Page 264
1 Friday, 31 May 2002
2 [Open session]
3 [Motion Hearing]
4 [The accused entered court]
5 [The accused Plavsic not present]
6 --- Upon commencing at 12.30 p.m.
7 JUDGE MAY: Yes. Call the case, please.
8 THE REGISTRAR: Good afternoon, Your Honours. This is case number
9 IT-00-39 & 40-PT, the Prosecutor versus Momcilo Krajisnik and Biljana
10 Plavsic.
11 JUDGE MAY: Appearances, please.
12 MR. HARMON: Good afternoon, Mr. President, Your Honours. My name
13 is Mark Harmon. Appearing with me today to my right is Mr. Alan Tieger
14 and, to his right, Mr. Thomas Hannis; and to my left is the case manager,
15 Ms. Carmela Annink-Javier.
16 MR. BRASHICH: Good afternoon, Your Honour. Deyan Brashich with
17 Nikola Kostich for the Krajisnik defence.
18 MR. O'SULLIVAN: Your Honour, Eugene O'Sullivan and Peter Murphy
19 appearing on behalf of Biljana Plavsic.
20 JUDGE MAY: Thank you. We have in front of us the motion for
21 relief in relation to the trial of this case. We have the motions from
22 both sides which we've read -- from all sides, I should say, which we've
23 read. We will hear some argument, additional argument, on that matter.
24 We would also wish to hear what progress has been made on the translation
25 project and generally as to the progress in getting this case ready for
Page 265
1 trial.
2 We have only the courtroom -- I'm sorry we started late. It was
3 because the previous case ran over. We have the courtroom for an hour and
4 a quarter or so. We will then have to vacate it for another case to come
5 in. So within those parameters, of course, we are ready to hear
6 submissions.
7 We will begin with the motion, as I said, on behalf of the Plavsic
8 Defence, to exclude evidence and limit the scope of the trial.
9 Mr. Murphy, you're going to address that?
10 MR. MURPHY: Your Honour, yes. I think the Court is aware that
11 one of the grounds originally put forward in the motion related to the
12 apparent extension of the case to Croatia, and I believe that the Trial
13 Chamber has been made aware that the parties were able to resolve that
14 question by agreement and that it is not before the Court today.
15 JUDGE MAY: Yes, we've heard that.
16 MR. MURPHY: Your Honour, the remaining grounds or requests for
17 relief have only one goal as far as the Plavsic Defence is concerned, and
18 that is the goal of securing a fair trial for these accused in accordance
19 with the timetable that the Trial Chamber has in mind, which currently
20 calls for the Defence pre-trial briefs to be filed no later than the 1st
21 of September of this year and that trial should thereafter proceed perhaps
22 in October or November, depending upon availability of the Judges and so
23 on.
24 The relief that we are seeking is not relief of our own invention.
25 It is, in fact, relief that has been envisaged by the Trial Chamber,
Page 266
1 specifically the Pre-Trial Judge, for many months now. We have sought, I
2 think somewhat diligently, to cooperate with the Prosecution, with the
3 Tribunal in resolving the problems in this case. I cite by way of example
4 the fact that it was the Plavsic Defence which identified and I think
5 recruited the 19 language assistants who are presently staffing the
6 Novi Sad pilot translation project. But as Judge May observed on an
7 earlier occasion, there is an institutional problem which can be described
8 as intractable regarding translation. And, Your Honours, the time has
9 come, in our submission, when that question must now be squarely faced.
10 And the issue perhaps raised by this motion is who is going to suffer
11 because of the problems caused by this institutional condition?
12 There is a danger, if nothing is done, that it will be the accused
13 who suffer through not having proper access to the evidence which they
14 need, firstly to evaluate the case and prepare the pre-trial brief and
15 then to enjoy a fair trial as mandated by Articles 20 and 21 of the
16 Statute.
17 I think that the Trial Chamber, the Pre-Trial Judge, has made it
18 clear in the past to the Prosecution that in the face of this problem, it
19 should have been for the Prosecution to tailor its case to the available
20 resources. In our motion, we have set out the statistics, the figures, as
21 it were, regarding the number of documents, the number of untranslated
22 documents, and judging by the response filed by the Prosecution, these
23 figures are not in dispute. And for all the persuasion that the Trial
24 Court has offered to the Prosecution, there has been no evidence so far
25 that the scale of the case has been reduced at all. Indeed, on the
Page 267
1 contrary, it has increased.
2 Now, the Prosecution has, and I say this not by way of criticism
3 but in grudging admiration to my learned friends on that side of the case,
4 woven a quite remarkable illusion about the documents. Back in April of
5 2001, at the Status Conference, we were painted the picture of an archive
6 of some 2.7 million documents which the Prosecution had. And I think the
7 impression was given that they were going through this archive of 2.7
8 million documents to determine how many of those might be relevant.
9 Perhaps this presupposes that in all the years preceding the indictment of
10 these accused there had been no initial investigation of the matter which
11 might have revealed which of these documents was relevant. But we have
12 this picture of the Prosecution sailing, as it were, through uncharted
13 waters, navigating their way through their own basement, like Jason in
14 pursuit of the Golden Fleece, to try to determine which of these 2.7
15 million documents are necessary. But then, at the next Status Conference
16 on the 23rd of May, the Prosecution returned with remarkable news. They
17 said: We've narrowed the field. We've now identified 104.000 of those
18 documents as provisionally relevant.
19 Now, Your Honours, when one looks at 2.7 million and when one
20 looks at 104.000, the ultimate number of 11.000 seems rather small. But
21 we would submit that that's not really the way to look at it. Looking
22 back, again, we set out the history in our motion - I need not repeat it -
23 but looking back, there was a time when we were talking in terms of 800
24 core documents and where there was an optimistic projection, I think by
25 the Court, of 2.000 being about right. And what has actually happened has
Page 268
1 not been a retreat from 2.7 million documents or 104.000 documents, it's
2 been a steady advance from 800 core to perhaps 2.000 total, to the
3 present-day situation of more than 11.000.
4 I don't want to multiply figures, I just would, however, like to
5 draw the Court's attention to a fact that we would anyway talk about in
6 the Status Conference which we didn't have at the time of filing the
7 motion, which is that now that we've got the pre-trial brief, we estimate
8 - and I do say estimate, it may be a little off one way or the other -
9 but approximately 1.100 documents are referred to in that brief.
10 In one portion of it that we have analysed with some care, the
11 general section, in which they talk about the joint criminal enterprise
12 and the general theory of the case, there are 547 documents of which
13 roughly a third have been disclosed to us only in B/C/S.
14 And as for the much-vaunted core documents, there are now over
15 2.400 of those, and yet in the same passage of the pre-trial brief, only
16 314 are cited. And yet the Defence has been served with more than 11.000,
17 some 48 per cent of which are available to us only in B/C/S.
18 Now, I mention these facts to -- because it's our contention that
19 to leave the case in that position, with the trial looming in November, is
20 unfair by anybody's standards.
21 I would like, if I may, Your Honour, to address one or two of the
22 matters raised by the Prosecution in its response to our motion. Firstly,
23 the Prosecution says, "Well, the Defence has been given sufficient notice
24 of what the case is about through the indictment and through the pre-trial
25 brief." I'm sure the Trial Chamber will recall that when the Prosecution
Page 269
1 moved to amend the consolidated indictment, we objected to that and we
2 said that it did not give us specifics. The Trial Chamber was against us
3 on that point, but it did point out that we could expect to have a full
4 statement of the case linking the allegations in the indictment with the
5 evidence at the time when the pre-trial brief was filed.
6 Now, I suppose a question arises when is a pre-trial brief not a
7 pre-trial brief? If extrapolating, it may well be that one-third of the
8 documents, approximately, which are cited to in the brief are only in
9 B/C/S, can it be said that we've really been given access to that
10 evidence?
11 The Prosecution argues further that, "Well, the Defence only has
12 to put forward a general statement of the defence. They don't have to go
13 into a great deal of detail." Be that as it may, we on the Defence side
14 regard the Defence pre-trial brief as a very important document. It is
15 our intention to tell the Court as far as we can and in as much detail as
16 we can exactly what we dispute in the Prosecution's pre-trial brief, why
17 we dispute it, and to put forward a statement of Mrs. Plavsic's defence.
18 We cannot do that without access to the evidence.
19 The Prosecution next argues and I quote the language of their
20 response, "that an attempt to impose a blanket exclusion of evidence is
21 premature, arbitrary and not justified." Let's look at that. Premature.
22 If not now, when? We have a pre-trial brief due on the 1st of September.
23 We're going to trial in just a few months.
24 Arbitrary. Well, Your Honour, we're asking for relief that the
25 Pre-Trial Judge himself suggested might have to be given. We don't
Page 270
1 consider that to be arbitrary; in fact, we consider it to be necessary.
2 And thirdly, not justified. Well, what we have here is a
3 situation where the Defence has such a large number of documents available
4 only in B/C/S, and such a large number of documents, frankly, that don't
5 appear to be worthy of being cited in the pre-trial brief, that we are
6 effectively being inundated with paper.
7 Just to take one other point which is perhaps peripheral but
8 deserves mention, the Plavsic Defence has initiated reciprocal discovery
9 under Rule 67, and without access to the evidence, it may well be that
10 there are requests for further discovery that we should be making that we
11 cannot make at this time simply because we really don't know how these
12 other documents relate to the case as a whole.
13 The Prosecution says, "Well, it's not matter for this Trial
14 Chamber anyway, because the Trial Chamber which tries the case should rule
15 on the exclusion of evidence." Apparently the Prosecution do not feel,
16 however, that the same principle applies to motions to admit evidence
17 under Rule 92 bis, which they have already made and will be making further
18 motions, nor do they feel, apparently, that it applies to motions for
19 judicial notice. We have received a total of over 1.300 alleged
20 adjudicated facts which the Prosecution intends to ask this Trial Chamber
21 apparently to take judicial notice. We believe that the law and the
22 practice in this Tribunal strongly suggests that it is indeed a function
23 of this Trial Chamber to make rulings which will get the case in a
24 position to be tried fairly.
25 The Prosecution then argues that they have complied with the Rules
Page 271
1 because the Rules only require that we be given copies of the exhibits, it
2 does not require that we be given them in English. That can be done at
3 the time of trial.
4 Your Honours, the Rules, of course, must be followed, but equally,
5 the Rules must take second place to the basic principles of fairness under
6 Articles 20 and 21. What I'm being told by the Prosecution, apparently,
7 is that I should take 4.000 or 5.000 documents to Mrs. Plavsic, a lady now
8 approaching her 72nd birthday, who resides in Belgrade under the order of
9 the court, and ask her to read through these documents and tell me what
10 they say. Now, Mrs. Plavsic's English is not bad. It's good for most
11 conversational purposes. But we are talking here about documents that in
12 many cases are very technical, have legal significance, and it's quite
13 impossible to ask Mrs. Plavsic to read through them and make judgements of
14 that kind which would be necessarily involved. Essentially what the
15 Prosecution is saying is that Mrs. Plavsic is unrepresented because she
16 doesn't have the effective assistance of counsel.
17 Your Honour, these are not the Prosecution's problems. I accept
18 this. What we have here is an institutional problem, and the question is:
19 Who must suffer because of it?
20 I would respectfully suggest to the Court that at this point there
21 are three possible scenarios. One, which I hope that we would a