Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Friday, 29 August 2008

 2                           [Further Initial Appearance]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 2.13 p.m.

 6             THE REGISTRAR:  Good afternoon, Your Honour.  This is case number

 7     IT-95-5/18-I, the Prosecutor versus Radovan Karadzic.

 8             JUDGE BONOMY:  Thank you, Madam Registrar.

 9             Who appears for the Prosecution?

10             MR. TIEGER:  Good afternoon, Your Honour.  Alan Tieger,

11     Mark Harmon, Carolyn Edgerton for the OTP, with case manager Iain Reid.

12             JUDGE BONOMY:  Thank you, Mr. Tieger.

13             Mr. Karadzic, I see that you are appearing without counsel and

14     I'm aware of your request filed on the 5th of August, in which you

15     informed the Registry of your intention to represent yourself.  Can you

16     just confirm that to me, please.

17             THE ACCUSED: [Interpretation] Yes.

18             THE INTERPRETER:  Could the microphone be switched on, yes.

19             THE ACCUSED: [Interpretation] Yes, yes.

20             JUDGE BONOMY:  Thank you.

21             I understand you're well aware of your right to be represented by

22     counsel; is that correct?

23             THE ACCUSED: [Interpretation] Yes, but I have waived that right.

24             JUDGE BONOMY:  And we shall proceed on the basis that you

25     represent yourself today.

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 1             The purpose of today's further appearance is to call upon you to

 2     enter a plea to the operative indictment.  That indictment was filed on

 3     the 18th of May, 2000, and confirmed on the 31st of May, 2000.

 4             Now, I am aware that at the earlier session of this case there

 5     was some discussion about whether the Prosecutor might wish to file an

 6     amended indictment and you indicated that you would prefer to wait to

 7     enter a plea until such an amended indictment was presented.

 8             Mr. Karadzic, to date there has not been a request to amend the

 9     indictment, that's the indictment filed with the Pre-Trial Chamber.

10     Therefore, the only indictment with which we are concerned is the current

11     one, of which you are aware.  It may never be amended, but if it is it

12     will be after application by the Prosecution and after you have had an

13     opportunity to make submissions on their attempt to have the indictment

14     amended.  Amendment can be a very highly complex matter and will

15     ordinarily deal with nuances in the law as well as the facts.  This may,

16     therefore, be one of the areas where you would significantly benefit from

17     having a trained legal representative assisting you in making the

18     arguments, as the indictment is clearly a very important legal document

19     in your case.

20             At the previous appearance my colleague asked if you wished to

21     have the indictment read, and you'd indicated that you did not wish to

22     have it read aloud to you.  I have to ask you again today if you wish to

23     have the indictment read aloud or do you waive the reading of the

24     indictment?

25             THE ACCUSED: [Interpretation] I waive the reading of the

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 1     indictment.  I have no interest in listening to that indictment, not only

 2     because I'm expecting a new one to be filed but also because I have not

 3     yet put together my team of associates and helpers.  And in relation to

 4     what you have said, I believe that by the time the amendment is made I

 5     will have a team of associates who will help me make my submissions.

 6             JUDGE BONOMY:  Nevertheless, Mr. Karadzic, the Rules require that

 7     we proceed on the basis of the indictment before us and the Rules also

 8     require that a plea be tendered today.  I would, therefore, ask you how

 9     you wish to plead on each count of the indictment and I will go through

10     them one by one.  If you choose not to enter a plea for any reason, then

11     I am bound by the terms of the Rules to enter a plea of not guilty on

12     your behalf.

13             THE ACCUSED: [Interpretation] I would rather hear you say that at

14     the end of the trial than at the beginning, but I want to know what is

15     happening with my submissions, the ones I filed and the ones in which I

16     expressed my doubts about the possibility of holding this trial at all

17     because of the many errors made in relation to me and also because I'm

18     deeply convinced that this Court is representing itself falsely as a

19     court of the international community, whereas it is in fact a court of

20     NATO whose aim is to liquidate me.  It is, therefore, very hard for me to

21     express my standpoint on anything before this is cleared up.  I have

22     stopped using a false name so I think all parties should do the same.

23             JUDGE BONOMY:  What your plea is in relation to each charge is

24     quite a separate matter from whether there is available to you a ground

25     to challenge the jurisdiction of the court.  And indeed, if you have read

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 1     the Rules, as I'm sure you will have read the copy that's been provided

 2     to you, you will see that the triggering mechanism for a formal challenge

 3     to the jurisdiction of the court is normally having pled guilty to the

 4     indictment or not guilty to the indictment and then having proceeded to

 5     receive disclosure of the various materials that must be submitted to you

 6     in support of the indictment.  And you'll well understand the reasoning

 7     for that, that a person should have available to him the charges, the

 8     position he's taken on the charges, and the supporting material to enable

 9     him to challenge the indictment.  You've challenged it already.  You've

10     made three separate submissions.  The Prosecution have answered these.

11     The Pre-Trial Chamber comprising myself and two other Judges is seized of

12     your challenge.  We will address the challenge and we will make a

13     determination of that challenge in writing.  And later on in this session

14     I will explain to you the way in which the case will proceed further and

15     how these various matters will be dealt with.

16             At the moment, however, I am solely concerned with the tendering

17     of pleas and it's a matter for you, whether you tender the pleas or I

18     enter them on your behalf.  And we will now proceed to deal with that, so

19     would you please stand while we deal with this.

20             Thank you, Mr. Karadzic.  As to Count 1 of the indictment, you're

21     charged with genocide punishable under Articles 4(3)(a), 7(1) and 7(3) of

22     the Statute of the Tribunal.  How do you plead, guilty or not guilty?

23             THE ACCUSED: [Interpretation] I will not plead in line with my

24     standpoint as regards this court.

25             JUDGE BONOMY:  I shall therefore enter on your behalf a plea of

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 1     not guilty.

 2             Is that the position you're going to take in relation to each of

 3     the other ten charges on the indictment?

 4             THE ACCUSED: [Interpretation] Absolutely, yes.

 5             JUDGE BONOMY:  I shall, therefore, enter pleas of not guilty in

 6     respect of each of the other charges on the indictment; in other words,

 7     your plea is one of not guilty to the indictment as a whole.  The

 8     Registry will set a date for your trial in due course.  Please be seated.

 9             THE ACCUSED: [Interpretation] May I hold you to your word?

10             JUDGE BONOMY:  Which word?

11             THE ACCUSED: [Interpretation] That I'm not guilty.

12             JUDGE BONOMY:  We shall see in due course, Mr. Karadzic.

13             That concludes the entry of your pleas, which was the purpose of

14     this further appearance.  I am well aware, as you've already indicated in

15     the course of this exchange, that you have a number of other matters

16     which you wish to address.  I know that you've made submissions not only

17     on the question of jurisdiction but on other matters, and I think there

18     are a total of ten of these before the Court on various subjects.  Each

19     of the submissions you've made is publicly filed, and therefore anyone in

20     the public who wishes to read what you are saying to the Tribunal is able

21     to read it.

22             Several of your submissions have already been resolved.  For

23     example, on the 22nd of August, the translation unit responded to your

24     submission requesting a correction to the translation of one document of

25     the 5th of August.  And this morning, decisions were filed on your

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 1     submissions relating to search warrants and documents relating to the

 2     freezing of your assets.  All your other submissions are currently under

 3     active consideration by the Pre-Trial Chamber.

 4             In order to ensure that all necessary steps are being taken to

 5     prepare for trial and to deal with matters raised by you and the

 6     Prosecution, I have arranged a Status Conference to be held at which all

 7     of these issues may be addressed.  That will be a far lengthier hearing,

 8     I suspect, than today.  A Status Conference is held in accordance with

 9     Rule 65 bis of the Tribunal Rules.  In part that rule states what the

10     purpose of such a proceeding is and includes reviewing the status of an

11     accused's case and, most importantly I think from your point of view, "to

12     allow the accused the opportunity to raise issues in relation thereto."

13             So I've set a Status Conference for Wednesday, the 17th of

14     September, at 2.15 p.m.  At that hearing, you will be given an

15     opportunity to address any issues which have not been answered by written

16     decision of the Chamber by that time.

17             Apart from the plea today, the other really important matter that

18     has to be addressed to some extent is the issue of the disclosure of

19     materials to you, that's materials supporting the Prosecution indictment.

20             Mr. Tieger, can you assist me by indicating the stage you've

21     reached in making disclosure to the accused?

22             MR. TIEGER:  Certainly, Your Honour.  First, as the Court is

23     aware, the Prosecution filed a motion seeking protection for confidential

24     and non-public materials.  Although we are awaiting a decision on that

25     motion, meanwhile we have made available to the accused the public

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 1     materials in the supporting materials as well as other documents not

 2     public that we considered could be disclosed notwithstanding the fact

 3     that the order had not issued.  That fundamentally reflects or

 4     encompasses virtually all of the documents but not witness statements in

 5     the supporting materials.

 6             What remains, therefore, are the witness statements, which we

 7     intend to disclose barring further direction from the Court as soon as

 8     the order issues.  The one small exception may be if any of the

 9     statements are properly subject to protective measures - we don't

10     anticipate that to be the case at this time - but should it be the case,

11     of course, we would file appropriate motions accordingly.

12             So that is the status, Your Honour.

13             JUDGE BONOMY:  Thank you, Mr. Tieger.

14             I can tell both parties that the Trial Chamber -- Pre-Trial

15     Chamber, rather, has already given active consideration to the question

16     of what, if any, order ought to be made in relation to the protection of

17     materials disclosed in support of the indictment.  I envisage a decision

18     being made on that early next week, and when that decision is made it

19     should enable completion of disclosure.  The question of protective

20     measures will be referred to, to some extent, and you will then need to

21     decide what action is appropriate in light of what the decision says.

22     But that decision will be issued fairly soon.

23             MR. TIEGER:  Thank you, Your Honour.

24             JUDGE BONOMY:  It follows, Mr. Karadzic, that disclosure of the

25     supporting material which has to be made in your own language will be

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 1     completed, I hope, in the course of next week but we shall have to see

 2     exactly when that is.  The date on which that disclosure is completed is

 3     an extremely important date for you because it establishes the dead-line

 4     from which the time for preliminary motions runs.  Now, that includes the

 5     motion you've already referred to challenging the jurisdiction of the

 6     Tribunal.

 7             Rule 72 of the Rules requires that you file your preliminary

 8     motions challenging jurisdiction, alleging defects in the form of the

 9     indictment, and any other preliminary motion within 30 days after

10     completion of that disclosure.

11             Now, Mr. Karadzic, you've made a number of written submissions,

12     as I've already said, and these have all been perfectly comprehensible

13     and the Chamber is able to deal with them.  But there may come a time

14     when it's not quite so simple as that and it does help everyone,

15     including you, to follow the normal practices of the Tribunal; everything

16     is clearer when that is done.  While you're representing yourself it can

17     be difficult, I think, to quickly come to terms with the details and

18     technicalities associated with all the rules.  So I've asked the Registry

19     to make a member of staff available as a liaison between you and them

20     with a view to assisting in the preparation of documents in a form that

21     is the norm in the Tribunal without in any way trying to inhibit the way

22     in which you express yourself, which is perfectly normal that you would

23     express yourself in the language with which you would normally address

24     issues of this nature.

25             Now, I hope you'll accept that assistance.  It's not legal

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 1     advice, it's not meant to be; it's purely administrative assistance.  It

 2     is, of course, at the end of the day for you to decide what to do, but

 3     that's aimed at ensuring that all the requirements of these rules are

 4     met.

 5             Now, Mr. Tieger, I mentioned earlier, as did Mr. Karadzic, the

 6     question of the possibility of amending or applying to amend the

 7     indictment.  Is that something you still have in mind?

 8             MR. TIEGER:  Yes, Your Honour, it is.

 9             JUDGE BONOMY:  Well, if that's the case, when do you expect to

10     deal with it?

11             MR. TIEGER:  We are dealing with it currently and our projected

12     submission date would be by the end of this next month, that is, the last

13     week of September.

14             JUDGE BONOMY:  Can you explain to me what the difficulty is that

15     you're having in dealing with the issues in such a prominent case in

16     which the indictment was first filed over eight years ago?

17             MR. TIEGER:  Well, indeed, Your Honour, part of the issue is the

18     length of time that's transpired since the filing of the current

19     indictment, the number of relevant cases that have litigated issues, come

20     to adjudicated facts on issues and crimes relevant to this case, the need

21     to address those issues in formulating an indictment that is as -- that

22     lends itself to the most efficient presentation possible, the evidence

23     that has been gathered since that time including large collections of

24     documents, the evolving jurisprudence -- it's not -- it is our intention

25     and our ongoing effort to ensure the best possible pleading instrument,

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 1     one that offers the most heightened specificity, one that addresses

 2     itself to those aspects of the indictment that they may be most

 3     efficiently presented in light of both the evolving jurisprudence,

 4     evolving procedures, and the adjudicated facts.  And that entails a

 5     review of a vast volume of material.  We could certainly have proceeded

 6     to simply address any glaring or obvious issue related to the indictment,

 7     but it seemed far more prudent, particularly at this time, the early

 8     stage of the proceedings, to undertake the most comprehensive possible

 9     review to avert the need for any further issues later down the road.

10             As the Court is aware, amended indictments are fairly common in

11     this institution and those occur at -- generally as trial teams go

12     through the materials and through the evolving jurisprudence during the

13     course of pre-trial preparation.  And that has resulted, I might add, in

14     jurisprudence in this institution about when an indictment is

15     appropriate.  Some of those amended indictments have taken place deep

16     into the pre-trial process.  So for that reason, the Prosecution did not

17     want to take a passive approach and wait until its pre-trial preparations

18     identified such issues, but to take a very active approach and tackle the

19     issue immediately at the earliest stage of the proceeding.  And that,

20     Your Honour, is a significant review and that's the nature of the issue.

21     Under these circumstances and particularly at this phase of the case, I

22     think our projected date is a very reasonable one and I would hasten to

23     add that it's not our ideal or perfect-world date; it is one that,

24     indeed, attempted to balance the interests in the best possible charging

25     instrument against the interests in moving forward as expeditiously as

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 1     possible.  And we really have done our best and are doing our best to

 2     identify the minimum period possible to do that.

 3             JUDGE BONOMY:  Well, Mr. Tieger, speaking for myself, I find it

 4     surprising that bearing in mind the period since the original indictment,

 5     the aim that everyone was aware of, of concluding the business of this

 6     Tribunal fairly expeditiously and the significance in the life and to the

 7     life of this Tribunal of this particular case, that you tell me now that

 8     it's only once the accused is in custody that this exercise is being

 9     undertaken.  I'm surprised.  I say no more than that at this stage, and I

10     sincerely hope that you're not serious about that date.

11             That concludes today's proceedings.  We will next meet at the

12     Status Conference on the 17th of September at 2.15 --

13             THE ACCUSED: [Interpretation] May I be allowed to --

14             JUDGE BONOMY:  You wish to say something, Mr. Karadzic?

15             THE ACCUSED: [Interpretation] Well, what I wanted to say was

16     this.  I can say in advance that I won't agree to adjudicated facts if

17     they have not been proved in these proceedings and will the Trial Chamber

18     allow more resources to me, as it has done to the opposite side, because

19     all this wasting of time and the resources that the Prosecution is asking

20     for itself I would like to ask to have too, to be given in equal measure.

21             JUDGE BONOMY:  Mr. Karadzic, it's one of the fundamental tenets

22     of the law of international criminal procedure that there must be

23     equality of arms, and that tenet will be recognised in all that this

24     Trial Chamber in due course does.  The very points you've just made are

25     points that will be appropriate for you to make in the context of the

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 1     amendment process that Mr. Tieger has referred to.  So you will have your

 2     opportunity, rest assured, as I've already indicated to you.

 3             This hearing is now adjourned.

 4                           --- Whereupon the Further Initial Appearance

 5                           adjourned at 2.37 p.m.