Tribunal Criminal Tribunal for the Former Yugoslavia

Page 674

 1                           Tuesday, 3 November 2009

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 2.14 p.m.

 5             JUDGE KWON:  Would the Registrar please call the case.

 6             THE REGISTRAR:  Thank you and good afternoon, Your Honours.  This

 7     is case number IT-95-5/18-T, the Prosecutor versus Radovan Karadzic.

 8             JUDGE KWON:  Thank you.  Good afternoon, everybody.  The Chamber

 9     is sitting in full Bench today, comprised of myself,

10     Judge Howard Morrison to my right, Judge Melville Baird to my left, and

11     Judge Flavia Lattanzi to my far right as our Reserve Judge.

12             This is an administrative hearing to discuss the manner in which

13     the trial will proceed.  I would like first to have appearances for the

14     Prosecution.

15             MR. TIEGER:  Good afternoon, Mr. President, Your Honours.

16     Alan Tieger, Hildegard Uertz-Retzlaff, and Iain Reid for the Prosecution.

17             JUDGE KWON:  Thank you, Mr. Tieger.

18             Mr. Karadzic, I take it that you are following the proceedings in

19     the language you understand?

20             THE ACCUSED: [No interpretation]

21             JUDGE KWON:  Thank you.  I will not repeat that question in the

22     proceedings that will follow in the future, so if you could let me know

23     at any moment should you have any problem in following the proceedings in

24     the language you understand.

25             I note that you are here alone.  I take it that you continue to

Page 675

 1     represent yourself?

 2             THE ACCUSED: [Interpretation] That's right, Your Excellency.

 3             JUDGE KWON:  Very well.

 4             Last week, in light of the absence of Mr. Karadzic at the

 5     commencement of trial and his continued voluntary absence during the

 6     hearing of the Prosecution's opening statement, despite repeated warnings

 7     from the Chamber, I announced that the Chamber would make its decision on

 8     the manner in which the trial will proceed following oral submissions

 9     from the parties today.  I raised a number of specific matters for the

10     parties to consider and state their positions on.  I will repeat these

11     now.

12             One:  Proceedings with a trial in the absence of the accused and

13     in the absence of any counsel to represent him.

14             Two:  The assignment of counsel to the accused and the various

15     roles an assigned counsel may be given, both in near future and as the

16     trial progresses.

17             Or three:  The appointment of an amicus curiae.

18             And four:  The possible adjournment of trial proceedings to allow

19     adequate time for an assigned counsel to prepare.

20             And, lastly, five:  Other suggested ways of ensuring the trial

21     can proceed should the accused continue to voluntarily absent himself

22     from the courtroom.

23             Before discussing these issues in more detail, I would like to

24     ask you, Mr. Karadzic, whether you maintain your position that you will

25     not attend the trial proceedings and that you would therefore not attend

Page 676

 1     tomorrow's hearing in which the Prosecution will commence the

 2     presentation of its evidence?

 3             THE ACCUSED: [Interpretation] Your Excellencies, I in no way wish

 4     to boycott this process.  It is both for me and the people I represent

 5     and for all the people over there very important, and it is the last

 6     defence, the last opportunity of arriving at the truth.  And we can

 7     arrive at that truth in the manner in which my -- if my Defence functions

 8     properly.  However, had we had this Trial Chamber with us from the

 9     beginning, they would have been able to see how many times I've asked for

10     disclosure on a regular basis and on time.  And even Lord Bonomy gave

11     certain instructions in that respect.

12             I don't want to boycott this -- these proceedings, but I cannot

13     take part in something that has been bad from the start and where my

14     fundamental rights have been violated, first of all, stemming from

15     Article 21 of the Statute, that is to say, the right to have enough time

16     to prepare my defence under proper circumstances.

17             So these proceedings cannot start out on the right footing and

18     end properly if you're expecting me, in five months, from the 18th of May

19     to the present day, to get through 1.300.000 pages which I received from

20     the Prosecution.  And at least 700.000 pages of my own material which I

21     need to use to challenge the Prosecution case and the Prosecution

22     evidence in this courtroom.

23             So regardless of my position and attitude towards the entire

24     Tribunal, I'm going to file two motions in the coming days challenging

25     the jurisdiction of the Tribunal, but apart from that, I don't want

Page 677

 1     anybody to think in this courtroom, least of all the Trial Chamber or the

 2     other party, that there's any question of any personal disrespect.  But

 3     the situation is such that I would really be a criminal if I were to

 4     accept these conditions, to enter a trial on proceedings for which I'm

 5     not prepared.  I cannot challenge anything that the Prosecution is going

 6     to put forward with so much material unless I'm given more time.  And

 7     although certain reductions have been made with respect to the individual

 8     municipalities, I still have 45.000 documents, 23.000 exhibits to get

 9     through, a vast number of witnesses, and, as I said, 1.300.000 pages of

10     material and 300 days of audio and visual, especially audio testimony,

11     which I have to listen through.  I have to listen through those tapes

12     because after all my English is not as good to allow me to get through it

13     very quickly.

14             So I can't understand you, Your Excellencies, in whose interest

15     is it for this trial not to be a good one, these proceedings not to be

16     good?  I don't think it's even in the Prosecution's interests, but it is

17     in the interests of the Trial Chamber, the United Nations, and me -- or

18     rather, it cannot be in their interests for this trial not to be fair and

19     conducted properly.  And it can't be conducted properly unless I'm well

20     prepared.

21             And let me remind you at the very outset that the Defence is

22     taking a very serious approach to the trial, and we have invested several

23     hundred motions.  We filed several hundred motions properly written by

24     leading experts who are assisting me in my defence.  And I have had

25     several hundred other communications with the Prosecution, with the

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 1     Trial Chamber, and with the Registry as well, all of which proves that

 2     we've been working throughout, the whole time, and we've been working

 3     from May.  For the past five months, I have invested inhuman effort.  I

 4     have given up my walks in the fresh air and sport to be able to focus on

 5     the material at hand, but it's just too vast.

 6             So what I want to say is that we are doing everything in our

 7     power and we shall do everything in our power to be ready for trial.  And

 8     I'd like to apologise to you because Ms. Uertz-Retzlaff probably

 9     misunderstood me.  I wasn't clear enough.  I said -- she said that I said

10     in my letter that I would come into court when I was ready.  I will come

11     into court before the ten months expire, which is the dead-line I asked.

12     So I will come into court as soon as I'm ready, and I'll inform you all

13     two or three weeks in advance, and I'll come in.  So this is my

14     fundamental right, to be prepared for trial; otherwise, what kind of a

15     trial is it going to be if the Defence isn't a proper Defence?

16             So that then is my position, and I would like you to take it

17     seriously because the Defence has been serious all the time.  But it has

18     encountered obstacles.  And I have to say that from the very beginning

19     the Defence has encountered nothing but obstacles.

20             JUDGE KWON:  Mr. Karadzic, you are simply repeating the

21     submissions that you have made before this Trial Chamber and before the

22     Appeals Chamber concerning your views on the time that has been available

23     to you to prepare for the trial.  This Trial Chamber and the

24     Appeals Chamber have carefully considered these submissions and

25     determined that you have had adequate preparation time.  Clearly, you

Page 679

 1     disagree with these decisions.  However, as I previously stated to you,

 2     it is the Trial Chamber, not an accused person, which determines

 3     readiness for trial, taking into account all the relevant circumstances,

 4     and ensuring that the trial is conducted fairly and expeditiously.

 5             The Chamber appreciates that you are preparing your trial very

 6     hard and appreciate your efforts; but at the same time, I note that you

 7     were reminded and advised by the former Pre-Trial Judge Lord Bonomy, as

 8     you referred to, on more than one occasion that you should be devoting

 9     your resources to and concentrating your efforts on preparation for the

10     trial itself.  So at the end of the day, I again remind you that it is in

11     your best interest to attend and participate fully in the trial so that

12     justice can be done.

13             That said, coming to the main agenda, I would now like to invite

14     the Prosecution to make its submission on the issues that I have

15     identified.

16             Ms. Uertz-Retzlaff, please.

17             MS. UERTZ-RETZLAFF:  Thank you, Your Honour.

18             Your Honours, before I begin, let me just note for the record

19     that this is the first [sic] day of the trial proceedings.  My submission

20     today will proceed in the following order:  First, I will make a

21     preliminary point about the Trial Chamber's right to compel

22     Mr. Karadzic's attendance in the courtroom; and then I will address two

23     options for proceeding with the trial.

24             The first scenario explores options for commencing with

25     Mr. Karadzic's opening statement and the first three Prosecution

Page 680

 1     witnesses within a short time-frame, coupled with the designation of a

 2     duty counsel.  The second scenario concerns the appointment of counsel if

 3     Mr. Karadzic maintains his insistence that he cannot proceed with the

 4     trial within a short time-frame.

 5             Finally, I will make some additional submissions in answer to the

 6     questions posed by Your Honour, Judge Kwon, for the parties to address

 7     today.

 8             Overall, our objective must be to ensure a fair and expeditious

 9     conduct of the proceedings in accordance with Article 20 of the Statute.

10     As part of this objective, Mr. Karadzic cannot be permitted to manipulate

11     the proceedings through his decision to not attend hearings.  As the

12     New South Wales Court of Criminal Appeal in Australia has stated:

13             "The trial process must not be allowed to degenerate, by reason

14     for manipulation by the accused, to the position where it is at his or

15     her mercy.  This would be so inimical to the public interest and the

16     general administration of justice that it would necessarily lead to an

17     undermining of public confidence in the criminal justice system."

18             That's a quote from the case Regina versus BK from 2000.

19             As a preliminary point, we note that Mr. Karadzic, through his

20     attendance at the hearing today, is, in fact, attending his trial.  If at

21     a future point the Chamber considers it appropriate to compel

22     Mr. Karadzic's attendance at this trial, there can be no doubt that the

23     Chamber has the power to do so.  This includes compelling Mr. Karadzic's

24     attendance for the beginning of the evidence.

25             If necessary, force can be used to secure his presence in the

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 1     courtroom.  This is inherent in the fact that Mr. Karadzic has been

 2     deprived of his liberty.  Mr. Karadzic was arrested and transferred to

 3     the United Nations Detention Unit and is there ever since detained

 4     precisely for the purpose of ensuring his appearance to answer to the

 5     criminal charges against him.

 6             The fact that Mr. Karadzic has a right to be present for trial, a

 7     right that he can waive, does not negate the fact that he also has an

 8     obligation to be present.  I am prepared to make further submission on

 9     this particular point if it would assist the Trial Chamber and I would do

10     so later on.

11             Let me now first turn to option one in a way we can proceed.  As

12     a first step, the Prosecution suggests that the Trial Chamber may wish to

13     explore options for allowing the trial to proceed within a short period

14     of time with Mr. Karadzic's opening statement and the first three

15     witnesses on the Prosecution's list.

16             In this respect, the Trial Chamber may wish to ask Mr. Karadzic

17     the following questions:  Is there any reason why Mr. Karadzic could not,

18     in a few days' time, give his opening statement on the understanding that

19     he would be permitted to make a supplementary opening statement at the

20     commencement of his defence case if he so wishes?  How much time does

21     Mr. Karadzic consider that he would need before being able to make his

22     initial opening statement?  If he claims that he still needs a

23     substantial period of time to prepare even an initial opening statement,

24     he should explain why.

25             The next question would be:  How much time does Mr. Karadzic

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 1     consider that he needs to prepare for cross-examination of the

 2     Prosecution's first three witnesses?  I note that we have two witnesses

 3     lined up to commence their evidence tomorrow.  Given the fact that these

 4     three first witnesses are crime base witnesses, if Mr. Karadzic claims he

 5     needs more than a few days to prepare for each of them, he should explain

 6     why.

 7             Assuming that the trial could, within a short period of time,

 8     proceed with Mr. Karadzic's initial opening statement and these first

 9     three crime base witnesses, the Chamber may wish to take this path.  The

10     Chamber could then, on a rolling basis, entertain requests from

11     Mr. Karadzic for further short adjournments as the trial proceeds,

12     assuming, of course, that Mr. Karadzic is able to show good cause for

13     each requested adjournment.

14             However, at the same time, the Trial Chamber should seriously

15     consider designation of duty counsel, stand-by counsel.  In this

16     scenario, stand-by counsel would start familiarising themselves with the

17     case but would not play an active role in these proceedings.  The

18     appointment of stand-by counsel to perform this function would not, in

19     any way, limit or undermine Mr. Karadzic's right to self-representation.

20     Stand-by counsel would only be given an active role in these proceedings

21     if it becomes necessary to restrict or terminate Mr. Karadzic's right to

22     self-representation in the future.  If that happens, stand-by counsel

23     could step in with a minimum of delay.

24             However, if Mr. Karadzic participates in the proceedings, does

25     not obstruct the progress of the trial, and it is not otherwise in the

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 1     interests of justice to appoint counsel, the stand-by counsel need not

 2     play a role in these proceedings at all.

 3             The rationale for appointing a stand-by counsel to perform this

 4     type of reserve function is similar to that underlying the appointment of

 5     a fourth Judge in a large and complex trial like this one.

 6             Let me now turn to the second option.  If Mr. Karadzic maintains

 7     his refusal to participate in the proceedings - and it appears he

 8     does - the Trial Chamber should consider terminating his right of

 9     self-representation, and impose counsel.  The very purposes that led to

10     the establishment of this Tribunal must not be thwarted by a

11     self-represented accused.  In this scenario, by his voluntary and

12     persistent absence from the proceedings, Mr. Karadzic will have waived

13     his right to be present at trial.  The trial can then proceed in his

14     absence, provided that counsel be imposed to represent his interests.

15             As the ICTR Appeals Chamber confirmed in the case of Barayagwiza.

16             "... where an accused who is in the custody of the Tribunal

17     decides voluntarily not to be present at trial, it is in the interests of

18     justice to assign him or her counsel in order, in particular, to

19     guarantee the effective exercise of the other rights enshrined in

20     Article 20 of the Statute."

21             That's from the Nahimana appeal judgement, paragraph 109.

22             Mr. Karadzic's persistent refusal to attend court and to comply

23     with the orders of both the Trial Chamber and the Appeals Chamber

24     regarding the commencement of trial constitutes good grounds for

25     terminating his right of self-representation.  Mr. Karadzic failed to

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 1     appear for the Prosecution's opening statement, and he has stated his

 2     intention to persist in his boycott of many months.  He may not call it

 3     boycott, but it amounts to it.  This was confirmed most recently in his

 4     letter to Your Honour Judge Kwon on the 1st of November and today as

 5     well.

 6             If Mr. Karadzic maintains his position today, that he will not be

 7     ready for many months and refuses to participate, he is acting in a

 8     manner where his self-representation would substantially and persistently

 9     obstruct the proper and expeditious conduct of trial.  Pursuant to the

10     Appeals Chamber's ruling of the 1st November, 2004, in the

11     Slobodan Milosevic case, paragraph 13, a defendant's right to

12     self-representation can be curtailed in these circumstances.

13             I also refer to the Appeals Chamber decision of the

14     8th of December, 2006, case, paragraph 25, finding that the Trial Chamber

15     was entitled to impose counsel on Seselj in light of his behaviour, which

16     included "refusing to appear in court to represent himself."

17             This case law is consistent with Rule 45 ter of the

18     Rules of Procedure and Evidence, which permits a Chamber to assign

19     counsel to represent the interests of the accused when the interests of

20     justice so requires.  Once counsel is imposed, the trial can proceed even

21     in Mr. Karadzic's absence.

22             Your Honour, Judge Kwon, has already adequately warned

23     Mr. Karadzic that if he persists in his refusal to attend court, counsel

24     may be imposed.  I refer to Your Honour's remarks in the court on the

25     27th of October, 2009, where you told Mr. Karadzic that if he persisted

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 1     in his refusal to attend the trial, the Chamber may decide to continue

 2     the trial in his absence and to assign counsel to represent his interest

 3     for the remainder of the proceedings pursuant to Rule 45 ter.

 4             You also indicated your intention to hear Mr. Karadzic on this

 5     issue, and that's why we are here today.  Your Honour reiterated the

 6     warning to Mr. Karadzic at the conclusion of yesterday's proceedings.

 7     You stated that it was the third consecutive day of Mr. Karadzic's

 8     absence from court, despite having received several warnings, and that

 9     such attempts to obstruct the proper progress of the trial should not be

10     tolerated.

11             Your Honour, Judge Kwon, repeated the previous warning, that if

12     Karadzic continues to stay away, the Chamber may proceed in his absence

13     and assign counsel to represent him.  Mr. Karadzic was advised to

14     consider this warning carefully in advance of making his submissions.

15             Following the present hearing and in accordance with the

16     Appeals Chamber's 20 October 2006 decision in the Seselj case, and I

17     refer to paragraph 25, the Trial Chamber would be entitled to impose

18     counsel and proceed with the trial without Mr. Karadzic present.  As a

19     result of Mr. Karadzic's attendance here today, in combination with

20     events preceding it, there can be no doubt that Mr. Karadzic is aware

21     that the proceedings will commence with evidence being called against

22     him; that his failure to attend the court constitutes a waiver of his

23     right to be present; his intentional absence substantially and

24     persistently obstructs a proper and expeditious conduct of his trial and

25     may result in the termination of his right to self-representation; and

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 1     that counsel can and will be imposed to make sure his interests are

 2     represented.

 3             Once counsel is imposed due to Mr. Karadzic's obstructive

 4     conduct, Mr. Karadzic would not be entitled to re-assert his right to

 5     self-representation at some future point at his will.  An accused person

 6     who has lost the right of self-representation cannot simply opt back in

 7     at any time of his choosing by belatedly promising to stop the

 8     obstructive behaviour notwithstanding prior warnings leading to the

 9     appointment of counsel.

10             If the appointment of counsel could be reversed at any time, the

11     requirement of a warning to the accused to give them an opportunity to

12     correct their behaviour prior to the imposition of counsel would be

13     meaningless.  It would also run counter to the general notion that the

14     right of self-representation must be asserted and arguably, therefore,

15     pursued in a timely manner.

16             And as an example, I would like to refer to the

17     Krajisnik Trial Chamber decision of 18 August 2005, paragraphs 22 to 35,

18     and Rule 45(F), requiring an accused to notify the Registrar of his or

19     her intention to self-represent at the first opportunity.

20             If, in the future, Mr. Karadzic decides that he wants to attend

21     the proceedings and to participate in his defence, consideration could be

22     given at that time to whether and in what manner that is appropriate.

23     However, regardless of any role subsequently played by Mr. Karadzic in

24     the courtroom, imposed counsel would continue to have primary

25     responsibility for the conduct of the Defence.

Page 687

 1             In setting out these two options for proceeding, I have already

 2     answered, in part, the five questions raised by Your Honour, Judge Kwon,

 3     for the parties to address today.  I supplement these answers with the

 4     following:  First, on the question of proceeding with the trial in the

 5     absence of the accused and in the absence of any counsel to represent

 6     him.  The Prosecution leaves open the possibility that there may be

 7     circumstances in which a trial could proceed in the absence of the

 8     accused and in the absence of counsel; however, we were not aware of any

 9     such situation.  However, the Prosecution considers that in the

10     circumstances of this case the interests of justice require the

11     imposition of counsel if Mr. Karadzic is absent from the courtroom.  This

12     is consistent with the Appeals Chamber's decision in Barayagwiza, the

13     case that I have already referred to.

14             The next point is the question of appointing amicus curiae.  It

15     is difficult to see how the appointment of amicus curiae would serve the

16     interests of justice in the circumstances of this present case.  If

17     Mr. Karadzic is not present in court, counsel should be assigned to

18     represent his interests before the trial can proceed.  This -- the

19     appointment of amicus curiae could not substitute for appointment of

20     counsel.  Appointment of amicus curiae is rather a supplemental means in

21     case of a self-represented accused who exercises his right to

22     self-representation.  I refer here to the Milosevic case,

23     Slobodan Milosevic case, and to the order inviting designation of amicus

24     curiae of the 30th of August, 2001, where just this situation was

25     addressed.

Page 688

 1             The next point I want to turn to is adjournment of the trial to

 2     allow time for counsel to prepare.  Under option one that I have outlined

 3     in my submission today, where the trial would proceed with Mr. Karadzic

 4     representing himself and participating in trial, there would be no need

 5     to appoint counsel to represent him or to delay the proceedings

 6     significantly.  Stand-by counsel could be appointed as a back-up measure

 7     without any need to delay the proceedings.

 8             Under option two, where counsel is appointed to represent

 9     Mr. Karadzic's interests, there would inevitably be some delay because

10     the assigned counsel needs time to prepare.  However, the delay at this

11     juncture may be a reasonable price to pay for ensuring that the trial can

12     thereafter proceed expeditiously with assigned counsel in place.

13             Your Honour, I can make, if you wish so -- can make additional

14     submission on the ability to -- of the Court to compel Mr. Karadzic's

15     attendance in court, but I don't know whether you wish to address that or

16     whether this should be left for later.  And I can also give a few

17     additional remarks on the role of amicus curiae with a -- more

18     references, if you wish me to do so.  Otherwise, these would be the

19     submissions of the Prosecution.

20             JUDGE KWON:  How long would it take if you are to make

21     supplemental submission on the compelled attendance?

22             MS. UERTZ-RETZLAFF:  It's another five minutes I think.

23             JUDGE KWON:  Speaking for myself, I'm interested in hearing that.

24     Could you be brief on that?

25             MS. UERTZ-RETZLAFF:  Yes, okay.

Page 689

 1             The right of the Court to compel the attendance of the accused in

 2     courtroom is so basic that it's not always mentioned expressly in the

 3     Rules; however, this principle underpins the language in many provisions

 4     in the Tribunal's Rules of Procedure and Evidence.  And I will list some:

 5     Rule 40 bis (F), referring to an accused's first appearance states:

 6             "The suspect assisted by counsel shall be brought without delay

 7     before the Judge."

 8             Rule 62 states:

 9             "The accused shall be brought before that -- before Trial Chamber

10     or a Judge thereof without delay and shall be formally charged."

11             Rule 64 authorises an accused's detention.

12             Rule 65(C) authorises a Trial Chamber to set any conditions

13     regarding provisional release as are necessary to ensure the presence of

14     the accused for trial.

15             Rule 83 authorises the use of restraints such as handcuffs in the

16     transfer of the accused to the court.

17             Around the world, Judges routinely order that those accused of

18     crimes be brought before them regardless of whether they want to or not.

19     For example, in France, Germany, the US, and Austria, if the accused does

20     not appear in court, he can be summoned or brought in, including brought

21     in by force.  I can, if the Court wishes so, make some citation to these

22     country's rules and their jurisprudence.  In relation to France,

23     Article 320 of the Code of Criminal Procedure:

24             "If the accused does not comply with the summons, the president

25     may order him to be brought forcibly before the Court.  He may also,

Page 690

 1     after having the official record providing the accused's resistance read

 2     in court, order that despite his absence the hearing shall proceed

 3     notwithstanding."

 4             There are two other provisions that relate to this same matter.

 5             Germany, there are the sections 230 and 231 of the Code of

 6     Criminal Procedure.  Section 230 states:

 7             "No main hearing shall be held against the defendant who fails to

 8     appear.

 9             "If there is no sufficient excuse for the defendant's failure to

10     appear, an order shall be made to bring him before the Court, or a

11     warrant of arrest shall be issued."

12             And the section 231 says:

13             "A defendant who has appeared may not absent himself from the

14     hearing.  The Presiding Judge may take proper measures to prevent him

15     from absenting himself; he may also have the defendant kept in custody

16     during interruption of the hearing.

17             "If the defendant, nevertheless absents himself, or fails to

18     appear, or an interrupted main hearing is continued, the main hearing may

19     be concluded during his absence if he was already heard ..."

20             And so on so forth.

21             And I have also a decision here from the Federal Supreme Court in

22     the Neue Strasrecht Zeitung in 1993, 446.

23             "It is acknowledged in the jurisprudence that an accused who is

24     in detention does not have the power to stay away of his own volition

25     from the main hearing, after an interruption of the hearing, because the

Page 691

 1     Court has a duty and the possibility to enforce his continuous presence

 2     if need to be bring him to court by force."

 3             From the United States, I have, in fact, four decisions that have

 4     the similar references.  If the Judges would like to hear them, I can

 5     state them.  It's United States versus Cannatella and

 6     United States versus Moore.  It's both US Federal Appeals Court

 7     decisions.  The former is -- states:

 8             "Normally a judge can and should compel a defendant to be present

 9     at all stages of a felony trial pursuant to Rule 43(a)."

10             That's a -- the decision is in 597 F.2d 27.  And the other one,

11     in the Moore case:

12             "There is no perceptible due process violation by demanding that

13     the defendant attend trial ... the defendant may not defeat the very

14     purpose of the trial - the ascertainment of guilt vel non - by claiming a

15     right of absence ... under Rule 43 F.R. Criminal Procedure."

16             In the case People against Gardner, that's a decision of the

17     New York Court of Appeals, it states:

18             "For the orderly conduct of a criminal court it is requisite that

19     the trial judge should have the power to say what place the prisoner

20     shall occupy in the courtroom, and whether at any time he shall stand or

21     sit, and be covered or uncovered; and he must have the power at all times

22     to keep the prisoner within sight of the Court, the jury, the counsel,

23     and the witnesses."

24             And then yet another case:  Copeland versus Walker.  That's a

25     decision of the Federal Trial Court.  And it states:

Page 692

 1             "Even if a defendant might have a right to waive his presence at

 2     trial due to exceptional circumstances, that is, serious health concerns,

 3     he does not have a right to 'a selective waiver whereby the defendant

 4     could appear and disappear at will, whenever he decided he might garner

 5     some tactical advantage in doing so.'"

 6             And finally, Austria, section 239 of the Code of

 7     Criminal Procedure:

 8             "The main hearing shall begin when the case is called.  The

 9     accused shall appear without shackles, however, if he is in pre-trial

10     detention be accompanied by a guard."

11             These are the references that we have.  I have also an example

12     from the UK House of Lords that has stated that:

13             "For very many years the law of England and Wales has recognised

14     the right of a defendant to attend his trial and, in trials on

15     indictments, has imposed an obligation on him to do so."

16             And that's from the case against Jones in 2002, decision of the

17     20th February, 2002.

18             Finally, I would make one point on this same issue.  The Judges

19     of this Tribunal have the power to compel the attendance of witnesses,

20     even the victims of crimes.  Although this happens relatively rarely and

21     only after other measures to facilitate the appearance of a witness has

22     been exhausted, the fact remains that Judges in this Tribunal have issued

23     arrest warrants for witnesses who have refused to attend to ensure that

24     justice was not frustrated.  If justice can demand and compel the

25     appearance of a victim witness or other witnesses where necessary,

Page 693

 1     certainly justice can compel the presence of the accused.

 2             Your Honour, that's the point on this issue.

 3             JUDGE KWON:  Thank you, Ms. Uertz-Retzlaff.

 4             If an accused person who has been brought in such a manner by

 5     force does not participate in the proceedings and does not cooperate with

 6     the proceedings, would there be any difference from the situation where

 7     the proceedings can proceed in the absence of an accused?

 8             MS. UERTZ-RETZLAFF: [Microphone not activated]

 9             Sorry.  We also have discussed this, whether we could - after the

10     accused would be brought in by force - whether when he states clearly

11     that he does not want to execute his right of self-representation, it

12     wouldn't make a difference.

13             JUDGE KWON:  Going back to your submission overall, the very

14     minor points to start with, I'm surprised to hear you say that this is

15     the first day of the trial -- I would say this is the third day of the

16     trial.

17             MS. UERTZ-RETZLAFF:  Then I have misspoken.  I actually

18     thought it was -- I wanted to say it's the fourth day.

19             JUDGE KWON:  Oh.

20             MS. UERTZ-RETZLAFF:  I thought I had started with saying that's

21     the fourth day of the trial.

22             JUDGE KWON:  That correction could be made.  Thank you.

23             As regards the option one you referred to, this -- that -- the

24     success of that option is entirely dependent upon the will of the

25     accused, whether he would accept it or not.

Page 694

 1             MS. UERTZ-RETZLAFF:  Yes, but we found it helpful to actually

 2     know how much time would, in such a scenario, Mr. Karadzic need.  What

 3     would be his answers?  How much time would he really need for three crime

 4     base witnesses or an initial opening statement?  We found it, actually,

 5     important information that would help and assist the Trial Chamber.

 6             JUDGE KWON:  As regards the option two, how do you envisage the

 7     situation where the appointed counsel cannot get a co-operation with or

 8     instruction from the accused at all?  How would you expect that counsel

 9     to conduct the proceedings?

10             MS. UERTZ-RETZLAFF:  Your Honour, there is, in fact, a decision

11     by the Milosevic Trial Chamber that dealt with that very point.  And it's

12     a decision on assigned counsel's motion for withdrawal of the

13     7th of December, 2004.  And in this decision it was basically stated that

14     the -- let me just see where it is.  I just -- it was stated that, in

15     such a case, the Defence counsel has to act in the best interest of the

16     accused.  That's what is in that decision.  I'm just -- at the moment

17     can't find it.

18             JUDGE KWON:  The Chamber -- I think we can find it later on.

19             MS. UERTZ-RETZLAFF:  It's actually expressly said so because the

20     counsel in this case was the former amicus curiae, Mr. Kay, and he

21     actually brought up this point.  And in special -- especially stressed

22     the point that he would not get directions, and that was actually the

23     answer of the Trial Chamber to this situation, that he would then have to

24     act in the best interest.

25             JUDGE KWON:  Thank you, Ms. Uertz-Retzlaff.

Page 695

 1             With respect to the third or fourth question, how much time the

 2     appointed counsel would need to familiarise himself or herself with the

 3     case.  You just mentioned some delay which would be a reasonable price.

 4     Could you elaborate with a bit more specificity how much time would be

 5     warranted.

 6             MS. UERTZ-RETZLAFF:  I think it very much depends on who is

 7     selected to function as an imposed counsel.  Because if it would be a

 8     counsel that is already familiar with this case, it would be a few

 9     months.  Or at least if someone is familiar with part of the case, then I

10     would think it's not -- it would be a matter of months, a few months.

11     But it's very hard to say -- in absence of the -- more circumstances.

12             JUDGE KWON:  When making submission on -- with respect to option

13     one, you referred to, at one point of time, a duty counsel, a stand-by

14     counsel.  But do you not see the possibility of allowing some time for

15     that counsel to be prepared?

16             MS. UERTZ-RETZLAFF:  No, actually our position in relation to the

17     stand-by counsel would be that stand-by counsel would prepare and get up

18     to speed while the accused is representing himself; and therefore, he

19     would not have to act immediately.  But in case it arises, then -- is

20     question, Is he prepared at this point in time or is he not?  At least

21     for these proceedings as we are now, in the state as we are now, we

22     cannot foresee that stand-by counsel would delay proceedings.  Then it's

23     rather a matter of whether Mr. Karadzic would be willing to make an

24     initial statement and proceed with the through -- with the three crime

25     base witnesses.

Page 696

 1             JUDGE KWON:  Second-last question from myself:  You do not

 2     exclude the possibility of proceeding in the absence of the accused as

 3     well as in the absence of the -- any counsel to represent him?

 4             MS. UERTZ-RETZLAFF:  As I said, we cannot exclude it entirely,

 5     but our proposal would be that the interests of justice makes it

 6     necessary to impose counsel.  But we do not exclude that it is possible.

 7             JUDGE KWON:  Very well.  My last question is a matter of law

 8     which was dealt with in the Appeals Chamber decision in Milosevic which

 9     referred to the principle of proportionality.  How would you compromise

10     that with -- the option two with that principle?

11             MS. UERTZ-RETZLAFF:  The -- of course the Trial Chamber has to

12     find the less intrusive way of proceed.  However, in the -- in this

13     particular situation where Mr. Karadzic has said, "I'm not attending," I

14     can't really see any other way to overcome this situation.  Later on,

15     when Mr. Karadzic appears in court, then the question arises in which way

16     can the roles be divided between the imposed counsel and Mr. Karadzic.

17             But at that moment where Mr. Karadzic says, "I'm not coming

18     for -- unless I am prepared, "and I understand that to mean it will take

19     some months, I can't really see how a different means or role of counsel

20     could help to overcome this.  And therefore, I think to impose now

21     counsel taking over completely in this situation is proportional because

22     there is no other way as we think.

23             JUDGE KWON:  Thank you.

24                           [Trial Chamber confers]

25             JUDGE KWON:  Thank you.

Page 697

 1             Then I'll turn to the accused.  Mr. Karadzic, do you have any

 2     further submission on any of these issues or have any other comments on

 3     the manner in which the trial should proceed?

 4             THE ACCUSED: [Interpretation] Yes.  Thank you, Your Excellency.

 5     I would like to say a few words about what I've heard from the other

 6     side.  First of all, I hope that this is not some kind of a trick that

 7     I'm attending the trial.  I'm attending a Status Conference that

 8     Your Excellency convened for today.  As for being deprived of one's

 9     liberty, I believe that once I've been deprived of my liberty, I've been

10     deprived of the possibility of having a proper family life and social

11     life, but I have not been deprived of my rights, including the right to a

12     proper defence.  That is, after all, enshrined in the Statute of this

13     Tribunal as well.

14             I agree that an accused person cannot manipulate the proceedings;

15     however, the Prosecution cannot do that either, but they are manipulating

16     the proceedings.  I'm sorry to say that.  It's not that I want to attack

17     Mr. Tieger or Ms. Uertz-Retzlaff; however, they did not give me relevant

18     material for nine months.  No decision by any Chamber can change the fact

19     that I have had only five months.  With all due respect, it is five

20     months only.  I have been snowed under with all this material.  The

21     Prosecution was not trial ready.  They probably thought that the

22     Holbrooke Agreement would be respected on my non-prosecution, so they

23     were not ready.  That's what the Trial Chamber said a few times.

24             And Lord Bonomy asked in no uncertain terms several times that

25     the Prosecution start behaving rationally and properly to me with respect

Page 698

 1     to disclosure.

 2             Further on, I cannot agree with these enumerations of how each

 3     and every system functions.  This is enough of a bastard system which

 4     consists of several different systems, and the Rules have been modified

 5     so many times.  We cannot take bits and pieces from the Austrian system,

 6     bits and pieces from another system.  Every system is a whole in its own

 7     right.  All of this is far removed from the system that I come from and

 8     where I possibly could have been used to various things.  So through the

 9     backdoor, the OTP is trying to unofficially amend the

10     Rules of Procedure and Evidence.  I do oppose that indeed.

11             Furthermore, as regards the questions that have been raised here

12     and that have to do with me personally and also what I have to state, I

13     wish to say the following:  It is with joy that I am preparing for these

14     proceedings.  I have a very accurate vision as to what has been

15     mis-ascertained here until now, in spite of the many Defence counsel who

16     acted here, many people have been sentenced who are innocent.  This is

17     not something I hold against Trial Chambers but against the Defence teams

18     that were not in a position to process such voluminous material, and they

19     did not present it as proper defence.

20             So I cannot do this in piecemeal fashion.  I cannot present my

21     opening statement and then deal with three Prosecution witnesses.  I have

22     to look at the case in its entirety.  So I have to look at the witnesses

23     from the first to the last one.  The first three witnesses will come and

24     go.  I'm not even ready to deal with them at this point.  I also have

25     major problems in the field.  My investigators are not being paid a cent,

Page 699

 1     although some funds have been allotted.  I need to know everything with

 2     regard to crime-based cases because things are not the way they are

 3     stated in the indictment.  So the OTP is trying to take into their own

 4     hands everything that is going on, and that will diminish the already

 5     diminished credibility of this Tribunal.  It is -- I have to be in the

 6     hands of the Chamber, not of the OTP.

 7             There is not a single lawyer who can be prepared within a year

 8     and a half or two.  This is many, many pages.  This is lots of material.

 9     45.000 documents that have to be verified, checked on the ground.  These

10     are things that I find so unclear.  I cannot be prepared to make an

11     opening statement and to deal with the first witnesses.  I cannot prepare

12     during trial.  It is before trial that I have to be prepared and have a

13     view of the trial in its entirety.  Of course there will be surprises

14     that will be coming from the Prosecution side, and I certainly will be

15     kept busy during the breaks, during weekends, et cetera.  Even short

16     delays during the proceedings do not really mean a thing, and they could

17     not be helpful.  They could just put me into a whirlpool of confusion, of

18     exhaustion.  And there were such cases.

19             Mr. Krajisnik was most unfortunate with his Defence counsel.  I

20     know that he is an innocent man, but he has been convicted.  It's not the

21     problem of the Trial Chamber.  The Appeals Chamber even recognised that

22     he did not have an adequate Defence.

23             Just a moment, please.  Yes.

24             I don't need new lawyers.  I have excellent associates.  I have

25     associates from the entire world who are working pro bono.  As for the

Page 700

 1     legal part, they've done a great deal of work, high-quality work at that.

 2     You can see that for yourselves.  All of this has been filed.  I don't

 3     need other people; I just need time.  There is not a single lawyer who

 4     will need less time to prepare than this Defence, this Defence under my

 5     leadership, that is.

 6             Or, if the distinguished ladies and gentlemen of the Prosecution

 7     believe that they can go ahead without a Defence counsel and without an

 8     accused, then they can act without a Chamber either, then let them write

 9     up the decision, the verdict, and send it to me.  I have been working

10     throughout, and I would like to these proceedings to take place

11     lege artis, and I would like this to be an exemplary proceeding for cases

12     of this kind.  However, nothing can alter the fact that it was only on

13     the 18th of May that the OTP started sending me relevant material and

14     that this material has been chaotic at that.

15             If this Prosecution does not wish to present 45.000 documents but

16     30.000, let them say which 15.000 they don't want to deal with.  30.000

17     is more than enough.  After all, the Chamber, perhaps, will not agree to

18     that either.  But why do I have 45.000 documents that I have to study?

19     So this is manipulation coming from the side of the Prosecution, not the

20     accused.  And I believe that the Prosecution does not have more rights to

21     manipulate the proceedings than an accused person would.

22             So in my view, I don't need new lawyers.  You have seen all the

23     people who are helping me.  These are prominent names from the legal

24     world:  Australia, South Africa, New Zealand, Holland, Britain, America,

25     these are excellent people, Norway, and so on and so forth.  I don't want

Page 701

 1     to forget anyone.  However, the fact remains that in the space of five

 2     months, I was not able to get through all that material.  And I won't be

 3     able to get through all that material in the coming months nor would

 4     anybody else be able to do so.  So should I be a victim here of the

 5     strategy pursued by the Tribunal?  No I should not.  And we must not

 6     forget that this trial, these proceedings, are of enormous importance for

 7     the people over there and as a president for future trials, as an example

 8     to future trials.

 9             It's not important what importance this has for me, but it's

10     important for the Tribunal because if the credibility of the Tribunal

11     topples during this trial, then what have you done?  And it won't be

12     because of the Prosecution [as interpreted] or the Defence, it will be

13     because of the Prosecution that wasn't trial ready.  Had I received the

14     material on time and had I known the indictment -- what the indictment

15     said on time, then today or at least at the beginning of December I would

16     be trial-ready.  However, that manipulation by them that I spent nine

17     months sitting in detention with no material forthcoming, we had 45

18     municipalities, then 27 municipalities, then the number was reduced again

19     to 20 municipalities, but the scope of the material remains the same.

20     The number of counts in the indictment remains the same.  The number of

21     witnesses remain the same or have been just slightly altered.  So it is

22     the gentlemen of the Prosecution that just reduced their own task and

23     burden, what they are going to present; whereas, the burden on the

24     Defence has remained the same, exactly the same.

25             And I consider, Your Excellencies, that it would be cheapest and

Page 702

 1     easiest with fewest problems to give me more time to prepare.  And once

 2     we start, I'm not going to ask that the Prosecution repeat their opening

 3     statement.  I will count this as being the fourth day of trial because

 4     it's not my goal to set up any obstacles to these proceedings.  The basic

 5     thing for me is that I must view the entire case, and I'm capable of

 6     defending myself, and I already have assistance in the -- to the legal

 7     side of the question.  And, of course, the Trial Chamber will protect my

 8     rights when it comes to legal matters.  But nobody can get through all

 9     this material better than I do, no lawyer.

10             I know what was going on; I know what needs to be pointed out and

11     emphasised and presented.  So I think that the best possible solution

12     would be with the least problems that the Defence be given sufficient

13     time - and I hope you will realise that it is only as of May this year

14     that I've been disclosed material on a regular basis.  So this is not the

15     fault of the Trial Chamber or the accused but because of the Prosecution

16     that wasn't trial ready.

17             So I would like to request that the Defence be given more time.

18     Of course, the Registry will have a few problems remunerating people

19     working for me in the field, travelling around the municipalities,

20     checking out the facts, and so on and so forth.  That is an additional

21     point.

22             However, the -- what the Defence needs most is not new lawyers,

23     new legal advisors, but more time, in view of the fact that we've lost

24     six months due to the will of the Prosecution and that in the space of

25     five months nobody can get through this vast material, 1.300.000 pages of

Page 703

 1     theirs.  And I have my own pages that are voluminous that I have to get

 2     through.  Just looking at the Prosecution case and challenging that

 3     without going into the Defence case when that starts, but just to

 4     challenge and refute what the Prosecution is saying.  So it's 2 million

 5     pages.  What lawyer can get through all that?  What respectable lawyer

 6     would undertake such a great feat?  I don't think anybody would agree to

 7     that kind of undertaking.  Thank you.

 8             JUDGE KWON:  Mr. Karadzic, I find it unfortunate that you are

 9     just simply repeating your earlier submissions.  There are two points I

10     make -- I want to make sure at the outset.  The first thing is that this

11     is no trick at all.  The Chamber is not engaged in tricks and this

12     hearing is of an administrative nature to determine the way forward.  The

13     second thing is that I want to emphasise that it is you, as an

14     individual, Mr. Karadzic, that is on trial, not the people nor any

15     previously convicted person.  This is never an opportunity to re-try all

16     those people again.  So, as I said to you earlier on, and like

17     Judge Bonomy, please concentrate on -- devote your resources on your

18     trial itself.

19             I give the floor to Judge Morrison briefly.

20             JUDGE MORRISON:  Dr. Karadzic, your position seems clear from

21     what I understand it.  You say you're not boycotting your trial in

22     principle, but you're not attending until the Defence is ready.  It would

23     be helpful to know, in assisting the Trial Chamber - because obviously we

24     have to consider all of the options which may fall to be

25     available - whether or not you are preparing your case in chronological

Page 704

 1     order or indictment order, where that changes?

 2             THE ACCUSED: [Interpretation] Your Excellency, I am preparing my

 3     case according to chronological order.  But the fact remains that the

 4     Prosecution will present evidence and witnesses in different ways.  And

 5     it is also a fact that I cannot examine and cross-examine witnesses

 6     unless I have the entire -- unless the entire case is clear to me.  But

 7     if I don't know what the Prosecution case is in actual fact, what it is

 8     that they have against me, and what I can address -- for example, in the

 9     pre-trial brief there is several thousand 65 ter documents, and I know

10     for a fact that 45.000 might crop up.  So I don't know what is going to

11     be presented, and I have to get through all this material in order to be

12     able to participate.

13             We're doing a great deal of work.  My associates and I have

14     examined many witnesses under 65 bis, for example, or 92 bis and 92 ter.

15     We're going to accept some witnesses under Rule 92 ter.  We've already

16     stated our views on that.  But, with the best will in the world, we are

17     taking part and are active to the best of our ability.

18             However, the most important thing, as far as I'm concerned, is

19     this:  I have to see the entire case for me to be able to take part in

20     the trial.  I can't have partial scraps because that won't be a proper

21     trial then, and nobody will be able to defend me and defend me success --

22     or not defend me successfully but, at least, to defend me, and it won't

23     be a fair trial unless I have the whole case open to me, regardless of

24     the position of the Trial Chamber to protect my interests.

25             I do believe that the Trial Chamber will protect my rights, but I

Page 705

 1     have to have rights in the first place for them to be protected and for

 2     me to avail myself of those rights.

 3             JUDGE MORRISON:  A supplementary question following on from my

 4     first.  Insofar as the material that has been disclosed to you is

 5     concerned, is it in a form that enables you to judge its chronological

 6     content or does it all have to be read before the chronology or

 7     indictment order becomes apparent?

 8             THE ACCUSED: [Interpretation] I have to read everything, although

 9     I group the facts according to the topics and municipalities and also

10     chronologically, so that my associates have to re-organise all this vast

11     material, complete reorganisation.  That's what that requires because

12     it's all chaotic.  1990 and 1991 refers to the political aspects of the

13     situation.  And although this Trial Chamber is not trying me for

14     responsibility for the outbreak of war, my side - me and the people I

15     worked with and the people I represented - are being accused for the

16     outbreak of the war.  And we can prove that the responsibility for the

17     outbreak of the war is somebody else's.

18             So I have to defend myself from that Prosecution position.  I

19     have to defend the political life which has been brought into question

20     through the indictment and the Prosecution's position that this is a

21     mistake and a fault of ours and that we're guilty of that.  It

22     is something -- that it is something that we demanded.  So this is a vast

23     complex of questions that we have to deal with and go through for 1990

24     and 1991.  And the war just began in April 1992 or the 25th or the

25     26th of March, 1992.

Page 706

 1             So this is the crux of the matter, Your Excellency.  There is a

 2     very fine fibre that is being tested here.  They want to involve us in a

 3     civil war.  They're saying that we wanted to throw out the Muslims and

 4     Croats from the territories to which we aspired and thought we had a

 5     right to, so --

 6             JUDGE MORRISON:  The answer to my question was much more simple

 7     than that, and I think it was no.

 8             THE ACCUSED: [Interpretation] No, I have to look through all the

 9     material for me to systematise them.  And we are rapidly creating a

10     system, but we can't do it faster than we're doing now because there are

11     piles of material that arrived in a very chaotic way.  That's what

12     happened.

13                           [Trial Chamber and Registrar confer]

14             JUDGE KWON:  So it is your intention, Mr. Karadzic, that -- not

15     to attend the trial at all, even if the option one is to be followed as

16     suggested by the Prosecution?

17             THE ACCUSED: [Interpretation] Your Excellencies, for me to enter

18     the proceedings, my fundamental right must be fulfilled, my fundamental

19     right to a defence, the preparation of a defence.  Now, what sense would

20     it have for me to participate during proceedings which, from the very

21     beginning, were wrong and cannot be successful?  Because if something

22     starts out on the wrong foot, it will finish on the wrong foot,

23     regardless of all the confidence that I have in the Trial Chamber.  The

24     fact remains that without preparation, you cannot have a valid defence.

25     And without a valid defence, you cannot have a trial.  We are working on

Page 707

 1     it.  And whatever decision the Trial Chamber makes, we're going to

 2     continue our preparations, and our Defence case will be better than any

 3     other.  It will be more efficacious, speedier than any other solution.

 4             JUDGE KWON:  The Chamber will confer a minute.

 5                           [Trial Chamber confers]

 6             JUDGE KWON:  Are there any points to raise from the parties?

 7             Mr. Tieger.

 8             MR. TIEGER:  Just one point, Your Honour.  In the course of

 9     reiterating his previous submissions, both the second time it was done

10     today and the first time, the accused is making points he made before the

11     Trial Chamber and the Appeals Chamber, I certainly don't want the fact

12     that the Prosecution is not accepting the invitation to re-open the issue

13     that has been decided upon by the Trial Chamber and the Appeals Chamber

14     to be taken as any acquiescence whatsoever in the allegations that are

15     made, including, for example, the assertion that disclosure was chaotic

16     and so on.  The point is the crux of this matter is not as stated by the

17     accused; the crux of the matter is the fact that the submissions were

18     made, rulings were issued by the Trial Chamber and then the

19     Appeals Chamber, and we now find ourselves in the position that brought

20     us to this court today about which the Trial Chamber attempted to receive

21     responsive submissions from both parties.

22             So, again, I just say, the Prosecution attempted to limit its

23     remarks to the issues at hand rather than the extraneous issues raised by

24     the accused.

25             JUDGE KWON:  Thank you.

Page 708

 1             The Trial Chamber will carefully consider the position and all of

 2     your submissions and issue its decision on this matter in writing later

 3     this week.  We will therefore cancel the hearing scheduled for tomorrow,

 4     and adjourn the trial, pending the Chamber's decision, which will set out

 5     the time when the trial will resume and the manner in which we will

 6     proceed.

 7             The proceedings are now adjourned.

 8                           --- Whereupon the hearing adjourned at 3.31 p.m.