Tribunal Criminal Tribunal for the Former Yugoslavia

Page 15736

1 Thursday, 15 March 2007

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.03 a.m.

5 JUDGE ANTONETTI: [Interpretation] Registrar, you may sit down, but

6 could you also give us the case number, please.

7 THE REGISTRAR: [Interpretation] Yes. Good morning, Your Honours.

8 This is case IT-04-74-T, the Prosecutor versus Prlic et al.

9 JUDGE ANTONETTI: [Interpretation] Thank you, registrar.

10 We are the 15th of March, 2007 today. I would like to greet the

11 accused and all the people in this courtroom. We must resume our hearing

12 and bring in the next witness, but before we do that, do we have an IC

13 number, registrar.

14 THE REGISTRAR: [Interpretation] Yes, Your Honour.

15 [In English] Several parties have submitted documents lists of

16 documents to be tendered through Witness DE. The list submitted by the

17 OTP shall be given Exhibit number 486. The list submitted by 1D shall be

18 given Exhibit number IC 487. The list submitted by 3D shall be given

19 Exhibit number IC 488. The list submitted by 4D shall be given Exhibit

20 number IC 489. The OTP has also submitted a supplemental list of

21 documents to be tendered through witness Marijan Biskic. That list will

22 be given Exhibit number 490. Thank you.

23 JUDGE ANTONETTI: [Interpretation] Thank you, registrar.

24 First of all, as far as the hearing dates in July and August are

25 concerned, the Trial Chamber had set the dates from the 7th of July to the

Page 15737

1 7th of August. The Prosecutor told us in writing that there was a problem

2 at the beginning of August and that we might face a technical problem,

3 matters relating to photocopying of documents, so we discussed this

4 yesterday and decided to postpone it by a week, which means that the -- we

5 will end on the 13th of August, which is a Friday. In fact, it will be on

6 the 12th.

7 THE INTERPRETER: Interpreter's correction, 12th of July.

8 JUDGE ANTONETTI: [Interpretation] And we shall resume on the 13th

9 of August at quarter past 2.00.

10 This is a decision the Trial Chamber has taken regarding the

11 schedule.

12 Now, as far as Mr. Karnavas's intervention yesterday is concerned,

13 the Chamber is deliberating, and in the next few days we shall hand down a

14 decision which undoubtedly will be an oral decision. For the time being,

15 we have not entirely taken our decision, and we are in process of taking

16 it, and we shall keep you informed as soon as we have taken our decision.

17 That said, I am personally looking into the question that was

18 raised. Not so much and -- as a matter of form than content, namely

19 Rules 44 and 77 of the Rules of Procedure and Evidence, and I shall

20 certainly hand down a decision personally. I feel that as a Judge, and in

21 light of the powers I have been given, I am entitled to put any question

22 at any time.

23 In addition, as far as Mr. Scott is concerned, I noticed yesterday

24 on several occasions that you said that if you'd had enough time you would

25 have done this and that. Of course, I -- this got me thinking, and in the

Page 15738

1 night I did my calculations, and I'd like you to pay attention to what I'm

2 about to say.

3 In this trial you wish to tender into evidence 10.000 documents.

4 If a -- if it takes us six minutes per document on average, let's say six

5 minute per document, 10.000 documents multiplied by 6, so that's 60.000

6 minutes. If I divide this by 60 to calculate the number of hours, we're

7 talking about -- we will reach something like a thousand hours to look

8 into the documents, which would amount to 250 trial days solely dedicated

9 to the review of documents. So obviously we will not have time to review

10 all the documents you wish to tender into evidence.

11 Therefore, in its wisdom, the Trial Chamber has permitted you to

12 tender these documents by means of a written motion so that you tender

13 those documents which you feel to be the most important. Obviously there

14 will be some questions you will not be able to put because you cannot

15 tender all the documents. That goes without saying. But every time you

16 say you don't have time, you don't have time. One cannot compare a trial

17 where a thousand documents are being presented with a trial where there

18 might be something like 20 or 30.000 documents.

19 As a matter of interest, I looked at the Blagojevic -- Blagojevic

20 trial this morning. 800 documents had been presented by the Prosecution,

21 170 by the Defence team during the cross-examination, which has nothing to

22 do with the figures we're talking about here at this trial. We therefore

23 have to apply a rational working method. One cannot apply the same rules

24 in this case, and you cannot apply the rules which apply to a previous

25 trial to this particular trial. If that were the case and if I do want to

Page 15739

1 refer you to the Blagojevic trial, in that trial the accused weren't even

2 entitled to put any questions.

3 So those 10.000 documents unfortunately cannot all be presented at

4 trial, and I think you need to be well aware of that. You need to present

5 the most important documents. I know that with the upcoming witness we

6 have a number of documents which you went to -- which you wish to tender

7 through the witness, and thanks to the 92 ter Rule, you will be entitled

8 to present these documents. This is Witness L. Protective measures have

9 been granted, i.e., closed session. We discussed the matter as to whether

10 there should be distortion of the face and of the voice and whether he

11 should be heard or she should be heard in closed session. We felt this

12 person could be easily identified, so we decided to hear this witness in

13 closed session.

14 Usher, please bring the blinds down and ask the witness to come

15 into the courtroom.

16 Yesterday, we also discussed the question of time, how much would

17 be granted to each party. We reviewed the content of the documents, and

18 in light of this Mr. Petkovic would have 40 minutes, Mr. Praljak 40

19 minutes, Mr. Prlic 40 minutes also, because his name is mentioned in one

20 of the documents similarly, and the three other accused would have 20

21 minutes. But, of course, if you so wish, you can give your time to

22 somebody else. That's for you to decide. In broad terms, this is how we

23 have shared out the allocated time.

24 That said, as we don't have much time, sometimes if you give your

25 time to somebody else this might be difficult to substantiate, but this

Page 15740

1 will have to be addressed on a case-by-case basis. The Prosecution will

2 have one hour all in all and no more.

3 So, Mr. Flynn, please make sure that you present your documents in

4 that space of time.

5 [The witness entered court]


7 [Witness answered through interpreter]

8 JUDGE ANTONETTI: [Interpretation] Good morning, Witness. I want

9 to make sure that you can understand me in your own language.

10 THE WITNESS: [Interpretation] Good morning. Yes, I can.

11 JUDGE ANTONETTI: [Interpretation] You have been granted protective

12 measures, which means that your testimony will be heard in closed

13 session. Nobody can hear what you are saying, but for the purpose of

14 this procedure -- these proceedings I need to have your date and place of

15 birth, please.

16 We need to move into closed session. I thought this was

17 automatic.

18 [Closed session]

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

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8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 [Open session]

14 THE REGISTRAR: We're in open session, Mr. President.

15 JUDGE ANTONETTI: [Interpretation] Could you press the button and

16 raise the blinds.

17 Mr. Scott, the planning for next week, please.

18 MR. SCOTT: Your Honours, I haven't looked at the exact count, but

19 we -- the Prosecution anticipates calling a number of fact witnesses next

20 week. It looks like about -- about seven, approximately seven witnesses

21 next week, many of whom we hope can be presented fairly briefly. Yes,

22 that's all I would say about it. I'm not going to mention particular

23 names because there may be protective measures.

24 JUDGE ANTONETTI: [Interpretation] Very well. If you're saying

25 seven, then there must be 92 ter witnesses among them. I have already

Page 15821

1 said that the 92 ter procedure consists of an admission of documents and

2 written testimony. Of course you know that, a few documents directly

3 linked to this 92 ter witness. That's the meaning of this procedure.

4 If the procedure is used to do direct examination, then this is a

5 different procedure altogether. I know that there is no perfect

6 jurisprudence in this area, but as I attend the Plenary meetings of

7 Judges, when this provision was introduced, and I was one of the authors,

8 was to speed up the procedure which would admit the -- which would allow

9 for the admission of documents but which would also allow the Defence to

10 cross-examine, so that that was the main purpose. However, I note that

11 your practice has been slightly different. You ask questions about

12 documents, and then you show a large number of documents to these

13 witnesses, whereas the purpose of this procedure has, in a sense, been

14 changed.

15 As you are telling us you are calling seven witnesses, I assume

16 there won't be so many documents, especially documents that can be shown

17 to other witnesses, as was the case with this witness.

18 Mr. Scott.

19 MR. SCOTT: Yes, Your Honour. Thank you. We certainly agree that

20 one of the main purposes behind Rule 92 ter was to allow more evidence to

21 be taken in a written form more quickly and more efficiently. Having said

22 that, and as you know, having been a member of the Rules Committee who

23 drafted the rule, it was in fact also part of the purpose, and is stated

24 in front of -- face of the Rule in part A to allow the direct examination

25 to be taken in whole or part, part viva voce, part in writing, or one or

Page 15822

1 the other, altogether. It has been the Prosecution's position since many

2 months ago in the trial as the Chamber will recall that we should in some

3 instances be allowed to conduct what we would -- might call a mixed

4 examination, some based upon putting in the statement, some based upon

5 viva voce testimony, which is the practice followed in most Chambers

6 with -- to good effect, because it does save time on those portions which

7 are not put viva voce. So it is a time saving method. Otherwise,

8 Your Honour, we are put in a position of an all or nothing choice. We

9 would have to put the entire evidence in viva voce or the entire evidence

10 in 92 ter, which is not what 92 ter contemplates, because further in 92

11 ter A, it says that a Trial Chamber may admit in whole or in part the

12 evidence of a witness. But be that as it may, I thought next week's

13 witnesses will not involve -- I don't think any single of those witnesses

14 will indeed involve a large number of documents. We will continue to try

15 to find our way applying 92 ter as best we can, given the jurisprudence

16 and given what the rule says.

17 I would just -- if that completes -- there's one other point I

18 wanted to address, Your Honour, if that complete's Your Honour's comments

19 on that.

20 JUDGE ANTONETTI: [Interpretation] Yes. I will give you the

21 floor, but let us complete the discussion on 92 ter. I have taken note of

22 what you have said, and I agree with you that this -- this is a procedure

23 that allows time to be saved and in the decision we have said that this

24 has a -- procedure has allowed to save 45 hours in relation to the time

25 envisaged if those witnesses were to come to testify viva voce. So it is

Page 15823

1 an important saving of time, and I fully agree with you. And this

2 procedure, of course, may be used by the Defence if they so wish for their

3 own witnesses.

4 So I give you the floor as you wish to touch on other points and

5 we have time left.

6 MR. SCOTT: Thank you, Your Honour. Just very briefly. Just to

7 confirm on that last point again, as we've said before, of course from day

8 one, in fact going back to the pre-trial portion of this case, we had

9 always anticipated making maximum use of what has since become 92 ter. It

10 used to be Rule 89(F). But that has always been the intention of the

11 Prosecution to use the Rule to the maximum extent that we thought

12 reasonable and indeed save as much time as possible.

13 Your Honour, I just wanted to come back -- I didn't want to leave

14 the week with an error on the record or a misunderstanding. At the

15 beginning of the week the Chamber addressed the matter of when the

16 Prosecution had made a filing concerning the contact that Mr. Pusic had

17 with the witness -- with the witness in Mostar and had some comments about

18 that.

19 Just so the record is clear, Your Honour, there was never a motion

20 filed. There were several references to the fact that the Prosecution

21 made a motion. In fact, the Prosecution didn't make a motion. In fact,

22 the Prosecution didn't ask for any action to be taken whatsoever. It was

23 simply filed for the information of the Chamber. It may be -- there may

24 be a base -- a request for action in the future but there was simply

25 nothing for the Chamber to deny. There was no request for action by the

Page 15824

1 Prosecution but simply to inform the Chamber. Thank you.

2 JUDGE ANTONETTI: [Interpretation] Just two points in connection

3 with what you have said. I come back to 92 ter because in line 9 you say

4 that 92 ter replaced 89(F). Unfortunately, I don't have the Rules in

5 front of me, but I don't think that 89(F) has been redacted. I may be

6 wrong. My impression is that that Rule -- that Rule has been maintained.

7 It's still there. I have the Rules. Which means, Mr. Scott, in theory,

8 that one can also refer to 89(F) again, which has been used in other

9 cases. So you also have means, I would almost say a boulevard, a highway

10 before you if you wish to use 89(F) as it has already been used.

11 Having said that, a second point: You're coming back to the Pusic

12 case. I take note that for you this was just for the sake of information

13 for the Chamber, and the Chamber rendered an oral decision regarding the

14 filings. I didn't have time to present another argument. I wanted to say

15 that if in the future you find yourself confronted with this situation is

16 to immediately inform the other party about it. And the second rule is

17 that before the hearing to let us know, rather than putting us before a

18 fait accompli, because last time we were placed exactly in such a

19 position, and you explained that you had been working for 14 hours that

20 day, which I can understand. Therefore, that's all I wish to point out.

21 My colleague also wishes to say something.

22 JUDGE TRECHSEL: I just wanted to confirm and to state the Chamber

23 was perfectly aware of the fact that it was not seized by a motion of the

24 Prosecution or any other party, and I -- I'm very sorry if the formulation

25 of the oral decision could give rise to a misunderstanding. I would

Page 15825

1 regret this, but I can assure you that we were perfectly aware of the

2 procedural situation as you have correctly stated.

3 MR. SCOTT: Thank you, Your Honour, and I appreciate that. It may

4 have been a translation error, or it may not just been an a casual use of

5 a term. I'm pretty confident the transcript will reflect on Monday that

6 references were made to a motion filed by the Prosecution but I'm

7 certainly not going to belabour it.

8 I don't think there was a fait accompli. I think the information

9 was provided to the Chamber for the Chamber's only information sake.

10 There may or may not be times in the future where it would not be

11 appropriate for the Prosecution to bring that immediately to the Chamber's

12 attention because there may be additional investigation that the

13 Prosecution would conduct. So the Prosecution is mindful of these

14 matters. We are indeed very concerned about anything that possibly

15 interferes with a witness and, apart from advising the Chamber, we may

16 seek action ourselves by enlisting the assistance of local law enforcement

17 or international organisations in the area to seek to address these

18 matters. So it may or may not be appropriate to bring it immediately to

19 the attention of the Chamber. Thank you.

20 JUDGE ANTONETTI: [Interpretation] Very well.

21 Mr. Karnavas.

22 MR. KARNAVAS: Thank you, Mr. President, Your Honour. Yesterday I

23 made some comments with respect to the previous day and with respect to

24 the previous day, and with respect to what I believe is the procedure that

25 is universal more or less throughout this Tribunal, except with this Trial

Page 15826

1 Chamber with respect to asking questions. And I want to clarify my

2 position and I do so with all due respect because of certain comments

3 that, Mr. President, you've made in my -- in my opinion which are not

4 necessarily helpful in these matters. You stated such as, "I want you to

5 know -- I want to know if you mind me asking a question. If I may, with

6 your permission, without accusing me of undermining your rights. You're

7 not going to reproach me for asking a question. I should have asked my

8 question straight away but this displeases the Defence so I prefer to

9 wait," and so on.

10 Now, I understand there seems to be perhaps some confusion as to

11 what exactly I'm trying to convey to the Trial Chamber, so let me go slow.

12 Let me be methodical about this.

13 First and foremost, neither the Prosecution nor the Defence has

14 ever said that the Trial Chamber is not allowed to ask questions.

15 Obviously the Rules provide for that. In fact, they provide that you can

16 ask questions at any time. What we have said -- or what I have said is

17 that the practice in this Tribunal has been to allow the Prosecution, if

18 they're going first, to put on their direct examination, followed by

19 cross-examination by the Defence, followed by questions by the Bench, and

20 then to allow the parties, the Prosecution and Defence, to ask any

21 follow-up questions with respect to any questions posed by -- by the

22 Bench, and yesterday there was a good example.

23 At the conclusion of General Praljak's questioning, you asked a

24 question. It was relevant. It was pertinent. And after that

25 General Praljak asked to -- to have a moment to -- to put another question

Page 15827

1 and indeed his question was a follow-up to your question, and it all tied

2 in and it made sense.

3 That's the preferred procedure. Now, I'm not suggesting that

4 this be -- that this is a rigid procedure. My preference is, if there is

5 some sort of a misunderstanding, if there is a point that needs

6 clarification, it should be done right on the spot. I don't have a

7 problem with that.

8 If I'm moving from a chapter, from a particular topic, normally I

9 it turn to Your Honours if you have a question to follow up on that as

10 opposed to waiting to the end. That's my approach. I think it helps.

11 Where the problem arises and I'm saying this because I wish you to

12 understand the dilemma that I am facing, because we spend a lot of time

13 trying to fit in a lot of information that what convinced period of time.

14 If I pull out a document and before I've been given an opportunity to at

15 least address the points I think are necessary and important in the

16 document and you begin to ask questions, because obviously you have your

17 questions in mind you're entitled to those questions, but if you do that,

18 sometimes you go in a particular direction that maybe -- that I may need

19 to go there but -- or maybe I wasn't intending to go there, but now,

20 because of the limited time that you've given me, it throws us off, and it

21 is frustrating. And so I want to make sure that you understand that I'm

22 not saying that you can't ask questions.

23 JUDGE ANTONETTI: [Interpretation] Yes. I'm going to allow you to

24 continue it. You're quite right. Maybe it's a misunderstanding. I fully

25 agree with what you have just said, and I have no different opinion on

Page 15828

1 this point and I'll tell you why, so please continue.

2 MR. KARNAVAS: All right. So this is the -- the problem that

3 we're having and the Prosecution is having this problem as well, we have a

4 lot of documents. Last week -- I'll be very concrete. There was an

5 objection -- there was an intervention. I would like to say it was an

6 objection by Judge Trechsel when I put a document in. It had to do with

7 this particular Spider operation. I didn't go into that. There was a --

8 there was a very correct observation made by Judge Trechsel. The problem

9 is if I don't have time to go in and develop that because I have limited

10 period of time, I have to move on. Hopefully when I finish the chapter

11 you will understand at least the point that I'm trying to make and in that

12 instance we will have other witnesses who will follow up on that.

13 I can assure you that at least on this side, and I'm sure on that

14 side as well, we really work very hard to try to figure out what points we

15 need to make, how we're going to make them, and in -- the order in which

16 we need to make them. On direct examination they need to tell a

17 narrative. They need to tell a narrative so at least their side of the

18 story gets out and then we are able to challenge that story, if

19 necessary. So if that narrative is not presented in a way that we can

20 challenge it, they're going to have a problem at the end of the case. We

21 have a problem challenging it. And all I'm saying, Mr. President, is if

22 you would at least trust us, because I think we're professional, trust us,

23 we will get you there. I am not opposing to you asking as many questions

24 as you want, but at least allow me the -- allow me the opportunity to

25 develop the point and if -- if you need to ask a particular question

Page 15829

1 because you -- you think this is important, fine. I've never suggested,

2 nor will I ever suggest, that you're not entitled to ask questions. And I

3 understand the Rule. You can ask them whenever you wish. I'm just saying

4 sometimes you're -- there seems to be some impatience, and with some

5 cross-examination, if it's a difficult witness, you cannot be direct with

6 the witness. If you're too direct you're never going to get anything out

7 of them. And if we tell you in advance and the witness hears it, then

8 there goes the surprise. So I just want to make sure that there's no --

9 we haven't -- you know, that there's no misunderstanding on what I'm

10 trying to convey. Thank you.

11 JUDGE ANTONETTI: [Interpretation] I fully agree with what you have

12 said. There's no divergence of views regarding the substance of your

13 statement, and of course we will respond in legal terms to what you have

14 said, but rest assured that you enjoy our trust.

15 I should like to quote two points which occurred, and due to lack

16 of time I myself did not ask a question, and I'll explain which those

17 points are.

18 I remember it was a few months ago, I know, that you were not here

19 because -- there was a co-counsel who was present. I think it was

20 Madam Nozica who produced a document between Tudjman and Izetbegovic

21 regarding the recognition by Tudjman and Izetbegovic of the HVO as an army

22 of Bosnia-Herzegovina. Therefore, a very important document, and this

23 document emerged in the course of a cross-examination, and we didn't

24 really look into all the consequences of that document. Was that document

25 addressed to the UN Secretary-General as it was a treaty of cooperation

Page 15830

1 between two countries? Was that document published in the Official

2 Gazette, et cetera, et cetera. There was a series of questions that

3 could be put, but due to lack of question I didn't do so. Perhaps you

4 will come back to that document at some point, but at the time I had the

5 impression that we were going very fast, and I could have put questions

6 and I didn't.

7 A second point, and it has to do with Mr. Coric's Defence. A

8 document appeared very quickly and the document came from the military

9 police and the author of this document indicated that Tuta's men were

10 carrying out ethnic cleansing in Mostar. So this military policeman was

11 sending a report to his high authority, and I said to myself here we have

12 the military police telling us about something that they did not take part

13 in. I wanted to intervene and ask questions. If I had intervened,

14 perhaps Mr. Coric's Defence would have said we'll talk about this document

15 later and so on, but due to lack of time I didn't intervene. I could

16 have.

17 And I hope those two documents will reappear one day. If they do

18 not through the Defence of any of the accused, the Prosecutor will not

19 come back to them. And as the Judges have tens of thousands of documents,

20 we might forget this, and this would be prejudicial. So when we

21 intervene, it is because we are trying to reach the truth.

22 And on another point, I was not in agreement with you yesterday

23 when you said that this was an adversarial procedure, but there's the

24 truth of the Prosecution, your truth, and the Judges who have to establish

25 what the truth, with a capital T, actually is, and that is why we must try

Page 15831

1 through our questions to complement certain facts. And my feeling is, and

2 I've already said, that in 90 per cent of the cases, 95 per cent of the

3 cases, most of those questions are in favour of your clients.

4 I will finish with another example. It has to do with the Defence

5 of Mr. Praljak. One day an expert witness on sniping was here. We see

6 the photographs, et cetera. And I myself asked to see the photos again

7 because I saw that there was another point that could have been fired at,

8 and neither party had noticed this, and that is why I wanted the photos to

9 be seen again. Perhaps Mr. Praljak would have done that later on, I don't

10 know, but I said it was important for him if I do that now.

11 So you see, many questions are in favour of the Defence. And when you say

12 that it is not a totally fair trial, I would like you to tell me of another

13 Chamber that is to such an extent in favour of the rights of the Defence.

14 And if you ask us to apply the same proceedings as other Chambers, I can

15 tell you that we have allowed the accused to put questions. You know that

16 in the Blagojevic case the accused could not ask questions. We have

17 allowed the accused to choose their own lawyers. We have rendered a

18 series of decisions in favour of the Defence. And when you say that one

19 might be prejudicial, believe me, that is really painful. That hurts,

20 especially in view of the way in which we're working. And there may be

21 some misunderstanding between us, but I wanted to point this out.

22 Of course you are right regarding the threat of sorts, and we will

23 endeavour to allow you to develop your arguments during your examination

24 so you will be satisfied, but there are moments when one needs to

25 intervene because one might feel at a certain moment that there's

Page 15832

1 something that needs to be raised.

2 Another example. There was Mr. Pusic's witness. He was

3 apparently said to have been present in a detention area, in a place of

4 detention, and this witness said this. I asked this witness -- Mr. Pusic

5 is here, and I asked him, do you recognise him? And the witness said no.

6 Should I not have said that? Should I not have asked that question?

7 I have a witness who says that Pusic is there and I ask him, is he

8 here, and he says no.

9 So I am trying to convey to you that through our questions we are

10 endeavouring to establish the truth, and very frequently the result of the

11 questions can be in your favour.

12 If you wish to take the floor again, you're welcome.

13 MR. KARNAVAS: That's fine, Mr. President. I have -- I believe

14 Mr. Murphy wishes to comment something about, I guess, the quest for the

15 truth. I suspect that -- that's his topic.

16 MR. MURPHY: Your Honour, I'm just conscious that Mr. Karnavas has

17 carried much of the burden of speaking for all of the accused and I think

18 part of that is his -- his liking to take the initiative in these matters

19 and speak frankly to the Court.

20 We were not -- I was not anyway aware that he was going to make

21 this particular address yesterday to the Court so I didn't really have

22 time to consider what my response to that would have been, but having

23 thought about it overnight and obviously I will express it in a slightly

24 different way, I think that part of the problem that -- that there is here

25 is this: Is something that Your Honour just pointed to about the nature

Page 15833

1 of these proceedings and to what extent, if at all, they are adversarial

2 and I think what we have here to some extent is a sort of clash of

3 cultures between the adversarial and the inquisitorial procedures and

4 we're all struggling to find a way to -- to make this hybrid system fair

5 in the interests of all the parties, and clearly that's not an easy thing

6 to do.

7 But I have to say, Your Honour, that right from the earliest days

8 of the Tribunal when President Cassese first of all made his speech

9 introducing the Rules of Procedure and Evidence on the 11th of February,

10 1994, he did make it clear that the Judges at that time had deliberated

11 and had decided to lay down what they called an essentially adversarial

12 proceeding or form of trial, I should say, mode of trial. And even though

13 we've had a number of amendments to the Rules of Procedure since then and

14 even though time constraints have made subsequent Presidents to make

15 slightly different pronouncements on that point, it does remain an

16 essentially adversarial procedure to this extent, that the Prosecutor from

17 day one of the Tribunal's life has gone out and done investigations in the

18 adversarial system, following adversarial modes, which means the

19 Prosecutor's concern is to develop other own case, not to try and develop

20 the Defence's case. That's always been our responsibility. And so we

21 have never had on the Defence side the range of protections that come with

22 the inquisitorial system it. For example, in France I know -- I'm sure in

23 Switzerland, which I'm less familiar with, there is a highly developed

24 series of protections for the accused given the nature of the

25 investigation. For example, the use of the Zuznostruks [phoen], perhaps

Page 15834

1 not -- I don't know, Your Honour, in Switzerland, but certainly in many

2 civil law countries. But we simply don't have those protections. The

3 protections that we have on the Defence side are those that are

4 appropriate for the adversarial system that depend on having the right to

5 investigate independently and to develop our own case through

6 cross-examination, and one of the results of that, which I know is

7 frustrating to the Judges, is that you don't always -- you can't always

8 see where the Defence is going and when Your Honour says well we're

9 putting questions which are in favour of the Defence, I know that's

10 Your Honour's intention but with all due respect you don't necessarily

11 know whether -- perhaps they are in favour of the Defence and perhaps not.

12 The other thing, Your Honour, that does trouble me as a lawyer who

13 has worked in the adversarial system for many years, and I think probably

14 troubles my colleague from that system, is when Your Honour says that

15 there's the truth of the Prosecution and your truth and the truth with a

16 capital T, I can't help getting the message that somehow those of us who

17 work in the adversarial mode are not committed to -- to ensuring the

18 fairness of a trial or trying our best to bring out the truth.

19 Your Honour, rightly or wrongly we do believe that the adversarial

20 process is one that is well suited to bringing out the truth because when

21 the parties go head to head and present their cases the truth has a way of

22 emerging from that. Maybe not in the most direct way, such as the

23 inquisitorial system has, but our experience over years and centuries of

24 that has been that it is effective, and I -- I do once again very

25 respectfully remind Your Honours that in these trials and like in all

Page 15835

1 criminal trials the ultimate issue is not truth with a capital T, which is

2 inherently unattainable, it's whether the Prosecution has proved the guilt

3 of these accused beyond reasonable doubt of certain allegations that have

4 been made and if the Defence establishes a reasonable duty and even

5 perhaps all of us go away from the courtroom at the end of the day

6 feeling, well, we're not really sure what happened, we're not sure that we

7 ever did get to the bottom of this because of the complexity of the issues

8 and the number of documents and the unreliability of certain witnesses;

9 nonetheless, the law says that in that situation the accused would be

10 entitled to be acquitted.

11 And, Your Honour, our goal on the Defence said I know it can be

12 presented sometimes in a cynical way but it's not meant in that way. It's

13 meant to simply assist the Court to establish whether there is a

14 reasonable doubt because as we see it that's the -- I know that

15 Your Honour doesn't mean to disparage the adversarial system but sometimes

16 certain observations by the Trial Chamber could be understood in that way,

17 and I do remind Your Honours very respectfully that because of the

18 protections offered to the Defence, this has to be an essentially

19 adversarial system, because the fair -- the essential proceedings to

20 protect the accused, the essential safeguards of fairness which

21 Your Honours use in the inquisitorial system simply are not present in the

22 mode of trial in this Tribunal. And, Your Honour, I think when

23 Mr. Karnavas draws attention to the -- his desire to conduct his

24 cross-examination in a free and uninhibited way he's not in any sense

25 denying the Court its proper role. He's simply saying that within the

Page 15836

1 adversarial system the right of cross-examination and to confront the

2 witness is -- is probably the most fundamental protection given to the

3 accused and it's given under an Article 21 of the Statute, and,

4 Your Honour, it's simply that point that we're respectfully making to the

5 Trial Chamber.

6 JUDGE TRECHSEL: I have a point of order.

7 JUDGE ANTONETTI: [Interpretation] I'll give you the floor.

8 JUDGE TRECHSEL: I suspect this is about the thing you were asking

9 for, Mr. Karnavas, this kind of discussion. Is that correct?

10 MR. KARNAVAS: Precisely. Precisely, Your Honour, because I

11 think --

12 JUDGE TRECHSEL: So -- yeah. Thank you. That means we can go to

13 the weekend without having starting to draft a letter of resignation for

14 lack of ability, as you have, not quite politely, I must say, suggested

15 that we should do. But, excuse me, it's a point of order. We have

16 already within the Chamber discussed about all these problems, and we have

17 come to the conclusion that we would not wish to discuss this further

18 today because we are in a very weak position as far as manpower is

19 concerned. We're just half of the power or two-thirds, and it is not --

20 simply not fair, I think, to go on with this in the absence of at least

21 Judge Prandler, who is also a full-fledged voting member of the Chamber.

22 That is why I have interrupted at this point. This means that I myself

23 refrain also from commenting that I do not invite the Prosecution to -- to

24 comment, to certainly have their say on this but ...

25 MR. KARNAVAS: Your Honour, it may be good for my colleagues to

Page 15837

1 speak up at this point and then at least your colleagues on the Bench

2 could have those thoughts --


4 MR. KARNAVAS: -- thoughts together, and then we can revisit this

5 issue but I think it might be useful, and I'm sure Mr. Scott is extremely

6 talented and can speak off-the-cuff if he needs to with respect to his

7 role in these proceedings, if he wants to speak today or wait until some

8 other point.

9 JUDGE ANTONETTI: [Interpretation] The registrar is telling us that

10 we just have a few minutes left.

11 Mr. Ibrisimovic.

12 MR. IBRISIMOVIC: [Interpretation] Thank you, Mr. President. I

13 didn't take the floor yesterday, and I had two reasons for that. The

14 first is the one mentioned by Mr. Murphy. I didn't know that we would be

15 discussing the matter. And the second reason is my personal reason, and I

16 present my own personal views. I also -- I, of course, respect

17 Mr. Karnavas's possession and my colleagues but, Mr. President, I've been

18 before you for three or four years now. I had a trial before that and I

19 have had a very positive experience with what you did and how you

20 conducted the proceedings there. So I have my own personal view and

21 position and that's how I'm going to present my view, my colleagues, of

22 course, have the right to present their views.

23 MS. ALABURIC: [Interpretation] Your Honours, I won't take up much

24 time but I'd like to say two things. Today we have heard that about 95

25 per cent of the Judges' questions is something that goes to the benefit of

Page 15838

1 the Defence. I have to say for principled reasons that I consider that a

2 exceptionally worrying matter and cause for concern, to say that 95 per

3 cent of the questions go to the benefit of the Prosecution, if you were to

4 say that, we would all be on our feet and up in arms, and I'm worried

5 about this 95 per cent that you say is to the benefit of the Prosecution

6 but also anything to the benefit of the Prosecution which can be of such

7 importance that they can have a vital influence on the decisions. So this

8 brings us to the matter of a fair or unfair trial.

9 Now, with respect to the obligation of Judges to seek for the

10 material truth, to seek material truth, I completely agree with what was

11 said today here by Mr. Murphy, my colleague, and I'd just like to remind

12 you that the Defence of Mr. Petkovic has repeatedly said that it is not

13 the truth that is to be decided but the circumstances which will determine

14 the responsibility and accountability of the accused. I would like to

15 inform the Trial Chamber that this is a topic, that is to say the

16 obligation on the part of the Judges to seek for material truth. We

17 coming from the area of the former Yugoslavia are very well-versed in that

18 method because all the procedure and rules in the former legal system made

19 it incumbent upon the Judges to seek material truth and regardless of the

20 disposition of the parties in the proceedings decide upon the evidence

21 that is going to present -- be presented and the facts that they consider

22 to be material in making their rulings.

23 We in Croatia considered that when we changed these procedural

24 matters and rules and regulations and with the -- or alleviated the

25 burden from the Judges in seeking material truth considered that we had

Page 15839

1 made a democratic step forward and allowed the parties in the proceedings

2 to make decisions which, in a criminal procedure, means if the Prosecutor

3 has failed to prove the indictment then the accused should be set at

4 liberty.

5 I do not consider it necessary to add anything to what I've

6 already said and I would like to say that I completely agree with what my

7 colleagues said before me and if we are going to have a debate and

8 discussion on the issue in due course then I will prepare more.

9 JUDGE ANTONETTI: [Interpretation] Well, thank you. As you know,

10 the Chamber will continue to deliberate and decide whether we're going to

11 have a separate meeting devoted to these specific problems.

12 It is 1.00. I'm going to adjourn the hearing and we reconvene at

13 2.15 on Monday. Thank you.

14 --- Whereupon the hearing adjourned at 1.02 p.m.

15 To be reconvened on Monday, the 19th day

16 of March, 2007, at 2.15 p.m.