Tribunal Criminal Tribunal for the Former Yugoslavia

Page 2729

1 Wednesday, 14th May 1997

2 (10.00 am)

3 JUDGE KARIBI WHYTE: Good morning, ladies and gentlemen.

4 Is this a new pattern now, you already kept the blinds

5 closed? Is that what you do now? (Pause.)

6 Now, we have before us listed three motions, which

7 we have scheduled for this morning. We will start with

8 the first one: this is a request for a formal finding of

9 the Trial Chamber that the accused Landzo is fit to

10 stand trial; the second, the motion for extension of

11 time in which to file motions pursuant to Rule 73A(3)

12 and relief from waiver; the third, motion for leave to

13 file motion to exclude evidence in connection with

14 Delic; the fourth, the motion to exclude evidence that

15 is filed by counsel for Mucic.

16 Now, we will start with the first one before the

17 Trial Chamber: the question for our finding about the

18 fitness to stand trial. That is a little bit of an

19 enigma to me, why the prosecution is asking for that,

20 but I suppose ...

21 MR. OSTBERG: Mrs McHenry will speak to that, your Honour.

22 MS. McHENRY: Thank you, your Honours. We did not -- we do

23 not suggest that this is, as far as we know, even a

24 contested issue, but just so that the record was very

25 clear, so that if there is subsequently appeal, there is

Page 2730

1 no question about it, the prosecution believe that it

2 would be appropriate for the record to formally have a

3 finding that the accused is fit to stand trial.

4 Previously this issue had been raised.

5 The accused was examined. Two doctors found he

6 was fit to stand trial and one doctor found he was not,

7 in his opinion. We believe that the more well reasoned

8 and the more convincing of the findings of the two

9 doctors are the doctors that found that the accused was

10 fit to stand trial. We believe that the accused's

11 conduct, which even the Trial Chamber can observe during

12 court -- conferring with his counsel, behaving

13 appropriately -- such things indicate that he is fit to

14 stand trial, and we assume by the fact that the

15 proceedings have been on-going that there is an implicit

16 finding by both this Chamber and an agreement by the

17 defence that he is fit to stand trial, but without

18 making it a significant deal, we just thought it would

19 be best if there was a formal finding, even if it is an

20 oral, one sentence finding, that the accused is fit to

21 stand trial. Thank you.

22 MR. ACKERMAN: Good morning, your Honours. Just very

23 briefly, I am puzzled, like Judge Karibi Whyte is

24 puzzled, by this motion, since we have filed no motion

25 contending that Mr. Landzo is not competent to stand

Page 2731

1 trial. It is quite unusual for the Prosecutor to ask

2 for such a finding when it has not been asserted by the

3 defence in the first place. Beyond that we have

4 nothing further to say with regard to it. Thank you.

5 JUDGE KARIBI WHYTE: Thank you very much. I think this is

6 the end of the matter. We will give a Ruling later.

7 There is nothing to pursue in this matter.

8 The next motion is that filed by counsel for

9 Landzo pursuant to Rule 73A and relief from waiver.

10 I think counsel for Landzo can speak to that motion.

11 MR. ACKERMAN: Thank you, your Honours. The basic heart of

12 the motion that was filed is based upon the proposition

13 that even though the record of the Landzo interview

14 shows that he had counsel present at the time of the

15 interview, and even though Mr. Landzo was advised at

16 least to some extent by those conducting the interview

17 of what his rights were, the contention that I wish to

18 make, if I am permitted to file a motion to suppress, is

19 that neither of those were sufficient to protect his

20 rights. It is based upon the following proposition.

21 In most countries one could not represent an

22 individual charged with a serious crime without first

23 passing a Bar examination regarding all the law and the

24 rules and procedures covering those kinds of proceedings

25 that they would be appearing in. Once that attorney

Page 2732

1 has passed such a Bar examination and been admitted to

2 the Bar, only then is he or she permitted to appear on

3 behalf of an accused and advise an accused as to what he

4 or she should do.

5 The situation that existed at the time the

6 statement was taken from Mr. Landzo was a situation in

7 which he was represented by a very capable and

8 honourable attorney by the name of Mustafa Brackovic.

9 Mustafa Brackovic's training was in law and procedure in

10 the former Yugoslavia. Any examination that he took to

11 become a lawyer in the former Yugoslavia would have been

12 based on Yugoslavian law and procedure. My

13 understanding, and I would be prepared to prove, if I am

14 permitted to file the motion, is that under Yugoslavian

15 law a defendant is expected to make a statement -- an

16 accused is expected to make a statement -- and that

17 that statement can never be used against that accused

18 without the accused's permission. Under many of the

19 civil law continental systems it is, in fact, a

20 detriment to the accused if he fails to make such a

21 statement.

22 The making of a statement by an accused, if he is

23 convicted of the offence for which he is charged, goes a

24 long way towards mitigating punishment because he made

25 such a statement. It may cut punishment in half

Page 2733

1 because he made such a statement. That is an entirely

2 different procedure, dramatically different procedure,

3 from what obtains under the common law and in the United

4 States and the United Kingdom and other places where the

5 common law is applied.

6 I think the matter is especially a problem because

7 of the presence at the interview of Mr. Landzo of Ms.

8 Teresa McHenry. Ms. Teresa McHenry is a Prosecutor in

9 this case and comes to this court from the United States

10 Department of Justice. I am convinced, and will be

11 prepared to prove, if I am allowed to, that she was

12 fully aware at the time this interview was taken of the

13 difference that I have described between the training of

14 the honourable Mustafa Brackovic and the kind of

15 training and experience that she received in her law

16 school education and her Bar examination and in her

17 experience with the Department of Justice: it is the

18 almost inevitable case under US law that the only way

19 that a statement is taken from an accused is either it

20 is done before the accused has counsel, or if done after

21 the accused has counsel, pursuant to a plea agreement

22 that has been entered into with the prosecution, where

23 that accused may become a prosecution witness and

24 testify against other defendants similarly charged.

25 It is my contention that, having this knowledge

Page 2734

1 and having this experience, it was at the very least the

2 duty of Ms. McHenry to tell Mr. Brackovic, knowing his

3 background, that before advising his client about

4 whether or not to make a statement that he should at

5 least consult with a lawyer from a common law

6 jurisdiction as to the ordinary procedure in those

7 jurisdictions when accuseds are called upon by the

8 prosecution to make a statement. She failed to do

9 so.

10 The situation that Mr. Landzo found himself in the

11 day that the prosecutors came to take his statement was

12 a situation that no defendant could ever find himself in

13 in the United Kingdom or in the United States. It

14 could not happen in either of those two jurisdictions,

15 because it could not happen without counsel agreeing,

16 and that counsel would have to be counsel that was

17 admitted to the Bar of those jurisdictions.

18 To turn it the other way around, if I were to

19 appear in the former Yugoslavia by myself to represent

20 someone accused of an offence in the former Yugoslavia,

21 my initial reaction, when called upon to decide whether

22 my accused should make a statement to the prosecution or

23 not, would be absolutely not. Under no circumstances

24 do you give a statement to the Prosecution. If I took

25 that position without consulting with Yugoslavian

Page 2735

1 lawyers, I would be taking the wrong position, and

2 I would not be serving my client well, but I would not

3 know that I would not be serving my client well.

4 I would believe that I was doing the right thing.

5 Mr. Mustafa Brackovic, when he advised Esad Landzo,

6 believed that he was doing the right thing. It turns

7 out that that is not the case. It turns out that the

8 statement can, in fact, be used against Mr. Landzo, all

9 other things being equal. Mr. Landzo, of course, at the

10 time was 20 or 21 years old, with absolutely no

11 experience of any kind with the law, and was absolutely

12 dependent upon his attorney, Mr. Mustafa Brackovic, to

13 advise him properly.

14 Please understand -- I need the Tribunal to

15 understand very clearly that I am not in any manner

16 attacking the competence of the honourable Mustafa

17 Brackovic. He is an extremely competent lawyer and any

18 accused in the former Yugoslavia that would have him as

19 an attorney would be well served, absolutely. It is

20 only in the situation that he found himself here that he

21 was unable to give the kind of advice that any common

22 law lawyer would automatically have given to Esad Landzo

23 with regard to giving the statement. Thank you very

24 much.

25 JUDGE JAN: Just a minute.

Page 2736

1 MR. ACKERMAN: Okay.

2 JUDGE JAN: Was your client advised that he had a right to

3 remain silent and that if he made a statement, it would

4 be used in evidence against him?

5 MR. ACKERMAN: Yes, your Honour. He was absolutely advised

6 of both of those things.

7 JUDGE JAN: Would that not put his counsel on guard?

8 MR. ACKERMAN: Maybe; maybe not. My client had come from a

9 situation in Yugoslavia where, if he did not give a

10 statement, he would likely be beaten. He had been here

11 a very, very short period of time. He was in a new

12 surrounding, in a new prison. He had no idea what the

13 situation would be here. So to the extent that he made

14 any kind of a decision himself about whether or not to

15 give a statement, I submit to your Honours that that was

16 not an informed decision, that it was based on a lot of

17 factors that turned out to be not true: a fear factor,

18 advice from his lawyer, all the things that were not

19 true, and when you waive rights, when you waive rights

20 like the prosecution is suggesting that my client waived

21 here, it is not just the fact of a waiver that counts;

22 it is whether or not it is an intelligent and knowing

23 waiver of those rights. I submit to your Honours that

24 there was not an intelligent and knowing waiver of those

25 rights in this matter.

Page 2737

1 JUDGE KARIBI WHYTE: Actually it appears you are basing

2 your argument mainly on the protection given to your

3 client by his counsel.

4 MR. ACKERMAN: Absolutely. It is being based on that, but

5 let me say once again that it is not an attack on his

6 counsel. His counsel was doing exactly what he was

7 trained to do and what he knew to do.

8 JUDGE KARIBI WHYTE: I agree. I consider that. Are you

9 saying only those trained in the common law are

10 qualified to act as counsel to accused persons in these

11 circumstances?

12 MR. ACKERMAN: Absolutely not, your Honour. I could not

13 say that with a straight face sitting next to Mme

14 Residovic, because I have watched her performance and it

15 has been exemplary. What I am saying is when the

16 prosecution seeks to take a statement from the accused,

17 if that accused is represented by an attorney who is

18 unfamiliar with common law procedure, the prosecution

19 has an additional duty to advise the defendant, the

20 accused and the accused's attorney. It is like if

21 Mr. Brackovic were to go to the United States to

22 represent a defendant in the United States. The courts

23 of the United States would not even permit him to appear

24 on behalf of a defendant unless he had obtained local

25 counsel familiar with the local procedure and rules.

Page 2738

1 He could not appear alone to do that. This court

2 should adopt some kind of a procedure.

3 JUDGE KARIBI WHYTE: Have you looked at Rule 44 on the

4 appointment of qualified counsel?

5 MR. ACKERMAN: Yes, I have and I am very familiar with the

6 Rule, and I am totally in agreement that Mr. Brackovic

7 was appointed in accordance with that Rule and

8 absolutely properly appointed in accordance with that

9 Rule.

10 JUDGE KARIBI WHYTE: What then makes any lawyer so

11 appointed incompetent to discharge his duties to his

12 client?

13 MR. ACKERMAN: I really need to say to your Honour that I am

14 not suggesting that Mr. Brackovic was incompetent to

15 discharge his duties. I am only suggesting to your

16 Honours that there were matters that he did not know,

17 that he would have known had he gotten even five minutes

18 of advice from Ms. McHenry to talk to a common law lawyer

19 before he advised his client to give a statement.

20 I think Ms. McHenry took unfair advantage of Mr. Brackovic

21 by not giving him that kind of advice. She knew the

22 background he came from. She knew he did not have the

23 grounding in common law procedure that lawyers from

24 common law jurisdictions would have.

25 JUDGE KARIBI WHYTE: Actually this is the basis of your

Page 2739

1 argument.

2 MR. ACKERMAN: It is the basis of my argument, and please

3 keep in mind, your Honour, all I am asking to do at this

4 point is to file a motion to suppress. I am not

5 arguing whether or not there should be a suppression.

6 JUDGE KARIBI WHYTE: Your argument should be weighty enough

7 in terms of the first application.

8 MR. ACKERMAN: I hope it is weighty enough for this court to

9 permit me to file a motion to suppress, which we can

10 then hear at a later time. I would propose to put on

11 some evidence to support it regarding statements I have

12 made out of my own mouth here today that I think I would

13 need to prove to the Tribunal to consider that motion.

14 JUDGE JAN: You are quite right to say before a waiver can

15 be made the person making the waiver must be fully aware

16 of what his rights are. That is quite right.

17 MR. ACKERMAN: Thank you, your Honour.

18 JUDGE KARIBI WHYTE: Can we hear the prosecution?

19 MR. OSTBERG: Thank you. I will let Ms. McHenry answer the

20 severe allegations put forward against her, but before I

21 do that, I would put one question to Mr. Ackerman.

22 What, Mr. Ackerman, would you have founded your motion on

23 if I had been present instead of Ms. McHenry? I am from

24 the civil law system and I am before a international

25 court and not before a US court and I am living by the

Page 2740

1 standard of this Statute and these Rules. What could

2 you have put forward as argument if I had, instead of

3 Ms. Teresa McHenry, been sitting there with Mr. Brackovic

4 that day when the statement was taken from Mr. Landzo.

5 JUDGE JAN: But you come from a civil law system where no

6 beating takes place.

7 MR. OSTBERG: I beg your pardon?

8 JUDGE JAN: You come from a civil law system where the

9 accused is not beaten for not making a statement. That

10 is what he is suggesting.

11 MR. OSTBERG: This suggestion is unfounded. How could it

12 be put forward before this Tribunal that a thing like

13 that could be imagined before this Tribunal? . I am

14 waiting for your answer, Mr. Ackerman.

15 JUDGE KARIBI WHYTE: Strictly speaking I do not know. It

16 depends on -- questions are not put to counsel

17 directly. If you are doing so through the court --

18 MR. OSTBERG: I do so through the court.

19 JUDGE KARIBI WHYTE: Or in making your submissions, you can

20 do so.

21 MR. OSTBERG: I make the submission --

22 JUDGE KARIBI WHYTE: It can be part of your submissions and

23 he will answer this.

24 MR. OSTBERG: I ask you, your Honour, to put forward my

25 question to Mr. Ackerman.

Page 2741

1 JUDGE KARIBI WHYTE: No, I do not think so. After your

2 submissions there will be answers to those

3 submissions.

4 MS. McHENRY: Your Honour, just briefly, and other than to

5 say that the allegations against me and, in fact,

6 I think, against all civil law attorneys are in their

7 own turn unfair. I will not specifically respond to

8 the specific attacks made on me and my integrity and

9 conduct in this case.

10 With respect to the merits of this situation, I

11 will point out that what the accused is, as your Honours

12 have pointed out, suggesting is that all civil law

13 attorneys are in effect incompetent to give advice to

14 their clients in this Tribunal because this is a common

15 law Tribunal. I would take issue with both those

16 allegations. This is not a common law Tribunal. It

17 is a mixture of both civil and common law. For

18 instance, we do not have a jury. That is one of the

19 most obvious things. It is not the prosecution's duty

20 and, in fact, it is really not the prosecution's

21 business to interfere. In the same way that I would not

22 suggest to a civil law attorney how to conduct their

23 defence, or to an accused, I would not suggest to an

24 accused that it is somehow improper to have two common

25 law attorneys instead of a civil law attorney.

Page 2742

1 It is absolutely not the prosecution's business to

2 give unsolicited advice. The Rules were set up by

3 these judges of this Tribunal, and, in fact, even by the

4 UN with the Statute, in which certain rules were clearly

5 laid out, and it is, of course, understood that there is

6 no lawyer who comes from this particular system, unless

7 at this point we get some of the Tadic lawyers, because

8 it is a new system. That is why the Rules are set out,

9 and with respect to certain things, including the

10 accused's rights with respect to interviews, the Rules

11 are so very clear. The Rules were made such that

12 anyone, no matter what their system and what their

13 background, can understand what is being said.

14 In this case the Rules were followed in every

15 respect. I will also point out that Mr. Landzo had been

16 in The Hague for over a month, approximately a month,

17 I believe a month and two days, prior to his giving the

18 statement. I do not believe that there can be any

19 allegation that he thought he would be beaten if he did

20 not give one. I also believe that it is clear that

21 defence counsel consulted with Mr. Landzo before there

22 was a decision made to do this. I also point out as a

23 matter of fact, although we emphasise that the law in

24 any country is not controlling, that it is not correct

25 that in Yugoslavia, at least as experts in Yugoslavian

Page 2743

1 law have told us -- it is not correct that people are

2 required to give statements, nor is it correct that if

3 an accused gives a statement to, for instance, the

4 investigating magistrate, that he can later decide

5 whether or not to use that statement. My fellow

6 colleagues also tell me that it is the same thing with

7 respect in other civil law systems. It is not correct

8 that an accused can always choose that.

9 I will also just point out that even before

10 Mr. Landzo decided to provide a statement, he had learned

11 -- well, the defence counsel of Delalic had filed a

12 motion seeking to exclude the first statement made by

13 Mr. Delalic, in which it is abundantly clear that there

14 is a difference between Yugoslavian -- there may be --

15 there are allegations -- between Yugoslavian law and

16 Tribunal law, and that was also known, and what the

17 accused -- what the defence is doing is suggesting that

18 what happens in the US, in which it may have been -- it

19 may be that an accused would choose not to do so, must

20 apply.

21 I would point out that in this case this is not

22 the US and, in fact, it may not even have been a

23 decision -- I mean, a bad decision, but in any event it

24 was an informed, knowing and voluntary decision, and

25 just because new counsel comes in and has a different

Page 2744

1 opinion, maybe based correctly or incorrectly on his own

2 system, means that the initial waiver was somehow

3 improper, involuntary or unknowing. To the contrary,

4 the record is very clear, and it is conceded that the

5 Rules and the warnings, which are obvious on their face,

6 were given and understood by all counsel.

7 I will also just specifically with respect to the

8 good cause motion point out that there has been a

9 significant length of time in which common law attorneys

10 have been part of this case, and though we reject

11 entirely the notion that civil law attorneys cannot

12 understand, or an accused himself cannot understand, the

13 clear meaning of these rules, it has been the matter for

14 several months that a common law attorney has been

15 associated with this case, and to allow two months or

16 more into trial allegations such as these, which we

17 think are clearly lacking in merit on their face, to

18 constitute good cause would really be a miscarriage of

19 justice. Thank you.

20 MR. ACKERMAN: Your Honours, I have just two very brief

21 matters to give you in response. The first is that it

22 is now clear from what Ms. McHenry has told you that

23 there is a factual dispute about what the law was in the

24 former Yugoslavia, and that can only be resolved by

25 documents or witnesses, if I am permitted to file the

Page 2745

1 motion to suppress, and I would propose to do that, if

2 the motion is permitted.

3 Ms. McMurrey (sic) also told you that it is not the

4 job of the prosecution to give the defendant, the

5 accused, unsolicited advice, but if you read the very

6 beginning of Mr. Landzo's statement, that is exactly what

7 happened. Mr. Landzo did not solicit any advice from

8 the prosecution at all, but the prosecution did give

9 advice. That advice was, and it is not as clear, I do

10 not think, as it should be -- that advice was:

11 "You are not obliged to say anything unless you

12 wish to do so, but whatever you say will be recorded and

13 may be given in evidence."

14 JUDGE KARIBI WHYTE: There is a duty --

15 THE INTERPRETER: Microphone please.

16 MR. ACKERMAN: I am sorry, your Honour?

17 JUDGE KARIBI WHYTE: There is a duty for anybody

18 interviewing a suspect or an accused person to tell him

19 those things. It is not necessarily advice.

20 MR. ACKERMAN: It is unsolicited advice. There is a Rule

21 saying it must be given and must be given in a way the

22 defendant understands it. There is also a Rule saying

23 they must advise he will be assisted by counsel and

24 counsel will be appointed for him if he cannot afford

25 counsel. All I am suggesting to this court is, in the

Page 2746

1 process of giving that unsolicited advice, I think there

2 should have been some additional unsolicited advice that

3 I have already suggested to the court.

4 Now I understand that my colleague, Mr. Greaves,

5 would like to address the court regarding a perspective

6 that may be different from mine in this regard. Thank

7 you.

8 JUDGE KARIBI WHYTE: In respect of this motion?

9 MR. GREAVES: I really want to wear my amicus hat this

10 morning and assist the court with what I hope are

11 helpful observations. I am not taking part in the

12 substance of the argument. If the court would welcome

13 such assistance, I would like to give it, if I may.

14 JUDGE KARIBI WHYTE: You can do so.

15 MR. GREAVES: Your Honours, it is entirely right what the

16 prosecution says about the Rules of Procedure and

17 Evidence in this court, that they are drawn from two of

18 the great traditions of law, the common law and the

19 civil law. Anybody who, as I have, over the last eight

20 weeks, learned a considerable amount about the civil law

21 -- any common lawyer in those circumstances will

22 understand that both the common law and the civil law

23 have considerable advantages and considerable

24 disadvantages, and my respect for civil lawyers and

25 civil law grows by the day. There are some aspects of

Page 2747

1 it that I do not care for as a common lawyer, but that

2 is another matter altogether. The fact is our Rules of

3 Evidence and Procedure are drawn from both systems,

4 although it might be said that the common law has had a

5 greater input into the Rules than perhaps the civil law

6 has. That is perhaps an argument for academics in due

7 course.

8 However, the Rules that have been drawn up for the

9 protection of suspects in connection with their rights

10 to counsel and what should happen during the course of

11 interviews and so on and so forth are, in my submission,

12 drawn almost exclusively from the common law tradition

13 and any common lawyer picking up the Rules of Evidence

14 and Procedure in this Tribunal would instantly be

15 familiar with those particular aspects of the Rules.

16 In my submission it is very likely, therefore,

17 that this Tribunal would want to look at the way in

18 which common law jurisdictions -- for assistance common

19 law jurisdictions interpret and apply such laws in order

20 to come to their own determination as to what the Rules

21 mean and how it should be applied by this Tribunal

22 applying its own Rules.

23 I go on to say this: The consequences of the

24 warnings that are given typically in common law

25 jurisdictions are both very important and are not

Page 2748

1 straightforward, and indeed in most jurisdictions there

2 is quite a degree of subtlety to them. It comes to

3 this: where you have someone from a civil law

4 jurisdiction, those subtleties and the degree of

5 importance and the consequences and effects of the

6 warnings and the failures to give them, if those take

7 place, are matters which a common lawyer is, I have to

8 say, very much better placed than his civil law

9 colleague in giving advice to the defendant when he is

10 being interviewed, and what he should say, whether he

11 should say anything at all.

12 So plainly the proposition that is being put is a

13 civil lawyer is just as competent to advise them as a

14 common lawyer. It may not be seen to be entirely

15 right, and I hope that the court will bear that in mind

16 when coming to its determination on this issue.

17 Can I add this: there has been some exchange of

18 views about the duties of various members of the

19 prosecution team, the defence team and so forth. I do

20 not enter into those. Can I just give your Honours my

21 experience as a practitioner in the courts of England

22 and Wales? If I was to come across a young member of

23 the Bar who was plainly inexperienced and plainly about

24 to do something to the detriment of his client, I would

25 not take advantage of that. Instead, I would take him

Page 2749

1 or her into one corner and give him some sound advice,

2 as the Prosecutor -- sorry, not as the Prosecutor but as

3 an officer of the court and a member of my profession,

4 and say to that person: "Look, you are about to make a

5 serious mistake which is going to harm your client. My

6 advice to you is either to seek advice from another

7 member of the Bar or to do this."

8 I would regard that as my duty, because my duty as

9 a prosecutor is not to ensure a conviction at all costs,

10 but to ensure that right and justice is done. I hope

11 that does not sound pompous, but it was something that

12 was drilled into me from the very first day I joined

13 this profession over 20 years ago. It might be

14 suggested if that is accepted as a proposition, then my

15 learned friend for the prosecution, Ms. McHenry, might be

16 thought to have a duty over and above that of being a

17 Prosecutor.

18 If there is anything I can assist you with any

19 further, I will, of course, do so, but that is all

20 I have to say.

21 MS. RESIDOVIC (in interpretation): Your Honours, may I join

22 in the discussion of this issue, please?

23 JUDGE KARIBI WHYTE: Yes, you can.

24 MS. RESIDOVIC (in interpretation): Like my honourable

25 colleagues, I also believe that we should ensure that

Page 2750

1 this trial is fair and just in regard to all the

2 defendants. For this reason the defence of Mr. Delalic

3 attempted on several occasions to indicate to this Trial

4 Chamber certain lacks and deficiencies in the rules like

5 Rule 89B. As we all understand, this Tribunal is not

6 bound by the international law, and we all have to

7 respect the fact and appreciate that we are all coming

8 from a certain legal tradition, and if this Trial

9 Chamber wants this trial to be fair and just, it should

10 bear this in mind, so that the trial should proceed in

11 such a manner.

12 I did not understand the submission of my

13 colleague, Mr. Ackerman, as a critique or a comment on

14 incompetence of all the lawyers who are coming from a

15 different legal system. I think that he was just

16 trying to point to this Trial Chamber some things that

17 ourselves and our clients have done; it is not ignoratia

18 legis nocet. In other words, we did these things

19 because we did not know certain things and this could be

20 detrimental to our clients. We may have done certain

21 things precisely because we may know certain things

22 quite well, because they are part of our tradition, our

23 legal systems in the countries that we are coming

24 from.

25 Besides the motion that we filed to exclude the

Page 2751

1 first statement given by Mr. Delalic in Vienna, we were

2 expecting to be given an opportunity to discuss these

3 arguments in terms of voir dire, where we would call an

4 expert in the criminal law from the territory of the

5 former Yugoslavia, not from Bosnia and Herzegovina or

6 even Croatia and Serbia, who may have been parties to

7 the conflict, which this case is covering, but rather

8 from Slovenia. So I think it would be extremely

9 important that our colleagues would be given an

10 opportunity to produce such experts, persons who would

11 explain what the legal practice and legal experience

12 means as rights to the lawyer and a warning of the

13 lawyer to his client as to what he should or should not

14 do.

15 Now I would like to respond to the comments made

16 by my colleagues from the prosecution. I myself spent

17 part of my career as a Prosecutor, and I am able to

18 submit to you, and we can produce experts to confirm

19 this, that any statement given to the police or the

20 investigating magistrate is immediately sealed and can

21 never be used either to the advantage or -- either in

22 the interest or against the accused unless the accused

23 explicitly asks for that.

24 When we first started working on this case, we did

25 not know every detail about the procedures. So I would

Page 2752

1 like to request of the Trial Chamber and in order to

2 respect the Article 21 to allow this argument to be

3 presented so that in the future we would have a

4 different way of presenting our case. Then, bearing in

5 mind all this, the defence of Mr. Delalic submitted a

6 motion on 28th December asking for amendment of certain

7 Rules to amend the procedure, because a number of

8 issues, when I present them, you may not understand

9 them, and when my colleagues from the common law systems

10 present them, I may not understand them.

11 In a hearing at which you presided, when I asked

12 about the active role of my client, which I understood

13 to mean that he could actively become involved in the

14 case in confronting witnesses, asking questions of the

15 co-defendants, the ultimate Ruling was that he could not

16 do it unless he does it through my mouth as his defence

17 representative. Again I would like to point out our

18 colleagues from the common law systems, I do not think

19 they have critiqued us. I just think they are pointing

20 to the differences within the legal systems and this all

21 points to the issue of the fair and just trial. Thank

22 you, your Honours.

23 JUDGE KARIBI WHYTE: Thank you very much, Ms. Residovic.

24 MR. MORAN: Your Honour, since I have almost an identical

25 motion coming up next, if I can talk that now, and we

Page 2753

1 could possibly save the Tribunal a little time.

2 JUDGE KARIBI WHYTE: You mean whether you are contributing

3 to this motion or you are moving your own motion?

4 MR. MORAN: Your Honour, it is essentially the same thing.

5 I think we can probably save a little time if we did

6 them together, or at least let me state my position,

7 help on this motion and at the same time save a bunch of

8 time on the next motion, rather than having to repeat

9 it.

10 JUDGE KARIBI WHYTE: You can combine them since they still

11 come to the same thing, although they might differ in

12 certain respects.

13 MR. MORAN: Your Honour, first I would adopt what Judge

14 Ackerman had to say with a couple of additions and

15 deletions.

16 The first thing is: Rule 73 provides that these

17 motions need to be filed within 60 days after the

18 initial appearance. One of the statements they want to

19 introduce was taken more than 60 days after the initial

20 appearance. Under that strict application of the Rule

21 you could never try to exclude it. So the Rule has to

22 have some flexibility there.

23 Secondly, we have talked about our Rules here

24 coming from different sources and they have, but they

25 did not just spring full blown. For instance, Rule 73

Page 2754

1 is very, very familiar to me as an American

2 practitioner, because it reads almost identical to

3 Federal Rule of Criminal Procedure 12, I believe. They

4 are almost copied from each other. The same thing with

5 Rule 42. The warnings in Rule 42 read a whole lot like

6 our warnings in the case of Miranda versus Arizona from

7 the United States Supreme Court. In fact, I am told,

8 although I have not read it, in response to a motion

9 from Mr. Delalic last year the prosecution cited Miranda

10 a lot of times and relied on Miranda. Now, with that

11 said, I will be real frank with the court as an officer

12 of the court. When I got here and found that Mr. Delic

13 had given a couple of statements, the first thing I did

14 was uttered an obscenity and just set it aside until

15 I started thinking -- talking to Judge Ackerman after he

16 arrived here a few weeks ago.

17 What we have is a situation where for one reason

18 or another apparently the former Yugoslavia adopted a

19 procedure where a statement made to the police -- by the

20 way, I think we need to draw a distinction between the

21 police and the investigating magistrate, who are two

22 different parties -- as I understand the law in the

23 Yugoslavia it has to do with a statement to the police

24 and not the investigating magistrate, which is a court

25 proceeding.

Page 2755

1 I don't know why the former Yugoslavia adopted

2 that rule. It probably has to do to some great extent

3 with the history of that country and the history of that

4 part of the world and possibly abuses of human rights

5 that occurred at some time in the history of Yugoslavia

6 and other Eastern European countries, but suffice to say

7 that that was the rule.

8 Sitting next to me is my good friend, my lead

9 counsel. He is a fine lawyer and I would not want

10 anybody to think that he was not a fine lawyer or that

11 I thought that he was not a fine lawyer, but the fact is

12 he was thrown into a situation involving a legal system

13 with entirely different procedures and, especially as it

14 applies to statements to investigators, something that

15 is entirely different from what he was used to.

16 Without violating the attorney-client privilege, there

17 is a statement by Mr. Delic attached to our motion that,

18 after consulting with counsel, he believed that the

19 situation was similar to that in the former

20 Yugoslavia. Now we attempted to get that sworn to, but

21 apparently the Registrar did not feel they could swear

22 him to that. He is willing to file that as an

23 affidavit.

24 With that said, I think we need to take a look at

25 the voluntariness of any kind of waiver of his rights

Page 2756

1 under Rule 42, and what is it, 66, the Rule having to do

2 with questioning of accused. Rule 63. Again I have

3 to dance around this a little bit because of the

4 attorney-client privilege and I do not want to violate

5 that. I think that Mr. Delic, if called upon for the

6 limited purpose of testifying as to this, would testify

7 consistent with his written statement.

8 Finally, without trying to even come close to

9 making a personal attack on my good friend Ms. McHenry,

10 as I understand it, each one of us here, as lawyers, are

11 bound by our ethical proceedings by our country, as our

12 licensing authority. So I am, for instance, bound by

13 what the Texas Supreme Court says is my ethical

14 obligations and Mr. Greaves would be bound by what the

15 ethical considerations would be in the United Kingdom,

16 etc.

17 Well, our American Bar Association has model rules

18 and those model rules have been adopted by just about

19 every state in the country. One of the things they

20 talk about is the duty of a Prosecutor. What they say

21 is that the duty of a Prosecutor is not to gain

22 convictions but to see that justice is done. Again I

23 am not trying to make an attack on anyone's ethics, but

24 at some point, when someone is obviously unfamiliar with

25 what is going on, either we have an obligation to say

Page 2757

1 "Time out", or what occurs on the other side of it is

2 we may have to take a look at the advice that was given

3 and to see whether that advice by an attorney is the

4 proper advice. If it is not, then we have to see what

5 the ramifications of that are. If the ramifications

6 were that a waiver is not a knowing, intelligent waiver,

7 then we have to deal with that. With that, your

8 Honour, unless the court has some questions, I think I

9 will just sit down and try to save the court -- like

10 I say, I am just trying to save the court a little bit

11 of time.

12 JUDGE KARIBI WHYTE: If you have other things to say, let

13 us hear it.

14 MR. MORAN: Your Honour, I am done.

15 MS. McHENRY: Your Honour, again first let me state that the

16 prosecution, myself included, but lead counsel and

17 everyone else certainly agrees that the prosecution has

18 a duty to truth and justice and not to gain a conviction

19 at any cost, but we do not believe that there is

20 anything here that suggests in any way, shape or form

21 that there has been any straying from that fundamental

22 principle, which is that the prosecution, both as

23 officers of the court, as officers of their own system,

24 and even as members of the Tribunal, have an obligation

25 to ensure that justice is done. That is certainly our

Page 2758

1 aim, and we have demonstrated in many ways and there is

2 nothing in this case which should cast doubt on that,

3 because in effect what the defence is saying is that

4 civil law attorneys, or at least attorneys from the

5 former Yugoslavia, are not competent to give proper

6 advice in this case, that they are not competent and

7 really that accused are not competent to waive their own

8 rights.

9 We think that is entirely incorrect. Had the

10 judges wanted to state in the Rules: "No accused can

11 ever give a statement because it is unfair", or: "No

12 accused can ever give a statement unless they first talk

13 with a US lawyer", or something like that -- they did

14 not.

15 The Rules state very clearly that an accused must

16 be informed of his rights, and that the accused must

17 knowingly and voluntarily waive those rights. We

18 believe that the record will show that was done in this

19 case. The fact that attorneys may have come and have

20 different strategy decisions which may or may not be

21 right even is not a reason to do it. I will also point

22 out, although certainly as Yugoslavia law, whatever it

23 is, is not controlling at this court, and there had been

24 some discussion whether or not this Tribunal should

25 adopt the Rules and Procedure of Yugoslavia and this

Page 2759

1 Tribunal has said: "No. We are going to adopt

2 fundamental rights which can be understood by anyone, no

3 matter what their system", and the Tribunal has done

4 this. Those rights were followed in all respects in

5 this case.

6 We do not -- I would also point out that the

7 rights, specifically with respect to the rights of the

8 accused, do not come from common law countries, although

9 they may be familiar to people from common law

10 countries, because we have similar things; they come

11 from the European Convention of Human Rights. So they

12 may also come from the US, but it is not as from the US

13 or England and even other common law countries. They

14 are unique. The fundamental rights come from the

15 European Convention of Human Rights, which apply in

16 European and most other countries.

17 Specifically with respect to Mr. Delic, let me

18 respond to that for one minute. I assume your Honours

19 have received our responses both to Mr. Landzo's and

20 Mr. Delic's, which were filed yesterday. If not, I can

21 go into our response in more detail, but in general we

22 do not want to just repeat everything we said in our

23 motion. With respect to Mr. Delic, as with respect to

24 Mr. Landzo, the issue is what constitutes good cause, and

25 certainly the prosecution would agree if a statement is

Page 2760

1 made 60 days after the initial appearance that could

2 constitute good cause, for instance within reason some

3 period of time close to when the statement was made.

4 The second statement of Mr. Delic, which was made

5 at his request, was made in January, in the beginning of

6 January. In fact, counsel, as he himself has conceded,

7 came soon thereafter in January, and had they wanted to

8 raise it then they could have. What has happened is a

9 new strategy decision has been made again without saying

10 what in the end would turn out to be best for the

11 accused -- I do not think anyone can know that now --

12 and so they have decided to try to argue good cause.

13 The asserted reason given in Mr. Delic's motion was a

14 ruling by this Trial Chamber that involuntary statements

15 are admissible. Without repeating everything, we do

16 not believe that this was a new finding by the Trial

17 Chamber. We believe that it is a fundamental principle

18 of law, and had Mr. Delic or any of the accused wished to

19 make a claim based on this statement, they could have,

20 and no one would have argued that the law was anything

21 other than that. So we do not believe that anything

22 they recently have constitute good cause.

23 We again, with respect to Mr. Delic, so the record

24 is clear -- both interviews of Mr. Delic were done in

25 full accordance with the Tribunal Rules of Procedure.

Page 2761

1 The accused and counsel were informed of all their

2 rights. This is all on the record. They were

3 specifically told this statement could be used in

4 evidence. If there were any questions,

5 misunderstandings, confusion, they could have been

6 asked, they could have been followed up, but they were

7 not, because the accused and his counsel voluntarily

8 chose to waive them.

9 We point out some specific facts in our motion

10 such as even by the time of the second interview the

11 prosecution had already told the accused that they would

12 use his statement in evidence against him. That had

13 already been done, and we believe that there cannot be

14 any credible showing that Mr. Delic's statement was

15 anything other than voluntary, knowing and

16 intelligent. Excuse me, your Honours.

17 My civil law colleagues also just state that it is

18 not incorrect in most civil law systems that the accused

19 is expected to talk and it is not true that the accused

20 can decide whether his statement will be used or not,

21 and that the statements also made to the Prosecution

22 here should not be compared with statements given to the

23 police in civil law countries. Thank you.

24 MR. MORAN: Your Honour, a couple of quick things in

25 response. First, I think that the court will, if it --

Page 2762

1 will hear some evidence from Mr. Mucic that he was given

2 some warnings by a Magistrate in Vienna that essentially

3 said: "If you don't make a statement to the police,

4 things are going to go hard on you." Austria is a

5 common law country -- excuse me -- civil law country.

6 Secondly, it has been my experience, and I have a

7 case involving my law firm that was just delivered to me

8 Monday which supports this, that when there is a mistake

9 by a lawyer and that mistake affects the trial, the

10 courts tend to try and go and fix it.

11 The case I am thinking of is a case on May 1st of

12 this year where a Federal Judge in my jurisdiction

13 vacated a death sentence on one of our clients because

14 the trial lawyer did not understand the application of

15 the law in his trial in 1982 -- I believe it was 1982.

16 I am willing to provide a copy of the Decision to the

17 court. It is in my hotel room. I can go over at lunch

18 and get it copied. What we are asking for is a chance

19 to show if there was a misunderstanding of the law on

20 the part of counsel and whether that misunderstanding of

21 the law led my client to waive, and that is in

22 parentheses, rights, not understanding what they were.

23 If there was, in fact, this misunderstanding of the law

24 and if, in fact, that was a material part of the

25 proceeding -- caused a material effect in the

Page 2763

1 proceeding, then we can fix it. We can fix it now.

2 We do not have to wait -- in the case of my client this

3 means fifteen years -- to fix it. We can fix it right

4 now. Thank you, your Honour.

5 JUDGE KARIBI WHYTE: Actually when we concluded in the

6 Mucic case and subsequently applications came tumbling

7 in, actually I thought it was understood that what was

8 being discussed in each case was whether a statement

9 made by a suspect under certain conditions of coercion,

10 fraud or force could be rejected on those grounds.

11 This was, I thought, the common law Rule. If that was

12 the case, these factors have to be tried, and the

13 prosecution which took the statements has to justify

14 that there was no such coercion or fraud. This is the

15 understanding in the common law world about trying a

16 statement which has been tainted with these vices.

17 What I now hear, what is being submitted to the

18 Trial Chamber, are matters going beyond a question of

19 the validity of the statements themselves which were

20 voluntarily made. What is being argued is the motive

21 for the voluntariness, why it was voluntary. That is

22 quite a different matter from whether, in fact, anybody

23 induced the accused or suspect to do certain things. I

24 do not know. This might be a new aspect of it all, but

25 I think it is fairly different from the general rule.

Page 2764

1 I admit the contention and especially when you talk

2 about the position of the prosecution. At least those

3 who come from the common law experience, and I hear

4 Mr. Christmas Humphries, as he put it, wanting justice

5 first, justice second, conviction a very bad third,

6 I think this is what everybody wants. Nobody goes at

7 conviction as a major factor. It should be what the

8 facts themselves disclose.

9 From the arguments which we have heard you are

10 going beyond the question of whether these witnesses

11 were induced to give this evidence or were coerced to

12 give these statements. They are quite different

13 things. I do not know. We still have to rule on the

14 matter despite what it is. It might be fairly

15 difficult to talk about the question of voluntariness

16 outside the grounds on which it has now been raised,

17 because what Judge Ackerman has been stressing is

18 perhaps the suspect did not have the best advice, so he

19 was unable to give the best opinion which enabled him to

20 exercise his choices.

21 This is what I understand it to mean. If he had

22 got the best advice or the appropriate advice, he would

23 have exercised his options properly. He would not have

24 made the statements as he has done. It appears that

25 Mr. Moran is not too far away from that same approach.

Page 2765

1 That is what their clients understood from their

2 background, and what they were familiar with was quite

3 different from what we call it, and the result is they

4 were making decisions unfamiliar with what they were

5 required to do.

6 Now I do not know how the Rules could have known

7 and then particularly allowed every accused person to

8 carry his own law around him. It was not so done.

9 What the Rules state was to formulate a general rule

10 which could be applicable to everybody who came before

11 the Tribunal, or who is affected by the exercise of

12 jurisdiction by the Tribunal. This is what they convey

13 and this is why we have our provisions even up to Rule

14 95, allowing evidence which was obtained improperly

15 under current international law to be retracted, if it

16 became necessary. That is quite different from whether

17 the evidence itself was voluntarily made. It could be

18 voluntarily made but it could be excluded if it

19 contravened all the internationally made human right

20 provisions. That is a different thing. (Pause).

21 Gentlemen, I think we will give a Ruling when we

22 come back after the break. So we will now hear counsel

23 for Mucic.

24 MR. GREAVES: Your Honours, what I have got to say is -- I

25 am sorry. My learned friend has popped up. She

Page 2766

1 plainly has something urgent to tell us.

2 MS. McHENRY: Your Honour, if it is the case that Mr. Greaves

3 is going to speak to the actual motion about these

4 statements, I would just state that the prosecution has

5 not responded in part because it goes into details about

6 what happened in Austria and Austrian law, and we

7 anticipate that we will be able to have a full and

8 complete response by the end of this week, and we do not

9 believe that it is necessary for this Chamber to decide

10 Mr. Mucic's motion at this moment. We are -- after

11 witness O we are going to have a witness who, because of

12 the -- one, because of the severe allegation made, we

13 want to clarify at least one part of what happened,

14 which is what happened -- what the Office of the

15 Prosecutor did, but with respect to the full evidence

16 about this, including subsequent events and even

17 potentially what happened with respect to the Viennese

18 authorities, that may require a little time. So

19 obviously we will respond as much as we are able to

20 whatever Mr. Greaves says about that issue, but with

21 respect to our full response, we would be requesting at

22 the minimum to supplement our response later on. Thank

23 you.

24 JUDGE KARIBI WHYTE: Actually, my understanding, and

25 I think it is the correct law, is when such an

Page 2767

1 allegation has been made about certain things done to

2 his client, it is for you to justify that those things

3 have not been done. All the evidence necessary to show

4 us that the witness made his statement voluntarily, he

5 was not induced to do it, will be produced by you, and

6 all counsel needs to do is to cross-examine you to show

7 that it was not voluntary.

8 MS. McHENRY: Yes, your Honour. I was not disagreeing with

9 that or that procedure. I was just saying with respect

10 to certain -- and I was not suggesting that he was

11 obligated to put on evidence about this matter.

12 MR. GREAVES: Thank you. The matters raised by my learned

13 friend bring me to the end of what I was going to say

14 first rather than later. If I can explain this: the

15 contention that we have is that the process by which

16 certain oral statements were procured from the defendant

17 Mucic by the Office of the Prosecution are affected not

18 just by allegations that I have to make to OTP

19 investigators but by the whole of what had happened from

20 the moment of his arrest on 18th March, and that

21 involves the procedures of the Austrian Police and the

22 Austrian courts, and then the sudden switch from the

23 procedures and rights advised to him by the courts there

24 -- the sudden switch to the procedures of the Rules of

25 Procedure and Evidence that are applicable to interviews

Page 2768

1 by the officer of the prosecution under rules 42 and

2 43.

3 So the position is this, and I have tried to

4 explain this to the prosecution, and I fear that they

5 have not understood it. As your Lordship will recall,

6 I addressed you last week on what I considered, and

7 I hoped was going to be taken on board, the appropriate

8 way in which to adduce evidence and for the issue of the

9 admissibility of these statements to be tried by your

10 Honours. The only way in which your Honours are going

11 logically to be able to understand the points that are

12 raised by the defendant Mr. Mucic, and I on his behalf,

13 are by hearing the case, the evidence, in proper

14 chronological order.

15 If the prosecution call Mr. Abribat and Mr. d'Hooge

16 out of order before the Austrian police officer, your

17 Honours are not going to understand this motion for a

18 moment. It is simply going to be completely

19 incomprehensible. I say that because I spent yesterday

20 in the City of Vienna in the company of distinguished

21 lawyers of the Austrian Bar.

22 Firstly, there are matters of law that are going

23 to have to be placed before your Honours, and I say to

24 the prosecution now I anticipate, I hope, being able to

25 designate an Austrian lawyer as an expert witness, who

Page 2769

1 can assist your Honours, because you are going to need

2 assistance as to what Austrian law is and what rights

3 are accorded to persons who are arrested and accused, so

4 that your Honours may better understand the state of

5 mind of the defendant and also apply Rules 89D and Rule

6 95. Without hearing such evidence, your Honours are

7 not going to be able to rule properly on this motion, a

8 motion which is based both in law and in fact.

9 Secondly, there are two witnesses as to fact whom

10 I have discovered. I have not yet had an opportunity

11 to take from either of those witnesses a witness

12 statement in connection with matters which took place in

13 Vienna. Until I am in possession of such a statement,

14 I am not in a position to cross-examine properly either

15 Mr. Abribat or Mr. d'Hooge. There will be matters -- it

16 may be neither of those witnesses helps me, but until

17 I know what the position is, I simply cannot properly

18 advance the case for the defendant.

19 Thirdly, this morning I know -- and I am not

20 criticising the prosecution in any way -- it was by

21 mischance that material was placed in the wrong locker

22 for the court for me. I can hold it up for your

23 Honours to see. (Indicating). It is that thick. It

24 concerns events that took place at Vienna. Although

25 much of it was translated, it was given to me shortly

Page 2770

1 before your Honours came into court this morning.

2 I simply have not had time to digest or understand what

3 is contained in here or consider the implications of

4 these documents and what implications they may have for

5 my motion that I have placed before the court. It may

6 be that I would have to either amend or add to the

7 motion to make it more comprehensible for your

8 Honours.

9 The next matter is this, and I now return to where

10 I started, it is the proper procedure for determining

11 the admissibility of Mr. Mucic's statement to the

12 Austrian Police and the statements which he made to the

13 Office of the Prosecution. There has been some

14 discussion in previous motions as to the way in which

15 one holds a voir dire. I am sure that both your

16 Honours, who come from common law jurisdictions, will

17 recall the procedure in trials for those before your

18 Honour's courts in practice and as members of the

19 judiciary.

20 When an issue of admissibility is raised, the

21 usual procedure in the common law jurisdictions, and I

22 am sorry to harp on about common law jurisdictions to

23 the disadvantage of my civil law colleagues across the

24 way, but I hope you will bear with me for a moment, the

25 procedure is this: when the prosecution seeks to

Page 2771

1 adduced contested evidence, evidence that is contested

2 as to its admissibility, it should call that evidence

3 and hear cross-examination of its own witness. There

4 is then an opportunity, if so advised, for the defence

5 to call evidence, and it is called a trial within a

6 trial. So it is a trial of an issue , to call evidence

7 on his own behalf as to what took place.

8 That is the procedure that I urge on the court as

9 being the most expeditious and fair way to dispose of

10 this matter. I say that because my submission to the

11 court is this: the only way in which this court can

12 properly and justly determine the issue of admissibility

13 is to hear the prosecution's witnesses on this issue in

14 a proper and logical order; otherwise your Honours are

15 simply going to be left in the dark. If your Honours

16 are left in the dark, my client is not going to get

17 justice.

18 My submission to your Honours is that I know the

19 prosecution are anxious to get on with their evidence,

20 but I have noted in one of the motions or documents that

21 has been served through the court this morning that they

22 are keen for this evidence to be heard as soon as

23 possible. I ask this question: what is the hurry? Why

24 do we need to hurry this procedure? I have raised what

25 is a prima facie and serious matter. The prosecution

Page 2772

1 seem determined that it should be heard with unseemly

2 haste.

3 I would respectfully suggest to your Honours that

4 you must now control the adducing of this evidence in a

5 way that is just and proper and is best designed to

6 assist your Honours to determine the issue fairly and

7 properly, both in the interests of the defendant and,

8 let me say it, in the interests of the prosecution. I

9 am not sure that they have understood the help that

10 I have tried to give them, and help I have tried to

11 do. It is not in my interest to try to pull a trick on

12 them or a fast one in any way. I have tried to help

13 them to understand how to do it in order for you to

14 determine it, and it may be you determine in the

15 prosecution's favour. I know not.

16 Unless it is done properly, a serious triable

17 issue is going to be tried badly and unjustly. My

18 submission is quite clear: this matter should not be

19 heard now. It should be heard in its proper way by the

20 court.

21 I support what is said about the question of

22 Austrian law and it is plain that this matter in its

23 totality has not been prepared either by the prosecution

24 or by myself. I make that quite plain. Some of the

25 advice I was given yesterday by an Austrian lawyer is in

Page 2773

1 German. Amongst my many accomplishments is not a full

2 knowledge of the German language I have to tell you.

3 So there are documents in German I have to have

4 translated and upon which I have to get advice from

5 someone who is qualified to give it, namely an Austrian

6 lawyer. I am simply not in a position to advance this

7 motion on the defendant's behalf properly, and I would

8 ask your Honours to say that this matter should be put

9 back so that a proper timescale can be achieved for it,

10 so that it can be tried properly and justly in the

11 interests of both this court and the interests of the

12 defendant and in the interests of the prosecution.

13 MS. McHENRY: Your Honour, may I respond to that? The

14 prosecution is not proceeding with unseemly haste. To

15 the contrary, we have a situation where the accused's

16 defence has made a very serious allegation about the

17 voluntary nature of his client's waiver, some of which

18 may have to do with exactly what happened in Austrian

19 proceedings and it may, although we will not concede

20 this point, it may -- at least the defence may want to

21 bring some specifics of Austrian law which we are not

22 familiar with, and I, in fact, believe will argue are

23 not controlling, but he has not argued them.

24 He has also made an allegation about the conduct

25 of the Office of the Prosecutor. It is the case that

Page 2774

1 the Office of the Prosecutor does want to act with haste

2 to get that issue clarified, so that there is no

3 allegation -- so that the evidence supports that the

4 Office of the Prosecutor has not acted improperly or

5 unfairly. I understand that this issue -- that all of

6 this issue may not be resolved immediately, but the

7 prosecution has at great trouble, given this allegation,

8 brought in the Chief Investigator who was in Vienna, who

9 will not be able -- he is not an expert on Austrian

10 procedure and Austrian law and he may not know all

11 that. Certainly he will be able to testify about what

12 the Office of the Prosecutor did and how they handled

13 themselves and show that the Office of the Prosecutor

14 acted properly and fairly in all respects.

15 He is no longer with the Tribunal. He flew in

16 this morning. He has to fly out again tomorrow. We

17 wish to call him today after witness O, who also has his

18 own scheduling problems, and if it is then necessary for

19 the Chamber -- for the defence to recall him at some

20 later time, of course that can be done, but what he has

21 information about is what happened with respect to the

22 Office of the Prosecutor. We wish to present that

23 evidence. We believe it is the right of the

24 prosecution to determine the manner in which it calls

25 its witnesses, subject to supervision by your Honours,

Page 2775

1 and we very much appreciate the advice given by

2 Mr. Greaves concerning how we should conduct our case,

3 and, like certain decisions, it may turn out not to be

4 correct, but it is our considered opinion that we wish

5 to dispel any notion immediately that the Office of the

6 Prosecutor has acted improperly, and we wish to

7 immediately call after witness O Mr. Abribat.

8 If your Honours later decide that it is necessary

9 for your understanding to call him back again, or the

10 defence decides to do that, of course that is

11 possible. We do not anticipate that it will be

12 necessary, but if it turns out that we were wrong, there

13 is, in effect, no harm done, and we believe it is our

14 right, even our duty, to clarify the matter as soon as

15 possible, given the allegations made by defence

16 counsel.

17 JUDGE KARIBI WHYTE: This is a matter between the two of

18 you, the prosecution and the defence, and I think the

19 burden is greater on the part of the prosecution, whose

20 duty it is to prove that the statement they took was

21 voluntary. So in every case you have to liaise with

22 the defence to know how you organise the arguments.

23 MR. GREAVES: Can I say this, your Honour: if my learned

24 friend calls Mr. Abribat shortly, I shall apply for an

25 adjournment. I am not fully in possession of the

Page 2776

1 information I need to cross-examine him, and it is going

2 to waste your Honours' time, in my submission. I can

3 well understand the prosecution do not like allegations

4 being made about the conduct of their investigators, but

5 in the real and robust world such allegations are

6 frequently made in courts all over this continent and on

7 other continents, and they are allegations which do not

8 get tried for quite some time.

9 It does not affect the integrity of the

10 prosecution in any way, that one small part of their

11 operation is called into question, and I do not suggest

12 in any way that the allegations I have to make impugns

13 other investigators who are not concerned with my client

14 or any members of the prosecution team. So the desire

15 to remove this alleged stain with the haste that is

16 being proposed is one which is not necessary to do.

17 This issue must be tried properly and must be tried by

18 the case being placed before you in proper order, so

19 that you can understand it.

20 You will have to trust me. Hearing this evidence

21 out of order and in the way that you are being invited

22 is going to make it impossible for you to understand

23 what is going on. I cannot, with the greatest of

24 respect to my learned friend, see what the urgency is.

25 There is no proper justification, in my submission, for

Page 2777

1 hurrying this important issue. I was only aware,

2 although it was at my invitation, when I arrived at

3 court that Mr. Abribat had been placed on the

4 prosecution's witness list. I do not object to him

5 being on the list, but it was perhaps unfortunate that

6 the prosecution have chosen to fly him in specially in

7 the knowledge of what I had suggested to them and what

8 my likely response was to be, as it has been this

9 morning, to the proposition that he should give evidence

10 straightaway. In my submission it was premature of

11 them to fly him in and unwise, but they may need to

12 reflect on that.

13 I revert to my principal submission, which

14 I invite your Honours to consider, and I would

15 respectfully say that in the interests of justice, and

16 that is, after all, why we are all here, your Honour

17 should adopt the propositions that I have placed before

18 you as to the proper conduct of this case. Of course

19 my learned friend says it is up to the prosecution in

20 very large part to determine how and what evidence they

21 call, but at the end of the day the residual discretion

22 lies in this Honourable Tribunal to control its own

23 proceedings, control its own proceedings so that the

24 persons sitting on that Tribunal, your Honours, can

25 properly try the issues laid before it. That may

Page 2778

1 require the giving of directions by this court as to how

2 and when a particular issue will be tried. That is a

3 process that I am sure all of your Honours are familiar

4 with, and it is a process which I respectfully invite

5 your Honours to say is appropriate for the proper

6 determination of the serious issue that I have raised,

7 and I invite your Honours to accept the propositions

8 that I have placed before you.

9 JUDGE KARIBI WHYTE: Mr. Greaves, do you not think that at

10 the time you were making the allegations you were

11 cognisant with the facts to support such allegation, so

12 that if anyone was brought before you for trying those

13 statements, then you would be able to justify them?

14 MR. GREAVES: I thought I had in my possession 100 per cent

15 of the facts. It was only as a result of going to

16 Vienna yesterday that I became aware of some completely

17 new matters.

18 JUDGE KARIBI WHYTE: Okay.

19 MR. GREAVES: Although I have spoken to the partner of a

20 lawyer who may or may not be able to be a witness as to

21 facts, I have not actually spoken to that actual person,

22 because he was in Salzburg dealing with a matter of

23 considerable importance of his own in his own

24 professional conduct. The simple answer is, since last

25 speaking to your Honours, I have become aware of other

Page 2779

1 things, and it is for that reason that I have made this

2 application today.

3 JUDGE KARIBI WHYTE: We will consider how best to deal with

4 it.

5 MR. GREAVES: Thank you.

6 JUDGE KARIBI WHYTE: I think the Trial Chamber will rise

7 now and reassemble at 12 o'clock.

8 (11.35 am)

9 (Short break)

10 (12.10 pm)

11 JUDGE KARIBI WHYTE: We will start with our Ruling on the

12 two motions. I think we will take them together, since

13 ideally the same conditions are applicable to them.

14 We have reviewed the motions themselves and

15 discussed amongst ourselves. The Trial Chamber will

16 give a more reasoned Ruling later, but for now we are

17 satisfied that the procedural requirements for admitting

18 these statements were not violated and therefore they

19 could be admissible at this stage. Now whether the

20 parties actually tendering the statements met the

21 substantial requirements about the validity themselves

22 can be raised and challenged, but as statements for what

23 happened at that time they are clearly admissible. As

24 I said earlier, the basis for going to -- trying a

25 statement has not been established. None of the

Page 2780

1 grounds which have been put forward before us suggested

2 any fraud or coercion or force in the obtaining of the

3 statements, but whether those statements meet the

4 standards required is a different matter. I think that

5 is all for now.

6 JUDGE JAN: At the end of the trial, when the entire

7 evidence is before the Tribunal, it will be open to the

8 defence to argue that these statements should be

9 excluded from consideration as the safeguards provided

10 in the Rules have not in substance been complied with.

11 JUDGE KARIBI WHYTE: Yes. Can we hear you, Mr. Ostberg?

12 MR. OSTBERG: Thank you. Yesterday, your Honour, we filed

13 a motion on protection for a person formerly named.

14 I asked for him to be given the pseudonym of Mr. O.

15 I would now like to call this witness and ask for your

16 Honours to rule on our request for protection before I

17 do so.

18 MR. MORAN: Your Honour, we were served with this some time

19 after -- I received it some time after 9 o'clock this

20 morning in a stack of documents. I have seen the name

21 witness O about three or four times spread through these

22 documents and nobody has bothered to tell me who the

23 heck witness O is. I would really like to know that.

24 MR. OSTBERG: That, of course, I cannot do in open court.

25 If we enter private session, I will immediately tell

Page 2781

1 everybody who it is.

2 JUDGE JAN: But have you not given the defence earlier the

3 material, the particulars identifying the witness?

4 MR. OSTBERG: I have indeed, your Honour. The question is

5 that when this witness appears in The Hague and I meet

6 him, he asks and gives reasons for asking for

7 protection, and I could not say no to such a

8 proposition, and that is why I filed this motion.

9 I could not have done it earlier, because I was not

10 informed of his concerns about his security until he

11 arrived in The Hague. So there has been no other way

12 for me to do it, and I cannot even apologise to the

13 defence for the late disclosure of this thing, because

14 I had no idea myself before.

15 JUDGE KARIBI WHYTE: In all seriousness did you ever try to

16 speak to the defence about it, knowing the sudden way in

17 which you are springing him?

18 MR. OSTBERG: Just a moment. (Pause). I am informed from

19 my case manager that yesterday every defence lawyer,

20 lead defence lawyer, was informed over the phone of

21 this, but we were not able to reach Mr. Karabdic. That

22 is why I have the objection of Mr. Moran, I suppose, but

23 we tried twice.

24 JUDGE JAN: But you know the identity of the witness and

25 you know the substance of the evidence which the witness

Page 2782

1 is going to give?

2 MR. MORAN: Your Honour, before the break Ms. McHenry

3 mentioned a title that attached to witness O, and that

4 gives me a hint, and if it is who I think it is, there

5 is two problems. One was at 9.45 -- we had had five

6 pages of statement from this witness. At 9.45 this

7 morning I was handed a total of fifteen pages, which

8 included five pages with some big black X marks on it.

9 Secondly, if it is the witness that I think it is,

10 I have filed a motion which may need to be marked

11 confidential, because his name is in it, an objection to

12 appearance of undesignated expert witnesses. If it is

13 the person I think it is, in the material I was handed

14 this morning there is a lot of things in Latin, having

15 to do with medical diagnoses, and frankly, judge, high

16 school was a long time ago. My Latin is not nearly as

17 good as it was then and it was not very good back

18 then. I have got ten pages' worth of things I have

19 never seen before in my life. It is possible that

20 these things were served in Bosnian on the Bosnian

21 lawyers, but I do not speak Bosnian at all.

22 JUDGE JAN: What you are really asking is not that the

23 identity should not be disclosed or the evidence should

24 not be taken in public, but that his evidence should not

25 be recorded at all today, because you are not prepared?

Page 2783

1 MR. MORAN: Well, your Honour, there are two things: one,

2 the Trial Chamber on January 25th of this year entered

3 an Order on expert witnesses, which I am prepared to

4 argue. Basically what it said is you have to get a CV,

5 you have to tell us what it is about, that kind of

6 thing. We have complied with it. There is a

7 provision for good cause which we have actually filed a

8 motion on. The Trial Chamber has not ruled on it yet

9 but something came up during the trial. We need an

10 expert. We gave as much notice as we could. I think

11 that you have to draw a distinction between a fact

12 witness and an expert witness; an expert witness is

13 giving opinions, testifying because of special

14 expertise, and a fact witness, who says: "I saw this".

15 These people -- as I recall, there were only two

16 people that were designated as expert witness. The one

17 was Dr Calic and the other one is a Dutch general, whose

18 name escapes me at the moment. Just because someone is

19 a professional person does not necessarily mean he is

20 going to be giving opinion testimony or he is going to

21 be testifying from special expertise. If this person

22 -- and it appears from the documents that I was handed

23 this morning that he is going to be testifying

24 concerning special expertise based on his training and

25 experience -- we would like to know who the heck this

Page 2784

1 man is. I would like to run him through some computers

2 to see if he has ever published anything, that kind of

3 thing, your Honour.

4 JUDGE JAN: He is an expert witness.

5 MR. OSTBERG: I have the answer to all of this, your

6 Honours. We do not consider him an expert witness.

7 He appears on our witness list, where we do include his

8 name, as number 12. Under number 12 he is named for the

9 defence and also the court is put on notice as to what

10 he is going to testify to. As to the knowledge of the

11 defence lawyers, I am utterly surprised, because defence

12 was given a full set of what he is going to talk about

13 in the court on dates which I can specify, and everyone

14 got notice of it in due time during 1996, and everyone

15 received a full set of what it is all about, everyone

16 but Mr. Karabdic, who instead inspected them on 25th July

17 1996. English translations, they were given in

18 original -- copies of the original, and English

19 translation was received in full sets on 4th March 1997

20 to Mr. Karabdic,. Mr. Brackovic received a full set on

21 19th February 1997. Mr. Tapuskovic never asked for a

22 translation but was put on notice what it was and knew

23 what it was. Mme Residovic received nine reports which

24 were then being translated but had before been given a

25 full set of it in Serbo-Croatian, which is the language

Page 2785

1 of her own and her client.

2 So the prosecution has done everything that it

3 could possibly do to give the defence notice of what we

4 are going to do here. As a service to the defence

5 lawyers, we have now provided them with a list in

6 English of all the things I am going to ask the witness

7 about, to be provided to them maybe today. This is to

8 be looked on as a clear service. All disclosure asked

9 for in the Rules has been provided in due time. So I am

10 stunned about this objection. I cannot understand.

11 MR. MORAN: Your Honour, I would be happy to show the Trial

12 Chamber, one, what I had in my file relating to this

13 person I think is witness O as of 9 o'clock this

14 morning, and then what I was handed at 9.45. I have

15 got them both in my hand. One is a five-page

16 document. One is a fifteen-page document. If I was

17 given just a partial one, then I do not know quite what

18 to say. The fact is that looking at page 5 of the two

19 sets of documents, they are not identical in that page 5

20 that I have, the older one, as the Trial Chamber can

21 see, has just one notation on it, and the one that I was

22 handed this morning, as the Trial Chamber can see, has

23 two. Even if there is some kind of mistake in copying,

24 there is something wrong with this picture.

25 MR. OSTBERG: There is nothing wrong with them. They are

Page 2786

1 just put together in another order. The translations,

2 some of them has been improved, I suppose, but the

3 originals are in Serbo-Croat. The person to be

4 examined in this court is to be examined in that

5 language. He has written in his own language. We

6 have speakers of this language sitting on the defence

7 bench. There can be no misunderstanding whatsoever.

8 MR. MORAN: Your Honour, the last time I looked at the

9 Statute, the two official languages of this Tribunal are

10 English and French. Serbo-Croatian is not one of

11 them. As I pointed out, I speak absolutely no

12 Serbo-Croatian, read less, and the fact that something

13 was served in Serbo-Croatian I do not know complies with

14 the Statute and the Rules.

15 JUDGE KARIBI WHYTE: But you are a member of a team.

16 MR. MORAN: That is true, your Honour, and I will happily

17 stipulate that my lead counsel is quite fluent in

18 Serbo-Croatian.

19 JUDGE KARIBI WHYTE: Yes.

20 MR. MORAN: One other thing is this morning at about

21 9 o'clock I received a change in order of witness list,

22 which apparently changes the order in which this

23 particular witness was going to appear. We were

24 expecting, when we left here on Thursday, the next

25 witness to be Bart d'Hooge, and I walk in this morning

Page 2787

1 and find, on somebody else's desk, I might add -- it was

2 put in somebody else's box by accident and handed to me

3 after 9 o'clock this morning -- a motion to change the

4 witness list. At some point if we are going to require

5 witness lists and we are going to require that people

6 have notice of when witnesses are going to appear so you

7 can prepare for cross, you have got to have some time to

8 do it.

9 MR. OSTBERG: I have an observation to that too, your

10 Honour, if I may. I am certain that the prosecution --

11 the defence will experience when it comes to the defence

12 case the same logistic and other problems we cope with

13 every day. This makes it necessary when bringing in

14 witnesses from other parts of the world to try to put

15 this together in a feasible way not to interfere all too

16 much in their professional or private life. So we have

17 to, and you will do that in the same order when time

18 comes -- we have to do changes in our witnesses.

19 I cannot help it, your Honour, even if we try hard to.

20 MR. MORAN: There is no right for the defence to follow a

21 witness list as I understand it under the Procedures

22 adopted by this Trial Chamber. We can call witnesses in

23 any order we want. There was, however, an order

24 entered, I believe on 25th January, and do not hold me

25 to that, about witness lists and the Prosecutor.

Page 2788

1 MS. McMURREY: Your Honour, if I might add for Esad Landzo

2 at this point that we did only actively and

3 constructively receive notice of the change of the

4 witness schedule this morning at 9.45 before court

5 resumed. We attended this proceeding today thinking

6 that the next witness was going to be Bart d'Hooge

7 instead of witness number O, and it will highly

8 prejudice this case if we are expected to perform and be

9 prepared to cross-examine a witness that we were not

10 expecting for several days from now at this point.

11 Also, the changing of the witness list is one thing, but

12 the protection of this witness that they are seeking

13 I believe requires a hearing on this.

14 At this point if the prosecution insist behind

15 closed doors, because we have no reason to suspect why

16 this person, who we are still not sure who it is -- we

17 have never been notified exactly who Witness O is at

18 this point -- we have never received notice of who

19 Witness O is according to this document that we

20 received. It just says "Witness O". Other than what

21 Ms. McHenry -- the clue she gave us this morning -- we do

22 not know who that person is. So according to the

23 schedule that we appeared on today, we were expecting

24 Bart d'Hooge to be the next witness. All of a sudden

25 Witness O is brought in to testify today. We are

Page 2789

1 caught by surprise and will not be prepared to

2 cross-examine that witness if he is allowed to go out of

3 order today. Thank you.

4 JUDGE JAN: But are you not aware of the identity of

5 Witness O?

6 MS. McMURREY: No, your Honour. We have never been

7 provided with the knowledge of who Witness O is.

8 MR. OSTBERG: Lead counsel for Mr. Esad Landzo was informed

9 yesterday at 2 o'clock.

10 JUDGE JAN: But you have not given any information with

11 regard to identity of Witness O to the defence is what

12 I hear from Ms. McMurrey.

13 MR. OSTBERG: Yes, informed of the identity of -- I think

14 maybe -- we are talking about Mr. Brackovic, who is still

15 the lead counsel for Mr. Esad Landzo, as far as I can

16 understand. He told us at 2 o'clock yesterday that he

17 was going to tell Mr. Ackerman. What happens by way of

18 that I do not know, of course, but we try to do our best

19 to give you all the information you may need.

20 JUDGE KARIBI WHYTE: Now bearing all that in mind, are you

21 prepared to argue the question of the protection? . If

22 you are, then --

23 MS. McMURREY: Yes, your Honour, we would be happy to argue

24 the issue of the protection, but we are not prepared at

25 this moment to go forward with the cross-examination of

Page 2790

1 a witness who we are caught by surprise on.

2 MR. OSTBERG: I maintain, your Honours, to say that we are

3 not doing this on surprise. We have had this witness

4 on the list as number 12. We have informed them

5 yesterday that he has asked for protection and divulged

6 to the lead counsel who he is. I am quite prepared to

7 go into a hearing about the protection which he has

8 asked for, which for my part consists of the concerns

9 that he gave me when he met me the day before yesterday,

10 and then I immediately filed a motion. I feel an

11 obligation to protect the witnesses we call before the

12 Tribunal.

13 MS. McMURREY: We are not contesting maybe there is a valid

14 reason for protection. What I would like the record to

15 reflect and the Trial Chamber to understand is if

16 Mr. Brackovic was given notice yesterday, it may be

17 constructive notice for us, but we did not receive

18 actual notice of this change in the schedule until 9.45

19 this morning.

20 MR. OSTBERG: I think, your Honour, Ms. McHenry has some

21 information to add to this which I have not been

22 provided with.

23 MS. McHENRY: Because I am sitting down and I can look at

24 the documents, I just want to point out it is the case

25 on the modified witness list Mr. Bart d'Hooge was the

Page 2791

1 next witness and the witness after that was this

2 witness, Witness O. It is always going to be the case,

3 as my counsel has said, that there is going to be some

4 change in witnesses because of availability. The fact

5 that this witness has now been moved up one position, I

6 do not think that defence counsel could say they could

7 never be prepared to cross-examine. On behalf of all

8 the prosecution, we will state that we are sure that

9 this is not the last time this is going to happen. It

10 is an incredibly difficult situation -- Mr. Turone knows

11 more about it than I do -- to try to get the witnesses

12 here. We act in good faith. We tell the defence

13 attorneys as soon as we know. The fact that someone

14 has been moved up one spot versus the other we do not

15 believe can be any grounds for defence counsel to argue

16 they are unprepared.

17 JUDGE KARIBI WHYTE: Yes, Mr. Ackerman?

18 MR. ACKERMAN: Your Honours, I am certainly prepared at this

19 point on behalf of Mr. Landzo at least to accede to a new

20 Rule, that new Rule being from this day forward we

21 implicitly have notice from the prosecution that they

22 may call any one of the next two or three witnesses so

23 we can be prepared for as many as two or three at a

24 time. It is not my understanding that that had been

25 the Rule up to this point. Whether or not we should

Page 2792

1 have had notice, whether or not we should have known is

2 really beside the point.

3 The position we are in right now is we are not

4 prepared to conduct the cross-examination of this

5 witness today. We have just been handed a significant

6 amount of material just this morning at 9.45 regarding

7 what this witness did. The witness obviously, now that

8 he has been identified to us, is a doctor who conducted

9 medical examinations and is apparently coming here to

10 testify about the results of his medical examinations.

11 Now how that cannot be an expert witness I have no idea,

12 because were it not for his medical training, he would

13 not be permitted to testify about the medical opinions

14 that he has given here. So by definition he is an

15 expert. We have not had the proper designation of this

16 witness as an expert witness.

17 So I have a proposal for the Trial Chamber: first

18 of all, that the Trial Chamber make whatever decision

19 the Trial Chamber might think is appropriate regarding

20 the failure to designate this witness as an expert

21 witness; second of all, that we adjourn the proceedings

22 until 10 o'clock in the morning, when they can go ahead

23 and put on their witness. By that time if the witness

24 is going to be called, in spite of the fact they failed

25 to designate him as expert, then we can be prepared not

Page 2793

1 only for that witness certainly but for the two

2 following on the list.

3 MS. RESIDOVIC (in interpretation): May I ask your Honours

4 to rule also on the fact that our learned colleague,

5 Madame McHenry, referred to. Is it possible for the

6 defence to be informed of a change in the list of

7 witnesses by telephone on the eve of the testimony of

8 the witness? Ms. McHenry said previously that the

9 prosecution wanted to ensure a fair trial. Information

10 given by telephone at 4.00 pm on a Sunday for

11 preparations for the cross-examination of a witness who

12 was previously put on the list in my view does not

13 contribute to that goal.

14 I therefore also ask the Trial Chamber to rule

15 particularly because we have been told there will be

16 more such cases in the future. I think that we need to

17 know exactly the position of the Trial Chamber, that is

18 that no changes can be made in the list of witnesses

19 within such a short time period that will put them in a

20 position not to be able to carry out the

21 cross-examination. Thank you.

22 MR. GREAVES: I wonder whether I can add something? I was

23 in Vienna yesterday. The knowledge that this witness

24 was to be called this morning arrived in my little brain

25 at about 9.30 this morning. Shortly after that this

Page 2794

1 document was brought in by the representative of the

2 prosecution. It is true that we have what looks like a

3 similar document in Serbo-Croat with all sorts of very

4 interesting stamps and so on all over it. My fellow

5 counsel and I have not had an opportunity for a moment

6 to compare whether this document bears any relationship

7 whatever with what has been served on us previously.

8 There are but 24 hours in the day, your Honours,

9 and those 24 hours are occupied with other things. As

10 your Honours will be aware, I have just come back from

11 preparing the matter that we were speaking about before

12 the adjournment. Although it may well be, and I am not

13 sure at the moment, that I do not have a great number of

14 questions for this witness, one of the duties of counsel

15 is to -- in a case of this kind, where there are so many

16 documents that appear in either Serbo-Croat or English,

17 and have to be translated, it is one of our duties to

18 check that the English version bears some resemblance to

19 the Serbo-Croat version.

20 It would be quite wrong if the court were to admit

21 one of the entries in here was a bad translation of the

22 Serbo-Croat. It would be an appalling injustice if

23 that was to be allowed in evidence without us having an

24 opportunity to check the two documents match one

25 another. If someone can tell me how we can do that in

Page 2795

1 fifteen minutes before coming into court, then they

2 might like to patent it and sell it on the open

3 market. It is just not possible to do that checking

4 process and to prepare a proper cross-examination if

5 errors are found. That is the problem.

6 MR. OSTBERG: Your Honour, not to prolong this debate,

7 I again just have to stress that as to disclosure we

8 have done all we can. It is absolutely not right when

9 Mr. Ackerman says there has not been a notice. We cannot

10 control the communication between lead counsel and other

11 counsel on the side of the defence, and it is a Ruling

12 by this trial that serving documents in the language of

13 the defence lawyers and the accused, namely in

14 Serbo-Croat, is sufficient. They have been on notice

15 that this witness is going to be called a long time.

16 He is on our list as number 12, and I can read what is

17 said in the -- what it is all about:

18 "Physician. He visited and issued medical

19 certificates on a number of former detainees", etc,

20 etc.

21 I can disclose that without disclosing his

22 identity. So service has been done, and if there is

23 miscommunication between counsels of different languages

24 posed to me, I cannot cure that thing, and I have told

25 your Honours that full disclosure has been done.

Page 2796

1 The name is on the list. Yesterday they have

2 been informed what is going to happen and everybody

3 knows what is going to happen. This is, in my

4 submission, not a surprise witness. We are doing our

5 best and I have had severe trouble to bring this

6 gentleman to The Hague at all and even had to promise

7 him that he could return reasonably. Thank you very

8 much, your Honours. I have nothing more to add. I am

9 prepared to move on to the protection question.

10 JUDGE KARIBI WHYTE: The contention is that serving them

11 with the papers this morning is sufficient notice?

12 MR. OSTBERG: No. They have been served with these

13 documents months ago, months ago.

14 JUDGE KARIBI WHYTE: What are the papers you are serving

15 this morning?

16 MR. OSTBERG: As a service to them in a clear English

17 translation of the documents they have had for a very

18 long time.

19 JUDGE KARIBI WHYTE: What you served long ago?

20 MR. OSTBERG: Long ago.

21 MR. GREAVES: This is the translation that the court is

22 going to be using. Unless your Honours have suddenly

23 developed a sudden taste for the Serbo-Croat language

24 you are going to be using this, the English version;

25 that was served on us at 9.45. We have not checked it

Page 2797

1 to see whether it is authentic.

2 MR. MORAN: Your Honour, I do not think we have even gotten

3 yet to the initial question of the prosecution says this

4 guy is just a fact witness. If he is a physician and he

5 is going to be testifying about diagnoses, about things

6 that require special expertise and training, he is not a

7 fact witness; he is an expert.

8 Physicians can testify about a whole lot of

9 things. They can testify about traffic accidents they

10 saw and that makes them fact witnesses but the minute

11 they start saying: "I examined this person and he had

12 X", they stop being fact witnesses and start becoming

13 expert witnesses because you have their special training

14 and expertise.

15 JUDGE KARIBI WHYTE: There are three issues here. I can

16 see perhaps serving papers this morning and arguing it

17 is one -- almost this morning must be precipitant but

18 possibly you could still argue the question of the

19 protection, which is a different matter. So after that

20 we can talk about whether the witness can be available

21 to you, because even if he testifies, it might take some

22 time before we get to the conclusion of it, before

23 cross-examination arises. It might not be today. So

24 you still have time to look at some of those things.

25 So I suppose we can go ahead and discuss the question of

Page 2798

1 the protection. The protection is in private, so we

2 can do that now.

3 (In closed session)

 

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