1 Wednesday, 28th May 1997
2 (10.00 am)
3 (In open session)
4 JUDGE KARIBI WHYTE: Good morning, ladies and gentlemen.
5 From what I hear this morning, it is very good news.
6 We adjourned two days so we will report back to the
7 Trial Chamber the result of the investigation we
8 referred to the President to conduct into the complaints
9 by the Prosecutor concerning the leakage of the list of
10 witnesses including protected witnesses.
11 MR. OSTBERG: Your Honour, may I just make the point that we
12 are now in open session, so your Honour is quite aware
13 of that.
14 JUDGE KARIBI WHYTE: I am aware of this. Now following
15 the decision of the Trial Chamber, we referred the
16 complaint to the President for investigation. In
17 making our reference we requested that the investigation
18 should go into the circumstances of the leakage of the
19 information of the list of witnesses; secondly, to make
20 a determination as to the responsibility otherwise of
21 any one counsel appearing in the Celebici proceedings
22 and to other persons connected with the custody of the
23 witness lists; three, we also requested there should be
24 a determination of the fact of the leakage upon the
25 current proceedings.
1 I hear the report has been circulated to all
2 counsel, and the Prosecutor.
3 MR. OSTBERG: Yes.
4 JUDGE KARIBI WHYTE: So you all have copies. Now instead
5 of going into the lengths of the report, I think the
6 important part is just paragraph 7, which concludes --
7 and the conclusions of the President are stated in
8 paragraph 7(a) and (b). Paragraph (a) clearly stated
10 "There is no evidence of misconduct -- with regard
11 to Defence Counsel Edina Residovic and Mr. Eugene
12 O'Sullivan there is no evidence of misconduct on their
14 (b) With regard to the Defendant Zejnil Delalic,
15 it would seem likely that the Defendant Zejnil Delalic
16 gave a telephone interview to the magazine Sloboda
17 Hercegovina. This interview was published in the 15
18 April 1997 issue of the said magazine. It would seem
19 that in the course of interview the Defendant Zenjil
20 Delalic mentioned the name of at least one witness which
21 appears on the Prosecutor's witness list that is the
22 subject of the Order for Non-Disclosure. It would
23 therefore appear that the Defendant Zejnil Delalic might
24 have acted in contempt of the Order for
25 Non-Disclosure. In this regard the Prosecutor may want
1 to consider whether it is appropriate to initiate
2 proceedings against Mr. Delalic for contempt of the
3 Tribunal pursuant to Rule 77(C) of the Rules of
4 Procedure and Evidence.
5 (c) With regard to the author of the articles in
6 question, Mr. Tahir Pervan, and the editor of the
7 newspaper in question, regretfully investigations have
8 been inconclusive".
9 This is the conclusion of the President.
10 As far as the Trial Chamber is concerned, since
11 all participating in the judicial process here have been
12 cleared of any wrongdoing, I think we are comfortable in
13 carrying on as we have always done. As I said at the
14 beginning and I think this has been confirmed by the
15 investigation, we have always had the highest regard for
16 the integrity, professional competence and dedication of
17 counsel in this case in doing all they can in bringing
18 justice before this Trial Chamber. We have been
19 justified in this conviction. I think this is all the
20 Trial Chamber has to say on this investigation.
21 MR. MORRISON: May I address the court? I appear for
22 Mr. Delalic on this particular issue of contempt in the
23 President's report. You will see my name mentioned
24 there. I was brought in to deal with this particular
25 matter because of the conflict that there was between
1 this matter and his lawyers on the main indictment. As
2 you have stated in the opening remarks, the object of
3 the exercise was to seek a determination of the issues
4 and I, with respect, echo your Honour's observations as
5 to the finding in respect of the lawyers involved.
6 That may be regarded as a determination, although it is
7 not for me to say so, but it is plain there has been no
8 determination of the issue in respect of Mr. Delalic. A
9 determination of an issue means the issue has been
10 decided one way or the other.
11 THE INTERPRETER: Could counsel please speak up a bit?
12 MR. MORRISON: Yes. Determination --
13 THE INTERPRETER: Please switch on your microphone.
15 MR. OSTBERG: You can leave it.
16 MR. MORRISON: Is it working now.
17 JUDGE ODIO BENITO: Take your finger out.
18 MR. MORRISON: I am grateful for that assistance. A
19 determination presupposes that an issue has been
20 decided. In this case the issue, the central issue, is
21 whether or not there had been a material contempt of
22 this court in respect of the publication of information
23 or names that should not have been published under the
24 rules of the court.
25 We are left in this position, with respect, that
1 Mr. Delalic is in exactly the same position that he was
2 in when the issue was first raised some week ago. It
3 is still not clear whether or not he faces an issue for
4 contempt or indeed how that issue of contempt may be
5 resolved. It can, with respect, only be resolved by
6 the accumulation of evidence which is accumulated and
7 presented within the rules of the Tribunal. That is
8 that witnesses would be seen, they would be interviewed
9 under caution, and either by oral or videotape that
10 evidence would be presented to the defence and they
11 would be able to conduct their own investigation in
12 exactly the same way as any other matter that came
13 before the Tribunal.
14 Now, that position has simply not yet been
15 reached. What the Honourable President has done is
16 effectively invited the prosecution to consider whether
17 or not they intend to proceed along that path, and if I
18 may, with respect, quote from paragraph 7B, what the
19 learned President has done is to draw sort of
20 suppositions from the material which is available, the
21 newspaper articles, which one could have drawn a week
22 ago and, of course, he had no option but to do that,
23 because there is, in fact, no evidence beyond those
25 That is demonstrated clearly, with respect, by the
1 use of these words. Paragraph 7(b):
2 "With regard to the Defendant Zejnil Delalic, it
3 would seem likely that he gave a telephone interview".
4 I turn over the page. The first words of the
5 first sentence on page 4:
6 "It would seem that in the course of the interview
8 I go on four lines down:
9 "It would therefore appear that ..."
10 On the same line:
11 "... might have acted in contempt of the Order for
13 It goes on to say:
14 "The Prosecutor may want to consider ..."
15 All that may mitigate against there having been
16 any determination of this matter in any manner, shape or
17 form. The matter is still very much at large. In my
18 respectful submission, your Honour, the problem is this,
19 that if there is an attempt to go forward in this case
20 without having first resolved, determined the issue of
21 contempt, which was the object of the exercise a week
22 ago, any evidence which is now called in respect of this
23 matter by the prosecution is going to be tainted by the
24 suspicion, because suspicion it remains, that Mr. Delalic
25 has had something to do with a fundamental concept,
1 which may go to the very heart of that evidence. This
2 is not a peripheral contempt of court that is being
3 alleged. Sometimes there is a contempt of court where
4 a witness makes an outburst, where somebody in the
5 public gallery does something. That is a relatively
6 minor and peripheral contempt that can be dealt with on
7 a summary basis and is often done so, but this is a
8 fundamental allegation of a contempt which goes to the
9 very heart of the case and to the probity of any
10 evidence which is called. That is as to the
11 Prosecution evidence. It is even worse, in my
12 submission when we come to consider the evidence that
13 the defendant may give on his own behalf or may call on
14 his behalf or indeed that other defendants may give or
15 may call, although that is a matter of consideration by
16 their counsel, because all of that evidence is going to
17 be tainted with the suspicion until the matter is
18 determined one way or the other that that evidence is
19 coloured by a consideration of contempt for this
21 Now, in those circumstances it is my submission
22 that it would be impossible for this or, indeed, any
23 Tribunal to consider that evidence in the absence of the
24 prejudice that would arise by virtue of that contempt.
25 We know it is a fundamental principle of the rule of
1 justice that justice must not only be done but it must
2 manifestly be seen to be done. May I draw an analogy?
3 If there was a trial by jury where the Tribunal was
4 concerning just issues of law and the jury were
5 concerning issues of fact, the question of any contempt,
6 as indeed the existence of any other indictment, would
7 be withheld from the jury. The reason it would be
8 withheld from the jury is the reason that I have just
9 submitted, because of the devastating effect it would
10 have upon their consideration of the evidence.
11 In this Tribunal, as a matter of fact and
12 procedure, of course the Tribunal sits on both questions
13 of fact and law, but where that is the case, then
14 everything must be done that is practicable to be done
15 to make the proceedings as fair and just as possible for
16 the defendants and the co-defendants, so that any
17 suspicion that the Tribunal might have had other matters
18 in their mind at the time they were concerning the
19 central issues on the indictment can safely be put to
20 one side. It is practicable in this case to achieve
21 that position. In my submission, it is practicable in
22 this way.
23 The Honourable President has invited the
24 prosecution to consider their position and to determine
25 whether or not they wish to pursue contempt proceedings
1 against Mr. Delalic. They now have the opportunity to
2 do that in a way where they can gather evidence that
3 would fall within the Rules of Procedure of this
4 Tribunal. People can be interviewed under caution and
5 on tape and the weight of that evidence can be
6 determined, because at the moment it is mere
7 supposition, and they will need to gather evidence to be
8 in a position to be able to say properly to themselves
9 and properly to this Tribunal: "We have evidence that we
10 consider is proper, probative evidence that goes to this
11 contempt and therefore it would be proper to try this
12 man." As a rough rule of thumb, and I can only speak
13 for my own jurisdiction, the Crown Prosecution Service
14 in the United Kingdom only prosecute a case whereupon
15 consideration of the evidence there is at least a 50 per
16 cent chance of a conviction.
17 It would seem, with the greatest respect, in my
18 submission, there is nothing wrong with that approach
19 for the prosecution in this case. They cannot do that
20 until they have got evidence as opposed to material from
21 only which supposition can be drawn. They are,
22 therefore, now in a position to devise a procedure to
23 have an independent investigator, who would have all the
24 powers of investigation within the rules of the
25 Tribunal, to accumulate that evidence and to bring it
1 before this Tribunal.
2 I say it, and I say it with the greatest respect,
3 it is perhaps a good thing that, in fact, the Honourable
4 President did not manage to accumulate anything which
5 would be properly regarded as evidence, because when one
6 thinks about it, he would have been in this invidious
7 position, that had he done so he might have been in a
8 position where he would have to be called as a witness
9 before this Tribunal, which would have been a difficult
10 state of affairs. It is so much better if there is an
11 independent investigator appointed by the Prosecutor who
12 can become a witness in the case and perhaps almost
13 inevitably would become a witness in the case and can
14 give evidence before this Tribunal without the
15 difficulties and embarrassment it would have caused had
16 the Honourable President been put into that difficult
18 What I say in my closing submission is this: it
19 is impossible in this case for the defendant Mr. Delalic
20 to have this case continue against him and feel that the
21 Tribunal is able to distinguish between the suspicion
22 that falls against him and remains against him until the
23 matter is determined and have the matters contained on
24 indictment considered in isolation, the necessary
25 isolation to give those matters the proper weight and
1 consideration to which he is entitled, and to which as a
2 matter of practicalities the prosecution is also
3 entitled, because if he is not, one can see how that
4 could well in the fullness of time give rise to an
5 expensive and time-consuming appellate hearing. With
6 the greatest respect, my submissions are designed not to
7 create but to avoid delay.
8 JUDGE KARIBI-WHITE: Thank you very much, Mr. Morrison. I
9 appreciate your position and your apprehension about the
10 subsequent course of events. I suppose in this regard
11 -- I think the trump card lies with the prosecution,
12 because they have merely called upon to consider whether
13 there is sufficient evidence to proceed against him.
14 They need not proceed unless they are convinced that it
15 is worth proceeding and there is sufficient evidence for
16 them to do so. It is only on that basis that the
17 prosecution would take up the invitation for them to do
18 so by the President. I think we might hear them when
19 they might have considered the matter. To see what
20 cause of action they tend to adopt.
21 MR. MORRISON: The position in my submission is plain. The
22 prosecution have been invited and they must make up
23 their mind how to proceed. It is not, with the
24 greatest of respect, a burden upon the Tribunal. It is
25 a burden upon the prosecution, but the fundamental
1 problem remains, and I would invite them to do as
2 speedily as is practical, that evidence before -- I
3 appreciate in the English Bar the prosecutors can defend
4 and I probably prosecute more than I defend so I do
5 appreciate the difficulties they have, but the reality
6 of that position is they cannot make that decision until
7 they are in posession of the evidence. It seems to be,
8 looking at the report of the honourable president, that
9 the evidence really falls into a very narrow orbit. He
10 has concentrated on and there is a named individual -- I
11 will not name him; he is the journalist named in
12 paragraph 6 and his editor -- it seems to me with a
13 certain amount of diligence and enthusiasm the question
14 of any evidence from that source can be investigated
15 really within a matter of a day or two. The Honourable
16 President managed to track this man down and would have
17 been in a position, had he been interested in giving
18 evidence, to take evidence from him. The prosecution
19 are perhaps in a better position than the Honourable
20 President was, because they can appoint a Prosecutor,
21 and that can be done really in a matter -- an
22 investigator rather. That can be done as a matter of
23 urgency. This matter could be resolved in a matter of
24 days if the conclusion is that the prosecution are not
25 going to proceed with any allegation of contempt, and
1 the Tribunal can then get back to its main task of
2 considering the indictment. If the prosecution,
3 however, on considering the evidence come to the
4 conclusion that there is a prosecutable offence, then
5 plainly the question of whether or not that should be
6 done before, as I have submitted it should be, the
7 continuation of the trial remains a live issue.
8 JUDGE KARIBI WHYTE: Thank you very much. Ms. Residovic?
9 MS RESIDOVIC (in interpretation): Your Honours, please
10 allow me to present two issues related to the
11 consideration of the report submitted by Mr. President.
12 First of all, I would like to thank both the Trial
13 Chamber and the President for trying to resolve very
14 serious issues in such a short time, the issues that
15 came before this Trial Chamber. I have been able to go
16 through the report, in particular through the paragraph
17 7, and please allow me, therefore, to say two things.
18 The President in paragraph 7 submitted his personal
19 conclusion related to the facts he has been able to
20 establish in the course of his investigation. I am
21 glad and I appreciate the position taken by this Trial
22 Chamber when it comes to the defence of Mr. Delalic,
23 defence counsel, and their attempts to continue to
24 provide a fair and just defence for their clients.
25 However, your Honours, I think that even as regards this
1 issue we did not go much further than at the last
2 hearing before this Chamber. The personal conclusion
3 of the President contained in his report on the
4 investigations conducted, as far as I am familiar with
5 the rules of this Tribunal, is not a basis on which the
6 defence counsel could be absolutely excluded from any
7 further proceedings which are in the sole domain of the
9 I would like to remind you, your Honours, that the
10 discussion on this issue began with the question made by
11 the Prosecutor and his statement -- their statement
12 before this Trial Chamber. I refer to the French
13 transcript, page 1731, lines 31, where it was stated
14 before this Trial Chamber that:
15 "This case in all probability, as it appeared at
16 that time that, one of the defence counsel and one of
17 the defendants was involved in this case".
18 So when this first situation is in question, the
19 way that the defence counsel should be treated has not
20 been resolved in this report by the President. It
21 should be resolved by the Prosecutor and the Prosecutor
22 should make their position clear.
23 As regards any future or existing facts that may
24 come up in the investigations conducted by the
25 prosecution, we do not have any position from them on
1 that, and therefore it is my view that the position of
2 the defence counsel in this case has not changed, let
3 alone the position of our client. I, therefore, think
4 that even this paragraph without the clear position made
5 by the prosecution cannot be completely unequivocal
6 before this Trial Chamber, and therefore our view in the
7 continuation of this proceeding as regards any future
8 possible conflict of interests between us and the client
9 will also remain unchanged as to what I said last time.
10 The second issue is the question of our client.
11 Your Honours, both myself and Professor O'Sullivan are
12 here in this court room only to represent and to defend
13 the interests of our client. We do not wish to put him
14 in a position which may either in this proceeding or in
15 some other proceedings endanger his interests. So if
16 the issue of the position of his defence counsel is
17 solved once and for all decisively, then we as his
18 defence counsel in this proceeding will honour the
19 position of our learned colleague, Mr. Morrison, whether
20 the continuation of this proceeding could prejudice his
21 interest as to any other proceedings. Therefore, I
22 would like to ask this Trial Chamber to request that the
23 prosecution solve the entirety of this problem because I
24 think we cannot have a fair trial of my client without
1 JUDGE KARIBI WHYTE: Thank you, Ms. Residovic. Tom Moran,
2 do you have anything to say?
3 MR. MORAN: Yes, your Honour. Tom Moran for Hazim Delic.
4 Judge, initially I want to make it very clear that I do
5 not have a dog in the fight with Mr. Delalic, but I would
6 like to introduce for the purposes of this only a
7 decision signed by the Registrar on the 23rd, and which
8 was delivered to me today. My big worry is prejudice
9 to my client. I move to introduce this as Delic
10 exhibit next just for the purposes of this proceeding.
11 I have not thought through what I think needs to be
12 done, because I just got this an hour and a half ago,
13 but I am worried the fall-out could hurt my client.
14 The Registrar has found that there is reasonable grounds
15 for believing that my client, Mr. Landzo and Mr. Mucic may
16 attempt to interfere or intimidate witnesses or
17 otherwise disturb the maintenance and good order of the
18 detention unit. I believe this is growing out of the
19 same type of allegations. Now, I have heard no
20 evidence from anyone that my client is involved in this,
21 yet I find a distinguished former judge, the Registrar
22 of this court, of the Tribunal, making this kind of
23 finding. The fact that my client's phone calls are
24 going to be monitored do not bother me one way or the
25 other. I do not particularly care. What I am worried
1 about is there is this broad brush painting of people
2 when there is no evidence at all that I have heard, no
3 reasonable grounds that my client did anything. I
4 would like to see this issue put to bed so that Hazim
5 Delic does not get hurt by the fall-out. Thank you
6 very much, judge.
7 JUDGE KARIBI WHYTE: Thank you very much, Mr. Moran. This
8 is an administrative decision.
9 MR. MORAN: That is correct, your Honour.
10 JUDGE KARIBI WHYTE: I think the channel of complaint is to
11 the President, not directly to the Trial Chamber.
12 MR. MORAN: Yes, your Honour, I concede that. I am not
13 asking the Trial Chamber to do anything about this. I
14 am just pointing out that if the Registrar, who is a
15 person that I admire very much, makes this kind of
16 finding, I am worried that perhaps in all good faith in
17 this courtroom some of this fall-out may hit my
18 client. It makes me again very nervous. I would like
19 this thing put to bed and somebody to stand up there and
20 say "Hazim Delic may have done a lot of things in his
21 life, but this is not one of them".
22 JUDGE KARIBI WHYTE: Can we hear the Prosecutor as to what
23 he thinks?
24 MR. OSTBERG: Just to the point raised by Mr. Moran, this is
25 an administrative thing which we dealt with in the 64
1 hearing this morning, and I think that is nothing -- as
2 your Honour just said, nothing for the Trial Chamber to
3 worry about.
4 To the main issue, I just, as all of us, got this
5 report from the President and I read 7A with regard to
6 the defence counsel Edina Residovic and Eugene
7 O'Sullivan there is no evidence of misconduct on their
8 part and I have nothing to add at all to that. I would
9 just say that that made me -- should make me stand up
10 and say: "We are ready to proceed." Speaking for the
11 civil law system where I come from, the question of
12 contempt of court would be dealt with totally separately
13 and should not be considered in the way now raised
14 before this Tribunal. In my view this could also from
15 our point of view be handled separately without --
16 I have the absolute conviction that the Trial Chamber
17 can separate the one thing from the other, and that it
18 should not be tolerated to taint anything at all during
19 the proceedings.
20 I cannot now, just having read this, say exactly
21 what is the Prosecutor going to do about the invitation
22 from the President. Something might or might not be
23 done, but I cannot stand up here today and say: "We are
24 not going to do anything at all or Prosecutor is going
25 to do this in that way at that time or what time." I
1 know nothing about that. My position is that this is a
2 separate matter that should not delay these
3 proceedings. I would ask your Honour to invite
4 Ms.. McHenry to have some points of view from the common
5 law points of view maybe. Thank you.
6 MS McHENRY: Very briefly, your Honour, the matter was
7 referred to the President and he has given us a report
8 in which he states that there is no evidence suggesting
9 that defence counsel was involved. The prosecution has
10 never suggested that defence counsel was involved, and I
11 believe that -- I do not know if there is a
12 mistranslation, but at least the English transcript
13 makes clear that the prosecution has not suggested that
14 defence counsel was involved. As I believe Mr. Ostberg
15 has said on several occasions, we do not have evidence
16 and we are not suggesting that defence counsel is
17 involved. We believe that we can, with both the
18 finding of the President and the current state, we can
19 proceed and that there is not a conflict of interest.
20 The matter has been referred to the prosecution for
21 consideration. As Mr. Ostberg has said, the prosecution
22 will consider what to do about it, but that does not
23 impact on the ability of these proceedings to go
24 forward. I believe even the suggestion that has been
25 raised, and this is really an issue for Mr. Delalic and
1 Ms. Residovic with respect to the pending proceedings
2 that are on-going, that somehow even the suggestion
3 might taint the Trial Chamber, and we have no -- the
4 prosecution has no doubt whatsoever that your Honours
5 will be able to hear the pending proceedings, which is
6 the indictment against Mr. Delalic and the others, based
7 upon the evidence that is brought before you here in
8 court, and that you will not be tainted in any way
9 whatsoever by any suppositions or things outside what is
10 brought here as evidence. Your Honours do this every
11 day. The situation is no different than if there was
12 another indictment against Mr. Delalic which was separate
13 from the current case. Certainly your Honours would be
14 able to hear one case without considering the fact that
15 there is an indictment or whatever. Here we have even
16 less. There is no charge against Mr. Delalic for
17 anything. There is absolutely no reason why this case,
18 the indictment against Mr. Delalic and the other accused
19 cannot go forward now. What, if anything, the
20 prosecution chooses to do separately with the contempt
21 does not now have any impact on these proceedings.
22 MR. MORRISON: Your Honours, that was a matter which really
23 related to the submission I made. May I just answer it
24 briefly? With great respect to my learned friend, she
25 is misdirecting her mind as to the issue. The question
1 of whether or not Mr. Delalic faced a separate indictment
2 is easily distinguishable on this basis. If he faced a
3 separate indictment that this Trial Chamber knew about,
4 it would be a separate indictment that involved quite
5 separate issues of evidence. If it did not involve
6 separate issues of evidence it would hardly be a
7 separate indictment. The problem in this case is that
8 the contempt relates to the evidence before the tribunal
9 on this indictment, the indictment that they are
10 hearing, and that is the fundamental difference.
11 MR. MORAN: There seems to be some kind of problem in the
12 interpretation booth.
13 THE INTERPRETER: We are having problems with the volume.
14 Could you please speak up a little bit. We are asking
15 the technicians to increase the volume.
16 MR. MORRISON: I am sorry. It is just my lack of desire to
17 shout, but I will do better. The issue is
18 fundamentally different. It is not just different in
19 issue; it is different in kind. This is an issue which
20 goes to the heart of the evidence on this indictment.
21 To suggest that there is an analogy between a case where
22 there is another indictment concerning completely
23 different evidence is, with great respect, misguided.
24 The question of the strength and indeed the expansion of
25 my submission is only one that can be made in reality
1 before this Tribunal once the Prosecution have acceded
2 to the learned President's invitation and made up their
3 mind whether they are going to go ahead and prosecute
4 Mr. Delalic for contempt. If they choose not to do so,
5 all well and good. If they choose to do so, then the
6 question of whether or not that hearing should take
7 place before, during or after the main indictment is a
8 separate issue to be determined at that stage, but what
9 has to be determined first is the issue of whether or
10 not the prosecution in this case are going to pursue a
11 charge or indictment against Mr. Delalic.
12 Secondly, a minor point, the question of conflict
13 of interests between a lawyer and client, that is
14 between Mr. Delalic and his other lawyers in this case,
15 is a matter for them and for Mr. Delalic. It is not,
16 with the greatest respect, a matter for the prosecution.
17 MR. MORAN: Your Honour, I would just like to add one quick
18 thing. Mr. Ostberg said that my complaint was settled
19 in a Rule 64 hearing this morning. I know there was a
20 Rule 64 hearing this morning. I was not a party to it,
21 was not invited to it. In fact, it was in closed
22 session. If my client was dealt with in a hearing
23 which we had no notice of and, in fact, were not each
24 allowed to hear, I would be very surprised.
25 JUDGE KARIBI WHYTE: Mr. Ostberg, let me find out. You
1 have been invited by the President to consider the
2 question of contempt of the Tribunal.
3 MR. OSTBERG: Yes.
4 JUDGE KARIBI WHYTE: Now are you making up your mind
5 outside the findings of the President or within the
6 findings which we are relying upon?
7 MR. OSTBERG: I cannot rule out that that would be
8 considered with finding outside what the President has
9 found in this report.
10 MR. GREAVES: I wonder whether I might just take a moment of
11 your Honour's time? Can I explain what I think may be
12 the difficulty in this case?
13 JUDGE KARIBI WHYTE: Yes, you can.
14 MR. GREAVES: Let us suppose for a moment that the trial
15 continues on the main indictment and the prosecution are
16 carrying out a parallel investigation and indict
17 Mr. Delalic with an offence of contempt and that matter
18 remains unresolved. During the course of the trial a
19 witness for the prosecution shows all the signs of
20 having become a hostile witness and for whatever reason
21 it then becomes a matter of suspicion as to why that
22 witness has become hostile. In that manner I hope I
23 demonstrate the possibility that there is a potential
24 connection between a parallel investigation as yet
25 unresolved into a question of contempt and to the issue
1 of why a witness has become hostile. Your Honours have
2 to sit here and assess each witness as they come to give
3 evidence and as they give evidence determine whether
4 they are witnesses who are both honest and accurate.
5 If at the back of everybody's mind is the issue of
6 whether or not Mr. Delalic has committed a contempt by
7 attempting to intimidate witnesses and there is any
8 suspicion that a witness has become hostile because of
9 that activity, there is the clear relationship between
10 the on-going, unresolved inquiry into contempt and the
11 trial. It would be an injustice if at the end of the
12 case Mr. Delalic was cleared of the contempt but for a
13 time consideration of witnesses had been conducted by
14 your Honours against the background of that on-going
16 So your Honours, in my submission, have to look at
17 each witness knowing what the position as far as
18 Mr. Delalic is concerned is, so that you can assess have
19 they been interfered with. Is that the reason why they
20 are giving evidence in this way? Until the conclusion
21 has been reached one way or the other, and I enter not
22 into the Prosecution's decision in any way, but until
23 that matter is resolved, your Honours, with respect, and
24 I mean this with respect, cannot be seen by the outside
25 world -- it comes back to my learned friend
1 Mr. Morrison's phrase about justice not only being done
2 but manifestly being seen to be done -- if there is any
3 suspicion that there is any interference with a witness
4 and that consideration has been coloured by the
5 accusation or the suspicion, then there is a danger that
6 the consideration -- the defendant's interests are being
7 damaged in some way. That is the concern I think that
8 may exist. That is where the relationship lies between
9 the inquiry into contempt, which is a fundamental one,
10 and this trial.
11 JUDGE JAN: Please read Rule 77C.
12 MR. GREAVES: I am going to have to ask one of my learned
13 friends to lend me a copy because I have left mine in
14 the robing room, for which I apologise for being
15 adequately equipped.
16 JUDGE JAN: This is probably the one you have in mind.
18 MR. GREAVES: My learned friend Mr. Morrison has kindly lent
19 me his. That is right.
20 JUDGE JAN: That would have to be a separate enquiry
21 altogether, namely disclosure of names of the witnesses
22 will not be tantamount to interfering or intimidating a
23 witness. Why do you suppose if a witness turns hostile
24 the assumption would be that he has been interfered with
25 or intimidated?
1 MR. GREAVES: One has to go back to the basics.
2 JUDGE JAN: Every time a witness turns hostile we would be
3 holding an inquiry?
4 MR. GREAVES: No, I am not suggesting that. What I am
5 suggesting is let us suppose it is one of those, for
6 example, to whom protection measures relate. Why are
7 there protection measures in existence in relation to a
8 particular witness? It is in order to prevent them from
9 becoming intimidated. If they unexpectedly turn
10 hostile and theirs was one of the names that was named
11 in the list, there is the relationship, that --
12 JUDGE JAN: It is a big jump.
13 MR. GREAVES: I do not think it is.
14 JUDGE JAN: Interfere with, some positive act.
15 THE INTERPRETER: Microphone, please, your Honour.
16 JUDGE JAN: Interfere with is a positive act.
17 Intimidation is a positive act.
18 MR. GREAVES: Of course, but one then looks at the idea of,
19 if you will bear this in -- let us assume for the moment
20 that the act was done by the defendant. What would be
22 JUDGE JAN: It is a big jump.
23 MR. GREAVES: Yes, but what would be the purpose of
24 publishing these things other than to do that, if that
25 is what he did and I do not for the moment --
1 JUDGE JAN: There is no evidence for the moment that he did
2 and the President has left the question entirely open.
3 Maybe the prosecution decides not --
4 THE INTERPRETER: Microphone, your Honour.
5 JUDGE JAN: Maybe the prosecution decides not to proceed
6 further. Why should we hold up the trial?
7 MR. GREAVES: Absolutely, but what I am trying to
8 demonstrate is that there is the potential which can
9 arise. Again it is the crystal ball thing. We cannot
10 see a week down the line where someone turns up to
11 court, gives evidence and immediately gives signs of
12 having been interfered with by somebody.
13 JUDGE JAN: That will then be a separate inquiry
14 altogether, not connected with this inquiry.
15 MR. GREAVES: Of course, but at the back of the defendant's
16 mind, as he sees your Honour considering the witnesses,
17 what is he thinking? He may be thinking: "Gosh! They
18 think I have done this".
19 JUDGE JAN: That is why he has legal counsel available to
21 MR. GREAVES: Yes, I accept that. All I am trying to
22 demonstrate is there is a potential relationship between
23 the on-going inquiry and what might happen here. It is
24 not, I think, a fanciful one. It is one that is
25 potentially realistic. That is the relationship and
1 the concern that he may have. I do not know. I may
2 be entirely wrong about that, but I can well see that
3 that might happen and be thought to cause a difficulty.
4 JUDGE JAN: What might happen is an entirely different --
5 anything can happen.
6 MR. GREAVES: Of course.
7 JUDGE JAN: You cannot hold up proceedings because
8 something might happen.
9 MR. GREAVES: No, but I am merely trying to demonstrate the
10 potential relationship that exists between the on-going
11 inquiry and this trial. They cannot be viewed
12 completely in isolation, one from the other, there is a
13 relationship. The defendant is a defendant in this
14 trial and a potential defendant in another trial. It
15 is a matter between the two things there is a
16 relationship. They are not things which you pigeon
17 hole and say they are completely separate and can have
18 no effect one upon the other.
19 JUDGE KARIBI WHYTE: Thank you very much, Mr. Greaves. I
20 am directing this to the Prosecutor. How long do you
21 think it will take you to make up your mind, because, as
22 you very well would agree, there is a fundamental
23 relationship between this case and the fall-out which is
24 now affecting Delalic, because it all arose out of the
25 same transaction which is the apparent case. If you
1 really want to continue, definitely you put his mind at
2 rest whether you are proceeding against him for the
3 contempt of the Trial Chamber.
4 JUDGE JAN: May I add before you answer, I think Mr. Delalic
5 in his statement to the President has disowned the
6 interview, that he did not give any interview at all.
7 MR. OSTBERG: Yes, that is true. To make up our mind to do
8 or not to do anything can be made very, very quickly.
9 This is not up to me. I have to, of course, consult
10 with the Prosecutor, Madam Arbour, about this. I
11 believe that something should be done. The prosecution
12 must take this invitation from the Honourable President
13 earnestly and really make up their mind what to do or to
14 decide we are not going to pursue this. The question
15 whether we are going to pursue or not pursue I can bring
16 to the Trial Chamber pretty quickly, I suppose, during
17 this day even.
18 JUDGE KARIBI WHYTE: This is exactly what I want to hear.
19 We can get to know what you intend doing in view of the
20 evidence before everyone here.
21 JUDGE JAN: The impression which I have gathered -- maybe
22 my impression is incorrect -- the reporter or the
23 journalist is not prepared to give any statement. This
24 is my impression. I may be wrong.
25 MR. OSTBERG: You can have any guess -- it is a good guess
1 what should happen. Something might be done. I can
2 give you an answer to the question if we are going to
3 pursue or if we are not going to pursue it.
4 JUDGE JAN: As a rule the journalists never disclose the
5 source of their information. They have gone to jail on
6 so many occasions, but they do not give the source of
7 their information.
8 MR. OSTBERG: I am very well aware of that, your Honour.
9 JUDGE KARIBI WHYTE: Is it possible we assemble here again
10 at 4.30 to hear a decision?
11 MR. OSTBERG: Sorry, your Honour. I did not quite hear.
12 JUDGE KARIBI WHYTE: If we can assemble today by any time
13 this afternoon to hear a decision, because I think we
14 are receiving Madeleine Albright here about 2 o'clock or
15 3 o'clock, I suppose. After that still about 4 o'clock
16 we should be able to --
17 MR. OSTBERG: I will be back with some kind of an answer,
18 your Honour.
19 JUDGE KARIBI WHYTE: Let us know exactly what is going on
20 instead of keeping us --
21 MR. OSTBERG: Of course. We have the same interest, of
22 course. Our fundamental idea of what is going to go on
23 is quite clear from what I have said before.
24 JUDGE KARIBI WHYTE: For me personally it was a little
25 difficult for counsel for Delalic to have the matter
1 hanging over the head of him arising out of the same
3 MR. OSTBERG: I appreciate their concerns.
4 JUDGE KARIBI WHYTE: So we will rise and reassemble at
5 about 4 o'clock.
6 (11.10 am)
7 (Hearing adjourned until 4 o'clock this afternoon)
8 (4.00 pm)
9 JUDGE KARIBI WHYTE: Good afternoon, ladies and
10 gentlemen. Can we hear the reports from the
12 MR. OSTBERG: Thank you, your Honour. We have tried to
13 give copies of a written statement to the court and to
14 the defence lawyers, and I will not read it out: I will
15 just point to the main points in it, these points being
16 that the prosecution looks upon the on-going trial and
17 the contempt issue as two separate matters. In the
18 submission of the prosecution there is no reason for
19 delay and we can see no conflict of interests between
20 defence lawyer and defendant.
21 However, there is an obligation in the submission
22 of the prosecution to pursue the contempt issue, and
23 that is impossible for the prosecution to predict the
24 outcome or the time-frame of such an investigation, and,
25 lastly, that the prosecution cannot possibly promise not
1 to bring charges that would grant some kind of immunity
2 from contempt proceedings to anybody, your Honour.
3 JUDGE KARIBI WHYTE: Before you sit down, a few
5 MR. OSTBERG: Yes.
6 JUDGE KARIBI WHYTE: I am sure you have relied on the
7 reports of the President in respect of these things.
8 MR. OSTBERG: Yes.
9 JUDGE KARIBI WHYTE: Now that is not a parallel future
10 investigation, because you have made a complaint to the
11 Trial Chamber and that complaint was referred for
12 investigation and investigation has reported and in
13 their report a recommendation was made for a possible
14 prosecution. You exercise your discretion. Does that
15 mean you have found there is not sufficient evidence for
16 proceeding with the contempt proceeding relying on that
17 -- on the facts of that --
18 MR. OSTBERG: As far as the defence lawyers go. On the
19 other hand there was an attempt to assist the
20 prosecution whether it has to go on on its own to find
21 out what is behind this very grave matter. That is
22 what the Prosecutor has decided to do.
23 JUDGE KARIBI WHYTE: I am not challenging what you have
24 decided to do. What I am saying is all your actions
25 have impinged on the report of the investigation so far.
1 MR. OSTBERG: Yes, so far.
2 JUDGE KARIBI WHYTE: That is all I wanted to know.
3 MR. MORRISON: Your Honour, if I may respond to that, the
4 prosecution made a complaint and produced before the
5 Tribunal evidence, such as it is, of two articles
6 written and the list of witnesses. This is not a
7 question of hypothesis. Those documents exist; the
8 list of witnesses exist. The whole of the procedure
9 hitherto followed by the Honourable President was to
10 attempt to investigate this matter based upon the
11 complaint, the source of the complaint put before the
12 Tribunal by the prosecution. It falls within a fairly
13 narrow register. The principal person who, in my
14 submission, could assist this Tribunal in the
15 determination of the central issue and the central issue
16 is in reality an allegation against Mr. Delalic of
17 contempt is the named journalist in paragraph 6 of the
18 President's report, Mr. Tahir Pervan and an unnamed
20 It seems to me, with the greatest respect, that
21 the only evidence that would be capable of founding a
22 charge of contempt would flow from information from
23 Mr. Pervan and the editor. Those are the people who
24 would have received the information. Those are the
25 people who would have been responsible for its
1 publication. So we are not dealing with long-term or
2 impossible hypotheses. We are dealing with hard
3 information that already exists, the two articles and
4 named people who are the best possible source of the
5 information that this Tribunal might want.
6 If it was the case that the prosecution were
7 saying that they had no present intention to investigate
8 this matter until the conclusion of the proceedings,
9 that would be one thing, and one would have to look at
10 that upon its merits, but what the prosecution say in
11 the second paragraph of their response is that they do
12 not have evidence such that it may bring contempt
13 charges and thus has no present intention to bring
14 contempt charges against anyone. What it does not say
15 is there is no present intention to investigate the
16 matter until the conclusion of the case.
17 Indeed, the first sentence of the third paragraph
18 says in reality just the opposite:
19 "The prosecution intends to vigorously pursue how
20 names of particular witnesses were published and the
21 possible violation of court orders".
22 I take no point as to that. The prosecution have
23 been invited by the learned President in the last
24 paragraph of his report to consider whether it is
25 appropriate to initiate proceedings. The only way
1 whether they can see whether it is appropriate to
2 initiate proceedings is to vigorously pursue the case to
3 get the evidence, but that falls, in my submission, into
4 a very small compass in this case.
5 What is not going to assist this Tribunal, and
6 I now go to the latter part of the third paragraph of
7 the prosecution response to the inquiry, if in two days
8 or in two years or, indeed, in two months or two weeks
9 this matter is again brought to a standstill because of
10 a desire to investigate or something else that is
11 discovered that could be discovered by a relatively
12 simple inquiry now.
13 The reality of the position is this, that if
14 Mr. Tahir Pervan and the editor of the newspaper in
15 question are simply going to refuse to give evidence, it
16 is impossible to see in as much as one can see into the
17 future as a reasonable Prosecutor, a reasonable
18 advocate, how there could be any evidence to bring in
19 contempt before the court as a charge. It is a
20 relatively easy matter to determine. It is not going
21 to get any better if it is left in abeyance for two
22 days, two weeks, two months or two years.
23 This is an issue, as I said this morning, which
24 goes to the very heart of the case. There was a
25 suggestion made just a moment ago, with the greatest
1 respect, that contempt and the trial are two separate
2 issues. That is not the case in my respectful
3 submission. If the contempt and the evidence were two
4 separate issues, I doubt very much if the prosecution in
5 this case would have raised the issue as and when they
6 did or brought any suggestion that anyone in particular
7 might have been responsible for the contempt. It is
8 because that contempt goes to the very heart of the
9 evidence that they raise the matter in the way they
10 did. They are inseparable, interwoven, and they cannot
11 easily be taken apart except by determination that the
12 available evidence or available source of evidence is
13 simply not sufficient.
14 The visit of Madeline Albright, in my respectful
15 submission, today, your Honour, is a useful
16 demonstration how this Tribunal operates in the eyes of
17 the world. It has a group of eminent and carefully
18 selected judges, and the world community is, therefore,
19 entitled to look at the Tribunal's decisions and to find
20 the highest and most careful considerations being given
21 to the fundamental issues and the rights of those being
22 tried before this Tribunal. Similar exacting standards
23 are, of course, expected of the prosecution and the
24 defence both as entities and by individual
1 Here we have a case where Mr. Delalic's counsel,
2 Madame Residovic and Professor O'Sullivan, have plainly
3 indicated that they cannot continue to represent
4 Mr. Delalic on the main issue until the collateral issue
5 of contempt is determined. I hark back to the very
6 first words that your Honour spoke this morning. The
7 object of the exercise of the last week or so has been
8 to determine this issue. The danger is that we may not
9 be a further step forward.
10 Now, this is not an allegation, as I say, of a
11 minor contempt. It is one which goes to the very core
12 of the evidence and which has the most serious
13 implications for the probity and weight of that
14 evidence. Indeed, it is arguable that if it is proved,
15 it is not merely a contempt, but it is either an attempt
16 to pervert or an actual perversion of the course of
17 justice, one of the most serious matters that comes
18 before a criminal court.
19 The argument that evidence can be properly
20 received and judicially considered without the prior
21 determination of an issue of that magnitude without
22 glaring risk of prejudice to both the defence and,
23 frankly, to the Prosecution is fundamentally flawed and
24 raises, in my submission, avoidable difficulties. It
25 is a rhetorical question, but justice would not be seen
1 to be done by the world community in this case if an
2 avoidable issue was not avoided.
3 I propose, in my submission, the following simple
4 steps. The basis for the collation of the evidence is
5 plain. It is the individuals that I have named. With
6 diligence that could be done in a matter of days. Its
7 weight could be considered in a matter of hours within
8 the competence of any experienced Prosecutor. They
9 then make a final decision whether or not to
10 prosecute. That really is done at one and the same
11 time as the weight of the evidence is considered. It
12 is based upon the quality of the evidence. If the
13 decision is made not to prosecute, having considered
14 that evidence, then all well and good. One can
15 immediately restart the trial. If they do decide to
16 prosecute, having considered any evidence from the two
17 individuals from whom it is likely to come, that is
18 disclosed as it is disclosable within the rules and as
19 necessary for the defence to take necessary steps to
20 seek and clarify it. That is a matter of days. With
21 the greatest respect, if I was involved, a matter of a
22 day or two. I see no difficulty or complication in
24 The matter then comes before this Tribunal to try
25 the contempt issue as rapidly as practicable. I would
1 estimate a day or two. With expedition, this could and
2 ought to be done in a timescale that need not exceed two
3 weeks. It is relatively quick, it is simple and as far
4 as the issue is concerned, has the enormous advantage
5 and benefit of being final, because there would be a
6 determination by the Tribunal on the evidence. That,
7 in my respectful submission, is the proper judicial and
8 jurisprudence course. Anything else is not only second
9 best, but it is likely to create more difficulties and
10 delays than it solves.
11 I anticipate, with the greatest respect, that this
12 Tribunal being of the nature and the seniority that it
13 is, is not interested in second best.
14 JUDGE KARIBI WHYTE: Mr. Moran, you have something to add to
16 MR. MORAN: I think you have caught it but in the outside
17 chance that you did not see it, I will just point out
18 two things. The second to the last paragraph in the
19 Prosecutor's submission begins:
20 "Presently there has been no evidence presented in
21 the current proceeding suggesting that any accused has
22 committed contempt".
23 I would suggest that the Trial Chamber compares
24 that with paragraph 7 (b) of President Cassese's report
25 this morning. I would suggest one of two things has
1 occurred. Either I have greater faith in President
2 Cassese's ability as a fact-finder than other parties,
3 but the prosecution does not consider the judicial
4 inquiry to be the current proceeding. Clearly I think
5 paragraph 7 (b) presents some evidence.
6 JUDGE KARIBI WHYTE: I am not sure the Prosecutor
7 interpreted it the same way you do. He did not come to
8 the same conclusion.
9 MR. MORAN: Like I say, it very well could be that they take
10 a much narrower view of what President Cassese had found
11 and than I do. I may take a broader view of his
13 JUDGE KARIBI WHYTE: Actually we are not going into the
14 merits of what the report looks like now.
15 A recommendation has been made to the Prosecutor to do
16 certain things and they have decided to do other
17 things. He had in his own presentation indicated that
18 he was not actually proceeding with the prosecution for
19 contempt, but he is deciding to do other things outside
20 that. That is quite different. Ms. Residovic?
21 MS RESIDOVIC (in interpretation): Your Honour, in addition
22 to what has already been said by my learned colleagues,
23 I should like to make a few additional remarks, namely
24 it is correct that in paragraph 2 of this report the
25 Prosecutor said that for the present he has no intention
1 to prosecute, but also in the third paragraph he says
2 that he intends to pursue another path that you, your
3 Honour, have just referred to. Thereby the situation
4 we found ourselves in at the beginning has not been
5 substantively changed, because the last sentence of the
6 third paragraph states clearly that the Prosecutor will
7 pursue the investigation for two days or two years, and
8 he also says that no one can be in advance relieved of
9 any responsibility.
10 I , therefore, see a certain contradiction between
11 this position of the Prosecutor presented in his
12 response and the position when he said that at this
13 moment he does not see the evidence to be able to bring
14 contempt charges and especially no evidence that defence
15 counsel had any part in all this. The sentence that:
16 "Noone, the accused or anyone else, can be
17 exempted from this investigation by the Prosecutor",
18 actually places ourselves in the same position
19 that we found ourselves in at the beginning of the
20 discussion of this case. The Prosecutor sees no
21 conflict of interest and he elaborates on this.
22 I should like to draw attention at the last
23 paragraph of the prosecution's statement. I think
24 there was a misunderstanding of the position taken by
25 Mr. Delalic's defence counsel, namely if the position of
1 his defence counsel in this case were completely clear
2 and that there was absolutely no suspicion and that
3 there was no evidence today or tomorrow against them,
4 the question of their professional and ethical attitude
5 towards the client remains open, and according to them
6 they cannot participate in the proceedings if those
7 proceedings are linked to the investigation the
8 Prosecutor intends to conduct, and in the course of that
9 investigation certain evidence may be presented which
10 could be to the detriment of the defendant.
11 Our distinguished colleague, Mr. Greaves, tried to
12 give an example of such a possible situation. The
13 Prosecutor offers a possibility which is in accordance
14 with the rules of this Tribunal, namely it is true that
15 colleague O'Sullivan and myself were appointed by this
16 Tribunal as defence counsel. It is also true that this
17 Tribunal has the possibility to appoint other defence
18 counsel, which they feel would best protect his
19 interests and ensure a fair trial.
20 I cannot speak on behalf of future potential
21 counsel, but I know that as an attorney, if I were to
22 find myself in a situation to participate in a
23 proceedings when, due to an investigation which may last
24 two days or two years, and if this could result in any
25 prejudice towards my defendant, I would not be able to
1 participate in such proceedings. However, as I cannot
2 speak on behalf of anybody else but myself, I just wish
3 to draw the Trial Chamber's attention to this. Thank
5 JUDGE JAN: Why not take paragraph 2 as it is and proceed
6 further in the matter? In the event the prosecution
7 gets any information that anybody is responsible for the
8 leakage the prosecution will bring it to our notice and
9 we will consider what is to be done. At this stage
10 there is no evidence at all, merely on the assumption
11 that something might be found we hold up the trial.
12 I just do not understand that. Take the paragraph as
13 it is. There is no evidence against anyone at all.
14 MR. MORRISON: Your Honour, with respect, I think it is
15 probably for me to try to answer the inquiry which your
16 Honour has made. It is this, that we are operating
17 within a very small sphere here. It is not suggested
18 that there is a large group of people who are potential
19 contemnors. It is suggested that Mr. Delalic is a
20 contemnor. It is suggested he has acted in concert
21 with two named individuals. That is apparent from the
22 article itself. If those two named individuals are
23 seen by an independent investigator and unequivocally
24 state that they have no intention of giving evidence or
25 coming before this Tribunal, then I find it wholly
1 inconceivable how this issue of contempt could be taken
2 any further. That is resolvable in a very short space
3 of time.
4 JUDGE JAN: May I say something?
5 MR. MORRISON: Of course.
6 JUDGE JAN: The prosecution concedes that at this stage it
7 has no evidence. Maybe from some other source apart
8 from these press men later on, maybe after this trial is
9 over, it comes to know who is responsible for the leak.
10 Would it not give any finding -- if the prosecution
11 gives any undertaking, would it not bind its hands in
13 MR. MORRISON: If the prosecution were to give an
14 undertaking that they would not pursue this matter of
15 contempt until the conclusion of the main indictment, I
16 can see how that is a suggestion that would have to be
17 carefully considered on its merits by the defendant, and
18 I cannot speak without obviously consulting him, and
19 would also, no doubt, be considered by other counsel who
20 appear before him, but that is not what is said. What
21 is said is it has no present intention to bring contempt
22 charges. That is, with respect, not much of an
23 offer. Without evidence they could not bring contempt
24 charges. It is rather like me saying that I have no
25 present intention of winning the 100 metres at the next
1 Olympics. It is a matter of impossibility. I cannot
2 do that. They are in exactly the same impossible
3 situation. I undertake not to try to train to win the
4 100 metres at the next Olympics. If they undertake not
5 to try to obtain any evidence until the conclusion of
6 the trial, that is a different matter. It is a very
7 small compass and it is resolvable within a very small
8 compass. I am not seeking delay; I am seeking
9 expedition. This matter can be resolved quickly by the
10 efficient use of the procedures which are available.
11 I see terrible difficulties ahead if it is simply left
12 in abeyance that it might be resolved in two days, two
13 weeks, two months or two years.
14 MS McHENRY: Your Honour, if I may just briefly respond,
15 I think your Honour has -- I think the prosecution has
16 tried to be very clear and honest with everyone about
17 exactly the present situation, which is that there is
18 now no evidence against anyone and now no intention to
19 bring charges. Of course, it is the prosecution's duty
20 to investigate the matter and it will do so, and
21 although the prosecution, with all due respect,
22 appreciates defence counsel's advice as to how to
23 proceed and how long it will take, that is really a
24 matter for the prosecution. The issue before this
25 Chamber at the present time is; is there anything about
1 a yet possible future investigation and what will happen
2 in the future -- does it interfere with this case? Your
3 Honour, certainly with respect to any of the accused
4 there is absolutely nothing about the investigation
5 which would now cause any problem with this trial
7 Your Honours are going to decide the indictment
8 against the accused based upon the evidence brought
9 before you, witnesses, documents admitted into evidence
10 and such other things, and that is -- there cannot be
11 any realistic suggestion that your Honours will base
12 your decision on anything else. That is the issue now:
13 can the proceedings -- the indictment against the four
14 accused proceed? There is nothing which would mean that
15 the contempt proceedings which are hypothetically in the
16 future, which would cause any problems with this. In
17 fact, even the investigation -- my respectful colleague,
18 Mr. Morrison, suggests the prosecution should undertake
19 not to investigate. Your Honour, there is no reason
20 that the investigation is going to interfere again with
21 the pending proceedings and, in fact -- at least the
22 people on this bench will not be pursuing the
23 investigation. The issue is: can this proceeding go
24 forward, and I believe that is an issue for the accused
25 and his defence Ms. Residovic and Mr. O'Sullivan. The
1 prosecution can now not give anyone immunity. What the
2 defence is now asking the prosecution to do is say right
3 now: "We promise all of you immunity." We cannot do
4 that with respect to ourselves, with respect to anyone,
5 and there is no reason to do that.
6 The only issue that I believe is a conflict of
7 interest issue, and the prosecution does not believe
8 that there is any conflict of interest, because we do
9 not believe there is any evidence or even suggestion
10 that defence counsel was involved in this. As defence
11 counsel has pointed out, it is not the prosecution's job
12 to decide on conflict of interest. We do not see one.
13 If defence counsel, Ms. Residovic, because I do not
14 believe that this is an issue for Mr. Morrison, with all
15 due respect -- it is an issue for Ms. Residovic and
16 Mr. O'Sullivan -- if they believe there is a conflict of
17 interest, the prosecution regrets it and disagrees with
18 it, but if that is the case and they continue with that,
19 then the only thing we can suggest and this court is
20 obligated to pursue these matters expeditiously, is that
21 new counsel be appointed. If new counsel were
22 appointed, there would be no conflict of interest,
23 because certainly new counsel -- it cannot even be
24 imagined hypothetically that new counsel would have had
25 anything to do with the past possible contempt, and then
1 these proceedings could go forward.
2 Again, I emphasise we do not believe there is a
3 conflict of interest. There is absolutely no evidence
4 and absolutely no suggestion from anyone on the
5 prosecution bench that Ms. Residovic or Mr. O'Sullivan
6 were involved in this, but we cannot give anybody
7 immunity, and there is no necessity to give anyone
8 immunity, because what this Chamber is deciding at the
9 present time is the indictment against the four
10 accused. There are no contempt proceedings on-going.
11 All that is on-going right now is the indictment against
12 the four accused, which your Honours will have to decide
13 based upon the evidence brought in the trial proceedings
14 and, your Honour, we respectfully suggest that that can
15 go on immediately.
16 JUDGE KARIBI WHYTE: I think I had better get -- let us
17 have our bearing. All we are discussing now is the
18 reports of the investigation of the President into the
19 complaint made to this Trial Chamber. The
20 investigation came out to clear the two defence counsel
21 of any wrongdoing and suggest a possible contempt
22 proceedings against their clients, the first accused.
23 Now, you have also looked into the proceedings and
24 you have found that there is not sufficient evidence to
25 prosecute for that contempt. Is that not so?
1 MS McHENRY: At the present time, your Honour, that is
2 exactly correct right based on the investigation.
3 MS McHENRY: Your Honour, it is the case that based on the
4 investigation done by the President in the report, the
5 prosecution does not believe at the present time there
6 is sufficient evidence to bring forth contempt
8 JUDGE JAN: Are you talking about sufficient evidence or no
10 JUDGE KARIBI WHYTE: No evidence.
11 MS McHENRY: Well, your Honour --
12 JUDGE JAN: Are you talking of sufficient evidence or no
14 JUDGE KARIBI WHYTE: No evidence at all.
15 MS McHENRY: Your Honour, the prosecution -- if you would
17 JUDGE JAN: Because I find from your response you said no
19 JUDGE KARIBI WHYTE: That is what you stated.
20 JUDGE JAN: Because insufficient evidence probably might
21 include innuendos also.
22 JUDGE KARIBI WHYTE: Now follow the sequence I am
23 adopting. You have also not found any evidence on
24 which you have to prosecute the first accused.
25 MS McHENRY: Correct.
1 JUDGE KARIBI WHYTE: Yes. Now I do not see the basis of
2 any further proceedings against anybody two weeks, two
3 years or any other time. I find it difficult to see
4 the basis for that.
5 MS McHENRY: Well, your Honour, if --
6 JUDGE KARIBI WHYTE: Especially those involved in this
7 investigation. I am not saying that you might not find
8 other persons somewhere else who might be involved, but
9 not these persons who have been investigated.
10 MS McHENRY: Your Honour, the prosecution believes that the
11 President has invited the prosecution to consider
12 whether it is appropriate to initiate proceedings
13 against Mr. Delalic for contempt of the Tribunal.
14 JUDGE KARIBI WHYTE: Yes.
15 MS McHENRY: The prosecution is going to consider that.
16 JUDGE KARIBI WHYTE: No, it has now stated:
17 " ... does not now have evidence".
18 MS McHENRY: That is correct. The prosecution does not
19 now, based on this report, that is correct.
20 JUDGE KARIBI WHYTE: Yes. So in any event if you are not
21 investigating the issue, you are only looking for other
22 sources, not the same sources declared here.
23 MS McHENRY: Your Honour, the prosecution does not
24 understand the President's order to be a clearing of,
25 for instance, all of the accused, nor does it interpret
1 the President's order to mean that the prosecution
2 cannot undertake as part of its own duties an
4 JUDGE KARIBI WHYTE: The prosecution is always obliged to
5 investigate anything that it wants to investigate. It
6 can do that, but when an investigation has started,
7 which has in any event been inconclusive, well, I do not
8 know. It depends on how you look at it, but I do not
9 think it is wise even as a Prosecutor.
10 MS McHENRY: I understand your Honour's point but I do not
11 believe that the prosecution interprets the President's
12 report to mean that no further investigation can take
13 place with respect to, for instance, Mr. Delalic.
14 JUDGE JAN: If at any time any evidence comes to your
15 notice that anyone is involved, will you immediately
16 bring it to the notice of this Tribunal?
17 MR. OSTBERG: Absolutely, your Honour. How could we not?
18 We think we have an obligation to try to find --
19 JUDGE JAN: Then we can consider what is to be done. At
20 this stage there is no evidence but if at any stage you
21 get any evidence, will you immediately bring this to the
22 notice of the Tribunal?
23 MR. OSTBERG: Of course.
24 MR. MORRISON: Your Honour, the difficulty with this is --
25 JUDGE JAN: There should be no difficulty, because if there
1 is any evidence available involving anyone, they will
2 bring it to our notice, and we can consider what will be
3 done, whether the trial is to be held up so the whole
4 thing is cleared up or nothing is to be done further.
5 At this stage it is too premature to say anything.
6 MR. MORRISON: Your Honour, that is an observation with
7 which I , with respect, entirely agree. It is an
8 observation which should have had its effect when this
9 information first came into the hands of the
10 prosecution. The prosecution chose, to use an English
11 expression, to raise a hare. The hare is running --
12 JUDGE JAN: May I say something before you start? You have
13 seen the second article, not the interview but the
14 second article, that the list of witnesses is available
15 to so many people. The defence counsel insist on the
16 paper not to publish the list because it might affect
17 their duty towards the Tribunal. So defence counsel
18 were, in fact, against the publication of any list.
19 How did the paper obtain the list? The paper has
20 indicated -- the article itself indicates from where it
21 could have obtained the list for a small amount of
22 money. At the moment there is nothing against anyone,
23 not only Delalic, because he has disowned the interview.
24 MR. MORRISON: Your Honour, with the greatest of respect,
25 exactly. If that had been the position without it
1 being raised and left to this Tribunal and the
2 defendants and the defence, in the last week or
3 thereabouts, however long it has been and I can't say
4 because I have not been here, this trial would have
5 carried on hearing the evidence on indictment as if
6 nothing has happened, because in reality nothing had
7 happened up until the prosecution made it happen. The
8 prosecution did not produce evidence. They produced
9 supposition. With the greatest of respect, what should
10 have happened is that the prosecution should have put
11 into train an investigation to see if there was
12 evidence, and that evidence should have been put before
13 the Tribunal.
14 JUDGE JAN: Then they would have another complaint by the
15 defence that "they are investigating us", so they
16 brought it to our notice.
17 MR. MORRISON: That may be the case, but in my respectful
18 submission, that would have been the proper way, the
19 judicial with a small "j" way of doing it, so that the
20 Tribunal was presented with evidence and not with
21 supposition. What we have ended up with is a long
22 delay and no doubt considerable expense based upon
23 supposition, and what have we ended up with?
24 Supposition. We are no further forward, but what it
25 has created -- the only thing that has come out of it is
1 ill. What it has created is this difficulty for the
2 defendant Mr. Delalic and his counsel. To say there was
3 not a suggestion he has been involved in contempt is
4 disingenuous. There has plainly been a suggestion
5 before the Tribunal that he is.
6 JUDGE JAN: That is why the prosecution have said plainly
7 in paragraph 2 "we have no evidence." I am not using
8 the word "insufficient" as used by Miss McHenry. "No
9 evidence against anyone." The doubt earlier created,
10 that should clear it now, and their undertaking to
11 inform the Tribunal the moment they get any evidence
12 against anyone.
13 MR. MORRISON: Well, your Honour, if the prosecution want to
14 run after the hare, catch it and put it back in the box,
15 I would be happier than anybody.
16 JUDGE JAN: They seem to have done in this paragraph 2.
17 JUDGE KARIBI WHYTE: Actually what worries me is the
18 indefinite nature of whatever investigation you intend
19 to pursue.
20 MR. OSTBERG: This, your Honour, has to do with the
21 impossibility to predict what will be the result of an
22 investigation. I cannot see a Prosecutor at the
23 Tribunal, this one or anywhere, who could sit down and
24 find a contempt such as this one we have experienced and
25 not look into it. We started with the -- to try to
1 find a fast way, having the President or somebody named
2 by him, as we asked for, to see if it was possible to
3 find a leak rapidly. That ended up in a way
4 inconclusively, without any conclusion, and an
5 invitation to continue to look at it in a matter of this
6 gravity. It is impossible for a Prosecutor, I believe,
7 to say: "We will do that in three weeks, four weeks."
8 We cannot tell that. We think it is an obligation of
9 the Prosecutor here, as always, to see if we can find
10 and stop this, and I find it utterly important, looking
11 on our responsibilities we have against the witnesses we
12 bring and the protections we give them, and I can find
13 no -- listening to Mr. Morrison that we should have kept
14 quiet and gone on, I cannot see this would have been a
15 possibility. We brought a fact, namely the fact that
16 our protected and other witnesses had been divulged in
17 the paper in the former Yugoslavia. I would like to say
18 we can do this in one week, no problem, and in
19 Mr. Morrison's words, to make it final, but this is
20 against nature. It cannot be done. It cannot be
21 done. We do not know -- one day every Prosecutor has
22 to close its case and send it to the archives, of
23 course, but this is not the situation for the moment,
24 and it is the standpoint of the Prosecutor that we have
25 to look into it and say we cannot say when it is
2 JUDGE KARIBI WHYTE: No, but in this case is it not the
3 involvement of Delalic that is worrying now?
4 MR. OSTBERG: That is of course worrying.
5 JUDGE KARIBI WHYTE: That is the only thing you are
6 pursuing now.
7 MR. OSTBERG: No. No. No. What the prosecution has in
8 mind is not something so narrow.
9 JUDGE KARIBI WHYTE: What is the person before the Trial
10 Chamber who needs to be cleared of any wrongdoing?
11 MR. OSTBERG: Yes.
12 JUDGE KARIBI WHYTE: If you actually intend to follow his
13 case as vigorously as you put it, you can follow the
14 case to conclusion.
15 MR. OSTBERG: I can indeed.
16 JUDGE KARIBI WHYTE: Knowing the participation in the whole
18 MR. OSTBERG: As this case stands, as far as I can see
19 Mr. Delalic belongs to the suspects. He stands out as
20 giving -- the man who gave the interview, the man who
21 gave the names of at least somebody, etc.
22 JUDGE JAN: But he has disowned it and the paper does not
23 say the list of witnesses comes from him. It does not
24 say that.
25 MR. OSTBERG: The same thing is we can again -- I can at
1 least not say to be honest that that is easy to find
2 out. I do not think it is easy to find out but I think
3 it lies in the ambit of what the Prosecutor should do.
4 JUDGE KARIBI WHYTE: No. Here is a person restricted
5 somewhere. His mobility and his sources are
6 controlled. You think you cannot try to check those
7 things and know how easily he could be involved in the
9 MR. OSTBERG: Of course. It sounds to me an impossibility
10 that this can be done in so much days and then we have
11 exhausted our ways to find out what happened.
12 JUDGE JAN: There have been so many instances of fake
13 interviews appearing in so many cases. Why not accept
14 Mr. Delalic's statement as it is, unless you have
15 evidence, and you have undertaken to bring any evidence
16 that you have as soon as you receive it before the
18 MR. OSTBERG: The standpoint of the Prosecutor is that we
19 cannot promise a time frame.
20 JUDGE JAN: That is what I pointed out to Mr. Morrison.
21 Maybe you get the evidence three or four years later.
22 So how can you sort of bind yourself to any undertaking
23 given at this stage?
24 MR. OSTBERG: There is a time limit to everything, of
1 JUDGE KARIBI WHYTE: Actually has anyone contradicted his
3 MR. OSTBERG: Not so far. This investigation has not even
4 started. The investigation initiated by the invitation
5 of the President has not yet started. It will not be
6 pursued by any of us standing here. It will be some
7 other organ of the Office of the Prosecutor.
8 JUDGE KARIBI WHYTE: It will be safer for you to announce
9 how soon you can proceed with your investigation so that
10 all those involved in this trial will know exactly how
11 to take their positions.
12 MR. OSTBERG: I have no mandate to say that to the Trial
13 Chamber today.
14 MR. MORRISON: I would not want to repeat myself, your
15 Honour, but the reality is that this does exist within a
16 small compass. The learned President has found out the
17 name of the journalist and his editor. With the
18 greatest respect, it seems inconceivable that if
19 evidence is not forthcoming from one or both of those
20 two named individuals, then there will be no evidence
21 forthcoming upon which any reasonable Tribunal could
23 JUDGE JAN: At this stage. At this stage.
24 MR. MORRISON: At this stage.
25 JUDGE JAN: Maybe some time later, maybe a month later they
1 get the information from some other source. How can
2 anybody bind themselves down at this stage?
3 MR. MORRISON: Your Honour, with respect, I am perhaps being
4 misunderstood. I am not asking for immunity. I am
5 not asking for a binding. What I am asking is that the
6 investigation is carried out swiftly within the
7 parameters of what is known.
8 JUDGE JAN: That is paragraph 2.
9 MR. MORRISON: And in reality that can be done quickly.
10 There are two named individuals. With all the
11 facilities at the disposal of the prosecution it is
12 inconceivable, in my respectful submission, that they
13 cannot be seen and this be determined. Is there
14 anything that they are going to say that could remotely
15 be considered as probative evidence in this case? Are
16 they going to say anything? Are they going to be
17 cautioned and simply keep quiet? That is something that
18 an investigating detective has to do day in, day out in
19 cases large and small. When he has done it, it usually
20 takes an hour or two of careful questioning to determine
21 what the outcome is. If that course is undertaken with
22 these two people and they, as I anticipate, either stand
23 upon their right of silence or simply refuse to give any
24 indication at all, then the prospect of any evidence
25 being gleaned from those sources, which are the
1 principal and probably the only sources that the
2 prosecution could rely upon, means that this matter can
3 be made final. They can -- a line can be drawn
4 underneath this element of the case. The Tribunal can
5 get on with it. With the greatest respect to my
6 learned friend, I do not see how this can take more than
7 a few days if it is done with expedition.
8 JUDGE JAN: But you have seen the reply of the counsel who
9 spoke to the President. He has advised his clients not
10 to answer, to give any answers. Now, in my country
11 journalists prefer to go to jail for contempt rather
12 than disclose their source of information and I think
13 this probably is the stance taken by the journalist in
15 MR. MORRISON: With great respect, your Honour, I suspect it
16 will be. If he is seen by an empowered Prosecutor who
17 interviews him under caution and he says that, then we
18 can draw a line under this case, and that can be done
19 very quickly indeed.
20 JUDGE JAN: But, as I said, maybe from some other source
21 they find out who had disclosed the names, then would
22 that not bind the hands of the prosecution at this
24 MR. MORRISON: No. With respect, it would not. If the
25 prosecution finds at some point in the future other
1 evidence which goes to show that Mr. Delalic or anybody
2 else is guilty of a contempt, of course they are free to
3 consider that information, and if it is viable, bring it
4 before the Tribunal, but that is speculative and in the
5 future. This is not speculative. These are names
6 that are known. These are articles which have been
7 written and are known. Their parameters and their
8 contents are finite. There is nothing in this for
9 speculation. This can be done very quickly indeed.
10 Unless it is done, my fear is that this Tribunal is
11 going to be put to a great deal more delay and expense
12 than is necessary. This is a resolvable problem.
13 What it needs is someone, with the greatest respect, to
14 -- I use another English expression, get a grip on it,
15 get it over and done with in the Prosecutor's Office.
16 MS McHENRY: Your Honour, we will just briefly respond.
17 With all due respect, it is not for defence counsel to
18 tell the prosecution exactly how to conduct the
19 investigation or how long it will take. The
20 prosecution will undertake vigorously an investigation
21 and, as the Chamber has directed, we will immediately
22 notify the Chamber if there is evidence against anyone
23 involved, but at the present time there are no contempt
24 proceedings. If there are later hypothetical contempt
25 proceedings, they do not and need not affect these
1 proceedings, and the prosecution believes that we can go
2 forward immediately with this trial.
3 JUDGE KARIBI WHYTE: Mr. Ackerman?
4 MR. ACKERMAN: Your Honours, I have tried quite hard to
5 remain silent throughout this, and I find it now
6 impossible. I rise with the indulgence of the court
7 more in the nature of amicus curiae. It seems to me
8 that a great lot is being made out of very little with
9 regard to this matter. The prosecution has now had 13
10 days since they discovered this. On the first day this
11 was discovered the name of the journalist who wrote the
12 article was known to the Prosecution. I do not know
13 how many investigators are employed by the Prosecutor's
14 office, but it is a lot. There are several of them.
15 It seems to me that it is so simple to put an
16 investigator on an airplane, send him to see this
17 journalist and find out if the journalist is going to
18 talk. I think that quickly deals with the issues that
19 are before this court. I am getting very frustrated
20 with the delays that are being caused in this case by
21 what I think is a matter that could have been solved
22 rather quickly and can still be solved rather quickly.
23 This court, I believe, contrary to what the
24 prosecution has suggested to you, based upon its
25 responsibility to the defendants in case and to justice,
1 has certain supervisory powers over the conduct of the
2 prosecution and over the conduct of the defence, and
3 I think it would be entirely appropriate for this court
4 to order the prosecution within the next three days to
5 have an investigator contact these two witnesses that
6 have been identified by President Cassese and report
7 back as to whether or not they are willing to give
8 statements regarding this matter. If they are not,
9 I think that ends it. If they are, then we will have
10 information. My guess is they are going to say: "We're
11 not talking to anybody", and that we can move forward
12 with this trial. We should be able to do that as
13 quickly as Monday or Tuesday.
14 If I were to stand up in this court at the end of
15 the defence case and say to your Honours, as the
16 Prosecutor is saying to you now: "I have learned
17 information in the course of listening to the
18 Prosecution's case that requires me to conduct an
19 investigation. I have no idea how long that will take
20 your Honours. I will let you know when the defence is
21 ready to put on the defence case", you would find that
22 outrageous. You would not permit me to do that.
23 Yet the prosecution stands up in this court and
24 says: "But we are the prosecution and we are permitted
25 to take as long as we want to conduct an investigation
1 and cause as many difficulties to this case as we want,
2 because we are the prosecution." I think it is totally
3 appropriate for this court to say: "No. You are
4 ordered to conduct what investigation you want to
5 conduct especially with regard to this reporter and this
6 editor by Monday and tell us by Monday whether you have
7 found out any information or not. If they are not
8 going to talk to you, then we are going forward Monday
9 afternoon or Tuesday morning, or whenever, but we need
10 to move this case". Thank you.
11 JUDGE KARIBI WHYTE: Thank you very much, Mr. Ackerman. If
12 you look at paragraph 6 of the President's report, the
13 unwillingness of Tahir Pervan to give evidence there
14 before a magistrate or by telephone has been very
15 clearly stated. He has no intention to give any
16 evidence. In addition to that when, in fact, the
17 President got back to his counsel, his counsel clearly
18 stated he has advised the editor or Pervan not to say
20 Now, I do not know what going there again would do
21 to such a group of persons. I suppose the presence of
22 an investigator there might make a difference, but it
23 seems fairly clear that they are not cooperating, and if
24 this is the only source of evidence against the suspect,
25 I think it is fairly remote to think that one can get
1 anything other than being fanciful or guessing as to
2 what had transpired between them. It appears the
3 prosecution is taking a different line of action. What
4 they are now doing possibly is to investigate a
5 different line, not actually the terms of reference
6 which talks about the leakage of the information to the
7 press, but whether Delalic was the one who disclosed
8 certain names to the journalists. This is -- I do not
9 know whether -- this is not in my opinion from the terms
10 of reference. The terms of reference were quite clear
11 and precise. I agree it is contempt if the first accused
12 did that, but whether that is part of the whole
13 proceedings is a different matter.
14 At any stage the prosecution is entitled to
15 investigate whatever has been an offence within the
16 Tribunal and they are free to do that, but whether it
17 falls within the parameters of the reference is what
18 really beats me. Since they are bent on investigating
19 it, I suppose they will have to do the investigation and
20 report to the Trial Chamber, but, you see, if from their
21 first -- second paragraph here, if they have no evidence
22 now for contempt proceedings, it means the investigation
23 is looking for evidence to support contempt
24 proceedings. This is what occurs to me.
25 (Pause).. We have some problems about the
1 decision as relatively as easy as it is. I think a few
2 difficulties still arise. Actually our problem is the
3 unwillingness of counsel for Delalic to continue in the
4 face of investigation. I do not know whether
5 Ms. Residovic would not mind carrying on until it is
6 solved, because there is no suspicion against you or
7 Professor O'Sullivan. You have been cleared. The
8 only subject matter for investigation the prosecution
9 now says is your client. So I do not see how you are
10 indicted or seriously affected by what is going on,
11 because even if you want to withdraw, we are not sure
12 what Delalic's position will be because he might
13 object. Can we hear your views on what position you
14 are taking on this matter?
15 MS RESIDOVIC (in interpretation): Please allow me a moment
16 to consult with my colleague. (Pause).
17 MR. MORRISON: Your Honour, while that consultation is
18 taking place, may I simply indicate paragraph 6 of the
19 learned President's report. Though he deals with the
20 position of Mr. Tahir Pervan, there is no indication that
21 the editor has been seen or that his views have been
23 MS RESIDOVIC (in interpretation): Your Honours, after
24 consulting with my colleague Professor O'Sullivan,
25 essentially we think that our professional and ethical
1 position remains unchanged with respect to the former
2 position. However, we have not consulted with our
3 client, and our position being as it is, perhaps a
4 consultation with our client would either re-confirm
5 this position or provide additional explanations.
6 However, our original position remains unchanged.
7 Unfortunately Mr. Delalic is not here, so that we can
8 re-confirm this position with him as well.
9 JUDGE KARIBI WHYTE: Actually is it your position that if
10 your client is charged with contempt, you will be in a
11 difficulty to defend him?
12 MS RESIDOVIC (in interpretation): Your Honours, we had not
13 addressed that issue. We addressed the issue on the
14 situation in which we would find ourselves when we would
15 continue to represent our client during the course of
16 the investigation that may point to a conflict of
17 interest or a situation which would make the position of
18 our client more difficult and in which we participate as
19 his defence counsel. So that is the issue, not the
20 right of the Prosecutor to conduct an investigation, or
21 if he has any evidence to point to the person or persons
22 responsible for the orders issued by the Tribunal.
23 JUDGE KARIBI WHYTE: The issue in this case now is the
24 possibility of investigating your client for a possible
25 contempt proceedings. That is the only thing that is
1 in issue now. The prosecution says for the time being
2 the investigation of the President has not revealed any
3 evidence, but they keep their options open in case there
4 is evidence. So it is only in that case that there
5 will be a proceeding against him.
6 Now, is it your suggestion that if such a
7 situation arises, that is in conflict with your
8 professional duty?
9 JUDGE JAN: In any case, the prosecution bring to our
10 notice any time they discover any evidence against your
11 client. Why not defer your decision? If there is any
12 evidence which is brought to our notice, we will
13 immediately consider all the grounds which you are
14 taking now. It is premature at the moment to take a
15 final decision in this regard for you. There is no
16 evidence so far. If there is any, it will be brought
17 to your notice immediately. Then you can decide
18 whether you want to continue or not.
19 JUDGE KARIBI WHYTE: You have a continuing duty to defend
20 him whatever charges are brought against him, and that
21 does not conflict with your position as defence
23 JUDGE ODIO BENITO: Madame Residovic, it is clear for the
24 Trial Chamber, if you allow me, that with regard to
25 defence counsel, Edina Residovic and Eugene O'Sullivan,
1 there is no evidence of misconduct on their part
2 according to the report of President Cassese and
3 according to the report of the prosecution also, because
4 they stated clearly:
5 "The Prosecution has no evidence that any defence
6 counsel was involved in any contempt, and the
7 prosecution has not and does not suggest in any way that
8 any defence counsel was involved".
9 So for the trial chamber it is clear that both of
10 you have not any problem to continue with the
11 proceedings. So the only problem we have here is to
12 determine the situation of Mr. Delalic according to the
13 President's report but not against you and Professor
15 MS RESIDOVIC (in interpretation): Yes. So we are
16 revisiting the previous issue, and that is the issue of
17 us as counsel when we asked to make sure there was no
18 conflict and interest so that we could vigorously and
19 could vigorously defend our client, which would
20 constitute a fair and just trial before this Trial
21 Chamber. This was our original position, and it is
22 possible that it may have been resolved by some of the
23 quotes you have just offered from the report of the
24 President as well as the prosecution's response.
25 However, with the continuing investigation, I do not see
1 -- I cannot foresee how much conflict of interest can
2 arise from it, and therefore, your Honours, I thought
3 that at the beginning of this hearing today it seemed to
4 me pretty clear that the prosecution had within a
5 certain deadline to provide a clear answer whether there
6 is any suspicion with respect to either of us so that we
7 could continue with this trial, but in a continuing
8 investigation it is always possible that this situation
9 be brought back to its very beginning. I do not know
10 whether I have been clear enough, but the continuing
11 investigation against our client which can put him in a
12 position like that continues to be a problem.
13 JUDGE KARIBI WHYTE: I do not see how you will abandon your
14 client merely because there is proceedings against him
15 for contempt, or there is a likelihood to be one.
16 Nobody has said there is any now. There is nobody
17 saying there is proceedings now. All the prosecution
18 is saying is it is investigating whether there could
19 be. So you do not abandon him by talking about your
20 conflict, because I do not see what conflict. In fact,
21 you are duty-bound to defend him as his counsel.
22 MS RESIDOVIC (in interpretation): Your Honours, at no time
23 did we say before this Tribunal that we would leave the
24 defence of our client. It was something that came from
25 the other side of the bench. At this point we will
1 continue to defend our client. We will continue to
2 defend him before this Trial Chamber with no
3 restrictions, provided there is no conflict of
4 interest. We will continue to defend him and we will
5 continue to respect his position. That issue was never
6 raised among us.
7 JUDGE KARIBI WHYTE: Thank you very much. So you are not
8 abandoning him.
9 MS McHENRY: We will just clarify. The prosecution does
10 not believe there is any suspicion either against
11 counsel. So the record is clear, I notice that Ms.
12 Residovic has indicated that her client is not
13 present. We note that three of the accused are not
14 present. So the record is clear, I understand that all
15 of the accused have waived their right to appear.
16 MR. MORAN: To clarify the record on that point, I have
17 conferred with my client. He has authorised me to
18 waive his presence here this afternoon on his behalf for
19 this hearing.
20 JUDGE KARIBI WHYTE: Thank you very much.
21 MR. GREAVES: I have been desperately trying not to say a
22 word all afternoon on the grounds that occasional
23 silence from Mr.. Greaves is probably a good thing. Can
24 I offer this. I support my learned friend Mr.. Ackerman's
25 suggestion. Those of us who have the responsibility
1 from time to time of prosecuting cases at home have it
2 as part of our task that we advise the Crown Prosecution
3 Service as to what evidence should be sought. So
4 I hope the Tribunal will accept from me that both my
5 learned friend Mr.. Morrison and I , and I am sure other
6 prosecutors in court have experience of directing what
7 should be done in order to efficaciously bring a matter
8 to fruition. I have been sitting here all afternoon
9 trying to think of who in the next couple of years might
10 possibly turn up out of the woodwork and proffer
11 evidence to assist the prosecution in any way at all.
12 There are a very limited number of places where I, if I
13 was giving an advice on evidence in this case, could
14 conceivably think of sending my investigators to go and
15 ask questions. They are these: counsel for the
16 defence could properly be interviewed. It is likely
17 that they would say nothing, exercising their right of
18 silence. The defendant can be interviewed. Again it
19 is likely he would either exercise his right to silence
20 or say a very limited amount of things. There are two
21 other potential witnesses. One of those has already
22 been seen. One of the reasons that he gives for being
23 unable to travel to The Hague is he has lost his
24 passport. There are ways round that. Travel papers
25 can be provided to assist him to come to The Hague and
1 give his account about it. There is one other person
2 who comes to mind who might have information and that is
3 the editor, who has not yet been seen. It will be the
4 matter of a moment over this weekend for the
5 Prosecutor's investigators to lay hands on this man and
6 talk to him. As I say, beyond those people, I am
7 struggling to think of anybody who is conceivably able
8 to give any evidence relating to this matter. If
9 I have missed somebody, I am sure the prosecution will
10 no doubt bring that person's attention -- name to our
11 attention. So the reality is, as my learned friend
12 Mr.. Ackerman said, if your Honours are prepared to do
13 this, you are entitled to direct the prosecution to
14 conduct an investigation and to put a time limit on it,
15 and to tell them: "If you have not come up with anything
16 at that stage, that is an end of the matter." It will
17 resolve every problem.
18 JUDGE KARIBI WHYTE: Mr.. Ostberg, have you any reaction to
19 this before we terminate this dialogue?
20 MR. OSTBERG: I will indeed. We have heard suggestions as
21 to what the Prosecutor should do to easily and rapidly
22 conclude his investigation and come up with a final
23 decision, and I have tried to bring to the Trial Chamber
24 my view on that. That is not possible. That is not
25 possible to do. There are lots of avenues that I am
1 not mandated to bring to the Trial Chamber or the
2 defence for the prosecution's investigating personnel to
3 look into this matter. Of course, I cannot preclude
4 the Trial Chamber to prevent the Prosecutor to do things
5 and set up time-frames, but from the side of the
6 prosecution I cannot promise to do just these few things
7 that have been suggested. There are many other things
8 to be done. I concur totally with your Honour in
9 saying that this is, as far as I understood, nothing
10 that prevents this trial to go on. We stand by our
11 first view on this. These are two different matters
12 and I do hope that Madam Residovic's sees no conflict of
13 interest and that this trial can just go on, which is
14 exactly what the prosecution wants to do.
15 JUDGE KARIBI WHYTE: Actually the position you are taking
16 is that the investigation about the complicity of
17 Delalic goes beyond the persons we have now known that
18 are involved in it.
19 MR. OSTBERG: It must also be encompassed in it. He is not
20 ruled out and other persons who may pop up I can have no
21 prediction of.
22 JUDGE KARIBI WHYTE: So you still keep your likelihood of
23 investigation to two weeks or two months or years,
25 MR. OSTBERG: Might be.
1 JUDGE KARIBI WHYTE: Indefinite.
2 MR. OSTBERG: I have tried to say from my prosecutorial
3 experience it is not possible to say this day and then
4 it is final.
5 JUDGE KARIBI WHYTE: I understand you to say that he is
6 still the subject matter of investigation for this
8 MR. OSTBERG: Yes. That is the position.
9 JUDGE KARIBI WHYTE: That is what you say?
10 MR. OSTBERG: That is the position.
11 JUDGE KARIBI WHYTE: (Pause). I am very grateful for all
12 the assistance counsel have given to the Trial Chamber
13 in resolving this issue. I started with all optimism
14 and good wishes. I thought that things were easy.
15 I did not expect such a protracted argument for matters
16 which are as simple as these are. The Prosecutor has
17 decided that all is not over and that there is still
18 something left for investigations. I suppose that is
19 his discretion, if he wants to do it that way.
20 I think the issues are not as simple as that. He
21 knows the implications of delaying and those are
22 difficulties that might ensue if things go contrary to
23 how the arguments have been going and I think he will
24 expedite every facility he has to make sure that this
25 thing is concluded within a very short time.
1 Now, I do not think counsel for Delalic will have
2 any conflict. They have been very clear -- they have
3 been cleared of any wrongdoing. If, in fact, it
4 arises, all they need do here is to defend their client
5 with all the vigour at their disposal, but I think also
6 it is not in the best interests of the Prosecutor to
7 delay clearing this fog which is still hanging around
8 the accused persons. Even if one might say it is a
9 little different from the same thing, it is still a
10 matter which arises from the same transaction. The
11 whole episode arose from the trial he is standing, and
12 if there should be something incriminating against him
13 in addition to his trial, it should be cleared as early
14 as possible. It should not be allowed to hang over him
15 and let him continue feeling jittery about its coming
17 It is not unusual -- I am surprised that Mr..
18 Ostberg and Ms. McHenry are not comfortable with defence
19 counsel making suggestions. I think it is a very
20 common thing. It is common for defence counsel
21 assisting suggesting as to how you can go about a
22 particular Prosecution, because it is possible you have
23 not thought about that. Some others with considerable
24 experience might have adverted to this issue and found
25 ways of getting over them. In this regard I still
1 believe -- I agree with them -- the earlier the matter
2 is settled, the better for everyone, because it does not
3 reflect well on the prosecution, which had all the
4 opportunities to turn over evidence to the President
5 when he was making his investigation. You had all
6 opportunity to make suggestions and direct us to what
7 should be done when the investigation was going on.
8 For the time being the Trial Chamber will adjourn
9 until 10.00 am tomorrow. Thank you very much.
10 (5.30 pm)
11 (Hearing adjourned until 10.00 tomorrow morning)