Tribunal Criminal Tribunal for the Former Yugoslavia

Page 13116

1 --- Tuesday, 9th June, 1998

2 (In open session)

3 --- On commencing at 10.07 a.m.

4 JUDGE KARIBI-WHYTE: Good morning, ladies and

5 gentlemen. We have before the Trial Chamber this

6 morning a couple of motions which have been filed for

7 some time. Mainly because we hadn't received the

8 reactions to them, we did not bring them up for

9 arguments. But now we have received reactions in

10 respect of a few of them. There is one we can hear

11 without any formal reaction, a reply from the

12 Prosecution. I think we can deal with that first

13 before we consider the other motions.

14 Now, we have Zdravko Mucic's confidential

15 motion for protective measures in respect of witnesses

16 DA2, DD2, DC2, DE2, DF2 and DG2 filed on the 5th of

17 June. Is Mr. Mucic's Counsel prepared to argue it now?

18 MR. DURIC: Yes, we are, Your Honours.

19 JUDGE KARIBI-WHYTE: Has the Prosecution any

20 views on the confidential motion? If you have, then

21 we'll know what to do with this.

22 MS. McHENRY: Your Honour, Teresa McHenry for

23 the Prosecution. The Prosecution would defer to the

24 Court about the motion for protective orders. I just

25 would note, I assume Defence Counsel is aware that with

Page 13117

1 respect to some witnesses, depending on the nature of

2 their testimony, and the exact nature of their

3 relationship, it may be that some of them are going to,

4 in effect, have to testify in private session. In

5 other words, it's possible that their testimony will,

6 in effect, reveal their identity. But I assume that's

7 something that Defence Counsel is aware of one way or

8 the other. I just note that as an issue that occurred

9 to us. But with respect to the merits of the motion,

10 we defer to the Court.

11 MR. DURIC: Yes, Your Honours. We pretty

12 much outlined all our reasons, the argument in the

13 motion before you, and so we also defer the matter to

14 Your Honours.

15 JUDGE KARIBI-WHYTE: I think the main

16 consideration is in nature of the protection that you

17 actually require, because that should be consistent

18 with the nature of the testimony of the witness, and

19 the circumstances in which he finds himself in The

20 Hague. Why are there are so many of them, from A to D,

21 to K, isn't it? The relief you require, this is what I

22 --

23 MR. DURIC: You see, Your Honours, all these

24 witnesses are very close members of the family,

25 actually the family itself, and some very close

Page 13118

1 friends. As you very well know, the war may have ended

2 in Bosnia-Herzegovina, but it has left very deep scars,

3 tensions still run very high, and the healing process

4 is a very slow one. These people have to return to

5 their homeland and live with other ethnic groups.

6 And for all these reasons, both personal and

7 both subjective ones, we don't think that the grounds

8 are -- all these reasons are fairly grounded, you know,

9 for the motion to be accepted.

10 JUDGE KARIBI-WHYTE: How do you justify your

11 protection in respect of D -- A, B, C, D?

12 MR. DURIC: Well, for all these reasons,

13 especially Witness D, because Witness D --

14 JUDGE KARIBI-WHYTE: Not Witness D. Reason

15 D.

16 MR. DURIC: Oh, reason D.


18 MR. DURIC: Well, we justify it because, Your

19 Honours, although we are calling all these witnesses,

20 there may be a situation that we might not put all --

21 you know, the particular -- one particular witness on

22 the stand. Then we would, of course, notify the

23 Chambers of our decision. And especially if some of

24 these witnesses express their wish that they not be

25 protected, and of course we'll notify the Trial Chamber

Page 13119

1 and then we'll ask for the cessation for these measures

2 to apply. But for the time being they have all

3 expressed the wish to be protected. So that's what we

4 are passing onto the Chambers.

5 JUDGE JAN: Will you be satisfied if the

6 names are not disclosed to the public and the faces are

7 not shown to the public, these two measures only? Will

8 you be satisfied with that?

9 MR. DURIC: Definitely would be satisfied.

10 But we would most certainly ask, you know, for all

11 these measures --

12 JUDGE JAN: I am just asking you. This is

13 what privilege has been granted to the Prosecution

14 witnesses. Will you be satisfied with that?

15 MR. DURIC: Definitely, we will be

16 satisfied. With these witnesses, yes.

17 JUDGE KARIBI-WHYTE: The interest is that the

18 identity of the witness not be disclosed, so that any

19 other device which enable you to maintain their

20 position should be sufficient?

21 MR. DURIC: I think it would.

22 JUDGE JAN: You will be satisfied with that?

23 MR. DURIC: We will.

24 JUDGE JAN: Names not disclosed, face not --

25 MR. DURIC: Image distorted.

Page 13120

1 JUDGE JAN: To that extent, I think we can

2 grant this.

3 JUDGE KARIBI-WHYTE: In respect of that

4 protection, I think this would be sufficient for you,

5 and the Trial Chamber will grant that.

6 MR. DURIC: Thank you, Your Honours.

7 JUDGE KARIBI-WHYTE: But otherwise the

8 presence in the witness box and they will be known by

9 the accused persons, will see them, and Counsel will

10 see them.

11 MR. DURIC: Yes, Your Honours.

12 JUDGE KARIBI-WHYTE: Now, the next motion we

13 have is the motion by the defendant, Delalic,

14 requesting procedures of final determination of the

15 charges against him. The Prosecution has reacted to

16 that in reply. Is Counsel prepared to argue that?

17 MS. RESIDOVIC: Your Honours, I don't know

18 whether this a mistake. We have not received their

19 reply.


21 MS. McHENRY: The Prosecution replied

22 yesterday to --

23 JUDGE JAN: I haven't got it.

24 MS. RESIDOVIC: Your Honours, we have not

25 received this reply.

Page 13121


2 JUDGE JAN: I haven't too.

3 JUDGE KARIBI-WHYTE: We'll have to wait until

4 you receive the reply.

5 We have other motions by Hazim Delic. Do you

6 remember when last it was raised and was argued already

7 on the 28th of May. Ms. McHenry, what was the motion

8 you replied to?

9 MS. McHENRY: Excuse me. Your Honours, on

10 the 2nd of June the Defence of Mr. Delalic filed a

11 motion regarding the presentation of evidence. We

12 responded to that yesterday. It is unfortunately

13 entitled "Prosecution motion to exclude presentation of

14 evidence immediately after the close of Delalic

15 Defence." I think it would have been more

16 appropriately entitled "Prosecution opposition to

17 Defence motion" to do this. But it is, in effect, a

18 response to the Defence motion. And I think it would

19 be more expeditiously considered by the Chamber as a

20 response rather than as a new motion.

21 We apologise. As Your Honours know, their

22 motion was filed very quickly, and rather than wait

23 until the 14 days, when Your Honours indicated

24 yesterday that you wanted to hear it, we very quickly

25 prepared a response. And so I think we did not entitle

Page 13122

1 it in the best possible way.

2 JUDGE JAN: It's not an independent motion,

3 yours, it's a reply?

4 MS. McHENRY: Yes.

5 JUDGE KARIBI-WHYTE: That's why in most cases

6 it's better to reply in the title to which the motion

7 was made.

8 MS. McHENRY: You are absolutely right, Your

9 Honour. I actually think we did the same thing with

10 respect to expert witnesses in the recent past, and

11 that is also, I think, not the best way to reply. And

12 we will try to be paying more attention to that,

13 despite even when we are replying very quickly.

14 JUDGE KARIBI-WHYTE: I was referring to

15 Delic's motions, which was partly considered, but not

16 concluded, because of certain shortcomings in the

17 motion itself. Where do you stand now?

18 MR. KARABDIC: We actually submitted two

19 motions, Your Honours. One of them refers to the

20 issuance of a binding order for the production of

21 documents, a binding order on the Federal Republic of

22 Yugoslavia. As the Prosecutor objected, saying that we

23 did not, prior to that, address the Government of the

24 Federal Republic, the liberation of this particular

25 motion was postponed. We did address the Government of

Page 13123

1 the Federal Republic of Yugoslavia through its Embassy

2 in The Hague, but to this date we have received no

3 reply from them.

4 Perhaps we should wait for a couple days more

5 and then the Defence will adopt a final position as to

6 whether it will continue to seek the issuance of this

7 binding order for the production of documents of

8 evidentiary documents. Since some 11 or 12 days have

9 elapsed since then, and in view of the fact that this

10 involves contacts between organs which are here in

11 Holland and those in Belgrade, we believe that perhaps

12 we should wait for a while more and then the Defence

13 will finally decide whether it will seek this motion,

14 continue to seek this motion, or will be satisfied

15 otherwise, and give it up as a matter of fact.

16 The second motion that we filed was the one

17 which we requested an expert opinion to be given by --

18 I cannot recall the name of the gentleman at this

19 particular moment, but it was a police inspector who

20 was to prove the consequences which emanate from a man

21 being hit with a baseball bat, from his experience. As

22 regards to that particular motion, the Trial Chamber

23 instructed us that we were to submit a request for that

24 fact to be elucidated, for that fact to be ascertained

25 by a specialist doctor, a forensic medical expert.

Page 13124

1 I am in touch with my colleague in Houston,

2 and so far we have not found the suitable person to do

3 that, and we will be doing that subsequently, after we

4 have found the one.

5 So we propose that the consideration of both

6 motions of ours be postponed for a later date. Thank

7 you.

8 JUDGE KARIBI-WHYTE: I'm not too sure from

9 your motion whether your request to the Federal

10 Republic of Yugoslavia, even if it is true, the Embassy

11 here was made, because normally at least that should

12 have been an annexe to your motion indicating the

13 documents you are asking for. So that if there is any

14 discussion, one has to exercise it, it will be based on

15 their action that that has been done, and not for some

16 time you've not had any reaction from the Federal

17 Republic of Yugoslavia. You did not even say any such

18 thing?

19 MR. KARABDIC: No, I did not. We sent the

20 request to Yugoslavia on the same date when the Trial

21 Chamber was deciding this motion, and objected, because

22 we had not, prior to submitting the motion to the

23 Chamber, had not contacted the Federal Republic of

24 Yugoslavia. So that is why it was not discussed. But

25 on that same day we submitted our request to the

Page 13125

1 Embassy of Yugoslavia here in The Hague and in it we

2 asked for all those documents which are enumerated in

3 our submission.

4 So far we have had no reaction on the part of

5 the Federal Republic of Yugoslavia. What we do have is

6 confirmation that it has been received by the Embassy

7 and conveyed to its proper destination.

8 JUDGE KARIBI-WHYTE: Thank you very much. I

9 think we'll expect to hear later on that.

10 Now, we have also some motions from Esad

11 Landzo, a request for leave to call expert witnesses,

12 two additional expert witnesses. I think the

13 Prosecution has reacted to that and I would like to

14 hear Counsel on that motion.

15 MS. McMURREY: Good morning, Your Honours,

16 Cynthia McMurrey and Nancy Boler for Esad Landzo.

17 There's been so many back and forth motions with the

18 Prosecution regarding the designation of experts. I

19 believe that Ms. McHenry and I had a conversation this

20 morning and we are clear as to which experts it is that

21 need to be designated and which don't.

22 I do have some news for the court today. I

23 believe the Prosecution's response regarding Dr. Edward

24 Gripon, has mostly been that they object to the fact

25 that he has not presented a report and he has not

Page 13126

1 completed his evaluation. He arrived in The Hague last

2 night, he is in the courtroom today, and he will be

3 completing his evaluation in the next few days. But

4 just for verification, and if the Prosecutor would

5 like, I can certainly call Mr. Gripon right now into

6 the courtroom, let him swear under oath. Because they

7 have called him on the telephone and they represented

8 that he told them that he could have his report in five

9 days. There was an affidavit attached to that response

10 that I filed saying that Dr. Gripon said, when

11 requested to write a report, he could have the report

12 within five days.

13 I have not requested him to write a report at

14 this time, because he has not completed his

15 evaluation. He will be here in The Hague until Friday

16 to complete his evaluation, and after that time, if

17 Defence Counsel requests a report, he will write a

18 report, and I will most certainly disclose to the

19 Prosecution.

20 As of today, every expert report that I have

21 in my possession has been disclosed to the

22 Prosecution. And so I am asking leave of the Court

23 because of the late filing of this designation of

24 expert witness to designate Dr. Gripon, and the other

25 expert witnesses that I have on my list, plus an

Page 13127

1 additional motion to designate two additional experts

2 from Holland has been filed, which are a Dr. Ernst

3 Lammers, and a Dr. B. Haeseker, and I don't have the

4 response from the Prosecution regarding that. I

5 believe Ms. McHenry was just aware of this motion this

6 morning. But this is because we are having difficulty

7 getting the doctor in Konjic who performed the surgery

8 on Mr. Landzo, and therefore we have to substitute

9 someone else who can testify about Mr. Landzo's hand

10 injury and his asthma.

11 And that's why we have called Dutch doctors

12 just to go quickly to the prison, examine him, and then

13 come and testify.

14 We expect their testimony to be about one

15 half day each or less.

16 JUDGE JAN: How many experts do you need to

17 examine?

18 MS. McMURREY: Well, Your Honour,

19 unfortunately, I don't have my list here with me.

20 JUDGE JAN: How many experts do you intend to

21 examine to refute the eyewitness account?

22 MS. McMURREY: To refute the eyewitness

23 account, I have three mental health experts, Dr.

24 Legazzi who has already examined Mr. Landzo as an order

25 of the Court in 1996. I have Dr. Leewuwen who examined

Page 13128

1 Mr. Landzo for his compatibility with detention and

2 competency to stand trial in 1996. Both of those

3 experts will do one additional evaluation and

4 supplement their original reports and the Prosecution

5 has both of those reports. I also have Dr. Edward

6 Gripon, who is a forensic psychiatrist, who also will

7 be completing his evaluation this week. Three mental

8 health experts, one historian and two Dutch doctors

9 about his physical injuries.

10 JUDGE KARIBI-WHYTE: Actually, what worries

11 me is your attitude towards a report. Now, if you

12 refer to the order of the Trial Chamber of the 25th of

13 January.

14 MS. McMURREY: Yes, Your Honour, I remember.

15 I don't have it in front of me, but I believe the Court

16 ordered that any reports that I had, I had to make

17 available to the Prosecution. I don't have --

18 JUDGE KARIBI-WHYTE: And you have not called

19 for any reports?

20 MS. McMURREY: Your Honour, I am calling for a

21 report when he completes his evaluation. Until he is

22 completed, I can't ask him to write a report. He will

23 finish this Friday with his evaluation of Mr. Landzo.

24 At that point, if he writes a report, I will give it

25 directly to the Prosecution. She has all other reports

Page 13129

1 that I have in my possession. I don't believe that

2 under the rules of procedure or the rules of evidence

3 in this Court, I have seen any rule that makes it

4 mandatory for --

5 JUDGE KARIBI-WHYTE: Well you can disobey

6 that. You can disobey the order because no rules have

7 made it mandatory.

8 MS. McMURREY: Well, Your Honour, if I have

9 the report made, I will give it to you.

10 JUDGE KARIBI-WHYTE: Not making it

11 mandatory. But that's why I say you are free to

12 disobey and not send any reports.

13 MS. McMURREY: I am not sure that I understand

14 disobey.

15 JUDGE KARIBI-WHYTE: Yes. Because if there

16 are no compulsory rules and the Trial Chamber makes an

17 order, as you have said, you're entitled to disobey

18 that.

19 MS. McMURREY: Your Honour, I am not trying

20 to disobey.

21 JUDGE KARIBI-WHYTE: -- the order that you

22 are required to submit any reports.

23 MS. McMURREY: Your Honour, my interpretation

24 of the order was to turn over all reports in my

25 possession. If I have a report in my possession, I

Page 13130

1 will certainly give it to the Prosecution.

2 JUDGE KARIBI-WHYTE: Then you say so. That

3 you don't have any reports in your possession. That's

4 a short way of telling them that I haven't the reports

5 you're asking for.

6 MS. McMURREY: I have given them the reports

7 of Dr. Leewuwen and Dr. Lagazzi.

8 JUDGE KARIBI-WHYTE: Those are even experts

9 nominated by the Trial Chamber itself.

10 MS. McMURREY: Yes, Your Honour. I have

11 given them all supporting data too of Dr. Loga, Dr.

12 Rorta Deman (phoen), Dr. Somalevic (phoen) and any

13 other reports that these experts relied upon, I have

14 disclosed to the Prosecution.

15 JUDGE KARIBI-WHYTE: I suppose that is what

16 you should say. But not challenging the order of the

17 Trial Chamber that no rules supports the order of the

18 Trial Chamber, then you should know what to do as

19 Counsel.

20 MS. McMURREY: Your Honour, I am not

21 challenging the order of the Court.

22 JUDGE KARIBI-WHYTE: That's what Counsel

23 should normally do. If you are convinced that the

24 order is not supported by any rule of Court or any

25 statutes, you're not obliged to obey and you know what

Page 13131

1 to do in that circumstance.

2 JUDGE JAN: So you file the reports and then

3 you see what you can do.

4 MS. McMURREY: I have filed them. They have

5 them in their possession.

6 JUDGE JAN: You said Dr. Gripon is still to

7 file his report.

8 MS. McMURREY: He just arrived last night.

9 JUDGE JAN: File his report and then see.

10 MS. McMURREY: You mean he won't be

11 designated until after he files his report. I just

12 want to bring to the Court's attention that two

13 Prosecution witnesses, expert witnesses, testified

14 without reports.

15 JUDGE JAN: Maybe after he files his report

16 you find he has nothing to say on the case.

17 MS. McMURREY: Well, Your Honour, that could

18 be. After he reports to me on Friday, I might say,

19 "Don't write a report and go home." I am not sure.

20 JUDGE JAN: Don't ask us to make an order at

21 this stage when you haven't got a report.

22 MS. McMURREY: I understand now. Thank you

23 very much for explaining it to me.

24 JUDGE KARIBI-WHYTE: That's really unfair

25 matters on what you would be producing.

Page 13132

1 MS. McMURREY: So the other experts that have

2 provided reports, I assume that there's not going to be

3 any objection from the Prosecution on designation of

4 those experts. And as soon as Dr. Gripon has completed

5 his evaluation and supplied a report, we will bring

6 this issue up again for designation of expert. Now I

7 am clear on that and I appreciate that.

8 JUDGE KARIBI-WHYTE: Ms. McHenry, what's your

9 position?

10 MS. McHENRY: Certainly we have no opposition

11 to Your Honour's waiting to decide on Dr. Gripon until

12 we've seen the report. I won't speak to that. I do

13 want to just briefly speak to sort of the other, as I

14 understand it, approximately eight expert witnesses

15 that the Defence is going to call. And I will also

16 clarify what Ms. McMurrey said is that in addition to

17 the expert witnesses she just mentioned, I have been

18 informed that there are a number of doctors who were on

19 the expert witness list, I believe two or three, who

20 she still intends to call, but she states that they

21 will be called as fact witnesses rather than as expert

22 witnesses. I am not exactly sure how these doctors can

23 testify about facts without giving their medical

24 opinion and so we may well be objecting to those

25 persons testifying as fact witnesses.

Page 13133

1 With respect to the mental health witnesses,

2 in addition to Dr. Gripon there are two other doctors,

3 and the Prosecution does not object to her calling

4 them. Although this is first we've heard that she is

5 going to have them do additional evaluations and,

6 therefore, presumably, have additional information and

7 do additional reports.

8 Once again, this gets into the entire idea of

9 how can the Prosecution sort of be prepared to

10 effectively cross-examine and do our own research and

11 potentially get our own experts when at, you know, this

12 extensive time already into the Defence case we're

13 still being notified of additional experts and

14 additional witnesses.

15 In addition to the expert witnesses, the

16 Defence has now indicated that they wish to call two

17 additional witnesses as to physical impairment. And

18 again, as the Prosecution stated in its response, we

19 don't even know what, in effect, this Defence is. Your

20 Honour's order very clearly states that the Defence has

21 to give a statement as to what the expert is going to

22 testify to. Given the specialised nature of medical

23 testimony, we do not believe that a three word sentence

24 saying their expert will testify about Mr. Landzo's

25 hand and his opinion about that or his respiratory

Page 13134

1 problems provides the Prosecution or even the Chamber

2 sufficient information to know whether or not this

3 testimony is relevant. And certainly does not allow

4 the Prosecution to prepare.

5 We want to make sure that we are not in a

6 position that after the testimony of an expert witness,

7 we do not want to have to be in a position of asking

8 for some sort of recess while we then do our own

9 research or get our own expert before we can

10 effectively cross-examine. So we have raised these

11 issues at an early date so that when these experts are

12 called, if they are called, things can happen

13 expeditiously. But we believe that the Defence has not

14 complied with Your Honour's order about giving a

15 statement about the subject of the testimony.

16 Similarly, I will just again, there's also a

17 historian who is going to talk about psychology. And

18 again, with respect the that, the Prosecution noted

19 that the Defence has stated that they are going to call

20 a historian. Their only description of what this

21 witness is going to testify about is, "He will testify

22 about the psychology of the ethnic groups and

23 individuals caught up on the war and international

24 humanitarian law." Again, the Prosecution feels this

25 is not in compliance with Your Honour's rule. And

Page 13135

1 certainly, the Prosecution believes that we must have

2 more information to know whether or not we wish to file

3 a motion excluding it as irrelevant or as the expert

4 being unqualified to testify. Or, if it is something

5 relevant and it is something within the expert's

6 expertise, we are going to have to be able to do some

7 research beforehand. So, in all respects with respect

8 to all their expert witnesses, the Prosecution believes

9 the Defence has not complied with this Court's order

10 and it will result in this proceedings being

11 unnecessarily delayed, inefficient and really unjust to

12 the Prosecution. Thank you.

13 MS. McMURREY: Your Honour, if I might

14 respond just for a moment. The request for designation

15 of the Dutch doctors, in my opinion, satisfies the

16 Court's order as far as giving them a statement at the

17 intended testimony. It's clear, number one, Dr.

18 Lammers; not only he is a Dutch pulmonary specialist,

19 who has examined and conducted tests regarding Mr.

20 Landzo, he will offer evidence regarding the type of

21 illness and extent of damage to the lungs. He will

22 further be asked to state his opinion regarding the

23 ability of Mr. Landzo to perform the acts alleged in

24 the indictment. I don't know how many clearer I can

25 be.

Page 13136

1 And Dr. Haeseker, his explanation is just as

2 clear. And if the Court will please kindly compare

3 this explanation to the one paragraph explanation that

4 the Prosecutor gave all Defence attorneys when

5 Professor Economides came to testify, this is much

6 clearer and much more specific. And of course Dr.

7 Economides and Dr. Gal both testified without any

8 report supplied to the Defence at that time. And I

9 believe that I have done -- the Defence of Esad Landzo

10 has worked hard to comply with the orders of the Court

11 at this point. Coming from behind the eight ball as we

12 say.

13 JUDGE JAN: Your defence is going to be that

14 considering his state of physical health, the acts

15 attributed to him could not have possibly have been

16 committed. Is that your defence?

17 MS. McMURREY: That's is really, basically,

18 part of a defence, yes, Your Honour. It's not that all

19 acts --

20 JUDGE JAN: Therefore, you filed the reports

21 of the experts?

22 MS. McMURREY: Yes, Your Honour, Ms. Boler

23 just whispered in my ear that these doctors will have

24 their reports this week.

25 JUDGE JAN: We will consider your motions

Page 13137

1 after we get to the peoples' reports and Ms. McHenry

2 has examined them.

3 MS. BOLER: Your Honour, if I might, I am

4 Nancy Boler. I would to just like to add one thing.

5 Dr. Lammers is going on holiday on June 16th. He told

6 me we would have his report before he left. The other

7 doctor, the hand specialist Dr. Haeseker, is currently

8 on holiday and he's going to be gone another week and a

9 half or so. And as soon as he returns, I'll have him

10 get on that right away. When Ms. McMurrey said "this

11 week," I just needed to correct that.

12 JUDGE JAN: Now the Defence is becoming

13 clear, that these acts could not have possibly been

14 committed and you want to examine the expert in that

15 regard.

16 MS. McMURREY: Yes, Your Honour.

17 JUDGE JAN: It's not a play for diminished

18 liability , it's a play of impossibility.

19 MS. McMURREY: Some of the acts it would be

20 an impossibility and some of the acts it would a

21 diminished possibility. So there are so many different

22 allegations under the Prosecutor's indictment that it

23 would be different level for different acts.

24 JUDGE JAN: Let's have these reports first.

25 MS. McMURREY: Your Honour, I have a question

Page 13138

1 regarding that because I am not clear and so that I

2 don't have a mistake before I stand up again in this

3 Court, is it my understanding that the Court will not

4 designate an expert without a written report first?

5 JUDGE JAN: Expert is fair enough, but

6 relevancy is another matter.

7 MS. McMURREY: So he can be designated as an

8 expert via his curriculum vitae attached, but the

9 relevancy of his testimony needs to be determined by

10 the Court from his report?

11 JUDGE JAN: Naturally. Obviously they are

12 not going to talk about eyewitness accounts. They are

13 going to give their opinion with regard to certain

14 matters.

15 THE INTERPRETER: Microphone, please.

16 JUDGE JAN: They are to give their report

17 with respect to certain matters based on their

18 opinion. So let's see what they have to say.

19 MS. McMURREY: So every expert --

20 JUDGE JAN: Calling these expert witnesses is

21 going to cost the Tribunal a lot of money. We want to

22 be sure that their evidence is relevant. Obviously, I

23 mean there's no dispute that you're calling them as

24 experts. You're not calling them as fact witnesses.

25 MS. McMURREY: That's correct.

Page 13139

1 JUDGE JAN: Let's have a look at these

2 reports which they have prepared.

3 MS. McMURREY: Is it my understanding, they

4 have to prepare a report before they're allowed to

5 testify?

6 JUDGE JAN: They should file a report because

7 before you ask us to call them here, they're no doubt

8 experts. But they are to come here and we want to be

9 sure of the relevancy of their evidence. That is all.

10 MS. McMURREY: I just wanted, for the record,

11 to state that the Prosecution didn't have reports for

12 two of their experts.

13 JUDGE KARIBI-WHYTE: This is what I wanted to

14 correct when you continue repeating that statement.

15 Before the order of 25th January 1997 was made, a lot

16 of arguments was made as to the desirability of having

17 a report. Now, the real reason is to ensure that the

18 expert is coming to say what he knew about the area of

19 expertise and that that area is relevant to the

20 situation in which he has been invited to testify, his

21 evidence.

22 Now when somebody is called to testify about

23 nationality, I don't think any reasonable lawyer knows

24 what nationality is. When he's coming to give you

25 expert testimony on the nationality of the people, all

Page 13140

1 it wanted you to know is that the nationality involved

2 in the situation in which these people found

3 themselves, not for Dr. Gal. It was very familiar.

4 Nobody even asked for a report and nobody even needed

5 it because we knew what he was coming to testify

6 about. So when you continue comparing situations, I

7 began to wonder whether that is the way legal practice

8 is done. Because every lawyer deals with a fact

9 situation facing him. And you don't bring comparisons

10 which in most cases you know are not on the same

11 basis. And you better forget it and face the situation

12 in which you find yourself and argue towards

13 rationality.

14 Now if you bring the present expertise you

15 want to call now, the matter of physical impossibility

16 or reduced physical possibility, this is what you are

17 trying to show. Now, I suppose it's a fairly strange

18 type of argument. Your client doesn't say he's lame.

19 He doesn't say that he has a weak hand. Most

20 asthmatics do so many physical things, what you are now

21 trying to put forward, the Defence you are putting

22 forward is that your client who has short breath cannot

23 do certain things in certain situations. We're not too

24 sure what type of medical expertise is related to it.

25 We should need to know what this doctor is likely to

Page 13141

1 come to testify.

2 I didn't think it was anything unreasonable

3 for a Trial Chamber to ask and to pass on to the

4 Prosecution. If the doubt is that this is --

5 obviously he is not a fact witness because when it

6 comes to whatever physically he inflicted on people,

7 there are fact witnesses who to come to say they saw

8 him do it. What your expert witness is coming to say

9 that he is incapable of doing this. Or perhaps he

10 cannot do it with such a ferocity. These are the

11 things you're trying to say. In that regard, the

12 expert people need something to guide them if they have

13 to challenge the matter.

14 MS. McMURREY: I just have to say that, you

15 know, before the Court has heard the defence, you've

16 already stated it is a strange defence and I don't --


18 MS. McMURREY: I don't believe it is a

19 strange defence, I think it's a valid defence.

20 JUDGE JAN: You file the reports and we'll

21 have a look at it. And as your learned colleague has

22 said, she's expecting the reports within two weeks. So

23 let the reports be filed and then look at the motions.

24 MS. McMURREY: Okay, Your Honours.

25 JUDGE JAN: Your Defence will be given full

Page 13142

1 consideration.

2 JUDGE KARIBI-WHYTE: Makes one to look into

3 it very critically and be satisfied that it is

4 possible.

5 MS. McMURREY: My only argument at this

6 point, not arguing with the Court at all, is that, as

7 far as the equality of arms goes, the Prosecution --

8 the Court now understands why I am calling these

9 witnesses as much as they understood why the

10 Prosecution was calling Economides. So, therefore, in

11 the equality of arms issue, I don't believe that I have

12 to offer any more in order for him to be able to

13 testify. It's clear that his testimony is relevant,

14 but to satisfy the Court, I will give any documents

15 that I can at this point and I will provide the

16 reports.

17 JUDGE JAN: We gave you long adjournment to

18 get yourself prepared for cross-examination. We don't

19 want this to happen now.

20 MS. McMURREY: I don't want it to happen

21 either, Your Honour. I am ready to go home too.

22 JUDGE KARIBI-WHYTE: You're the manager of

23 your own case. Nobody stops you. But we're also

24 entitled to know why the case has been so managed.

25 We're entitled to know.

Page 13143

1 MS. McMURREY: I will do my best to make sure

2 that the Court knows why --

3 JUDGE KARIBI-WHYTE: Perhaps Counsel, is as

4 you mean that, the Trial Chamber is not interested in

5 the case of the accused persons. That would be very,

6 very wrong to think. Because a Court is not interested

7 in finding guilt as much as it is interested in finding

8 innocence. All the facts should be placed before it

9 for it to decide what the true position is.

10 So if it is necessary, the rules are very

11 clear, enabling the Court itself to call witnesses if

12 it finds it necessary in the interest of a Defence or

13 even of the Prosecution. It's entitled to do so.

14 MS. McMURREY: I have certainly have never

15 thought that the Court wanted anything other than

16 justice.

17 JUDGE KARIBI-WHYTE: I have heard too much

18 about the equality. It's like most Defence counsel,

19 it's only equal when it suits their way. No, but that

20 is not equality. Equality is putting the scales on an

21 even keel.

22 MS. McMURREY: I thank you. I think that's

23 all I have until I get these reports for the Court.

24 And I hope that the Court will consider all of these

25 expert witnesses that I have listed necessary for the

Page 13144

1 Defence.

2 JUDGE JAN: Certainly after you file the

3 report. Certainly, we'll consider you.

4 MS. McMURREY: Thank you.

5 JUDGE KARIBI-WHYTE: I think this is all we

6 have.

7 MS. McMURREY: Your Honour, I have -- I'm

8 sorry, there's another matter before the Court that I

9 had asked for oral argument on, but I spoke to Ms.

10 McHenry this morning and she said she is not prepared

11 to respond to it and she would like more time. That is

12 Esad Landzo's submissions regarding diminished or lack

13 of mental capacity. It's most important that for the

14 Defence we get some kind of definition on this as soon

15 as possible because we can't determine what burden we

16 have or what standards we have to meet in the Defence

17 case until this is resolved. I told Ms. McHenry this

18 morning, but I certainly agree to allow them more

19 time. I understand it's a difficult legal issue to

20 deal with. I would ask the Court that maybe before we

21 start on June the 22nd, if we could determine this

22 issue, I would be better prepared for the first week in

23 July to make sure that I am ready to present evidence.

24 JUDGE KARIBI-WHYTE: The question of the

25 diminished responsibility depends on, perhaps, the

Page 13145

1 state of mind or the medical aptitude, which, perhaps,

2 expert witnesses might have disclosed in their

3 examination. It's only part of the Defence case,

4 except if the Prosecution wants to use it. It's part

5 of the Defence case for the purposes of determining the

6 extent of liability or responsibility.

7 MS. McMURREY: My question, Your Honour, is

8 that until we know what the definition is that we're

9 dealing with, whether the burden of proof shifts to the

10 Defence and whether the standard of proof at that point

11 is by preponderance of the evidence.

12 JUDGE JAN: The burden is obviously on the

13 person who takes it.

14 MS. McMURREY: -- jurisdictions, that we need

15 to know which one this Court will adopt before we go

16 forward.

17 JUDGE KARIBI-WHYTE: Ms. McMurrey, all

18 through the trial the burden of proving guilt stays on

19 the Prosecution until the end. If you plead diminished

20 responsibility and you prove that, it does not go

21 towards innocence. It merely shows that your

22 responsibility for committing the act is diminishing to

23 the extent to which you have proved the extent of his

24 mental responsibility.

25 MS. McMURREY: Whether his affirmative

Page 13146

1 Defence negates one of the elements that the

2 Prosecution has to prove.

3 JUDGE JAN: You can take the quantities of

4 circumstances appearing in the Prosecution's evidence

5 itself to show that it is a case of diminished

6 liability. You have a right to depend upon

7 circumstances appearing from the evidence of the

8 Prosecution itself. Otherwise, the burden is on you.

9 JUDGE KARIBI-WHYTE: Stays on them.

10 JUDGE JAN: Or diminished liability. But you

11 can take it upon them in discharging the burden upon

12 the facts or circumstances appearing from the evidence

13 of the Prosecution itself. You have that advantage.

14 JUDGE KARIBI-WHYTE: It does not go to

15 acquit, that's one thing you will know. Diminished

16 responsibility doesn't go to that.

17 MS. McMURREY: It lists it in the statute as

18 a defence which means it's not simply mitigation of

19 punishment in this Tribunal. It's a defence.

20 JUDGE JAN: The burden is always on the

21 Prosecution. But if you want to take a plea of

22 diminished liability, you can of course take advantage

23 of the evidence of the Prosecution itself in that

24 regard, but the burden of proof is on you.

25 MS. McMURREY: My one further question on

Page 13147

1 that, the burden of proof shifts to me to prove that he

2 has diminished mental capacity. But what is the

3 standard of proof at that point?

4 JUDGE JAN: All you have to do is create a

5 reasonable doubt.

6 JUDGE KARIBI-WHYTE: By probabilities.

7 JUDGE JAN: To raise a reasonable doubt, this

8 might have happened.

9 THE INTERPRETER: Microphone, Your Honour.

10 MS. McMURREY: I cited British law.

11 JUDGE JAN: I am citing the British law

12 because that's the law in which we were trained.

13 MS. McMURREY: It says that when the burden

14 shifts to the Defence -- thank you. I just wanted to

15 make sure that it was a civil burden. I didn't have to

16 prove beyond a reasonable doubt.


18 MS. McMURREY: Thank you, Your Honours, it's

19 clear to me now. And if the Prosecution would still

20 like to respond, I think I have heard from the Court

21 what I need to form my Defence.

22 JUDGE KARIBI-WHYTE: If you want clarity or

23 equality as you're asking of every issue, then it

24 should also prove your reasonable doubt because

25 that's --

Page 13148

1 MS. McMURREY: It's not equality of arms under

2 that circumstance, Your Honour.

3 JUDGE KARIBI-WHYTE: Here it is a civil

4 body.

5 MS. McMURREY: Okay. I thank you for

6 listening to me because I just needed that definition

7 to proceed. Thank you.

8 JUDGE KARIBI-WHYTE: Yes, Ms. Residovic.

9 MS. RESIDOVIC: Your Honours, you have

10 suggested that the discussion on our motion on June 2nd

11 be postponed. But from our conversation with Ms.

12 McHenry, we understood that maybe there's a response to

13 our motion already. And if we ask that during the

14 break we could see the decision and so that we have

15 time to discuss it amongst ourselves. And also this

16 morning, you have issued a request for subpoena, so

17 that they could be here on the 11th of June so that we

18 could be able to see them here as witnesses. If the

19 chamber would accept our proposals, maybe after the

20 break we could return to them.

21 JUDGE KARIBI-WHYTE: Actually, I am seeing

22 this for the first time now. So I don't really know

23 what it contains.

24 MS. RESIDOVIC: That's why we suggested for a

25 pause and then we could state our opinion on the 2nd of

Page 13149

1 June document. But I believe we could have our opinion

2 on it after the break. And then during the break, you

3 would also have time to see our motion submitted this

4 morning, so that maybe we'd have an opportunity to

5 discuss it during the day.

6 JUDGE KARIBI-WHYTE: I think we'll be able to

7 have a break now and come back at twelve.

8 MS. RESIDOVIC: Thank you, Your Honours.

9 --- Recess taken at 11.05 a.m.

10 --- On resuming at 12.00 p.m.

11 JUDGE KARIBI-WHYTE: Now, the Trial Chamber

12 has considered the ruling, considered the motion from

13 Delalic for the issue of subpoenas in respect of two of

14 its witnesses against the 11th of June.

15 We've considered the case as a whole, the

16 application, which is not in isolation with what has

17 been going on in the Defence case, and we think that

18 the application has come too late, because when we made

19 that Ruling in respect of the lists submitted to the

20 Trial Chamber, which was phrased in two ways: The

21 first is 1 to 7, the next 8 to 14, and indicating that

22 the lists of witnesses 8 to 14 are unable to appear

23 until the 22nd.

24 We directed Counsel to assure that all the

25 witnesses were called by the end of this week. We made

Page 13150

1 that order. And there was ample time to have applied

2 for any subpoenas at that time. And we indicated in

3 that oral ruling, which we confirmed in our ruling

4 yesterday, that at the conclusion of the last witness

5 Counsel should decide to close the case of the first

6 accused. We made that very clear.

7 Now, it was during this period that Counsel

8 appealed against that ruling and had all opportunities

9 for asking for subpoenas, which was inevitable at that

10 time, knowing that it was necessary for Counsel to get

11 its witnesses here. But they did not do so. Counsel

12 had waited until yesterday, and then the application

13 took for a subpoena was submitted this morning.

14 The Trial Chamber finds it difficult to

15 conceive how the application for subpoena, which is

16 made today, is intended for witnesses outside the

17 jurisdiction and for evidence within the week. In any

18 event, what one was considering is for Counsel to close

19 its case and not to lead new evidence. And for the

20 reasons the Trial Chamber has given, we did not think

21 it was reasonable to grant the application. The

22 application is refused.

23 We still have before us the motion requesting

24 procedures of final determination of charges against

25 the first accused. The Prosecution has reacted to that

Page 13151

1 and the Trial Chamber will be able to hear argument on

2 that motion. That is a motion pending.

3 This is our ruling.

4 MS. RESIDOVIC: Your Honour, I regret the

5 fact that you have decided the previous motion without

6 our having presented the arguments that we were guided

7 by, but since that is the ruling of the Court, we

8 accept it as such.

9 JUDGE KARIBI-WHYTE: An application for a

10 subpoena -- I know why you are asking for a subpoena.

11 You have given your reasons in there. It doesn't need

12 any further persuasion. It's not opposed and I know it

13 will not be.

14 MS. RESIDOVIC: But there was a previous

15 procedure followed in other subpoenas where oral

16 arguments were presented, and that is why I said this.

17 JUDGE KARIBI-WHYTE: It's not necessary.

18 It's not necessary. You've given sufficient reasons

19 why the subpoena should be granted.

20 MS. RESIDOVIC: Your Honours, on the 2nd of

21 June, as you know, with the arguments of the Defence,

22 we sought that the procedure regarding our defendant,

23 Mr. Delalic, be continued in keeping with Article 85 of

24 the Rules of Procedure and Evidence before this Court.

25 In view of the fact that the Prosecution has finalised

Page 13152

1 a presentation in respect of their case in respect of

2 our client, and after the Appeals Chamber has decided

3 our appeal on the possible continuation of the

4 presentation of the Defence case, we will also be

5 completing the presentation of our case in the Delalic

6 case.

7 We believe that all our argumentation is

8 grounded. In view of the fact, in the meantime, we

9 have received the Prosecutor's response to our

10 application, I should like to, without repeating what

11 we have already said in written form in seeking this

12 particular decision from the Trial Chamber, I should

13 like to present the position of the Defence regarding

14 the reply of the Prosecution, which we received an hour

15 ago.

16 The first argument of the Prosecutor

17 concerning our request is that we are asking again for

18 a separate trial to be conducted, that we are seeking a

19 separate procedure, a separate trial for Mr. Delalic,

20 which request of the Defence was also filed in 1996,

21 and that it was considered with all due form and

22 decided by this Chamber.

23 In connection with a particular argument of

24 the response, I should like to emphasise that we did

25 not ask for a separate trial, although the Defence, if

Page 13153

1 there is a conflict of interest, is entitled to seeking

2 such a separate trial in any stage of the proceedings.

3 But we did not. We have not asked for a separation of

4 trials, because we consider it not to be necessary

5 because all the conditions now exist for the consistent

6 application of Rule number 85. Because the Prosecution

7 has presented its case, the Defence has presented its

8 evidentiary case, and Rule number 82 says that the

9 accused will be entitled, at the joint trials, the same

10 rights which they would have if they were -- as if they

11 were tried separately.

12 So our position is that availing ourselves of

13 these rights, namely, that as if our client was being

14 tried separately, we propose that the Court bring the

15 decisions and the orders as we proposed in our motion.

16 Namely, first of all, that the Prosecutor

17 should be called upon to present evidence, rebuttal

18 evidence, if any, and then that we are invited to

19 respond and to present any rejoinder evidence, if we

20 have it, and then the Chamber, if it feels that it

21 should present some evidence, also do that. And after

22 that, call upon the parties to present their final

23 arguments. And then, in keeping with the rules of this

24 Tribunal, to proceed to a final decision, in respect of

25 Mr. Delalic.

Page 13154

1 Owing to these reasons, we feel that the

2 response given to our motion by the Prosecutor does not

3 stand, because this motion has nothing whatsoever to do

4 with a possible request for separate trials, because

5 the procedure of the presentation of evidence on the

6 part of both the Prosecution and the Defence has been

7 completed, is being completed at this particular point

8 in time.

9 The following argument, which is given in the

10 Prosecutor's response, is that this would mean an

11 unnecessary delay and duplication of the presentation

12 of the cases in the further course of the proceedings.

13 As opposed to this position of the Prosecution, it is

14 our view that this cannot constitute a duplication or a

15 procrastination of the proceedings, and that

16 Mr. Delalic is entitled to that fundamental right of a

17 speedy and fair trial.

18 If our motion were to be granted, we feel

19 that we would precisely in such a case be economising

20 in terms of the further course of the proceedings,

21 because we would confine the interrogation of every

22 witness by the cross-examination, and we would save the

23 expenses of two attorneys to this court. And the

24 proceedings in general would not be procrastinated

25 because Rule number 85 has to be applied, irrespective

Page 13155

1 of whether it is applied now, in the month of June, or

2 whether it has to be applied by the Court later, after

3 all the cases have been presented.

4 So this stage of the proceedings has to be

5 gone through, and we feel that it is only fair, in

6 respect of Mr. Delalic, that this rule be invoked and

7 applied at this particular stage, especially the one

8 granted by the Rule 82 of the Rules of Procedure and

9 Evidence.

10 In his response the Prosecutor stresses that

11 this request of ours, actually, prevents the Court from

12 hearing additional relevant evidence. I believe this

13 argumentation to be ungrounded. The Prosecutor had its

14 case, presented all the documents which he considered

15 relevant in order -- in respect of our client. We are

16 not preventing the Prosecutor if he has other

17 evidence. In fact, on the contrary, we are offering to

18 him, if he has other relevant evidence in respect of

19 Mr. Delalic, to present it immediately.

20 We also feel that we have not violated the

21 rights of any of the co-accused because, just as we

22 ourselves had the right to cross-examine all the

23 witnesses presented by the Prosecutor in respect of

24 Mr. Delalic, not only in respect of Mr. Delalic, but

25 also in respect of all the other accused, all the other

Page 13156

1 co-accused have also had the opportunity for a

2 cross-examination of the witnesses and to follow the

3 evidence presented by Mr. Delalic's Counsel during his

4 defence.

5 The Prosecutor is now offering us, although

6 he does not directly say so in his reply, he says that

7 -- the interpreter does not have the document. We wish

8 to prevent the Court from the presentation of evidence

9 of the other accused and thereby to judge possibly the

10 evidence given in respect of Mr. Delalic.

11 It is our position that a fair trial

12 observing the provisions of Article 22 -- 82 in

13 connection with Article 20 of the Statute, must be

14 interpreted so that the Prosecutor does not have the

15 right, that after all the defence has been presented,

16 that other evidence be obtained through the

17 presentation of the cases of the other accused, so that

18 all the evidentiary material has to be presented.

19 The Prosecutor has in the process had the

20 occasion to cross-examine all other -- all our

21 witnesses, and I should like to warn the Prosecutor of

22 the provisions of Article 51 of the rules -- the Rule

23 51, which is the proper way to deal with this matter,

24 because otherwise Mr. Delalic's right from Rules 82 and

25 85 of the Rules of Procedure and Evidence are denied

Page 13157

1 him.

2 We are conducting this proceeding before a

3 Trial Chamber composed of professional Judges, and not

4 before a jury. Therefore, the argumentation adduced by

5 the Prosecutor to the effect that perhaps the

6 evaluation of evidence in respect of Delalic could

7 create certain prejudice in respect of the evaluation

8 of the evidence against the other accused, in our view

9 does not stand because this Chamber is perfectly

10 capable of evaluating every piece of evidence in

11 respect of every accused, and we believe that there can

12 be no problems along those lines at all.

13 The Defence also relies in its motion to Rule

14 B of Rule 87, which reads that the Trial Chamber of

15 first instance shall deliberate and make decisions for

16 every accused as referred to in the indictment.

17 So at the moment when the Court -- if the

18 Court were to deliberate on all the accused, it would

19 have to evaluate separately every piece of evidence in

20 respect of every accused, each accused, in respect of

21 each count of the indictment. So if the Chamber were

22 to do that at this moment, it would be actually

23 exercising its right and carrying out, in fact, its

24 duty to act in that way, without being able, thereby,

25 to violate that right of the other accused, or

Page 13158

1 prejudicing in any way or prejudging their decision in

2 respect of the other accused.

3 As we have stressed in our written motion, in

4 this way we are practically not undermining any of the

5 co-accused, but we ourselves are actually renouncing

6 certain benefits that we might have from the

7 cross-examination of the other defences that would be

8 offered by other Counsel.

9 And, finally, the Prosecutor emphasises that

10 this example, if it were to be accepted, could be

11 something that would be emulated by other accused

12 persons, and that they would -- could call for a

13 similar decision to be brought after the presentation

14 of their cases. We believe that that is a right to

15 which every accused person is entitled, and each

16 accused and his Defence Counsel have the right to avail

17 themselves of whatever has been envisaged under Article

18 82 of the Rules of Procedure and Evidence.

19 Finally, we should like also to stress the

20 following, Your Honours. By brief analysis of the

21 proceedings which have been conducted so far, and of,

22 so-to-speak, a new policy being followed by the

23 Prosecutor in this Chamber, namely, that we should not

24 have proceedings with a number of persons, that we

25 should appraise the individual responsibility of each

Page 13159

1 person, because that is much more efficient and much

2 fairer in respect of every accused individual. We have

3 dealt with some data for -- we have examined, rather,

4 some data, and that data says that Mr. Delalic has been

5 in custody for over -- for some two years, and that it

6 is important that his case be decided as soon as

7 possible, especially in view of the fact, if we have

8 the -- both cases already presented.

9 So along those lines we sought to call a

10 maximum and to present our case as briefly and as

11 efficiently as possible over a short period of time,

12 and to deal with every possible element of his defence.

13 To adduce a few examples, for instance, over

14 the first four months and four days, which the

15 Prosecutor had at his disposal during at the beginning

16 of the conduct, he had 44 court days, and over this

17 period of 44 Court days, 25 witnesses were heard. We,

18 on our part, over a period of two months and ten days,

19 namely, 26 Court days, called and heard 25 witnesses in

20 that period.

21 We had a normal interruption of 21 days, a

22 normal recess, but I should like to stress that our own

23 attitude towards the speed with which the cases are

24 presented, the evidence presented, and the instructions

25 by the Court that we are to economise with time, we

Page 13160

1 really treated that with the maximum of responsibility

2 and managed in a record time, as it were, to organise

3 our defence well.

4 And, therefore, we consider that all this

5 entitles us to seeking from this Chamber, in keeping

6 with Rule number 85, to grant us that this motion of

7 ours in respect of our client.

8 These would be our additional arguments, as

9 our reply to the position of the Prosecutor vis-à-vis

10 the positions in the motion filed by the defence of

11 Mr. Delalic.

12 JUDGE JAN: This application I have before

13 me, you had earlier asked in 1996 that there should be

14 separate trials. That application was rejected. Isn't

15 this application a continuation of your earlier motion

16 which was rejected?

17 MS. RESIDOVIC: No, Your Honours. In our

18 application we actually rely upon -- invoke Rule 82

19 where at joint trials the accused will have the rights

20 which they would have if they had separate trials.

21 Then we also invoke Rule 87, where it says that the

22 first instance Trial Chamber will vote separately for

23 every accusation given in the indictment. And if there

24 is a number of indictees, separate sentences will be

25 handed down and/or -- so Rule 83, which says after the

Page 13161

1 presentation of evidence of both sides, the Prosecution

2 will be invited to give its evidence in rebuttal and,

3 therefore, the Defence in its own rejoinder.

4 So Rules 82, 85, namely, that the person who

5 is in a joint trial has the same right as the person

6 being tried individually, gives us the right to ask

7 that after the Prosecutor has presented its case, and

8 we have presented our case, that the case be finalised

9 in respect of our client.

10 We are not asking for a separate trial. The

11 cases have been presented. We are asking for the

12 finalisation, for the completion of the trial in

13 respect of Mr. Delalic.

14 JUDGE KARIBI-WHYTE: Any reaction on the part

15 of the Prosecutor?

16 MR. NIEMANN: Yes, Your Honour. Your

17 Honours, the application by the Defence, and I am

18 responding to the submissions just made by

19 Ms. Residovic, and then I'll come back and make some

20 general points, if I may. But the application that she

21 explains to us now is really an application for

22 severance, or separate trial, dressed up and presented

23 in another way. It's no more than that. You can't say

24 that that part of the case, which relates to the

25 presentation of the evidence of the Prosecution and the

Page 13162

1 Defence is the trial, and then leave out those other

2 parts of the case, namely, the rebuttal, rejoinder

3 submission and sentence, and say that that's some other

4 creature. Your Honours, it's part and parcel of the

5 same species. It's all the trial.

6 So, in my submission, Your Honour, it is to

7 no avail for Madam Residovic to argue that she has now

8 presented to you something novel and different from

9 that with which you've already disposed of and dealt

10 with.

11 Your Honours, there is no right for separate

12 trial. There is no such right. And there is no right,

13 under Rule 85, for these events, when you do have a

14 joint trial, for the events, such as rebuttal,

15 rejoinder, sentence, submissions, and so forth, to

16 follow immediately after the other in relation to each

17 separate accused. There is no such right. It doesn't

18 exist. So the support and basis for that would be

19 something I would be most interested to see.

20 These matters follow in the sequence of the

21 trial, and if there is a joint trial, then the

22 Prosecutor can present the evidence jointly in relation

23 to all accused, and has done so, and can likewise

24 respond in rebuttal and in submissions.

25 Your Honours, just a couple of general

Page 13163

1 points. Firstly, in our submission, I restate that

2 Your Honours have ruled they have presented nothing

3 different, or nothing new, to say while Your Honours

4 should reconsider your previous decision, and on that

5 basis alone, Your Honours, we submit that Your Honours

6 shouldn't entertain the application.

7 The interests of the public and the

8 Prosecution, in having a separate trial, is something

9 which is different to what happens in a number of

10 instances when it comes to considerations and fair

11 trials. The reason for that is that, generally

12 speaking, the authority, at least in some -- in most

13 jurisdictions, leans towards a conclusion, that the

14 interests of the public and the Prosecution, in having

15 separate trials -- in having a joint trial outweighs

16 the interests of the Defence in having a separate

17 trial. And so the next principle for consideration,

18 it's generally a question of prejudice, and it's not

19 just ordinary prejudice. The mere fact that the

20 accused can point to some prejudice is not sufficient.

21 For example, in the case of the United

22 Kingdom, the prejudice there that has to be

23 demonstrated is dangerous prejudice. In relation to

24 our own Tribunal, Rule 82 uses the words "serious

25 prejudice." 82B, it refers to serious prejudice.

Page 13164

1 So, Your Honours, the -- in this one and

2 somewhat unusual incident, the right of the public, and

3 the Prosecution, to have joint trials generally

4 outweighs the interests of the accused, separate

5 accused, unless you get to that point of either serious

6 or dangerous prejudice. And neither of that, in any

7 way, has been demonstrated.

8 Indeed, the converse is the case. We have

9 seen with these accused there's been very little

10 evidence whatsoever of conflicts emerging between them

11 throughout the course of this trial. What happens in

12 the back rooms, we don't know, but what we've seen in

13 the courtroom is sufficient, in my respectful

14 submission, to allay any concerns that Your Honours may

15 have in relation to that matter.

16 Your Honours, this is an application for a

17 separate trial, which will not only lead to a separate

18 trial for the rest of these proceedings being separate

19 trials for the accused, Delalic. There is absolutely

20 nothing that they can point to to demonstrate that Mr.

21 Delalic is in any different position to any of the

22 other accused.

23 So Your Honours will be confronted with a

24 situation where you will have now bifurcated

25 proceedings in relation to all accused because, I

Page 13165

1 submit, Your Honours will be able to find no

2 distinction between them. And so that we will have

3 rebuttal evidence on four occasions. We'll have

4 closing addresses on four. We'll have sentencing

5 evidence on four occasions. We'll have sentencing on

6 four occasions. I can assure Your Honours that if we

7 go down this route, these proceedings will be

8 protracted for a very, very long time. In our

9 submission, Your Honours, that on the basis of all of

10 that, this application should be rejected. If I can

11 assist Your Honours with any more, that's my

12 submissions.

13 JUDGE KARIBI-WHYTE: I think we've heard the

14 arguments, except if you have anything to add.

15 MS. RESIDOVIC: We just wanted to say the

16 following. We do not look for severance of trials in

17 the sense of the Article 82, paragraph 2. We are

18 speaking of 81, paragraph 1. And the prosecutor said

19 that there's no rule which would enable us to do so. I

20 have stated several and I do not see one which would

21 prevent this Trial Chamber from accepting our

22 proposal. In such a situation, I believe the ruling

23 should be for the better of the Defence or the

24 accused.

25 JUDGE KARIBI-WHYTE: Thank you very much.

Page 13166

1 We've heard your arguments. We'll give our ruling

2 later. We'll give our rulings. I expect that perhaps

3 you might reply to the inevitable consequence of

4 granting your application in the nature of multiplying

5 each accused's right to separate addresses, separate

6 closing addresses and all that follows with each of

7 them, rebuttal for each of them. Instead of rebuttal

8 for all of them as a whole right. This is the only

9 argument of interest and I will look at it and see

10 whether it is desirable in the interest of justice as a

11 whole to consider your application. Thank you. So the

12 Trial Chamber will now rise.

13 --- Whereupon proceedings adjourned at

14 12.40 p.m., to the reconvened on

15 the 22nd day of June, 1998, at

16 10.00 a.m.