Page 400
1 Thursday, 20 August 2009
2 [Status Conference]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 9.59 a.m.
6 THE REGISTRAR: Good morning, Your Honour. This is case number
7 IT-95-5/18-PT, the Prosecutor versus Radovan Karadzic.
8 JUDGE BONOMY: Thank you.
9 Good morning, everyone. May I first of all ask for appearances
10 on behalf of the Prosecution.
11 MR. TIEGER: Good morning, Your Honour. Alan Tieger,
12 Hildegard Uertz-Retzlaff, and Iain Reid for the Prosecution.
13 JUDGE BONOMY: Thank you, Mr. Tieger.
14 Mr. Karadzic, you again appear on your own?
15 THE ACCUSED: [Interpretation] I am here on my own, but as you
16 know many people are helping me, people who are highly respected lawyers,
17 interns, and so on. So I'm not actually alone.
18 JUDGE BONOMY: Thank you. I would like to record my appreciation
19 of the fact that when we had our 65 ter meeting earlier this week one of
20 your legal associates did attend and provided considerable assistance.
21 The first matter I wish to raise today relates to the utilitarian
22 benefits that may be gained from the decisions of the Trial Chamber to
23 take judicial notice of adjudicated facts. These have been indicated to
24 some extent. You've told us already, I think, Ms. Uertz-Retzlaff, that
25 there are witnesses for whom you've made applications under Rule 92 bis
Page 401
1 that will not be required on the face of it as the result of this. What
2 I think I've omitted to ask you so far is the impact of these decisions
3 so far on your list of witnesses who will give evidence viva voce or viva
4 voce accompanied by statements of written material under 92 ter. Can you
5 give me a broad indication of how you anticipate the decisions made so
6 far might affect the witness list?
7 MS. UERTZ-RETZLAFF: Yes, Your Honour, I can actually say for the
8 Sarajevo
9 would not call eight 92 ter witnesses. And I actually do have a list of
10 them. What we had intended to do is to provide this information in the
11 context of the 73 bis filing. For Srebrenica, this process is still
12 ongoing.
13 JUDGE BONOMY: Would it be unduly optimistic of me to think that
14 there might be a considerably greater number in relation to Srebrenica?
15 MS. UERTZ-RETZLAFF: Your Honour, I do not think so. The problem
16 is -- we have actually already discussed this also already. The problem
17 is that a lot of the 92 ter witnesses dealing with the crime base in
18 Srebrenica also provide information in relation to links, and these links
19 are not established by the adjudicated facts. So we are, therefore,
20 still discussing what can be done and what cannot be done, who can really
21 be dropped. What to be -- in the course of our trial preparation, we are
22 actually creating a witness scheduling list with two groups. One group
23 is the witnesses that we definitely need to call, and the other group is
24 a reserve list. And we're moving the people that are -- whose evidence
25 is covered by adjudicated facts, we moved them to the reserve list, and
Page 402
1 it's growing actually. So by the time when we provide our 73 bis filing,
2 we can give definite numbers.
3 JUDGE BONOMY: Yeah, you may wish to give thought to being fairly
4 robust in your approach to witnesses who have to come because they speak
5 of other matters, but whose evidence in relation to Srebrenica has been
6 the subject of a finding in relation to an adjudicated fact. If there's
7 no specific challenge of that fact in the Defence brief, you may choose
8 not to lead that part of the witness's evidence. And if things turn out
9 to be differently, of course, the situation can then be reviewed as I
10 think the Trial Chamber has already indicated would be the case.
11 So I hope that these decisions will be a foundation for robust
12 decisions about witness lists.
13 MS. UERTZ-RETZLAFF: Yes, Your Honour. Thank you.
14 JUDGE BONOMY: Thank you.
15 Now, can I take it that the outstanding motion, which is the
16 second motion for judicial notice of adjudicated facts, is the end of the
17 story on that subject?
18 MS. UERTZ-RETZLAFF: No, Your Honour, it's not. When we filed
19 our second motion, we didn't have the Krajisnik appeal judgement.
20 Therefore, in the second motion we have only addressed a very few
21 municipalities. Now with the appeals decision in Krajisnik, we are
22 actually preparing at the moment a fourth motion for adjudicated facts
23 covering these other municipalities. And it will be in the size of about
24 additional 900 adjudicated facts related to these municipalities and also
25 in -- related to background information and legal foundation of the
Page 403
1 Republika Srpska and these kind of matters.
2 JUDGE BONOMY: Of course there comes a time when one has to
3 simply decide the preparations for the trial are complete, and the trial
4 will proceed on the basis, broadly speaking, of what has been submitted
5 as an indication of that case. So you have a case that, no doubt,
6 includes these 900 adjudicated facts to be presented a different way.
7 Whether adjudicated facts is the answer, I don't know, I don't express a
8 view on that. It at least gives a Trial Chamber an option, but don't be
9 surprised if the Trial Chamber were to take the view that that wasn't the
10 way forward at this stage in the proceedings. Not your fault. The
11 timing of the Krajisnik appeal decision may well have been beyond your
12 control, but it may be that a line has to be drawn at some stage. That's
13 simply an indication of a possible point of view.
14 MS. UERTZ-RETZLAFF: Your Honour, I can add that we are planning
15 to file this fourth motion, either by the end of this week or beginning
16 next week.
17 JUDGE BONOMY: Timing also can turn out to be very important and
18 the view that's taken of it.
19 Now, Mr. Karadzic, I know your views about these motions for
20 judicial notice of adjudicated facts. I know that you have objections in
21 principle as well as having stated detailed, specific, and, indeed,
22 relevant objections to many of them. All I've been trying to ascertain
23 is the impact on the list of witnesses for the trial, and clearly there
24 will be some impact. But as always, there's a sting in the tail and that
25 sting this time is that there is to be another motion. Now, that we
Page 404
1 can't address at this stage. It has to be submitted and dealt with in
2 detail, but on this general subject, is there anything in addition to
3 what I already know is our view, is there anything else that you want to
4 say on the matter?
5 THE ACCUSED: [Interpretation] No, Your Lordship, except for the
6 fact that I feel that we're not going to save on the expanse or amount of
7 documents during this trial by doing that. So I think we'll have to get
8 through the same volume of work regardless, but you're quite right, in
9 principle I do oppose this endeavour to have as many adjudicated facts
10 from other trials where my defence had nothing to do with them, that the
11 Prosecution feels that their case against me is fairly weak.
12 JUDGE BONOMY: Thank you.
13 Can I move on then to the next subject, which is a motion
14 submitted by you, Dr. Karadzic, to interview a Prosecution witness who's
15 on the list as number 222. The Chamber has received a response. That
16 came in on the 18th of August, so you haven't had long to look at it.
17 You have, on occasions, sought to reply in circumstances like this. Do
18 you intend to say anything further on the matter, because I'm quite happy
19 to hear it here and now, and that will expedite determination of the
20 motion you've made.
21 THE ACCUSED: [Interpretation] Yes, Your Lordship, this is what
22 it's about. It involves a smaller number of Prosecution witnesses who
23 have accepted to meet me or meet with my team, and of that number - and
24 it's rather a large number who say they are willing to meet my
25 team - just a smaller number will, indeed, meet with me here because I'm
Page 405
1 not over there. So that's one point, and I have the right to it
2 according to the Rules.
3 Now, I don't understand why the Registry is challenging the fact
4 that expenses should be paid for these witnesses coming in. In this
5 specific case, it's just one man who should be appearing in court to meet
6 me and talk to me, and in the other case, it involves three of my
7 associates that have to go there, which means greater expenses than if he
8 were to come in here. Now I have a lot of obstacles of a technical
9 nature, I hope, in preparing my defence, so I don't see why this should
10 be another obstacle. On the other hand, I'm trying to save the
11 Trial Chamber from having to make decisions on each individual case
12 separately as it comes up. But I'd just like to refer to my rights and
13 the rights that are guaranteed so that that is taken for granted and that
14 a decision of principle be made based upon the Rules so that we don't
15 need to discuss the issue further as the individual instances come up,
16 that we don't have to ask the Trial Chamber again and again for things
17 that are guaranteed under the rights that I enjoy. Because otherwise it
18 would appear that somebody in the Registry is punishing me additionally
19 for either being in detention or for not being a rich man and not being
20 able to pay for the witnesses coming in myself.
21 Now, the vast majority will be interviewed by my associates,
22 that's true, but it means that my associates have to go over there, they
23 have to appear over there. And there will be quite a number of them, I'm
24 sure. So OLAD is there, and they have made a reasonable, I consider,
25 request that when going to a locality, my team should talk to all the
Page 406
1 witnesses in that particular place, that particular locality. And I
2 understand that; it's a good decision. But we have to wait for the
3 response of all those witnesses who are in the region or in a particular
4 place or locality to talk to them. Most of those witnesses are in the
5 Balkans, which means of the 85 witnesses, Prosecution witnesses, 46 have
6 already been contacted, and 33 have agreed to meet with my Defence. Only
7 ten of them live outside the Balkan region, all the others are within the
8 Balkans, so my team will be able to contact them. And I think the most
9 important thing would be for us to not to have to appear before the
10 Chamber to ask for things that are guaranteed by my rights, so that a
11 decision of principle can be taken which would be a sort of blanket
12 decision so that we don't have to come before the Chamber 85 times or
13 however many witnesses there are.
14 JUDGE BONOMY: I appreciate your invitation that we take a
15 decision in principle, but it is quite difficult for the Chamber to do
16 that. I don't reject the idea out of hand, but this sort of subject is
17 not exclusively within the control of the Trial Chamber; it's a matter
18 for the Registry of the Tribunal and its policies. And I appreciate that
19 the situation here has to be looked at according to its own facts, and
20 hopefully they will do that. I'm also pleased to note that the
21 arrangements that have already been made to contact witnesses to
22 establish the situation have borne fruit and that this has been a
23 worthwhile exercise. There are two separate issues here, though, that we
24 mustn't lose sight of. One is who pays at this stage of the proceedings
25 because there's no doubt who pays when it comes to the witness coming to
Page 407
1 give evidence: That is a Registry commitment. And the separate issue is
2 if you, personally, are to speak to a witness, how that might be done.
3 I'd like to remind you that there are jurisdictions in the world where
4 counsel who actually present the case in court are prevented by their
5 professional rules from actually speaking to witnesses. All the
6 preparations, even for counsel, are done by agents, solicitors or agents
7 with -- attorneys with a different role in the proceedings. So it's not
8 an absolute right of any person who's going to conduct a case in court to
9 actually have a face-to-face meeting with the witness. However, I do
10 know that that has happened in other cases in this Tribunal, and I would
11 like to explore one thing further on this subject. I'm not in a
12 position, obviously, to make a decision; that will be done by the
13 Trial Chamber.
14 But Ms. Osure of the Registry is with us, and I wonder if I could
15 invite her to assist me, Ms. Osure.
16 There is in the Registry submission an indication of difficulties
17 that would arise if witnesses came to the Detention Unit to be
18 interviewed by Dr. Karadzic. I appreciate that in relation to certain
19 witnesses there could be security concerns, but the particular witness
20 we're dealing with here is not one that gives rise to any security
21 concern as you appreciate, and I understand that Mr. Milosevic was able
22 to meet with witnesses. I do not know if other accused have actually met
23 with witnesses, but I wonder if the situation here is seen by the
24 Registry as different from the situation that faced Milosevic. Can you
25 help me on that?
Page 408
1 MS. OSURE: Thank you, Your Honour. Now, with regard to whether
2 accused persons in the Detention Unit have met other witnesses in the
3 detention facility, this has not happened before. But indeed,
4 Mr. Milosevic did meet with witnesses in the Detention Unit. And as
5 already pointed out, Your Honour, this particular witness may not be a
6 security concern as such. But the Registry's main concern here is that
7 firstly we are still developing a policy for witness interviews that we
8 are elaborating and will present to the accused as soon as it's
9 completed; it's not ready yet.
10 But meanwhile, our main concern is we can -- we are not in a
11 position to approve witness interviews before the accused provides
12 justification for the meeting in the Detention Unit because, as we
13 already stated in the Registrar's submission, there are security
14 concerns; and, in addition, if we have just one witness, we can
15 accommodate such a witness; but in this case, it is anticipated we will
16 have more witnesses who the accused intends to meet in person. We
17 encourage him to use his available resources, meaning his Defence team
18 members. Where he believes that direct contact is important for the
19 preparation of his defence, he we encourage him to use alternative means
20 such as telephone and mail; but where he considers that the accused must
21 meet with the witness face-to-face, then arrangements will need to be
22 made for this.
23 Now, I have already spoken to one of the legal associates to the
24 accused, Mr. Peter Robinson, who has indicated that there are quite a
25 number of other witnesses who the accused would like to meet in person.
Page 409
1 We recognise that we also have other self-represented accused in
2 the Detention Unit. Now, if in addition to witnesses - and here I'm not
3 only speaking about one witness in this submission as requested by the
4 accused - but if we have several witnesses meeting with the accused plus
5 other witnesses meeting with other self-represented accused, this will
6 place an undue burden on the security personnel of the Detention Unit and
7 we also have other represented accused are there who also meet family,
8 friends, Defence team members, and other persons who would ordinarily
9 meet with them. And this is the concern that we have. It's a much
10 bigger issue than one witness meeting with Mr. Karadzic just now.
11 JUDGE BONOMY: Thank you very much.
12 MS. OSURE: Thank you.
13 JUDGE BONOMY: Mr. Karadzic, you'll be able to see that there is
14 a problem about making a decision that would apply to all circumstances.
15 It's plain that contact, direct personal contact between you and a
16 witness in the Detention Unit is not a right, it's a privilege, but it's
17 one that the Registry are plainly trying to find a way of allowing. In
18 order to arrive at a situation where if a witness is so significant that
19 you wish the direct meeting with him and that can be arranged, there is
20 obviously going to have to be restraint on your part in determining which
21 witnesses that applies to and arranging with your associates to deal with
22 the others.
23 But one thing I want to make clear about my own view on this,
24 when this trial is up and running, the time available to the accused to
25 speak with witnesses is going to be limited because the trial is going to
Page 410
1 be sitting on a daily basis. And I, therefore, in principle, encourage
2 contact with witnesses now with a view to avoiding delay later because
3 that contact is perceived as having to take place immediately before the
4 witness gives evidence.
5 So I think Ms. Osure in looking at the policy on this it is
6 important to look ahead to the situation that could develop if there is
7 no flexibility built in to allow communication to take place at this
8 stage. That's a different question from the question of who funds the
9 travel and when it is paid for, but, again, I'm not expressing a view on
10 this, but I would encourage you to look at the question whether there can
11 be flexibility, perhaps confined to a very limited number of cases where
12 there's a plain benefit for all concerned, including possibly even a
13 financial benefit, in arranging communication at an early stage to assist
14 the preparation for trial.
15 Just one final thing before parting with this subject, are you
16 suggesting, Ms. Osure, that it would be helpful for the Trial Chamber to
17 delay its decision here to enable the Registry to consider the matter
18 further? One way of doing that is for the Chamber to make a very
19 specific decision clearly confined to this case and not a decision in
20 principle and to delay any more general statement of its view until the
21 Registry has had a chance to, perhaps, supplement the current decision.
22 MS. OSURE: Thank you, Your Honour. I do realise that the
23 Chamber would like to deal with the matter expeditiously. And so it's
24 not the Registry's view that the Chamber delays a decision on this
25 particular matter, but I would like to point out that because we are
Page 411
1 developing a policy, the decision that the Chamber makes will certainly
2 be of importance to us because it will be taken into consideration as we
3 develop this particular policy. The Registry would not have any further
4 submissions to make on this issue, although I wish to point out that we
5 haven't closed the door to Mr. Karadzic meeting with witnesses in the
6 Detention Unit. He is still able to do so, but should only provide us
7 justification and reasons why he hasn't considered all his other
8 available resources. So the door is not completely closed, and we are,
9 indeed, being very flexible, but paying due attention to the security
10 concerns of the institution and the facility in which he's detained.
11 Thank you.
12 JUDGE BONOMY: Thank you for your assistance.
13 THE ACCUSED: [Interpretation] If I might be allowed to say
14 something, Your Lordship.
15 JUDGE BONOMY: Just a moment, please.
16 Yes, please, Dr. Karadzic.
17 THE ACCUSED: [Interpretation] I'm grateful for the privilege,
18 however, I do believe that you will agree with me when I say that we
19 should not combine legal systems, and even if we do combine legal
20 systems, then we should not take from each system that which is
21 disadvantageous for the accused. Anyway, I'm grateful for your vision,
22 and I agree with the way in which you view the problem. I really do not
23 want to meet these witnesses in the position of the accused but as the
24 head of the Defence team. So my minimal requirement is to see at least
25 some witnesses. Markale is important for the overall life over there.
Page 412
1 It is impossible to live together in a community or live nearby if the
2 lie persists that the Serbs were responsible for Markale.
3 So the Court has to learn who is responsible for that and what
4 was done. So this is an extremely important witness. Now, what
5 Ms. Osure has just said, I understand now and realise that matters are
6 not only of a technical nature and that we'll have to come before the
7 Trial Chamber on many of these issues because they influence the fairness
8 of the trial itself. So this is a subject that we'll have to come back
9 to and take to the Trial Chamber, so it's not only a technical matter.
10 On the other hand, even if I do understand some obsessiveness about the
11 need to save in the Registry, I don't understand why in this particular
12 case and why now and why it should be cheaper for two or three of my
13 associates to go off somewhere instead of having one witness come in
14 here.
15 JUDGE BONOMY: Thank you.
16 The only other comment I have to make, Mr. Karadzic, is that this
17 may actually not be a fair trial issue. If the Trial Chamber has to rule
18 on it, then it will consider all the arguments that you've made. But as
19 I've already indicated to you, having a face-to-face meeting with a
20 witness is not necessarily an issue that goes to the issue of fairness of
21 the trial when there are other means of conducting the interview.
22 Anyway, enough said on this subject. The Chamber will deal with your
23 motion and will take account of all that's been said this morning.
24 Can I move now to your motion for a remedy for violation of your
25 rights in connection with your arrest before you were brought here. That
Page 413
1 motion is based on your contention that the arrest took place earlier
2 than the date that has been officially recognised. I've a simple
3 question on this. The Prosecution have responded. Do you seek to say
4 anything in response to the Prosecution's response?
5 THE ACCUSED: [Interpretation] Yes, Your Lordship, I would like to
6 respond to the Prosecution's response dated the 18th of August, and I can
7 do so my Monday, if that is all right. With your permission, might I be
8 allowed to do so by Monday, that is to say by the 24th?
9 JUDGE BONOMY: You may, but you're not in a position to do it
10 now?
11 THE ACCUSED: [Interpretation] Well, I would prefer it -- to do it
12 in writing, but I can state here and now that the Defence and I remain by
13 the position expressed by me. But I would prefer to offer a response in
14 writing by Monday; it will be more comprehensive.
15 JUDGE BONOMY: Very well. I will allow you to submit a reply by
16 the 24th.
17 The Prosecution have submitted a motion to rescind the protective
18 measures that apply to two witnesses. That motion was filed on the 27th
19 of July. You have been an advocate so far of the minimum of protective
20 measures. Do you have any opposition to this motion to render the
21 evidence public by rescinding protective measures?
22 THE ACCUSED: [Interpretation] Of course I'm not opposed to that,
23 and I appeal that all measures, protective measures, be rescinded except
24 in cases of witnesses that have precisely asked to be protected.
25 Witnesses have no need for protective measures if they're telling the
Page 414
1 truth.
2 JUDGE BONOMY: Well, I'm sure you realise it's not, by any means,
3 as simple as that. However, in relation to this motion, you need not
4 file a written response. I take note of the fact that you have no
5 objection, and the motion will be determined by the Trial Chamber in the
6 light of that information. There are certain other formalities
7 associated with an application of this case -- with this nature which are
8 being undertaken, and the decision will be made as soon as possible.
9 You've made a number of applications for binding orders for
10 material from a number of states around the world. One of these was
11 NATO, and when they responded to say that they had no material, you
12 withdrew your application. There have been two other responses, one from
13 Malta
14 both maintain that there is no material in relation to your request.
15 Have you already decided what action you will take in the light of these
16 responses, whether you will withdraw these also, or are you still
17 considering the position?
18 THE ACCUSED: [Interpretation] With respect to NATO, I have
19 withdrawn my request because I'm going to address the NATO member states.
20 Because I'm quite convinced that those documents and the information I
21 seek do exist, if not at NATO headquarters then in the various NATO
22 member states. As far as the Governments of Malta and Bangladesh are
23 concerned, I do not want to withdraw this yet because I am still
24 collecting information and documents which will enable me to make my
25 specific requests and will finally enable the Government of Malta to have
Page 415
1 exemplary cooperation with this institution which can serve as an example
2 to others. So once I collect all this information, I will be able to
3 pin-point what it is that the Government of Malta should supply and we
4 know that they have it, have that information.
5 Now, the problem with these requests made to governments of
6 international organisations which I'm making perhaps lies in the fact
7 that the governments do not respond straightaway, so then we have to go
8 and contact the Trial Chamber. On the other hand, governments are not
9 responding immediately probably because we're making our requests
10 privately, we're taking them privately and not through the services of
11 the Registry. If they were to receive this from an authority like the
12 Registries, the governments might see fit to answer straightaway and we
13 wouldn't have to go about it in this round about way and address the
14 Trial Chamber every time. So may I ask for your patience. Thank you for
15 your great understanding of these requests of ours, and we're going to
16 continue along the lines we've been working along so far.
17 JUDGE BONOMY: I note what you say. I don't know if there is any
18 change that may be appropriate in this case. I doubt it, but I will
19 obviously look at that question following the meeting this morning.
20 The Prosecution - and this is a matter which I will address them
21 now - the Prosecution have a number of motions for admission of the
22 evidence of former witnesses who are now deceased. Two of these motions
23 relate to witnesses 172 and 297, Milan Babic and Miroslav Deronjic
24 respectively. These -- the evidence of these witnesses has been admitted
25 in other cases, but in these other cases the application made by the
Page 416
1 Prosecution was much more focused than the application in this case. I
2 recognise that you were given dead-lines for submitting these
3 applications. I note that they all, included these two, came in either
4 at the dead-line or shortly after in light of an extension that was
5 granted. And I think these two may have come in even after the original
6 dead-line. The volume is very extensive. In the case of Babic, there's
7 a total of 2.118 pages of transcript and 309 exhibits, and these exhibits
8 vary in size greatly and some of them are very extensive. And in the
9 case of Deronjic, the testimony extends over more than a thousand pages,
10 whereas much more modest portions of this testimony of these witnesses
11 was sought to be admitted in other cases.
12 The Chamber is minded to invite you to look again at these
13 applications with a view to identifying which parts of the testimony you
14 really wish to rely upon, and bearing in mind that much of its
15 repetitive, to try to confine the submission to simply one occasion when
16 whatever crucial bit of evidence you're dealing with was dealt with in
17 the examination of the witnesses.
18 Now, can I have, first of all, your general reaction to that,
19 Mr. Tieger.
20 MR. TIEGER: Certainly, Your Honour. First of all, the Court's
21 recitation of the history, of course, is accurate, but I don't think that
22 should be understood as reflecting a -- an absence of selection by the
23 Prosecution in identifying the portions of the transcripts it sought to
24 have admitted. I would note that there are a number of factors that bore
25 on the Prosecution's selection. I want to bring those to the attention
Page 417
1 of the Court. That's not by way of rejecting the Court's invitation,
2 which, in any event, we're not in a position to do, but I want --
3 JUDGE BONOMY: Hold off. It's not a selection, it's everything?
4 MR. TIEGER: No, I don't believe it is, Your Honour.
5 JUDGE BONOMY: Can you assist me further on that then? In the
6 case of Deronjic, it's six transcripts of evidence in this Tribunal.
7 MR. TIEGER: I think the case -- what I have in mind in
8 particular - and I didn't review the submissions in their entirety - but
9 I know, for example, in the case of the Babic submission the selections
10 from the Martic case, for example, I recall as being fairly limited
11 and -- at least at a minimum the transcript was reviewed and selections
12 were made on a conscious basis --
13 JUDGE BONOMY: Well, maybe I've been misled, but it's clear -- my
14 clear information is that the entire transcripts in Milosevic, Krajisnik,
15 and Martic are sought to be admitted.
16 MR. TIEGER: Well, I would have to double-check that. That was,
17 as I say, not consistent with my recollection and my quick review
18 yesterday, but if that is the Court's understanding, I'll proceed on that
19 basis because there are other factors I wanted to bring to the Court's
20 attention.
21 JUDGE BONOMY: Well, the motion for Babic is clearly to seek to
22 admit the prior testimony and associated exhibits in the Milosevic,
23 Krajisnik, and Martic trials, as well as his statement of 29th
24 March 2004.
25 MR. TIEGER: The distinction between the two views we've just
Page 418
1 presented are not whether or not there are -- whether or not those
2 transcripts are implicated by the motion, but whether or not the entirety
3 of those transcripts were involved. I fully accept the possibility that
4 my recollection of this is inaccurate. In any event, I can tell the
5 Court that the transcripts were reviewed in their entirety before the
6 motions were made. It was not a matter of simply seeking the admission
7 of those transcripts without consideration of their content. And if I
8 may, I want to I think perhaps more usefully to identify some of the
9 considerations that went into the submission itself. And that's
10 basically this, Your Honour, it occurred to us there were fundamentally
11 too broad approaches that can be taken to such a motion; one is one which
12 mimics the trial process, whereby the Prosecution identifies that
13 evidence it is most concerned with bringing to the attention of the Court
14 or that most efficiently identifies the kernel of the evidential base
15 that it wishes the Court to note. That would -- that's essentially
16 equivalent of direct examination, which is followed by a
17 cross-examination, which is followed by a re-direct examination, which
18 includes such things as prior consistent statements and so on and
19 clarifications of the issues raised during cross-examination. That's a
20 serial process that we -- that involves time considerations.
21 What we sought to do was to anticipate as much as possible those
22 concerns, and in one fell swoop to bring to the Court's attention all of
23 the information which we considered would be useful to the Court in
24 assessing weight and making it -- that determination and forming
25 judgements about consistency and reliability, issues which were raised by
Page 419
1 the accused in preliminary motions and comments, and thereby both assist
2 the Chamber and obviate the need for serial and progress filings. So
3 that -- for that reason, I would submit that the approach adopted has
4 benefits both of an expeditious nature and also in providing the Court
5 with the information that it can most usefully rely upon to make the
6 assessments which it will be called upon to make.
7 Now, again, I accept that the Court may have a different view --
8 JUDGE BONOMY: I'm afraid I don't understand your two different
9 approaches. I've got lost somewhere along the way in that submission.
10 What is it you say are the two different ways of doing this?
11 MR. TIEGER: Well, one way essentially mimics a courtroom
12 process. The Prosecution simply puts on -- asks questions during the
13 course of direct examination and focuses on particular issues. That is
14 followed by cross-examination, which is then followed by re-direct
15 examination. The Prosecution submissions in these motions, we submit,
16 embrace all of those components. In other words, the Prosecution's
17 submission that is tailored most narrowly to the -- in the manner
18 suggested by the Court initially would presumably include -- not include
19 much in the way, if any, cross-examination and would not include material
20 which was necessary to clarify cross-examination material.
21 JUDGE BONOMY: Well, you see, I don't really understand that. I
22 thought it would. I thought if you were being a fair Prosecutor and the
23 witness dealt with a particular matter, you would present all that was
24 said on that matter in chief, cross, and in re-examination. But I'm much
25 more concerned about the failure to focus on what's relevant to this
Page 420
1 case. I mean, the -- I mean, I can give you a limited number of examples
2 of the sort of thing that's causing concern. I mean, when
3 Ms. Uertz-Retzlaff embarks on an exploration of the Republic of -- I'm
4 sorry, embarks on an examination of a map and takes the witness to
5 various parts of Croatia
6 population in parts of Croatia
7 that to this trial.
8 Now, I know that you're going to say that there was an ongoing --
9 or developing policy of building on what had happened in Croatia
10 following, perhaps, the example of what had happened in Croatia
11 Bosnia
12 we're exploring the detail and history of what happened in Croatia
13 at this moment, it seems to me that you would have to justify tendering
14 parts of the evidence that relate to places that don't feature in this
15 trial. And you may be able to do that. But at the moment, it's very
16 difficult for the Trial Chamber to look at this with any measure of
17 confidence that they are allowing or would be allowing the -- into the
18 trial material that has a bearing on the significant issues in the case.
19 Now, I know that a lot of it does -- in fact, the majority of at
20 least one transcript of Babic does, but we must, I think, have a focused
21 approach. And 309 exhibits is a colossal amount of material to be
22 assessed in relation to one witness, and many of these exhibits, on the
23 face of it, do not have anything to do with the issues in this case. So
24 if, of course, there's a bit of evidence that they're linked to and
25 somehow or another they're an indispensable part of that evidence, then
Page 421
1 they end up in the case but don't assist us. So perhaps neither the
2 evidence nor the exhibits should be before the Court.
3 I don't think we'll make much progress in discussing this today.
4 I was simply curious to know if my assumption that you're just throwing
5 everything at the Chamber is correct, and you've already indicated that
6 that's wrong. So I'm inclined, as I think the rest of the Chamber will
7 be, to make an order requiring you to do certain things in relation to
8 these two particular cases. The other 92 quater motions you've made are
9 quite different from this, in our view, and will be capable of being
10 dealt with on the basis of what we have. It may not be possible to deal
11 with them just at this stage, and it may be that there are certain issues
12 that have to await the outcome of the Pre-Trial Conference, but we will
13 deal with some of these before the trial starts. We will leave the
14 92 bis ones until the trial has actually started, but the work is being
15 done on these to -- so that a quick decision can be taken. And we will
16 invite you to make further comments about these two in particular to
17 assist us to identify whether there is a way of presenting the evidence
18 of these witnesses in a more focused way.
19 MR. TIEGER: I understand, Your Honour. And just so that I'm
20 understood, I certainly wouldn't suggest that there can be no
21 identifiable difference between some of -- between the significance of
22 some of the tendered evidence and other portions. I think that would be
23 disingenuous to suggest that and I don't think that's the case with any
24 witness's testimony. But I do re-affirm that efforts were made to look
25 for and identify the relevance of material that was submitted.
Page 422
1 Now, that is a different story, perhaps, from the need for a
2 narrower focus for purposes of precision and expedition, and I understand
3 the Court's concerns.
4 JUDGE BONOMY: Yeah, well, I can't let it go unsaid, Mr. Tieger.
5 On the face of it, there doesn't -- there isn't a selection made, unless
6 we have misunderstood your motion. Now, that may have been a deliberate
7 choice on your part, but it is not at all clear to me at the moment that
8 it was. So even that will be the subject of our order. We will need
9 clarification of that very basic point itself. Thank you.
10 Now, Mr. Karadzic, I doubt if there's anything in particular you
11 can say that will assist on this. The -- what the Chamber wants is more
12 information to enable it to make a proper decision about these witnesses,
13 but if you think you can assist at this moment, please tell me anything
14 you wish to say.
15 THE ACCUSED: [Interpretation] Thank you, Your Lordship. I have
16 to use this opportunity, which is one of setting an example of inundating
17 the Defence which you noted quite correctly. So I thank you for saying
18 that the Trial Chamber will control the volume presented by the
19 Prosecution, but this is an example of inundation of the Defence by the
20 Prosecution, making it difficult for the Defence to prepare itself. I'm
21 not interested in reducing and redacting witness statements here under
22 92 quater by the Prosecution because by the very nature of the matter,
23 the Prosecution is going to leave out matters which are advantageous to
24 the accused. So that means that if the -- well, if these witnesses
25 appear at all, the Defence must take into consideration everything they
Page 423
1 said at all times. So I'm not assisted by the Prosecution's redaction
2 and reduction of their statements and testimony and material, supporting
3 material, which they wish to admit into evidence through those witnesses.
4 Furthermore, I'm wondering whether it is really necessary in
5 addition to the 500 witnesses 40.000 documents, 24.500 exhibits, whether
6 it is really necessary for my learned colleagues over there - and I am
7 acting as lead Defence counsel here - is it necessary to have four more
8 people who have passed away whom we cannot examine, so is it necessary to
9 bring in their statements and testimony here into court and then flood
10 them with 300-odd exhibits for this one exhibit -- witness whom we are
11 unable to cross-examine --
12 JUDGE BONOMY: I'm going to stop you there because you're not
13 really addressing the only issue that arises today, and that is whether
14 it is necessary for this whole matter to be the subject of further
15 submission. I think you're agreeing that it is because you oppose the
16 admission of this evidence in its entirety, but I note also your position
17 seems to be that if it is to be admitted then all of it should be. So in
18 other words, you then are inundated with the totality of, in this
19 instance, three and a half thousand pages of transcript and something
20 like 400 exhibits.
21 THE ACCUSED: [Interpretation] Well, yes, Your Lordship. But if
22 the redaction and reduction is done by the Prosecution, I still have to
23 look through the whole material to see what they've left out and why.
24 JUDGE BONOMY: Well, I'm afraid that's the job your team is going
25 to have to do if, in fact, the Prosecution do that. But at the moment,
Page 424
1 there isn't actually an indication that they will reduce it. So you're
2 trying to address a subject which may not turn out quite the way that you
3 perceive it at the moment. So I can simply confirm now that the Chamber
4 will make an order requiring the Prosecution to provide further details
5 in relation to these two motions. You obviously will have an opportunity
6 to respond to that and these decisions will be made in due course. It
7 follows that this evidence, if it is admitted into the trial at all, will
8 not be admitted at an early stage in the trial but probably very late on
9 in the proceedings.
10 MR. TIEGER: Your Honour, excuse me, sorry. If I can just
11 clarify two issues very quickly. Number one, and I appreciate the Court
12 has indicated its intentions in this matter, but to the extent the Court
13 might find it necessary to raise the issue of whether or not a selection
14 was made based on my prior comments, I need to retract those. What -- I
15 quickly re-read my own notes and misread them. The Court's position is
16 quite accurate on that. In fact, the decision was made on the --
17 precisely on the basis that the accused just mentioned, that is, that it
18 is our consideration that any redactions would be viewed by the accused
19 as being injudicious and unfair and for the reasons I said earlier. The
20 second thing I wanted to raise was it's my understanding that in the
21 Popovic case all of the Deronjic testimonies, previous testimonies, were
22 intended or sought by the Prosecution to be admitted, but for procedural
23 reasons, they were not. So I don't think this reflects a shift in
24 position, although the Court is correct about the -- what was and what
25 was not admitted in that previous case.
Page 425
1 JUDGE BONOMY: Thank you for clarifying that.
2 Now, Dr. Karadzic, I referred at the beginning of the
3 Status Conference to the meeting that took place on Monday, I think, at
4 which one of your legal associates attended. That meeting related to
5 Defence experts and the efforts that I've been making to try to ensure
6 that your experts get as much material as is reasonable in the
7 circumstances to complete their work. I don't require to know what's
8 been going on since. I know there have been helpful developments which
9 have resulted in our expert -- one of your experts being put in direct
10 contact with the ICMP. I only want to know today whether something has
11 happened that you think I ought to intervene on again or whether you
12 accept that for the moment matters are progressing in the hands of your
13 associates and the Registry staff.
14 THE ACCUSED: [Interpretation] I believe, Your Lordship, that
15 cooperation is improving and moving ahead, and I would like to inform you
16 that all the things that we do not need to dispute, we will not dispute.
17 For example, the graphologist case, the Defence of one of the accused has
18 agreed not to dispute the signatures, and we're not going to dispute
19 that. So we're going to save some time with the expert, and we are going
20 to save that time for the use of other experts. We also wanted -- I also
21 wanted to inform you that in that meeting, I can see from the transcript
22 we were wrongly understood, that we are opposed to the allocation of
23 hours from the Defence for the experts at this phase. We're not opposed
24 to that. Professor Dunjic believes it's more rational for him to carry
25 out that work now even if we will take away hours from the Defence,
Page 426
1 rather than do it in several batches when you lose freshness and
2 continuity. Stojkovic has directly gotten in touch with the ICMP and I
3 hope that that will yield some results.
4 In any case, I must say that my experts cannot use previous work
5 because -- concerning the previous work they did not receive the material
6 that they needed in order to be able to receive that, but now with your
7 intervention, they are going to receive that complete material so that
8 they could provide their proper opinion. The letter of Mr. Dunjic was
9 submitted for official translation, so that will also then help you to
10 have complete information about the matter.
11 JUDGE BONOMY: Thank you.
12 I now want to move away from these interlocutory pre-trial issues
13 to what is next on the agenda for this case in general.
14 Mr. Tieger, as you know, the Chamber made an order that the
15 Prosecution should make submissions in relation to the application of
16 Rule 73 bis by the end of this month, the 31st of August, with a view to
17 the Chamber being fully informed leading up to the Pre-Trial Conference.
18 Can I take it that we are on schedule for that submission to be presented
19 timelessly?
20 MR. TIEGER: Yes, Your Honour.
21 JUDGE BONOMY: Now, the Rule does not require the Trial Chamber
22 to hear from the Defence, but I think it is traditionally the case that
23 the Defence do have a part to play in the Pre-Trial Conference, and
24 speaking of myself, I can't really perceive of an adequate
25 Pre-Trial Conference without participation by the Defence.
Page 427
1 Mr. Karadzic, when this order was made, you were not required to
2 make a submission about Rule 73 bis, but you can take it that in the
3 context of the Pre-Trial Conference, you will have an opportunity of
4 making whatever submissions you wish to make. It's for you to decide
5 once you see the submission of the Prosecution, due on the 31st of
6 August, whether you wish to make a presentation in writing or whether you
7 want to do it orally at the Pre-Trial Conference. But I think you may
8 find the Trial Chamber would consider it beneficial to have an
9 indication, at least in writing prior to the Pre-Trial Conference, of
10 your general view of the -- of how Rule 73 bis might be applied to this
11 case. That's the various provisions in that Rule.
12 So do not feel that because you were not required to make a
13 submission you will not have your say; you will, indeed, have your say at
14 the appropriate time and in the appropriate form.
15 Now, that completes the matters that I wished to address in this
16 Status Conference.
17 Mr. Tieger, is there any matter that the Prosecution wish to
18 raise?
19 MR. TIEGER: Just two matters quickly, Your Honour. In
20 connection with the Court's invitation regardless the 92 ter quater
21 motions, I would ask the Court, if possible, to consider the
22 Prosecution's current focus on the 73 bis matter, and I would ask that
23 the -- any dead-line for the 92 quater submission be after that.
24 JUDGE BONOMY: Seems reasonable.
25 MR. TIEGER: Secondly, I would just note that in connection with
Page 428
1 some of the logistical aspects of trial preparation, the Prosecution
2 would require a certain amount of time before the trial commenced, that
3 is a period of time when it was that -- certain of the trial commencement
4 dates so witnesses could be informed and other preparatory steps could be
5 taken in concrete terms. That has traditionally, at least as I am
6 familiar with it, been noted as four to six weeks. So I would ask that
7 the Court consider the Prosecution would require four weeks in advance of
8 the concrete trial commencement date so that adequate preparatory steps
9 could be undertaken.
10 JUDGE BONOMY: Thank you.
11 Mr. Karadzic, any matter you wish to raise?
12 THE ACCUSED: [Interpretation] First I would like to say that I
13 cannot wait for this final version of the indictment and the volume of
14 the material that I will be working with. In the preparation period, I
15 went through some municipalities in alphabetical order, for example,
16 Bileca which is not going to be in the final indictment, so I lost a lot
17 of time preparing on that. And I am sure that we are going to use the
18 option to state our position on Rule 73 bis on the manner the Prosecution
19 approach that matter.
20 As for preparations, Your Lordship, I would -- well, I would like
21 to ask you to pass to the Trial Chamber my desire for a Status Conference
22 before any decision on the start of the trial date is made in order that
23 I can have an idea and also perhaps for purposes of clarification of some
24 matters. If any decision was made, we would have problems to coordinate
25 the pace of work and to be ready to proceed with the trial without any
Page 429
1 postponements. That is concerning that matter.
2 I've known for some time now that you are actually leaving
3 directly -- that you are leaving this case, and because I knew that, I
4 referred to St. Andrew, otherwise I would not have done that. So if that
5 is the case, I would like, at the end, to say a few words about that, if
6 I may.
7 As far as my problems and my topics are concerned, unfortunately,
8 I really need to refer here to the difficulties the Defence is
9 encountering in the preparation of its case which are mostly of a
10 technical nature. For example, I still don't have a server that should
11 have been operational already by mid-June. The computer is quite bad.
12 I've been promised a better computer but this hasn't happened yet. I
13 have to buy my own software, and even if I had the money to buy the
14 software, I am having a lot of difficulties to receive the software and
15 to install it. I have agreed to accept all materials in electronic form,
16 but once that I accepted that it means that you have saved a lot of funds
17 on paper but -- and I would be need to be given the instruments to be
18 able to read that. If I'm given very small letters, I need to be given
19 glasses, otherwise I cannot use the material, it's of no use to me. So
20 this frugality of the Registry is a little bit suspect to me, but I think
21 that this is not the best example to apply measures of economy because I
22 think I would need to process almost a million pages. I would need 300
23 days to listen to the audio and video testimony. This is a vast amount
24 of problems that I really need to present to you. And to ask for some
25 assistance -- for something to be done about that. I don't have a fax.
Page 430
1 I don't have a telephone. I have to conduct contacts with 30 or 40 of my
2 associates using just regular commercial phone lines, which are also
3 there for the use of the other accused, so I'm taking time away from them
4 and the option for them to be able to talk to their families, but they
5 also have a need to speak with their families and their lawyers.
6 So the difficulties that I am encountering are quite significant.
7 I don't like to complain, but these are unsurmountable difficulties, and
8 without the understanding of the Registry, and, in this case, without
9 your understanding and assistance, it will be difficult. It would be
10 very good if the Prosecution were to provide all the materials at once
11 and in a systematised fashion because they are doing it intermittently,
12 many cases have one number or different numbers. For example, I'm having
13 difficulties -- I'm asking for a list of all the killed fighters of the
14 Army of Bosnia and Herzegovina, then I would get some for Sarajevo
15 I would get a little bit for Tuzla
16 Bihac, so this is very scattered, this approach. And it would also be
17 important for me if the Prosecution were to provide to me everything they
18 have on the Party of Democratic Action in the same way that the
19 Prosecution has all the documents from meetings of the Serbian Democratic
20 Party. I would at least need to have all such documents that refer to
21 the Party of Democratic Action.
22 I would also like to ask you to intercede on my behalf for all
23 intercepted conversations of the late Mr. Izetbegovic with his associates
24 be delivered to me as well as the conversations of his associates amongst
25 themselves, just as all the transcripts of the Serbian side too. I do
Page 431
1 not dispute the right to this phone tabbing before the war. It was
2 illegitimate and because we were in the -- it was something that should
3 not have been done because we were in the government.
4 So I would also like to have the transcripts of -- all of their
5 conversations -- actually, perhaps they might say that there are no such
6 conversations and that was only the Serbian side that was eavesdropping
7 on the conversations. Perhaps in order to avoid selectivity in this
8 approach, perhaps the democratic powers that took over from the communist
9 rule -- it might seem that the Serb side within that democratically
10 elected government was eavesdropping on the Bosnian politicians, but I
11 don't believe that that was the case; I think that it probably worked in
12 the other direction as well. So I would like to be provided with all of
13 those documents.
14 This is a kind of summary of the key things that would need to be
15 done. If the Prosecution wishes to reduce the volume of the material in
16 this case to a reasonable degree, some things would be important to me;
17 for example, what is implied by the term "Sarajevo." Sarajevo
18 or Sarajevo
19 the Sarajevo
20 entities. I would like to know what is the difference between men and
21 boys or young men. These definitions would be important for me. Some of
22 these things are making the whole proceedings not transparent. They're
23 making it a little bit indistinct and sloppy. So I would perhaps like
24 the whole thing to be stream-lined and tightened a bit for a more
25 efficient case.
Page 432
1 These are all the matters that I wish to initiate. I could talk
2 about each of these points in much more detail, but this is just a
3 summary just so that you have an idea of all the problems that I am
4 encountering with this enormous, vast, neglected, sloppy case which has
5 vast importance not only for myself but also for that whole region and
6 the parties and the people in that area who have been reduced to a state
7 where they are hardly managing to survive.
8 JUDGE BONOMY: Dr. Karadzic, this has come as quite a surprise to
9 me. It's the first time since you've first appeared before me that I
10 have formed the impression that you're not in complete control of your
11 case. You've given a clear indication that you are not making proper use
12 of the facilities that this Tribunal has provided for you. You have a
13 pro se liaison officer who relays your concerns to the Registry. You've
14 mentioned a number of basic technological difficulties you have. None of
15 these have been raised with me in any form in the recent past, and there
16 are avenues for you to raise these matters with the officials of the
17 Tribunal. You've then raised a number of matters which relate to the
18 evidence in the case and the requests that you now make, whether you've
19 made them already to the Prosecution's not clear, but that's where the
20 requests should be made for material. And in the event of their failure
21 to give you material, then is the time to come and ask the Trial Chamber
22 for that assistance.
23 So I note all that you've said. Insofar as I consider it
24 appropriate, I will make inquiries behind the scenes to see if there is
25 any assistance I can provide. I do not believe that I can do anything in
Page 433
1 relation to the evidential material you've referred to because that's a
2 matter that you and your associates can deal with directly with the
3 Prosecution and then raise with the Trial Chamber as you consider
4 appropriate. But on the other matters, then, I will see if there is any
5 assistance that I or the Trial Chamber can provide.
6 As always, everything you said has been carefully noted. Now,
7 you say you wanted to say something else. This is your final opportunity
8 because I'm about to adjourn this Status Conference.
9 THE ACCUSED: [Interpretation] Thank you, Your Lordship. I'm
10 refraining from making criticisms and comments with respect to anything
11 in the Detention Unit or things which relate to the Registry because I do
12 believe that it's not the problem of ill will on the part of those
13 people, it's just the poor Rules that exist. But as I know that many
14 more important rules have been changed and amended in this Court, then I
15 do believe these rules can be changed too. Now, if this is the end of
16 the session, then I would like to express my gratitude to you for the
17 very keen attention you have given to these proceedings and the pre-trial
18 and for showing understanding for the Defence. You and the Trial Chamber
19 have shown a great deal of understanding, you have always endeavoured to
20 help us and we have always endeavoured not to come before the
21 Trial Chamber with any things that could be solved in another way.
22 Now, of course, I feel that the first concept of not guilty
23 remains -- or you entered the plea of not guilty at the beginning.
24 Somebody else will have to do the same and say "not guilty" at the end,
25 but anyway I would like to thank you for everything you've done.
Page 434
1 JUDGE BONOMY: Thank you for your comments, Dr. Karadzic. As you
2 might expect, I hope that justice is done in your case.
3 Mr. Tieger.
4 MR. TIEGER: Yes, Your Honour, before we adjourn, if the Court
5 will permit me, I have refrained from saying anything before the matter
6 of this appearance was raised, but now that it has been at least briefly
7 alluded to, I hope the Court will permit me to say on behalf of the
8 entire OTP that it has been a great privilege and, indeed, an honour for
9 all of us to appear before you on various matters that you have presided
10 over in this Tribunal.
11 JUDGE BONOMY: Well, that's very kind of you to say. Thank you,
12 Mr. Tieger.
13 Mr. Tieger, Ms. Uertz-Retzlaff, Mr. Reid, and Dr. Karadzic, it's
14 my opinion that this trial -- this case is now ready for trial, and that
15 is the report I will submit to the President. There is obviously
16 outstanding one appeal which may have a bearing on that, of course, and
17 that relates to your Holbrooke Agreement motion. But with that
18 indication in mind, it is important - and this applies to both the
19 Prosecution and the Defence, but particularly I direct these words to
20 you, Dr. Karadzic - it is important to devote inadequate time to
21 preparing to deal with the factual evidence that will be led in the
22 trial. And I encourage you to pay close attention and direct your legal
23 associates, who will be much more aware, I suspect, than you of the
24 point, but to direct as much of your time and attention as you can to
25 preparing to deal with the evidence that will be led.
Page 435
1 I now adjourn the Status Conference.
2 --- Whereupon the Status Conference
3 adjourned at 11.20 a.m.
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