Tribunal Criminal Tribunal for the Former Yugoslavia

Page 32064

 1                           Monday, 8 September 2008 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 2.19 p.m.

 5             JUDGE ANTONETTI: [Interpretation]  Mr. Registrar, could you call

 6     the case number, please.

 7             THE REGISTRAR:  Good afternoon, Your Honours.  Good afternoon,

 8     everyone in and around the courtroom.  This is case number IT-04-74-T,

 9     the Prosecutor versus Prlic et al.

10             Thank you, Your Honours.

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

12             Today, Monday, the 8th of September, 2008, I would like to greet

13     the accused and Mr. Praljak in particular.  I would also like to greet

14     the Defence teams, Mr. Scott and Mr. Stringer, as well as the assistant,

15     and I would also like to greet the Registrar, the usher, and everyone

16     else assisting us.

17             First of all, I will give the floor to the Registrar, who has a

18     number of IC numbers to inform us of.

19             THE REGISTRAR:  Thank you, Your Honour.

20             Some parties have submitted lists of documents to be tendered

21     through Witness Perkovic, Zoran.  The list submitted by 1D shall be given

22     Exhibit number IC 00838.  The list submitted by 2D shall be given Exhibit

23     number IC 00839, and the list submitted by the Prosecution shall be given

24     Exhibit number IC 00840.

25             The Prosecution has also submitted list of objections to

Page 32065

 1     documents tendered by 1D through Witness Perkovic, Zoran.  The list

 2     submitted by the OTP shall be given Exhibit number IC 00841.

 3             Thank you, Your Honours.

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

 5             Initially, the Trial Chamber had three oral decisions to render,

 6     but given new circumstances, we'll only be rendering two.

 7             The first oral decision concerns Witness Borislav Puljic.  The

 8     Trial Chamber is requesting that Mr. Karnavas provide the summary that

 9     relates to this witness, who should be appearing next week.  It should be

10     provided by Wednesday, the 9th of September, 2008.  That's the first oral

11     decision.

12             The second oral decision, but in private session.

13             Mr. Registrar, could we go into private session.

14                           [Private session]

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25                           [Open session]

Page 32067

 1             THE REGISTRAR:  Your Honours, we're back in open session.

 2             JUDGE ANTONETTI: [Interpretation]  Yes, Mr. Stringer.

 3             MR. STRINGER:  Good afternoon, Mr. President and Your Honours.

 4             Just one small clarification from the remarks you just made in

 5     respect of the witness summary for Mr. Puljic.  The transcript indicates

 6     that his witness testimony was to be provided on Wednesday, the 9th, and

 7     I think that the 9th is actually Tuesday, and so we weren't sure which

 8     day we could expect the witness summary.

 9             JUDGE ANTONETTI: [Interpretation]  Yes.  I was, in fact, going to

10     correct this.  Judge Prandler told me that Tuesday is the 9th and

11     Wednesday is the 10th, so I was going to say that it was on Wednesday,

12     the 10th of September.  Very well, then.

13             The Trial Chamber prepared a decision on the order in which the

14     witness was to be examined, but at 1400 hours, the Chamber was informed

15     of the fact that this witness will not be appearing.

16             Mr. Karnavas, what is the problem that you have encountered?

17             MR. KARNAVAS:  Good afternoon, Mr. President.  Good afternoon,

18     Your Honours.

19             Well, it's not a problem that I've encountered, but approximately

20     11.30 this morning, while meeting with the witness, it was learned that

21     the witness would not be testifying.  I should say that on Friday, all

22     day Friday, the witness, who was brought here on that particular day at

23     the Prlic Defence costs, spent the entire day with the other Defence

24     teams, whoever wanted to meet with him, Saturday and Sunday all day.  The

25     witness met with us.  Sunday evening, he met with one of the other

Page 32068

 1     Defence teams.  This morning, he met with the Petkovic Defence team

 2     again, even though they had all day Friday with him.  And then again we

 3     met with the witness later on, and, frankly, I think that the decision

 4     that the witness made was a private decision, it was a decision made

 5     based on a variety of information that he gathered throughout the

 6     weekend, I suspect.  And it had nothing to do, I can assure you, nothing

 7     to do with the spectacle that was witnessed on Thursday, for which I will

 8     still apologise, 25 years and as a practitioner, I've never had to --

 9     well, I've never been challenged in such a way that my integrity was on

10     that day, and I never had to respond in like fashion.  But, in any event,

11     it had nothing to do with that.

12             Needless to say, I can assure you that it was a very difficult

13     and challenging decision for the Defence to accept, but we are not in a

14     position to either pressure witnesses or tell them what to say.  That's

15     not our -- we don't conduct ourselves that way.  What we do is provide

16     the witnesses with the documents that we believe the witness will need to

17     deal with, and then of course the witnesses are free to make decisions at

18     the end of the day.

19             And so that's as much as I can afford to -- well, to discuss

20     disclose at this point in time, and I say that because much of what

21     happens while prepping Defence witnesses, in my estimation, is work

22     product, just as was noted last week with whatever the Prosecution

23     request from the State governments is deemed as work product.

24             So we will bring our next witness later on in the week.  We hope

25     to have him on Monday.  I gave assurances to Mr. Stringer, or his

Page 32069

 1     assistant, that by the end of the day, hopefully, we would have a summary

 2     for them.  And I also did inform Mr. Stringer -- I gave him a verbal

 3     outline of what I believe the witness will testify to; that's it, I gave

 4     him the topics.

 5             That's it.  If there are any questions, I would be happy to

 6     handle them at this point.  Otherwise, I have nothing further to say on

 7     the matter.

 8             JUDGE ANTONETTI: [Interpretation]  Very well.

 9             My colleague would like to say something, but personally I would

10     like to say that while a witness may decide not to appear, but the

11     Defence might believe that the witness's testimony is of capital

12     importance, and in such situations one can always ask the Trial Chamber

13     to issue a subpoena, a summons.  So that is a legal response that is

14     possible.

15             Secondly, Mr. Karnavas, as I was curious, I calculated the amount

16     of time you have used so far, and the total is 52 hours.  As you have 95

17     hours, that means that you have another 43 hours for your witnesses.

18     That's what I wanted to tell you.  As we have seen, a witness who is

19     examined for four hours in the examination-in-chief usually needs four

20     days of cross-examination, of Prosecution cross-examination, additional

21     questions, Judges' questions, and so on and so forth, and this means

22     that, roughly speaking, you have about ten weeks for the examination of

23     witnesses as part of your Defence of Mr. Prlic.  That should take us to

24     the beginning of December, if everything goes smoothly.

25             I'll now give the floor to my colleague, who has something to

Page 32070

 1     say.

 2             JUDGE TRECHSEL:  This is a technical question.

 3             Mr. Karnavas, if I may draw your attention to page 5 of today's

 4     transcript, lines 7 to 11, there is one word that apparently was not

 5     understood, and I must confess that I do not quite understand what you

 6     wanted to say; and I'm sure you would like what you were saying to be

 7     understood.  So I would like to give you the opportunity to explain.  You

 8     will have seen, probably, that it doesn't very -- isn't very clear.

 9     Thank you.

10             MR. KARNAVAS:  Well, Judge Trechsel, after you left, at the

11     conclusion -- at the conclusion of the events last Thursday, there was a

12     rather unpleasant scene in the courtroom.  That was the spectacle of

13     which I wish to apologise for, because in my 25 years I've never had one,

14     my integrity questioned in such a fashion, and, number too, I've never

15     had to respond in like fashion to a colleague on the Defence side, so

16     that's what I was apologising for.

17             And I wanted to make sure that the Trial Chamber did not think

18     that the witness not appearing for -- to testify had anything to do with

19     the events on Thursday.  That was a -- those events were mostly dealing

20     with the technique; who would go first, who would go next, when the cross

21     would take place, and can you cross your own witness before doing the

22     direct.  But that had nothing to do, whatsoever, with the witness's

23     decision not to testify.  And so I don't want to give the impression that

24     it was because of his discontent with any of the parties on the Defence.

25     So I just wanted to make that abundantly clear.

Page 32071

 1             JUDGE TRECHSEL:  Thank you very much.  You have succeeded.

 2             MS. ALABURIC: [Interpretation] Your Honours, I would like to

 3     greet everyone in the courtroom.

 4             With regard to not hearing the witness for this week, there's

 5     nothing I can add to what Ms. Karnavas had said, but I'd like to say,

 6     with respect to the transcript, that with respect to the costs incurred

 7     for this witness, and this has been mentioned for the second time in the

 8     courtroom, the Petkovic Defence will directly contact the VWU and suggest

 9     that they cover the expenses for this witness, who stayed in The Hague on

10     Friday, because we don't want the Prlic Defence to have to suffer these

11     expenses.  Thank you very much.

12             JUDGE ANTONETTI: [Interpretation]  Very well.

13             Mr. Karnavas, when I heard that the witness would not be

14     appearing, as I was intellectually curious, I had a look at your witness

15     list.  As part of the 65 ter list or in the 65 ter list, I saw that there

16     were four witnesses, 23, 24, 25 and 26, whose names we don't have because

17     they have pseudonyms.  I hope that these witnesses will appear, and in

18     order to avoid such problems you should perhaps ask all future witnesses

19     that they confirm, in writing, that they will be appearing at your

20     request, because if others change their mind, in the meantime you

21     shouldn't be placed in such a situation, which makes you waste time and

22     it could also have consequences for the Chamber's work.

23             As far as the next week is concerned, given the table you have

24     provided us with, you wanted your witness to appear as of Tuesday, and

25     the witness who was supposed to come would have continued on Monday, the

Page 32072

 1     15th.  But as Monday will be free, perhaps Mr. Borislav Puljic could come

 2     on Monday.  So that shouldn't be a problem.  Very well.  And then we have

 3     the schedule which has already been set, and that functions.

 4             I'm somewhat concerned with regard to Witness Zdravko Batinic,

 5     because in the week that he'll be appearing there are only three

 6     hearings, because Tuesday, the 30th, is a holiday.  And you had planned

 7     four hours for this witness.  On the other hand, the previous witness,

 8     Kozul, who should be testifying for four days, well, you planned to spend

 9     three hours on this witness.  It's for you to see, but perhaps it would

10     be better to have Batinic to come the preceding week and testify for four

11     days, and Kozul could testify for three days, because if we have three

12     days and four hours of cross-examination, perhaps one won't have enough

13     time to finish by Thursday.

14             MR. KARNAVAS:  Two points, Mr. President.

15             One, we are in a process of trying to even streamline more our

16     witnesses' testimony, and -- but we will take on board your suggestion.

17     So you should rest assured that we are taking -- factoring everything and

18     taking everything into account.  So -- and sometimes we do have to work

19     around the witness's schedule, but we will do that.

20             Also, there may be an instance or two where some witnesses we

21     might choose to go through another route; that is, simply introduce a

22     statement.  We're not sure yet, but that is a possibility.

23             And as far as the remaining time that we have, we appreciate the

24     Trial Chamber taking note of that, and it is our anticipation that -- and

25     hope that we will be able to reserve some of that time for the remainder

Page 32073

 1     of the trial, because there may be instances where we to an examination

 2     that might constitute a direct exam as opposed to cross-exam, so we are

 3     mindful that the Trial Chamber will probably hold us to the same rules --

 4     I see Judge Trechsel, you know, being ever fair-minded -- to make sure

 5     that -- and I think that's a good rule that we all have to abide by, and

 6     certainly we're going to try to do the same as the others.

 7             Thank you.

 8             MS. ALABURIC: [Interpretation] Your Honour, if I maybe just

 9     correct an error in the transcript.  Page 8, line 9, the word "day" is

10     erroneous, because I said that I would suggest that the VWU have the

11     Petkovic Defence cover the expenses.  I didn't say that I would suggest

12     that the VWU cover those expenses.

13             Thank you very much.

14             JUDGE ANTONETTI: [Interpretation]  Very well.  It's in the

15     transcript now.

16             We have a lot of time left.  Do any other members of the Defence

17     have any issues to raise?

18             No issues?  I'm looking at them, I'm imploring them, but no one

19     has anything to say.

20             JUDGE TRECHSEL:  I seem to detect a discrepancy in the

21     transcript, because on page 8, line 2, the issue of cost is attributed to

22     Ms. Nozica, and I thought I had heard that it was you, Ms. Alaburic, who

23     brought this forward.  So that should be corrected.

24             MS. ALABURIC:  Later on, in line 10, if you have a look, you can

25     see that it says "Ms. Alaburic," so I didn't react.

Page 32074

 1             JUDGE TRECHSEL:  Thank you.

 2             JUDGE ANTONETTI: [Interpretation]  There is something I would

 3     like to say in private session.

 4             Mr. Registrar, could we move into private session.

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25             THE REGISTRAR:  Your Honours, we're back in open session.

Page 32076

 1             JUDGE ANTONETTI: {Interpretation]  Just a moment, please.

 2             THE ACCUSED PRALJAK: [Interpretation]  Your Honours, as we have

 3     time --

 4             JUDGE ANTONETTI: [Interpretation]  Just a moment.  Mr. Praljak,

 5     we're in open session now.  Would you like us to go back into private

 6     session?

 7             Private session, yes.

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13             THE REGISTRAR:  Your Honours, we're back in open session.

14             JUDGE ANTONETTI: [Interpretation]  Mr. Prosecutor, do you have

15     any issues to raise?  Mr. Scott.

16             MR. SCOTT:  Thank you, Your Honour.  My apologies to

17     Mr. Stringer.

18             I just thought that -- and all of Your Honours, good afternoon,

19     and to all of those in the courtroom.

20             While we're just dealing with a couple of housekeeping matters,

21     Your Honour, the reference was made to the possibility of changing the

22     schedule for Mr. Kozul and Mr. Batinic.  Obviously, the Prosecution also

23     tries to organise its affairs and taskings, and it would be helpful --

24     I'm sure Mr. Karnavas will assist us in knowing whether there would be a

25     change in the order as soon as possible.  We would appreciate that very

Page 32078

 1     much.

 2             Needless to say, and this is simply to note reality and not

 3     casting stones, the Prosecution is well away that difficulties with

 4     witnesses sometimes develop, but just as with the Defence, the Chamber

 5     might imagine that a great deal of the Prosecution staff spent Friday and

 6     the weekend preparing for this witness, so it's always nice to know as

 7     far as advance in possible when there are witness changes.

 8             Secondly, Your Honour, it just reminded me, Mr. President, when

 9     you said a few moments ago that there are four witnesses on the Prlic

10     Defence witness list who so far only are provided by pseudonym, and I

11     thought it might be timely to simply indicate I think the practice has

12     been -- the practice during the Prosecution case has -- in those

13     instances where there are protected witnesses of such a nature, that a

14     minimum of 30 days' notice was given to the Chamber and to both of the

15     parties as to when those witnesses would be called and who they are, so I

16     assume the same practice will apply here.

17             Thank you very much.

18             JUDGE ANTONETTI: [Interpretation]  Very well.

19             You are quite right, but if a witness with a pseudonym is coming

20     in two months, then the Defence will let you know one month ahead, in

21     accordance with the Rules and the jurisprudence.

22             Isn't that right, Mr. Karnavas?  I'm not mistaken in saying this?

23             MR. KARNAVAS:  You're absolutely right, Mr. President, and we

24     will -- we will look at our list and provide the information not only in

25     a timely fashion, but hopefully well in advance for the Prosecution to

Page 32079

 1     adequately prepare itself.  We don't pride ourselves in trying to play

 2     games in court and hide the ball.  That's not how to win cases, and

 3     that's not how to get to the truth.  But I take Mr. Scott's position.

 4     I think he does have a point, that there this should be made aware of as

 5     soon as practical.

 6             And as far as witness changes, as soon as we know, we let them

 7     know, because we do understand the importance of preparing and how

 8     time-consuming it must be.  And as I indicated, with this particular

 9     witness it wasn't until 11.30.  Up until that point, everybody was

10     working on this team at full speed ahead.  So -- and I can honestly say

11     in the last three days prior to coming here to court, the team spent

12     approximately 80 to 90 hours preparing.  So that doesn't count copying,

13     sorting out, that's just the last three days.  That gives you an

14     indication of the time that's spent.

15             Thank you.

16             JUDGE ANTONETTI: [Interpretation]  Thank you, Mr. Karnavas.

17             I see that we have covered all issues.  There appear to be no

18     other.  So I invite everyone to come back for the hearing next Monday,

19     which will given at 2.15, and in the meantime I wish everyone success in

20     their work.  Thank you.

21                           --- Whereupon the hearing adjourned at 2.55 p.m.,

22                           to be reconvened on Monday, the 15th day of

23                           September, 2008, at 2.15 p.m.