1 Tuesday, 9 December 2008
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 8.53 a.m.
5 JUDGE VAN DER
6 Mr. Alarid.
7 I just wanted to start by saying that Judge Robinson is unable to
8 sit this week, so Judge David and myself will be sitting under the rules
9 for the whole of the week.
10 Before we start, I wanted to raise a number of issues for a
11 number of housekeeping matters to start with. Then I would want to
12 address the number of witnesses to be called. Then I would want to
13 address the delay in the start of the Milan Lukic case. And finally, I
14 would want to address the testimony of the accused.
15 First, the housekeeping matters. On the updated list of Milan
16 Lukic, there is still no clarity regarding the mode of testimony of the
17 witnesses. For witnesses that Defence wishes to hear pursuant to Rule 92
18 ter, the Trial Chamber expects the Defence to file motions in compliance
19 with that rule. However, for the witnesses to be heard this week, there
20 has been no such motion, so we will proceed under the normal viva voce
21 way of hearing the witnesses.
22 Another housekeeping matter deals with protective measures. On
23 the 1st of December, we ordered that the rule is that written
24 applications must be made for protective measures. We will, however,
25 exceptionally allow all applications for protected witnesses for
1 witnesses to be heard before the Christmas recess. This should be done
2 at the earliest opportunity. Applications for protective witnesses --
3 for protective measures for witnesses to be heard after the recess are
4 also to be made in writing at least two weeks prior to testimony.
5 There is also the outstanding motion on contact details. The
6 Trial Chamber will soon decide on this motion, the motion to obtain the
7 contact details of certain Prosecution witnesses. However, we believe
8 that it needs to be stressed that this shall not impact on the start or
9 conduct of the Defence case.
10 The second number of points I want to raise relate to the number
11 of witnesses to be called. On the 4th of December, the Trial Chamber
12 denied Milan Lukic's motion to exclude custodial and statement witnesses
13 from the total amount of witnesses allotted. The Trial Chamber further
14 confirmed that the total allotment is 45 witnesses to be heard within 60
15 hours of examination-in-chief. The Milan Lukic Defence case is expected
16 to end no later than 6 March 2009
17 The Trial Chamber, the majority, that is, also ordered the
18 Defence to file lists of witnesses to be called before the recess and
19 after the recess respectively, each list to be in compliance with Rule 65
20 ter [G]. In particular, we want to draw the attention to Rule 65 ter [G]
21 [F], which required the Defence to provide estimates for the length of
22 the testimony for each witness. The Milan Lukic Defence has not done so
23 yet in any of its submitted lists.
24 We want to draw the attention to the fact that this Trial Chamber
25 intends to watch not only over the fairness of the proceedings but also
1 over the expeditiousness of the proceedings in accordance with our duties
2 under Article 20 of the statute, which means that we expect the Defence
3 to call witnesses without gaps in the court schedule.
4 The Trial Chamber is aware of the difficulties in preparation
5 encountered by the Milan Lukic Defence. However, we consider that we
6 have taken measures on several occasions to give due considerations to
7 these difficulties encountered.
8 On basis of the requests filed by the Milan Lukic Defence, we
9 have granted delays in the trial proceedings. We've made a little
10 calculation, and these delays totaled five full weeks, or in other words,
11 25 court days. As a comparison, we have only granted nine days of delays
12 to the Prosecution case, also based on Prosecution requests.
13 I now turn to the delay of the start of the Milan Lukic case. We
14 wish to express our concern over the late start of the Milan Lukic case.
15 As you may remember, we ordered on the 18th of November that the Defence
16 of Milan Lukic be ready to present its case immediately following the
17 start of that of Sredoje Lukic. Actually, the start of the Sredoje Lukic
18 case, which was originally to be one week earlier, only took place last
19 week, so as a result of this, the Milan Lukic Defence had one week extra.
20 But as we found last week at the close of the Sredoje Lukic case on the
21 2nd of December, there were no witnesses to be brought before us, and
22 Mr. Alarid was absent.
23 We are now on the 9th of December, and we have lost more than
24 with two full days of court last week. We wish to remind counsel that
25 they are under the obligation to meet high standards of professional
1 competence and ethics in the performance of their duties. In short, we
2 will not accept any further delays unless exceptional circumstances can
3 be shown by the Defence.
4 As announced by Judge Robinson on the 2nd of December, the
5 Chamber will take measures if the Milan Lukic Defence does not comply
6 with the obligations. This may entail reductions of the number of
7 witnesses or the time allotted to the presentation of evidence.
8 The last point I wish to turn to is Milan Lukic's testimony. We
9 have seen, Mr. Alarid, that you have included Milan Lukic on the witness
10 list, and we were wondering whether Mr. Lukic is going to give evidence,
11 and if, so at what moment in time?
12 MR. ALARID: Good morning, Your Honours. I've prepared a
13 statement today that I hope will address many of the concerns that you
14 raised initially, including the potential of sanctions being taken
15 against Defence team, be it the reduction of time and the reduction of
16 number of witnesses and so forth. I hope I will address your concerns
17 and my relationship to those concerns and my perspective.
18 To go straight, though, to Mr. Milan Lukic, he probably most
19 likely will testify. It is at his great urging that he wants to. I've
20 been researching kind of the pattern of practical with this Tribunal and
21 how that's come about, and one thing that gives me concern, I know
22 Mr. Vasiljevic's, because that was the transcripts we had available,
23 spent 21 hours total on the stand between cross-examination, direct
24 examination, re-cross, and so forth over several days. I can only
25 anticipate that Mr. Groome will have a similar desire to cross-examine
1 Mr. Lukic over a period of time, considering all the counts of the
2 indictment, all this testimony, and we would need an equal amount of real
3 preparation with the witness. We're figuring at least 20 working hours
4 with the witness before he would testify. I'm not sure when we're going
5 to get that. Of course, the most we can spend at a particular day at the
6 gaol is four hours, and so we would want the week or two weeks before
7 that testimony vacated so for purposes of just simple with-the-client
8 preparation because we have a big file to go through and I can only
9 anticipate that Mr. Groome will use points from all over the place in
10 order to cross-examine Mr. Lukic.
11 So as for the actual timing, no, it will not be at the beginning
12 of the case similar to Mitar Vasiljevic. I saw the credit given to that,
13 but I don't believe it's outweighed by the need to adequately prepare the
15 As you're aware, one of the complicating factors of this case is
16 that we did not -- I did not get a lot of opportunity to spend with Milan
17 Lukic, and all of a sudden we're thrust into trial. So a lot of the
18 meetings dealt with the witness tomorrow, what they said, did you read
19 the B/C/S statement, what kind of questions do you think are appropriate,
20 and as you saw, that really wasn't as helpful because Mr. Lukic was
21 forced to pass notes over and over again to my case managers in the past,
22 and we had to do this. So I can't tell you that I have done fact-by-fact
23 defence preparation with my client for purposes of his testimony. The
24 time limits given by the Court as well as funded by the Registry and the
25 totality of the circumstances simply have not allowed that.
1 If you would allow me to read my statement, I think there's some
2 more issues, and I know I'm going to disappoint the Court but I do have
3 solutions because I will not be giving my opening statement today. I
4 also will not be presenting witnesses today under the multiple issues
5 present in the case. I'm really actually very sorry the President was
6 not available this week, and I have no doubt that it was important, but I
7 hate that this will be read by transcript only as opposed to dealing with
8 the issues. But we will be raising multiple issues regarding our ability
9 to prepare, but under the spectre of the allegations of the Prosecution
10 that's come to light regarding Mr. Vilic and so forth and the
11 investigations that's gone back for quite some time, it changes the tempo
12 of this case. It changes our ability to present witnesses, and if I
13 might begin at your leave, Your Honour, I would -- like I said I have
14 prepared a statement which I believe addresses every single one of your
15 initial points.
16 JUDGE VAN DER
17 MR. ALARID: Assuming he will read this, Your Honour, I entitled
18 it -- this is the Milan Lukic preliminary matters for today, December
19 9th, 2008.
20 Dear Mr. President --
21 THE INTERPRETER: Please read slowly for the interpreters.
22 JUDGE VAN DER
23 MR. ALARID: Yes, Your Honour, of course. And I probably should
24 listen to this then.
25 It is with great dismay, sadness, and some trepidation that I
1 inform the Chamber that I will not be giving an opening statement or
2 presenting evidence this week or the next as anticipated, if not
3 directed, by the Court.
4 There comes a point in one's life as much as a career when
5 something was demanded that was so compromised his or her beliefs and
6 principles, and to do so without protest and attempt to reconcile would
7 forever taint everything to follow.
8 I understand my actions without prior discretion or input from
9 the Court may have consequences.
10 THE INTERPRETER: Could the counsel please read slowly.
11 MR. ALARID: [Previous translation continues] ... stand by our
12 personal and professional convictions.
13 THE INTERPRETER: Your Honour, this is a written text, and the
14 interpreters have not received it, so the counsel will really have to
15 read it more slowly. Thank you.
16 MR. ALARID: I understand my actions without prior direction or
17 input from the Court may have consequences. We as the Defence counsel
18 for Milan Lukic stand by our personal and professional convictions and
19 accept full responsibility. All we ask is that you calmly listen to our
20 rationale and keep an open mind as I explain our reasoning, potential
21 avenues, and solutions.
22 Beginning with the most basic principle, Milan Lukic's
23 inalienable right to a fair trial, is beyond the point of at risk. I
24 believe that under a totality of the circumstances, the system has failed
25 Milan Lukic and his right to a fair trial has and will continue to be
1 compromised under the current conditions. We, again, respectfully
2 request that this Court understand our plight and allow the Milan Lukic
3 team the necessary time to catch up for purposes of putting on an
4 efficient, collective, and cohesive and full defence. The collision of
5 unrealistic and unreasonable expectations put in place by the Court,
6 unrealistic and inadequate resources provided by the Registry, and an
7 absolute assault by the methods and manners by the Prosecution and its
8 agents has in total culminated in what at least amounts to engineered
9 ineffective assistance to counsel at best. At worst, it represents an
10 instance of compromise of the legal process that breaks the most basic
11 tenements of a civilised legal system.
12 As trial counsel, I am duty-bound by the tenants of zealous
13 representation to continue to correct any apparent deficiencies of the
14 process to the best of my ability. I am overwhelmed and feel defeated.
15 Yet where I stand will not allow me to concede my principles. I
16 reiterate that I was only lured into this case last March, made lead
17 counsel under difficult and reviewable circumstances in mid-June, and
18 forced to trial in July under what amounts to duress. I did not believe
19 that the system could or would take us to trial in this manner. The
20 record is replete with pleas for understanding and assistance to no
21 avail, and I say the system because I believe whether intended or
22 unintended consequences, the separate entities of this respected Tribunal
23 have acted in concert to deprive my client of his right to fair due
24 process and effective preparation for trial of a Defence through a lawyer
25 of his own choosing.
1 When anyone says Mr. Lukic -- when anyone says Mr. Lukic had
2 counsel for three years, that does not mean that he had this counsel
3 preparing for trial and doing requisite due diligence for those three
4 years. At best, you can say he had a single attorney working alone with
5 skeleton resources until October with, co-counsel only have been accepted
6 as of October 23rd, 2008.
7 I believe, Your Honours, that I've reiterated enough the details
8 of the three years as represented in the Registry decisions and what-not,
9 but I have prepared an addendum that we could go through this, but I
10 think that that would be unnecessary unless directed by the Court.
11 We dealt with putting together a team that had to run right out
12 of the womb, collating the voluminous early disclosures, reviewing,
13 replying and/or generating an inordinate amount of submissions, further
14 absorbing a cacophony of voluminous, haphazard, and tardy OTP disclosures
15 and all the while during the presentation of the Prosecution --
16 THE INTERPRETER: Slow down, please, for the benefit of the
17 interpreters. Thank you.
18 MR. ALARID: And all the while during the presentation of the
19 Prosecution case, all members of the Defence teem are under a cloud of
20 suspicion and accusation that is a Court-sanctioned criminal
21 investigation, a criminal investigation instigated against the accused,
22 his Defence team, and his witnesses, a criminal investigation instigated
23 by the Prosecution in an -- without adequate due diligence. Excuse me.
24 In an -- sorry, that's my typo, Your Honour. That was requested directly
25 by the Prosecution to this sitting Trial Chamber during our trial. The
1 Prosecution sought to place us all under a secret ex parte investigation
2 with no safeguards for protection against prejudice or the appearance of
3 impropriety or the conflict of interest. The manner of inserting such a
4 procedure at this threshold to the same Trial Chamber hearing the case
5 almost forces the Defence to instruct all witnesses and all Defence
6 members to seek counsel of independent attorneys so they can properly
7 defend themselves from the Prosecution's strategic accusations and
9 We have hardly been able to keep up, yet we were supposed to,
10 while in trial, also be conducting all required Defence case preparations
11 and investigation, all for 150-plus victim murder case. It is an
12 impossible request; yet we did the best we could. We produced a hastily
13 conceived 65 ter list for notice that was pared down. We produced a
14 hastily conceived 65 ter list for notice that was pared down around a
15 core group of witnesses. These difficult preparations had to account for
16 serious unindicted allegations such as rape, murder and torture to be
17 produced to the OTP as a method of alibi rebuttal that has created
18 virtual trials within trials. And we really needed a year to effectively
19 prepare while an investigation proceeded, but all I asked for was five
20 months to get all affairs in order. Quite frankly, now that I understand
21 that we have for virtually the entire case been under a cloud of criminal
22 contempt investigation throughout the trial our denied requests by the
23 Defence to the Court raised suspicions in my mind. You cannot say that
24 the stigma of this ongoing criminal investigation has not impacted the
25 credibility of the entire Defence presentation.
1 I now have supposed that all parties, now including the Chamber,
2 simply do not think we have a Defence. Your problem is how to get past
3 our right to present a Defence. We say we deserve the right to present
4 an adequate Defence free of prejudice or threat of predetermination.
5 I also note that in this particular case, Your Honour, consisting
6 of 21 counts in the indictment, there was only one week between 65 ter
7 and the scheduled start of the Defence case. By way of comparison, the
8 Milutinovic case with a 5-count indictment received three months between
9 the filing of the Defence Rule 65 ter list and the commencement of the
10 Defence case. The Popovic case with an eight-count indictment received
11 four months between the filing of the Defence Rule 65 ter list and the
12 commencement of the Defence case.
13 THE INTERPRETER: Slow down, please, slow down. Slow down.
14 Thank you.
15 MR. ALARID: The Boskoski case with a 3-count indictment received
16 two months between the filing --
17 [Defence counsel and usher confer.]
18 MR. ALARID: The Boskoski case with a 3-count indictment received
19 two months between the filing of the Defence rule 65 ter list and the
20 commencement of the Defence case. The Hadzihasanovic case with a 3-count
21 indictment received two months between the filing of the Defence Rule 65
22 ter list and the commencement of the Defence case. The Hadzihasanovic
23 case with a 7-count indictment received three months between the filing
24 of the Defence Rule 65 ter list and the commencement of the Defence case.
25 The Delic case received 1.5 months in preparation after Rule 65 ter
1 filings. The Limaj case received one month of preparation after Rule 65
2 ter filings. The Oric case received one month of preparation after the
3 Rule 65 ter filings, and the Mrksic case received two months between the
4 end of the Prosecution case and the start of the Defence case.
5 Note the Vasiljevic case had two to three weeks prep time, but
6 all time up front.
7 The foregoing are almost all of the recent cases at this
8 Tribunal, and why a start picture is drawn, why is this case being rushed
9 to judgement so much? Why? Why is Milan Lukic not entitled to the same
10 safeguards, the same right as other accused in this Tribunal, including
11 the right to prepare and the right to present a Defence? Why is this
12 Trial Chamber declining to listen to our arguments, presenting the facts
13 that we need time, a fair and reasonable amount of time, to prepare for
14 and discharge our duties to defend Milan Lukic and ensure he gets a fair
15 trial promised to him, indeed, enshrined for him in the statute and the
17 The requirement by the Court means that each and every witness
18 will be brought to trial never having met officially by an actual
19 attorney representing the accused before the Tribunal. The Court has not
20 allowed any attorney adequate opportunity to travel to the region and do
21 any preliminary investigation and screening of materials and evidence to
22 be presented under the watchful eyes of the Prosecution and the Chamber.
23 Having reviewed the tactic of the Prosecution against the co-accused,
24 especially in light of the ex parte and criminal investigation, the team
25 and its witnesses, I know we would be exposed at a great disadvantage.
1 This would be a new definition of trial by ambush. Accordingly, we will
2 not present the witness in good faith that we are meeting for the first
3 time at a hotel here in The Hague
4 Under these circumstances, it is unacceptable to have to have me
5 take professional responsibility for such a circus. We have a core group
6 of Defense witnesses that also have been subject of a Court-sanctioned ex
7 parte criminal investigation that cannot and will not be presented with
8 proper due diligence and circumspection by an attorney that will present
9 that evidence, just like the Prosecution was allowed to do. And we will
10 be prepared, Your Honour, to show by breakdown and chart the exact amount
11 of time that the Prosecution was -- received and was able to utilize in
12 order to interview, take statements for 92 ter, and then offer proofing
13 over the lifetime of their presentation of this case in contrast to our
14 ability to do the same.
15 Otherwise, our witnesses will become exposed and our Defence will
16 be unable to protect the witnesses and the core rights to a fair
17 presentation of our Defence.
18 Yet the spectre and taint of the Prosecution's ex parte endeavors
19 with the siting Trial Chamber also cannot be ignored, and the legal
20 ramifications must be explored before we proceed. We must proceed with
21 caution. The reluctance of the Chamber to release all documents of this
22 unfounded criminal investigation of the accused, his witnesses and
23 members of his Defence team implies that some part of the investigation
24 is pending, and the Court is still seized by the OTP posture. We believe
25 the tactics of the Prosecution were in reckless disregard of the
1 potential to contaminate our process.
2 Your Honours, one of the things that we have a duty and
3 obligation to bring to the attention of this Trial Chamber is when there
4 is evidence of persons interfering with witnesses and intimidating
5 witnesses and trying to pressure witnesses. As an aside, I'm assuming
6 that is the basis of the Prosecution's earlier filings. We have told you
7 about intimidations and threats that our staff have received when going
8 out into the field to try and locate and interview witnesses. We have
9 told you about threats received from unknown parties by way of telephonic
10 messages. We will be working on a submission formally setting forth
11 those claims with specific facts to these occurrences including
12 intimidation of our witnesses. But we can tell you that in addition to
13 the unknown, we have good-faith information belief as to known persons
14 that the Bosnian SIPA police as well as elements of the Republika Srpska
15 and Serbia
16 bringing about the conviction of Milan Lukic and to do so by thwarting
17 the Defence efforts at all costs.
18 Already we have had a situation reported to us by our staff in
19 the field, so again, we are operating on information and belief because
20 neither counsel has been able to go out into the field where critical
21 witnesses have been interviewed by our staff and made appointments to
22 meet and sign sworn statements to testify for the Defence, only to have
23 SIPA raid their homes and then lose contact for a time, only to
24 re-establish contact to mysteriously recant their earlier agreements to
25 meet or testify.
1 If you want some proof of this, some good indication has already
2 been in front of you for some time. Unknown to us because of its part of
3 a secret filing by the Prosecution, a secret ex parte campaign waged to
4 smear and slander the reputation of our Defence team on the part of the
6 I am talking of the ex parte contempt proceedings that we were
7 only made aware of recently, the ones by which the Prosecution went after
8 almost every member of our team behind our backs, out of the public eye
9 and we submit with the absence of good faith. Despite the requirements
10 and safeguards of Rule 91, an independent amicus curie Prosecutor was
11 neither sought nor appointed to deal with those matters. We believe that
12 was all and is necessary.
13 To our knowledge, two filings remain ex parte filed by the
14 Prosecution on 13 August 2008
15 contempt investigations. We see no reason why those ought not be
16 disclosed to us in order to shed light on this matter and permit us to
17 clear our names. Albeit without a complete picture of the proceedings
18 because we are still lacking disclosure of the initial filings, the 24th
19 of September, 2008, Prosecutor's Report and Submission, which the trial
20 did give to us, identifies that in fact the Prosecution's "source" for
21 these very serious and very damaging allegations is the Prosecution's own
22 staff in Sarajevo
23 Government, relying on a Prosecution witness who said nothing about these
24 claims when he came to testify, an unknown third-party Bosnian who
25 declines to be a witness, but arrives at meetings with his handler, who
1 is in the Bosnian Secret Police. What is a handler in this context?
2 What is the Prosecution really doing, and was it acting with the required
3 good faith needed for such a sensitive matter? We believe the close
4 involvement of Prosecutors Groome, Sartorio, and Cole to these secret
5 investigations make them conflicted witnesses and disqualify them as
7 MR. GROOME: Your Honour, just a brief note, whether --
8 JUDGE VAN DER
9 MR. GROOME: Just briefly whether we should be in open session.
10 The Chamber removed the ex parte status of these proceedings but didn't
11 make them confidential. While in principle I have no objection to
12 further disclosure being made of this, it has caused quite considerable
13 security concerns for the witness who came forward confidentially, and
14 I'm concerned that -- whether or not Mr. Alarid is providing so much
15 detail about this person and the organizations that he brought his
16 information to that we might be further jeopardising this particular
18 MR. ALARID: Your Honour, we would object to any of this being in
19 closed session. We feel that that is part of the complexity and
20 complicity of the process in bringing the innuendo of improper dealings.
21 It is only through the public trial system, and I of course would concede
22 that we should protect the identity of anyone that needs protection, but
23 that is our witnesses as well. But I think at this point in time, we
24 would ask that this entire conversation be made public, and I will take
25 due care not to expose the identity of any witness.
1 JUDGE VAN DER
3 MR. ALARID: Of course, of course.
4 The rationale to file this in front of the same Trial Chamber
5 where we appear also presents a question of conflict and extreme
6 prejudice, and as a threat to our witnesses, the Prosecution apparently
7 revealed to Bosnian authorities the identities of some of our witnesses
8 who have already been granted protective measures. They revealed the
9 identity of one to Mr. Vilic, the fear of whom was the basis of
10 protective measures already granted. How do you remedy that, Your
11 Honours? But look at the -- let us look at the chronology, as it is
12 quite telling.
13 Before I go too far, I would be remiss if I did not also give the
14 Prosecutors full credit of their evidence in addition to the
15 aforementioned sources, including trip indirect hearsay. They also
16 brought Mr. Vilic, a convicted killer who killed multiple persons and
17 maimed dozens of others by throwing multiple hand grenades
18 in "self-defence" and blowing off -- and blowing off his own arm with the
19 second consecutive "self-defence" grenade in a crowded nightclub.
20 So the beginning of August, we have the Prosecutor and the
21 Bosnian Secret Police, the reluctant indirect witness, who can't talk
22 without his Secret Police handler. We don't know all the details, but it
23 would appear that this is the birth of the plot to blacklist the Defence.
24 We have the 13th and 29th August filings by the OTP. We don't
25 know what they are -- excuse me. We don't have the 13 and 29 August
1 filings by the OTP. We don't know what they are, but they must relate to
2 the joint efforts of the OTP and the Bosnian Secret Police.
3 Now, while this is going on, a witness here, VG-11, a witness
4 that had a long statement, that didn't mention Milan Lukic back in 1992
5 but then meets with one of attorneys in the contempt investigation,
6 Ms. Sartorio, and miraculously after being in the control of the
7 Prosecution August 22nd, 23rd, and 24th to be proofed, he presents a
8 proofing statement into evidence, one that was late disclosed to the
9 Defence and thus objected to, a proofing statement that was witnessed by
10 Ms. Sartorio and signed by the witness and Ms. Sartorio where Milan Lukic
11 is now inserted, again, out of the blue where he had not existed before.
12 I believe Ms. Sartorio made herself a witness in this way, and
13 more interestingly, we can look at the dramatic changes in this witness
14 testimony, VG-11.
15 But what is most interesting is that the witness is silent about
16 any knowledge of contempt or bribery, but within days of leaving The
17 Hague after his testimony, he is all of a sudden being contacted 1
18 September 2008 by the OTP to allege indirect third-degree hearsay of
19 bribery allegations that eventually leads to Mr. Vilic.
20 The secret ex parte filings are follows: 4 September 2008,
21 urgent motion -- the 4 September 2008
22 provide info on support staff and members of Defence team.
23 9 September 2008
24 Defence team support staff.
25 12 September 2008, urgent OTP motion to amend charges to include
1 Vilic allegations.
2 16 September 2008, urgent motion to seek to initiate
3 investigation and gain Registry file on Dragan Ivetic, my co-counsel.
4 This ultimately was held to be unfounded and a misrepresentation of facts
5 and the transcripts of proceeding to claim that Mr. Ivetic was in Bosnia
6 with Mr. Vilic.
7 The 22nd of September, 2008, the third urgent OTP motion for
8 telephonic records from UNDU.
9 23rd September 2008, order as to Vilic allegations being added.
10 24 September 2008, order denying probable cause to institute
11 contempt investigation of Dragan Ivetic.
12 24 September 2008, Prosecution submission and report.
13 And the 6th of October, 2008, decision on outstanding matters.
14 The sheer number of filings and their very sensitive nature being
15 presented to and read by the Trial Chamber for so long without Defence
16 having notice of or the ability to respond and refute the same as grossly
17 prejudicial to the Defence and how it is viewed by the Trial Chamber.
18 Upon Mr. Ivetic's appointment as full co-counsel on Thursday,
19 October 23rd, 2008
20 treated with suspicion by UNDU even a full month after the Trial Chamber
21 denied the contempt investigation of the Prosecution by pointing out how
22 baseless it was. At UNDU, they would not let him meet alone with
23 Mr. Lukic and have interfered with his ability to have privileged phone
24 communications. Now with the disclosure of the ex parte filings, it is
25 clear to us why, and it is clear to us what the goal of the OTP was, and
1 they have been successful.
2 We feel strongly that research and motions practice must be
3 completed and we are just beginning our response investigation. We turn
4 to insight provided by Judge Patricia Wald, the judge of the
5 International Criminal Tribunal for the former Yugoslavia from 1999 to
6 2001; a judge on the United States Court of Appeals for the District of
8 Commenting on her experience in the ICTY, your human instincts
9 don't go away. They shouldn't. You inevitably feel compassion or
10 empathy for victims you believe, but at some point your judicial
11 instincts take over and you start thinking in terms of evidence,
12 credibility, opportunity for observation, the same as trials in domestic
13 courts. I did hear some horrible things, but like a doctor who deals
14 with tragic illnesses, you do the best you can to sort the real story
15 out. You function as a judge, not as a counsellor or a therapist.
16 "But in my time, ICTY case law has put a judicial gloss on those
17 terms that required indicia of credibility and reliability prior to
18 admission. It is simply not true, in my opinion, that only juries, not
19 judges, need such restrictions. Donning a robe does not enshroud its
20 occupant with a 7th sense of whether something written on paper is true
21 or false. In that sense, the judge is on par with the juror, who must
22 rely on his or her human instincts in evaluating the person doing the
23 testifying to permit critical material to be admitted without the ability
24 to directly view and question the witness goes to the heart of the
25 process and threatens to squander the ICTY's most precious asset: Its
1 reputation for fairness and truth seeking."
2 I will also quote Judge Hunt, who presided over the Vasiljevic
4 Judge David Hunt, who previously served as a Supreme Court
5 justice in Australia
6 his frustrations in an uncommonly strong dissent. He argued that the
7 Tribunal would not be judged by the number of its convictions or the
8 speed at which it completed its mandate, "but by the fairness of its
10 Judge Hunt objected strongly to several recent appeals decisions
11 because he said they favored the Prosecution rather than the rights of
12 the accused. Those decisions, he warned, "will leave a spreading stain
13 on this Tribunal's reputation."
14 Such language is unusual in the polite quarters of this Court of
15 16 permanent judges, but Judge Hunt before retiring told colleagues he
16 felt obliged to warn against an unfortunate "new trend" in which some
17 judges seemed eager to assist the Prosecution in order the speed up
19 In terms, Your Honours, of dealing with the actual scheduling
20 problems and preparing for witnesses, we cannot underscore the
21 difficulties of doing this right before the Christmas break. Scheduling
22 problems are enshrouded with the witness and victims units, where they
23 need necessary time periods before we request their presence to clear up
24 visa matters and passport matters. They need a good lead time, really
25 much more than the Court does or requires for our Thursday
1 afternoon submissions for the next week witnesses. Witness and victims
2 unit actually need it much before that. It is for that reason that I did
3 not start last week or this week because there was simply no time to do
4 that, and if you give the Prosecution's allegations between us and our
5 witnesses, how can I bring a witness before you if I have not judged that
6 witness's credibility myself?
7 What it allows is it allows the Prosecution to have the only
8 voice, and all I can tell you is, I don't know, or I'm not sure, because
9 I have a duty of candor to this Tribunal. If I were to give you an
10 opening statement, Your Honour, the duty of my opening statement is to
11 tell you what the evidence will show. What the evidence will show should
12 be based on my personal knowledge, not on a scattering of summaries
13 provided by an untrained investigator in the field doing the best she can
14 while trial is commencing and both attorneys are required to be in court
15 because Mr. Ivetic at that moment became my sole translator and ability
16 to communicate with my client. I can't tell you how difficult it is, but
17 what I will not do, if my witnesses are going to be accused of perjury in
18 any aspect of this Court, my failure to do due diligence by comission is
19 suborning of perjury and not allowing me to talk to these people and
20 compare them and scrutinise them and give them a little bit of
21 cross-examination that they might experience from Mr. Groome, gives me,
22 as I think -- because, Your Honour, I think I came into this process as
23 objective as I could because I did not know the region. I was only
24 tacitly familiar with the history. I had no prior contact with the
25 Serbian Bar, much less Mr. Lukic. And so I came in here a brand new baby
1 and was thrown into the deep end of the pool and told to learn to swim.
2 Now I can do that on the Prosecution side of the case only
3 because in my practice I get up and try cases every day on a moment's
4 notice, and they're not as voluminous as this, so I tend to have my
5 up-front investigation and comfort level with the facts of the case well
6 under way by the time a judge says, Today's your day, Jason. But in this
7 setting, I could not do that, and it would have been difficult, your
8 request, if we were in Bosnia
9 throw away to try and coordinate the number I gave you on that 65 ter
10 list, either first or second chance. What my hopes is, Your Honours, is
11 what we are going to do, is Mr. Ivetic is going to spend the next few
12 days in Bosnia
13 we can. It is at that point that we can comply with your request to make
14 decisions on 92 ter versus viva voce. We can't do that until we actually
15 have a statement, and I'm not going to present a statement under any
16 atmosphere that's this scrutinised, especially with the criminal contempt
17 in the background.
18 We will be raising the ability of the Court to proceed under
19 these circumstances, but we have not done the proper research, and I do
20 not want to speak before I should, but we think that the uncommon and
21 unusual circumstances of how this case developed, how this side issue,
22 this trial within a trial involving Mr. Vilic actually brings some very
23 difficult positions for our President to deal with because of his
24 election to the President of the Tribunal.
25 As I go to the rules on disqualification of a judge and what it
1 would entail to raise that, the President himself is the last bastion of
2 decision, and then it goes to the Vice President, but the problem with
3 that is the Vice President and the President here of course have a
4 long-standing relationship. And with the completion strategy so hanging
5 over all of our heads, it's hard to figure out where that is the main
6 focal point, or to be honest, Your Honour, I can't tell you how many
7 times I have felt in my heart that nobody in this room even thinks we
8 have a defence despite actually brought up good-faith contradictions
9 simply within the Prosecution's own witnesses.
10 If you think of other scheduling issues that we have to deal
11 with, Your Honour, we have to deal with Bajram, which started 8th of
12 December, 2008, and many Bosnian witnesses would be unavailable to meet
13 even at this time.
14 Of course we have our own Christmas holiday, 24th and 25th of
15 December and the Christmas breaks on the 20th, and you must understand,
16 Your Honour, the Registry cuts our pay as if we work nothing during this
17 time. The Registry pays us for 150 hours of work a month, as if that's
18 what we really do. You can see that it grossly should exceed that if
19 you're an attorney in trial presenting your case or responding to the
20 Prosecution's case. We have all doubled that. We work at half-pay as it
21 is. We have Ms. Jelena Rasic who technically is under the suspicion of
22 this Tribunal, and she is my lone investigator, but guess what? The
23 Registry will not appoint her or authorise her to be my "investigator"
24 because she does not have the right qualifications or certifications.
25 Mr. Ivetic and myself, because we are only a level 1, have agreed to
1 split her salary. Now we are paying for the Milan Defence out of our own
2 pockets, regardless of hourly wage arguments. We are now having to cut
3 to attempt to meet the Court's requirements. You cannot let an engine
4 run on half oil. You either need the time to get to your destination or
5 you fill it up all the way and then run it full speed. I believe we
6 could have done this had we had two full-time paid investigators or
7 what-not throughout this, and maybe we would have had your requirement,
8 but that still would not have substituted for an attorney's travel to the
9 region. And the problem, is Your Honour, I can't travel by myself. I
10 need someone who speaks the language. It limits our about to cover
11 people in a reasonable amount of time.
12 I would be absolutely pleased if we were able to talk and comply
13 with witness-gathering and summaries of two witnesses a day. If you look
14 at the cover sheets of each and every Prosecution statement that's been
15 introduced into evidence, it documents the dates a witness has been seen,
16 the number of personnel it's been seen by, the Prosecutors present, the
17 investigator present, the interpreter present, and it shows the necessary
18 resources that it really takes to present their case. I ask for only
19 some of the consideration in presenting ours.
20 The difficulties with religious holidays for our witnesses also
21 include the 31st of December, 1st of January, which is, of course, the
22 popular new year's holiday, but you also have the 6th and 7th of January,
23 which is the orthodox Serbian Christmas holiday, and the 12th of 13th of
24 January is the Serbian new year.
25 And citing to President Martti Ahtisaari, the former president of
1 the Republic of Finland
2 namely the risk that the accused is freed. If this aspect is missing,
3 what we have is a show trial, a symbolic process that merely ratifies a
4 conclusion already reached by other considerations."
5 We also have the complicating preparatory factors surrounding the
6 most recent cut-off of our client's ability to prepare. The cut-off of
7 phone privileges that was ruled unfounded by our Vice President. My
8 client was forced to make a handwritten plea to the President because
9 Mr. Ivetic, although just having left a meeting, the authorities wait
10 until he leaves, and by the way, they do this every time to give
11 Mr. Lukic some very important legal documents that could affect his
12 rights. I mean, is this calculated, when an attorney leaves and then
13 shortly thereafter they give you something that cuts off your phone?
14 That is what we've been dealing with, and that is why when you
15 involve the Registry and UNDU in this spectre of criminal activity,
16 everyone has by human nature gotten involved. I think everyone has by
17 human nature offered their own personal judgement, and we have felt that
18 judgement. It has had a chilling effect on our Defence.
19 Your Honours, these very serious irregularities have already been
20 brought to your attention by Mr. Lukic and Mr. Ivetic while I was out of
21 town, as to matters undertaken by the Prosecution through UNDU and the
22 Registry that we believe was meant to obstruct the Milan Lukic Defence
23 before it even began. Vice President Kwon has already determined and
24 ruled that these actions have impacted upon and hindered the Defence
25 preparations. You are bound by that. You've been exposed to it. That
1 bullet cannot be returned to the gun, and now we must examine what the
2 nature was. Unfortunately, the media storm caused by the Prosecution and
3 Registry has run its course unabated and gone throughout the Balkans,
4 making work much more difficult, if not impossible.
5 We have an ethical and professional obligation to uncover the
6 truth of these accusations and stigma that the Prosecution has chosen to
7 utilize to impact the ability of the Defence. We have a duty to our
8 client to try and salvage the good name of the team and get usable
9 information and try and salvage his Defence. We thus have to take
10 matters into our own hands and launch our own investigation as the
11 Registry itself has implicated in the events in question.
12 I would like to update you -- or excuse me, take the opportunity
13 to update you on what has been done as of today. Today, Your Honours, we
14 have served and propounded upon various parties a substantial amount of
15 discovery. This morning, courtesy copies were sent by e-mail and
16 certificates of service were filed and will be a record shortly for the
17 following. As to the matter of the destruction of critical evidence by
18 the UNDU unit related to disproving the allegations of Vilic, the bribery
19 allegations against the team. We have propounded a comprehensive first
20 set of 13 interrogatories, not including subparts, to be answered under
21 oath or under verification by the Registry. Those were sent to (redacted)
22 the Registry officer who responded to the original Trial Chamber's
23 inquiry. That packet also contains an additional 11 requests for
24 production to try and understand why it took the officials of this
25 Tribunal over a month to respond to our requests for access to the
1 exculpatory telephone recordings by saying they had already been
3 We have requested the Registry to respond within five days.
4 Normally it wouldn't be that short, Your Honour, but we feel we are all
5 under the time pressures to get this case moving along, but normally in
6 the States, of course, that would be 20 to 30 days to answer ordinary
8 As part of that process, we hope to gain usable witnesses and
9 testimony as to the contents of the telephone calls and verification that
10 insofar as they were deemed innocuous and destroyed, Mr. Vilic's
11 assertions of attempted bribery in those conversations are unsustainable.
12 At that point it would be up to Your Honours to consider pursuing
13 contempt against Mr. Vilic and anyone else for presenting such false
15 With regard to the Prosecution, Registry and UNDO actions to ban
16 Mr. Lukic's telephonic privileges in the middle of Defense preparations
17 we will be seeking for Judge Kwon's order to be made public and try and
18 reverse the damage caused --
19 THE INTERPRETER: Slow down, please. Thank you.
20 MR. ALARID: We will try to reverse the damage caused by the rush
21 to the media by the organs of the Tribunal with again incorrect
22 assertions and allegations. We want the transcripts of these
23 conversations also to be released publicly so that the assertions made by
24 the Registry and the Prosecution in the media can be put to the test so
25 the world can see that Milan Lukic was not intimidating any Prosecution
1 witness but rather to locate a Defence witness essential to uncovering
2 the truth.
3 We have also caused interrogatories to be served upon Mr. Groome
4 of the Office of the Prosecutor. In addition, nine requests for
5 production have been propounded to Mr. Groome.
6 Similarly a separate passage was served upon deputy registrar Don
7 Hocking consisting of 21 interrogatories to be answered under oath and 10
8 production requests. As part of this, we have separately served upon
9 acting commander officer of UNDU, Fraser Gilmor a passage consisting of
10 22 separate interrogatories and 10 production requests.
11 Again the respective parties have been given only five days to
12 respond so we can illuminate what happened, why it happened, and what the
13 potential malfeasance is at issue and whether good faith was employed.
14 Again, understand this is a short time. We would entertain
15 allowing extensions of that in hopes that also we could simply stay
16 working while we get to the bottom of this, simply spending time in
18 I'm very hesitant to bring anyone here, meet them last night for the
19 first time and then set them in this chair to be answer open target for
20 cross-examination without prior due diligence.
21 We're also anticipating a number of other legal issues to be
22 raised by the Court. I am going to ask you to revisit the 98 bis as to
23 Bikavac. The reason I'm doing this, Your Honour, and doing it as a
24 simple single count is this: I feel that, although written in good
25 faith, the statute in and of itself causes a legal quandary that cannot
1 be resolved, because the 98 bis rule was written so similar to an
2 American directed verdict, it anticipates that all the Court has to
3 decide is, is there sufficient evidence to move what to a jury. But the
4 problem, is Your Honours, is you all have the ability to decide a case
5 upon reasonable doubt as if the Defence put on no evidence, so if you
6 pass it on to yourself, what implications does that have if you choose
7 not to look at each count without entertaining reasonable doubt in
8 absence of a Defence case? The reason we are going to do it on Bikavac
9 is we believe we can focus quickly on transcript excerpts and/or
10 statement excerpts. We can include photos, and we're willing to do it
11 almost like a short closing argument as if we had put on no Defence.
12 The reason we ask this, Your Honour, is really simple and goes to
13 the efficiency of the Court. We feel a full 30 per cent of our witnesses
14 will be fighting against Bikavac, and you -- and I have made no bones
15 about believing that I don't believe this incident happened the way it
16 was charged. I believe that even as it stands, it falls short on many
18 In reviewing the Court's decision on 98 bis, I will be also
19 asking you to revisit the Chapeaux arguments. The reason I will be doing
20 that, Your Honour, is that in noting that the only evidence of
21 Mr. Lukic's involvement in a common scheme plan from a position of being
22 part of the system, per se, the police, the army, the chain of command,
23 the first reference to his involvement was following the interview upon
24 his arrest in November of 1992. There is no reference date to when he
25 began in the military, only an affirmance in November that he was a
1 soldier in a group called the Avengers. Not White Eagles. The Avengers.
2 The interesting quandary I think you have, Your Honour, is with the war
3 starting only April 6th and the relevant periods of the indictment only
4 flowing really through July 27th -- June 27th with the exception, of
5 course, of Uzamnica, I think you need under Chapeaux to decide whether or
6 not the OTP has proved beyond a reasonable doubt the Chapeaux element of
7 Mr. Lukic's actual involvement --
8 JUDGE VAN DER
9 MR. ALARID: Of course, Your Honour.
10 JUDGE VAN DER
11 what you want to discuss now.
12 MR. ALARID: Yes -- no.
13 JUDGE VAN DER
14 MR. ALARID: That was just the motion. I'm literally that far.
15 JUDGE VAN DER
16 MR. ALARID: So that is something, again, we will be filing -- we
17 will also be asking the Court and invoking Rule 15 -- we will be invoking
18 or exploring the invocation of Rule 15, and unfortunately, the potential
19 disqualification of the presiding judge or Trial Chamber based on the
20 co-mingling of this internal criminal investigation and its impact on the
21 nature of fair trail. We feel that there would have been other remedies
22 that could have been sought within the system, such as filing the
23 allegations under a miscellaneous number, seeking an amicus curiae
24 Prosecutor and/or another Trial Chamber to hear the allegations so that
25 this Court could have proceeded without having to second-guess the
1 Defence or any witness or cross-examination we presented during the
2 course of trial. The issue surrounding the President simply also are not
3 just compounded by the fact that he is now the Registry President and
4 most avenues of review fall to him. Will this -- but I think it's fair
5 to anticipate but could this result in maybe the unprecedented motion for
6 a mistrial in this case?
7 We must look to, also, and I think it's very pointed in VG-11 and
8 the fact that VG-11 himself is integrally related to the contempt
9 proceedings against this team, is by signing and attending multiple
10 statements without safeguards of recording and especially while actually
11 participating in the questioning and investigation of witnesses for new
12 facts and then reducing those to statements and then those statements
13 changing over time, do attending Prosecutors make them themselves
14 witnesses? Prosecutors do not enjoy privilege such as we do, and absent
15 to safeguards, for instance, Your Honour, I take a tape recorder to every
16 witness interview that I do -- I take a tape recorder to every witness
17 interview that I do, and the best case scenario is having both attorneys
18 present. When an attorney participates in the generation of an affidavit
19 or a statement and there's no one else to verify, there always runs the
20 risk that the attorney can be called as to the truth or veracity of the
21 statement unless the safeguards are taken. The simplest way is normally
22 the investigating officers or the investigators do all the questioning.
23 Then the attorney is only a bump on a log in the corner but is not
24 intimately tied to the statement.
25 In this particular case, for instance in VG-11, and the ongoing
1 investigation and participation in these contempt proceedings,
2 Ms. Sartorio was present at the witness's statements before the
3 allegations came to light.
4 JUDGE VAN DER
5 MR. ALARID: Yes, Your Honour, of course. And there's a great
6 deal of jurisprudence on moments when Prosecutors inadvertently make
7 themselves witnesses in a criminal proceeding. The sad thing is, Your
8 Honour, in my jurisdiction that's easily cured. Simply get the
9 Prosecutor from the next county to cover the case and take over, but in
10 this particular case and with the co-mingling of the system, I don't even
11 have any idea what solutions to raise to these problems. When a Court is
12 disqualified, it's easy to go down the hall and get a new judge, but
13 this, I don't even know what to do.
14 And so the fact, is Your Honours, I hope you take leave that we
15 will be diligently narrowing and focussing and really learning our
16 witnesses during what I hope is a break. I will give you time sheets and
17 status reports as often as you want, but what I didn't want to happen,
18 Your Honour, is come in every day to court and the Court dissatisfied.
19 Like you said, we have a duty to do a good job, and I would otherwise be
20 lying to the Court, and I cannot do that in good faith.
21 I ask for your understanding. But the legal issues on top of
22 this, I also think should be looked at with such careful consideration
23 because I don't think there is any precedent for this situation. I could
24 be wrong, but I don't think there is. Thank you.
25 JUDGE VAN DER
1 going to give an opening statement, but you have given a long statement
2 instead in which you have raised a number of issues.
3 The bottom line as I see it is that you are not ready to start
4 with your case and that you are not clear about when you will be able to
5 proceed. From that, I conclude that you were not able to comply with our
6 order which we gave after due consideration of your request some time ago
7 to have a break of, if I remember, two months. We took all your
8 arguments then into consideration, and as far as I can see, there are a
9 number of new elements but basically the situation is as it was just
10 after the 98 bis ruling, and that is that you are not ready with your
11 case and you have not made the progress that one would have anticipated
12 which have been by this moment in time.
13 MR. ALARID: That is true, Your Honour. For instance, we were
14 going to make a stab. We've given victims and witness two names of
15 people to bring to the court. The problem was is they weren't sure they
16 were going to be able to give us anyone before tomorrow and Thursday, so
17 that's all I would have been offering you.
18 Now, from a viva voce perspective, Your Honour, that might not
19 have been so bad, but we were really having a hard time coordinating
20 people because of problems of staffing, ability to get there, who are --
21 may I call her an investigator but she's been rejected by this Registry,
22 and she is technically not part of the payment plan, but we're doing it
24 JUDGE VAN DER
25 MR. ALARID: Of course.
1 JUDGE VAN DER
2 problems throughout most of the case, and we are aware of the problems,
3 but we have also given you a number of facilities that haven't been given
4 to other Defence teams in other cases. I note that the cases that you
5 were referring to, the Milutinovic, Popovic, Boskoski, and Hadzihasanovic
6 cases where they break may have been longer between the Prosecution case
7 and the Defence cases, but you mustn't forget that these were
8 multi-accused cases. Not all of them. Not Boskoski and Hadzihasanovic,
9 but Milutinovic and Popovic were. In many of these cases, the Courts
10 have not been -- only have been sitting five days a week. We have been
11 sitting four days a week, but they have been sitting five days a week and
12 very often they have been sitting full days. So the pace of the cases
13 were much higher than what we have done in this case, so I don't think
14 that you have been disadvantaged as counsel in this case in comparison to
15 other counsel. So I can only note that are you not ready to start with
16 your case.
17 MR. ALARID: May I make a comment to that comment, Your Honour.
18 JUDGE VAN DER
19 MR. ALARID: I think a multi-defendant case makes it easier.
20 See, the issue is, Your Honour, is maybe if the Cepic team had had more
21 witnesses, it may have been easier. Giving us that break didn't because
22 of course I left to talk to experts, but Mr. Ivetic was here. Had the
23 Cepic case been a month, we would have had that month. And that is the
24 quandary because with such a small staff, because Milutinovic, not only
25 do they have -- but they also had the ability to hire five staff people
1 in addition to the two attorneys. So the thing is those extra four staff
2 people allocated over what we're allocated can take on those tangential
3 duties of travel, interview, and things like that, and we have not had
4 that benefit. The time you gave me at the beginning of this case, Your
5 Honour, was so I could get ready for their case. How am I supposed to go
6 to Bosnia
7 those six weeks we received at the beginning of the case that break,
8 intermediate break between the first three witnesses and the next
9 witnesses. But, Your Honour, we had to prepare for a case that
10 originally had 142 people interviewed. I don't know how fast you think I
11 can read, and I do not have magical powers to be in two places at once,
12 complying with the Court's orders. If you were to call what I have done
13 reasonable, because I'm only going to say, if you say that you have
14 offered me reasonable opportunities then you are actually telling me I am
15 unreasonable, and the only way I can assume that is that I've acted in an
16 unreasonable fashion and not complied with your requests, and the reason
17 I am passionate about that is because I think we have done the best I
18 can, considering I didn't have co-counsel. I was forced to trial. I was
19 forced to get my client off a hunger strike to accept proceeding to trial
20 without co-counsel, and I did so. And I cross-examined witnesses every
21 day in a 92 ter bis situation where the Prosecution's time was 20
22 minutes, and then I had to go. It gave my very little time other than to
23 deal with the witnesses at hand, not thinking of some esoteric witness
24 that I've never interviewed in Bosnia
25 So I've given this Court what I can, but what I'm not going to do
1 to this Court is lie to it. I will not. By some completion strategy or
2 worse, me selling out my client, because it would be very easy for me,
3 and that's what's chilling on me, Your Honour, is I don't think I would
4 be called on coming in here and presenting a skeleton defence. I think I
5 would be called on it. I think I would present the skeleton defence and
6 move beyond it and whatever happened would happen, so long as I didn't
7 complain and things move slowly to completion.
8 But the problem is, Your Honour, is my client is facing 40 years.
9 I know it. I accept it, and I think if he's convicted on a single count,
10 40 years. Maybe not Uzamnica, but anything else, he's facing that. For
11 me -- and the problem is, Your Honour, I don't just have to defend five
12 counts. They bring in rapes to disprove alibis. If I'm going to
13 contradict a rape, I have to bring in witnesses against that because that
14 goes to the credibility of that alibi rebuttal. If they brought in a
15 triple homicide or a double HDZ has one of the alibi rebuttals, how can
16 we avoid having to explore and investigate those matters as well? These
17 all happened in flow with trial.
18 JUDGE VAN DER
19 MR. ALARID: Of course.
20 JUDGE VAN DER
21 over and over again, and this Trial Chamber has tried its best to
22 accommodate you, but you must understand that there is a limit in the
23 time that we can give you, and we have made the ruling and we ask you to
24 abide by that ruling.
25 MR. ALARID: But justice deserves all necessary time, Your
1 Honour. There is no bright line for that. Every case is different.
2 Every factual case is different, and what has made this more difficult --
3 JUDGE VAN DER
4 made its ruling, and we just ask you to comply with the ruling.
5 MR. ALARID: And I accept that, Your Honour, and I think -- all I
6 ask is I will make good faith submissions and I will justify and explain
7 all actions as we proceed forward. But I cannot in good faith present a
8 Defence that I am not familiar with by lack of personal contact until I
10 is I bring a single witness up here, that they have some undisclosed card
11 up their sleeve. I understand it was traffic misdemeanors with one of
12 Mr. Lukic's, Sredoje Lukic's witnesses, but I'm assuming they are able
13 through the process of their power do investigations against my witnesses
14 while I'm just meeting them. I'm just meeting these people. They
15 probably know more about my witnesses than I do, and that's not fair.
16 JUDGE VAN DER
17 Mr. Alarid. After the break, we will hear the Prosecution, and then we
18 will make a ruling. Thank you. We will have a 20-minutes' break.
19 --- Recess taken at 10.17 a.m.
20 --- On resuming at 10.46 a.m.
21 JUDGE VAN DER
22 MR. ALARID: One last thing, Your Honour.
23 JUDGE VAN DER
24 MR. ALARID: One last thing, Your Honour, just to inform the
25 Court, we received an e-mail from witness and victims unit, and of the
1 two witnesses that we had offered for this week, one of them by
2 miscommunication or otherwise did not give his passport or refused to
3 give his passport to the victims witness down there so they could process
4 the final visa. So that is one of the little things that -- we want the
5 witness to have a comfort level with us because it's sort of like putting
6 a kid on the plane to fly by himself never having met the people on the
7 other side or anything like that. And I know a deadline today is to
8 reduce our witness list. That's what we're hoping to do, and so what I
9 ask of the Court is patience, because one of the things is, no, I'm not
10 going to bring witnesses today, but not to be contrary to the Court.
11 It's because I want to be in good faith at all aspects of proceeding,
12 especially with the raised scrutiny that I think we've all been under on
14 I would ask for sort of leave for this, and here's a suggestion
15 I'd like to offer you: We have until March 6th to complete our case.
16 Okay. One of, I think, the reasons you wanted us to reduce our refine
17 our witness list is to, one, make sure we meet those deadlines. I think
18 that's one of the main reasons from a judicial economy perspective. That
19 will be our utmost goal as we proceed forward. We're not going to stop
20 working. This isn't a work strike or anything like that. This is
21 simply, I want to know the witness that stands before you is someone that
22 we've screened, that we've scrutinised, and that we feel proud to bring
23 before this Tribunal without -- we do not intend to add scandal to an
24 already scandalized case.
25 So given the fact that I understand we're taking away our own
1 time at the front end, we're taking it away, we may not need it, I may
2 ask for some back but I will not do of this Court unless I have a
3 well-documented and a lucid argument to do so. So my intentions are
4 still to comply with the orders of the Court and the deadlines imposed as
5 is until we know otherwise, and I would ask for additional time to narrow
6 down that witness list that involves us having some personal contact with
7 these witnesses so we can say, hey, this is someone I wouldn't have
8 brought had I met him for a couple of hours.
9 One thing, Your Honour, that Mr. Lukic agreed with me, when I
10 agreed to take his case, is, understanding that I am his lawyer and
11 normally we follow the wishes of our clients, but I retain discretion to
12 not produce a witness if I felt that it was in some way unnecessary or
13 otherwise hurtful to his case, where the pros were outweighed by the
14 cons. I also retained discretion not to bing any piece of physical
15 evidence. I retained veto power, and I can't say I'm informed enough to
16 even do that. And so what you would be doing if you don't give me this
17 time to screen my case is -- really is allowing the defendant to run his
18 case, and I become a mouthpiece and a "but," and what I do not want to be
19 is blamed for this case coming to you in a less-than-professional manner,
20 and I fear with me not having the safeguards and scrutiny, personal
21 scrutiny of that, it may devolve to that. Thank you.
22 JUDGE VAN DER
23 MR. GROOME: Thank you, Your Honour. Your Honours, last week the
24 Milan Defence team made an affirmative representation to the Chamber and
25 the Prosecution that they would give their opening statement today and
1 call two witness that they identified. Instead, without any prior
2 notice, Mr. Alarid has said that he is not prepared to do that and has
3 presented us with a very long statement in which Mr. Alarid has made
4 dozens of serious allegations.
5 I will demonstrate the fallacy of all of these. I must insist
6 that the Chamber give me a full and fair opportunity to correct the
7 misstatements and misrepresentations on the record. To leave these
8 unanswered gives them a credence that they do not deserve and undermines
9 the credibility of this Tribunal. He has made these serious allegations
10 against the Court both as a Chamber and its individual members. He has
11 made it against the Vice President of this Tribunal, against Registry,
12 against the governments of Bosnia-Herzegovina, Republika Srpska, and
15 I would ask that we reconvene tomorrow at which time I will
16 review the statement of Mr. Alarid and correct the many
17 misrepresentations made and respond to the many baseless accusations that
18 is he has made.
19 I believe that the Registry should also be given an opportunity
20 if they desire to respond to some of the serious allegations made against
21 them and the detention unit.
22 I'd also insist that given the very serious nature of these
23 allegations that Mr. Alarid be required to put them in writing, as well,
24 and annex the evidence that he has to support them so that I might
25 properly meet them and the Chamber may properly consider them.
1 Mr. Alarid also suggests that we abandon the time-tested rules of
2 the Tribunal and engage in extra legal proceedings at his suggestion with
3 respect to an alternative to 98 bis. I would also like an opportunity to
4 prepare my response to these suggestions but believe they are more
5 properly placed in writing.
6 There is one additional matter, Your Honour, before I can
7 respond, that I would ask the Chamber to require Mr. Alarid to -- to
8 respond to or to clarify. On page 8 of the transcript at line 21, if I
9 could just get to that. I'm sorry. The pagination is different, Your
10 Honour, but the essence of what Mr. Alarid said, he accused several
11 independent organs of this Tribunal of acting in concert to intentionally
12 deny Mr. Lukic a fair trial, a terribly, terribly serious allegation.
13 I'm not sure who it's directed against, whether it's the Prosecution, and
14 I see Mr. Alarid smiling so perhaps this is all very funny and
15 entertaining for him, but I take the matter very, very serious.
16 I've asked Mr. Alarid to state on the record so I can respond
17 tomorrow, what are the independent institutions of this Tribunal that he
18 is alleging have acted together, in collusion with each other to deny
19 Mr. Lukic a fair trial so I can respond to them tomorrow. Thank you,
20 Your Honour.
21 JUDGE VAN DER
22 what I had in mind was to ask Mr. Alarid and the Milan Lukic Defence to
23 file a number of written motions in which a number of these points that
24 have been developed this morning and which, I agree, Mr. Groome, contain
25 very serious allegations against various organs of this Tribunal, that
1 this be filed in writing before the end of this week. So I don't want to
2 deny you the opportunity tomorrow to give an oral response, but I leave
3 it to you, Mr. Groome. You may prefer to wait until the written motions
4 have been filed for you, then, to give your reply on that basis, or would
5 you prefer to have the opportunity tomorrow to reply orally?
6 MR. GROOME: Your Honour, I expect that perhaps written
7 submissions may be the more proper way to proceed. I simply want at this
8 stage to categorically deny all these allegations so that anyone reading
9 this transcript would not interpret my decision to do this in writing as
10 any kind of admission. I deny vehemently all the accusation and the
11 misrepresentations made.
12 JUDGE VAN DER
13 insist on having an oral -- an opportunity to respond orally tomorrow?
14 You would -- it would be sufficient for you to respond in writing?
15 MR. GROOME: Yes, Your Honour, it would.
16 JUDGE VAN DER
17 MR. CEPIC: I apologize for interrupting. I would like to raise
18 one issue on private session with your leave, Your Honour.
19 JUDGE VAN DER
20 [Private session]
25 [Open session]
1 THE REGISTRAR: Your Honours, we are back in open session.
2 MR. ALARID: While I agree that I think the proper venue to
3 organise my statement to separate motions, that's absolutely what we
4 would do. But I will point Mr. Groome to the point of what I was trying
5 to make, and you used the term "collusion." That is a misrepresentation
6 of what I said. I said in concert. The problem is is that in this
7 system, the Registry, the Tribunal, and the OTP are sort of like the
8 branches of government, each trying to operate independently but having
9 in-roads into each other by virtue of the organization. Everyone has a
10 different goal. The Prosecution, to prosecute, but I would cite
11 Mr. Groome to the United States Supreme Court and state that the duty of
12 the Prosecutor is not always to convict someone and be an advocate but
13 otherwise to seek justice. But the problem is is some of the issues that
14 came up in this case were problematic, and the Office of the Prosecutor
15 made strategic choices on how to approach this issue of, let's say,
16 Vilic. That's huge in this case now because we've had to defend this
17 trial against our credibility within the confines of our trial.
18 Yes, Your Honour.
19 JUDGE VAN DER
20 have had ample time to discuss all this this morning. I think it's time
21 now to close this discussion and to ask you to put what you've been
22 saying in writing and to give Mr. Groome the opportunity to respond to
23 this. I would kindly ask you to stop with this kind of argument and put
24 it in your --
25 MR. ALARID: Simply to point Mr. Groome in the direction where we
1 believe there is evidence of the governmental entities over there being
2 involved in this case is the police report related to the contempt
4 JUDGE VAN DER
5 MR. ALARID: Yes, Your Honour. Of course.
6 JUDGE VAN DER
7 the end of this week.
8 What I want to emphasize, however, is that the ex parte contempt
9 proceedings ultimately led to a dismissal of the motion and that the
10 Trial Chamber has very clearly indicated that we were not going to draw
11 any adverse inferences from that. So with that in mind, I would kindly
12 request you, Mr. Alarid, to focus on the facts and on the way in which
13 this motion has been handled by the Trial Chamber.
14 MR. ALARID: But Your Honour, and the only thing I'd ask is, I
15 would feel more comfortable if we received the two -- because you're
16 right, I'm making some assumptions in the vacuum, and I would ask for
17 release to us from ex parte status to confidential status the referenced
18 August 13th and 29th filings so I might have a complete picture of the
19 allegations. Given that, I may change the tempo of my concerns. They're
20 concerns. They're not allegations, Mr. Groome, they're concerns.
21 Because when we're talking about conflicts of interest, it is the
22 appearance of impropriety that needs to be avoided. Even if I trust that
23 I can be fair and impartial, if I appear that I cannot by any stretch of
24 the imagination, that is what's important. I do not accuse this Chamber
25 of unethical behaviour. I do not accuse the Registry, other than the
1 fact that I believe there are fiduciary duties owed to Mr. Lukic that
2 were bypassed, including contacting counsel and allowing counsel to
3 participate in these ongoing issues with communications in Defence
4 preparations. Thank you.
5 JUDGE VAN DER
6 asking a lifting of the ex parte status of the motions -- of the filings
7 of 13th August and 29th August. I don't think this requires a written
8 motion, and I think Mr. Alarid can -- will you give an oral reply now, or
9 do you want to give a written response?
10 MR. GROOME: Your Honour, I'm not going to require Mr. Alarid to
11 make a written filing, but I would like an opportunity to review the
12 documents and make a written filing. The lifting of the ex parte nature
13 of the status caused quite some considerable concern among the Bosnian
14 government and also in the witness's view jeopardised his safety. I
15 would like an opportunity before the Chamber just lifts the ex parte
16 status without -- to make the Chamber aware of whether or not there are
17 any such considerations with respect to those two documents, and I'm
18 prepared to do that in the next two days, Your Honour, so that by the end
19 of this week, the Chamber would be able to make a determination about
20 whether those -- changing the status of those documents.
21 JUDGE VAN DER
22 Mr. Alarid to file his motions by the end of this week, would it be
23 feasible for you to file your motion on the lifting of this ex parte
24 status by the end of business today? Because we are on a tight time
1 MR. GROOME: Your Honour, I will endeavor to do, so but if it
2 requires contacting the witness or requires any contact with the
3 government of Bosnia
4 JUDGE VAN DER
5 MR. GROOME: But perhaps if I could undertake to do that, Your
6 Honour, and then I will advise counsel and the legal staff of the Chamber
7 if I'm unable to do that if that's acceptable.
8 JUDGE VAN DER
9 MR. ALARID: And just of the issues I raised, Your Honour, I
10 would ask for one of the motions not to be due on Friday only because it
11 just involves a lot more scouring through the record and witness
12 interviews, and that is a Rule 98 position on Bikavac. I think the fact
13 is that with us dealing with so many legal issues, i.e. potential for
14 conflict of interest and placing one's self in a witness position, the
15 appearance of prejudice of the Court, all those kinds of things that I
16 think are easier to do just on a legal, philosophical basis, but the
17 actual meat and bones, dissect the facts, I prefer to do next week.
18 JUDGE VAN DER
19 I would say next Wednesday by close of business.
20 MR. ALARID: I can do that. Thank you, Your Honour.
21 JUDGE VAN DER
22 week, then, is your submissions in relation to the ex parte contempt
23 proceedings, your submissions not directed to this Trial Chamber because
24 I don't think it's a matter for this Trial Chamber to decide in respect
25 to what you call irregularities at United Nations Detention Unit, so this
1 is something which is not within our jurisdiction, but I would urge you
2 to proceed with that if you wish to make submissions, to do that by the
3 end of this week, and then you also mentioned that you were considering a
4 request for disqualification of the Presiding Judge of this Trial
5 Chamber, if that were really your question or your request, then I would
6 also ask you to do that by the end of this week.
7 MR. ALARID: And that is why I kind of wish Judge Robinson was
8 here, only because advisory opinions are usually discouraged in most
9 court systems, but this is an interesting situation because with Judge
10 Robinson presiding over the Tribunal and being the avenue of appeal on
11 UNDU situations, that's the problem, is when we have got this convoluted
12 mess behind the scenes that may not even apply to every case. It may be
13 the rarest est of instances for all I know, but the fact that this has
14 been injected into our trial and really was presented as evidence of like
15 a weakness of our case, I mean, I'm assuming Mr. Vilic came in to say,
16 this is so bad, this is why we're bringing him. And so along those
17 lines, who do we appeal to? It's on those bounds that we're concerned.
18 JUDGE VAN DER
19 look into precedence, if any, in this Tribunal. Mr. Groome.
20 MR. GROOME: I mean, I'm certainly not defending Judge Robinson,
21 but the one incident that came up with respect to the phone call of
22 November 18th, Judge Robinson immediately recognized that it was
23 inappropriate for him to decide that and recused himself, so again, I'm
24 not here to defend anyone else, and I'll defend the Prosecution as I see
25 fit in writing, but I must present my concern that very serious
1 accusations against professionals that have long-standing reputations for
2 integrity before not only their national jurisdictions but international
3 jurisdictions is handled with such folly by the Defence.
4 MR. ALARID: And, well, I think the accusations against us were
5 acted out with great folly, as well, especially Mr. Ivetic, who wasn't
6 even on our team. I want to see those filings. Second -- no --
7 JUDGE VAN DER
8 written submissions and we will decide accordingly. Let's close the
9 discussion at this point, and then I understand you have no witnesses for
10 this week, and you have this general problem that you have been bringing
11 up again and again. So I will advise you to do the following. We will
12 not convene for the rest of this week in the absence of Judge Robinson.
13 We will reconvene next Monday, and at that moment in time, I will ask you
14 to do your opening statement then, or rather, the continuation of your
15 opening statement because you have already started giving it in July, and
16 I will ask you to call whatever witnesses you can call next week, and we
17 will take it from there. But I have noted that you are still intending
18 to comply with the Trial Chamber's order to finish your case by 6 March.
19 MR. ALARID: Of course. Absolutely. And the only point I would
20 make, just pointing Mr. Groome to the direction of where I would be
21 going, is that Mr. Groome filed all the transcripts related to the very
22 matter that Mr. -- or that Judge Robinson removed himself from, and those
23 same materials were filed as a pleading on, I believe, Friday, so that is
24 a concern. It's just, you know, yes, Judge Robinson avoided the
25 situation, and then they come in the other way.
1 JUDGE VAN DER
2 accusations, Mr. Alarid. We will resume the hearing next Monday, and the
3 Trial Chamber stands now adjourned.
4 --- Whereupon the hearing adjourned at 11.09 a.m.
5 to be reconvened on Monday, the 15th day of
6 December, 2008, at 8.50 a.m.