Tribunal Criminal Tribunal for the Former Yugoslavia

Page 15627

1 Wednesday, 14 March 2007

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.10 a.m.

5 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, will you please

6 call the case.

7 THE REGISTRAR: Good morning, Mr. President. Case IT-04-74-T, the

8 Prosecutor versus Prlic and others.

9 JUDGE ANTONETTI: [Interpretation] First of all, good morning,

10 Mr. Registrar, who has rejoined us to stand in for an absence today.

11 I bid good morning to the Prosecution, the ladies and gentlemen of

12 the Defence teams, as well as the accused.

13 We are 10 minutes late due to a technical problem. I hope that

14 this problem will be resolved shortly, and we will be able to see the

15 transcript, I hope, on our screens soon.

16 THE REGISTRAR: 2D has submitted a list of objections to the

17 admission of evidence of the OTP's list of Witness Mirjan Biskic. That

18 will be given Exhibit number IC 484. And 3D has submitted a reply to the

19 Prosecution's objection to exhibits tendered through Witness Marijan

20 Biskic and that shall be given Exhibit number 485. Thank you.

21 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Registrar.

22 I think Mr. Karnavas has -- we have a few minutes left, but let us

23 have the witness brought in. I think, Mr. Karnavas, you wanted to take

24 the floor. I don't know on what point.

25 MR. KARNAVAS: On a couple of points, Mr. President. I don't

Page 15628

1 object to the witness being here but I want to do this in open session, so

2 I think it's best to do this without the presence of the witness.

3 First, I believe I owe an apology to the Trial Chamber,

4 particularly to you, Mr. President, for my outburst yesterday. I wish to

5 apologise to you, to members of the Trial Chamber, as well as to everybody

6 in the courtroom for my outburst. I think it was unprofessional to raise

7 my voice against the Bench. I will try to make sure that I maintain my

8 composure for the rest of the trial. I can't guarantee it, but I will

9 certainly try to do so.

10 As for the reasons for my outburst, however, I wish to bring to

11 the Court's attention that those were justified. I think that this trial

12 has to be conducted the way other trials are being conducted in this

13 Tribunal in the sense that the parties should be allowed to ask

14 questions. The Judges may ask some clarification questions, but may ask

15 their own questions at the conclusion of when the parties are finished

16 their questioning and to allow then the parties any follow-up questions

17 after the Judges' questions. That is the procedure that is adopted at

18 this Tribunal. That is the procedure that is followed in every court

19 except this one.

20 I raise this because there is an issue of procedural justice. I

21 think that everybody that is sitting in the dock is entitled to the same

22 trial process as everyone else in this Tribunal. I think the Prosecution

23 is entitled to put on its case in the manner in which they feel it's

24 necessary because they have that burden of proof, and we support them in

25 that effort. At the same time, we should be able to put on our case,

Page 15629

1 which also means through cross-examination in a manner which we see fit,

2 because, after all, we are trying to make a record, a record that is going

3 to be necessary for us when it comes time for the final brief and the

4 closing arguments.

5 We recognise that the Trial Chamber has questions of its own.

6 Those questions can be asked and should be asked, but I say there is a --

7 sort of a sequence of this.

8 Given that we have time limitations, Mr. President and

9 Your Honours, it takes a tremendous amount of time to prepare. For this

10 one-hour witness we have in the Prlic Defence team approximately 50 hours

11 of preparation. Fifty hours of preparation for one hour. And so it is

12 not a matter of saying, okay, I ask some questions, now I'll go back and

13 fix it. When I have only 15 minutes and a half an hour it is a great

14 disturbance. And I understand that the Trial Chamber is impatient, but in

15 the adversarial session, Mr. President and Your Honours, Judges are paid

16 to be patient. That is part of the job, because they are not a

17 participant. They are more like a referee, and that's a frustration,

18 obviously, to the Bench, but nonetheless it is something that is -- that

19 comes with the territory that comes with this particular procedure.

20 I would invite the Trial Chamber to schedule a hearing as soon as

21 possible so that we can clear up some issues that we -- have been raised

22 in writing, issues also that the Prosecution wish to -- to be heard on but

23 other issues as well, and the main issue is, in my opinion, is this

24 procedural justice? How are we going to proceed? We are running a little

25 bit behind schedule but this is a big trial. The Prosecution has spent

Page 15630

1 years preparing this case. They're entitled to put on their case. The

2 victims are entitled to be heard through the Prosecution. The accused are

3 entitled to counter the Prosecution's case through its own evidence and in

4 a manner it sees fit, and we should have adequate time and resources to do

5 so. So that's why we need this hearing.

6 I would welcome at this hearing -- if the Trial Chamber were to

7 schedule a hearing, I would welcome also the participation of members of

8 the Bureau so that this can be an open and frank discussion and how are we

9 asking to have this procedural justice in this particular case. Are we

10 going to have a new system that is independent and different from other

11 Trial Chambers or are we going to fall in line with the other Trial

12 Chambers with some slight modifications but not so dramatic in this

13 particular case that make it virtually -- has made this trial into a civil

14 law procedure as opposed to an adversarial procedure under the mixed

15 procedure that has been adopted by the Tribunal and the jurisprudence that

16 has emerged therefrom.

17 Now, if the Trial Chamber is disinclined to give us a hearing for

18 whatever reason, I seriously -- it is my position, and I've never had a

19 problem in speaking truth to power. I think it's pretty obvious by now.

20 Maybe my tone of voice, maybe my demeanour is not as eloquent, is not as

21 measured as my colleagues, especially who come from the UK who are very

22 eloquent advocates. Unfortunately, I lack those skills, but I've never

23 had the problem of speaking truth to power, and my position is,

24 Your Honours, if the Trial Chamber does not think that it's necessary to

25 have a hearing, if it does not think that it's necessary to have the sort

Page 15631

1 of procedure adopted in this Trial Chamber that is being followed by all

2 other cases where other accused are being tried, then I think that the

3 members of the Trial Chamber should seriously consider disqualifying

4 themselves in this case.

5 I am not moving for disqualification at this point in time, but I

6 think it's something that the Trial Chamber or members of the Trial

7 Chamber should seriously consider. Maybe because of the -- the heavy

8 weight that is being put upon this particular Trial Chamber with the

9 completion strategy, with the lack of space, with so many cases being

10 tried, for a variety of reasons, I don't know, but I think that unless we

11 clear this matter up - how we're going to proceed - and we can have a

12 process that is uniform, so that on any given day whether it's courtroom

13 I, II, or III, the trials are being conducted in the same manner. The

14 parties are being given the same access.

15 I saw Mr. Scott yesterday. He was trying to fumble through his

16 documents because he spent a tremendous amount of time preparing his

17 case. He knows exactly what he needs to do. I commend him. I don't

18 agree with a lot that he does, but one thing that can be said about this

19 gentleman is, both him and Mr. Mundis, is that they are very, very well

20 prepared. They know exactly what they want to do. So they should be

21 allowed to do that; we should be allowed to do what we want to do. What

22 I'm saying, Your Honours is, one, I would like to have a hearing where we

23 can clear these matters up, including the matters which the Prosecution

24 has raised given the remand from the -- from the Appeals Chamber, but also

25 can we have a procedure here that is uniform and consistent with the

Page 15632

1 other -- with the other trials. That's my primary concern.

2 If we -- I would like for the Trial Chamber to consider whether

3 members of the Bureau, that is the President of the Tribunal, other

4 Presidents of Trial Chambers should be invited to participate. I'm not

5 suggesting that's necessary but I think it's something that may be good.

6 If a hearing is not going to be provided to us, then I think

7 members of the Trial Chamber should seriously consider whether they --

8 whether they should continue to serve on the Bench or whether they should

9 disqualify themselves on the basis that they are unable to provide the

10 procedural justice, not just substantive justice, to the accused that are

11 sitting here. Each and every one of them are fighting for their lives

12 through us. They deserve to have a fair trial. We're not saying it's

13 unfair, but the process is -- is to the point where it appears unfair, and

14 in my opinion we're dangerously coming to the point where it is becoming

15 unfair because we are unable, the parties are unable to put their cases

16 forward in the manner in which they prepared.

17 So I mention this with the utmost respect, and again let me

18 apologise to you, Mr. President, let me apologise to everyone in the

19 courtroom for my outburst. It is -- it was shameful in my part -- from my

20 part. I shamed myself, my colleagues, my client, my fellow lawyers on the

21 Defence bar, in the manner in which I spoke to the Bench yesterday and the

22 tone I did.

23 But as for the content - as for the content - I remain

24 unapologetic. I'm afraid I'm to the point where I'm afraid Mr. Prlic is

25 not going to get a fair trial and I am going to fail him. And in my

Page 15633

1 attempt to make sure I don't fail him I'm sitting here looking at you,

2 Your Honours, speaking truth to power, and I'm saying: Give us a hearing,

3 let us adopt a procedure that is being followed in all other cases in this

4 Tribunal. Thank you.

5 JUDGE ANTONETTI: [Interpretation] Madam Alaburic, please be

6 seated.

7 I don't intend to respond to what you have just said.

8 We are going to continue with the hearing of the witness.

9 Mr. Registrar, would you please pull down the blinds. We're

10 going to have the witness brought in, and we're going to go into closed

11 session.

12 MS. ALABURIC: [Interpretation] Your Honour, if I may, in the

13 meantime I have just one sentence I would like to say. I would like to

14 say that though we didn't know our colleague Karnavas was going to raise

15 this issue, that this is a topic that we have discussed and that other

16 Defence teams are also aware of those procedural justice problems and so

17 we associate ourselves to his suggestions.

18 MR. KOVACIC: [Interpretation] Your Honour, for the record, I wish

19 to note, as my learned friend has, that what Mr. Karnavas has said is

20 something that my Defence team also supports. Thank you.

21 MR. MURPHY: Your Honour, the Stojic Defence also has the same

22 concerns, and we would like the opportunity to address them in the manner

23 that Mr. Karnavas has indicated.

24 MS. TOMASEGOVIC TOMIC: [Interpretation] We also join our other

25 colleagues on the Defence in supporting the suggestions.

Page 15634

1 [Closed session]

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 15635











11 Pages 15635-15734 redacted. Closed session















Page 15735

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 --- Whereupon the hearing adjourned at 1.47 p.m.

8 To be reconvened on Thursday, the 15th day

9 of March, 2007, at 9.00 a.m.