1 Tuesday, 31 May 2005
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.21 p.m.
5 JUDGE ORIE: Madam Registrar, would you please call the case.
6 THE REGISTRAR: Good afternoon, Your Honours. This is case
7 number IT-00-39-T, the Prosecutor versus Momcilo Krajisnik.
8 JUDGE ORIE: Yes. The Chamber received this morning a filing
9 from the Office of the Prosecution in relation to self-representation.
10 Would we expect also any written submissions, or would you -- Mr. Stewart,
11 will you limit yourself to oral submissions? We did not invite for written
12 submissions, but ...
13 MR. STEWART: Your Honour, you didn't invite and we didn't
14 respond to the invitation that wasn't given. No, Your Honour, and we're
15 not proposing -- I received the -- I've got these the wrong way round, I
16 think. I received the Prosecution's submissions this morning when I got
17 back from the Detention Unit.
18 JUDGE ORIE: Yes.
19 MR. STEWART: And, Your Honour, the practical terms, responding
20 in writing, anyway, is not an option.
21 JUDGE ORIE: No. No, I do understand. But at least it's good
22 to know that you received it, and, of course, there was not that much time
23 still to read it, but ...
24 MR. STEWART: I have read it, Your Honour.
25 JUDGE ORIE: Yes. Yes, so did the Chamber.
1 Yes. Then I'm also informed that there's still a filing to be
2 expected rather soon, and perhaps the parties could at least see whether at
3 the next break there would be such a filing, which would be a filing by the
4 Registry on the subject. As you all know that the Registry is entitled to
5 make whatever filing they'd like under Rule, what is it, 33, I think it is.
6 Let me just check.
7 [Trial Chamber and registrar confer]
8 JUDGE ORIE: Yes. Madam Registrar points me to Rule 33(B),
9 which reads that "The Registrar in the execution of his or her functions
10 may make oral and written representations to the President or Chambers on
11 any issue arising in the context of a specific case which effects or may
12 effect the discharge of such functions." And that's not even the whole of
13 it, but notice to the parties should be given where necessary.
14 So, therefore, if the Registry has not yet given notice -- they
15 couldn't do it because there was no filing yet, but this already draws the
16 attention of the parties to the possibility that there would be such a
18 Then if there's no other procedural issue to be raised, I'd like
19 to return into closed session in order to hear the remainder of the cross-
20 examination of Witness 665.
21 MR. STEWART: I'm sorry, Your Honour, I just wonder whether I
22 should inquire if there's any information when we're going to get this
23 filing in view of the imminence of this issue being dealt with, because --
24 JUDGE ORIE: Yes.
25 MR. STEWART: There are going to be limited opportunities to
1 read it, aren't there?
2 JUDGE ORIE: Yes. Of course, the Registry takes a specific
3 position; they can file whenever they want as long as it is within the
4 ambit of Rule 33(B). But since it might be of importance, I take it, Madam
5 Registrar, that as soon as it has been filed, that notice and a copy will
6 be given immediately to those interested.
7 MR. STEWART: Well, yes, I suppose the Registry appreciate the
8 importance of filing something before the issue that it's directed to is
9 actually resolved.
10 JUDGE ORIE: Yes.
11 MR. STEWART: So -- well, thank you, Your Honours. We've -- if
12 we could, because I may be able to at least get somebody to look at it --
13 JUDGE ORIE: Yes.
14 MR. STEWART: -- straight away. I'm not quite sure who will be
16 [Trial Chamber and registrar confer]
17 JUDGE ORIE: Madam Registrar informs me that the filing would be
18 within the next hour or hour and a half.
19 Then we could return into closed session.
20 [Closed session]
11 Pages 13646-13689 redacted. Closed session.
9 [Open session]
10 JUDGE ORIE: Mr. Tieger, I see that you are now replaced by Mr.
12 [Trial Chamber and registrar confer]
13 JUDGE ORIE: The next issue on the agenda is the letter written
14 by Mr. Krajisnik and sent to the Registrar in which he expresses that he
15 wants to defend himself for, as I understand, the remainder of the trial.
16 Last week we have paid some attention to it. The Chamber is
17 aware that you, Mr. Stewart, have written a letter to the Registrar
18 explaining your position. The Chamber has given what I would call a
19 provisional ruling last week, that we still first have to hear further
20 submissions, and we have to further determine what the effect would be of
21 the letter written by Mr. Krajisnik, and the Chamber has invited the
22 parties to make further submissions in that respect.
23 MR. STEWART: Your Honour, may I give Your Honours --
24 JUDGE ORIE: Yes.
25 MR. STEWART: -- some information as well, which I'm sure -- Mr.
1 Krajisnik has written a further letter, which he informs me was delivered,
2 as far as he can deliver it, of course --
3 JUDGE ORIE: Yes.
4 MR. STEWART: -- at the United Nations Detention Unit at, I
5 think, 7.00 this morning was -- was what he told me.
6 Your Honour, it's -- if I say it's a letter of a similar nature,
7 I just mean that in the very broadest sense. It is a letter and -- I don't
8 know where it is, of course. Last time, Your Honour, the letter took some
9 time to get from the United Nations Detention Unit onto the Registrar's
10 desk, so I have no idea where it is. But I can tell Your Honour that it
11 does express, in terms which no doubt the Trial Chamber will again need to
12 interpret and evaluate, Mr. Krajisnik's decisions in this area.
13 JUDGE ORIE: Yes. So I do understand that at least the position
14 of Mr. Krajisnik has not changed.
15 MR. STEWART: Well, no, I didn't say that, Your Honour.
16 JUDGE ORIE: Oh.
17 MR. STEWART: I said it's --
18 JUDGE ORIE: Well, the position has not changed. When I say
19 that, I --
20 MR. STEWART: That would be my submission, Your Honour.
21 JUDGE ORIE: You said --
22 MR. STEWART: That would be my submission, Your Honour. But
23 then my submission to Mr. Krajisnik's position was different from the Trial
24 Chamber's view.
25 JUDGE ORIE: You said, "A letter of a similar nature, in the
1 very broadest sense."
2 MR. STEWART: Well, that was designed -- Your Honour, what I
3 didn't want to do was start immediately making submissions as to the effect
4 of that letter. Perhaps the Trial Chamber --
5 JUDGE ORIE: Yes. But let's be -- is it still the wish of Mr.
6 Krajisnik - and I could address you directly, Mr. Krajisnik - is it still
7 your wish to defend yourself? I mean, that's the basic matter.
8 MR. STEWART: Your Honour, there's one thing I can do, which is
9 I do have a copy of the letter, and it would be possible - I'm not trying
10 to stifle Mr. Krajisnik again, of course, or indeed trespass on the Trial
11 Chamber - but just to say that Mr. Krajisnik has very kindly given me a
12 copy of the letter. It's in Serbian.
13 JUDGE ORIE: Yes.
14 MR. STEWART: It is a very simple matter to let the Trial
15 Chamber know what is the content of the letter rather than me simply
16 describe it as similar in broad terms in a rather lengthy manner.
17 JUDGE ORIE: Yes. Let's first ask Mr. Krajisnik whether the
18 basis of his decision is the same. That's a simple question, Mr.
19 Krajisnik, whether it's still your wish to defend yourself and not to be
20 assisted by counsel.
21 THE ACCUSED: [Interpretation] As I've already mentioned in my
22 first letter, I reached that decision unwillingly, the decision to defend
23 myself. And what I said then, I repeated in my second letter, and I don't
24 really think that anything has changed since.
25 If you need any additional information, I'm available to provide
1 it to the Trial Chamber.
2 JUDGE ORIE: Yes. So your basic position is the same.
3 We could do two things. If the letter is very long, perhaps we
4 should wait until the moment that we have seen. If it's a short letter --
5 MR. STEWART: It isn't long, Your Honour. I could tell Your
6 Honour that.
7 JUDGE ORIE: If it's a short letter, we could ask someone to
8 read it so that at least everyone in this courtroom is aware of what
9 position exactly you've taken. If it would be read.
10 Mr. Krajisnik, why not for you to do it yourself, if you have a
11 copy, or if Mr. Stewart would provide you with a copy? And as you know,
12 Mr. Krajisnik, while reading speed goes up usually. So for the
13 interpreters - I see you have a copy - could you please slowly read your
14 letter so that we're aware of the content.
15 THE ACCUSED: [Interpretation] I keep objecting to people
16 speaking too fast, but when one has to speak oneself, one often doesn't
17 realise that it's too fast. But I'll do my best.
18 "Subject: The visit of the representative of the Registry. To:
19 The Registry of The Hague Tribunal. Since the discussion was held in court
20 on Wednesday, the 25th of May, 2005" -- no, I didn't say 2005 -- "I have
21 met with Mr. van der Vliet and Mr. Petrov from the Registry of The Hague
22 Tribunal. On that occasion, I confirmed that, although unwillingly, I was
23 determined in my decision to take over my own defence. I wished the
24 Registry and/or the Trial Chamber to provide me with information as to what
25 sort of assistance and support would be available to me in the course of
1 conducting my own defence.
2 "The Registry representatives on that occasion informed me that
3 they were not ready to provide answers to my questions. They needed more
4 time to consider the matter, and they were expecting to be able to answer
5 those questions soon. However, I would just like to clarify that I do need
6 this information now as of consequence of my decision and not in order for
7 me to be able to make this decision. I also explained to them that my
8 decision is not conditional in any way and that since last Wednesday I was
9 indeed in a position to consider my position from every point of view, and
10 this is my firm and well-considered decision. Furthermore, I told the
11 Registry representatives in some detail what the reasons for my decision
12 are. I informed them that I would present those arguments to the Trial
13 Chamber on the occasion of the upcoming Status Conference. Best regards,
14 Momcilo Krajisnik."
15 JUDGE ORIE: Thank you, Mr. Krajisnik, so that we are aware of
16 the content of your letter.
17 But first of all, Madam Registrar, in view of the submissions
18 made by the Registry today, if anyone from the Registry would be present
19 during this hearing, especially since they offered further explanations on
20 the matters raised, could you inform them that they're welcome to join this
22 MR. STEWART: Your Honour, may I offer just two small points on
23 that letter. First of all, I think Mr. Krajisnik simply had difficulty
24 with the pronunciation. The two gentlemen he refers to are Mr. van der
25 Vliet and Mr. Petrov, Mr. van der Vleit, of course, being the chief of
1 OLAD. I don't think there's any issue about that.
2 And the second point, a slightly different one, Your Honour, is
3 that my -- I've got a double-strong B/C/S team today. I am informed, it's
4 suggested that the word, which is "nerado", which came across as
5 "unwillingly," that the sense is "reluctantly". But, Your Honour, of
6 course I can only ever -- I can't comment on the Serbian half of anything.
7 But that's just the information that I'm getting, that that's the sense of
9 JUDGE ORIE: Mr. Krajisnik, perhaps we could just ask you for an
10 explanation. Although I'm not a native English speaker, I do understand
11 that "unwillingly" means that you would want to do something else than you
12 do; whereas, "reluctantly" means that you regret that you have to do it.
13 If this is sufficiently explaining the difference -- Mr. Stewart, I'm
14 looking to you or --
15 MR. STEWART: Well, Your Honour, the trouble is, I wouldn't -
16 with the greatest respect, Your Honour - I wouldn't be 100 per cent happy
17 about the explanation in English, but Mr. Karganovic is even more unhappy,
18 if that's possible, about the way that it's coming across in Serbian,
19 which, or course, is not Your Honour's bit of the --
20 JUDGE ORIE: Okay. Well, let's say that, Mr. Krajisnik,
21 whatever exactly the word is, that you have not whole-heartedly have chosen
22 this position. That's at least it's putting it in a different way, and
23 let's leave the details, for the time being, apart.
24 I now first turn to the Prosecution. We have received a rather
25 lengthy submission this morning. Mr. Stewart, you've been able to read it.
1 Mr. Krajisnik, are you aware, approximately, of the submission
2 of the Prosecution, what it is about?
3 THE ACCUSED: [Interpretation] I'm not aware of it.
4 JUDGE ORIE: Let me, then, try to briefly explain that to you.
5 The Prosecution submission analyses from a legal point of view the basis
6 and the limits of the right of self-representation, and gives this analysis
7 on the basis of texts, such as the text of the Statute, on the basis of the
8 case law, both in this Tribunal but also in new tribunals, such as the
9 Special Court of Sierra Leone. But apart from the case law of these
10 international tribunals, the submission also pays quite some attention to
11 case law developed in various countries, including the former Yugoslavia,
12 including England, France, Germany, United States. So many, many countries
13 are covered by these submissions, and it gives a further legal analysis of
14 the problem. This is just for your explanation.
15 Finally, the submission pays quite some attention to the
16 conditions under which imposed counsel, duty counsel, and standby counsel
17 would have to work, at least, how these conditions are formulated, and it
18 also pays some attention to the practice of these different phenomena in
19 the various countries.
20 Mr. Harmon, is this a fair summary of what your submissions
22 MR. HARMON: Yes, Your Honour. In addition to which, it also
23 focuses upon the nature of the inquiry that must be made --
24 JUDGE ORIE: Yes.
25 MR. HARMON: -- by the Chamber in order to determine the issue of
1 whether Mr. Krajisnik should represent himself.
2 JUDGE ORIE: Yes. I'd forgotten that.
3 [Trial Chamber and registrar confer]
4 JUDGE ORIE: A request for urgent translation of that submission
5 has been issued.
6 Then, Mr. Harmon, I would say that in view of the lengthy
7 submission, especially on the subjects the Chamber invited the parties to
8 make submissions on, I suggest that we first now give an opportunity to the
9 Defence to clarify its position, and that would mean, Mr. Stewart, you
10 first, and then I'll give an opportunity to Mr. Krajisnik.
11 MR. STEWART: [Microphone not activated]
12 THE INTERPRETER: Microphone, Please.
13 MR. STEWART: Your Honour, may I just help myself to a different
14 lectern from behind.
15 [Defence counsel confer]
16 [Trial Chamber and registrar confer]
17 MR. STEWART: Your Honour, what I'd like to do to start with is
18 - and it's not in a sense a direct response, though of course I do have
19 comments to make in relation to the Prosecution's submissions - is to
20 indicate to Your Honours how we submit - we in this situation has really
21 just got to be we, the counsel, Ms. Loukas and I - the way we submit the
22 Statute, the Rules, and the assignment directive actually work. Because in
23 our submission, the Registry is wrong about one critical element in its
24 submission. We've only very recently seen the Registry's submission, but
25 what we do see in it, unless we completely misunderstood it, is the
1 contention that the Registrar's approval for withdrawal of assigned counsel
2 is always required.
3 JUDGE ORIE: Yes. May I take it that the Defence takes the
4 position that the announcement of Mr. Krajisnik to defend himself would
5 have as a consequence that there's no need to withdraw you any more because
6 it follows from the text itself that you will then not continue to act as
7 counsel for Mr. Krajisnik? Is that your position?
8 MR. STEWART: It is, Your Honour, yes.
9 JUDGE ORIE: Yes. I mean, from the fact that I mention it
10 immediately, you may conclude that it has not remained unnoticed, this
11 great difference. If there's any need to -- if you'd like to give further
12 arguments for that, but I think the position is quite clear, and I noticed
13 it in the submission made by the Registry, that they still have to take a
14 decision. In your view, they will certainly not have to do so.
15 MR. STEWART: Well, Your Honour, I need develop the matter no
16 further if the Trial Chamber is going to say that it accepts our
17 submissions and that's the end of it.
18 JUDGE ORIE: I'm not saying that it accepts it.
19 MR. STEWART: No.
20 JUDGE ORIE: But I just say that the difference of you is
21 perfectly clear. So there's no need to explain the difference of you any
22 more. But if you, of course, would like to support your view, then of
23 course you can do so.
24 MR. STEWART: Indeed, Your Honour, yes. Well, that's clear,
25 then. Yes, well, indeed I would. Thank you.
1 Your Honour, the starting point -- and we needn't dwell on that.
2 The starting point, and that's well established, is that 21(4)(D) of the
3 Statute contains what, in accordance with the Milosevic Appeals Chamber
4 decision, is a presumptive but not inviolable right to represent yourself.
5 Your Honours, Rule 45(A) of the Rules of Procedure and Evidence
6 provide for the assignment of counsel to an accused who lacks means, and
7 then expressly that's to be in accordance with procedure established in a
8 directive, which one assumes was in contemplation at the time that Rule was
9 drafted but is -- is now in existence as, what I'll call, the assignment
10 directive, the directive on assignment of counsel.
11 Your Honour, the terms of that directive are important and do
12 require careful attention, with respect, Your Honour.
13 The way in which it works is this: That Article 20 of that
14 directive - and do Your Honours have that conveniently --
15 JUDGE ORIE: I couldn't say that I know it by heart, but I
16 thoroughly studied it, and the same is true for the rest of the Trial
18 MR. STEWART: I was wondering --
19 JUDGE ORIE: But I've got it here.
20 MR. STEWART: -- whether Your Honours had it available in front
21 of you, because it is, after all, a text.
22 JUDGE ORIE: Yes.
23 MR. STEWART: And we are going to be looking at inevitably some
24 quite detail of wording, Your Honour.
25 JUDGE ORIE: The Chamber has it. Yes.
1 MR. STEWART: So 20(A), "Replacement of Counsel."
2 "Where the assignment of counsel is withdrawn by the Registrar
3 or where the services of assigned counsel are discontinued, the counsel
4 assigned" -- and then it goes on to place some limits on the circumstances
5 in which counsel may immediately withdraw from acting.
6 But, Your Honour, the distinction is drawn there right at the
7 very beginning between assignment of counsel withdrawn by the Registrar and
8 services of assigned counsel being discontinued. And they are clearly
9 different or, as a matter of obvious construction, there would be no
10 reference to the second, the discontinuance of services. If assignment
11 always needed to be withdrawn by the Registrar and if assignment -- if
12 withdrawal of assignment by the Registrar was required to follow in order
13 to implement, ratify, or allow effect to be given to the discontinuance of
14 the services of assigned counsel, there wouldn't have been any reference
15 there to the second limb. It simply wouldn't have been necessary. The
16 article would have just said "where the assignment of counsel is withdrawn
17 by the Registrar." Enough. Because if that were all that was required,
18 that is all that would need to be said. So they clearly are different.
19 Your Honour, there is no provision, and we don't assert that
20 there is any provision in these Articles or in the Rules expressly or by
21 implication which would allow assigned counsel themselves or him or herself
22 simply to discontinue. It's not open to me as lead counsel, Ms. Loukas,
23 it's not open to us to say, "We discontinue our services. We are
24 resigning." That -- we acknowledge that's clear. Discontinuance applies
25 to the client sacking counsel. And I use that colloquial word because that
1 clearly expresses the position, that's what it applies to. It actually
2 can't apply to anything else.
3 Withdrawal and suspension are clearly different for a start. We
4 can get "suspension" out of the way. That's another term that appears in
5 the Rules. But if we look at Article 19, suspension and withdrawl of
6 counsel, 19(B) provides for particular circumstances in which suspension
7 may occur. Pretty rare, although not in this particular case, as it
8 happens. But we can put that on one side.
9 Of the two possibilities that are then contemplated by Article
10 20, withdrawal by the Registrar, on the one hand, discontinuance by the
11 client, sacking of counsel, on the other. Withdrawal by the Registrar can
12 arise in a number of specified circumstances.
13 One which we need to just look at, but in order to eliminate in
14 effect but for understanding along the way, is Article 18. Article 18
15 provides that "Assignment of counsel may be withdrawn if" -- and I can
16 summarise: The client comes into money, first; or secondly, more assets
17 come to light.
18 JUDGE ORIE: Yes. Mr. Stewart, the irrelevant options need no
19 discussion. It's clear that that's not the case. They need no attention
20 at this moment.
21 MR. STEWART: Your Honour, I mention them only because they are
22 part of the scheme. So a few seconds pointing to the ones that don't
23 actually apply are nevertheless necessary, Your Honour, to give a clear
24 indication of what the scheme is of these Rules, and that's what I'm doing.
25 But that's done, Your Honour. That's one of the situations.
1 Article 19, then, is the only other Article which provides for
2 withdrawal of counsel, because we've eliminated suspension. And that
3 provides for discretionary withdrawal under 19(A), which is subject to --
4 for present purposes, it probably doesn't matter, Your Honour, whether I
5 describe it as a judicial or a quasi-judicial determination by the
6 Registrar. The concept is clear enough either way. It's not just an
7 administrative decision. And we know that because it says so expressly in
8 19(F), it's subject to review by the Registrar, and the principles of
9 review make it clear that it's a judicial or quasi-judicial decision.
10 So there's discretionary withdrawl under 19(A), and that's the
11 one that has to be operated, for example, if counsel wishes to withdraw,
12 counsel wishes to take the initiative.
13 There is also mandatory withdrawal under 19 -- sorry, under
14 19(C), "The Registrar shall withdraw the assignment of counsel," and then
15 in a number of specified circumstances Counsel ceases to be eligible to
16 appear in front of the Tribunal or is held in contempt of Court.
17 JUDGE ORIE: Mr. Stewart, may I take it that the reference to
18 19(F) your saying that it's reviewed by the Registrar was a slip of the
20 MR. STEWART: 19(F), Your Honour?
21 JUDGE ORIE: Review by the President or by the Trial Chamber.
22 MR. STEWART: I'm sorry, what did I say?
23 JUDGE ORIE: The Registrar.
24 MR. STEWART: Oh, that was a slip of the tongue. Yes, Your
25 Honour is completely right there. Of course, review by the President of
1 the Tribunal. Of course, thank you.
2 What is of note, then, is that under 19(E), however counsel is
3 withdrawn or under -- whichever route under Article 19, "The Registrar
4 shall immediately assign a new counsel to the suspect or accused." So the
5 point there under that mechanism -- it's different from 18. 18 is because
6 -- and it was necessary to mention 18 for that reason. 18 is where,
7 essentially, the accused has become ineligible to have assigned counsel
8 because he can pay for it. He doesn't qualify as indigent. So that's why
9 18, then, doesn't contain a similar provision for immediate replacement.
10 But in whatever circumstances, whether it's the discretionary withdrawal or
11 the mandatory withdrawal of assigned counsel, under (E), the Registrar,
12 mandatory again, shall immediately assign a new counsel.
13 Moving back on to Article 20, the point is that where the
14 assignment, the two limbs, if you like, of 20(A), where the assignment of
15 counsel is withdrawn by the Registrar, it's either under Article 18, as
16 I've said, where a question of replacement doesn't arise because the
17 accused can afford it and if he's going to have counsel, he's going to have
18 to pay for his own counsel, so there's no longer going to be assigned
19 counsel, or it's going to be, under Article 19. In that case, Article 19,
20 there must be a replacement. That's in contra-distinction to the other
21 possibility, which is the one that applies here, where the services of
22 assigned counsel have been discontinued. And the structure, then, of 20(A)
23 is very clear, and the demonstration of the difference between withdrawal
24 and discontinuance is illustrated and confirmed by the rest of 20(A), which
25 then says what is going to happen by way of -- or what can happen by way of
1 withdrawal from acting.
2 It's perfectly clear that withdrawal from acting is a different
3 concept from withdrawal by the Registrar. The word "withdraw" in the
4 English version appears in both places. But we are clearly talking about
5 two different things because "withdrawal from acting" follows "withdrawal
6 by the Registrar", with a suspension of withdrawal from acting for a period
7 in specified circumstances after, by definition, the Registrar has already
8 withdrawn the assignment. And the way in which Article 20 works, in terms
9 of what is contemplated, is that, in the case of a withdrawal by the
10 Registrar, under Article 19 - ignore 18 - in the case of withdrawal by the
11 Registrar under Article 19, a replacement counsel must be provided by the
12 Registrar, under 19(E), but until that has happened, the withdrawn counsel
13 must continue acting. So it covers that interim period.
14 In the case of withdrawal under Article 18, of course there's no
15 longer any entitlement to assigned counsel. The Registrar doesn't have to
16 provide a replacement.
17 Where the services of counsel have been discontinued - so that's
18 the other limb and the other concept expressly contemplated by Article
19 20(A) - counsel must continue and not withdraw from acting. Counsel will
20 not have been withdrawn. Counsel will have had services discontinued but
21 cannot withdraw from acting until either the accused declares his intention
22 in writing to conduct his own defence or provides, which means pays for,
23 replacement counsel because the wording does cover that. "Counsel assigned
24 may not withdraw," which is Ms. Loukas and me, well, it's me as lead
25 counsel, "may not withdraw from acting until either replacement counsel" --
1 oh, I'm sorry, "either replacement counsel have been provided by the
2 Tribunal," that's not been supplied, "or by the suspect or accused."
3 So if Mr. Krajisnik were himself, out of his own money, to appoint another
4 counsel, then, of course, he wouldn't be then declaring his intention to
5 represent himself in writing. But it is at that point that I could then
6 withdraw from acting, but I would have to wait -- if Mr. Krajisnik were not
7 intending to represent himself, I would have to wait until Mr. Krajisnik
8 had, out of his own pocket, appointed a replacement counsel. But that's
9 not the situation. We got the situation clearly contemplated by Article
10 20, which is "Services of assigned counsel are discontinued." The only
11 hiatus, if you like, or the only suspension of that coming into operation,
12 in terms of my withdrawing from acting, is until he declares his intention
13 in writing to conduct his own defence.
14 Well, since he does that and has done that by the same document
15 at the same time, so the discontinuance of my services - and Ms. Loukas's
16 with them - but the discontinuance of my services and the declaration of
17 his intention in writing to conduct his own defence come in the same
18 document. There isn't any room for that delay. So my withdrawal from
19 acting happens immediately.
20 Now, Your Honour, the only way in which that can not have
21 operated is if, notwithstanding the express and unequivocal terms in which
22 Mr. Krajisnik expresses his letter as a man of whom no possible suggestion
23 is made that he is not an adult man in full possession of his faculties,
24 the only way in which that can be said not to have happened is if on
25 examination -- and, Your Honour, we do not deny and suggest that it isn't
1 the responsibility of the Tribunal conscientiously to explore to the point
2 of being satisfied that an adult male in -- well, it doesn't matter whether
3 he's male, but Mr. Krajisnik is, of course, as an adult in possession of
4 his faculties, isn't under some serious error or misconception, something
5 that would actually vitiate the action. But in our submission, I won't
6 develop that for the moment, Your Honour. That's perhaps another fairly
7 large topic here. But it would be our basic submission that it would take
8 a lot to vitiate a conscious decision of an adult intelligent, educated man
9 such as Mr. Krajisnik, who has seen this trial developing around him over
10 this period. But that's perhaps an issue to be considered in due course.
11 But as far as the operation of Article 20 is concerned, unless
12 it is held that on such examination there is something to vitiate the plain
13 terms of Mr. Krajisnik's letter - and I'm now talking about his recent
14 letter, without resiling from the submissions we made in relation to the
15 earlier letter - unless there is something to vitiate that letter, this has
16 already happened, and our services have been discontinued. There has been
17 no room for operation -- to the very most a scintilla of time perhaps in
18 theory, but there has been no room for operation of the hiatus or the
19 suspension of our withdrawal from acting. Our services have been
20 discontinued. The Registrar has no role in this, in the sense that his
21 approval is not required. There does not need to be withdrawal. This is
22 another strand altogether; this has happened.
23 So the only areas or exploration -- well, I say they're the
24 only, Your Honour, one could -- people can always come up with other areas
25 for exploration. But the only areas of substance or key areas for
1 exploration here are the possible - and I say no more than that - the
2 possible invalidity of Mr. Krajisnik's decision on the basis that there is
3 something that would vitiate it, about which I've just expressed our
4 position in a nutshell. We've not developed that submission, or different
5 strand, different possibility altogether, which is the one -- or is
6 something developed in the Prosecution's submissions, which is the
7 possibility that in the particular circumstances of this case, either now
8 or at some future point in the light of how the matter develops, the Court
9 might consider it appropriate to appoint standby counsel as the convenient
10 label, but counsel of the type - although each case has to then adjust to
11 its own particular facts and circumstances - of the type appointed in Mr.
12 Milosevic's case. But that comes – logically, that is there as a
13 possibility, of course. There is absolutely nothing to prevent that
14 exploration, but logically it comes after what, unless there is a vitiation
15 of Mr. Krajisnik's expressed decision, after what has already happened, the
16 discontinuance of our services and our withdrawal from acting.
17 And Your Honour, a point which reinforces what we said in any
18 case are crystal clear from these Rules and the assignment, is that you
19 must remember that Mr. Krajisnik -- the assignment of counsel to Mr.
20 Krajisnik has not been - and we know this, of course, from lots of other
21 matters explored in the case - has not been on the basis that we and the
22 Defence team that goes with us are entirely paid for by the Tribunal,
23 because they're not. Mr. Krajisnik is required to contribute a substantial
24 portion of that. It doesn't matter what it is, Your Honour, for present
25 public purposes. The Trial Chamber knows perfectly well what it is. It's
1 probably been discussed in public. Anyway, it doesn't matter. Your
2 Honours know there's a -- it's a significant amount of money. It's a
3 significant amount of money monthly, and it's a significant amount of money
4 in total. That is another reason. As a matter of the rationale and also
5 on the Rules, that is another reason why a client, an accused in Mr.
6 Krajisnik's position, is in fact free to discontinue the services of
7 assigned counsel. Because otherwise, as long as assigned counsel
8 continues, he continues under that obligation to contribute a substantial
9 sum of money monthly, gradually working towards -- because Your Honours
10 know the way it's done is, a total is assessed of what he can and should
11 contribute, and then it's divided up by the projected months of the trial.
12 So, in fact, it's a very substantial lump sum which he is
13 required to make as a contribution. And a defendant in Mr. Krajisnik's
14 position is, of course, entitled and must be entitled to say, Well, I don't
15 want to do that, thank you very much. I don't want to be under this
16 obligation. I don't want to have a defence through assigned counsel which
17 either has to be done on short rations, has to be done with less funds than
18 are deemed to be necessary by the Registry, or I have to pay my money. He
19 is entitled to choose not to do that, and we don't need to explore the
20 reasons, and we don't need to explore whether, in fact, that forms any part
21 of Mr. Krajisnik's reasoning. That's not the point. It is quite clear, as
22 a matter of principle, that he must be entitled to do that. And that fits
23 the Rules.
24 There is, we submit, unless - and we accept that in principle
25 though the facts are another matter - unless his letter and his decision
1 can be set aside as not a valid decision, in which case none of this
2 arises. I acknowledge that. If it isn't -- if it isn't really a decision
3 of an adult person, then it -- none of it has any effect. Then his letter
4 is just not worth the paper it's written on. But once you get beyond that
5 step, it is perfectly clear under the Rules that he has discontinued our
6 services, and the alternative, which is that he's compulsorily to have
7 retained us, is first of all inconsistent with the Rules, clearly
8 inconsistent with what under the terms of the Rules has plainly already
9 happened, and is also inconsistent with his right to say, No, I don't wish
10 to keep on paying my money to have assigned counsel. I want to defend
11 myself, thank you very much.
12 So, Your Honour, that's the starting point. That's not, of
13 course, everything we'd have to say, because there -- there are our
14 submissions in relation to the Prosecution's submissions. But it may be
15 that the right course there is for the -- it's not a criticism, Your
16 Honour, but in view of the time frame in which this material has arrived,
17 it may be that the right course, then, is for the Prosecution to develop
18 their submissions, as far as they wish to. And I see that Mr. van de Vliet
19 from the Registry -- good afternoon. Mr. van de Vliet is here, as well,
20 and no doubt they would wish the opportunity, as well. And then the
21 Defence could deal with those other matters so far as they arise.
22 I hope that's helpful, anyway, Your Honours, to set out what the
23 Defence thinks is the scheme and the way it works and the reason why we --
24 we start from the position that we are gone, as Mr. Krajisnik's counsel.
25 JUDGE ORIE: Yes. Perhaps we could ask some comments from Mr.
1 van de Vliet on this point.
2 We just have read your submissions by the Registry, which seem
3 to take the starting point that a decision still has to be taken on
4 withdrawal. Whereas, Mr. Stewart has explained to us, and I just speak for
5 myself, not entirely unexpectedly, that the system is that if for any of
6 the reasons mentioned in Article 18 or Article 19 of the directive on
7 assignment of Defence counsel, that there we would have a situation that
8 the Registrar takes a decision. But where the accused informs the Registry
9 that he has elected to conduct his own defence, notifying them in
10 accordance with Rule 45(F), that then on the basis of Article 20, where no
11 replacement is needed because the accused says, I don't want to be
12 represented any more, I want to conduct my own defence, that there there's
13 no decision needed any more from the Registrar.
14 Could you, since you have taken a different view, although it
15 might not at this moment have much effect because you say the decision is
16 delayed anyhow, but could you give us your view on the position taken by
17 the Defence and why, on the basis of the text of especially 18, 19, and 20
18 of the directive, you would consider that the Registrar still would have to
19 take a decision.
20 MR. VAN DE VLIET: Sure, Your Honours. Thank you.
21 I am pleased to be here on behalf of the Registry.
22 Just a few words in explanation. I think the position of the
23 Registry has been that it's eventually up to the Trial Chamber to decide on
24 the request of the accused to represent himself. And while the decision of
25 the Registry depends on the interests of justice, it would be premature for
1 the Registrar to take any decision on that basis, thereby prejudging
2 perhaps the outcome that you would like to take and the position that you
3 would like to take on the matter of self-representation itself. And it's
4 basically based on Article 19(A). We see the Article 20 as a follow-up
5 provision to the former article.
6 JUDGE ORIE: You say Article 19.
7 MR. VAN DER FLIET: Sorry, yeah. We understand a request for
8 self-representation to also include a request for withdrawal of counsel,
9 lead counsel at the same time.
10 JUDGE ORIE: But the Defence takes the position that there's no
11 need to ask for such withdrawal anymore, because if Mr. Krajisnik has
12 chosen to be represented, that this discontinues the functioning of his
13 counsel. And, of course, it's your interpretation of the letter; although
14 it doesn't say so. I think there's no request for withdrawal. Is there
15 anything in the text of 19 that would give support to your position?
16 MR. VAN DER FLIET: Well, Article 19 says: "In the interest of
17 justice, the Registrar may at the request of the accused or his counsel
18 withdraw the assignment of counsel."
19 JUDGE ORIE: Yes.
20 MR. VAN DER FLIET: So we have --
21 JUDGE ORIE: Is there a request of the accused?
22 MR. VAN DER FLIET: Yes. We have interpreted the request for
23 self-representation to be a request for the withdrawal of the lead counsel.
24 JUDGE ORIE: And Mr. Stewart has drawn the attention to Article
25 20, where a difference is made between "withdrawal" and "the
1 discontinuation," where he took the position that counsel may not withdraw
2 from acting until, as it reads, that means that: "Counsel may withdraw
3 from acting if the accused has declared his intention in writing to conduct
4 his own defence." So they interpret Rule 20 as saying that they could
5 immediately stop once there has been a validly-made declaration of this
7 MR. VAN DER FLIET: Yes, we have a slightly different
8 interpretation there on Rule -- Article 20, which, in our view, could, of
9 course, have been drafted slightly differently.
10 JUDGE ORIE: Yes, but if Rules would have been different, Mr.
11 van der Vliet, then --
12 MR. VAN DER VLIET: Yes. As it has been drafted right now.
13 JUDGE ORIE: Yes.
14 MR. VAN DE VLIET: But it requires a Registry act, in our view,
15 since we have assigned counsel, as well, to withdraw him. However, the
16 more overriding question is whether this Chamber wants to accept the
17 request for self-representation. And we've seen it in that light, we've
18 deferred that request to the Chamber, and I think that's the position in a
19 nutshell of the Registry.
20 JUDGE ORIE: Yes.
21 Mr. Stewart, the Registry having clarified its position, either
22 you still want to respond -- I mean, the difference of view is quite clear.
23 That goes without saying.
24 MR. STEWART: Yes. May I respond on one single point, Your
25 Honour --
1 JUDGE ORIE: Yes.
2 MR. STEWART: -- which may help for clarification.
3 The circumstances in which the accused, in the interests of
4 justice, under Article 19(A) may apply for withdrawal of the assignment of
5 counsel are where he wishes to continue to have assigned counsel but wants
6 to change them, because 19(E) makes it mandatory to have a new counsel, so
7 that's the point. It's where he says, I'm fed up with Mr. Stewart, I want
8 Mr. Snodgrass. That's the situation. I don't know about Mr. Snodgrass.
9 He may be very good.
10 JUDGE ORIE: Let's not speculate on the qualities of --
11 Mr. van der Vliet.
12 MR. VAN DER VLIET: Yes. I understand the position of counsel
13 to be that Article 19 is mostly meant to address the situation of a
14 replacement of counsel, but the same could be said for Article 20 which --
15 the title says already "Replacement of counsel."
16 JUDGE ORIE: Yes, but at the same time you certainly have
17 noticed that the first part of 20(A) talks about replacement of counsel;
18 whereas, the second part does not.
19 MR. VAN DER VLIET: Yes. I think, as I said, I think the
20 opinion of the Registry is that these Rules and Articles do not cover
21 exhaustively the situation, and therefore we have made an interpretation
22 and looked at the interest of justice itself. We thought that we couldn't
23 make a determination as of yet because if we would do so, we would prejudge
24 the outcome of Your Honours' decision, and therefore, we have applied
25 Article 19(A) for the time being, awaiting your decision on the self-
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 representation question itself.
2 JUDGE ORIE: Yes. Well, positions are clear.
3 Mr. Stewart, would you like to make any further submissions,
4 apart from these ones?
5 MR. STEWART: On this matter of the applicability of Article 19,
6 20 --
7 JUDGE ORIE: I think that's --
8 MR. STEWART: No, Your Honour.
9 JUDGE ORIE: The difference of view is quite clear.
10 MR. STEWART: Yes. On that issue, I've made all the
12 JUDGE ORIE: Yes.
13 MR. STEWART: As far as the number of points in the Prosecution
14 submissions are concerned, well, I'm in Your Honours' hands. I don't know
15 whether the Prosecution were intending to expand or explain or supplement
16 in any way. I don't know.
17 JUDGE ORIE: Mr. Harmon, is there any need to further -- because
18 in view of what the Chamber asked, to give a thorough analysis, especially
19 of the legal authorities, the case law in this Tribunal, perhaps also
20 others outside this Tribunal rely upon, I find, well, at least an analysis,
21 a legal analysis of these authorities, is there any need to supplement that
22 or to add to that or, to put it differently, has anything come to your mind
23 since this morning which needs further attention?
24 MR. HARMON: Your Honour, no. We have submitted this, and we
25 think it's comprehensive. We, again, reiterate our conclusion in our page
1 1, point 3, that, we think it's very important that the Court make a
2 thorough inquiry to absolutely assure this Court and to make sure that the
3 record is clear that Mr. Krajisnik does waive his right to self-
4 representation, that it is a knowing and intelligent right, that he's been
5 advised of the consequences of such self-representation. That's where we
6 think this hearing should be at the moment. That's what we think the Court
7 should be focusing on at the moment.
8 Thank you.
9 JUDGE ORIE: Yes. I do understand.
10 Mr. Stewart.
11 MR. STEWART: Well, Your Honour, our position is this: I have -
12 - well, I've had an opportunity of reading the Prosecution's submission on
13 my return from the United Nations Detention Unit, and between then and
14 coming to court. Your Honour will appreciate, I'm quite sure, that there
15 would have been no possibility of the Defence being able to devote similar
16 resources to these particular issues at this point and also be ready to
17 deal with witnesses. It just would have been absolutely impossible, Your
18 Honour. We can form a view as to how many hours' work goes into what is a
19 very thorough piece of work from the Prosecution.
20 But, Your Honour, I can give -- notwithstanding that, I have
21 read it and I can give Your Honour the Defence submissions on a number of
22 points which probably will indicate, then, where there isn't disagreement,
23 possibly where there is disagreement, and where we suggest the direction of
24 the matter should go. I hope -- would that be helpful, Your Honour? It
25 probably wouldn't take all that long.
1 JUDGE ORIE: Yes. Please submit what you want to submit. And,
2 of course, the Chamber is fully aware of what it takes to analyse these
4 MR. STEWART: Yes. Well, I'm going --
5 JUDGE ORIE: We have to do it ourselves as well, isn't it?
6 MR. STEWART: Well, yes, Your Honour. I make -- I won't enter
7 into any --
8 JUDGE ORIE: No, rather not enter into speculation on that.
9 MR. STEWART: -- contemplation about that, Your Honour.
10 JUDGE ORIE: Yes.
11 MR. STEWART: Other people's problems are other people's
12 problems, with the utmost respect, Your Honour. The Defence could not
13 possibly have done this sort of work in the time and done its other work.
14 But, Your Honour, just going through it, paragraph 3 --
15 paragraph 1 and 2 are not tendentious at all.
16 Paragraph 3. Your Honour, it isn't a prudent course for an
17 accused to represent himself or herself in a criminal case. Mr. Krajisnik
18 knows that's his counsel's view. It's not the point though that
19 Prosecution recognise he nevertheless has a qualified or presumptive right
20 to do so.
21 The suggestion that the Trial Chamber should subject the accused
22 to a rigorous inquiry to determine whether he's made an intelligent and
23 knowing waiver, Your Honour, in principle, however rigorous an inquiry the
24 Trial Chamber is prepared to spend time upon, is something that one could
25 have no objection to. If the -- as long as the rigorous inquiry involves
1 ultimately the recognition that it is the right of - with the very limited
2 qualifications which are recognized - it is the right of an accused even if
3 the Trial Chamber and objectively other people may consider it's even a
4 foolish thing to do.
5 And that is very well recognised in footnote 5 -- or the text
6 of footnote 5 in the passage cited from the Milosevic case on the next
7 page, page 3 of the -- well, two pages on in this very document, the
8 passage ends: "Defendants before this Tribunal then have the presumptive
9 right to represent themselves notwithstanding a Trial Chamber's judgement
10 that they would be better off if represented by counsel." And it could
11 easily be that the Trial Chamber's judgement is widely shared, but it isn't
12 the point.
13 The passage there is part of the passage introduced with the
14 correct contention, as exemplified in the Milosevic decision, that it is a
15 fundamental right not to be interfered with lightly and that his right to
16 conduct his own defence should not be disproportionately restricted.
17 But, Your Honour, an inquiry -- nobody in principle can object
18 to an inquiry. It produces information, one supposes.
19 The -- there is no question here of -- this is largely
20 acknowledged. Mr. Krajisnik is not involved in the sort of disruptive
21 behaviour which leads the Court to take a -- a view on such matters. He
22 is, as is recognised in -- on the face of it, good health. He is strong
23 and robust; he is willing to continue his defence.
24 The -- his lack of legal training is referred to. These are
25 considerations. But the Trial Chamber may feel in relation to 8 and 9 that
1 defendants with legal training sometimes can be even more of a menace than
2 defendants without legal training when they come to represent themselves.
3 There isn't perhaps a great deal in that. It's implicit and inherent in
4 the fact that there is the right for the defendant to represent himself.
5 After all, it's not assumed that defendants are going to be qualified
6 lawyers, anyway; after all, the extreme likelihood is that they won't be.
7 So he's not holding the trial to ransom, he's not seeking to disrupt the
8 trial. Those bases for interfering with his presumptive right to represent
9 himself do not arise.
10 If we take, without exploring the facts -- if we take the
11 Milosevic case as one other case before this Trial Chamber where the
12 Tribunal has taken -- the Trial Chamber has taken steps to qualify the
13 right of the defendant to conduct his own case without any involvement and
14 without any interference of counsel, it is very clear from the Milosevic
15 case, which involves in some ways some more extreme facts than Mr.
16 Krajisnik - for example, the obvious fact that Mr. Milosevic is not
17 equipped at all for the rigours of regular five-day-a-week or anything
18 remotely five-day-a-week week-in week-out trial. But the strong
19 indications are that any qualification of any interference with Mr.
20 Krajisnik's conduct of his own defence should be very carefully confined,
21 because he must have the conduct of his defence with whatever assistance of
22 counsel there might be thought to be appropriate by the Trial Chamber.
23 So, Your Honour, we suggest that the way ahead is this: Is that
24 in the first place, it is legitimate, it is proper for the Trial Chamber at
25 least to explore with Mr. Krajisnik, to satisfy itself that his decision is
1 what it plainly appears to be on its face, which is a considered decision
2 by a man who is in full possession of his faculties, and should be
3 accepted as his decision.
4 There is, then, in principle, no reason why the Trial Chamber
5 should not consider, either immediately or in the light of experience and
6 perhaps quite shortly as Mr. Krajisnik proceeds in the conduct of his own
7 defence, whether standby counsel is appropriate and what the role of that
8 standby counsel should be. It would be unrealistic to suggest that that is
9 not at least a question which should be seriously considered.
10 So to that extent, whatever the ultimate result to that extent,
11 we are also in agreement with the Prosecution as to what the approach
12 should be.
13 So, Your Honour, without it being necessary this afternoon, then,
14 perhaps for us to go into more detail in relation to the Prosecution's
15 submissions, because those matters would probably lie beyond these first
16 steps being taken, that we'd reserve the position in relation to that and,
17 of course, we will have had the opportunity to give the matter fuller and
18 more mature consideration. But those steps, exploration to be satisfied
19 that the decision stands as a decision, in which case the consequences are,
20 as we have submitted to the Trial Chamber this afternoon, in accordance
21 with the Statute, Rules, and directive. And then the open question as to
22 whether it is nevertheless appropriate for there to be some involvement of
23 counsel, whether the word is as a supplement, or a complement, or as a
24 support or assistance in some way to go together in accordance with the
25 principles expounded in the Milosevic decision, with Mr. Krajisnik's
1 conduct of his own defence.
2 JUDGE ORIE: Yes. The expectation is there, Mr. Stewart and Mr.
3 Krajisnik, that the Prosecution's submissions' translation could be
4 expected by approximately the 7th of June. That would be a week
5 approximately. It's an extensive -- it's for your information, Mr.
7 Before we proceed and see whether the Chamber has any questions
8 for you, I think it's the proper time for a break.
9 We'll adjourn for 20 minutes.
10 --- Recess taken at 5.55 p.m.
11 --- On resuming at 6.23 p.m.
12 JUDGE ORIE: Mr. Krajisnik, I'd like to give you an opportunity
13 to make further submissions, that could be also further explanations, of
14 why you have expressed your intent to defend yourself, and it could be on
15 any of the legal matters that were raised as well. So you may proceed.
16 THE ACCUSED: [Interpretation] First of all, allow me to thank
17 the Trial Chamber, and I'd like to try and speak as slowly as possible in
18 order to assist the interpreters in their work.
19 Earlier on I listened to what the legal experts had to say, the
20 Prosecution and others who, in an almost alarming way, have seemed to
21 indicate that I should examine my own mind and see why I have made such a
22 decision. If this is reported in Yugoslavia -- or rather, in Serb lands,
23 they're going to say, All witnesses tend to say that Krajisnik was a good
24 and intelligent man. Why, what has happened to him there if he needs to be
25 examined, to have his head examined now?
1 So, therefore, I would like to appeal to the Trial Chamber. It
2 would be a good idea if I could explain to you the reasons underpinning my
3 decision because throughout my life I've always tried to participate in the
4 search for solutions and not decisions. Because anyone alive could say,
5 How come he reached such a decision now? He could have done it in the
6 beginning. In the beginning, he opted for a Defence team, for the services
7 of a lawyer. And you yourselves must find this rather odd as well.
8 Since Judge Orie is a strict and just Judge and whenever he
9 stops somebody in their flow, they tend to forget their name let alone
10 anything else -- I mean, I would really like to appeal to you to provide me
11 with the opportunity to speak out and have the opportunity to say and to
12 explain to you why I was not in a position to simply look for a solution,
13 but to make a decision. I had to make a decision.
14 The first reason why I reached this decision to conduct my own
15 defence -- well, I'd like to explain to you what I meant when I said
16 "reluctantly or unwillingly." This is a specific Serb expression. I do
17 admit that it would be better to have the services of a lawyer rather than
18 to conduct my own defence. It's their job, after all. I wanted to study
19 law, then I studied economics. And so I'm not a lawyer myself. So how
20 come I've reached this decision? It has to do with a number of reasons.
21 I tried to participate in the search for solutions. First of
22 all, one of the first reasons I've opted for this decision is my Defence
23 counsel, Mr. Stewart. We have many points in common, and I said, Well, God
24 forbid if I had to be his lawyer. I mean, our natures are somehow similar,
25 and we often argue, but that's not the reason why I've reached this
1 decision. I've decided along the lines of what was said by Mr. Stewart and
2 Ms. Loukas. They said, We're not in a position to properly defend Mr.
4 Now, a solution has to be found; we can't postpone this. I
5 mean, if they're in a position to say, Okay, now we're ready to do it
6 properly -- if you will have the kindness to listen to me. I mean, I can't
7 tell you what he should have done, I'm not that intelligent, but I do have
8 some idea where I think what he should have done.
9 The second reason: Gentlemen, Your Honours, at this court,
10 through no one's particular doing but some people are really to blame for
11 this -- but there are witnesses who don't tell the truth. We have three
12 categories of witnesses, according to me, some who are not even aware of
13 the fact that they're telling lies because they got their information
14 through the media or in some other ways. I did mention one person, if you
15 remember, even before this Trial Chamber started its work, and this person
16 is likely to come back here.
17 The second category of witness being cross-examined by the
18 Prosecution are witnesses who in some way have a kind of phobia. They're
19 scared, and they're trying to second-guess what the Prosecution wants them
20 to say. My Defence counsel, without any offence, I think he's a good
21 lawyer, but let me make a comparison nevertheless. He's a good soccer
22 player who never scores. There are lots of obstacles in his way, but he
23 never scores. He wasted four years. I mean, all this time had been taken
24 up by others, and he can't really make up for lost time, and therefore he
25 can't even begin to know what a Bjelobrk or someone else might be all
1 about. And therefore I've made the suggestion -- I've made this proposal
2 to actively participate in my own defence.
3 The third reason: Gentlemen, Your Honours, I am a man who has
4 always tried not to cause offence or insult anyone. If you comb through
5 all the papers, you will never hear any references to my calling Muslims by
6 any names. And then my Defence said, Oh, Krajisnik said, are those Turks?
7 And then they said, Oh, yes, you have said that. And it was a discussion
8 between Karadzic and myself. And I said, Do you have Turks visiting you?
9 And he said, No, I've got Tunisians there. But this is not the kind of
10 language I use. I don't want to cause offence.
11 And also, with all due respect, one of the reasons behind my
12 decision is the Trial Chamber. When I was supposed to select my lawyer, I
13 do have relatives who are refugees here in Holland, in Leiden. And I said,
14 Who do you suggest? Do you have an idea? And they said, there is a very
15 good lawyer who is very familiar with our circumstances, and they showed me
16 the picture, and it said: "Lawyer Alphons Orie." And I was enthusiastic,
17 and I said, Well, what is he like? And they said, He spends 24 hours a day
18 working. He only wants to establish the truth. And I said, Well, that's
19 what I need, the guy who is going to look for the truth.
20 And then I realised that it was the same picture, only the
21 colour of your hair was slightly different. And you will remember how
22 pleased I was when you asked the question about the prior Trial Chamber. I
23 wanted to make a gift to the previous Judge, El Mahdi, and then there was a
24 new Judge, and I saw that there was something else, a different approach, a
25 different way of establishing the truth, and then I said, Who is the new
1 Judge? Because I was interested, of course. And I was told, You are a
2 lucky man, indeed, almost as if God has protected you. This person is
3 never going to be made to do anything which runs counter to the truth. All
4 he wants to do is to establish the truth and the whole truth.
5 And then I wondered what it was all about. And then I saw that
6 we had witnesses here telling lies, and then I said to myself, I really
7 don't want to act against my own interests. I want to defend myself. I
8 want to successfully defend myself.
9 My lawyer feels that I should be defended, but I feel I should be
10 defended successfully. So there is a difference between the Serb and the
11 English approach. And when the trial first started, I told Judge
12 Canivell,I'm not guilty, but I'm not asking you to take my word for it.
13 Just enable me to establish the truth, and I'm 100 per cent certain that it
14 can be done if the truth is told.
15 Today, and my lawyer knows that, this sort of excellent lawyer
16 I've got is actually an obstacle to me, and we've got a great
17 representative from the Registry here as well. And I said, Well, I've got
18 quite a few tapes. Could I have a filing cabinet and something that I
19 could put my binders and everything in? And they said, No, no, no, no.
20 You've got a lawyer. He can deal with this. And I have to, you know, have
21 my stuff all over the place in my cell because I've got a lawyer and he's
22 supposed to take care of it.
23 Now, another problem between Mr. Stewart and myself -- I don't
24 know whether he's to blame or the Registry is to blame, it will be up to
25 you to decide. I don't know if you remember, gentlemen, the Registry
1 decided that I could participate in my own defence, and they made that
2 decision and said, We have reached the decision to provide funds for a
3 counsel and a co-counsel and the rest must be co-financed. And I said, I
4 have no funds. And they showed me the figure that was spent on my case for
5 the people who were there before, and it is an enormous amount.
6 And then I asked for a lawyer, and whoever I asked for,
7 everybody said, I don't want to defend you. The pay is not good enough.
8 How the Registry managed to convince Mr. Stewart to take up my cause, I
9 really have no idea. All of a sudden they came along and said, Mr. Stewart
10 agreed to do the job for this amount of money.
11 And then I was obviously in prison and already at that stage I
12 have told you I had no money, and I believe that Jovanovic, who did his
13 expertise - and I'm not going to waste another word on him, and I've
14 already said quite a bit of bad things about him, which is not a good thing
15 in itself - but I believe I must do my best in order to make funds
16 available for an investigator. And my Defence counsel knows this. You
17 can't make bread unless you have flour. I mean, investigators must do
18 their work in the field, and this is something else I've mentioned here
19 before. My witnesses, I mean, for example, we couldn't get certain
20 witnesses to come here but the Prosecution managed to convince them to come
21 here. I don't know. They make statements and submit them to the
22 Prosecution but not to us. Actually, I know the reasons, but it doesn't
24 And when I said that half of our witnesses are hiding around in
25 forests and are too scared to come, I mean, there is a court in Sarajevo
1 and those people who have made statements are doing their best to avoid
2 this because they're afraid to go to Sarajevo. Perhaps through their
3 witnesses, whilst tendering documents we could already prove what is the
4 truth of the matter and make the whole story shorter, because these people
5 are not going to be brought here that easily.
6 And also, our witnesses tend to tell tales and they never
7 actually refer to the situation the way it is. And since we can't get any
8 witnesses, I am asking for a decision to be made in the Republika Srpska,
9 and they should commit themselves to helping us out, find witnesses in the
10 same way they're helping the Prosecution.
11 And I have to apologise here. I was fully in favour of starting
12 the whole trial from scratch because in the meantime, until the break, we
13 came up with quite a few new documents. But time has passed, et cetera,
14 and we could have proved, okay, this is a document which proves whether Mr.
15 Krajisnik was present on such-and-such an occasion or not. That was my
16 main aim, not to prolong matters in any way.
17 And also, coming back to these funds and resources, the decision
18 was made, and I disagree with that decision because I don't think it's the
19 right one but I respect it anyway, the decision on resources. No resources
20 left. Okay.
21 And in the same way I respect the decision that we can't have any
22 extra time. But when it comes to resources, which were actually made
23 available afterwards, they must be spent on investigators. They must be
24 enabled to do their job. And when we talk about resources, Mr. Stewart, I
25 mean, has looked at all the materials, but even if he had three extra
1 years, he would never be able to manage all that.
2 So taking all this into consideration, I had no other way out. I
3 mean, all things were going in a certain direction.
4 A sentence. We have the media here. I mean, why was I in favour
5 of private sessions all the time? Last time I mentioned that I would like
6 an investigator who could look for people who are hiding around in forests
7 and in woods, Karadzic and such like, and my investigators said, No, no,
8 no, we can't look for anyone. SFOR is going to pick us up. I was not in
9 favour of that. I was in favour of looking for people who might be scared.
10 You did have one witness here who was clearly frightened, and I
11 just wanted to get these people to come here in order to speed things up
12 and be done with it.
13 And perhaps the Registry is not going to admit this, but it was
14 quite clear that my request has put them in a difficult situation. He
15 wants to defend himself. How are we going to cope with that? And it is a
16 problem for the Trial Chamber as well. Now I'm asking for all these
17 documents and materials, so I'm causing problems and difficulties to
18 everyone, and first and foremost to myself, because I could not find any
19 other solution. How can I make sure that I get a just and fair defence?
20 And perhaps the representative of the Registry could confirm this. I said,
21 I am always going to accept a better solution, but a solution which will
22 make it possible for me not just to defend myself but to defend myself
23 successfully. I'm not some kind of scare-monger. I'm not trying to cause
24 trouble to anyone.
25 But my decision, believe me, is a fully pondered and considered
1 decision, because it is quite clear I can conduct my defence much better
2 than a Defence counsel who has, himself, admitted that he was unable to do
3 so. But the Secretariat, or rather, the Registry is not making anything
4 available to me. But I believe in God, I am 100 per cent certain that I am
5 going to walk out of here a free man, because I am definitely not guilty.
6 But I do appeal to you. I thought I would need more time today.
7 But this is a long story, I have not actually prepared because I was
8 preparing for the witness the whole time, and when I looked at the
9 situation - I do apologise. I do understand people who speak too fast now.
10 JUDGE ORIE: Could you please come to a conclusion, Mr.
11 Krajisnik. We have some questions to be put to the Defence as well. And I
12 see that you came to a point which you dealt with before, that you said
13 that you could better defend yourself where Defence counsel admitted they
14 could not properly do the job.
15 So if you could please conclude in two or three minutes.
16 THE ACCUSED: [Interpretation] Certainly. Repetition happens
17 because I am not checking my notes. But just one more point and then I'll
18 wrap it up.
19 The documentation that we get from the Prosecution, no offence
20 intended, because I do respect all Prosecutors and they're all good, but
21 one of them is slightly less good. I'm not going to name any names, it
22 doesn't really matter, but I often receive those documents too late, too
23 late in the day, and I really do want to participate actively. And there
24 are quite a few other points that I should mention here, but since I did
25 say earlier on you are a fully respectable and a professional Trial Chamber
1 -- I did not say I hoped so, but I trust that you are, and I do respect
2 you, and I am certain that you are going to reach a just and fair decision.
3 And as I've always tried to do, this time too I will try and
4 allow for sufficient time in order for everyone to be able to bring up
5 their arguments. But if there are any questions, I will be available. I
6 don't know how prepared I'm going to be to answer those questions, but I
7 would be glad to do so. Thank you.
8 JUDGE ORIE: Thank you, Mr. Krajisnik.
9 I'd like to raise a few matters, legal matters. First - and
10 that's not a legal matter, Mr. Stewart - when you suggested that once the
11 decision as a principle would have been taken that Mr. Krajisnik would be
12 allowed to defend himself and that then, of course, one can think about
13 standby counsel or amicus or whatever, am I right in understanding that
14 this was not an offer that you would be available to accept such a position
15 if that decision would ever have been taken?
16 MR. STEWART: Well, Your Honour, no, it -- the whole thing is in
17 such a state of flux that it can't be an offer, no, and it isn't, and I can
18 say, Your Honour, neither is it for Ms. Loukas.
19 JUDGE ORIE: Yes. That's at least clear. And I just wanted to
21 MR. STEWART: No, it's --
22 JUDGE ORIE: -- avoid whatever doubt that could come into our
23 minds --
24 MR. STEWART: No, I --
25 JUDGE ORIE: -- in that respect.
1 MR. STEWART: And I don't want to say it's an unequivocal offer
2 that is just there for the acceptance, if I put it in those terms, Your
3 Honour. No.
4 JUDGE ORIE: Yes. Then, Mr. Stewart, we have seen, and not only
5 for the first time in the submission of this morning by the Prosecution,
6 that under almost or even complete -- literally the same text, that is,
7 European Convention on Human Rights, the International Conference on Civil
8 and Political Rights, the the Statute of this Tribunal, the Statute of the
9 Rwanda Tribunal, that a totally different practice has developed in many
10 countries. You may have noted that in quite some continental European
11 countries under certain conditions, France, Germany, that counsel is
12 imposed, but that may have been clear. But now the Prosecution also
13 introduces English case law, and I'm specifically drawing your attention to
14 the Woodward case, which I had not an opportunity yet to study carefully.
15 MR. STEWART: Well, I'm in exactly the same position as Your
16 Honour. I had noted the case, but have similarly not had such an
18 JUDGE ORIE: Yes. Yes, of course I hoped that, especially
19 English case law, would be -- but --
20 MR. STEWART: Well, your, I'm sorry, that's just unrealistic.
21 We don't carry it around in our heads in that way, as I'm sure Your Honour
23 JUDGE ORIE: Yes.
24 MR. STEWART: We carry some.
25 JUDGE ORIE: No, because I would have invited you to make any
1 comment on the lines, whether it fairly represents the decision, where it
2 says: "Where, on the other hand, the accused makes an application to
3 withdraw the services of his counsel in order to conduct his own defence,
4 the judge has discretion whether to allow such an application." And a few
5 lines further down: "The more advanced the trial, however, the less likely
6 it is that an application to dispense with counsel's services will be
7 successful." Whether you would have any comment on --
8 MR. STEWART: Well, yes, Your Honour, I can tell Your Honour
9 exactly what I would do if I were in England or here. I would start with
10 the assumption that's stated by conscientious counsel on the other side in
11 their submission that was likely to be correct as far as it goes, and then
12 would go to the case law to see exactly what it meant and how it applied
13 and what the limits of the principle were. That, I rather apprehend, Your
14 Honour, is the way any conscientious lawyer would work, and it's the way I
15 would work in relation to this matter, and I would decline to make any firm
16 submissions or comments in relation to the matter until I've taken that
18 JUDGE ORIE: Yes. I do understand that. Perhaps an opportunity
19 should still be there for you.
20 As you may have noticed, the -- and the same question is, as a
21 matter of fact, for the Prosecution: One of the cases on which the Appeals
22 Chamber seems heavily to rely on is the Faretta case. This might not come
23 as a surprise to you, Mr. Stewart, also you, Mr. Harmon. And since you
24 explained what you usually do, that is, to carefully look at such a case,
25 could you comment on the -- and it's perhaps a bit the same issue, at
1 least, to some extent, it has similarity. Could you comment on the time
2 aspect as we find it in the Faretta case?
3 MR. HARMON: When you say "the time aspect," Your Honour --
4 JUDGE ORIE: The time aspect means: When do you say, I want
5 counsel? When do you say, I would like to exercise my right to defend
6 myself? Could you do that in all stages? And to that extent there might
7 be an issue similar to the Woodward case you presented, but I have not yet
9 MR. HARMON: I can tell Your Honour, based on my experiences in
10 practicing in the United States, the normal situation is that assertion
11 that the defendant wants to represent himself tends to be made early on in
12 the case, before it starts, at the arraignment, during the initial phases
13 of the case. It is, in my experience, less likely to arise during the
15 The inquiries, based again on my experiences in practicing in
16 both Federal and State Court, is that the Court, at the point where an
17 accused makes an assertion that he wants to represent himself, then embarks
18 on the inquiries that we have proposed be made in this case.
19 But in answer to your question when those circumstances
20 generally arise, generally they arise before the accused -- before the
21 trial starts.
22 JUDGE ORIE: Mr. Stewart, do you have any observations?
23 Perhaps I'll confront you with some of the language of Faretta.
24 MR. HARMON: Fine.
25 JUDGE ORIE: Where it -- although perhaps not perfectly clear
1 what it means there, where it several times says: "Well before the date of
2 the trial, however, Faretta requested that he be permitted to represent
3 himself." Or a little bit further down: "Several weeks thereafter, but
4 still prior to trial, the judge shall respond to how the hearing ..."
5 And one of the separate opinions expresses: "The opinion of the
6 Supreme Court leaves open a host of other procedural questions," and then
7 some of them are mentioned. One of them being: "How soon in the criminal
8 proceeding must a defendant decide between proceeding by counsel, or per
9 se, must he be allowed to switch in mid-trial." And then very
10 optimistically, a little bit further it says: "I assume that many of these
11 questions will be answered with finality in due course."
12 Do you have any comment on this language, where Faretta seems
13 to be very much at the basis of the Appeals Chamber decision, and in view
14 of the English case law, and in view of different interpretations of where
15 the limits to the right to self-representations are, does this raise any
16 need to make further observations?
17 MR. HARMON: Your Honour, you quoted from Faretta. Do you by
18 chance happen to have a page reference I could use?
19 JUDGE ORIE: Yes. I don't know whether we have the same. Page
20 3, under 1, approximately fifth or sixth line says: "Well before the date
21 of trial, however, Faretta --" And that is formerly, I think, on page 807,
22 because there's a numbering in between.
23 [Prosecution counsel confer]
24 JUDGE ORIE: It's right in the beginning. Do you find it?
25 MR. HARMON: I find it, Your Honour, yes.
1 JUDGE ORIE: And then on that same page, the last paragraph:
2 "Several weeks thereafter, but still prior to the trial."
3 And the last quote I gave to you is - if these bold numbers are
4 page numbers, then it's page 852 - and that is the -- let me just see whose
5 opinion that exactly is. I think it's Justice Blackman, joined by the
6 Chief Justice and Justice Rehnquist.
7 MR. HARMON: I have the passage, Your Honour.
8 JUDGE ORIE: Yes. I'm just asking whether this aspect -- well,
9 perhaps not surprisingly -- perhaps very surprisingly it was Mr. Krajisnik
10 who raised the issue, who said why I did not say it right at the beginning,
11 and he was the only one who raised the time issue. But would there be any
12 further observations as to this aspect?
13 MR. HARMON: Your Honour, I know the Feretta case and I know the
14 procedure that was -- that happened in the Feretta case. It's described
15 early on where the judge advised Mr. Feretta clearly and made a very
16 profound inquiry into whether he understood the rules of procedure, the
17 rules of evidence. And I say, parenthetically, that I was quite surprised
18 how knowledgeable this particular defendant in California was in respect of
19 his knowledge of the motions and other elements.
20 JUDGE ORIE: And how many exceptions there are to the hearsay
22 MR. HARMON: Correct. Having practiced in California 12 years, I
23 was impressed with the degree of knowledge of this particular defendant.
24 However, that didn't pass the test for the judge in California, and that
25 right to represent himself was withdrawn.
1 I think whether the desire is expressed before the trial starts
2 or after the trial starts, I think the inquiry remains the same; I don't
3 think that changes at all. I think that the Court, faced with an
4 expression to represent oneself before the trial or after the trial, I
5 don't see any particular --
6 JUDGE ORIE: Well, Mr. Harmon, isn't it true that the Prosecution
7 - and I'm also inviting Mr. Stewart to respond to that - has given more
8 recent case law in which it is said that on an appeal you could not defend
9 yourself, which is, of course, not obvious from the Sixth Amendment, on
10 which the Faretta case has been based. I mean, it doesn't make any
11 difference between first instance or an appeal. It may have something to
12 do with legal complexity of issues. I'm just asking, because if you say
13 the inquiries should be the same, I'm talking mainly about of the status of
14 the proceedings rather than about -- of course, if you would try to find
15 out whether an accused would be capable of doing it, the Chamber has
16 certainly not yet decided to submit Mr. Krajisnik to a similar test. We
17 would still have to consider whether that's an appropriate way of
18 proceeding. But I'm mainly focusing now on the status of the proceeding
19 and the effects, especially also, Mr. Stewart, because in this case law,
20 this English case law quoted by the Defence, there seems to be quite an
21 emphasis on the further stages of the proceedings, which would diminish the
22 chance that a judge would allow a defendant to switch from representation
23 by counsel to self-representation.
24 MR. HARMON: I'm searching, Your Honour, for an explanation why
25 it should be more difficult once the trial has started and after a
1 defendant has seen a case unravel, has seen and understand -- has a better
2 opportunity to see how the court functions, understands the Rules of
3 Procedure and Evidence better, why it would be more difficult for him to
4 withdraw. I think the test stays the same; that's our position. I do not
5 see a difference in a trial, whether the accused makes an application pre-
6 trial or during the trial.
7 JUDGE ORIE: So you say the question raised in the dissenting
8 opinion is an irrelevant question.
9 MR. HARMON: Well, I think it's an open question.
10 JUDGE ORIE: Yes. Well, open or not is not -- relevance is a
11 totally different matter.
12 I mean, if it's an open question but irrelevant, then it should
13 not be put, open or not.
14 MR. HARMON: There's no answer or particular clues in the Faretta
15 case as the to the answer of that question, Your Honour.
16 JUDGE ORIE: Yes, but if at all stages of the proceedings it
17 should be the same, then the question on when an accused should apply for
18 it becomes a totally irrelevant question.
19 MR. HARMON: That's right.
20 JUDGE ORIE: Yes.
21 MR. HARMON: That's our position.
22 JUDGE ORIE: Okay. Well, then I fully understand that you find
23 this an irrelevant question.
24 MR. HARMON: No offence intended, Your Honour. I find it to be a
25 question that -- I find it to be a question, Your Honour. I can't offer
1 you any particular reasons why there should be a distinction.
2 JUDGE ORIE: Yes.
3 Mr. Stewart, do you have any further observation, especially in
4 view of the issue raised?
5 MR. STEWART: Your Honour, no, because I simply have -- I'm
6 simply not in a position to --
7 JUDGE ORIE: Would you like to have some additional time so that
8 you could make either a short oral further submission or any further
9 written submission on the matter?
10 MR. STEWART: Well, Your Honour, yes, I would. After all -- may
11 I ask simply as a practical matter: We wonder -- there's no criticism. We
12 wonder how many hours were spent by the Prosecution preparing this, we must
13 say, very clear and very helpful document. Because, Your Honour, the
14 Defence has had no time at all, hardly, in between having to deal with
16 JUDGE ORIE: Yes. But major parts of what appears in the
17 Prosecution's submissions we find already in the Appeals Chamber's decision
18 in Milosevic, especially the reference to Faretta. And reading Faretta
19 takes you, if you do it quickly, it will take you 15, 20 minutes. Much of
20 the case law appears in the Seselj decision, especially the continental
21 practice appears there, so that that could not be so much of a surprise.
22 MR. STEWART: Your Honour, I'm not --
23 JUDGE ORIE: But --
24 MR. STEWART: Your Honour, I'm not saying any of it is a surprise
25 and I'm not saying that I don't present myself as a competent lawyer able
1 to read stuff and understand it. I am saying, Your Honour, I cannot do two
2 things at once because there are 24 hours in a day, 168 hours in a week,
3 and you are requiring the two counsel here to do witness after witness
4 after witness. If you are also going to require us to deal with a
5 substantial legal argument, you are going, with respect, to have to give us
6 proper time to do it.
7 JUDGE ORIE: Yes. On my question whether you'd like to have some
8 additional time you -- at least the answer was in the affirmative.
9 MR. STEWART: That's correct, Your Honour.
10 JUDGE ORIE: The Chamber will consider that.
11 Of course, the Chamber will also take the opportunity to further
12 study the submissions.
13 Mr. van der Vliet, since you're there, if there would be any
14 clarity on the issue of what funds would be made available to Mr.
15 Krajisnik, if he would not any longer be assisted by counsel, the Chamber
16 would like to be informed about that without any delay.
17 It's 7.00. Is there any further urgent matter to be raised at
18 this very moment?
19 I see nodding no. Mr. Stewart nodding no as well.
20 Then the Chamber --
21 Yes, Mr. Harmon.
22 MR. HARMON: I'm sorry, Your Honour. Can the Court give us
23 guidance on how it wishes to proceed tomorrow?
24 JUDGE ORIE: Yes. We want to proceed tomorrow with the next
25 witness in the afternoon. So we'll adjourn until quarter past 2.00
1 tomorrow, same courtroom.
2 --- Whereupon the hearing adjourned at 7.03 p.m.,
3 to be reconvened on Wednesday, the 1st day of
4 June, 2005, at 2.15 p.m.