100903SE

Page 6109

1 Friday, 3 September 2010

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 10.04 a.m.

6 JUDGE KWON: Good morning, everyone.

7 As the Chamber advised the parties on 20th of August, today we

8 are holding a Status Conference to discuss the progress of the trial to

9 date and to hear from the parties on their views as to how the trial can

10 be moved forward more expeditiously.

11 As everyone is aware, before the beginning of the trial phase of

12 this case we had a discussion about the size of the case and the

13 consequent expected overall length of the proceedings.

14 Prior to issuing the decision on the application of Rule 73 bis,

15 by which we granted the Prosecution a total of 300 hours for the

16 presentation of its evidence-in-chief, I, as Pre-Trial Judge, and the

17 Chamber, as a whole, repeatedly emphasised the importance of ensuring

18 that this trial is conducted fairly and expeditiously.

19 In order to guarantee both fairness and expeditiousness, we

20 expressed the view that the trial needs to be a manageable one, both in

21 terms of the volume of evidence brought and the time taken, inside and

22 outside the courtroom, to introduce and analyse that evidence, and

23 ultimately to produce a written judgement on the charges against the

24 accused, Mr. Karadzic.

25 At the same time, the Chamber performed some calculations based

Page 6110

1 on the 300 hours granted to the Prosecution for the presentation of its

2 case-in-chief, and on certain assumptions founded in the experience of

3 other Tribunal cases, to estimate when the trial might be concluded and

4 the judgement issued. You will be aware that the rough estimate we came

5 to at the time of the Status Conference last year was the end of December

6 2012 for the completion of proceedings at trial, meaning the rendering of

7 the judgement.

8 Having started hearing evidence in this case on 13 April 2010,

9 the Chamber, with the assistance of the Registry, has been closely

10 monitoring the time used in the courtroom by the parties, as well as for

11 procedural matters, and the nature and volume of the evidence being

12 brought.

13 We found it necessary, in June, to begin imposing time-limits on

14 Mr. Karadzic for his cross-examination of the witnesses being brought by

15 the Prosecution, after repeated advice and warnings given to him that he

16 was not using his time effectively, nor sensibly. There still remains

17 room for improvement in terms of the manner in which the

18 cross-examination is being conducted and the time for cross-examination

19 with each witness, which I will address further in a moment. However, in

20 light of the fact that almost every one of the Prosecution's witnesses is

21 being brought under Rule 92 ter, meaning that in addition to their oral

22 testimony, the Prosecution is regularly submitting a lengthy written

23 statement or transcript of evidence given by them, as well as a number of

24 associated exhibits, it is unrealistic to expect the cross-examination of

25 these witnesses to be very short.

Page 6111

1 Analysing the time reports which are prepared on a monthly basis,

2 I should note that since the beginning of the hearing of evidence, the

3 cross-examination has taken, on average, 350 per cent of the time spent

4 by the Prosecution. Since the Chamber began imposing time-limits, up to

5 the end of Mr. Blaszczyk's testimony, and not including Mr. Suljevic's

6 evidence, for whom the accused's cross-examination has not been yet

7 concluded, the cross-examination has taken, on average, 275 per cent of

8 the time spent by the Prosecution. If we assume that this will not

9 change or, for the purpose of our calculation, if we simply assume that

10 for the remainder of the Prosecution's case Mr. Karadzic will take about

11 250 per cent of the time used by the Prosecution for his

12 cross-examination, all other things being equal, the hearing of evidence

13 would not be concluded until July 2013 on a four-day-per-week sitting

14 schedule. That date would change to January 2013 were we to move to a

15 five-day-per-week sitting schedule in October of this year.

16 Moreover, we also need to factor in the time necessary for any

17 rebuttal and rejoinder evidence, for preparation of closing briefs and

18 arguments, and for the preparation of the judgement, which, of course,

19 also depends on the volume of evidence to be reviewed and analysed by the

20 Chamber. Taking an optimistic approach, this should add about six to

21 nine months to the process following the completion of the evidence phase

22 until the final judgement is rendered, meaning between August 2013 and

23 April 2014, in the various scenarios I have just laid out.

24 I'm confident in saying, however, that the volume of evidence, in

25 terms of witness testimony and exhibits that we'll have to consider at

Page 6112

1 the end of the trial, will be unprecedented at this Tribunal if we

2 continue at the current rate, and that this may well necessitate an even

3 longer period for the finalisation of the judgement.

4 We've previously indicated that a trial of no more than three

5 years' length is manageable, and we are concerned that this trial may

6 increase in length to four or even more years, if these calculations

7 prove accurate. While we recognise that this is, indeed, one of the

8 largest cases before the Tribunal, and that the scope of this indictment

9 and nature of the allegations against the accused are such that it is

10 going to be long and complex, our primary concern is to ensure a fair and

11 expeditious trial, and that a trial which is not manageable, in terms of

12 its size, risks undermining these requirements.

13 So with these introductory remarks, I would like to hear from the

14 parties concerning the efforts that they have made and continue to make

15 to assist us in this regard, and on whether they have specific proposals

16 for ways in which the proceedings can be rendered more expeditious.

17 First, I would hear from the Prosecution. Yes, Mr. Tieger.

18 MR. TIEGER: Good morning, Mr. President and Your Honours.

19 In reviewing the testimony and, in general, the proceedings that

20 have taken place thus far in anticipation of this conference, we were

21 alert to the issue of identifying for the Chamber those factors about

22 which we consider the Chamber to be most interested, and that is: how to

23 ensure the receipt of the most appropriate relevant evidence in the most

24 usable digestible form which the Court can assimilate, and in a manner

25 that renders the proceedings most efficient and, ultimately, most

Page 6113

1 expeditious. And one issue in particular seemed to surface repeatedly

2 and implicate a number of the concerns of the Court and the issues it has

3 raised, and I'll discuss that as I -- or identify those factors as I

4 discuss this particular issue.

5 The Court will be aware that at various points during the course

6 of the case -- well, let me step back from that.

7 Obviously, there are two ways in which the Court -- or two

8 primary ways in which the Court receives evidence, and that's through

9 witnesses and through the submission of documents. I think the Court has

10 already addressed, to some extent, the time issues associated with

11 witness testimony by focusing on the factors of time allocation and time

12 percentages used. The Prosecution has endeavoured, to the maximum extent

13 possible, to render its submission of evidence via witnesses as efficient

14 and effective as possible through the use of those mechanisms available

15 through the Rules of Evidence and Procedure, and most of the time

16 consumed with witnesses on the stand has been by the accused, in part for

17 the reasons mentioned by the Court, that is, the nature of 92 ter and its

18 efficient manner of presentation can result in a greater length of time

19 for cross-examination, even when used effectively; number 2, the Court

20 has been able to identify the manner in which the accused has not

21 necessarily used his time effectively but has, instead, used it for

22 argumentation and for the pursuant of irrelevant inquiries. But beyond

23 that, it seems to me, when we looked carefully at and tried to

24 deconstruct the approach to cross-examination, a good deal of time has

25 been consumed with the effort by the accused to ensure that the documents

Page 6114

1 of interest to the Defence were admitted. And in so doing, he has

2 attempted to find some nexus or link with those documents and the

3 witness, no matter how tenuous, in an effort to justify the admission of

4 those documents. And I believe the Court will be aware and I believe the

5 Defence will be aware of many efforts to do so with many witnesses. That

6 has been necessitated by the approach taken in response to both the

7 Prosecution's efforts and the Defence's efforts to submit documents to

8 the Court in another manner, and that's through Bar table submissions. I

9 almost hesitate to raise that, because for some reason that term has come

10 to signify something that seems to be a necessarily secondary or

11 subordinate approach to admitting documentation, but I'd like to speak to

12 the Court about why I think we've reached a stage in the case where

13 that's not the case.

14 I recall that the -- the Court's focus was, understandably, on

15 restricting the primary use of the Bar table submissions at the outset of

16 the case, out of concern that it would lack contextualisation, that it

17 would result in a potential flood of documents which the Court couldn't

18 properly assimilate, and that the burdens of dealing with that

19 information would render the trial unmanageable. In that respect,

20 I think the good news of the time taken thus far in the case by the

21 accused with the cross-examinations, and the fairly cumbersome approach

22 that may be said to have marked some of the examinations thus far, is

23 that a huge amount of contextualisation has taken place. The accused has

24 canvassed with many, many witnesses the breadth of the conflict, even

25 with those who weren't really in a position to talk with any authority

Page 6115

1 about particular issues raised by documents or speak to those documents,

2 themselves. In fact, to the extent that the Court has, on more than one

3 occasion, invited the accused specifically, and in that context I take

4 the parties generally, to reconsider the use of Bar table submissions for

5 documents that have clearly been contextualised by that time, either

6 through that particular witness or by other witnesses. The advantage of

7 that contextualisation and, therefore, the broadened opportunity for the

8 submission of documents through Bar table submissions is considerable

9 and, indeed, manifold.

10 Now, I want to say from the outset that we are not referring to,

11 and I trust that Mr. Robinson, in his earlier submissions, was also not

12 referring to the prospect of flooding the Chamber with marginally

13 relevant documents that the Court would not be in a position to properly

14 assimilate. And I don't think he was talking about the submission of

15 documents that hadn't, in some manner, been contextualised during the

16 course of the case. But as we know, the reason documents are presented

17 to witnesses is either for authentication, which has, for the most part,

18 not been an issue in this case and which, for the most part, does not

19 require witnesses, there's generally an agreement upon the authentic

20 nature of the documents that have been proffered, or to some manner of

21 contextualisation that enables the Court to receive the documents in a

22 meaningful way and to apply them in a meaningful way to the issues in the

23 case. And as I say, I believe we've reached that point, and here are

24 some of the benefits that accrue from that.

25 JUDGE KWON: Before going further, I'd like to mention a comment,

Page 6116

1 that the Chamber never closed the door to the possibility of receiving

2 documents through Bar table motions. What we restricted is to introduce

3 documents through a witness who cannot confirm anything about --

4 MR. TIEGER: I quite agree, Your Honour. And if this seemed like

5 some unintended criticism of the Court, that's not what was meant. In

6 fact, it was a wake-up call to the parties to, at this stage of the case,

7 use more fulsomely the opportunity presented for a more efficient

8 production of information for the Court. And I think, as the Court is

9 aware, having invited the parties now, during the course of courtroom

10 sessions, to do so, I don't think that, with the exception of Assembly

11 sessions, I consider that the use of Bar table submissions has not been

12 as fulsome as the circumstances require and as, I think, the parties

13 should endeavour to use now, and I wanted to identify some of the

14 benefits of doing so in terms of its impact on the length of the case.

15 Number 1, I indicated one, and that is it will almost surely

16 reduce the time needed for cross-examination and, indeed, for direct

17 examination. There should no longer be an effort to exhaust time in

18 court attempting to find some link between the witness and the document,

19 one by one, that doesn't really end up adding appreciably to the Court's

20 understanding of the document, but provides a trigger for the admission

21 of that document. So we'll save time in a very direct manner.

22 Number 2, it enables -- it puts the Court, at an earlier phase in

23 the case, in a position to better assess the relevance of testimony and

24 the relevance of further documentation that might be submitted. So the

25 Court can exercise its powers to contract or expand the length of

Page 6117

1 examination for either direct or cross for particular witnesses, being

2 aware of the -- more fully and more precisely the significance of the

3 issue that's being addressed.

4 Number 3, the parties are in a position, at an earlier phase in

5 the case, to ensure that the documents they consider most significant

6 have been tendered and admitted, and thereby not spend unnecessary time

7 with witnesses attempting to get in documents that may be less

8 significant, but which they want to see admitted as a safe-guard because

9 they do not yet know whether the documents that more directly

10 establish -- or they believe more directly establish the issues that are

11 of concern to them have been admitted. That also has an impact on the

12 assessment of not only the time that needs to be taken by upcoming

13 witnesses, but, indeed, on the assessment of which witnesses may or may

14 not, in fact, be required.

15 The earlier the evidence is before the Court, and as the parties

16 continue to assess and evaluate the totality of the evidence before the

17 Court, they are in a better position to gauge whether witnesses need to

18 be called, whether witnesses need to be cross-examined, the extent of

19 time necessary for that direct examination or cross-examination, and so

20 on. I believe there are multiple benefits that accrue from that. And I

21 mentioned before the same thing will be true for the Court as it attempts

22 to address issues of relevance.

23 Thus far, the Prosecution has only sparingly made objections to

24 evidence which it considers or at least is perilously close to

25 implicating the issue of tu quoque, or, at best, has marginal relevance

Page 6118

1 to the case. Clearly, as the case goes on and the issues become clearer

2 and more concrete, the prospect of identifying issues that are at such a

3 far extreme of relevance or that, indeed, have crossed the line into

4 being tu quoque, becomes heightened, and the Prosecution will be in a

5 position to more assertively identify areas where those occur. The

6 Defence can respond accordingly, but the Court will be in a much better

7 position, as it has received the information earlier, to assess the

8 significance of areas of examination inquiry that may be too far at the

9 outer edge or that fall into the area of tu quoque.

10 And the final advantage I'll mention about the Bar table

11 submissions is that, I think, as the Court indicated in its earlier

12 decisions, the parties will be expected to clearly identify the relevance

13 of those documents, to really focus in and explain to the Court why those

14 documents are being presented, what their relevance is, how it's

15 significant to the case, and how it's significant to the case at that

16 particular point in the case. That will result in a great deal more

17 information to the Court than can possibly be -- or that has been and

18 I think is likely to be elicited from witnesses during the course of

19 cross-examination. And, further, the Court will be able to assess the

20 significance of any particular tendered document in the context of other

21 related documents. And I think that will ultimately narrow the number of

22 documents that are submitted to the most significant ones.

23 So those are -- we tried to canvass the proceedings that have

24 taken place thus far, not with any preconceptions in mind but to see what

25 sort of issues emerged during the course of that review, and for the

Page 6119

1 reasons I just described, that particular item seemed to surface

2 repeatedly.

3 JUDGE KWON: Thank you, Mr. Tieger.

4 Last year, when we decided to grant 300 hours to the Prosecution

5 to present its case, the Chamber tried to calculate the overall length of

6 the trial, as I mentioned earlier today, and we came to the conclusion

7 that we would be able to deliver the judgement in this case at the end of

8 2012. At the time, as I also mentioned, we based our calculation on

9 certain assumptions. Mainly, we made use of the guide-lines in the ICTY

10 Manual on Developed Practices.

11 Accordingly, for the cross-examination of the Prosecution's

12 viva voce witnesses, we allocated 60 per cent of the Prosecution's

13 estimated time for its examination-in-chief. However, there were only

14 two viva voce witnesses, and therefore it didn't matter much at the end

15 of the day. Of significant importance are the Rule 92 ter witnesses, the

16 total number of which is 223.

17 We allocated time for cross-examination by the accused of those

18 Rule 92 ter witnesses at least equal to the time estimated by the

19 Prosecution for their examination-in-chief. There, we may have been too

20 optimistic.

21 I'm now speaking for myself, but when we did that calculation,

22 i.e., allocating to the accused for his cross-examination the same time

23 as would be used by the Prosecution, I anticipated that most of the

24 Rule 92 ter witnesses would be introduced, to use the ICTY jargon, as

25 partial ter witnesses instead of as full ter witnesses. In other words,

Page 6120

1 significant parts of the witness's evidence would still be led live, so

2 that, therefore, limiting the time for cross-examination to the same time

3 as the Prosecution would use for its examination-in-chief should be okay.

4 However, in this regard I'm obliged to mention that the

5 Prosecution's use of Rule 92 ter in this case is unprecedented in that

6 for almost all their live witnesses, albeit partial in the case of Rule

7 92 ter witnesses, there's a significant quantity of written evidence as

8 well as some oral testimony. But the former, the written evidence, tends

9 to outweigh the latter, oral testimony, in terms of quantity.

10 Moreover, for each Rule 92 ter witness, there are a number of

11 associated exhibits being submitted by the Prosecution, which also add

12 significantly to the volume of evidence in this case.

13 The Chamber is concerned about the impact of such heavy reliance

14 upon the provisions in the Rules which allow the submission of evidence

15 in writing, plus associated exhibits, in a case of this already

16 considerable size. So, therefore, in this regard, the question I would

17 like to put to the witness [sic] at this moment, also given that the

18 Prosecution is minded to use the regime of tendering a document through

19 Bar table motion, is whether it still considers that it needs all of the

20 originally-granted 300 hours to present its case. Or given that the

21 Prosecution has used 41 hours so far during the past four months, whether

22 it still needs all of its remaining time, i.e., 259 hours, to present its

23 remaining case.

24 Mr. Tieger.

25 MR. TIEGER: Your Honour, we haven't done that precise

Page 6121

1 calculation in that sense as the Court is now inquiring, and, as I say,

2 it would be just the slightly revised approach which I just discussed I

3 think would have an impact on that. But we do know already that -- we

4 did make some calculations -- some projections, and it's already clear

5 that, even at this point, that the Prosecution would complete its case,

6 based on what's happened to date and based on the projections we made,

7 below the 300 hours. And I believe our calculations were about -- it

8 wasn't quite 10 per cent below, but it was in that vicinity. But we -- I

9 don't want to indicate that we undertook a new review to reconsider each

10 and every individual witness. Instead, we made a projection of what's

11 happened to date, based on the time that's being consumed thus far, and

12 added that into the calculation, and, based on the time the Prosecution

13 has used thus far, come up with a figure I just mentioned.

14 My assessment is that the heightened use of the Bar table

15 submission in the manner I suggested, and as I indicated as I spoke, we

16 would certainly expect to be continually reviewing the totality of the

17 evidence and assessing the prospective testimony of each listed witness

18 in that light, might well result in a further reduction of the time

19 necessary for the Prosecution's case.

20 So, sorry for that long answer. What it means is we've already

21 come to a point at which our projections indicate the number of hours

22 would be at least less than the 300, more in the area of approximately

23 280 at this point, and I would anticipate that if we proceeded in the

24 manner we were just discussing, that a further reduction of time would

25 result.

Page 6122

1 JUDGE KWON: Another issue I would like to raise with the

2 Prosecution is concerned with disclosure.

3 The Chamber has found in several decisions, Mr. Tieger, that the

4 Prosecution has violated its disclosure obligations vis-a-vis the

5 accused, and we've expressed serious concern about those violations. The

6 Prosecution cannot expect the trial proceedings to be conducted

7 expeditiously if it continues to disclose material to the accused which

8 he should have received many months before, which then results in a

9 motion being filed by the accused, to then be decided by the

10 Trial Chamber, all of which creates extra work and takes time and

11 resources to deal with. More seriously, if the accused is found to be

12 prejudiced by such late disclosure, sanctions may have to be imposed,

13 which could further delay the proceedings.

14 I wonder if you like to comment on this observation.

15 MS. UERTZ-RETZLAFF: Your Honour --

16 JUDGE KWON: Good morning.

17 MS. UERTZ-RETZLAFF: Good morning.

18 We have implemented these additional measures. And you have

19 given us a dead-line to meet for the 1st of October, and we are quite

20 confident that we will meet the dead-line and these violations will not

21 continue. That's what I would have to add to this.

22 But I also have to say, as we always provide the details in our

23 responses to the motions, there was so far no prejudice for the accused.

24 And the witnesses concerned are basically witnesses that have to -- that

25 will appear in a very late order. So, so far I think we have not delayed

Page 6123

1 the trial because of these oversights.

2 JUDGE KWON: Thank you, Madam Uertz-Retzlaff. I take your words,

3 and all this disclosure will be complete by the date you indicated.

4 Yes, Mr. Tieger.

5 MR. TIEGER: Just to add one point, Your Honour.

6 The Prosecution takes all of its disclosure obligations very

7 seriously, and that's been evidenced by tremendous efforts by the

8 Prosecution team to address and re-address and expend extraordinary time

9 and resources to ensure, to the maximum human extent possible, that

10 that's been accomplished.

11 In part, I think that is reflected in the fact that if the Court

12 looks at the kinds of materials that have surfaced from the repeated

13 reviews and that have been the subject of the motions regarding

14 violations, they are materials that haven't, as Ms. Uertz-Retzlaff

15 indicated, resulted in any prejudice whatsoever. They've been quite

16 marginal materials that fall within the -- they're not central, they

17 don't indicate any kind of egregious oversight of the need to make those

18 disclosures. They are matters that fall within, to some extent, the

19 inevitable administrative oversights that occur when large amounts of

20 material are being reviewed.

21 And beyond that, I think the Defence is well aware of the fact

22 that the Prosecution has been responsive to every effort for

23 collaborative assistance. We have, I'm sure Mr. Robinson will confirm

24 this, bent over backwards to assist the Defence where we could, where

25 there was no requirement to do so. Mr. Robinson is aware that every

Page 6124

1 good-faith effort is being made and has been made by the Prosecution.

2 We don't want any oversights or non-disclosures to take place for

3 any reason, whether they involve marginal or non-prejudicial materials or

4 not, and we've engaged in unprecedented efforts to prevent that from

5 happening. And I just mention that because I don't want the kinds of

6 occasional and almost inevitable oversights that have taken place in

7 every case that's occurred in the Prosecution -- in the Tribunal's

8 history thus far to be elevated into something it's not. We are doing

9 everything humanly possible and will continue to do so proactively to

10 ensure the most efficient possible trial.

11 JUDGE KWON: Again, I expect the Prosecution to meet the

12 dead-line we gave.

13 [Trial Chamber confers]

14 JUDGE KWON: Thank you, Mr. Tieger.

15 Now I give the floor to Mr. Karadzic or Mr. Robinson.

16 THE ACCUSED: [Interpretation] Thank you, Your Excellency. Good

17 morning to all.

18 The Defence also believes that this conference was truly

19 indispensable, even more so after we've heard the introductory analysis

20 presented by His Excellency Mr. Kwon. The Defence waited for this kind

21 of opportunity to arise so that we did not deal with these questions when

22 examining witnesses.

23 I believe that I have already said that this system, this legal

24 system, is new and unusual for us, because all of that is different in

25 our part of the world, procedural law and legislation, as such. However,

Page 6125

1 what is done in the Tribunal is new and unusual when compared to any

2 system. For example, we have 223 witnesses here according to 92 bis --

3 sorry, 92 ter. Also, there was an enormous number of 92 bis witnesses

4 that had been envisaged. Some will remain 92 bis witnesses, but thanks

5 to the ruling of the Trial Chamber, some of them have turned into 92 ter

6 witnesses. Also, there are going to be some 92 quater witnesses. There

7 are going to be witnesses who've never appeared here, who will never

8 appear here, who are never cross-examined by any Defence team, and whose

9 statements will, nevertheless, become part of the evidence of this case.

10 223 witnesses are going to speak briefly. We will not be able to catch

11 them out, in terms of the inconsistency in relation to what they had

12 stated earlier on, because they will not be making statements here, they

13 will simply stand by the statements that they had made before that.

14 There will be some witnesses who can only be cross-examined by God

15 Almighty because they've passed away in the meantime.

16 If my math is right, I think there are about 170 protected

17 witnesses. Almost none of them are victims, so protective measures are

18 absolutely unjustified.

19 Moreover, there is a vast amount of adjudicated facts here, and

20 the Defence has to fight against them. We have to fight to correct

21 elementary facts that any elementary school student in our country knows.

22 So perhaps the distinguished Mr. Tieger may think that this is

23 irrelevant, but it is relevant. Had things been done properly so far, we

24 would not have this situation when I have to correct, say, one

25 adjudicated fact that the OTP sent to me recently, namely, that

Page 6126

1 Yugoslavia was restored in 1945 as a republic consisting of six republics

2 and two provinces. That is simply not correct. These two provinces

3 became constituent elements of the federation, whatever that may

4 mean - this is a political trap - only in 1974, by the Constitution of

5 1974. However, what is at stake here is showing what the sins of the

6 Serbs were, or, rather, that the Serb Communists wanted to make the

7 Communist Party a unitarian one in 1990. I have no sympathy for the

8 Communists. They were my greatest enemies and opponents. But that is

9 simply incorrect. They wanted to keep at least a semblance of

10 federalism, whereas Croatian and Slovenian Communists wanted to destroy

11 even this semblance of federalism.

12 So these are things that are being built into the very foundation

13 of this indictment, and I have to challenge that at every opportunity

14 that I'm given, because if we look at these adjudications from other

15 trials, even school children could laugh at that, that is so incorrect.

16 Also, there is a great deal of associated exhibits that are

17 brought in through witnesses.

18 Also, there are attempts to speed up these proceedings and to

19 scale them down by decreasing the time for examination-in-chief, and that

20 doesn't assist the Defence at all. It actually increases the burden

21 placed on the Defence. We have even more obligations to fight against

22 these windmills, as it were. We have to prove things that otherwise

23 wouldn't have to be proven.

24 All these measures aimed at economising in terms of time,

25 increasing efficiency, making documents more acceptable, as it were, all

Page 6127

1 of this that was proposed by the OTP actually works to the detriment of

2 the accused and the Defence. It doesn't harm them in any way. The

3 distinguished Mr. Tieger is accusing the accused today. It's not only

4 the indictment that is charging the accused with this and that, but also

5 he is saying that we did other things wrongly. An accused person is

6 there in order to be accused, but this is so wrong the Defence has to

7 make additional efforts because these proceedings has an ongoing problem,

8 and that is lack of evidence.

9 Excellencies, let's see what the point of these proceedings is.

10 Is it to find the accused guilty at any cost or to establish what it was

11 that had actually happened there? If the point is to find the accused

12 guilty at any cost, have them bring five documents. What do they need

13 40.000 documents for? Let them bring in five documents that are

14 relevant, and that will be it. If the point is to establish what it was

15 that had happened there, and that is what I recommend, because otherwise

16 there is not going to be reconciliation or any kind of life there, then

17 what should be done is to revise everything that was established in such

18 a distorted way in other proceedings. Let's see what could have been

19 avoided.

20 JUDGE KWON: Today we are exploring the way in which way the

21 conduct of the proceedings could be moved forward more expeditiously.

22 This is not the place to touch upon the merit.

23 The example of the history or the name of the region is a good

24 example. I waited, but to make an observation of your conduct of

25 cross-examination, that you are needlessly using time making comments,

Page 6128

1 asking questions that are irrelevant, or asking questions that witnesses

2 clearly are unable to answer, or reading out passages from documents. I

3 find there will be much room for further improvement, so I would like to

4 hear from you. How would you respond to these observations?

5 THE ACCUSED: [Interpretation] Excellency, I agree that perhaps I

6 did a bit too much reading, in terms of paragraphs from specific

7 documents, that is. However, when we look at viva voce witnesses, I have

8 no other way of proving that a witness doesn't know something or that a

9 witness is insincere. There is no other way of handling this but putting

10 to the witness facts that are totally opposite to what he had been

11 saying. Also, I think that this enormous number of adjudicated facts

12 bring me -- brings me into a position to put questions that are only

13 seemingly irrelevant. They just seem irrelevant because they are

14 intended to show that what had been established earlier on was totally

15 distorted and wrong. Perhaps I'll try not to read out so many passages,

16 or not read them out at all. But what do I do with a witness who comes

17 here with an enormous number of documents and a very short statement?

18 How do I make things perfectly clear in relation to this witness? How do

19 I show that witness's credibility and competency? There is no

20 credibility; there is no competency, then.

21 I cannot understand that the OTP can give an enormous number of

22 associated exhibits through a witness and I cannot ask the witness about

23 phenomena that this witness has to know about. I have a document that

24 proves that things were completely different, and we have to hear from

25 the witness what he says about that kind of document.

Page 6129

1 We understand the concern of the Trial Chamber about this, but

2 please understand my concern: This is turning into a paper trial. The

3 distinguished Mr. Tieger is saying that it's going to be very

4 advantageous if we present more documents without witnesses, as it were.

5 That is only working to the detriment of the Defence and the accused. Is

6 there anything that we can do about these proceedings that would be

7 beneficial for the accused pro reux [phoen]. Changes should be pro reux

8 as well, not only working in favour of the OTP.

9 I'm pleased that the distinguished Mr. Tieger finally noticed

10 that we are talking about a vast amount of material. However, it is even

11 bigger, it is even more huge, as it were, for the Defence, and the

12 Defence has far less resources.

13 I will do my very best in the future not to read. However,

14 please, can the Prosecution not say what is important for the Defence?

15 They said what is important for them. The Defence knows. I have

16 well-timed questions, and what I have in mind is something that had

17 already been adjudicated, so if I'm asking a witness to respond to

18 something that may seem irrelevant at a given point in time, it is,

19 believe me, highly relevant. Trust me, this trial is going to be very

20 important in history because of its precedence, because of the way in

21 which a people and its leadership were treated. This is a basis for all

22 further proceedings, primarily for presidents of entities and states and

23 for civilian heads of state and army chiefs. If we lay the wrong kind of

24 foundations now, it's not only that the Serbs are going to be prejudiced;

25 also, our neighbours, who are going to continue believing that the Serbs

Page 6130

1 are wrong, say Markale. Very soon, professional circles are going to

2 examine what it was that had actually happened.

3 I can understand that the Prosecution is under pressure. They

4 don't have evidence; that's their problem.

5 JUDGE KWON: I agree that this trial is very important. However,

6 what is important, in terms of your Defence, is your defence against the

7 charges in the indictment. This is a criminal trial. We are not

8 pursuing to produce a white book in history or to correct the history, so

9 I now expect you to concentrate on your defence in relation to the

10 relevant charges of the indictment.

11 Having said that, give me a minute.

12 [Trial Chamber confers]

13 JUDGE MORRISON: And also what the President, Judge Kwon, has

14 said about the necessity for concentrating on the indictment, that

15 applies, of course, to both sides, the indictment that the Prosecution

16 pursues and the indictment that the defendant has to defend himself

17 against. We have to bear in mind, of course, that the burden of proving

18 the case lies upon the Prosecution. The defendant does not have to prove

19 his innocence. He's simply testing the Prosecution case.

20 While it is inevitable, in a case of this nature, that some

21 political territory is explored, I would urge the defendant to reduce

22 that to an absolute practical working minimum and only explore it where

23 it is relevant and parallel to the indictment.

24 I think we all thank the parties for their engaging with us in an

25 attempt to reduce the length of the trial, and hope that the methodology

Page 6131

1 mentioned by Mr. Tieger and appreciated, no doubt, by the Defence, will

2 achieve that aim.

3 Thank you.

4 JUDGE KWON: Mr. Karadzic, do you have anything to add to what

5 you said in relation to the manner and method in which the trial

6 proceedings should be moved on more expeditiously?

7 THE ACCUSED: [Interpretation] I'm going to ask Mr. Robinson to

8 discuss the legal aspect.

9 I just want to add this, however: If this were to be limited

10 only to my responsibility, to my indictment, it would be much easier, but

11 then why would the Prosecution need such a number of adjudicated facts,

12 which create a framework within which every Serb is guilty, and the

13 president the most? If they consider that to be unimportant, then they

14 can withdraw these adjudicated facts and we can establish the facts here.

15 Otherwise, I'm in a situation where a vast number of facts are already

16 adjudicated, a large number of witnesses have already been admitted, they

17 will not appear, a large number of witnesses are having protective

18 measures. So there's a large number of questions here that are already

19 defined. I cannot stick only to the indictment. I need to --

20 JUDGE KWON: I had to intervene again. I'm confident not a

21 single passage of the adjudicated facts said that all Serbs are guilty at

22 all. That's a misleading statement. Again, I emphasise that you need to

23 concentrate on your defence against the charges in the indictment.

24 Mr. Robinson.

25 MR. ROBINSON: Yes, Mr. President. If I could just make a few

Page 6132

1 small observations.

2 First of all, I think historically the Tribunal has been overly

3 optimistic in its calculations about the length of trials and are

4 frequently going to the Security Council and explaining that they've

5 under-calculated, and I fear that we are doing that also here. On my own

6 calculations, which I agree can also be rough, show that the Prosecution

7 has so far, in the four months that we have had, completed about

8 14 per cent of its case. So if you multiply that times 7, that's 28

9 months for the Prosecution's case, and that takes us to about August of

10 2012. Given a few months before the Defence case starts and an equal

11 amount of time for the Defence, it would take us to February of 2015

12 before the case -- the evidence is completed, and time after that would

13 be needed for judgement. Now, those may be subject also to variables,

14 such as reduction in the Prosecution's case or the fact that the

15 Prosecution wouldn't need as much time to cross-examine our witnesses as

16 we've needed to do cross-examine theirs, but I know that in business

17 people tend to plan for the worst-case scenario as opposed to planning

18 for the best-case scenario, and it might be wise to consider that the

19 case could last considerably longer even than your projections are today.

20 The other thing I would like to point out is I think that

21 calculating between four and five days a week is not necessarily

22 indicative of the time the trial would take, because it's very difficult

23 to achieve a five-day week on a regular basis. Even those trials that

24 are scheduled to sit for five days a week frequently don't, for reasons

25 of witness availability and availability of the parties and the judges,

Page 6133

1 so I don't think looking between six months difference between a

2 four- and a five-day week necessarily would actually translate in reality

3 to that kind of savings, and it could actually be a false economy, given

4 the impact on the health of the accused by increasing his workload.

5 So I would like to suggest to the Chamber that it might wish, if

6 it really wants to make an effort to -- if it feels that the trial needs

7 to be shorter, significantly shorter, that it revisit the idea of the

8 scope of the indictment, which is a point we made back when they were

9 approving the amended indictment, when the Pre-Trial Chamber was headed

10 by Judge Bonomy. It may be that the scope of the indictment in this case

11 is just simply too big for a manageable trial, if the Trial Chamber is

12 concerned about the length of the trial and the impact on the fairness of

13 the proceedings, as well as the patience of the donors to this Tribunal,

14 and it may well be that the Chamber could revisit whether it's necessary

15 for the Prosecution to present all of the components of its case.

16 For example, if you were to eliminate, under Rule 73 bis (D), the

17 municipalities portion of the case, you could probably save one year of

18 the length of the trial, both from the Prosecution's case and the Defence

19 case. And if you think that the Sarajevo part of the case has been

20 difficult, I can assure you that when we start dealing with the events of

21 20 different municipalities, and many different events in each

22 municipality, the unwieldiness of the trial is going to become even more

23 apparent.

24 And so while Mr. Tieger's suggestion of expediting the work of

25 exhibits, and the Trial Chamber's consideration of having the improvement

Page 6134

1 of Dr. Karadzic's cross-examination and its efficiency, can be

2 implemented, those things are like pouring a small drop of water on a

3 fire. And if the length of the trial is actually so unmanageable, in the

4 eyes of the Chamber, it's going to take more than that in order to change

5 the time that we finally finish this trial. And I think the Chamber

6 ought to give consideration to more radical measures which could actually

7 have a significant impact on the length of the trial.

8 Thank you.

9 JUDGE KWON: Thank you, Mr. Robinson.

10 [Trial Chamber confers]

11 JUDGE KWON: Mr. Tieger, do you have anything to add?

12 MR. TIEGER: Yes, Your Honour. Thank you.

13 The figures that Mr. Robinson has cited do not conform to our

14 calculations about the time that the Prosecution case would conclude.

15 I think we're as much as a year off or so, and that may be based on

16 extrapolations from the most expansive part of the case at the beginning,

17 which does not incorporate the more efficient manner of proceeding that

18 I think we have moved toward and will be continuing moving toward. But,

19 in any event, no matter how you calculate them, they're quite far off

20 from our assessment, which is much closer to, I think, an earlier figure

21 cited by the Court, and which should be improved upon, and we'll endeavor

22 to do so. But we don't share in any way his assessment of the projection

23 of trial.

24 In terms of the projected length of the Defence case, one of the

25 reasons the case has taken as long thus far is the accused is putting

Page 6135

1 forth his Defence case through Prosecution witnesses, and the Court has

2 to be aware of that. This is not simply a matter of testing the

3 Prosecution evidence, as His Honour Judge Morrison has observed. This is

4 an affirmative effort, which is obviously permitted to some extent under

5 90(H), to adduce evidence that the accused wants to use, often which is

6 entirely unrelated to that particular witness, as the Court must be aware

7 and as we've seen repeatedly.

8 JUDGE KWON: It is a bit premature to discuss the length of

9 Defence case, but we issued our ruling that the Defence would have 300

10 hours, as the Prosecution did, to present its case. How much time you

11 will use for your cross-examination is a separate matter.

12 MR. TIEGER: And the final thing I'll mention, Your Honour, is

13 that to the extent the encouragement to eliminate some portions of the

14 Prosecution's case, to simply eviscerate the indictment with respect to

15 large areas of the accused's alleged criminal responsibility because of

16 some issue of time cited by the Defence, seems at least inappropriate to

17 me, in light of the fact that we're in this position because the accused

18 was not available to have his case tried for so many years. And to

19 invoke that circumstance in favour of an avoidance of the adjudication of

20 criminal responsibility does not seem at all appropriate.

21 But more to the point, we are moving toward, continually, a

22 refined, expeditious process which will bring us to a conclusion at an

23 earlier date than the dire projections cited by Mr. Robinson.

24 JUDGE KWON: We'll consider all these submissions by the parties.

25 Mr. Tieger, there's another matter which I wish to clarify. That

Page 6136

1 is, in fact, connected to the issue of the overall volume of evidence in

2 this case.

3 In the pre-trial phase of the case of the Prosecution -- in the

4 pre-trial phase, the Prosecution filed a number of motions for the

5 admission of written evidence from over 150 witnesses, pursuant to

6 Rule 92 bis. As Mr. Karadzic indicated, the Chamber issued its decision

7 on these motions, admitting some of these witnesses' evidence under

8 Rule 92 bis, along with relevant exhibits, but in other cases requiring

9 the relevant witnesses to be brought for cross-examination. In such

10 cases, I mean the witnesses coming pursuant to Rule 92 ter, the witnesses

11 are, therefore, subject to the provisions of the Rules, i.e.,

12 Rule 92 ter.

13 In accordance with our order on the procedure for the conduct of

14 the trial, the Prosecution may tender only one statement or transcript of

15 prior testimony for each such Rule 92 ter witnesses, which may mean that

16 it needs to choose between various statements or transcripts of evidence

17 previously given by that witness or it may need to prepare an amalgamated

18 statement. So to avoid any possible confusion, the parties should ensure

19 that they treat all Rule 92 ter witnesses in the same way, whether or not

20 they were originally proposed under Rule 92 bis.

21 Therefore, in relation to any of the witnesses originally

22 proposed under Rule 92 bis who must come for cross-examination pursuant

23 to Rule 92 ter, the Prosecution should carefully select which transcript

24 or statement to tender for each witness, and which of the associated

25 exhibits it considers necessary for admission in this case. Therefore,