1 Monday, 20 September 2004
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.08 a.m.
5 JUDGE ORIE: Good morning to everyone after this break of a week.
6 Madam Registrar, would you please call the case.
7 THE REGISTRAR: Case number IT-00-39-T, the Prosecutor versus
8 Momcilo Krajisnik.
9 JUDGE ORIE: Thank you very much, Madam Registrar.
10 I'd like to turn into closed session to start with.
11 [Closed session]
11 Pages 5584 to 5601 – redacted – Closed session.
17 [Open session]
18 JUDGE ORIE: Yes. As always. Please proceed, Mr. Hannis.
19 MR. HANNIS: Thank you, Your Honour. One of the matters that we
20 had pending was regarding the 92 bis witnesses for the crime base or from
21 the municipalities. I think we had 113 remaining on our list. The Court
22 had asked us to reduce that to 61.
23 JUDGE ORIE: Yes. And I received that, to be quite honest, just
24 before we entered this courtroom. We received a copy of your new list, so
25 I haven't even read it, and also I have not read yet the observations made
1 on page 3. But if you would like to --
2 MR. HANNIS: If I may, Your Honour.
3 JUDGE ORIE: Yes, please.
4 MR. HANNIS: We have now a list of 61 that we propose to be the
5 92 bis witnesses that we will submit for the Court to consider regarding
6 the municipality and crime base evidence. And as you know, when we were
7 trying to have the agreed facts proposal, we sort of put the 92 bis
8 matters on hold. So we need to start a system again to have Defence raise
9 any objections they have to those proposed witnesses and ask which ones
10 they want to have come for cross-examination.
11 We had a proposed priority of municipalities when we resume that
12 process, Your Honour, if I may say on the record that we would like to ask
13 that the first ones the Court consider when you get to that matter would
14 be, first of all, the municipality of Kljuc; secondly, Pale; third,
15 Banja Luka; fourth, Prijedor; and fifth, Bosanska Krupa. The reason for
16 that order, Your Honour, is that some of those are municipalities for
17 which we've already presented all the live witnesses that we intend to
18 call in connection with those municipalities. And with regard to Prijedor
19 and Banja Luka, those are municipalities for which we had previously had
20 that matter pending within we suspended the operations. But we have
21 dropped some witnesses completely from Banja Luka and Prijedor that were
22 on the earlier submission. And Bosanska Krupa is a municipality that we
23 anticipate presenting a live witness on in the near future.
24 JUDGE ORIE: Yes. So you'd like the Chamber to invite the
25 Defence -- well, at least the Chamber would set deadlines for the Defence
1 to give its -- to make submissions in respect of admissibility of those
2 witnesses. Yes, that's clear.
3 MR. HANNIS: Yes, Your Honour. And with regard Witness 27, I
4 don't want to say the name out loud under Kljuc, that's a witness for whom
5 there were protective measures in the Brdjanin case and that's a witness
6 that we would say right now for Defence and for the Court that it is
7 probably appropriate that that witness come for cross-examination.
8 JUDGE ORIE: Yes. So you already indicate yourself that cross
9 might be --
10 MR. HANNIS: Appropriate.
11 JUDGE ORIE: -- appropriate for Witness 629, then.
12 MR. HANNIS: Correct.
13 JUDGE ORIE: Any further --
14 MR. HANNIS: Not with regard to the 92 bis, Your Honour.
15 JUDGE ORIE: Yes. Then other housekeeping matters.
16 MR. HANNIS: One other matter does relate to the witness for whom
17 we're discussing protective measures right now, and I have proposed if he
18 testifies later today to introduce his prior statements pursuant to
19 Rule 89. He has two statements, one that was taken in late March 2004.
20 That's the one that we propose to offer, the entire statement pursuant to
21 Rule 89(F).
22 JUDGE ORIE: Yes.
23 MR. HANNIS: He has an earlier much longer statement in 2003 for
24 which we propose only to offer -- there's approximately 12 or 13
25 paragraphs in that statement that are incorporated in his 2003 statement
1 directly by reference. Those are the only ones we propose to tender to
2 the Court.
3 But over the weekend, Mr. Stewart and I had some exchange of
4 e-mails, and Mr. Stewart indicated that he was willing to agree to several
5 paragraphs in both statements. And in particular, there were a number of
6 paragraphs that he was -- seemed to be interested in. I don't have any
7 objection to the Court considering those as part of the statement as well,
8 but it's not something that the Prosecution proposed to submit.
9 JUDGE ORIE: Then if this is true, Mr. Stewart, and I take it it
10 is, then we'd like to receive the numbers, because I see that the long
11 statement, the 2003 -- well, it even seems to be 2002, 2003 statement
12 which is numbered through, that we would hear what parts the Defence would
13 like to have offered into evidence. Because the Defence would think they
14 are relevant, even though the Prosecution doesn't see any specific
15 relevance to present it to the Chamber.
16 MR. STEWART: We can certainly, without difficulty, we can give
17 the Trial Chamber the complete list. It's more than several, in fact.
18 The complete list of the paragraphs that we are prepared to agree in the
19 two statements.
20 JUDGE ORIE: Yes.
21 MR. STEWART: Yes. I won't say -- I won't say any more about what
22 Mr. Hannis has just said because probably what I would need to say, if
23 this witness is dealt with in closed session, would be more appropriately
24 said in closed session.
25 JUDGE ORIE: Yes. So let's then wait and see. But at least the
12 Blank page inserted to ensure the pagination between the English and
13 French transcripts correspond
1 Chamber is prepared that the Defence also has a certain interest in
2 presenting -- in tendering into evidence some of the statements, some
3 paragraphs of the statements the Prosecution is not seeking to be
5 MR. HANNIS: I had nothing further in that regard at this time,
6 Your Honour.
7 I believe Mr. Harmon has gone to check on whether there were any
8 internal restrictions or requirements that he not divulge certain matters
9 regarding that issue we were discussing.
10 JUDGE ORIE: Have you got any idea on how much time that would
11 take? If it's just a matter of one or two minutes then we might --
12 MR. HANNIS: I think, Your Honour, perhaps we should take 15
13 minutes or so at this time.
14 JUDGE ORIE: He needed altogether 15 minutes. So if we would take
15 another five minutes. The Chamber will be standby, and as soon as
16 Mr. Harmon is ready to return in Court and inform the Chamber, we'll then
17 immediately, I say it already for the audience, we'll then immediately go
18 back in closed session at that very moment, and we'll hear whatever
19 Mr. Harmon submits to us.
20 MR. HANNIS: Thank you, Your Honour.
21 JUDGE ORIE: We'll adjourn briefly.
22 --- Break taken at 10.01 a.m.
23 --- On resuming at 10.27 a.m.
24 [Closed session] [Confidentiality partially lifted by order of the Chamber]
9 This is a decision on the Prosecution's motion for protective
10 measures for Witness 623. The motion was filed confidentially on the 24th
11 of August, 2004.
12 The Prosecution requests an order from the Chamber that
13 Witness 623 testify in closed session. The need for such a measure,
14 according to the Prosecution, arises from certain threats made against him
15 and his family, and these threats are referred to by the Prosecution to a
16 greater or lesser degree of precision. Having also heard additional
17 information, there is at least one very serious threat which is finally
18 now documented with sufficient precision, and that is the threat referred
19 to in paragraphs 10 and 11 of the motion.
20 The Defence has submitted a response on the 7th of September. The
21 Defence opposed the motion. The Defence states, correctly, that
22 closed-session testimony should be granted only in very limited
23 circumstances, that is, where the Chamber is satisfied that the safety of
24 the witness or of his family is put at risk by requiring him to testify in
25 open session.
1 The Defence also submits that the Chamber, in order to, and I now
2 quote, "have an objective basis upon which to base the fear of a witness
3 or victim and to determine whether the requested measures are appropriate"
4 should not base its decision solely on the representations made by the
5 parties. It should also take into account the broader security situation
6 affecting the witness. The Defence suggests that the Prosecution has not
7 provided enough evidence for the Chamber to determine whether there is an
8 objective basis justifying the protective measures being sought here.
9 The Defence further emphasised the public interest at stake.
10 In a decision in the Kordic case, a decision taken on the 13th of
11 October, 2003, paragraph 23, the Appeals Chamber said, and I
12 quote: "Protective measures will only be granted where the victim or
13 witness may be in danger or risk. This has already been interpreted as
14 requiring something more than the mere expression of fear by that person;
15 some objective basis is required to demonstrate a real likelihood that
16 such a person may be in danger or risk."
17 In the present case, the Prosecution in its motion has provided
18 information about the positions held by Witness 623 at the relevant time,
19 the view held and publicly expressed by the witness in the past 12 years,
20 and the threats made to him and his family. These threats have not
21 subsided over time, and in fact the better documented threat is rather
23 The Chamber must be provided with some objective elements which
24 show the real likelihood of danger or risk, danger or risk on which the
25 witness bases his or her fear. In the Chamber's view, this may include
1 information showing that the witness is in a position of particular
2 vulnerability such that his open testimony will give rise to a real
3 likelihood of danger for his personal safety or that of his family, or, of
4 course, it also may consist of actual threats made in the past which pose
5 a real likelihood of danger or risk.
6 The Prosecution has now referred to what I said before was
7 submitted in the motion. The Prosecution has based its motion not on the
8 mere expression of fear of the witness but on objective factors. The
9 Defence seems to be under the misapprehension that the Chamber itself is
10 obliged to see original evidence of the objective factors before it may
11 form an opinion on the matter.
12 Apart from any obligation, the Chamber may, however, to the extent
13 it deems necessary, make some further inquiries into the matter in order
14 to reach the proper balance between the public character of the trial and
15 the obligation to ensure protection of vulnerable witnesses.
16 Therefore, the practice is not at this Tribunal that the Chamber
17 is under an obligation to further inquire. But that, of course, does not
18 prevent the Defence from challenging the factual basis on which the
19 witness based his fear. The Prosecution is allowed a margin of
20 appreciation when making representations on the protection required by its
21 witness. As long as the Prosecution can show an objective basis for the
22 fear, as explained before, the Chamber may grant the request whether or
23 not, after having further inquired into the matter. The Chamber may see
24 no need to inquire further into the alleged danger because all that the
25 applicable standard requires is objectively based real likelihood and not,
1 I quote, "the full and specific information and evidence" as proposed by
2 the Defence.
3 The Chamber found it appropriate in respect of this witness to get
4 some more information, one of the reasons being the specific character the
5 Chamber expects the testimony of this witness may have, of course, based
6 on the information the Chamber has on the basis of the submissions made
7 until now.
8 The Chamber, of course, is mindful that a fair and a public
9 hearing is a right of the accused and is in the interests of justice more
10 generally. The Chamber would therefore be willing to entertain a
11 submission by the parties, after Witness 623 has testified, and of course
12 the same would be true in similar situations, submissions aiming to unseal
13 any non-identifying portions or portions that would not in any way entail
14 any injury for the witness of this witness's testimony.
15 The Prosecution motion is granted.
8 [Open session]
9 MR. STEWART: Your Honour, the first point was just a simple
10 observation and request, Your Honour, that it does appear to the Defence
11 that there is no reason whatever why the judgement or decision which the
12 Trial Chamber has just given in relation to Witness 623 should itself not
13 be unsealed, because Your Honour appeared to be fairly careful with
14 respect to not to include any identifying features or matters in the
15 course of that decision. It appears to be entirely neutral and
16 uninformative as far as that is concerned. Accordingly, it would seem
17 appropriate that it should be unsealed.
18 JUDGE ORIE: Yes. We'll decide on that.
19 MR. STEWART: Yes, thank you, Your Honour. Your Honour, then I
20 would, if I may, gratefully accept Your Honour's invitation to have a
21 brief word with Mr. Krajisnik.
22 JUDGE ORIE: Yes.
23 MR. STEWART: May I?
24 JUDGE ORIE: Please do.
25 MR. STEWART: Thank you.
1 THE ACCUSED: [Interpretation] I would like to address the Trial
2 Chamber directly, with your leave. It would be best in closed session,
4 JUDGE ORIE: That's exactly the situation. I invite you at this
5 moment, Mr. Krajisnik, to consult with counsel in order to avoid any --
6 this is not to say that I'll not allow you or the Chamber will not allow
7 you to address the Chamber, but I'd first like you to at least exchange
8 what you have in mind to tell the Chamber in order to avoid any
10 So, Mr. Stewart, you may consult Mr. Krajisnik. And
11 Mr. Krajisnik, you're invited to exchange your thoughts at this moment
12 with Mr. Stewart.
13 MR. STEWART: Thank you, Your Honour.
14 [Defence counsel and accused confer]
15 [Trial Chamber and legal officer confer]
16 JUDGE ORIE: Mr. Stewart, can you inform the Chamber on ...
17 MR. STEWART: Yes, Your Honour. The first comment is this: That
18 I -- I think Mr. Krajisnik introduced this particular passage, if you
19 like, by saying it would be best if he dealt with the matter in closed
20 session. Now, there was a closed session about three weeks ago when I
21 wasn't here, although apparently I was here in some sort of spirit during
22 that closed session. I must say, when I read the transcript of that
23 closed session, I did wonder why it justified being in closed session, but
24 that's a question I often ask myself.
25 JUDGE ORIE: Yes. It's a matter perhaps of further consideration
1 whether that should remain confidential rather than --
2 MR. STEWART: I'm obliged for that, Your Honour. And to some
3 extent, the same sort of issue arises because this is an awkward one in a
4 way and Your Honour will remember that session, because although -- there
5 are differences of view between Mr. Krajisnik and myself on certain
6 issues. It's not general. We do not have a general conflict. I wish to
7 stress that. Far from it, in fact. But we do have differences of view.
8 And it's understandable that Mr. Krajisnik, out of politeness as far as
9 anything else, may feel that closed session is suitable, but I find it
10 difficult in the light of what Mr. Krajisnik indicates he's going to talk
11 about to see that according to the strict principles and rules, closed
12 session is justified. But that's really, if I just say that so that it's
13 something that the Tribunal is alert to, so that we don't unnecessarily go
14 into private or closed session or unnecessarily go out of it.
15 Your Honour, so far as the batting order is concerned, if I put it
16 in English terms, I suggest that it would be more suitable in the light of
17 our brief discussion if Mr. Krajisnik says what he wants to say to the
18 Trial Chamber first, which is to do with preparation and to do with
19 cross-examination, and if I then add anything which I wish to add in the
20 light of what Mr. Krajisnik says.
21 JUDGE ORIE: Mr. Krajisnik, you have heard the words of your
22 counsel. It may have become clear to you that he doesn't mind if what you
23 intend to say would be said in open court. If you would insist on private
24 session, then I'd like to know first for what reasons you would insist on
25 that, and you could then explain that in private session. If, however,
1 you would say that you could also express yourself in open session, please
3 THE ACCUSED: [Interpretation] The only reason, Your Honours, why I
4 wish this to be in closed session was because I didn't want to have any
5 unnecessary publicity given to it. Nothing more than that.
6 [Trial Chamber confers]
7 JUDGE ORIE: Your mere wish not to have this unnecessarily in the
8 publicity is not a sufficient reason to go into closed session or into
9 private session. So please proceed, Mr. Krajisnik, and would you try to
10 be as concise as possible.
11 THE ACCUSED: [Interpretation] I would like to thank the Trial
12 Chamber for making a number of exceptions and allowing me to address the
13 Court. I consider that this whole procedure is a complicated one, that
14 the trial is a complicated one, and that that is why the Trial Chamber is
15 doing so, and I'd like to thank them once again.
16 And this is what I have to say: You're going to have before you a
17 very important witness today, and I consider that at this point in time,
18 because we have not succeeded in preparing ourselves well enough for this
19 witness, and there are many matters which Mr. Stewart, objectively
20 speaking, was not able to go into and consider, I consider, and reading
21 the statement myself, that it would be highly beneficial if the Trial
22 Chamber were to allow me to ask a number of questions to the witness after
23 Mr. Stewart has conducted the examination. We know each other very well
24 by now. I shall abide by any of your rulings. I have great respect for
25 each of your decisions and rulings. But I would like to say that the
1 questions that I would like to ask this witness is something that
2 Mr. Stewart cannot do himself, and I think it would be very useful in the
4 The problem presented by Mr. Stewart is one that we raised
5 vis-a-vis the Registrar, and we hope that we will solve it, but thanks to
6 you, Your Honours, the members of the registry have shown goodwill to meet
7 us halfway and solve the problem. I don't wish to make any problems for
8 you, but I am highly concerned about the trial and the legal proceedings
9 if the truth is not arrived at. So that is why I'm addressing you.
10 Perhaps there will be several other witnesses like this one who can help
11 the Trial Chamber to ascertain the truth. But I'm not sure that from the
12 documents that you have before you and the material you have before you
13 and those provided by the Defence team and Mr. Stewart himself, will be
14 sufficient to help you. I don't want to go into the details. Mr. Stewart
15 will be doing that. But I thank you once again for giving me this
16 opportunity of raising this question. Thank you.
17 JUDGE ORIE: Yes. Mr. Krajisnik, the -- well, most important
18 thing of what you said is that you asked the Chamber to additionally
19 question the witness once the witness is questioned by counsel.
20 Certainly, this would set a precedent, as far as I know, unknown in this
21 Tribunal. I would say very much against the common law tradition. And I
22 add to that, at the same time, not necessarily against the civil law
23 tradition. You'll not be surprised that we'll not give a decision right
24 away on that, because you're raising at least some -- well, let's say it's
25 a very interesting request. I leave it to that at this very moment.
1 Anyhow, the Chamber will have time until cross-examination starts to see
2 whether it will allow you to do so or not.
3 Then, Mr. Stewart.
4 MR. STEWART: Your Honour, I'm not sure, in the light of the break
5 we had while Mr. Harmon did his researches, I'm not quite sure where we
6 are as far as this morning's timetable.
7 JUDGE ORIE: I must say, it was a very nice offer of the
8 interpreters to say that if the break still to come would be half an hour,
9 that they would not insist on two real breaks. So we'll then presumably
10 have a break between 12.00 and 12.30.
11 MR. STEWART: Yes. The reason --
12 JUDGE ORIE: If the tapes allow us to do that. Otherwise it would
13 be a bit early. But one more break for 30 minutes.
14 MR. STEWART: The reason I was asking Your Honour is that I would
15 really appreciate an opportunity now to have ten minutes talking to my
17 JUDGE ORIE: Mr. Stewart, the problem is, if I would give it to
18 you now, then we would have, well, let's say our break until 11.30, and
19 that would be not -- it would be too early to -- that would be too early
20 to continue then until a quarter to 2.00, because we're then running out
21 of tape. So if possible at all, if we could start the
22 examination-in-chief of the witness and then, for example, have the break,
23 even if it would be a bit early, well, let's say in approximately a
24 half-hour from now, if that would also do.
25 MR. STEWART: Well, Your Honour, I'm in Your Honour's hands on
1 this and it's not a matter of huge practical moment. We will loyally go
2 with whatever is most convenient for the Court. What I would like, then,
3 Your Honour, please, is the opportunity after the next break, whenever
4 that is, to address the Tribunal, and I do have in the light of what's
5 happened some quite important submissions to make, Your Honour. So it's
6 just that I don't want to be in a position where Your Honour is telling me
7 that the witness has got to come straight back into Court. With respect,
8 Your Honour, I don't want to be put under one of those time pressures the
9 witness knocking on the door to come back into Court. That's all I'm
10 concerned about.
11 JUDGE ORIE: Yes. I'll give you an opportunity to address the
12 Court after the next break.
13 MR. STEWART: Thank you.
14 JUDGE ORIE: We'll then start with the witness. Same as I said to
15 Mr. Krajisnik, try to be as concise as possible, because --
16 MR. STEWART: I always do, Your Honour.
17 JUDGE ORIE: Yes. Yes. I'm sure that you always try. Then the
18 Chamber would also like to hear any oral submissions you would like to
19 make in respect of the request of Mr. Krajisnik.
20 MR. STEWART: Well, that's certainly -- that is an immediate and
21 central point, Your Honour.
22 JUDGE ORIE: And if there would be any need to consult during the
23 next break with co-counsel, also with Mr. Krajisnik, I certainly would try
24 to do my utmost best to make that possible.
25 MR. STEWART: Yes, indeed. Thank you, Your Honour. It may or may
1 not be necessary. Of course Your Honour will appreciate that apart from
2 anything else, it's quite important to us as counsel to know before we
3 ever began cross-examination whether it is going to be supplemented by
4 cross-examination by Mr. Krajisnik, because it might just affect one's
6 JUDGE ORIE: Mr yes, of course. Mr. Stewart, I'm just telling you
7 when I refer to other systems, I have worked for 17 years in a system
8 where counsel would put questions to the witness once the Bench would have
9 done so, and then the defendant himself always had a right to put
10 questions to a witness. I'm not saying that this is a standard that
11 should be applied, but I survived for 17 years.
12 Then, Madam Usher, could you please escort the witness into the
13 courtroom, but not after having turned into closed session.
14 [Closed session]
11 Pages 5626 to 5639 – redacted – Closed session.
18 [Open session]
19 JUDGE ORIE: Mr. Stewart, please proceed.
20 MR. STEWART: Your Honour, thank you. I did -- we did take the
21 opportunity to have a few minutes with Mr. Krajisnik during the break.
22 Your Honour, Mr. Krajisnik's application, and he made it to
23 supplement, if that's the right word, cross-examination of this witness,
24 rests on the foundation that we, the Defence team, have not had adequate
25 time and opportunity to prepare. It is not, after all, an application by
1 Mr. Krajisnik in relation to this witness to replace us, to have his -- to
2 not be represented through counsel. It rests entirely on the footing that
3 he just simply doesn't feel that we together, the Defence team and he,
4 have had adequate opportunity to prepare.
5 I do also wish to make it clear that the particular issues, and I
6 could describe them as issues between Mr. Krajisnik and me, if you like,
7 which were canvassed, and I simply label them rather than go into them,
8 particular issues that were canvassed two or three weeks ago, they're not
9 the point here. There is something afoot there and there are matters to
10 be resolved. But they're not the issue here, and nor, in fact, are they
11 an issue which has had and is having any significant impact on the
12 question of conduct of the trial at the moment and preparation for trial.
13 They do certainly potentially affect work out in Bosnia and Herzegovina
14 and Republika Srpska, and if we did not get these issues resolved, they
15 certainly would potentially have significant implications for the conduct
16 of the defence and the trial in the medium and longer term. But they are
17 not, I stress, the immediate problem. And we are not, just to make it
18 absolutely clear, so far as the overall -- I don't want to go into details
19 here, but as far as the overall financing of The Hague team is concerned
20 and the trial team is concerned, that is also not significantly affected,
21 if at all, by that particular issue.
22 There is, actually, there is no way that we could expand The Hague
23 team with the allocation which is deemed to be the appropriate amount for
24 this trial. There just -- it just isn't possible and it wouldn't be
25 possible, regardless of those particular questions that are still on the
1 table between Mr. Krajisnik, me, and the Registry, and so on, about which
2 we're hopeful of sorting something out anyway.
3 So putting that on one side as we can, Mr. Krajisnik is entirely
4 correct, and we support him a hundred per cent. We're here to support
5 him. That's what we're here to do, on one crucial aspect, and as a matter
6 of fact, we feel and understand that Mr. Krajisnik supports us, as it
7 happens, despite whatever other issues there are.
8 Your Honour, this case is in crisis on the Defence side, and if it
9 is in crisis on the Defence side, it is in crisis as a criminal trial on
10 such serious charges of Mr. Krajisnik. We made our application a few
11 weeks, time flies, it was two months, three months ago, whatever it was.
12 We made an application which was largely, effectively, rejected. Time has
13 moved on, work has moved on. There are limits to how much work a smallish
14 team of human beings can do, and if I can express a personal view here, my
15 team work up to and frequently beyond those limits. I don't necessarily
16 include myself. I let others judge that. But so far as the other members
17 of my team are concerned, I certainly wish to acknowledge that.
18 We still haven't even sorted the papers. They're down in an
19 office. We have other people who are not in court. We still haven't
20 sorted the papers. We do comment and notice and we want to be absolutely
21 fair about this: Mr. Harmon mentioned to me -- Mr. Harmon is not in
22 court, but I don't think it's discourteous or unfair to raise this point.
23 Mr. Harmon a long time ago mentioned said to me something along the lines
24 of, well. He and Mr. Brashich had had an understanding that Mr. Harmon,
25 following his policy of giving younger lawyers an opportunity of cutting
1 their teeth in court and dealing with witnesses, would it be understood
2 and accepted by Mr. Brashich that he wouldn't say on behalf of the
3 Defence, well, the Prosecution has got a team that's twice as big as our
4 team and so on. And I endorsed what I had understood to be Mr. Brashich's
5 reaction and I still do, in the sense that if we were talking about
6 introducing an occasional, additional counsel or a younger counsel or
7 somebody to have experience I make no issue. I wasn't going to say and
8 wouldn't say that there's Mr. Harmon, there's Mr. Tieger, there's
9 Mr. Hannis, as the core team of three, and I wouldn't say if three other
10 counsel come up over a period, oh, look, they've got three counsel,
11 they've got three times as many as us. I'm not going to say anything as
12 crude as that. But the simple fact is that we had five witnesses after
13 the recess. The Prosecution were able to field a separate counsel for
14 each of those five witnesses. There are only two of us, and we have Ms.
15 Cmeric, as -- we do have one other Serb speaker as a legal assistant who
16 in fact will only be with us for a very short time. He's got to go off
17 and deal with the rest of his life. And we have assistants and interns,
18 and we're lucky with the ones that we get. But Ms. Cmeric is really our
19 only real full-term, full-time practical working B/C/S speaking and
20 working member of the team. And Ms. Loukas and I as counsel have to do
21 all the witnesses between ourselves, and we have to deal with the 92 bis
22 stuff that comes up and so on.
23 Now, cases are heavy and they require work. We didn't come into
24 this case not expecting to work hard. We also didn't come into this case
25 not expecting that, after all, our lives -- her life in Australia is moved
1 to The Hague for a year or so. She knew that. That's the deal that she
2 signed up to. I knew that as a practicing barrister based in London I was
3 nevertheless going to spend a great deal of my time in The Hague. There
4 are perhaps issues about exactly how much time in the light of what we
5 were led to believe when we first came into the case. But I'm more
6 concerned about, at the moment, leaving that on one side, reserving the
7 position on that, I'm more concerned about simply being able to do
8 Mr. Krajisnik's case.
9 And, Your Honour, the position we're in at the moment is that we
10 never, ever have time to prepare properly for any witness except the very
11 smallest witnesses, where the territory is familiar. We never have time
12 to read all the stuff. We never have time to explore the issues properly.
13 We never have time to go back over the elementary things. We can't even
14 go back and read the transcripts of evidence that's been given. We just
15 don't have time to do it. We don't have time now for further background
16 reading, which is always necessary. We've done a lot, of course, over the
17 months in the preparation for the trial, we had to learn about all these
18 things. We've done a lot. But we don't have time to do that. We are
19 absolutely swept along, witness after witness after witness, with
20 fire-fighting, just trying to keep up with the absolute basics. And
21 Mr. Krajisnik is right. I have said it before in relation to other
22 witnesses. It's not a question of whether we have a deluxe preparation
23 for a witness or whether we have a basic preparation for a witness. We
24 are, we hope -- we hope we are experienced, we hope we are good at sifting
25 out irrelevant stuff of which there's lots, we hope we're good at taking a
1 robust view of when something doesn't justify the time and doesn't justify
2 the effort of reading it and sifting through the stuff. We sometimes and
3 frequently don't even get the opportunity to do the sifting. If it's
4 B/C/S material, Ms. Loukas and I of course have to ask somebody else to do
6 JUDGE ORIE: Mr. Stewart, if I may interrupt you for a while.
7 We've listened to you now for approximately ten minutes. The first part
8 mainly addressing what was not at the basis of Mr. Krajisnik's request.
9 And now the second part mainly dealing with the difficulties the Defence
10 is facing. I would say it's an elaboration to some extent of what has
11 been said before, especially when we dealt with it in motion for
12 adjournment. Could you tell us what this finally results in?
13 MR. STEWART: Yes.
14 JUDGE ORIE: Is there a request you're going to make? Because
15 it's perhaps good at the beginning of such a relatively long speech that
16 you say: I'm going to ask your Chamber this or that, or I'm going to give
17 my position on whether or not to agree with Mr. Krajisnik questioning
18 witnesses himself. Could you please tell us what you want, apart from
19 explaining that the Defence is facing considerable problems.
20 MR. STEWART: Well, I certainly wished Your Honour to understand
21 why it is that we do not feel that we are in a position to provide
22 Mr. Krajisnik with an effective defence. Leading on to this, therefore,
23 that it is not a satisfactory remedy for an ineffective defence, and this
24 is essentially what Mr. Krajisnik is saying, we suggest, to say: Well,
25 we'll do it in this hybrid way, that counsel will conduct some of the
1 cross-examination and then the client who necessarily knows the facts
2 which we can only ever glean second-hand, can then plug in and supplement
3 it. I'll be absolutely blunt here, and there's a difference, in effect,
4 then, between Mr. Krajisnik's application made directly and personally to
5 the Trial Chamber and my position as his counsel. We do not support him
6 on this, and that does give rise to a stark conflict on this. But then
7 that is because we have the conduct of his case. Provided that we are his
8 counsel and as long as we are his counsel, we have the conduct of his
9 case. His instructions, of course, on the essential elements, of course,
10 we follow those. We have to follow his instructions. At the most simple
11 level, does he plead guilty or not guilty. And that's clear. So we
12 follow his instructions. But we have the conduct of the case, and that is
13 the way which we wish to do his case. And if I did not consider it was in
14 Mr. Krajisnik's interests to adopt that position, that we wish to conduct
15 his case and present his case with adequate opportunity to do it, if I
16 didn't think that was in his interests, that wouldn't be my position.
17 JUDGE ORIE: May I try to see whether I understood your position.
18 You say allowing the accused to put questions to the witness himself is
19 not a remedy to what is the real problem, and that's we have insufficient
20 time to prepare and it should be solved other way and not by using this
21 bad remedy compared to granting the time you think you need for the
22 preparation, and therefore you do not support the request of
23 Mr. Krajisnik?
24 MR. STEWART: Yes. There may be broader reasons why I don't
25 support it. I don't really support it on the basis that it's not --
1 JUDGE ORIE: But that's the reason you at this moment present to
2 the Court, whether you do not --
3 MR. STEWART: I'll add the reason, Your Honour, that we submit it
4 is not actually an effective way of dealing with the witness to split
5 cross-examination, leaving aside the time and preparation issues, it
6 simply is not in our experience and from our position, it is not an
7 effective way of dealing with the matter.
8 JUDGE ORIE: Was there anything else you would like to raise at
9 this moment?
10 MR. STEWART: Yes, there is, Your Honour. It's this: That Your
11 Honour says that what I've said is an elaboration of a matter which has
12 already been decided, but that was decided two or three months ago. We
13 now will wish, once again, to bring the matter before the Court properly,
14 fully, and formally, to allow the Court to see exactly where we have got
15 to now, which is important, exactly where we believe we are going from
16 here. Because we have looked at the timetable and we have considered the
17 timetable for witnesses over the next few weeks, and we are frankly
18 horrified at the suggestion that there is any way of our dealing with it.
19 JUDGE ORIE: Do I understand that you will submit a further motion
20 for delays? Because then the Chamber would like to invite you to do that
21 in writing. And in addition to that, I can tell that you where it was
22 indicated in our oral decision on the 16th of July, I think, that we would
23 deliver a written decision, you can expect that still this week.
24 MR. STEWART: Obviously that would be helpful as the basis on
25 which we would then make our application. But may I also make this point,
1 Your Honour, that these things need time. We do -- it is of such utmost
2 importance that we need and wish to have adequate time to make that
3 application. Since it's to be done in writing, we will need the
4 opportunity to give the Trial Chamber the fullest picture of the scale of
5 the difficulties. Because, Your Honour, our submission is that this
6 timetable projected of week in, week out, five days a week, it is for the
7 team of the size we have and can reasonably expect to have, given what we
8 face against us, it is simply impossible, and we have to make that good,
9 but if this cannot be resolved by open discussion, negotiation of the
10 timetable, and Your Honour, we must say, it does seem that all the
11 appearances are -- there is something driving the timetable of this case
12 which is not driving the timetable of other cases. And we -- it is
13 difficult to understand how this case, which requires in the circumstances
14 and the history, far more work and far more preparation, we are the only
15 case on trial this week. We ought to be the only case not on trial this
16 week. And it is absolutely extraordinary --
17 JUDGE ORIE: Yes. I do understand. Of course it makes no sense
18 to say which cases on which week on trial because of course some cases are
19 awaiting 98 bis decision. I could mention you a lot of weeks where other
20 cases were on trial and this case was not on trial. So that's not a --
21 MR. STEWART: I accept that's a crude illustration, Your Honour.
22 Yes. I do accept that much, yes.
23 JUDGE ORIE: But let's see -- let me -- we're now here for
24 approximately 15 minutes. I'm trying to find out. You want further
25 delays and you want to emphasise the necessity of getting further delays.
1 MR. STEWART: Delays was not my word, Your Honour. Time is the
2 word. Not delays, with respect.
3 JUDGE ORIE: Well, time is to a certain extent is a delay. I
4 invited you to make a written submission to that, and I indicated that you
5 could expect the written version of the oral decision given on the 16th of
6 July. Do you say no, it couldn't be done by a written submission? Or
7 what's your position at this moment?
8 MR. STEWART: Your Honour, we do suggest it's unsatisfactory to do
9 it by written submission because apart from anything else it's of such
10 importance. Mr. Krajisnik needs to hear this. Now despite what I said
11 about not wishing Mr. Krajisnik to play a different role as -- apart from
12 being the client instructing us, it is important that these matters are
13 not simply dealt with in writing but that they are explored properly,
14 publicly, with Mr. Krajisnik able to be there and know exactly what's
15 happening as it happens.
16 JUDGE ORIE: Yes. I do understand your point. The Chamber will
17 consider whether it will ask you to make any written submissions on the
18 matter. And before the Chamber will decide that, you could indicate what
19 time you would need if you would rather do it orally than in writing. I
20 don't expect an answer immediately, but --
21 MR. STEWART: Your Honour, may I indicate something which I hope
22 may be helpful.
23 JUDGE ORIE: Yes.
24 MR. STEWART: The Defence would be very content, and in fact would
25 offer, if that would help the Trial Chamber, that we would submit -- we
1 would make submissions in writing as the basis, because that would seem to
2 us to be an effective practical way of presenting an application to give
3 the Chamber a written submission as the framework, so that Your Honours
4 knew what the points were in advance and then, if we have a proper
5 opportunity then to explore them and make submissions based on that. That
6 would seem to be the best procedure, rather than simply coming in and
7 dealing with it oral without any written framework. I'm in Your Honour's
8 hands on that, but we would suggest that.
9 We would need time either way. Of course, we would welcome
10 receiving Your Honour's decision from the earlier application. But we
11 would -- it depends what else we have to do, Your Honour. If we are
12 trying to fit this sort of work around dealing with the programme of
13 witnesses, it is extremely hard for us to do it in one week or even two
14 weeks. That's the problem. We would need -- we would need at least two
15 weeks to put this together if we are also having to deal with witnesses
16 day in, day out, as we go along.
17 But it's urgent for us, Your Honour, because this process, which
18 we do submit and consider to be disastrous, this process, our submission
19 will be that this particular timetable, this particular pressure, it must
20 be stopped as soon as possible, because every day and every week it goes
21 on is exacerbating the situation.
22 JUDGE ORIE: Yes. The Chamber will decide on whether it will
23 require you to make written submissions, and you're invited to indicate to
24 the Chamber that if there's any urgent oral application to be made, how
25 much time you would need for that.
1 MR. STEWART: Well, if we were talking about an urgent application
2 to give us time to prepare a fuller application --
3 JUDGE ORIE: Yes. Mr. Stewart, I think we spent now 20 minutes on
4 this. I've looked at your last approximately 15 lines, and what you said
5 on those 15 lines, on from the Defence would be very content, et cetera,
6 et cetera, you could have said that really in three lines. More would not
7 have been needed. So the Chamber -- you know what the invitation is, and
8 the Chamber will consider the matter.
9 I'd now like to turn into closed session and ask the usher to
10 escort the witness into the courtroom.
11 [Closed session]
11 Pages 5652 to 5675 – redacted – Closed session.
13 --- Whereupon the hearing adjourned at 1.48 p.m.,
14 to be reconvened on Tuesday, the 21st day of
15 September, 2004, at 9.00 a.m.