International Criminal Tribunal for the Former Yugoslavia

(Open Session)

Page 2

1   (10.40 a.m.)

2   THE PRESIDING JUDGE [Original in French]: First of all, I ask if everybody hears; is the

3   interpretation going through? Prosecution? Defence? Does everybody hear me?

4   MR. KEHOE: Yes, your Honour.

5   THE PRESIDING JUDGE: General Blaskic, do you hear? My colleagues? The assistants?

6   The Registrar?

7   THE ACCUSED BLASKIC [Original in Mother Tongue]: Yes, I can hear you, your Honour.

8   THE PRESIDING JUDGE: Would you please call the case?

9   THE REGISTRAR [Original in French]: We are dealing with case IT-95-14-T, General

10   Blaskic, rather, the Prosecution against General Blaskic.

11   THE PRESIDING JUDGE: Thank you. Who represents the Office of the Prosecution?

12   MR. OSTBERG: I am Eric Ostberg. I appear today with Mr. Gregory Kehoe and Miss Sama

13   Payman as our legal assistant.

14   THE PRESIDING JUDGE: The Defence? Do you not hear? There seems be a problem with

15   the equipment. Do you hear now?

16   MR. HODAK [Original in Mother Tongue]: Yes, thank you.

17   THE PRESIDING JUDGE: Who represents the Defence? Who is representing the Defence?

18   Mr. Hodak, would you rise, please?

19   MR. HODAK: Zvonimir Hodak, lawyer from Zagreb, is representing General Blaskic. Thank

20   you.

21   THE PRESIDING JUDGE: Thank you. Today we are meeting in a hearing which has to do

22   with the preliminary motion which was filed by the Prosecution for non-disclosure of the

23   identity of the victims and the witnesses. First of all, this morning the Tribunal has

24   received from the Prosecution a request for a hearing in order to establish whether there is a

25   conflict of interests between Mr. Hodak and his current client, General Blaskic, and

26   another client who might be a client anyway, and who might come to the Tribunal, Mr.

27   Aleksovski.

28   First of all, I would like to turn to Mr. Hodak and ask him whether he has

29   received the motion from the Prosecution. That is the first question. The second question,

30   to explain something about it; if not, we will discuss the issue later on? I now give the floor to Mr. Hodak.

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1   MR. HODAK: Your Honour, the motion regarding the conflict of interests between General

2   Blaskic and the accused Aleksovski is a motion I received five minutes ago, but I have

3   succeeded in reading it. I understand the intentions of the Prosecution with regard to this

4   motion, and I can also state my opinion as regards this motion today. If you like, I can do

5   that immediately, as you know.

6   THE PRESIDENT: Thank you. We will deliberate on that subject.

7   (The learned Judges conferred)

8   The Tribunal has decided that in so far as the motion was presented to Mr.

9   Hodak and that he has agreed to discuss it immediately, the Tribunal feels that the

10   discussion should take place immediately. Therefore, I will give the floor to the

11   Prosecution who will develop his opinions after which Mr. Hodak will respond. Then we

12   will deliberate on this issue probably right afterwards.

13   MR. KEHOE: Good morning, your Honour. The Prosecutor has filed this motion, not to

14   interfere with General Blaskic's choice of counsel, but really to clear up and to have the

15   court understand, as well as Mr. Blaskic understand, any potential areas of conflict of

16   interests that may exist between Mr. Hodak and his client, General Blaskic, and any other

17   of the defendants that are listed in the Prosecutor's motion.

18   At the outset of these proceedings, I have to note that Mr. Hodak informed the

19   Prosecutor some time ago that he represented all of the indictees that are listed in the

20   Prosecutor's motion. This was prior to Mr. Blaskic's initial appearance before this court.

21   There were likewise indications that there were some other entity or entities that

22   were paying Mr. Hodak's legal fees, entities other than General Blaskic or the respective

23   clients listed in the Prosecutor's motion. The Prosecutor's position is simply this. If Mr.

24   Hodak is representing all of the defendants listed in the Prosecutor's motion, there could be

25   a potential area of conflict, for the example that we set forth in our motion is a quite simple

26   one and I am sure that the Tribunal can think of many areas of potential conflict.

27   The simple one set forth in the Prosecutor's motion is, could a situation present

28   itself where Mr. Hodak in cross-examining a witness on behalf of Mr. Blaskic could

29   develop information that could be helpful to General Blaskic and could hurt one of his

30   other clients? That is a dilemma that attorneys and trial attorneys face all the time when

31   they are in a potential conflict area.

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1   A second situation set forth in the Prosecutor's motion is simply an extension of

2   the first, that is, that with regard to the payors of legal fees would the development of

3   information which may help General Blaskic during the course of the presentation of the

4   defence be injurious or somehow not helpful to the payor of fees? That is the conflict of

5   interest based on the information currently in the possession of the Prosecutor.

6   The solution that the Prosecutor offers is this, preliminarily, General Blaskic

7   understands the potential areas of conflict, that he understands that there is some

8   possibility of conflict. At that juncture, once General Blaskic understands the nature of

9   the conflict or conflicts, there are two at least (and there could be others) other modes or

10   ways we could solve the problem. 1, General Blaskic could opt, as he has the right to do

11   under the Statute, for counsel of choice. Is another counsel free of any conflict of interest?

12   The other option is for General Blaskic to inform this court that he understands the nature

13   of the conflicts, that he understands the possibility of that conflict, that he understands

14   that under certain circumstances, given the multi-representation of clients or given the third

15   party payor of legal fees, that a conflict might present itself and General Blaskic could opt

16   to say, "I waive that conflict of interest".

17   If General Blaskic convinces this Tribunal that he understands the nature of that

18   conflict and that his waiver of that conflict is a knowing one, certainly he can select and

19   opt to continue with Mr. Hodak as his counsel. As I set out in the motion, I do not intend

20   to say that this is the only way that this problem could be resolved. I felt with Mr.

21   Ostberg that it was incumbent upon the Office of the Prosecutor to bring any potential

22   conflict to the attention of the Tribunal so it could be resolved as expeditiously as

23   possible. In a shorthand version, the comments that are set forth in the Prosecutor's

24   motion, that is, the nature and extent of the Prosecutor's argument.

25   THE PRESIDING JUDGE: Thank you, Mr. Kehoe. Turning now to Mr. Hodak. You have

26   spoken about this with your client. What is your opinion? Then we will ask the General

27   for his opinion and will also give its opinion and will issue an order afterwards.

28   MR. HODAK: Your Honour, I have not discussed this problem with my client yet because, as

29   I have said, I received the motion in writing some 10 minutes before these deliberations

30   started. I have read it and I fully understand what the Prosecution means by it. As my

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1   learned friend of the Prosecution already said, it is a hypothetical question, what could

2   perhaps happen in this case.

3   However, I do not see any specific reason for this view of the Prosecution, all

4   the more so as all the six of the accused are covered by one indictment, so even though

5   there are factual differences and perhaps some nuances as to their legal qualifications, yet

6   there is one indictment covering six persons. It is their right to choose their counsel at their

7   discretion because no rules, no rule of the Tribunal says that one law cannot defend several

8   accused.

9   May I be permitted to mention some facts which may not be known to the

10   Prosecution? When the six accused on this indictment, when I received it, I set up a group

11   of 10, that is now

12  , lawyers from Croatia and Bosnia-Herzegovina. We distributed the

12   work among us and each of the accused will have two counsel defending them. Mr.

13   Aleksovski has two official lawyers, Mr. Igor Hrabar and Mrs. Ramisic(?). They are two

14   criminal lawyers from Zagreb and they will be representing Mr. Aleksovski before this

15   Tribunal.

16   Of course, when Mr. Aleksovski becomes available to the Tribunal, when he

17   comes to The Hague and appears before the Tribunal, then his counsel will show their

18   academics to the Tribunal, rather, to the Registrar of the court.

19   I am the co-ordinator of that group of the lawyers and after all I was the first

20   one to come here to The Hague. I will be helping my colleagues to find their way about,

21   but I shall not be specifically participating in the defence of Mr. Aleksovski before this

22   Tribunal or any other of the accused under this indictment.

23   Therefore, I see no reason why because of something that could happen and has

24   not happened, why do we then have to discuss the conflict of interests? Because, to my

25   understanding, the conflict of interest is something to be discussed when it does occur, or

26   when the indications that it might occur are very clear, and when they show that the

27   conflict is looming on the horizon.

28   However, we still have no indications that there might be such a conflict of

29   interest. All the more so when Mr. Aleksovski is not yet under the jurisdiction of this

30   Tribunal. He has not been extradited to The Hague and the same holds true of the four

31   other accused who are also represented by this team of lawyers and who will, each of

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1   them, have a different pair of counsel other than myself and Mrs. Pedisic who are

2   representing this accused.

3   So I do not think that there is a case of conflict of interest. I believe we have

4   solved the question of the protection of the interests of the accused in the best possible

5   way, as none of the lawyers will appear on any other case on this indictment. I, therefore,

6   suggest that the Trial Chamber does not go along with this motion of the Prosecution, and

7   not to think about things that might happen possibly but there is no indication that they

8   will indeed happen. Thank you very much.

9   THE PRESIDING JUDGE: Thank you, Mr. Hodak. General Blaskic, would you please rise

10   and share any opinions or observations you would like to make with the Tribunal, having

11   to do with the issue of your defence and the co-ordination? I would like you to

12   be sure to understand, General Blaskic, that the petition of the Prosecution is intended for proper

13   conduct of the trial, and the Prosecutor correctly is concerned about the fact that if there

14   are other accused arrested and then appear here at the international Tribunal for the

15   Defence as well as for the accused, and yours too since you are already here, to be sure

16   that there is no sort of conflict of interest which in the end would be harmful to you. I

17   explained what I mean by that.

18   If, in fact, in a case file -- I am speaking in general terms -- which is any type of

19   criminal case, no matter what country or legal system we are talking about in the world, if a

20   lawyer represents all the accused who have been accused in a specific case, a criminal case,

21   that is, it is not impossible but, generally speaking, in all systems at a given time, at one

22   point, the Defence of one of the accused, say, accused A, supposes that the exposition of

23   certain number of facts will not be quite the same as those elements that the accused B

24   would like to present, and for that reason the lawyer may not only be bothered, but what

25   is more important than that is that the defence of one or the other or both of them will be

26   in contradiction, one with the other, and the accused or accused persons will not be well

27   and properly defended according to the rules of proper ethics.

28   This is a problem which the Prosecutor has been interested in. In order to

29   summarise his words, he was not saying that there was a conflict of interest, nor did your

30   lawyer; your lawyer said that it was premature and he explained that for the time being he

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1   was your lawyer who was appearing and was the one who was co-ordinating all of the

2   people involved in the case.

3   I have explained this to you. Now that you have understood what is the reason

4   that the petition from the Prosecutor was filed before the Tribunal, I would like, as well as

5   my colleagues, to have your opinion on this issue. I give you the floor, General Blaskic.

6   Did you understand what I have just said to you?

7   THE ACCUSED BLASKIC: Your Honour, I wish to tell you that I have not received that

8   motion and have had no opportunity to discuss it with my lawyer. Nevertheless, I wish

9   to mention that Mr. Hodak and Mrs. Pedisic, my lawyers, submitted their documents and

10   they are representing only me here which means that, as far as I understand it, they are not

11   representing other accused under this indictment. What Mr. Zvonimir Hodak has said so

12   far meets with my full support and, as regards the fairness of the trial, I have voiced my

13   opinion during my first appearance here and that I expect this Trial Chamber to uphold

14   this fairness and give proof of it. I have nothing else to say.

15   THE PRESIDING JUDGE: Thank you. The trial will render its decision. I think that there is

16   no particular urgency in this matter. If at first one is to deal with this issue which has been

17   presented today, one could think that if General Blaskic had had a different opinion from

18   the one he has just expressed, that might have meant that the hearing would have to be

19   suspended to see whether we would have to deal specifically with this issue of protection

20   of witnesses and victims a little bit later on.

21   I do feel that the petition, first of all, was something which was desirable and I

22   thank the Prosecution for having raised the issue. I believe that even if we are in a legal

23   system which is more a common law system -- you may be seated, General Blaskic, excuse

24   me -- I believe that it is also very important for the Tribunal, which is the guardian of the

25   equity of the trial and the great principles which it represents, to be sure that everything is

26   handled under proper form.

27   From that point of view, I would again like to thank the Prosecution for having

28   raised this issue. We are recording for the record Mr. Hodak's response, but, first, I would

29   just say that Mr. Hodak is the co-ordinator of this trial which does, in fact, include other

30   accused who are not here. I would also like to point out that he will not be the attorney

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1   representing the other accused whom we are expecting and other possible accused who

2   might later on be deferred to the International Tribunal. This must be in our minds.

3   However, I would also like to point out that there might be at some point a

4   conflict of interest. The conflict, I would like to point out, is an issue which is something

5   not perhaps raised by the Prosecutor but the Tribunal would raise the issue, and for the

6   time being the Tribunal considers that it is premature to solve and to rule on this issue and

7   cannot be become involved in the choice of attorneys of General Blaskic, who for the time

8   being is the only one appearing before the court in this case.

9   Having said this, the Tribunal will be vigilant at any given point in the future

10   during these proceedings. If there were to be any kind of conflict of interest, there would

11   be a solution as proposed by the Prosecution or another one which we ourselves would

12   decide on. We will be careful in what we say and what we do, if we write separate

13   opinions or if we remain with a transcript as recorded by the Registrar. I will talk about it

14   with my colleagues. Having to do with the request for non-disclosure of victims and

15   witnesses, the Tribunal will decide.

16   For the time being, however, I feel that these proceedings must go on, according

17   to the agenda, with Mr. Hodak representing the Defence and, of course, we will

18   immediately now turn to the preliminary motion which was presented by the Prosecution

19   for non-disclosure of the identity of victims and witnesses.

20   The request was presented by the Prosecutor and this is why I am now going to

21   give the Prosecutor the floor immediately for him to explain the reasons for his petition.

22   The Registrar has pointed out to me up to this point this is a public session, and I would

23   like now to give the floor to the Prosecution. If there are any points which could only be

24   expressed very quickly, we would discuss that. For the time being, however, this is a

25   public hearing until such time there is a decision to the contrary. I now give the floor to

26   the Prosecution.

27   MR. KEHOE: Thank you, your Honour. I appreciate that this is a public hearing at this

28   juncture. Mr. Morro informed us of that prior to the session opening and I will guide my

29   comments accordingly.

30   The application for the Prosecution is an application under Rules 72, 69 and 75

31   for the non-disclosure of the identity of witnesses that were part of the supporting

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1   material that was given to another panel pursuant to the Court's rules when the indictment

2   was confirmed. As your Honours know, under Rule 66(A) the Prosecution must turn over

3   to the Defence those statements or those items used in support of the indictment at the

4   time of confirmation.

5   The situation that we have, your Honours, is quite simple and it is laid out in

6   my motion and I will not repeat everything that is set forth in the motion. But the reality

7   of the situation on the ground in central Bosnia has made it very difficult for us to disclose

8   the identity of the names of those witnesses. Numerous witnesses, and we have been back

9   recently, as I mentioned during our last hearing, many, many of those witnesses still live in

10   the general location. There are significant hostilities taking place still in central Bosnia

11   between HVO territory and Bosnia and Herzegovina territory.

12   As a consequence of those hostilities, there have been various incidents of

13   violence against potential witnesses and other Muslims in the area. As a result of that,

14   giving the witnesses' names over to anyone at this juncture would be extremely detrimental

15   to those witnesses and place them in extremely precarious situations. The reality of the

16   situation in central Bosnia, your Honours, is that no-one can protect those witnesses.

17   We will bring a witness to this court at the request of the court, if the court so

18   desires, to develop exactly why they cannot protect these witnesses, but suffice it to say

19   at this point, your Honours, that these witnesses cannot be protected.

20   Given that fact, the only alternative on the part of the Prosecution is to move

21   for this motion. It would be much easier for the Office of the Prosecution to give as much

22   information as possible to Mr. Hodak. It would make it much easier on us

23   administratively, it would make it much easier on us legally and, naturally, it would make it

24   much easier on this Court to do the same. It would make it easier legally and

25   administratively. However, we simply cannot for the reasons set forth below. We are in

26   those exceptional circumstances contemplated by Rule 69 when we come to this court and

27   ask for an order preventing the non-disclosure of the identity of these witnesses.

28   I propose a remedy to your Honours at this point and this, hopefully, will

29   safeguard these witnesses and also assist the Defence in the preparation of the defence, and

30   that is to give these statements to Mr. Hodak in their redacted form so he can begin his

31   defence and to take those statements on a case by case basis after Mr. Hodak has an

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1   opportunity to discuss them to see if he needs any more material from that particular

2   statement.

3   I also must keep in mind that in addition to the statements that we intend to give

4   over, or want to give over in a redacted form, there are several witness statements that we

5   would propose because of the serious situation involving those specific witnesses that

6   those statements cannot be turned over at all.

7   What we have at this point, your Honour, quite simply, just to summarise what

8   we have on our motion, is almost 100 witnesses used in support of our indictment whose

9   identities, because of what is going on in central Bosnia, preclude the Prosecution from just

10   turning these names, addresses, identities over to the Defence without the appropriate

11   safeguards.

12   We feel, your Honour, based on what we have set forth in our motion

13   concerning the situation in central Bosnia and what continues to go on regarding the

14   hostilities against particular witnesses and/or Muslims in central Bosnia, this qualifies for

15   exceptional circumstances that merits the relief of this Court. Thank you.

16   THE PRESIDING JUDGE: Before I give the floor to Mr. Hodak, Mr. Kehoe, when I have

17   read your application, it seems that first you asked that there be a hearing, whether ex

18   parte, in camera hearings, having to do with this. Have you given up on that request?

19   MR. KEHOE: No, your Honour. I did not give up on that at all. If your Honour wants a

20   witness by witness accounting of the status of all of these witnesses, the Prosecution is

21   prepared to do that, an in camera ex parte hearing. I am prepared to go through the names

22   of all theses witnesses with your Honours and prepared to inform the court of what the

23   individual situation is with each witness. The Prosecutor would request that any such

24   information be passed to the court in an ex parte in camera session.

25   THE PRESIDING JUDGE: All right then. In summary, before I give the floor to Mr. Hodak,

26   I would like to summarise what you have said for the time being. You have said in public,

27   and that you have proposed a kind of solution, that these expurgated statements that you

28   would supply bit by bit to Mr. Hodak which would allow him both to prepare his defence

29   and to know, because we must not forget that this is something that was said, and to say

30   that Mr. Hodak can file preliminary motions himself.

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1   For the time being, we are talking about the ex parte in camera hearing. I would

2   like, therefore, to turn for the opinion of the Defence and ask what his opinion was or is

3   about what the Prosecution has just stated.

4   MR. HODAK: Your Honour, the Prosecutor has said that the hearing on the Rule 69 is going

5   to take place. I just want to mention that there is a subrule (B) which refers to Rule 75

6   where it is said that the Defence must have enough time in this case where the protection

7   of witnesses is requested to prepare the defence. If we have approximately said (and we

8   have said and we have heard here) that the hearing for General Blaskic could start in July of

9   this year, then in this case I am asking how would we have enough time, first of all, to

10   prepare the defence, taking into account the approximate account of 100 witnesses that the

11   Prosecution has announced; also how will we have time to give preliminary objections for

12   certain statements of the witnesses?

13   Today as I was coming to this Tribunal, in the hall, on the bulletin board, I saw

14   the name of three Muslim witnesses which will be heard in the case of Tadic. Their full

15   name and last names are indicated on the board. I am interested in the following, whether

16   the application of Rule 69 means the protection of the witnesses only until their arrival to

17   the court, or whether this protection extends even after they given the statement before the

18   court.

19   If, in the case of Tadic, the names of the witnesses can be publicly announced on

20   the bulletin board, then I do not understand, taking into account certain rules and

21   responsibilities, why would not the Prosecution be able to give the Defence the names of

22   the witnesses so that the Defence could properly prepare for this trial?

23   Last week, in accordance with Rule No. 63, we have told the Prosecution that

24   we are at their disposal to negotiate with the Prosecution team and have General Blaskic

25   answer certain questions. So far it has been a very flexible proceedings. General Blaskic

26   on his first appearance at this Court said that he has nothing to hide; he would be very

27   open and co-operate both with the Prosecution and the Tribunal. I think the Prosecution

28   was quite satisfied with this discussion last week. I think that this discussion should be

29   continued this afternoon, but I do think that we will have certain difficulties because we

30   cannot open our defence and present our defence and answer all of the Prosecutor's

31   questions without at the same time having from the Prosecution released, if not the names

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1   and identities of the witnesses, then at least their social status and the situation in which

2   their statements are to be given.

3   I cannot understand that a simple peasant or a soldier or a citizen of central

4   Bosnia that needs to appear before this Tribunal can have any problems because of

5   appearance before this Tribunal. I know that the Prosecution has also Generals and high

6   government officials as witnesses. Those people are not considered witnesses that need

7   protection because just by the fact they are taking this position, they have with it a certain

8   risk. I would propose that we at least be released the names and last names of such

9   witnesses.

10   I know personally that a person who has a status of a General in the Bosnian

11   Army and that is proposed to appear as a witness before this Tribunal; such a person

12   should not receive a protection of this Tribunal because this person is a General in an army

13   and if that person knows something, the duty of that person is to come here and say what

14   that person knows.

15   This is why at this moment our defence is in a bad position because we cannot

16   give quality answers to the questions of the Prosecution which we our obligated to give

17   based on Rule 63. We also cannot prepare a quality defence that should be presented to

18   this Trial Chamber.

19   Therefore, I suggest that this Tribunal carefully reviews and gives a just

20   consideration both to the rights of the Prosecution and the Defence, because the Defence

21   must know what the Prosecution is going to present in order to design a strategy that will

22   be presented to this Trial Chamber. We cannot prepare if the Defence does not know the

23   legal status or the social status of the witnesses or the circumstances that these witnesses

24   will bring up before this Trial Chamber. This would put the Defence in a fairly bad

25   position and I ask this Trial Chamber to take this into account. Thank you.

26   THE PRESIDING JUDGE: Mr. Hodak, I would first like to turn to the Registrar. There must

27   be a whole set of documents which, according to the schedules we set up during the last

28   status conference, were supposed to be translated and made available to the Defence.

29   Turning to Mr. Marro, could you give us some information about this?

30   THE REGISTRAR: Your Honour, we are respecting the schedule, because the first delivery

31  of the translations was supposed to come on 15th June. Mr. Hodak received a set of

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1   documents having to do with these testimonies except for four which will be given to him

2   this week.

3   THE PRESIDING JUDGE: The commitment of the Registrar has been met. Now I am

4   asking, have these been redacted? Are the witnesses identifiable? How are they? What

5   are they like?

6   THE REGISTRAR: As far as I can remember, I do not think that these testimonies deal with

7   the witnesses that we are talking about today. Therefore, these are not really the identical

8   testimonies and I think that we are not talking about the 100 witnesses that the

9   Prosecution has just referred to.

10   THE PRESIDING JUDGE: Turning to the Prosecution, these are testimonies and documents

11   which are important for the Defence, but which do not represent the case file of the

12   testimonies. If you say "yes", I would also like to ask you another question, when will

13   you be able to give the testimonies? I am now speaking about the expurgated ones which

14   may be filed. Later on we will see whether the Defence will have them.

15   As far as the delivery is concerned, having to do with the commitments of the

16   Registrar, these are deliveries which really do not deal with the testimonies themselves?

17   MR. KEHOE: Your Honour, the answer to your preliminary question is "yes". Those were

18   not the documents that Mr. Morro was just referring to. He is correct in saying that they

19   are not the subject of these witnesses. Mr. Morro is correct in that regard. Concerning the

20   redacted statements that we are discussing today, we would be prepared to start handing

21   those over to Mr. Hodak this week. As soon as possible we will begin to redact them and

22   hand them over, keeping in mind that it is to the interests of the Prosecutor as well as to

23   the Defence and to the court naturally to hand over as much as possible.

24   On a separate note, your Honour, I do not understand with all due respect to

25   my learned colleague, how that bears on the interview of General Blaskic pursuant to Rule

26   63. Questions to Mr. Blaskic are concerning the events in central Bosnia, and the truth is

27   the truth. These particulars documents have no bearing on them. Nonetheless, we will

28   continue immediately to send those redacted documents to Mr. Hodak.

29   THE PRESIDING JUDGE: Mr. Hodak, the solution having to do with the delivery of the

30   expurgated testimonies, these are redacted versions we are talking about. Would this

31  solution be agreeable to you or not?

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1   MR. HODAK: Yes, for the beginning that would be agreeable, your Honour, because we think

2   it is better to receive at least anything than nothing. At least we can see what this witness

3   is referring to and to try to begin to prepare a defence based on those circumstances. Of

4   course, this regarding the name and the last name of that person who gave that statement,

5   and also we are hoping that based on the Rule 55, we will be able to find out this at a fairly

6   early stage so that we could personally prepare for the cross-examination or, at least, for

7   the statements of this witness. But what Mr. Prosecutor just said is in agreement with us

8   because until now we have not received any statements of the witnesses, and the

9   statements that have been translated and given to us just a little while ago, these are all

10   witnesses from the English speaking area. We are very grateful to Mr. Prosecutor and Mr.

11  Marro to have received this in this time frame that is appropriate.

12   What we are interested in are the witnesses from central Bosnia. There should

13   not be any problems there, especially taking in view of the translation, because those are

14   people from the local area and their statements have been given in Croatian language.

15   Therefore, they need not be translated. We would be very grateful if we could receive at

16   least one of those statements so that we could prepare a good defence for General Blaskic.

17   Thank you.

18   THE PRESIDING JUDGE: For the way things stand now, the Defence does have some

19   documents which were delivered by the Registrar within the agreed -- on dates two weeks

20   ago, and the Tribunal is aware of the efforts that are required for the translation.

21   The ex parte hearing is not possible, and that we do not have to have an in

22   camera one immediately. My colleagues and I will discuss the issue, or assume that we are

23   talking about an in camera hearing. For the time being, however, I would like to say that

24   the statements, not the documents but the statements, of the witnesses, the 100 witnesses,

25   have still not yet been supplied by the Prosecution which means, (1) that in all cases the

26   60-day period which had been set cannot yet begin, that was 1st July, but it cannot begin

27   yet so long as Mr. Hodak does not know what is in those testimonies. That is the first

28   issue.

29   The second issue is the fact that since Mr. Hodak does not have these

30   testimonies, and I believe that I understood that he meant he was not satisfied with having

Page 15

1   them in completely redacted form, that he would accept them but it is not really what he

2   would like.

3   There is a solution, however, since Mr. Hodak was referring to the Tadic case, I

4   myself was curious about what was going on in that case which is now pending before

5   Trial Chamber 2. I do see the problem of the protection of witnesses lasted for three

6   months. On 18th May 1995, the Prosecutor filed a motion. Afterwards, I could not tell

7   what the difference was between this case and the Tadic case. On 2nd June, the Defence

8   answered the request. On 15th June there was a hearing before the Trial Chamber. It was

9   in camera, it was not ex parte, but it was in camera. Actually, it was on 21st. The 15th

10   was the decision that it would be in camera. On 21st June, the hearing in camera took

11   place on 10th August. There was a response from the Trial Chamber.

12   The difference, Mr. Hodak, between the Tadic case and the case in which

13   General Blaskic is involved in which we are dealing with now, is that the problem was not

14   raised in the same way. When you came into the vestibule of the Tribunal and you saw

15   the names, you should know that everything which had to be discussed about protection

16   of witnesses was settled in the decision of 10th August 1995 by a decision of the Trial

17   Chamber after a petition filed by the Prosecutor and a response from the Defence.

18   I cannot become involved in things which are not under my jurisdiction, but

19   turning to the jurisdiction, I can say that when you see the name of a witness which is on

20   the list of information to be given out to the press, the case of the witness in question was

21   settled. There is also another way of settling things, as you know, which is at any point

22   during the hearings the Trial Chamber can decide on other protective measures which are

23   more specific.

24   The difficulty that we are encountering here, and I would like to share this with you, with

25   the Prosecution and with the Defence, is that the Prosecutor today is presenting

26   to us a general type of petition, saying: "No name can be disclosed because the situation in

27   the territory is such that it could provoke such and such incident and means that we cannot

28   give out any names of any witnesses"; whereas, in the Tadic case, the question arose in a

29   different manner.

30   The Prosecutor gave a very detailed description of his requests vis-a-vis each of

31   the witnesses and then the response of 10th August was a decision which was reached

Page 16

1   witness by witness, saying, for example, that this or that witness would now be known as

2   "Witness A", etc. There would be other protective measures that either were intended to

3   protect the anonymity or the confidentiality of the witnesses.

4   At this point we are dealing with a general type of petition. Of course, I do

5   understand that this is general. They say there are about 100 witnesses but, in addition to

6   that, the testimonies are not yet available to the Defence. We have now been caught up by

7   time because there is a 60 day time period which was set and which is to be counted from

8   1st July.

9   I, therefore, turn to the Prosecution and say that the Tribunal is the guardian of a

10   just trial. We must be sure that the victims and the witnesses are protected, but also be

11   sure that the rights of the Defence are protected as well and assured in a very difficult

12   balance, given the circumstances, but this is something which the Tribunal must ensure.

13   I, therefore, ask the Prosecutor whether (as was done in the Tadic case) he could

14   give to the Defence under the jurisdiction and supervision of the Tribunal during this week,

15   could he suggest to the Tribunal a list of protective measures for the witnesses, as the

16   Prosecutor's Office did for the Tadic case, that is, to take the list of about 100 names and

17   to say that for 50 witnesses the need for protection, for 20 they have to be completely

18   protected and for 10 they have only to have their identity protected, whereas others must

19   be protected in this and this aspect, having to do with the various facts which will identify

20   them. The Defence would receive this, and could contest it or might not challenge it,

21   depending upon its own interests and then the Tribunal would render a decision,

22   somewhat like the decision which was rendered in the Tadic case. That is the first solution Ê

23   which I think, in fact, is the one which is required by the text.

24   The second solution, however, could be to ask whether the Defence would ask

25   that all the testimonies be given to him in redacted form in a kind of a dialogue between the

26   Defence and the Prosecution in which the Tribunal would not become involved, and

27   consider that there was an agreement between the Defence and the Prosecution.

28   In other words, there are two possible solutions. The second is the one that the

29   Prosecutor is suggesting, that is, there would be expurgated testimonies, in which we

30   would have to settle the question of time, but I would like to be sure that everyone is in

31   agreement. If the Defence does not agree, at that point I think that we must go back to our

Page 17

1   text. That is, in so far it is the Prosecutor's requesting the protective measures, he, the

2   Prosecution, must give information, the names of the witnesses and the different kinds of

3   protective measures he wants. This will be discussed by the Tribunal after which an order

4   will be rendered. The Tribunal will, as I said, answer. I cannot suggest when; I am one of

5   those who wants things to go quickly, given the fact that we have an extremely busy

6   schedule. If we choose the second solution, we could set up a schedule. Perhaps the

7   Registrar would like to take the floor?

8   Turning to the Registrar, he has just pointed to a certain significant and new

9   constraint which is arising. Perhaps I can give the full exposition of this problem to these

10   observations, that is, which Mr. Marro has just explained to me.

11   THE REGISTRAR: Your Honour, I would just like to draw your attention and the attention

12   of the Trial Chamber to a point which requires some explanation. Unlike what Mr. Hodak

13   says, unless I am mistaken -- the Prosecutor, of course, can contradict what I am just going

14   to say -- I do not have the impression that any of the testimonies will be available in

15   Croatian, Serbo-Croatian, automatically.

16   The way the Office of the Prosecutor now works, that is up to this point,

17   perhaps there has been a change, and that the position of the Registrar then was something

18   which wanted to have that change, but that there was no final recording of the testimony

19   that was re-read to the witness in his own language. The documents, in fact, are produced

20   in English or in French which means, therefore, that there must be a retranslation of the

21   documents from English or French to Serbo-Croat in order to give it to the Defence. If we

22   are speaking about 100 testimonies, we are speaking again about 100 translations, unless,

23   of course, the Office of the Prosecutor would be willing to change the manner in which it is

24   working on this point, which is something which the Registrar has been really hoping for

25   for over a year now.

26   THE PRESIDING JUDGE: Prosecution?

27   MR. KEHOE: With regard to the policy of the Prosecutor's Office, I am somewhat on a lower

28   level than this Office and I am not part of any policy change, your Honours, but Mr.

29   Marro is again correct in saying that the statements are not in Croatian or Serbo-Croatian,

30   if you will, but are written in English. So, consequently, again Mr. Marro is correct that

31   they will have to be translated into General Blaskic's language.

Page 18

1   THE PRESIDING JUDGE: Thank you, Mr. Morro. I would like to repeat the two proposals

2   I have made. I am going to number them. If you have any others, of course, the Tribunal

3   will be glad to hear them. The first solution, therefore, would be, as we said two weeks

4   ago, in fact, that the Office of the Prosecutor would give to us (as it should have done

5   today) between now and Friday, that is the end of this week, will present a request which

6   will give the details of the protective measures for the witnesses which it would like to

7   present to the Tribunal. That is the first thing.

8   The request would be submitted to the Defence. I will ask the Defence to

9   respond to this by 26th June, on Thursday, in which case there could be a hearing. We

10   will try to find a proper time, but it might be on Friday, so that is to say the 28th -- we do

11   know, of course, that we have an extremely busy schedule at that point -- which means

12   that the problem of the protection of the witnesses and the victims would be settled. The

13   Prosecutor could choose which witnesses it wants, perhaps not 100 -- I do not want to get

14   mixed in and involved in what it is going to do with its strategy -- but he would act the

15   way it was done with the Tadic case. We would try to shorten the time period as much as

16   possible, and everyone has to try to help to do so.

17   The Judges, of course, will have to write up their decisions which requires some

18   time to reflect. We would render a decision in the first few days of the month of July on

19   all of the protective measures for the victims and the witnesses. In other words, the three

20   month time period which was used in the Tadic case would be something which we would

21   try to shorten to about one month. As you know, we began to speak about this issue two

22   weeks ago already, if not further.

23   That is one solution. I cannot impose the solution. I do not want to impose it. I

24   do not think it would be a good thing for the administration of proper justice. Therefore,

25   we must reach an agreement.

26   The second solution, actually, would be the most extreme, of course, and that

27   would be to let things go as they would go, that the testimonies will be translated into

28   Serbo-Croat so that a Serbo-Croat could read them at his leisure. We would no longer set

29   any time period 60 days after which the preliminary motions would start to be counted

30   from -- we had spoken about 1st July but, if my colleagues agree with me, we may have to

31   see what is the starting point for the 60 days, maybe it has to be changed, we would expect

Page 19

1   the Prosecutor to be ready. When the Prosecutor is ready, he will communicate all of the

2   testimonies. Once he is ready, within the time period which he has set, he will submit the

3   request for the Defence measures that he has asked for. The Defence will take time to

4   answer, will contest, will challenge, say, "No, I do not agree with this. This has not been

5   done properly because we have not done this, or this has not been done". This is a second

6   solution. Of course, in that solution we would take much more time.

7   The third solution which is the middle ground is the one which the Prosecutor

8   suggested, that is, that the testimonies, conditional on the reservations expressed by Mr.

9   Marro, the Registrar, would be retranslated into Serbo-Croat. It is true, we can really

10   regret the fact that these have to be retranslated since they were originally in Serbo-Croat,

11   they have to go into English in order to go back into Serbo-Croat. It seems to me that is a

12   rather heavy procedure but, all right, in justice there can never be too much heaviness, if

13   you like, so long as things are properly carried out.

14   This is the solution which the Prosecutor wanted; the testimonies would be

15   redacted, either all of them would be completely redacted, but here is where the Tribunal

16   comes in. There must be an agreement, a complete unconditional agreement, on the part of

17   the Defence because it is the Tribunal who is the guardian of this very subtle balance

18   between the rights of the accused and the protection of the witnesses.

19   The Tribunal must be very aware of what is going on. It is true that if the

20   Defence accepts having from this point right now very quickly all of the testimonies which

21   have all been redacted, expurgated, that is, under the conditions which we will point out

22   when we render our decision which, of course, will be a quick one at that point, we may Ê

23   well be able to reach a shortened time period, but given things as they stand now, this is

24   how I think we can summarise the situation. We have to find a solution one way or the

25   other.

26   Who would like to speak? Perhaps, Mr. Hodak, you would like to indicate

27   what your part on this issue is. I am foreseeing or trying to impose any of the issues.

28   Everyone must understand that very clearly.

29   MR. HODAK: Your Honour, since the fate of my client depends considerably on the solution

30   of this problem, I should like to ask for a favour, that is, permit me to consult with my

31   client for a minute or two about these three solutions. It may be done here and, with your

Page 20

1   permission, I will approach him and see which one of these three solutions would suit him

2   best. I know which one would suit me best but, of course, I have to take note of my

3   client's view. So may I? Thank you.

4   THE PRESIDING JUDGE: Mr. Hodak, of course, we agree that you discuss it with your

5   client because we believe it is very important. I also think that the Tribunal also has to

6   think about it. We are all colleagues here. I am, perhaps, the presiding judge, but there are

7   three Judges and we also have to consult and the Tribunal, which is the guardian of the

8   Rules. It is very difficult, a Chamber -- the second Chamber has already seen it. The

9   schedule is very tight. Three months have already elapsed. We shall also have to adjourn

10   to deliberate it among us. I cannot fix it. Perhaps we could go on at 12.15 or, if not then,

11   we shall do it in the afternoon but at the moment I am announcing a break. Thank you.

12   (11.40 a.m.)


(The court adjourned for a short time).

14   (12.50 p.m.)

15   THE PRESIDING JUDGE: Mr. Hodak, I give the floor to you, since you have now spoken

16   with your client.

17   MR. HODAK: Yes, your Honour. I have talked to my client and we have come to the

18   conclusion that we would accept the first proposal out of the three that you have given to

19   us today, because it would mean from our side that, in the first phase, we would agree to

20   the complete protection of identity of the witnesses without any indication of their social

21   status or anything similar to that. But we would also request that the Prosecution give us

22   the translated statements concerning the events and circumstances that the witness talks

23   about. We would like Rule 75 to be respected, so that the identity of the witness be

24   disclosed well in advance so that we can prepare the defence.

25   So for now we would agree to accept statements without any indication of the

26   social status of the witnesses, but we want to have the statements well in advance so that

27   we can call on those statements when we give preliminary motions and in order to prepare

28   the defence. So we accept the first proposal which would lead to the most prompt trial.

29   THE PRESIDING JUDGE: OK, Mr. Hodak, and General Blaskic agrees, you would accept

30   the testimonies being given to you within a time period which will be set by the

31   Tribunal in a redacted form. A little detail perhaps. I did note in the petition from the Prosecution

Page 21

1   that they would be expurgated, specifically having to do with the names of the victims.

2   Did you see that, Mr. Hodak, that the victims' names would also be expurgated? Did you

3   accept that as well?

4   MR. HODAK: Yes, we accept no indication of the names or social status, but we want to

5   know the circumstances concerning the statements and the facts. We want that to be

6   translated fully.

7   THE PRESIDING JUDGE: The conditions in which these testimonies will be presented mean

8   that all of them must be translated into Serbo-Croat. Therefore, my colleagues and I are

9   stating that you accept the proposal from the Prosecution, but you add two conditions:

10   everything must be translated into Serbo-Croat and that, in accordance with Rule 69, the

11   disclosure of the witnesses and victims be given you to so that you can prepare your

12   defence. Is that correct?

13   Turning to the Prosecutor, do you wish to make any comments about what the Defence has

14   just said?

15   MR. KEHOE: Well, this was my proposal, your Honour. Your Honours, as you know, we

16   were willing to hand over these redacted statements. My question for Mr. Hodak and for

17   the Court is, should we begin to hand over the statements to Mr. Hodak in their English

18   form and then as they get translated, in whatever form they are going to be translated,

19   they would then be passed on to them; or should that be postponed until all have been

20   translated?

21   We are certainly willing to begin to send to Mr. Hodak the English versions with

22   the appropriate redactions immediately. I just ask for a little guidance from the Court at

23   this point.

24   THE PRESIDING JUDGE: The Tribunal has spoken about all of these questions and would

25   like things to be very clear. First, the Tribunal is concerned that the testimonies of the

26   witnesses be protected. This has to do with proper justice and the credibility of the

27   Tribunal itself. The witnesses must know that they are protected.

28   The Tribunal also wants to be sure that the rights of the Defence have been

29   respected according to the best standards possible.

30   Under these conditions the Tribunal will deliberate about its decision, but you

31   most know that in its decision there will be dates and time periods, both for the delivery of

Page 22

1   the testimonies which have been redacted, and time limits for the Registrar to have the

2   documents translated into Serbo-Croat. This assumes, therefore, that we will be extremely

3   vigilant about the respect and honouring of these time periods which is intended to

4   facilitate the task of the Prosecution, but also of the Defence. Behind all of this, all of

5   those people who are not here within the confines of this building, that is the witnesses

6   who are not here right now, the Tribunal must also be concerned about.

7   Under those conditions the Tribunal will suspend the hearing and will render its

8   decision at 3.30 this afternoon. The court stands adjourned.


(The court adjourned until 3.30 p.m.)

10   (4.00 p.m.)

11   THE PRESIDING JUDGE: I would like once and for all for us to bring the accused in when

12   the Presiding Judge states so. I do not think that is complicated. We have to sit down. I

13   think that the accused can wait for a moment. It should be clear. All right?

14   Here is the decision further to the hearing of this morning.


16   (The Presiding Judge read the decision).


18   THE PRESIDING JUDGE: The hearing is adjourned.



(The hearing adjourned)