Tribunal Criminal Tribunal for the Former Yugoslavia

Page 18988

1 Wednesday, 23 November 2005

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.07 a.m.

5 JUDGE ORIE: Good morning to everyone. Mr. Registrar, would you

6 please call the case.

7 THE REGISTRAR: Good morning, Your Honours. This is case number

8 IT-00-39-T, the Prosecutor versus Momcilo Krajisnik. Thank you.

9 JUDGE ORIE: Thank you, Mr. Registrar.

10 Before we go into closed session to continue the

11 examination-in-chief of Witness D9, I would like to inform the Prosecution

12 that the request to be allowed to respond to the Davidovic submissions is

13 currently considered by the Chamber and we hope to inform you as soon as

14 possible whether or not we'll allow you to respond.

15 If there's no other procedural issue at this moment raised, then

16 we'll turn into closed session.

17 MR. JOSSE: Just before we do that, could I just ask how that

18 request was relayed to the Chamber, because I personally wasn't aware of

19 it.

20 JUDGE ORIE: What I understood, that it was an informal request.

21 It might be -- the situation might not be entirely clear. When we're

22 talking about motions, it's clear that the other party can respond and

23 that for further submissions you'd need the approval of the Chamber,

24 whereas here, of course, the Chamber invited the Defence to make

25 submissions, and from what I understood it was, from a procedural point of

Page 18989

1 view, not entirely clear to the Prosecution whether this was the situation

2 in which they were entitled to respond. That's what -- and I did

3 understand that it was an informal request addressed to the legal officers

4 and then, of course, the Chamber would have to decide. But if there's

5 anything you'd like to raise in this respect, then, Mr. Josse --

6 MR. JOSSE: I think I would, Your Honour.


8 MR. JOSSE: I think I would, Your Honour. I know generally

9 Mr. Stewart deals with these sort of things, but if a request like that is

10 going to be made informally and then there is going to be, and I mean this

11 in a very neutral sense, a public pronouncement about it, surely the

12 Defence need to know before that public pronouncement is made.

13 JUDGE ORIE: Perhaps the words I used were not the proper ones

14 because perhaps I should have said that where the Prosecution sought

15 clarification of its procedural position in respect of Davidovic,

16 specifically in view of the question whether this was a matter where they

17 were entitled to respond, that that's considered by the Chamber. I do not

18 and the Chamber does not consider this matter to be like a request for

19 further submissions in addition to what the Rules allow. But if there's

20 anything, of course it's -- please, if Mr. Stewart would like to say

21 something about it, then --

22 MR. JOSSE: Yes.

23 JUDGE ORIE: He's --

24 MR. JOSSE: I've made my observation and I'll certainly discuss it

25 with him. Thank you.

Page 18990


2 MR. HARMON: We will wait to hear from the Trial Chamber because

3 we are currently in the drafting stage, but we will not file anything

4 until we hear from the Chamber.

5 JUDGE ORIE: Yes. That's the reason why --

6 MR. HARMON: Thank you very much, Your Honour.

7 JUDGE ORIE: Let's also not make the procedural issue -- I mean,

8 the Davidovic issue as such is important enough not to be buried under

9 additional procedural issues. The Chamber very much would like to focus

10 on the substance rather than on the, I would say, satellite problems.

11 MR. JOSSE: I see that.

12 JUDGE ORIE: Yes. Then --

13 MR. JOSSE: And as the Court is well aware, the Defence regard

14 this as a very serious issue as well.

15 JUDGE ORIE: Therefore, let's try to focus as much as possible on

16 the substance and ...

17 We could then now turn into closed session, or were we already?

18 THE REGISTRAR: We're in open session, Your Honours.

19 JUDGE ORIE: Yes. We now turn into closed session. That's how

20 it ...

21 [Closed session]

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 18991











11 Pages 18991-19055 redacted. Closed session.















Page 19056

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10 (redacted)

11 [Open session]

12 THE REGISTRAR: We are in open session, Your Honours.

13 JUDGE ORIE: Thank you, Mr. Registrar.

14 The issue I would like to briefly raise is the response to the

15 submissions in relation to the -- what I would call the Davidovic matter.

16 The Defence has asked not to take any decision before the Defence has had

17 a opportunity on whether or not the Prosecution would be allowed to

18 respond. To be quite honest, the Chamber is very much inclined to give an

19 opportunity to the Defence -- to the Prosecution to respond, but since we

20 promised that you would make any submissions, the Chamber nevertheless

21 will say a few words about it.

22 From the submissions the Chamber has received, it appears -- or at

23 least we could not exclude that the issue is wrongly understood. Why

24 can't we say you understand the issue wrongly or not? Because the Chamber

25 has been confronted with requests for further delay to provide further

Page 19057

1 material. So since we do not know what that material will be, we cannot

2 make a final assessment at this moment whether you understand the issue

3 right or wrong.

4 Let me clarify what the issue is. The issue is the following:

5 Mr. Davidovic was cross-examined in a way which included, well, to say at

6 the least, strong words. The issue is whether the Defence had a

7 sufficient factual basis of this rather firm treatment of Mr. Davidovic.

8 The Chamber wanted to find out what material the Defence exactly had at

9 that moment which would justify such strong words. The Chamber asked for

10 it and was confronted with, at least to some extent, an answer which says

11 this is privileged, this is privileged material, so we can't tell you.

12 The Chamber wondered whether the material the Defence would rely upon

13 would be really privileged. If, for example, this would be public

14 broadcasting, then the Chamber still had difficulties to understand how

15 that material could in any way be privileged. Therefore, the Chamber

16 asked the Defence to further explain its position in this context.

17 The fear is that the Defence might understand the issue to be how

18 to undermine the testimony of Mr. Davidovic. If the Defence had no

19 sufficient material to approach Mr. Davidovic as it did, that of course

20 does not automatically mean that if you have no material to say that he's

21 a thief or a criminal or a liar, that doesn't mean that therefore he never

22 has stolen in his life, he has never lied in his life. We do not know.

23 What we should avoid is that the challenging of the testimony of

24 Mr. Davidovic will be mixed up with the procedural issue we are

25 discussing, the procedural issue being limited to whether at that time the

Page 19058

1 material was such that it justified the way in which Mr. Davidovic was

2 questioned. It may well turn out, at least that's a possibility, that if

3 the Defence had no reason at that moment to put so bluntly to

4 Mr. Davidovic that he was a liar or a criminal or a thief or -- that in

5 the presentation of the Defence case, that at a later stage you'd come up

6 with some evidence establishing that perhaps he was or he was not, but

7 even if at a later stage the Defence would be able to establish that part

8 or the whole of the testimony of Mr. Davidovic is unreliable and

9 incredible, that as such does not justify the way questions were put to

10 Mr. Davidovic.

11 So therefore, we are at this moment - and that's the issue raised

12 by the Prosecution - we are focusing on the procedural issue on whether at

13 that moment the Defence had satisfactory reasons which would justify the

14 way in which Mr. Davidovic was examined. That's the issue and nothing

15 else at this moment.

16 Of course the Chamber will receive whatever evidence there is to

17 establish that Mr. Davidovic would not have been a reliable witness or not

18 be a credible witness. Therefore, the Chamber is a bit surprised that the

19 Defence wants to first consider this matter.

20 If after a couple of -- not to consider the matter but to make

21 further submissions. If at the time material was available, whether or

22 not privileged, the Chamber does not see how we have to wait for another

23 considerable period of time to find out what that material was, because as

24 the matter as defined relates to what the Defence at that time had

25 available as material justifying the way in which it questioned

Page 19059

1 Mr. Davidovic. So therefore, the Chamber is anxious not to confuse the

2 matters.

3 Until now in the submissions, the perspectives are that we will

4 receive at a later stage other material, which is surprising because if it

5 was there at the time -- not whether you gained it at a later stage, and

6 whether you want to use that material in contesting the truthfulness of

7 Mr. Davidovic's testimony, that's a totally different matter; you can

8 introduce that material during the presentation of the Defence case. But

9 the Chamber really wonders why a brief response at this moment by the

10 Prosecution, why it takes such an effort to make up your mind whether that

11 could be granted or not, especially in view of the response of the Defence

12 which is a question, as a matter of fact, tells us that we'll -- that you

13 have to do a lot of work on that material first, and we haven't heard

14 anything about the privilege any more. So therefore, we are a bit

15 confused.

16 I suggest that the Defence makes up its mind by, let's say,

17 tomorrow whether there's any need to -- or whether it would object against

18 a response to be given by the Prosecution; and if you would object, the

19 Chamber would like to hear in five minutes, not more, what that objection

20 is based on in view of the issue as I defined it a couple of minutes ago.

21 Then after that, the Chamber will decide whether or not it will follow its

22 inclination to grant the Prosecution an opportunity to respond.

23 MR. JOSSE: Your Honour, could I say four things. First of all,

24 yes, it's true that Mr. Stewart is heavily involved in this and perhaps I

25 need to speak to him; but secondly, wires have got crossed here. Although

Page 19060

1 Mr. Stewart has not been involved in any activity this morning, speaking

2 for myself, I don't possibly object to the Prosecution replying. I don't

3 know how I could possibly object. The more submissions, the more

4 information this Court has, the better. So without conferring with him, I

5 make the decision on behalf of the Defence that the Chamber should welcome

6 further submissions from the parties in relation to this matter.

7 Secondly, what the Defence are asking for is ultimately an oral

8 hearing before any action or decision is taken by the Chamber. Partly

9 what Your Honour has just said to us is illustrative of why that is

10 important, so that the issues can be refined and defined and the Defence

11 can address any submissions to the issues that are of concern to the

12 Chamber.

13 And my third observation, which is straying slightly, is of course

14 we'll consider what Your Honour says, but what the Defence, again speaking

15 for myself, is not clear about is where this is all going, what's the

16 purpose of this at this stage of the procedure.

17 JUDGE ORIE: Mainly to establish whether or not it was fair to

18 treat Mr. Davidovic as he was treated by the Defence. Whether there were

19 fair reasons. If a witness comes in here and if the first question is,

20 "Are you a criminal?" then the Chamber will not allow to put that question

21 to the witness. If during the examination-in-chief it develops in a

22 certain way, there might be a moment to say, "Well, I have in front of me

23 five convictions. Isn't it true that you're just an ordinary criminal

24 instead of the religious leader as you claim?" That's of course -- it

25 very much depends on the circumstances, but main issue raised by the

Page 19061

1 Prosecution is, "We don't want our witnesses to be treated in this way,

2 which may have all kinds of effects if there is no good reason to do so."

3 I think that's the main issue.

4 So the first and utmost purpose of this whole exercise is to

5 establish whether Mr. Davidovic was treated in a way in which he should

6 not have been treated or whether it was justified to treat him in the way

7 as the Defence treated him. That's issue.

8 MR. JOSSE: I'd simply say that I'd urge the Chamber to consider

9 setting an hour aside the week after next for oral submissions in relation

10 to this. That's what I would content.

11 JUDGE ORIE: At the same time, this Chamber has now waited for

12 month and month and month on settlement of the Davidovic matter and the

13 Chamber is not willing to drag this along for a longer period of time,

14 especially, I mean, also in view of the written submissions made at this

15 moment. This is not a decision not to say that we will not grant an

16 opportunity, but as I said in the beginning, it is a procedural matter

17 which is not without importance, but it's that procedural matter and it's

18 not the testimony of Mr. Davidovic in general and whether it's true or

19 not, whether it should be given a lot of -- whether it should be believed

20 to be true or not, that's a totally different matter. It's the way in

21 which witnesses are treated in this courtroom. But --

22 [Trial Chamber confers]

23 JUDGE ORIE: Well, at least if -- we can take one further step and

24 that is that the Prosecution may respond to the submissions made by the

25 Defence, and the Chamber will further consider the request for further

Page 19062

1 oral argument, and if there's anything in that respect the Prosecution

2 would like to raise, they can do that right away in their response.

3 MR. HARMON: Your Honour has summarised very succinctly and very

4 clearly our concerns in respect of the filing that we received yesterday.

5 We believe the matter's been pending before this Court for many, many

6 months. The issue has been clear. It has been articulated time and time

7 again. It's our position, Your Honour, that there is no additional --

8 there is no need for additional submissions on this matter. Our position

9 is it needs to be resolved, it needs to be resolved quickly, and we

10 submit, Your Honour, that there has been either an unwillingness to answer

11 -- address the issue or there's been a lack of clarity, but there's been

12 sufficient time. And we would request that the Court make a decision on

13 this matter based on the evidence before it and the matters that have been

14 -- that have come before it in the pleadings that have come before it.

15 JUDGE ORIE: Do I have to understand this is, because then I

16 wouldn't say it's a comedy of errors, but that the Prosecution withdraws

17 its request to respond? If so, because it's only two minutes ago that

18 Mr. Josse gave up his opposition and --

19 MR. HARMON: We're prepared to make our submission if the Court

20 grants us that request, but in many ways Your Honour has summarised what

21 we'll be saying --

22 JUDGE ORIE: If you write down in that decision approximately what

23 I said, that is what is the issue, what information did we receive, and is

24 the matter of the privilege addressed, yes or no? If it would be limited

25 to that and if it would be concurrent with what I just said, then of

Page 19063

1 course I'll think over during the next weekend what happens if the Chamber

2 identifies an issue almost identical to the Prosecution whether that is an

3 alarming sign or not -- well it could be, it could not be, but then

4 there's no need to sit down and write down what has been said and what, as

5 I do understand now, is agreed upon by the -- by the Prosecution.

6 MR. HARMON: Well, I haven't seen our final written submission,

7 Your Honour, because I've been in Court, but I --

8 JUDGE ORIE: So if you -- I'm not urging the Prosecution to do it.

9 If you look at what is prepared now and you think it would add anything,

10 you have an opportunity to do so within the next -- well, we're not

11 sitting next week anyhow, but let's say by next Tuesday. And I'd very

12 much like the Defence to carefully consider what they'd like to raise

13 during oral argument.

14 MR. JOSSE: Your Honour, I know it's late, but perhaps again it

15 would help. What I'm not clear about is what the consequences are of the

16 Chamber agreeing with the Prosecution's submissions. That really is

17 essential for an advocate to understand how it's going to affect his

18 client, and that's what I'm afraid I personally don't understand.

19 JUDGE ORIE: It doesn't go any further than we say this is not

20 what should have been done to Mr. Davidovic, which of course implies that

21 the next time the Defence would carefully consider whether there are good

22 reasons to use such strong language. But if you're asking me whether that

23 would mean that the evidence could not be challenged any more or whether

24 -- it's just a procedural matter of the way in which witnesses are

25 treated in this courtroom. It doesn't say anything in terms of evaluation

Page 19064

1 of the evidence, exclusion of -- what do you have in mind as alternative?

2 Should we exclude that evidence? We would have difficulties to do that

3 because it would create exactly the situation which we would like to

4 avoid, that is that by the way of questioning a witness doesn't feel free

5 any more to give the answers. So it's not entirely clear what other

6 consequences you had in mind.

7 MR. JOSSE: I think that -- that's why I, speaking again for

8 myself, so anxious to have a brief oral hearing because I -- perhaps if I

9 could use an English metaphor, to lance the boil, because I am somewhat

10 uncertain, as I've already said, where all this is going. Your Honour,

11 the fact of the matter is I -- we conceded in the submission that the most

12 serious allegation in one sense had no foundation.


14 MR. JOSSE: But the -- what the submission tried to emphasise is

15 even if there had been no material provided by investigators or anyone

16 else, based on Mr. Krajisnik's instructions, we would have suggested that

17 this witness was an out-and-out liar. So far as the criminal bit is

18 concerned, well, frankly our information was that he was involved in some

19 of the activities that he was alleging our client was involved in. That

20 must mean that he's a criminal. It's as simple as that in one sense.

21 So far as the detail is concerned, well, to a limited extent the

22 submission deals with that. That's really how I would put it.

23 JUDGE ORIE: Yes. So the question quite simply is that if

24 Mr. Krajisnik tells you that someone is lying, would that justify to call

25 him a liar in court if he testifies different from -- yes?

Page 19065

1 MR. JOSSE: Absolutely, because I urge the Chamber to remember

2 what the witness was saying that Mr. Krajisnik had done.


4 MR. JOSSE: And Mr. Krajisnik said that's not true.


6 MR. JOSSE: And certainly where I come from, in those

7 circumstances you must call someone a liar. For an advocate to fail to do

8 that would upset a Judge to no end.

9 JUDGE ORIE: Yes. Yes. I now better understand what your point

10 is. There seems to be quite a difference in practice between the

11 different versions of the adversarial system. Well, fortunately, we're

12 not bound to any of these, neither to even non-adversarial systems.

13 The Chamber will further consider the matter, it's clear. And if

14 the Prosecution would like to respond, then please do it within the next

15 five days, I would say. Yes.

16 MR. JOSSE: Thank you.

17 JUDGE ORIE: We will adjourn until tomorrow morning, with the

18 apologies to interpreters and technicians. 9.00, same courtroom.

19 --- Whereupon the hearing adjourned at 2.00 p.m.,

20 to be reconvened on Thursday, the 24th day

21 of November, 2005, at 9.00 a.m.