsel. What I didn't see in the

10 order, and perhaps it wasn't necessary to do so, but it said counsel --

11 not counsel and co-counsel and also what comes with that, that is legal

12 assistant, case manager, and what have you. So if Mr. Praljak were to

13 receive, say, new counsel, of course I don't see how a new counsel would

14 be able to articulate the thoughts and pose the sort of questions that

15 Mr. Praljak has in mind, particularly given his level of experience and

16 understanding, his background and his education.

17 Number two, should he be given both of his prior counsel - and I

18 strongly advise that, in the interests of justice, knowing both of them to

19 be highly qualified, highly professional, and they do have an

20 understanding of this case - that perhaps any of the questions that

21 Mr. Praljak may need to ask could be asked through those lawyers, though

22 there may be an exception on occasion. I don't think it needs to be the

23 rule but an exceptional occasion could be made, but nonetheless if he has

24 both of his counsel and a team as everybody else has, I don't see why

25 perhaps his counsel would not be able to find the common ground with

Page 491

1 Mr. Praljak to pose those sort of questions. But again, if Mr. Praljak

2 was not allowed to pose those questions, then I think we would have to

3 find some sort of flexible approach in Court where counsel would be able

4 to consult with the client during the questioning, and I would even

5 advise, in support, that on -- depending on the type of witness, I would

6 support an application for Mr. Praljak to be sitting actually next to his

7 counsel as they would do, say, in the United States, or he could possibly

8 write notes to his -- to his counsel. I just throw that out as an example

9 and as something to think about.

10 With respect to Mr. Mundis raised two times six equals 12, I don't

11 think that anyone on this side of the table has actually promoted that

12 concept, though I think the Trial Chamber was very clear that that is a

13 possibility if we cannot find common ground. Again, I want to stress and

14 repeat: We intend to ask questions that are relevant, consistent with our

15 theories of the case, and again as you well noted, Your Honour, and as I

16 pointed out, our purpose is here to assist you in finding a fair

17 resolution for our clients. It makes no sense for me to be making

18 political speeches. I'm not a cause-oriented lawyer. My cause is my

19 client and his case based on the indictment that was drafted by the

20 Prosecution. So I don't think the Prosecutors need worry that we're

21 asking for two times six equals 12. However, there may be instances where

22 we're going to need to be a little bit flexible and what I'm not hearing

23 anything from that side of the table is that they have any predisposition

24 against flexibility. In fact, I hear the opposite and that's a welcoming

25 sign, particularly given that today we've had some rather difficult

Page 492

1 moments in the court. Thank you.

2 JUDGE ANTONETTI: [Interpretation] Very well. On that issue I

3 would like to invite the Prosecution and the Defence to meet up and in

4 order to suggest to me a modus operandi in due course in order for the

5 proceedings to run smoothly. The flexibility approach seems to me to be

6 the right one in order to find the right way to proceed with each witness

7 on a case-by-case basis.

8 Regarding the issues raised by Mr. Praljak, of course we will need

9 to examine the matter very thoroughly. I will consider the matter, and I

10 will probably issue an order in due course in order to ask you to make

11 submissions on both sides, to make submissions on that point, because it

12 seems to me that this is a vital issue when it comes to the rights of the

13 accused.

14 We still have 20 minutes to go. We still have a lot of items on

15 the agenda. Let me move to the disclosure of evidence pursuant to Rule 66

16 and 68. I'd like to turn to the Prosecution. Can you tell us where we

17 stand on that point?

18 MR. MUNDIS: Mr. President, we -- just last week I believe there

19 was further disclosure in this case. Disclosure, as Your Honour is well

20 aware, is ongoing, and we are continuing to take steps to ensure that all

21 disclosure-related issues are resolved as quickly as possible and

22 certainly prior to the trial with respect, obviously, to Rule 66 material,

23 and of course Rule 68 is an ongoing obligation of the Prosecution.

24 MR. KARNAVAS: If I may be heard, Your Honour. And again I

25 appreciate the time that you're giving me.

Page 493

1 One, I don't believe we have a lot of the expert reports. Perhaps

2 they are hidden in that EDS system, which is not the most user-friendly.

3 However, I believe we do have some reports that are missing.

4 And speaking of expert reports, I am aware of one preliminary

5 report that was prepared by an expert with respect to a very important

6 issue which I believe is important to all of the accused, and that is the

7 Mujahedin that were operating in Bosnia-Herzegovina. So a preliminary

8 report was presented by the expert to the OTP. I have made requests of

9 that report. I haven't received it. Of course, this is an outside

10 expert, and I make that distinction. In-house meaning that you can -- you

11 know, there's a difference when somebody is an employee called. An

12 analyst writes a report and then of course you can sit around and sort of

13 feather it, polish it and what have you, versus an outside. And of

14 course, given that there is preliminary report, barring any additional

15 evidence, I certainly would like to have each and every one of these

16 preliminary reports to see in the event a particular report may take a

17 southern or northern turn, as it were. So if at all possible, I would

18 request that these sorts of reports also be provided to us, including the

19 one that I'm referencing which members of the OTP are aware of.

20 JUDGE ANTONETTI: [Interpretation] Very well. If the other counsel

21 do not have anything specific to add on that particular issue, I'd like to

22 move on to something else.

23 Earlier on the Defence mentioned the financial issue. Do you want

24 to deal with that in open session or in private session?

25 MR. KARNAVAS: I think Your Honour, for the sake of transparency,

Page 494

1 I think it's best to deal with it in open session. I've had conversations

2 with the -- with the Registry already. I've already contacted them and

3 I've already informed them that I would be mentioning this on the record

4 in public because I do think there is a certain transparency that's

5 required.

6 As of February, it has become very clear that for this particular

7 Defence team, Defence counsel, lead counsel, will have to, one, forego any

8 income and in fact have to spend money already earned which has yet to be

9 delivered by the Registry in financing the rest of the team.

10 Now, there was one particular issue with respect to the previous

11 counsel. Money was not provided to us for a certain -- for phase 2,

12 primarily because that counsel was not on Rule 45. However, the Registry

13 was imminently informed as to the status of the case when I received it,

14 and the amount of work that I had to deal with in part covered all of the

15 work that would have been done or should have been done on phase 2.

16 Nevertheless, we were derived of those funds and I've had to make do.

17 The case was scheduled originally to start in October, then they

18 talked about November, December, and then in February. Eventually it was

19 settled on a breakdown of February, with 20 per cent being withheld. That

20 20 per cent, of course, being lead counsel, it is my practice to make sure

21 that everybody in the staff gets paid first, and what -- if there is

22 anything left, then it's for counsel, as opposed to doing it the other way

23 around. And I want to stress so that the Trial Chamber understands, which

24 I'm sure it does understand, that behind any face that works on the

25 Defence team, there are other faces, there are other people, be they

Page 495

1 husbands, wives, mothers, children. So it's not just a particular

2 individual but it's their families and loved ones that also rely on the

3 income. So obviously, for those reasons, I make sure that they get paid

4 first.

5 So the 20 per cent, of course, was withheld up until February.

6 Now, for reasons that are beyond the control of this particular Defence

7 team, or any Defence team, and in fact I would lay the blame squarely on

8 the Registry to some extent because it is they who are responsible for

9 making sure that this building is up to snuff, and if it needs to be

10 refurbished, it should be refurbished in a timely fashion, but the trial

11 is being continued, as I understand it, from February to perhaps April in

12 part, or primarily because of the lack of courtroom space. I can

13 understand that. What needs to be understood, however, is that throughout

14 this period from February, beginning of February all the way until the

15 beginning of the trial, the Prosecution continues to work on the case,

16 they continue to investigate the case, the case grows bigger and bigger.

17 They're entitled to do that. That's their mandate. Nothing prevents

18 them, there's no dossier, and I think that they would not be doing their

19 duty if they did not continue to investigate and prepare their case.

20 On the other hand -- and I want to also stress that when Mr. Scott

21 earlier was addressing the Court he had indicated all the efforts that he

22 was making in trying to get everything ready as the Court had indicated,

23 and in fact, Your Honour, you indicated that you had been working close to

24 24 hours a day.

25 Suffice it to say those of us who have practiced on the Defence

Page 496

1 side knows that as the case becomes gets closer and close to trial, one

2 needs to work harder and harder. Unfortunately, I've had to lay off

3 staff. I've had to reduce hours just to make sure that the money was

4 stretched enough.

5 I'm mentioning this not because I'm asking at this point in time

6 for Court intervention, but merely to state what I've stated to the

7 Registry, that should there come a time at the end of this month where we

8 cannot find some sort of a reasonable resolution -- and what I'm asking

9 for is the allotment that would be normally due to a case of this

10 magnitude, keeping in mind that by the time the trial begins I would have

11 been in case for 16 or 17 months, that it be given, because of these

12 extraordinary circumstances and because I'm trying to do my job.

13 I'm responsible for the life of an individual. That's what it

14 comes down to when you are a Defence lawyer. I'm responsible to make sure

15 that he gets a fair trial. I have certain professional responsibilities.

16 Now, in meeting those responsibilities, I understand that I must put his

17 interests up first. I've done that in my entire career. However, there

18 comes a time also where I have to take a principle position, and that is

19 do I work for free for the United Nations and subsidise this Tribunal

20 because it wishes to prosecute somebody but then at the same time does not

21 wish to provide sufficient funds to allow that individual to have a full

22 and fair Defence?

23 So I bring this to your attention because I've also notified the

24 Registry that there may come a time where I will have to make a rather

25 difficult choice, and the choice may be to lay off the entire team until

Page 497

1 the beginning of the trial, or to finance -- continue to finance the

2 defence of Mr. Prlic until the beginning of the trial.

3 Now, I'm told not to worry, that once the trial begins I can begin

4 getting paid. I want to remind those who work in the Registry that we

5 don't get hospitalisation, we don't get benefits, we're not on some UN

6 pension, we certainly don't get the six-weeks paid vacations. And so --

7 and we have a tremendous amount of overhead, particularly if an individual

8 is out on provisional release where you do have to have contact with that

9 individual, and here in this particular case we're talking about a

10 document case as opposed to a witness case. There lies the difference.

11 And who better than your own client to assist you in sifting through these

12 documents? So because of that we've had to -- I have had to more or less

13 move to Croatia, work in Bosnia, while at the same time maintain premises

14 here, ready for trial, and I was prepared to start trial in October, as I

15 thought we would.

16 So I mention this on the record because there may come a time

17 where I will either ask for intervention or at least put the Trial Chamber

18 on notice that I will need an order from the Trial Chamber directing me to

19 work for free for the UN as if I were some indentured servant. That's

20 what it will take, because I think that it's unbecoming to expect Defence

21 counsel who are trying to do a reasonable job in protecting their client's

22 rights to actually finance their cases when there are alternative ways.

23 And in this particular case, the phase 2 money was withheld from us to no

24 fault of our own, to no fault of the client. The money is not going to

25 the previous counsel, it's not going to work that was previously done but,

Page 498

1 rather, it's going for the next three months, which is not even sufficient

2 but at least it would go for the next three months to pay for the staff to

3 continue to work and for us to meet our professional and ethical

4 responsibilities, and that's what I wanted to say, Your Honour, and I

5 apologise for having to take up your time on this matter, but ultimately

6 you are -- you are here to make sure and to guarantee the rights of the

7 accused and make sure that their fundamental rights are protected, and it

8 would be in the interests of justice, in my belief, if at least some

9 flexibility was shown to at least provide us with the full amount that is

10 allocated for these sorts of cases. Even though that's not sufficient,

11 I'm not asking for anything more than that. I'm asking basically to have

12 what all the other teams have in order to get their cases ready.

13 Thank you, and again I apologise for taking everyone's time,

14 including the Prosecutor's time.

15 JUDGE ANTONETTI: [Interpretation] Thank you very much for these

16 comments, for this information. I will ask to meet with the Registrar in

17 order to shed some light on this matter and in order to encourage him to

18 solve this issue, because this problem should not exist. According to me,

19 it's absolutely normal that assigned counsel should be paid for their work

20 without any problems. I'll deal with it.

21 I'm not going to give the floor to the other Defence counsel who

22 I'm sure share what you've just said. We only have a few minutes left,

23 and we'll move into private session. Madam Registrar.

24 [Private session]

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20 [Open session]

21 THE REGISTRAR: We're in open session, Your Honour.

22 JUDGE ANTONETTI: [Interpretation] We are in open session. And let

23 me state that the hearing stands adjourned, and we'll meet again very

24 shortly.

25 --- Whereupon the Status Conference adjourned at 1.48 p.m.