040920ED

Page 5603

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

Page 5604

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

Page 5605

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

Page 5606

12 Blank page inserted to ensure the pagination between the English and

13 French transcripts correspond

Page 5607

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

4 admitted.

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]

25 (redacted)

Page 5608

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Page 5609

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Page 5610

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Page 5611

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Page 5612

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Page 5613

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7 (redacted)

8 (redacted)

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.

Page 5614

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

22 recent.

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

Page 5615

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,

Page 5616

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.

16 (redacted)

17 (redacted)

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Page 5617

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Page 5618

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7 (redacted)

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.

Page 5619

1 THE ACCUSED: [Interpretation] I would like to address the Trial

2 Chamber directly, with your leave. It would be best in closed session,

3 though.

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

9 misunderstanding.

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

Page 5620

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,

Page 5621

1 you would say that you could also express yourself in open session, please

2 proceed.

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

Page 5622

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

3 trial.

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.

Page 5623

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

16 co-counsel.

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

Page 5624

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

Page 5641

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

Page 5642

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

Page 5643

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

Page 5644

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

Page 5645

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

5 that.

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

Page 5646

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 --

Page 5647

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,

Page 5648

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.

Page 5649

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

Page 5650

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.