1 Friday, 26 March 2010
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.06 a.m.
5 THE REGISTRAR: Good morning, Your Honours. Good morning,
6 everyone in and around the courtroom.
7 This is case number IT-08-91-T, the Prosecutor versus
8 Mico Stanisic and Stojan Zupljanin.
9 JUDGE HALL
10 Before I ask for the appearances, I note for the record that we
11 are sitting under the provisions of Rule 92 bis -- Rule 15 bis, thank
12 you, Judge Harhoff having duties elsewhere today.
13 Yes, may we have the appearances, please.
14 MR. OLMSTED: Good morning, Your Honours. Matthew Olmsted,
15 Joanna Korner, and Crispian Smith for the Prosecution.
16 MR. ZECEVIC: Good morning, Your Honours. Slobodan Zecevic,
17 Slobodan Cvijetic, Eugene O'Sullivan, and Tatjana Savic appearing for the
18 Stanisic Defence this morning. Thank you.
19 MR. PANTELIC: Good morning, Your Honours. For the
20 Zupljanin Defence this morning appearing -- yeah, it's on. This morning
21 for Zupljanin Defence, Igor Pantelic, Dragan Krgovic, Ms. Erin Dummavant,
22 and Miroslav Cuskic. Thank you.
23 Instead of Mr. Erin
24 JUDGE HALL
25 Don't panic -- Judge Delvoie.
1 [Closed session]
11 Pages 8233-8250 redacted. Closed session.
17 [Open session]
18 THE REGISTRAR: We're in open session, Your Honours.
19 MR. ZECEVIC: If I may just --
20 JUDGE HALL
21 I'm sorry to interrupt you, Mr. Zecevic, but there is something
22 that I wish to -- I forgot it yesterday, I intended to deal with it this
23 morning, and lest I forget it again, if I may.
24 Ms. Korner, yesterday, when we dealt with the witness, whose name
25 escapes me for the moment, who is coming back in May, you indicated that
1 this DV unit is a part of the Office of the Prosecution. But
2 notwithstanding that, you would wish a formal order from the Court. And
3 I think that we neglected to do that yesterday. So to the extent that
4 such a -- the Court now orders -- and if you will assist me with the
5 language, please.
6 MS. KORNER: The production of transcripts in B/C/S of
7 Mr. Mandic's testimony in the Krajisnik trial.
8 JUDGE HALL
9 MS. KORNER: Thank you.
10 JUDGE HALL
11 MR. ZECEVIC: Thank you, Your Honour.
12 Your Honour, just a very small observation in relation to the
13 situation we just had.
14 I don't think really -- I understand your ruling, and I sort of
15 understand the motives of the victims for their wish to express whatever
16 the feelings that they have, and I don't have any problem with that. The
17 problem I have is that once this door is opened, we have -- we
18 potentially are having a problem like we had just now.
19 The witness, for some reasons, names one of the Defence counsels,
20 or it will be in the Defence case, it might be the counsels from the
21 other side, and goes into sort of a dispute with the counsel, which is,
22 you would agree, I'm sure, quite inappropriate. So what I wanted to
23 suggest, Your Honours, is that in future, if the Registry is informed by
24 the VWS that the witness wishes to address the Trial Chamber at the end
25 of his testimony or for whatever reasons, then that information should be
1 given to all the parties, so we can be prepared in a sense that we can
2 give our positions on any specific -- on any specific issues that might
3 arise out of that situation, because it might be a situation where the
4 witness asks for a certain help of the Trial Chamber, which would be
5 completely understandable. But in these situations, where the victims
6 are asking to have the statements, then I don't think -- I don't think
7 that's -- that the situation, as we have, was a proper one, where the
8 witness was, in a sense, attacking one of the counsels, and the counsel
9 is not in a position to say anything. That is why I -- that is why
10 I think that this procedure sort of opens up another line which I don't
11 think helps the integrity of the proceedings.
12 That is just my observation, Your Honour. I'm not trying to
13 criticise your decision. I accept it. I'm just trying to give my
14 observation. Thank you very much.
15 JUDGE HALL
16 JUDGE DELVOIE: But, on the other hand, Mr. Zecevic, I don't
17 think the witness had the intention whatsoever, when he noticed the
18 Registrar that he wanted to say something, he had no intention whatsoever
19 to go into a dispute with Mr. Pantelic. That was really the last time --
20 a last-moment reaction of the witness of something Mr. Pantelic said in
21 court, and I can understand the witness's reaction, you know.
22 MR. ZECEVIC: I understand, Your Honours, but we are officers of
23 the Court. We are not -- we are not privately expressing our opinions to
24 the witness. We are not talking to a witness. We are doing our job,
25 defending our clients.
1 Now, this situation could have been anticipated, because during
2 his -- one of his answers, he was making comments to Mr. Cvijetic, when
3 Mr. Cvijetic made a completely proper objection. Therefore, I think --
4 what I'm trying to say is that we, and our rights as counsels and
5 officers of the Court, and the people who are trying to do their job at
6 the best or of their abilities, should be protected as well, because -- I
7 didn't felt -- I didn't -- professionally and personally, I didn't felt
8 well when -- or wouldn't have felt well if I was attacked by the witness,
9 and I would not be able to explain my position.
10 Thank you very much.
11 MS. KORNER: Your Honour, I have two short and one maybe slightly
12 longer matter to ask Your Honours to deal with, which are procedural
14 Your Honour, the first relates back to -- as I came back into
15 court yesterday, I heard Mr. Pantelic expressing his views somewhat
16 forcefully on the application of Rule 90(H). Your Honours, I just want
17 to make one further point on this.
18 Mr. Pantelic appeared to be suggesting that it would be proper
19 for him to rely on something that Judge Orie had said in the Krajisnik
20 trial about the last witness, without in any way putting to the witness
21 his challenge as to what the witness said in the statement, the 92 ter
22 transcript, which has been admitted as this witness's evidence.
23 Your Honours, can I make it absolutely clear, from the Prosecution point
24 of view, we've already said over and over again the Defence have an
25 obligation to put their case on major issues. Your Honours have made
1 your position clear, but we want to make it even clearer that we would
2 object strongly to any attempt, in closing addresses or through other
3 evidence later, to try and undermine that evidence without having put it
4 to the witness directly that he is either mistaken or lying about that
5 aspect of the case that was not challenged.
6 Your Honours, I just want to make that absolutely clear.
7 MR. PANTELIC: And if I may, Your Honours, I would like to make
8 absolutely clear that when time comes, we should be able to express our
9 submission, our filings, at the closing of the case, and at that stage
10 this is Honourable Trial Chamber will be able to evaluate all evidences,
11 including the transcripts from Krajisnik trial and testimony of last
12 witness, as well as the line of cross-examination and the evidence which
13 is a part of 92 ter packages. Thank you very much.
14 JUDGE HALL
15 MS. KORNER: Your Honours, obviously we don't agree at all with
16 Mr. Pantelic on this. So if it comes to it, there may yet have to be
17 another procedural argument, but I don't want to continue that today.
18 JUDGE HALL
19 MS. KORNER: Yes.
20 Your Honours, the second matter is this: Your Honours ruled on
21 the 24th of March - a decision, you issued a decision - on our
22 application to add three documents, which you've refused to do, and I'm
23 simply seeking clarification.
24 The reason for ruling against our application was - does
25 Your Honour have a copy? - was this: That the Prosecution has not
1 established to the satisfaction of the Trial Chamber that there is good
2 cause for its request or that the proposed documents are of sufficient
3 importance to justify their late inclusion.
4 Your Honours, the clarification we simply seek is this: Is it
5 Your Honours' ruling that these documents are not sufficiently relevant
6 to any issues in the case, and that is the reason for your ruling?
7 Because I'm afraid we've all had a bit of difficulty in understanding all
8 the proposed documents are of sufficient importance. Does that mean they
9 are relevant, but not sufficiently relevant?
10 JUDGE HALL
11 answer that we can give at this moment, because we'd have to remind
13 MS. KORNER: Yes. Well, Your Honours, may I simply raise it and
14 ask that perhaps on Monday, when you've had a chance to look at it --
15 thank you very much.
16 Your Honours, the final matter is one that, as I say, may take a
17 little longer.
18 Your Honours know, because it's been raised from time to time,
19 that we have been affording the Defence the opportunity to see the
20 witnesses we call, generically, I can say insider witnesses, before --
21 immediately before they testify, either before they are seen by us, and
22 sometimes afterwards. Your Honours, we have become increasingly
23 concerned in respect of the pressure that this is putting on witnesses
24 who are, in any event, reluctant to testify. In some cases, we've had to
25 issue witness summons.
1 I gather Mr. Zupljanin finds this amusing.
2 And in other cases where -- I really would be very grateful if
3 Your Honours could instruct Mr. Zupljanin not to speak while I'm
5 In other cases, where even where they haven't had a witness
6 summons issued, they are clearly not happy about being here.
7 Your Honours will have seen that the witnesses, when they give
8 their evidence, very often are not prepared to say what they have said in
9 interview to the Office of the Prosecutor. The reasons for that, we
10 don't know, and we're not exploring it at this moment. But what we are
11 saying is that it has become evident to us that when they see Defence
12 counsel, it is an added pressure, particularly when it's a long interview
13 that has taken place immediately before they testify, and in at least one
14 case, as Your Honours know, the witness was too tired to carry on the
15 full length of a session.
16 Your Honours, there is, and I absolutely accept, no property at
17 all in the witness. The Defence are entitled to interview the witnesses,
18 provided only that they notify us that they wish to do so and that the
19 witness, obviously, has agreed.
20 What has now happened is that, with some difficulty, we having
21 stopped the witness who's coming on Monday last week because we thought
22 Mr. Mandic was going to take up the full week, we rang him up, and he
23 very kindly agreed that he would fly in on Sunday to testify -- on
24 Saturday night, I'm sorry, to testify on Monday. Up until now, he has
25 declined on, I think, at least two, maybe three occasions, to speak to
1 Defence counsel. But he, himself, volunteered that he did not wish --
2 and his actual words to the investigator who spoke to him: He did not
3 want to be seen to be uncooperative, and therefore he was now prepared to
4 see Defence counsel. I do not know whether he's been contacted by
5 counsel or investigators, or whether it's simply that he's been contacted
6 by other witnesses who have undergone the same process. Can I simply put
7 it this way: We find it slightly strange, after refusing adamantly to
8 speak to Defence counsel, he now says he's willing.
9 We have taken the decision that because he's only coming here on
10 Saturday, and because of what has been happening recently with witnesses,
11 we declined to allow the Defence to speak to him. We've had a request
12 from Defence that they be allowed to speak to him for three hours; two,
13 as I understand it, by counsel for Stanisic and one for counsel for
14 Zupljanin. We feel this is not appropriate. We do not consider that
15 these interviews should be used as a dress rehearsal for
17 In any event, if Your Honours decide that we should give this
18 access and should allow this to happen, it will mean that we cannot start
19 the testimony on Monday morning, because clearly he can't spend three
20 hours with the Defence on Sunday. He's got to listen to his interview,
21 which is 128 pages, plus look at the documents. So the net effect would
22 be that we would be saying he wouldn't be able to start his evidence
23 until Monday afternoon, and I believe we're in Monday morning court.
24 So that's the situation. I'm sorry that we have to ask
25 Your Honours to deal with it, but our view at the moment is if the
1 Defence want to see witnesses, this must be done in advance of them
2 coming to The Hague
3 JUDGE HALL
4 my previous work, and I see here as being no different, I draw a
5 distinction between matters in court, in which the Judges are involved,
6 and that whole exercise out of court, which involves attorneys and
7 witnesses and, more importantly, more time than what the Court, itself,
8 is concerned about. And I'm not sure -- against that distinction, I'm
9 not sure that what you are raising is a matter properly for the Court.
10 Isn't this an out-of-court matter to be sorted out, assuming the
11 goodwill, co-operation, and bona fides of counsel on both sides, to be
12 worked out between themselves?
13 MS. KORNER: Your Honour, the reason that we're raising it is,
14 one, because we are now formally -- we've given notice that we're not
15 prepared to do this any longer, and I know Mr. Zecevic wants to deal with
16 it. The second reason is because if Your Honours -- I won't say --
17 express the opinion that in this particular case, certainly the witness
18 who's coming now, this should be allowed, then the effect will be that
19 we'd have to ask Your Honours not to sit in the morning, and possibly not
20 Monday at all, but in the afternoon, because there's insufficient time
21 for him to see the Defence and us.
22 [Overlapping speakers]
23 MS. KORNER: Sorry?
24 JUDGE HALL
25 MS. KORNER: Are we? Well, I suppose that one -- It may well be.
1 I would be saying the whole of Monday to --
2 JUDGE HALL
3 practical problem that when you seek to invoke the assistance of the
4 Court, the Court must have a Rule against which it purports to act?
5 MS. KORNER: Sorry?
6 JUDGE HALL
7 Court to express an opinion. But isn't the problem that then you seek to
8 invoke the assistance of the Court, the Court can only -- qua Court, act
9 on the basis of some rule. And there is no Rule on which the Court, as I
10 see it, and I'm open to --
11 MS. KORNER: I think Your Honours have -- I'm sorry to interrupt.
12 Your Honours have an overriding -- I think it's Rule 54 or something.
13 It's to regulate the conduct of the proceedings. It gives you the power
14 to do just about anything.
15 JUDGE DELVOIE: Ms. Korner, I have two questions.
16 One technical question: This witness is supposed to take how
17 much time in court?
18 MS. KORNER: He's four hours in examination-in-chief, four hours
19 cross-examination by Stanisic, and I believe one and a half by the
20 Zupljanin team.
21 JUDGE DELVOIE: Okay. And so that makes Tuesday, Wednesday --
22 yes. Do you have anything else for that week?
23 MS. KORNER: No, he's the only witness.
24 JUDGE DELVOIE: Okay, thank you.
25 Then my second question is: in your last reply, you seem to say
1 that what you're raising now is not only a question for this witness, but
2 is a general attitude you want to take in the future.
3 MS. KORNER: It is.
4 JUDGE DELVOIE: Okay. So it's more than only this witness?
5 MS. KORNER: Yes.
6 JUDGE HALL
7 MR. ZECEVIC: [Interpretation] Your Honour, I will try to be very
8 brief, although there is much on my mind that I would wish to say.
9 Before I proceed with the essence of what I want to say, I wish
10 to express my surprise and to protest, because the insinuation being put
11 forward by Ms. Korner before this Court about the alleged conduct of
12 Defence lawyers are completely unacceptable, and I see absolutely no
13 reason for this, and nor has she put forward any reason, because there is
14 no reason. So I have to use an ugly word, that this is a cheap way of
15 putting forward serious insinuations.
16 Secondly, Ms. Korner has attempted more than once to achieve a
17 dual effect. When a Prosecution witness does not respond in the way the
18 Prosecution would like, Ms. Korner rises and explains to the Court that
19 the witnesses find it difficult to speak openly and sincerely, as they
20 spoke to the OTP previously that they don't want to blame the accused
21 because it's hard for them to do so in the courtroom and so on.
22 Your Honours, in essence, the problem is as follows: All of
23 these witnesses say exactly the same, from A to Z, exactly the same
24 things that they said when they made their statements to the OTP. But
25 the problem is that during the proofing, the elementary, obvious
1 questions were not put to the witnesses. So when we ask them those
2 questions, they answer sincerely and honestly, and then this does not fit
3 into the Prosecution case.
4 As for this particular situation, Your Honours, I will tell you
5 the following: Although Ms. Korner says, quite rightly, that there is no
6 ownership over the witnesses, based on I don't know what rule, they take
7 it upon themselves to prohibit the Defence from seeing the witness.
8 The situation is as follows: The OTP has its offices all over
9 the territory of the former Yugoslavia
10 properly, they should talk to their witnesses perhaps 15 or 20 days in
11 advance, proof the witnesses, and avoid the situation we had with the
12 previous witness, who arrived completely unprepared. The OTP knew he had
13 not listened to his previous testimony in another case, and yet wanted to
14 introduce this witness through 92 ter. This is an unforgivable omission.
15 Now the OTP is prohibiting the Defence from talking to witnesses.
16 These are not insider witnesses. These are all the OTP witnesses whom we
17 asked to interview and who agreed to be interviewed by us. If a witness
18 agrees to be interviewed by us, then this has nothing to do with the OTP.
19 The OTP cannot prohibit the witness from talking to us. That is a
20 fundamental principle.
21 The situation now is that, in a way, the OTP and the Victims and
22 Witnesses Unit can deny us our right to contact witnesses, and that's
23 precisely what they want to do now. This is really unacceptable, and
24 this is why we had to apply to the Trial Chamber for protection.
25 The basis is Article 20 of the Statute and Article 54 of the
1 Statute. I will also refer to decisions by Chambers. In Haradinaj, the
2 Trial Chamber, as regards this very issue, took the position that the
3 Trial Chamber can regulate issues of witness proofing. I have here a
4 large number of precedents from other Courts because I believe it is the
5 duty of the Court to ensure equality of arms.
6 In this case, this kind of behaviour by the OTP is bringing the
7 Defence into an unacceptable situation, and we insist on seeing every
9 Your Honours, I have said this more than once. We have no one
10 else out there on the ground. We only have the people you see here
11 working for us, so physically we do not have a person -- an investigator.
12 The Stanisic team has no investigator. We don't have the funds to engage
14 So there are two options. Either the witness should arrive in
15 The Hague
16 not on Friday? Let the witness come on Saturday morning, and then we can
17 interview him on Saturday afternoon and on Sunday, and Monday morning he
18 can proofed by the OTP. The second option would be for us to take a
19 flight this afternoon, interview the witness on Friday or Saturday
20 morning. Then the witness would fly over here. It's really difficult to
21 understand why somebody would want to cause these enormous and
22 unnecessary expenses. We are not asking for anything unreasonable; two
23 hours only.
24 Secondly, Your Honours, the witness will not be under stress
25 because they're interviewed by us. They are much more relaxed in the
1 courtroom if they know what documents we are going to put to them, if
2 they have seen the documents before, and if we ask them for their
3 responses to these documents.
4 So I really cannot accept any of the arguments put forward by
5 Ms. Korner. None of these arguments hold water. That's why I insist
6 that the Trial Chamber should hand down a decision.
7 I will list the relevant Rules and decisions. The Appeals
8 Chamber in the Tadic case. The Appeals Chamber, IT-94-1-A, of the 15th
9 of July, 1999, where inter alia --
10 [In English] I will say in English:
11 The HRC
12 versus Panama
13 Delcourt versus Belgium
14 In our -- in the Tribunal jurisdiction, the Trial Chamber in
15 Haradinaj stated:
16 "Article 20 of the Statute --" that's paragraph 14 of the
18 "Article 20 of the Statute provides that it is duty of the
19 Trial Chamber to ensure that a trial is fair and expeditious. The
20 Chamber recalls Rule 54 of the Rules, which provides: 'At the request of
21 either party or proprio motu, a Judge or a Trial Chamber may issue such
22 order, summons, subpoenas, warrants, and transfer orders as may be
23 necessary for the purposes of an investigation or for the preparation or
24 conduct of the trial.' Considering that the witness proofing assists in
25 the preparation and conduct of the trial, the Chamber finds that the
1 Rule 54, together with the Chamber's duty to ensure a fair and
2 expeditious trial, give it the discretion to issue an order to the
3 Prosecution on the conduct of the proofing session with witnesses."
4 [Interpretation] I think that I have said everything I had to say
5 about this, Your Honours, and I request that you hand down a decision.
6 Thank you.
7 MS. KORNER: May I just briefly reply to this. First --
8 JUDGE HALL
9 MS. KORNER: Oh, I'm sorry.
10 MR. PANTELIC: I believe, Your Honours, after the break would be
11 the appropriate time.
12 JUDGE HALL
14 --- Recess taken at 10.25 a.m.
15 --- On resuming at 10.56 a.m.
16 JUDGE HALL
17 MR. PANTELIC: Your Honour, on the basis of previous submissions
18 and on the same topic, first of all, I would like to say that there is
19 quite famous internationally-awarded movie from Serbian cinematography
20 called "Marathon Runners Run Victory Lap." And there is a very legendary
21 sentence from that movie, saying "Lucky is a little bit nervous." I
22 really suggest my learned friend Ms. Korner to see that movie. There are
23 very important issues.
24 On behalf of my client, Mr. Zupljanin, during the submission of
25 my learned friend Ms. Korner this morning, I would like to give the
1 information to the Trial Chamber that my client was absolutely and
2 extremely in a very serious mental situation. He was feeling very bad
3 with regard to this issue with witnesses that we are facing here. His
4 impression is that his fundamental rights are infringed and violated by
5 this submission and approach of the Prosecution with regard to the
6 witnesses and all procedures around that issue. So on behalf of my
7 client, I would like to give information to the Trial Chamber that it was
8 not his intention to -- on any way to interrupt proceedings, but his
9 reaction was deeply emotional, and as a human being he was feeling, I
10 would say, very bad. He was feeling very bad this morning when he was
11 following submissions from the Prosecution side with regard to that
13 Your Honours, when we communicated with the OTP with regard to
14 the proofing sessions with witnesses who are to come here, personally I
15 made a suggestion to Ms. Korner that, to some extent, a certain practice
16 should be followed. I suggested that in any event of misunderstanding
17 between parties with regard to the willingness of the witness to speak
18 with the Defence, I simply said, Ms. Korner, no problem, let's call from
19 your office Witness X, Y, Z, in the presence of one of the members of
20 Defence and in the presence of OTP representatives, of course, and let's
21 ask them very clearly, Do you want or do you -- or you won't see
22 witnesses before coming here for testifying? And if you want -- whether
23 you want to be in the presence of the member of OTP or in the presence of
24 your assistance, or et cetera, et cetera, it's very clear. I never gave
25 the answer from the OTP with that regard to follow that practice. And
1 let me tell you why we came to this situation.
2 We came to this situation because, Your Honours, what we see here
3 as a defence in our relations with the OTP, we see that the OTP is always
4 trying to, I would say, muddy the water. They are manipulating. They
5 have certain actions around -- specifically with regard to the witnesses.
6 They informed us -- for example, they informed us that witness doesn't
7 want to contact us, and at next stage they inform us that witness would
8 like to contact us in the presence of OTP, and then again something else.
9 And that's why we want to have clear rules, and I agree with the position
10 of the Trial Chamber that we have to discuss between parties these
11 issues, but obviously it is not possible because of lack of co-operation
12 of the OTP.
13 So why we are here at this stage? I would like to inform this
14 Honourable Trial Chamber that OTP has opportunity to speak years before
15 with all their witnesses. For various reasons, Defence was not in that
16 situation. And the only way where and when we could contact witnesses
17 here in The Hague
18 any witness who came here who can say that he was under certain pressure
19 from the part of Defence or that he or she was unable to give a truthful
20 and full evidence before this Trial Chamber due to certain reactions of
21 the Defence in this proofing procedures. On the contrary, Your Honours,
22 our witnesses are coming from a different legal system. They have
23 impression that they are not allowed to speak with the other party who's
24 not calling them. And then during all these contacts with them, we are
25 simply explaining that they are not officially -- I mean, they were
1 called by OTP, but they are a witness of this Court, they are a witness
2 of justice, they are a witness of the -- I would say, this attempt to
3 find the truth. And after that explanation, they are relaxed.
4 In addition, Your Honour, to show what is the practice of OTP
5 with regard to the witness, we -- as you well remember, we got here a
6 witness, Scekic. I don't know his first name. He was testifying here
7 weeks before. Milan
8 they call him in capacity of suspect. When -- and we have everything in
9 the records, in the statements. And when he asked OTP, Could you tell me
10 why I'm suspect, for which alleged charges? And do I have to find a
11 lawyer? They said, Yes, you must find lawyer, but we cannot tell you on
12 which basis you are calling, et cetera. And on the next occasion, they
13 told him that he is not a suspect, but rather he is witness. So this way
14 of, I would say, pressure on the witnesses, especially insider witnesses,
15 from the part of OTP is really dangerous, and they are not feeling
16 comfortable. And we see, from previous statements, the way how the OTP
17 is acting with the witnesses. The members of OTP team are police
18 officers, and they are really perform this police duty very hard and very
19 harshly. They are pressing witnesses, you know, they are really
20 interrogate them, and the witnesses are very uncomfortable and fearful,
21 and their mental state is not proper. And these kind of statements are
22 really far from being objective and truthful. But this is a matter for
23 other revelation.
24 Your Honours, I would just like to make, in addition to my
25 submission, a few remarks of the relevant case law with that regard.
1 First of all, we have -- we have here, in Tadic judgement - it's
2 paragraph 52, and I will quote:
3 "As to the scope of the application of the equality of arms, the
4 Chamber found that the Prosecution and the Defence must be equal before
5 the Trial Chamber and that the Trial Chamber should provide every
6 practicable facility it is capable of granting under the Rules and
7 Statute when faced with a request by a party for assistance in presenting
8 its case."
9 In addition to that, we are relying on a case Limaj, then
10 Milutinovic, then ICTR Appeals Chamber decision in Karamela [phoen], and
11 my learned friend also mentioned Haradinaj and Tadic.
12 So in conclusion, Your Honours, we, as Defence, have a very, very
13 serious situation now. In addition to that, our clients are absolutely
14 shocked with this practice of the OTP. And I would like to say that on
15 the basis of the fundamental principles enshrined in the Statute and the
16 other regulations of ICTY, as well as the International Law rules, we
17 think that the practice of this Prosecution team, with regard to the
18 treatment of the Defence and with regard to the aggressive approach
19 towards witnesses, is absolutely unacceptable, unfounded, and directly in
20 contradiction with the interests of justice and a fair trial.
21 Thank you so much, Your Honours.
22 MS. KORNER: Your Honour, before I deal with some of the issues
23 raised, can I deal with one matter.
24 Mr. Zecevic asserted that we knew that Mr. Mandic had not
25 listened to his interview before we were going to call him under the
1 provisions of 92 ter. That is to suggest that we were trying to
2 deliberately -- going to mislead the Court when we called him. I'm
3 taking it charitably that Mr. Zecevic said that in the heat of the
4 moment, but it is a serious allegation, and I would like to have it
5 withdrawn. I explained yesterday, both in the proofing note and to
6 Mr. Zecevic, that on no less than three occasions, Mr. Mandic told us he
7 had listened to the interview. So, therefore, before I continue, I would
8 like that allegation withdrawn.
9 MR. ZECEVIC: Your Honours, in the meantime we received the
10 statement of Mr. Mandic, and I withdraw the allegation. Thank you.
11 MS. KORNER: Well, Your Honour, I would -- can I say I'm fairly
12 appalled that it takes the statement of Mr. Mandic, which I -- in fact, I
13 did not intend to go to Mr. Zecevic until I had dealt with this for him
14 to withdraw that, rather than taking the word of counsel, and I am
15 somewhat upset by that.
16 MR. ZECEVIC: No, I take the word of counsel. That is beyond
17 any -- Your Honours, the point of the matter is that the witness, in his
18 statement, acknowledged that he, himself, brought the Prosecution into
19 the opinion that he has listened to the tapes. That is what I was
20 referring to. And, of course, I believe the counsel's words.
21 MS. KORNER: I'm sorry. That's the whole point, is that I told
22 Mr. Zecevic and I told the Court that we had been told by Mr. Mandic that
23 he had listened to it. And Mr. Zecevic this morning, before he received
24 the statement of Mr. Mandic, asserted that I was telling lies to the
25 Court. And I'm sorry that Mr. Zecevic didn't feel in a position to
1 withdraw that allegation, which up until now, I charitably assumed was
2 said in the heat of the moment.
3 MR. ZECEVIC: I'm sorry, I withdraw the allegation, Your Honours.
4 It's on the record.
5 JUDGE HALL
6 Now could we return to the present matter?
7 MS. KORNER: Your Honour, in addition, Mr. Pantelic seems to be
8 suggesting that we have behaved improperly when we have contacted the
9 witnesses who the Defence have said that they wish to speak to. One of
10 the problems with the suggestion that he makes, that there should be a
11 joint phone call, is that it puts the same pressure on witnesses, which
12 is our complaint. At no stage have the witnesses ever been asked
13 anything by the investigator who contacted them a simple question, Are
14 you willing to speak with the Defence? If yes, Do you wish to have
15 someone from the Prosecution there? That's all. In fact, in all cases
16 where the witnesses have agreed to speak to the Defence, only in one case
17 have they asked for the Prosecution to be there. And, therefore, I
18 refute the suggestion of impropriety made by Mr. Pantelic.
19 Your Honour, however, can I deal with the gravamen of what has
20 been said.
21 It is not necessary for Your Honours to consider the human rights
22 cases or the previous cases in this Tribunal on this issue. There is
23 absolutely no dispute and no intention on our part to say the Defence are
24 not entitled to interview witnesses. Our complaint, and why it's being
25 raised now, is the timing.
1 It is our experience, and we suggest it may well be the Court's
2 experience, that the witnesses are experiencing pressure as a result of
3 the system which has grown up and which, to my knowledge, there is not
4 being -- it is not being followed in any other case which is going on in
5 this Tribunal, that immediately before a Prosecution witness is seen by
6 the OTP, they are seen, sometimes at length, by the Defence. And that is
7 the gravamen of our complaint.
8 Mr. Zecevic says, We have no investigators. Well, Your Honours,
9 that's a matter for them to decide upon. They have a budget for
10 investigators, like every other Defence counsel representing accused in
11 this Tribunal. If they choose not to use the budget of the
12 investigators, well, then it's a matter for the lawyers to see these
14 Mr. Zupljanin, on the other hand, to our certain knowledge, has
15 at least two and, I think, possibly three investigators who are able to
16 interview these witnesses in advance.
17 Your Honours, all these witnesses, the ones who have been --
18 being interviewed by the Defence, have all been notified for some time.
19 There's been nothing to stop the Defence, as I say, provided they let us
20 know and provided the witnesses agreed, to them carrying out these
21 interviews. And I say, again, our only complaint is that they're all
22 being carried out immediately before they testify.
23 Your Honours, the only witnesses to whom this does apply, I think
24 with one exception, are the insider witnesses. There's no request to
25 interview, as I say, with one exception that I recall, any of the
1 non-insider witnesses, and there must be a reason for this.
2 So, Your Honour, all we're saying is this: That we would like
3 the witnesses, if they have agreed to be interviewed, to be interviewed
4 in advance of when they come to testify. And the Defence know the order
5 is subject, obviously, to changes that sometimes happen, in which they're
6 coming. That's all. We're not trying to stop the Defence at all.
7 Your Honours, in respect of the coming witness, Your Honours
8 having worked out the timing, if Your Honours say that we should give the
9 Defence access because of the particular circumstances, that he
10 apparently changed his mind at the last moment, well, then, Your Honours,
11 we are -- we've tried to work out how long it will take so that he isn't
12 absolutely exhausted. We'd have to ask Your Honours not to sit until
13 Tuesday. That's the reality.
14 Your Honours, that's all I want to say on the matter.
15 JUDGE HALL
16 So you had something to add, Mr. Pantelic?
17 MR. PANTELIC: Yes, Your Honour, very briefly.
18 Your Honours, for the record, Ms. Korner, as the chief of this
19 Prosecution team, is trying to manipulate and to exercise unacceptable
20 practice and standard, so-called property of witness, and the owner of
21 witness should be OTP. Your Honours, I'm firmly -- I'm firmly based to
22 the following: We want to speak with witness before he come to testify
23 here, and let the witness be allowed to say to us, I'm tired, I don't
24 want to see you, I don't want time. It is not the role of the
25 Prosecution to put the words in the mouth of witness. That's a
1 manipulation, Your Honour. That's why we want everything to be
2 transparent and to hear from witness what they want to say to us, and if
3 they have 15 minutes, half an hour, or hour, to see us. If they are here
4 in these proofing sessions to be 24 hours for the needs of Prosecution,
5 it is absolutely the right of the Prosecution, in agreement with the
6 witness. But let's hear from the witness, what he or she would like to
7 say. That's the point, Your Honour. We want to be heard by witness on
8 that issue, and they are not responding to our constructive proposition
9 to call them before from their office. No answer from that side.
10 So, Your Honours, and in addition, with regard to the submission
11 of the possibility that members of the Defence team are able to contact
12 witnesses, no problem at all. Yes, yes, we have that option, and we
13 are -- as practicable, we are doing that. But here, two counsels are
14 here, and we want to have a final short meeting with the witnesses to go
15 through certain important documents; not all, but just what is important
16 for our case.
17 So you would agree with me there are differences between members
18 of Defence team and investigators and the counsels, so the role are
19 quite, quite different.
20 Thank you so much.
21 [Trial Chamber confers]
22 JUDGE HALL
23 scheduled to come on Monday from the general concern which counsel have
24 expressed, and dealing with the matter of the particular witness, the
25 basal principle, of course, as counsel from both sides have said, is
1 that -- principles, are that: A, there is no property in witnesses; and,
2 B, it is up to the witness to determine whether he or she agrees to be
3 seen by the other side before his testimony in court. The mechanism, we
4 think, is that it should be through VWS that such communication that a
5 witness may have as to his willingness is made. And in respect of this
6 witness, the witness's answer to that question would, of course, be
7 determinative of what happens here.
8 In any event, having regard to the flexibility that we have for
9 other reasons, in terms of next week, the timing of next week, we think
10 it appropriate that the witness is not called until the Tuesday sitting,
11 which I believe is scheduled for the morning. So when we rise today, we
12 would adjourn until Tuesday morning.
13 As regards the broader principle as to how these matters are
14 addressed, the details into which counsel on both sides have gone
15 emphasizes the reservation that I expressed at the beginning, that the
16 Court is being called upon to make, as I understand it, a broad ruling
17 which is impractical because it cannot take into account all of the
18 variables that come into play in these matters. Nevertheless, accepting
19 what counsel on both sides have indicated is the, I suppose for want of a
20 better expression, supervisory responsibility in this regard, which the
21 Court can exercise under Rule 54, and as Mr. Zecevic has indicated, it is
22 a problem which is likely to recur, it is our suggestion that a first
23 step in mapping out the way forward is that without requiring counsel on
24 either side to engage in the formalities of written motions, it would be
25 useful, in our view, and we invite counsel to do so, if counsel would
1 meet and set down their concerns. For instance, what appears to be
2 common to both sides is this matter of the inconvenience and costs of
3 either bringing a witness to The Hague too many days in advance of the
4 scheduled date for his testimony or having to travel to the region to
5 interview him, but these are facts with which the parties have to deal in
6 the context of the existence of this Tribunal physically situated in
7 The Hague
8 the other concerns which counsel have articulated, it would, in our view,
9 be useful if counsel could arrange to meet, settle the concerns, and that
10 exercise would, we expect, reveal the matters which are -- in which
11 there's agreement and with which the Court need not further concern
12 itself. And if that having been done, it appears that the Court can
13 usefully, for future guidance, formulate a -- I'll borrow Ms. Korner's
14 words, "opinion," I believe she said, then we would consider doing so.
15 But we emphasise that the first step would be for counsel, in an
16 out-of-court exercise, to identify the areas of concern which this
17 problem seems to have thrown up.
18 Anything to add?
19 JUDGE DELVOIE: If I may add, it will certainly be more
20 productive to put on this little fire water rather than fuel. Thank you.
21 JUDGE HALL
22 adjournment to 9.00 on --
23 [Trial Chamber and Registrar confer]
24 JUDGE HALL
25 Tuesday, thank you.
1 Have a safe weekend. Thank you.
2 --- Whereupon the hearing adjourned at 11.28 a.m.
3 to be reconvened on Tuesday, the 30th day of March,
4 2010, at 9.00 a.m.