Tribunal Criminal Tribunal for the Former Yugoslavia

Page 17096

1 Monday, 16 April 2007

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 2.25 p.m.

5 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, please call the

6 case.

7 THE REGISTRAR: Good afternoon, Your Honours. This is case number

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

9 JUDGE ANTONETTI: [Interpretation] Thank you very much,

10 Mr. Registrar.

11 On this day, the 16th of April, 2007, I would like to greet

12 everyone in the courtroom. We are unfortunately 10 minutes late, but this

13 delay was not due to us. I would like to greet the Prosecution, ladies

14 and gentlemen of the Defence, as well as the accused.

15 Before handing the floor to Mr. Prlic, I would like to first give

16 the floor to the registrar for our IC numbers.

17 THE REGISTRAR: Thank you very much, Your Honour. Several parties

18 have submitted lists of documents to be entered through Witness Herbert

19 Okun. The list submitted by the OTP shall be given the Exhibit number IC

20 522. The list submitted by 1D shall be given Exhibit number IC 523. The

21 list submitted by 2D shall be given Exhibit number IC 524. The list

22 submitted by 3D shall be given Exhibit number IC 525, while the list

23 submitted by 4D shall be given Exhibit number IC 526. That's everything,

24 Your Honour.

25 JUDGE ANTONETTI: [Interpretation] Thank you very much,

Page 17097

1 Mr. Registrar.

2 Mr. Prlic, if you wish to say something, you may go ahead.

3 THE ACCUSED PRLIC: [Interpretation] Thank you, Your Honours. I'm

4 going to address a number of issues, most of them linked to procedural

5 matters, as was the agenda of the meeting you had on the 27th -- 22nd of

6 March.

7 I'd like to say that my sole request from the first time I

8 appeared here in court was to ask that the trial be a fair one, that fair

9 proceedings and just proceedings be secured, and I must say that on that

10 score I'm becoming more and more concerned, and that is what -- the reason

11 for which I have decided to take the floor. I am of course speaking only

12 in my own name. I have not consulted anybody, and that includes my

13 Defence counsel. So everything that I say, be it good or be it bad, is of

14 my own utterance.

15 Now, part of the -- some of the accused have asked me to speak in

16 their own name, too, but I refused to do so, and that is my first message

17 when I address procedural matters and that is that the indictment and the

18 whole proceedings would have to be -- will have to be individual for each

19 person. That is why I ask the Trial Chamber not to treat us as a group.

20 A few days ago on television I heard a representative of the

21 Prosecution, Nikiforov, who said that the criminal enterprise or joint

22 criminal enterprise was a legal concept which enables a number of persons

23 to be held accountable and to be accused, or, rather, to place a whole

24 group of people under one indictment, or, as is stated in submissions, the

25 most senior surviving person in our case. So this in fact shows the basic

Page 17098

1 reason. All the rest is technology, law of custom and so on and so forth.

2 I read the transcript of the 22nd of March, and at first glance it

3 would appear that the subjects that were discussed were very ordinary.

4 However, as we are weighing up justice here, they are basic fundamental

5 questions, and I'm going to say a few words about each of the individual

6 subjects discussed.

7 First of all, I'd like to say that I have to notice that my

8 Defence asked for this hearing to be convened. However, afterwards,

9 according to the agenda -- the agenda that we had, it was the

10 Prosecution's proposals that were put forward on the agenda. So I'm going

11 to address the subject, the so-called means by which to speed up the

12 trial.

13 Now, the first of these means are the adjudicated facts. I think

14 that after one year of trial that it has become clear to everyone,

15 including the members of the Trial Chamber, why the Defence teams did not

16 accept proposals for adjudicated facts. First and foremost, the previous

17 Trial Chambers took decisions about matters which in their cases and

18 trials represented either the context for something or was something they

19 needed to prove that the conflict was of an international character so as

20 to be able to apply Article 2 of the Statute, and here these are the most

21 important elements of the criminal enterprise.

22 Now, in these cases, the Defence teams did not deal with these

23 things. They were not interested whether the HVO, for example, was a

24 civilian authority or whether it was the name of an army, a military

25 group, what the goals of Croatia were and what the goals of Herceg-Bosna

Page 17099

1 were.

2 Now, if we look at everything that was included in the judgements,

3 and I'm just referring to the conflicts, not the crime base, so -- I went

4 through the judgements over the past few days, and I'm bearing in mind

5 what we have heard over the past year, everything is questionable, and

6 also the jurisdiction which we try to rely upon.

7 I don't wish to comment the discussions and debates that were held

8 two weeks ago about Vares as being an adjudicated fact or facts, because

9 Judge Prandler explained his position. Of course one of the basic

10 criteria for accepting in formal terms these facts is, is that it was not

11 based on an agreement as to recognition of liability and admission of

12 guilt, and all the discussions about time are relative, including

13 discussions which are being waged in this particular trial as well, and

14 they speak to the fact that in my opinion the burden of proof has been

15 shifted to the Defence increasingly frequently. It is not sufficient to

16 say that it is only up to the Prosecution, that the Prosecution has the

17 burden of proof, but daily decisions have to be made which confirm that

18 principle.

19 Now, your decision to accept adjudicated facts of the 14th of

20 September tells us that this stage in which the Prosecution presents proof

21 and evidence is almost unnecessary. Everything becomes cumulative and can

22 only help the Defence teams like the last witness before the Easter break

23 did to refute those theses. The Defence could start the process straight

24 away and save resources, if that is something that must be uppermost in

25 our minds. But let me remind you of the first four acts which were

Page 17100

1 adjudicated by you, and I'd like you to listen carefully. I'm going to

2 quote from page 15 of the ruling of the 14th and 23rd of June, 2006,

3 pursuant to a Prosecution submission about formally accepting facts that

4 have already been adjudicated.

5 The first is this: The HVO became the supreme defence and

6 executive body of the HZ HB and the BH Croats. That meant that in that

7 part of Bosnia-Herzegovina real power and authority was held by the HZ HB.

8 Now the second, and I quote: There is no doubt that the Republic

9 of Croatia and the HZ HB had the same ultimate goal, and that was to join

10 up the Croatian provinces of Bosnia-Herzegovina to a uniform and united

11 Croatian state.

12 The third is the following: Despite the fact that they knew that

13 the other parties had not signed but relying on the fact that they had

14 international public support, the BH Croats endeavoured unilaterally to

15 implement the Vance-Owen Plan.

16 And fourth, the fourth point, is this: On the territory to which

17 the indictment refers, there was a systematic and widespread attack on the

18 Muslim population in the area. This campaign had a concrete task, to

19 transform the previously ethnically mixed area in Mostar, in and around

20 Mostar, into a Croatian area with an ethnically pure population of BH

21 Croats.

22 And to this I would like to add that the first and third of these

23 facts were adjudicated by this Trial Chamber, although the Pre-Trial

24 Chamber on the 14th of March rejected it. So six months after the

25 presentation of this case, this Trial Chamber considers that these

Page 17101

1 standpoints and positions are facts which the Prosecution in these

2 proceedings need not prove. Well, what do they have to prove then if not

3 that? What can one say after all this?

4 It seems that the Prosecution has to finish presenting its

5 evidence. That is in store for us within the completion strategy, because

6 the burden of proof almost before the trial ever began was transferred, it

7 would seem, to the Defence, because when we do have witnesses, Prosecution

8 witnesses, to testify about those matters, as a rule not enough time is

9 given to the Defence for their cross-examination.

10 The first four mentioned adjudicated facts, in my opinion, are

11 sufficient for a judgement to be reached and made without the Prosecution

12 having to say a single word. Of course, on condition that the Defence

13 counsel don't engage either. As we're dealing with questions which are

14 linked to the joint criminal enterprise, and we are witness that part of

15 the defence of the accused here do not deal to any great extent with those

16 questions. At least they haven't done so thus far. And I am speaking

17 exclusively theoretically and hypothetically. I hope nobody will take

18 this amiss.

19 So does that mean that a judgement can already be brought in,

20 made?

21 Now, the second question that I'd like to talk about is agreed

22 facts. I was -- in a bona fide attempt to prone -- to have accepted most

23 of the facts that present a crime base, although I must recognise that I

24 am changing my opinion when I see some of the exhibits and evidence that

25 is endeavoured to be presented, such as sniper action and similar things;

Page 17102

1 that is, events that are not sufficiently known. But I cannot believe the

2 Prosecution fully either when it comes to crime base matters.

3 Now, what is the basic premise in all this? We cannot accept a

4 formulation according to which the HVO forces and HVO authorities that

5 this is equal and that they have allegedly done something, committed

6 something. Every crime must have a perpetrator, and all the elements must

7 have been proved, which is customary in any court of law and legal

8 proceedings.

9 En passant I have a question to ask in this regard perhaps to

10 enrich the Tribunal as well. I wanted to ask for a closed session for me

11 10 days ago for example when the question was rape was discussed. We had

12 a mother here whose daughter was raped. The public gallery was full.

13 There were just three of us here because of the flu epidemic, and

14 sponsored television programmes broadcast this, and at that time I was

15 already convict because the young people sitting in the public gallery who

16 might well have been my students became convinced listening to the debate,

17 which was sometimes in open session and sometimes in closed session to add

18 a dramatic element to the proceedings, that it is we or me or us who were

19 the perpetrators.

20 Now, when it comes to protected witnesses, once again I'd like to

21 say this en passant because it's not something that really affects me,

22 although I consider we have gone too far because the same people are

23 testifying about perpetrators in Bosnia-Herzegovina and I seem to gain the

24 impression that it is portrayed as the Wild West, and I already intervened

25 on that score on one occasion because that is not what the situation is

Page 17103

1 like. So we -- that should not be the message sent out from this

2 Tribunal. We must have a clear-cut mission when speaking about things

3 having been done in the region.

4 So these people are testifying down there and here objectively

5 where the perpetrators have not been brought to trial in proceedings which

6 should be -- have an open character are protected witnesses and their

7 testimonies heard in closed session. Now, how can we defend ourselves

8 from that? My Defence counsel are not asking this question. What should

9 we do theoretically to find the perpetrators, to bring them here into the

10 courtroom, to state their names loud and clear? Nobody seems to know

11 them. So what is the standard of proof in that regard for something to be

12 accepted as having been a crime?

13 The indictment is as it stands. We seem to be responsible for

14 everything under, as the Prosecution calls it, the leader's indictment in

15 view of the formulations of the HVO authorities and HVO forces.

16 Everything comes under those concepts and terms, it would appear. And I

17 apologise for this comparison, I don't want to say anything bad by making

18 the comparison, but it seems to me that it would be as if the

19 Secretary-General of the United Nations who at a certain stage concluded

20 that this type of indictment should be used, that he should be responsible

21 for everything that happens in the world, that the Secretary-General

22 should be responsible for everything.

23 Even with the agreed facts when this sentence is not challenged or

24 term is not challenged which is something the Prosecution mentioned and I

25 agree with that, especially in view of the previous context, one can gain

Page 17104

1 a quite different impression.

2 The third element are documentary facts and elements and exhibits,

3 and I consider that generally accepted facts can be accepted such as the

4 Official Gazettes, for example. However, we see that the material and

5 documents of international organisations with various judgements made

6 without the people that compiled them cannot be accepted per se, and this

7 we saw with the events in Stupni Do, for example, and the documents

8 pertaining to that event. So it's very important to have a witness that

9 you can test and cross-examine and put contradictory statements to as

10 well. Or your decision on accepting the testimony from Gornji Vakuf,

11 though it doesn't personally really affect me. It's part of the crime

12 base. But I only mention it for one reason. It is stated that the same

13 facts are in question which the Defence had occasion to check with other

14 witnesses through their cross-examination. Again the question remains,

15 was there enough time for this, or the rather offhand acceptance of the

16 vocabulary of the Prosecution who use the term "HVO ultimatums" in

17 accepting certain decisions. And again, the presumption of innocence is

18 being overlooked, or something that the Judges often underline, and that

19 is that it is the -- up to the Prosecution to prove its case.

20 And I quote from page 11 of your decision in response to the

21 motion of the Prosecution for the admission of evidence again about Gornji

22 Vakuf. I think pursuant to Rule 92 bis (A) and (B) of the Rules of

23 Procedure, and I quote: "Anyway, the Trial Chamber wishes to specify that

24 the Defence will be able to present new evidence and documents during the

25 presentation of the case of the Prosecution." I think this is a mistake.

Page 17105

1 I think it should be the case of the Defence because there are no such

2 witnesses of the Prosecution.

3 And also, this decision says that those transcripts are being

4 admitted because the perpetrators are far removed from the accused, which

5 implicitly means that the criminal enterprise remains the basic form of

6 responsibility.

7 Let us recall the adjudicated facts that I have already discussed.

8 In principle, evidence should be admitted through witnesses. Let there be

9 a better selection. Let all parties focus more. If we depart from that

10 principle, nothing will be achieved, and we will all remain in a mist, in

11 a fog. Of course, I have not been studying the Rules of Procedure closely

12 since the trial has begun, though I did study it before. I simply read

13 through the decisions of other Trial Chambers, and there are so many

14 changes, amendments, bises, and ters, so that this has become a kind of al

15 a carte approach through which almost anything can be proven and

16 disproven, but it is again within the discretion of the Trial Chamber,

17 which also carries the main responsibility.

18 So my conclusion in connection with these three auxiliary means,

19 we must not allow due to shortage of time to succumb to the pressure of

20 admission of adjudicated facts and documentary evidence without enough

21 attention being devoted to them.

22 A few words about time. Nothing is too small or too big unless

23 compared with something else. In a period since the adoption of the

24 indictment and the final judgement, it will be some five years.

25 Discussing this matter with people outside the court, ordinary

Page 17106

1 people who are relatively well-informed, it -- finds it difficult for them

2 that so much time is needed for a trial.

3 Regardless of that, as is common knowledge, I have renounced my

4 right to a speedy trial, an expedited trial, because that right has

5 seriously jeopardised my right to a fair trial.

6 I do not wish to speak about the indictment. We have the lawyers

7 for that.

8 We have tried to make it clearer through all our preliminary

9 submissions. All of them were rejected, which I think has put this Trial

10 Chamber confronted with a lot of difficulty.

11 I wish to state very clearly I do not wish the possibility of the

12 Prosecution to do its utmost to present its version of the indictment to

13 be overcast by any kind of shadow. As they say themselves, they have been

14 working on it for some 10 years. We are taking adjudicated facts from

15 other cases. An enormous amount of funds has been -- have been invested

16 into this case. I do not wish to debate that, but I do ask that the

17 Prosecution be allowed to present its case to the end, that they be given

18 the opportunity to work. I personally wish to praise them for their

19 diligence but not for any unlimited ambition.

20 For example, in the appeal about your decision regarding time, in

21 paragraph 3 they point out, and I will read it in English. "[In English]

22 In a very real way, the Prlic case is the Karadzic plus Plavsic plus

23 Krajisnik plus Martic plus two other cases rolled into one single case."

24 [Interpretation] End of quote.

25 What can be said? When talking about procedure and the

Page 17107

1 proceedings, I have several requests to make. The first is the one that I

2 have already taken the floor, and I wish to use a notebook during the

3 proceedings. As the word itself says, a notebook means a simple notebook

4 in the twenty-first century, so that my people in the Defence can take it

5 from me and bring it back at the end of the day. I mean a notebook

6 computer. I don't understand why this was not allowed, especially as I

7 cannot sit next to my Defence counsel.

8 My other request was to have enough time for cross-examination for

9 some 10 or so witnesses to challenge their thesis, because if the Trial

10 Chamber finds that the Prosecution has not proven the indictment, then

11 there will be no need for my defence, and this will only gain time. I

12 wonder whether my rights have been absolutely, seriously in jeopardy.

13 There is had no my case here. The Prosecution needs to profits case.

14 That is, that -- if it were my case I would prepare it differently.

15 However, here it is adjusted to the indictment.

16 In principle, my lawyer is not able to it use more than 10 per

17 cent of the questions that I feel need to be put to witnesses. I am

18 talking about those talking about the context of the criminal enterprise

19 including the witness prior to the Easter holidays who I believe was a

20 very good witness who could have clearly shown whether there was a

21 criminal enterprise or not, of course, if there had been time to have his

22 reports and his diary admitted. And on that basis, any officer of the

23 Chamber could have prepared an opinion for this Trial Chamber. Instead of

24 us discussing for a whole year this criminal enterprise, we could have

25 done it in a much shorter period of time.

Page 17108

1 Also, when talking about time, I think that the time given to the

2 Prosecution for cross-examination is an unfair decision. We are not any

3 kind of group. We may not eventually use more than one-sixth of the time.

4 I don't know that. But fixing the limits among the Defence counsels is no

5 solution. I talked to the other accused about other cases, and there is

6 no similar limitation of time for cross-examination in other cases.

7 I fear that sometimes the clock is becoming the main instrument

8 here, and bargaining with time among the Defence counsels of the accused

9 here has become the basic, and I hope you don't mind if I say so, a very

10 inappropriate form of activity.

11 I wish to clear that I do not wish to depend on the goodwill of

12 any lawyer in my defence, if I have to ask for time from that lawyer for

13 my cross-examination.

14 A brief comment on the position of the Prosecution in their

15 motions and submissions regarding the victims and the international

16 community. I know this is on the verge of a procedural issue, but my

17 opinion is that by issuing the indictment this is all part of the legal

18 proceedings which is in the interest of both the victims and the

19 international community, and in that legal proceeding there are two

20 parties, and I wish to say -- state very clearly my Defence supports both

21 the victims and the international community, and that is my position

22 regardless of what is stated in the Statute. I lived with those victims.

23 I was a member of the state government for the last 10 or 15 years in

24 various commissions for the missing persons. I participated in various

25 conferences about these issues, and I know how it functions, or at least I

Page 17109

1 assume I know.

2 There are people sitting here who the moment they received the

3 indictment surrendered, and it never occurred to them to create a story

4 for the media linked to this Tribunal. Unfortunately, that is how to

5 arrest the escaped accused, whereas the quality of the proceedings is

6 being pushed into the background.

7 Also when talking about the international community, we can talk

8 about the apparatus of various international organisations and states, and

9 I consider myself to be a part of that international community with some

10 3.000 diplomatic contacts covered with reports and notes. So I do have

11 some experience in that area. And I wish to say that the Prosecution does

12 not have a monopoly over the representation of the victims and the

13 international community. An argument is an argument, and it should not be

14 strengthened by reference to victims and the international community. The

15 Trial Chamber consists of professionals, not jurists. Anyway, already --

16 jurors. I have said that the Prosecution should be given every

17 opportunity to present its case to the end.

18 Judge Trechsel was quite right when he made a distinction last

19 time between the truth and the establishment of guilt. So here we have to

20 establish the truth about the alleged guilt of the six of us. This trial

21 cannot provide the full truth because the method does not allow it.

22 Everything is focused on an individual attracting negative energy while

23 neglecting a series of factors including those who appear as witnesses or

24 authors of documents, which in certain stages could have had far greater

25 significance than those who are here, the accused.

Page 17110

1 Precisely because it is not possible to establish the truth, I am

2 not participating in the trial. For the truth, a multi-disciplinary

3 approach is required, and in such a process I could participate. Of

4 course, even truth commissions cannot establish the truth, even though all

5 the institutions of Bosnia and Herzegovina opted for their formation, but

6 it was upon the intervention of this institution that that process was

7 suspended. So it should be clearly stated regarding the burden of proof.

8 It is not true that the truth is being established in The Hague,

9 which is frequently said in the region. This is not possible, nor is it

10 the task of this Tribunal.

11 I have already said once that regarding the establishment of the

12 truth about guilt, it is very important the way in which the proceedings

13 are conducted. In my opinion, a criterion for the success of the trial is

14 that there is no uncertainty as to what your decision will be, because the

15 trial itself has shown this to everyone following it. Of course I am not

16 in a position to lecture anyone here, nor was I able to follow everything

17 that is happening in connection with this Tribunal. It is my opinion that

18 this proceeding has to be stable, and that -- in that respect I agree with

19 the Prosecutor.

20 You have already said a number of times that this case would not

21 be tried according to our continental law, and I apologise to the

22 Prosecutor. This is a hybrid system, but it must be a stable one.

23 The whole story started with the intervention by my counsel

24 because of interruptions during the cross-examination. I personally

25 consider your questions useful for channeling the discussion for this type

Page 17111

1 of indictment of which you yourself, Judge Antonetti, said it requires

2 126.000 decisions. So the immediate cause were the interruptions during

3 the limited time given for the Prosecution. Why -- for the

4 cross-examination. I'm sorry.

5 The indictment everyone realises is a political concept. It is a

6 separate diplomatic story which I thought was over in 2004 when we formed

7 the federation. That concept has many elements of the charges against

8 individuals in this trial, but obviously apart from some marginal

9 attempts, it is not believed that the victims of that concept should be

10 represented in the same way, nor in the way as the international community

11 is being represented, because we do not have the same interests.

12 I am not talking about quid pro quo but I am talking about

13 different approaches and elaborating on the thesis about interruptions in

14 the cross-examination.

15 Furthermore, there are stereotypes in the indictment without

16 anyone wondering whether that stereotype has any meaning. This relates to

17 people, members of the international community, diplomats, and

18 journalists. We wish this political concept under A and the stereotype

19 under B to balance these two concepts during the cross-examination.

20 Therefore, the cross-examination and continuity is not an attempt

21 to manipulate witnesses but an attempt to move away from the facts,

22 because the witness will not accept them if they know that they might

23 jeopardise the mentioned political concept or, rather, the accepted

24 stereotype contained in most of their statements and in the so-called

25 proofing sessions.

Page 17112

1 Finally, everything that I have said has not been said because I

2 do not have faith in the Trial Chamber trying this case. I do not wish to

3 use those categories at all, that is whether I trust someone or not, nor

4 should you care about that. What I do expect of you is simply a fair

5 trial and sufficient intellectual courage in making your determinations

6 and nothing more than that.

7 Just as the Tribunal will not be remembered when someone is

8 arrested, so this trial will not be remembered because it is the longest

9 in history, but only by the quality of the proceedings and of the

10 decisions made.

11 I thank the Trial Chamber for the time allotted to me, and I am at

12 your disposal for any clarifications of what I have said, if necessary.

13 Thank you.

14 MR. KARNAVAS: If I may, Mr. President. Just for the record,

15 there have been some -- I'm told that there are some errors. I'll just

16 read them out, page and line and perhaps that could be looked at, at some

17 other point. Page -- page 7, lines 2 to 3; page 8, line 10; page 15, line

18 18 to 19; page 16, line 8 and also line 24; and page 13, line -- line 3

19 and 4. Thank you.

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

21 Mr. Karnavas.

22 Thank you, Mr. Prlic, as well. The Chamber noted all that you

23 said and listen to you carefully. We could respond right now, but a

24 debate would surely start. So what we will do, we will render a decision

25 since it is your own counsel that requested all these meetings, and

Page 17113

1 therefore we will render a decision pertaining to procedural questions.

2 But through this decision -- and through this decision we will try as much

3 as possible to answer to what you've said, to answer various points that

4 were part on -- of your submission and mainly the adjudicated facts that

5 were very important to you. You will, in fact, obtain an answer. And

6 Mr. Praljak intervened as well regarding his own view of -- on the matter,

7 and we will then render a decision.

8 So at this stage, the Chamber believes that we should not start a

9 debate right now, a debate which would make all the parties participate.

10 Everything that you've said are known to -- these are facts that are known

11 to us, and you've just shed some more light through your own intervention.

12 We have listened to you carefully, and we will try to address all the

13 issues that you've raised in a decision that will be rendered shortly,

14 since we were waiting to hear submissions from parties before we render

15 our own decision.

16 Now, regarding the next witness, as you know, he will have

17 protective measures and, Mr. Scott, could you please confirm this to us?

18 Thank you.

19 MR. SCOTT: Yes, Your Honour, I can confirm that. But before I

20 turn to this witness -- matters, the Prosecution should have a chance to

21 respond. The Chamber has just -- the President has just indicated that

22 they would render a decision soon. I don't think it would be appropriate

23 to --

24 JUDGE ANTONETTI: [Interpretation] Wait a bit, just a moment,

25 please. Excuse me, one moment, please, Mr. Scott. Just a moment, please.

Page 17114

1 [Trial Chamber confers]

2 JUDGE ANTONETTI: [Interpretation] Very well. Mr. Scott, the

3 Chamber just deliberated on whether you should reply to the intervention

4 of Mr. Prlic, and we believe that if your intervention has to do with new

5 points or if you wish to shed some more light on data that are very

6 well-known to all, then you can intervene, but if you are going to just

7 say the same thing, I think that we will waste time. Only you know what

8 you are going to say to us. We trust that you will do whatever is in the

9 best interests of the justice, but please try to it avoid issues and

10 topics that were already mentioned very many times. And as you know, the

11 Appeals Chamber will render its decision, and we are waiting to actually

12 get the decision from the Appeals Chamber. So you may have the floor now.

13 MR. SCOTT: Thank you, Mr. President. I must say again that

14 I'm -- I'm rather alarmed that the Chamber would consider proceeding

15 without giving both parties an equal opportunity to be heard, and I'm

16 afraid this is one further instance of a double standard in the courtroom.

17 Defence counsel addressed a number of issues and took

18 substantially greater time than the Prosecution took in the hearings that

19 we had some weeks ago, and apparently it appears to be the Chamber's, or

20 at least some part of the Chamber's view, that the Defence gets two bites

21 at the apple. The lawyers get to talk and then the accused get to talk.

22 And unfortunately my representative victims couldn't be here today, so I

23 will have to speak on their behalf, as I've talked about before. So I --

24 it's completely unfair and completely wrong procedure to suggest that I

25 would not be given the opportunity to respond to these matters.

Page 17115

1 What one of the -- one of the items that was originally tabled was

2 the participation of the accused in the proceedings, and the Chamber may

3 recall, when these matters were discussed some weeks ago, it then expanded

4 into a broader set of agenda items which all counsel then addressed, and

5 the Chamber or some part of the Chamber, again it may have been at the

6 request of Defence counsel, it may have been on the initiation of the

7 Chamber itself, because the Defence -- because the accused couldn't

8 participate, specifically asked to put the agenda item of the

9 participation of the accused in the questioning of witnesses as a separate

10 agenda item and requested the parties, the counsel, not to address that

11 item. I think the transcript will support me on that.

12 So indeed this is the first time that the Prosecution has had a

13 chance to respond to that, at least in any significant way. We may have

14 given a preview, but the Chamber specifically asked counsel not to address

15 these issues on the previous occasion.

16 Your Honour, I must state in the strongest possible way my

17 objection to any system that gives the Defence, if I can use it again, the

18 analogy of two bites at the apple, and that is why in this -- in this

19 institution except in this Chamber one is either represented by counsel or

20 you -- represent themselves, but I am afraid that what the Chamber has

21 done is created a two-headed creature. For the first time in the history

22 of this Tribunal we have clients -- accused, excuse me, who both represent

23 themselves, a la, perhaps, Slobodan Milosevic, and we have the same person

24 represented by competent counsel in the courtroom. And the Prosecution

25 believes that is not the proper way to proceed. We do object to the

Page 17116

1 participation of the accused and the questioning witnesses, except on a

2 truly, truly exceptional basis, and that is what -- we would ask the

3 Chamber to go back to its original ruling, which this Chamber mentioned on

4 a number of occasions, and that is that only on -- at some showing on a

5 truly exceptional basis that one of the accused be allowed to directly

6 participate in the questioning of witnesses, and that we have moved very,

7 very far afield from that original exceptional circumstance standard.

8 Now, on that topic, and that was the only topic that was on the

9 agenda for today, and I don't understand -- and this has nothing to do --

10 this is not personal to Mr. Prlic, my comments are not directed to him or

11 him personally, but I see no value, with all respect, in a represented

12 party getting up and talking about purely legal issues, adjudicated acts,

13 agreed facts, protective measures, the admission of documentary evidence,

14 the application of Rule 92 bis. These are all purely legal matters that

15 surely Mr. Karnavas and the other Defence counsel are completely able to

16 deal with. So that was not the agenda items that were put on -- not the

17 agenda item that was even raised. I'm not even sure how I'm supposed to

18 further respond to all these matters that Mr. Prlic has raised putting --

19 attempting to draw into question established Tribunal practice in many

20 instances over the past 12 or 13 years. And I'm not going to attempt to

21 respond to all of them at this juncture.

22 The Chamber knows the Prosecution's view on the question of time,

23 and I submit again that, as I've said in the past and I'll probably say

24 again in the future, if there's any party in this courtroom today standing

25 in this courtroom this afternoon that has been most prejudiced by

Page 17117

1 limitations on time it is the Prosecution and not the Defence, with all

2 respect to the Defence. It is our case has been limited. It is our

3 ability to present our case that has been limited, and so when I hear

4 it -- once again, when I hear the Defence and I hear the accused talk

5 about the prejudice caused to them and their concerns about limitations on

6 time, I state again our position fourfold.

7 We -- on this particular issue, Your Honour, again to come back to

8 what I understood was the only agenda item to be addressed, and that is

9 the participation of the accused themselves in the questioning of

10 witnesses, it's the Prosecution position that the Chamber should return to

11 its original ruling and that is that such participation would only be

12 allowed on an exceptional circumstance basis. And before I finish on

13 that, I will just mention -- and I will mention it again my comments are

14 not personal to Mr. Praljak, but since Mr. Praljak has been the accused

15 which has spoken perhaps the most, let me just point out that on the vast

16 majority of these matters Mr. Praljak is not uniquely situated as to all

17 accused who have appeared before this Tribunal to talk about these

18 matters. Many military officers, many senior military officers from all

19 three warring parties, Croat officers, Muslim officers, Serb officers,

20 senior officers, Krstic in the Krstic case, the head of the Serb -- one of

21 the senior Serb officers around Srebrenica, others have appeared. Now,

22 they could equally have argued that only they could -- were uniquely

23 situated to put military questions to witnesses in the case.

24 Now, it strikes me as odd and not credible that in all the years

25 of this Tribunal that Mr. Praljak is the first one who is uniquely

Page 17118

1 situated and only he can put his questions to the witness when all of the

2 counsel in all of the cases have been able to do that, apparently quite

3 competently. So once again, Your Honour, I will close with remarks that

4 request that the Chamber return to its original view and that is that

5 participation be limited to an exceptional basis. Thank you.

6 MR. KARNAVAS: Your Honour, I will need five minutes, maybe less.

7 Probably three. I'll be very laconic on this.

8 First and foremost, the Prosecution asked for time to rebut what

9 Mr. Prlic said and then proceeded to talk about an issue that was directed

10 primarily towards General Praljak. That is a separate issue. That's a

11 much more complex issue that should be debated perhaps at some other point

12 in time and not today. Be that as it may, whether other generals have

13 chosen to participate directly or indirectly during the trial proceedings

14 is irrelevant. What's relevant is that Mr. Praljak has human rights, and

15 he's exercising them. He's entitled to assist in his own defence and also

16 to participate. To the extent the Trial Chamber wishes to curtail those

17 rights, I think at this point in time we do have a decision. I agree with

18 the Prosecution. The decision should be abided by. But I think by and

19 large the Trial Chamber is following the decision. And of course the

20 Prosecution is free to object on grounds of relevancy if the Prosecution

21 feels that Mr. Praljak is going into areas that he shouldn't be going

22 into. And I'm not here to defend Mr. Praljak, but I do wish to point out

23 that this is an added issue.

24 Now, with respect to Mr. Prlic and what Mr. Prlic raised, my

25 client, and of course he didn't get pre-clearance from me but if he had

Page 17119

1 asked for pre-clearance, I mean, it's his skin. At the end of the day

2 he's going to go and face the consequences of your -- of your decision.

3 So obviously, even had I wanted to talk him out of going into procedural

4 issues, which I would not have, I think he's entitled to raise those

5 issues, but I think when you get down to it there was one fundamental

6 issue at stake, and that is: He's asking for a fair trial.

7 What I find supremely ironic, what I find really galling at this

8 point in time is Mr. Scott standing up after Mr. Prlic is fighting for

9 him, for the Office of the Prosecution to have sufficient time to put on

10 their case. And what I don't hear from that side is: Let the Defence

11 have enough time to defend themselves. That's what I find shocking. And

12 that's the whole message that Mr. Prlic was saying, let us have sufficient

13 time to try our case, and trying to bring in all these adjudicated facts

14 is not the way. We are trying to have a trial. This is the longest

15 trial, the most complex trial by their calling. Let us have that. That's

16 what he's asking for. We were not able -- I was not able to thoroughly

17 cross-examine the last witness, Ambassador Okun, primarily because I

18 didn't have enough time and chopping it up isn't enough. You can't do one

19 thorough cross-examination, and as Mr. -- I asked Mr. Prlic, I begged him

20 to fight with the other accused to try to get their time so we could use

21 it, and his answer was, "No, they have rights too." So -- and I was upset

22 at him and I yelled at him my own client nor not fighting to argue with

23 the other accused to give up their time for him because we felt we might

24 have been able to do a more comprehensive cross-examination for everyone,

25 but at the end of the day every accused has their angle, has their

Page 17120

1 defence, and has a right, and in hindsight thinking back, Mr. Prlic was

2 correct. How dare I ask him to ask others to give up their right so he

3 can enjoy more rights? And that's what this is all about. And I think

4 that the Prosecution ought to be standing up here and applauding what

5 Mr. Praljak, Mr. Prlic, and others have said, which is give them more

6 time, but at the same time you should be asking the Trial Chamber to allow

7 all of the accused to have all the time necessary for cross-examination,

8 and I think that's the end of the story.

9 I look forward to your decision. Hopefully we can have a much

10 more relaxed atmosphere by relaxing a little bit the rules, allowing us to

11 do more cross-examination when necessary, and feel free to object. Feel

12 free to step in and tell us -- and ask why is a point relevant and if it's

13 not relevant to cut us off and to force us to move on. I think that's the

14 greatest power that you have in controlling the circumstances here. But

15 barring that, let us go on. Thank you.

16 JUDGE TRECHSEL: I think we should not prolong this actually.

17 MR. KOVACIC: [Interpretation] Your Honour --

18 JUDGE TRECHSEL: You have extensively spoken on the issue of to

19 what extent your client ought to be allowed to cross-examine himself. I

20 have that, and I'm sure the Chamber has that in vivid memory. It's not

21 quite true what Mr. Scott said that if Defence counsel did not reply.

22 Maybe the Chamber did not want them to reply, but they did nevertheless in

23 very strong terms.

24 MR. KOVACIC: [Interpretation] Your Honour, with all due respect, I

25 understand what you've just said and I take it as a limitation, but I have

Page 17121

1 to draw attention to something that Mr. Karnavas, I think, mentioned. The

2 Prosecution in this alleged response to the accused Prlic in fact

3 presented new arguments in major part. So with your permission to have an

4 equality for both sides, I have the right to respond to those new

5 arguments and to add something to the arguments that we put forward

6 earlier on, as you mentioned. I am deeply convinced that this is

7 necessary in order to balance out the process, to strike the proper

8 balance in this courtroom. You will of course make your ruling and

9 decision when you have heard all the arguments, but as new arguments have

10 been put forward here, I have the right to respond to them.

11 JUDGE TRECHSEL: I'm interested to hear what you think is a new

12 argument. Frankly, I have not heard any.

13 MR. KOVACIC: [Interpretation] The Prosecutor in another way, in a

14 different way today, on this occasion and with new arguments, he explained

15 and expounded the thesis according to which the accused when they have

16 counsel to represent them in fact do not have the right directly

17 themselves to take part in the proceedings. That is certainly a new

18 argument.

19 JUDGE TRECHSEL: Mr. Kovacic, he has exposed this in substance

20 quite clearly. I think we could get along much faster if the parties

21 could agree to complain less about lack of time. It seems as if this

22 Chamber were some institution with a thumbscrew screwing the thumbs of

23 both parties and having a good time. We are as much pressed. We are in a

24 difficult situation, too, and I think it would be time that the parties

25 recognise that we're all in one boat and that we do not gain anything by

Page 17122

1 this constant moaning and complaining and repeating endless times. I

2 wonder how much time would be made if one added all the complaints of lack

3 of time. I think several days probably could have been put to use. And I

4 sometimes doubt whether this is not something that -- that comes close to

5 a delaying tactic, frankly, because we have heard this ad nauseam,

6 frankly.

7 Another point I would like to say, we had given in to Mr.

8 Karnavas's exceedingly forcefully put request that we have a hearing where

9 the Defence can complain about issues in the proceedings they feel that

10 they have to complain about. The Chamber has conceded this. We have also

11 agreed that we would listen to what the accused would have to say, and

12 this was a bit in a humanitarian spirit. They are sitting here all the

13 time. We also want to hear what they say. But that is more in a way

14 of -- of sounding their mind, of having them put their state of mind and

15 feelings to the Chamber. It is not really legal submissions they made,

16 and that is the way in which we have listened to those of the accused who

17 have wished in this context to address the Chamber.

18 I think that we have had all the legal arguments in this context.

19 MR. KOVACIC: [Interpretation] Your Honour, with all due respect, I

20 simply cannot and won't accept your arguments, the arguments you put

21 forward about taking time and wasting time. As a man of law, I cannot

22 agree with that. You have all the prerogatives as the Trial Chamber to

23 decide in the matter, and you will make the decision as you have been

24 doing thus far. However, when we're talking about this topic, and we are,

25 and I agree there with you that unfortunately all these legal arguments or

Page 17123

1 the humanitarian spirit and aspects that you mentioned remain an abstract

2 context if in the courtroom we do not have the time to present the

3 arguments that we consider to be relevant and to influence a fair trial in

4 these proceedings. And -- so that is something that I have to respond to.

5 We're all conscious that the essence of everything here is time and we're

6 all fully conscious of the fact that we do not have enough time. However,

7 Your Honours, it is not the accused who constructed this megalomaniac

8 indictment and it is not the accused who compiled an indictment which by

9 its very nature demands reasonable time in order to present evidence to

10 bear out the indictment and -- or not, and to go into the question of

11 procedural rights, which, without a doubt in one way or another to a

12 greater or lesser extent, ultimately effect a fair trial. And a fair

13 trial is the key to all these proceedings. That is what is laid down in

14 the Statute. This is the basic principle that we adhere to in every

15 national court of law and international court of law. And you yourselves

16 frequently say that you're taking steps in order to ensure a fair trial.

17 And I am deeply convinced, Your Honour, out of respect for this Trial

18 Chamber that you're -- you're not saying that in your decisions and

19 verbally declaring that only because it sayings so in the Statute. You

20 are saying that because you are educated lawyers and you know that that is

21 the key to all these proceedings.

22 So may I take a few minutes to respond tomorrow what the

23 Prosecutor said. The Prosecutor starts out from the assumption and that's

24 the crux of the matter, the assumption an accused in the courtroom who has

25 legal representation and counsel, professional counsel, that thereby in

Page 17124

1 that same courtroom ipso facto he becomes the object of the proceedings

2 and as we've seen in the many trials that have already been held is a

3 tactics of the Defence, the accused in 90 per cent of the trials held in

4 this International Tribunal the accused sat quite peacefully for two,

5 three, five years during the legal proceedings without the Judges ever

6 hearing a single word uttered from them, unless asked what their health

7 was like perhaps. So this kind of situation the de facto situation that

8 exists in this it Tribunal is not as a result of the Rules of Procedure

9 and proceedings but of the rights used by the Defence, and it is also the

10 right of the Defence to keep silent.

11 Here we have a different situation. We have six accused who to a

12 greater or lesser extent actively participate in the trial. So that is

13 the argument I would like to respond to.

14 An accused is not the object of the trial, the object of the

15 proceedings; he is the subject and the proceedings are being conducted

16 against him and it is his right to participate in those proceedings in

17 different ways. Institutionalised law. The first right is to -- for

18 counsel to help -- or, rather, the accused to help his counsel by briefing

19 him about facts indicating certain events and so on. But in addition to

20 that right he has the right to take part in the debate itself. Once again

21 let me repeat because he is not an object but a subject, and it is his

22 fate and destiny that is at stake, his head that is on the line; so he has

23 the right to defend himself, not only by appointing counsel and

24 instructing counsel but to take part himself. A, to take part in the

25 cross-examination of witnesses by showing documents. B, taking part to a

Page 17125

1 certain extent in procedural matters when in comes to fundamental

2 questions concerning a fair trial. So the accused, without doubt has

3 these rights regardless of whether he has appointed counsel or not. They

4 can say, "Your Honours, I consider that such-and-such is not fair." That

5 is what an accused has the right to do. It's quite another matter how the

6 Trial Chamber is going to weigh this up, whether they're going to accord

7 the accused this right or not. But accused without a doubt does have the

8 right to speak up.

9 Therefore, would any of us here in this courtroom accept the fact

10 that the trial was a fair trial if we curtail the right of an accused to

11 take the floor if they wish to do so. I don't think it would be a fair

12 trial under those conditions.

13 I will stop there. Of course there are other arguments that can

14 be put forward as well.

15 THE ACCUSED PRALJAK: [Interpretation] Your Honours, if I may, just

16 for two or three minutes.

17 I have accepted what Your Honours have suggested, that is to

18 comment on technical questions, and I think 90 per cent of my

19 interventions were like that. There were a lot of maps, and my questions

20 related only to matters that in my view should be discussed by a military

21 expert, and he should be here permanently, a social psychologist, a

22 sociologist and a military expert. They should be there permanently. The

23 Judges are professional Judges but they're not military experts. And I

24 had expected the Chamber to tell the Prosecutor that certain generals

25 cannot be tried with -- when bringing the maps of Mostar of the size 10 by

Page 17126

1 10 centimetres. So this is so inappropriate.

2 So, Mr. Scott, as long as the law gives me that right I will

3 defend myself in a dignified and professional way with maps, facts,

4 trigonometry, and all the knowledge that I've acquired in my life which is

5 not so small.

6 JUDGE ANTONETTI: [Interpretation] Mr. Murphy.

7 MR. MURPHY: Your Honour, I don't want to prolong things. Good

8 afternoon Mr. President and Your Honours.

9 I don't want to prolong things but speaking as one who represents

10 one of the accused who does not have any interest in representing himself,

11 I do have some observations that are new and may be of assistance.

12 Mr. Scott has made the point that there was a previous ruling of the Trial

13 Chamber as to the extent of the accuseds' representation, but,

14 Your Honour, the fact of the matter is that, I think on the second day of

15 this trial, General Praljak made an opening statement on his own behalf

16 that lasted for a number of hours and ever since there has, without

17 apparent objection, played a very active role in the proceedings. And,

18 Your Honour, we're now a year into trial, and for the Prosecution at this

19 point to change what has in effect become the practice in this trial at

20 this late stage would obviously be highly prejudicial and whatever the

21 objective rights and wrongs of the situation, Your Honour, it's my

22 respectful submission that it's now far too late for -- to go back on

23 that. The train has left the station a considerable time ago and it would

24 place the Praljak Defence, no doubt possibly other accused, in an

25 impossible situation if they had to revise their entire trial strategy at

Page 17127

1 this point. Your Honour, it may be in my submission that it may be as

2 simple as that.

3 MR. SCOTT: Well, Your Honour, we're right back to where -- this

4 makes my point. We've now had two -- at least two accused and their

5 counsel both participate today, as if they both have the same amount of

6 time. Now, if I had one of my -- one of the victims sitting here and the

7 could -- the victim can give me his time or her time or whatever, it would

8 be the same thing, and that's -- this is the point that's made. If you

9 look at this, and I've asked my case manager to do this, look at the total

10 time that has been spent on these matters since it was first tabled and

11 the total time, and you will find, I'm sure, that the Prosecution has used

12 substantially less time than the various Defence counsel and the various

13 accused combined. Substantially less. I'm talking by -- by orders of

14 magnitude. And then we -- then we do it again. Then we get up again and

15 then we go through it all over again. Now, just to simply address -- all

16 I'm going to do now is simply address Mr. Murphy's point.

17 Your Honour, I'm happy if the Chamber thinks it would be helpful

18 to take the time to go back for the record. Prosecution has repeatedly

19 objected to Mr. Praljak's interventions on a number -- on many number of

20 occasions. And perhaps we should -- perhaps based on Mr. Murphy's

21 comment, we should have objected even more. I think there is the

22 phenomenon when a party objects and objects and objects and continue --

23 continuously to no effect, one decides that probably it's not worth --

24 worth the effort. But it has consistently been the Prosecution's position

25 that the Chamber's original ruling should apply and that is -- and that's

Page 17128

1 been our position all along and we have objected any -- on any number of

2 occasions. And in fact I've heard the Judges object on a number of

3 occasions and ask and tell Mr. Praljak, We don't know where you're going.

4 This seems to us to be a waste of time. And so everyone in the courtroom

5 has objected at times, and our position is simply, like all the other

6 trials that have been conducted to date, and this Chamber is not

7 conducting the first trial at the ICTY, other accused have not

8 participated in this way, and we've -- you've created, I'm sorry, but with

9 great respect you've created a two-headed creature, both counsel, both

10 representing themselves and we think there are exceptional circumstances

11 in which that must be justified, but it shouldn't be day-to-day practice.

12 And that's our submission. Thank you.

13 JUDGE ANTONETTI: [Interpretation] Very well. It is 20 to -- 25 to

14 4.00. We're going to have a 20-minute break and we will resume work with

15 the hearing of the witness after the break.

16 --- Recess taken at 3.38 p.m.

17 --- On resuming at 3.59 p.m.

18 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, let us go into

19 private session. Will you put the blinds down, please.

20 [Closed session]

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 17129











11 Pages 17129-17199 redacted. Closed session















Page 17200

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 --- Whereupon the hearing adjourned at 6.57 p.m.,

10 to be reconvened on Tuesday, the 17th day

11 of April, 2007, at 2.15 p.m.