Tribunal Criminal Tribunal for the Former Yugoslavia

Page 722

1 Tuesday, 25 April, 2006

2 [Pre-Trial Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.36 p.m.

6 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, please call the

7 case.

8 THE REGISTRAR: Thank you very much, Mr. President. Case number

9 IT-04-74-PT, the Prosecutor versus Prlic et al.

10 JUDGE ANTONETTI: [Interpretation] I'm going to ask for

11 appearances, starting with the Prosecution.

12 MS. DEL PONTE: [Interpretation] Mr. President, the Prosecutor

13 herself, Carla Del Ponte, together with Ken Scott and Daryl Mundis. We

14 also have a case manager - I don't know how you say this in French - Skye

15 Winner, and counsel Josee D'Aoust. Thank you.

16 JUDGE ANTONETTI: [Interpretation] Thank you, Madam Prosecutor.

17 I'm now turning to Defence counsel, starting with Mr. Karnavas.

18 MR. KARNAVAS: Good afternoon, Mr. President, Your Honours. I'm

19 Michael Karnavas for Dr. Prlic. With me is Suzana Tomanovic, co-counsel,

20 and Ana Vlahovic, our case manager and legal assistant as well. Thank you.

21 MS. NOZICA: [No interpretation].

22 MR. KOVACIC: Good afternoon, Your Honours, Bozidar Kovacic for

23 Mr. Slobodan Praljak as the lead counsel, and let me introduce my

24 co-counsel, Ms. Nika Pinter, so we are shortening time. Thank you.

25 MS. ALABURIC: [No interpretation].

Page 723

1 MR. JONJIC: [No interpretation]. [Interpretation] ... the Trial

2 Chamber and the president, I hope that I will be allowed to withdraw from

3 this case immediately, without any prior approval of my counsel [as

4 interpreted]. I hope that we will be able to discuss this today in a

5 public session so that I can give you reasons for this request of mine.

6 Due to an omission of the Registry, a number of documents were delivered

7 to all parties --

8 JUDGE ANTONETTI: [Interpretation] [Previous translation

9 continues] ... this is a question we will tackle later. For the time

10 being, we are just going with appearances. Next counsel.

11 MR. JONJIC: [Interpretation] Next to me is legal counsel

12 Ms. Krystyna Grinberg and case manager, Ms. Ida Jurkovic.

13 MR. IBRISIMOVIC: [Interpretation] Good afternoon, Your Honours.

14 Appearing on behalf of Mr. Pusic, we have here Fahrudin Ibrisimovic, Roger

15 Sahota, and Nermin Mulalic, case manager. Thank you.

16 JUDGE ANTONETTI: [Interpretation] Very well. Very shortly I'll

17 have the opportunity to ask the accused to introduce themselves because,

18 apart from Mr. Praljak, I do not know the other accused. I have never

19 seen them before. I shall ask them later on to introduce themselves.

20 Today, as you know, based on Rule 73 bis, we are holding a

21 Pre-Trial Conference. Before moving to the agenda of the Pre-Trial

22 Conference, as you know, as a Pre-Trial Judge, I had invited Madam

23 Prosecutor to appear before the Trial Chamber in order to explain to the

24 Chamber how the Prosecution intended to present its case and in which

25 deadline, which time period they were planning to do so. She was not able

Page 724

1 to be there at the last Pre-Trial or Status Conference because she had

2 other commitments, as they were celebrating the 60th anniversary of the

3 ICJ and Madam Prosecutor had told me that she was going to set forth her

4 position at the Pre-Trial Conference.

5 By way of a reminder, I shall summarise the problem, also for the

6 accused. As you know, the Prosecution presented to the Trial Chamber, to

7 the Defence counsel, and to the accused, its pre-trial brief. There was a

8 reply by the Defence counsel, and the Prosecution also forwarded a list of

9 over 400 witnesses and a list of exhibits, some 9.500 exhibits. On this

10 basis, the Trial Chamber tried to ascertain the time period given to the

11 Prosecution for their case. We made this calculation on the basis of the

12 Prosecution documents, and we would have had to have a trial that would

13 have taken three years only for the Prosecution case. In addition to the

14 three years, there would be a reply by the Defence. All the Defence

15 counsels said that, based on the principle of the fair trial, they wanted

16 to have the same time as the Prosecution for their case. As I told you,

17 it's a simple calculation: This would take 21 years, which is absolutely

18 impossible. Why is it impossible? For the following reason: Resulting

19 from Security Council Resolutions, two relevant Resolutions; Resolution

20 1503 and Resolution 1534. The Security Council invited the Tribunal to

21 take all necessary steps so that trials be concluded by 2008, and at the

22 appeals level, for proceedings to be concluded by 2010. The Security

23 Council decided it had to be seized and remain seized of the issue, and

24 requested from the Prosecutor and from the President of the Tribunal to

25 present a status or progress report as to the completion strategy of our

Page 725

1 Tribunal for the completion of our work.

2 In this framework, the Prosecutor and the president go to New York

3 every six months to present such reports. This is quite a straight and

4 rigid framework imposed on us by the Security Council. Therefore we can't

5 go beyond the date of 2008. This has a series of consequences as to the

6 presentation of evidence, at the latest Status Conference the Prosecution

7 presented a ten-point plan, which should make it possible, according to

8 the Prosecution, to resolve quite a number of problems.

9 As to the Defence, they agreed on certain points and disagreed on

10 others. Therefore, after hearing Madam Prosecutor and the Defence

11 counsel, the Trial Chamber will issue a decision as to the time allocated

12 to the Prosecution for their case. So first of all, I shall give the

13 floor to Mrs. Carla Del Ponte, who is going to explain to us in which way

14 she and her team are planning to conduct their case.

15 MS. DEL PONTE: [Interpretation] Thank you very much,

16 Mr. President. Your Honours, Defence counsel. Nobody wants to be here

17 for 20 years, I believe. I'm certain of it. And I also believe that the

18 Security Council gave us some deadlines, some dates that did not change,

19 even if, as you heard it on the -- at the hearing of the 12th of April,

20 President Meron and President Pocar told the Security Council that we will

21 need all of 2009 in order to conclude trials. I believe that this trial

22 can go on until the end of 2009, if it is necessary, but I believe it is

23 possible to conclude this trial within a shorter period of time. I read

24 the transcript of the latest Status Conference with great attention and

25 care because, as you can see, Ken Scott presented our plan in ten points

Page 726

1 which should make it possible to present our case within a year. I do not

2 intend to present these points again because you're all familiar with

3 them, but allow me, Mr. President, to express a few thoughts which I

4 believe are relevant and may introduce a good discussion.

5 First item: Rule 65 ter (F). Mr. President, you ruled that our

6 application should be denied because it failed to meet the requirements

7 set forth by this rule. In my view, the Defence in their pre-trial brief

8 failed to meet the requirements under this rule. Indeed, Mr. President,

9 you acknowledged it yourself, and I quote: "It can be reasonably required

10 from the Defence that they should do more." So I think that we should

11 require from the Defence that they should do more. Why? Because if they

12 do, we shall be able to change our programme.

13 As to Rule 67(A), there, you said that you should leave it to the

14 Defence when they deem it appropriate, but I'm -- allow me to say this:

15 Since the Trial Chamber required from the Defence that they do say whether

16 they are going to invoke the defence of alibi or any other special

17 defence, if we knew this ourselves, it would make our case, the

18 Prosecution case, easier. Here again, allow me to insist on this point

19 because we think that this will be a great help. It would really help us

20 to reduce the time we need for the Prosecution case.

21 Now, when it comes to cross-examination, it is up to you, Trial

22 Chamber, to you, Mr. President, to make your decision. We have made some

23 calculations. I discussed that with my colleagues only this morning. I

24 think that we can present our case within 450 hours but, of course, I do

25 urge you to apply Rule 73 bis even more, and this is not only for the

Page 727

1 Defence but also for the Prosecutor. If I put questions during

2 examination-in-chief that you do not deem relevant, please stop us. Stop

3 the Prosecution, stop the Defence, if you feel that we are wasting time,

4 wasting time because this would not be really relevant to the case which

5 is ours.

6 As to adjudicated facts, this is Rule 94, or judicial notice.

7 Remember the motions we filed. 88 adjudicated facts were granted, but we

8 mentioned 515 facts in our motion. And allow me to insist on this, insist

9 on the international armed conflict as an issue. My colleague reminded

10 you of the appeals judgement in Kordic and Cerkez. Soon we are going to

11 have another appeals decision which is likely to affirm the existence of

12 an international armed conflict in Bosnia with the involvement of Croatia.

13 So I shall allow myself to file another motion with new elements in it,

14 and I believe that we would be greatly helped because we can't just call

15 witnesses for each case. We have various witnesses and they are going to

16 speak to the armed conflict but, of course, you've got all the answers to

17 provide you with, and I can assure you, Mr. President, Your Honours, that

18 if we do so, we can really save a lot of time.

19 As to 92 bis and 89(F), just go back to what you said yourself,

20 Mr. President. You said it was denied temporarily. And I like that word,

21 "temporarily," and I think that gradually motions will be filed. I

22 believe you have received this chart, so you have an overview, a better

23 overview of the case, and I must say that with this chart, we'll deal with

24 exhibits more efficiently.

25 I believe there is one major point. It's the dossiers on the

Page 728

1 crime base. We have 14 files or dossiers because there are 14 crime

2 bases. They are going to be prepared gradually but we do ask the Defence

3 to look into the dossiers and especially to tell us which are going to be

4 the points that they are going to dispute, under Rule 65 ter (F). I think

5 you have to ask the Defence to commit themselves. We are going to do an

6 enormous work. I mean, it's a lot of work to prepare the files and

7 dossiers, but if we do that, the Defence will have exact notice of all the

8 crime bases. We tried to have an estimate of the time we could save

9 thanks to the dossiers. We could save ten to 15 per cent of the overall

10 time we need for the Prosecution case.

11 Other extremely important point: Photocopies. You know that we

12 have an electronic system, the so-called e-court, but actually I notice

13 that everybody likes to have paper in front of them. So, of course, we

14 can access e-court, it can be used, but as a matter of fact, and you in

15 the first place, and I understand you, Mr. President, you want to have a

16 paper file. But there is a problem with that. Who is going to do the

17 photocopying of all the dossiers? Because I have to tell you, as the

18 office of the Prosecutor, I cannot photocopy, make 8, 10 or 12 photocopies

19 -- well, dossiers, or photocopy 8, 10, 12 times each and every document.

20 Look at the instructions delivered by President Meron. Everybody should

21 take care of their own needs. So I do urge you, Mr. President, to make a

22 decision to decide who is going to do what. I can tell you that we are

23 not in a position, not at all in a position, to photocopy everything for

24 everybody. This is not captatio benevolentia, but I can tell you

25 straight, I could do the photocopying for the Judges, for the Trial

Page 729

1 Chamber, but that's all I can do.

2 So in conclusion, I can confirm that, thanks to our ten point

3 plan, we can present our case, [In English] the Prosecution case,

4 including cross-examining, [Interpretation] to one calendar year, and as

5 Mr. Scott said, [In English] if the Chamber sits 47 weeks, five days a

6 week, with 4.5 hours of testimony per day. [Interpretation] This is our

7 working plan.

8 Allow me to say, Mr. President, that we keep harping on 400 or so

9 witnesses. It is true that we have that many witnesses on our list, but I

10 had a fight with my people at our meeting this morning. I said what are

11 450 witnesses? I want to know who are the viva voce witnesses, those who

12 are going to come here to The Hague to testify. I can give you a number,

13 a figure. I can tell you how many viva voce witnesses we are going to

14 have. We are going to have 180 viva voce witnesses, and out of them,

15 you're going to have some who can come under the 89 bis (F) Rule so you

16 can receive a transcript which makes the time even shorter for their

17 testimony.

18 I'd like everybody to take note of this. We are going to -- or we

19 have listed 180 witnesses, and we are hoping to cut down on that number as

20 well, but to do so we need the help of the Trial Chamber and we need the

21 help of each and every Defence counsel.

22 Thank you very much, Mr. President.

23 JUDGE ANTONETTI: [Interpretation] Well, Madam Prosecutor, thank

24 you very much for this information you conveyed to the four judges of the

25 Bench as to your plan, the plan that you're going to implement to present

Page 730

1 your case within a seemingly reasonable time, namely some 450 hours. You

2 have made a commitment. You are going to call to the stand only 180 viva

3 voce witnesses, and you also pledge that among the 180 witnesses, you

4 might have some under the 89(F) Rule, which is going to make it possible

5 to save a lot of time. The other main track of your battle plan is the

6 dossiers. We'll come back to this later on. In a few minutes I'm going

7 to give the floor to the Defence counsel and they are also going to shed

8 some light on this, following which we will issue a written decision which

9 will be filed with the Registry before we officially commence the trial

10 tomorrow.

11 So without further ado, I'm going to give the floor to the Defence

12 counsel and then, if you so wish, Madam Prosecutor, you can be released

13 because you have other commitments and we have our agenda. So to be fair,

14 I'm just going to follow the order and I'll start with Mr. Karnavas.

15 MR. KARNAVAS: Again, good afternoon, Mr. President, Your Honours,

16 and welcome, Madam Del Ponte. It's a pleasure having your presence here

17 and it was a pleasure listening to how you believe this case, the

18 Prosecution case, can be finished in 450 hours. I think it's a rather

19 monumental task to do that, Herculean, I would say, and in fact an

20 impossibility. Because the 450 hours as they calculate it, that would be

21 based on if you were to accept their ten-point plan. So much of what we

22 heard today is what we've heard in the past.

23 If you look at the number -- I'll start at the end again. One of

24 my habits is to start at the end and move back forwards. 185 viva voce.

25 Some of these witnesses will be here for two or three days, others may be

Page 731

1 here only for a day, maybe even perhaps a half a day, but just do the

2 math. It's almost impossible to do 185 witnesses where you have six

3 accused, all with different issues, perhaps. Some may not need to

4 cross-examine a witness but some witnesses we will all need to

5 cross-examine. So when you look at that figure, 185, it becomes virtually

6 impossible.

7 Initially, Your Honour, you indicated that this case would take

8 approximately four years. I think that was a rather modest estimation but

9 I think it was a realistic one. I think it could be done probably within

10 three years. I don't think it can be done in two years, not unless the

11 indictment is reformulated and unless the indictment is more precise.

12 You have a clash of two systems here: One, you have an

13 adversarial indictment. Why do I say that? The indictment has every

14 conceivable mode of liability in it, very much as if you will be in the

15 United States. On the other hand, the procedure at the Tribunal is coming

16 closer and closer to the continental system, the Romano-Germanique system,

17 and what Madam Del Ponte is suggesting is that we move even closer to

18 that, and I agree with her, but there lies the problem; you have a

19 Prosecutor who is a party to the proceedings, unlike what you would have

20 in a civil law system. And I think if you had an indictment drafted as if

21 you were in a civil law system, you would not have it in the way it is

22 drafted in this case where every mode of liability in the alternative is

23 in it. That poses a problem to the Defence because we have to make sure

24 that on each and every count, that we anticipate how any potential

25 evidence may be used on any one of those modes of liability. If the

Page 732

1 Prosecution is so sure, so sure, that all of these individuals are guilty,

2 and if they are so sure that they have all of the evidence for each and

3 every count, then they should choose. Why the alternatives?

4 Your Honour, you indicated way back, several months ago, that you

5 wanted a proofing chart. That proofing chart should have been instituted

6 when this institution came into place, because if that had been the case,

7 then every indictment from the inception of this Tribunal would have

8 forced the Prosecutor to really have their evidence before they proceeded.

9 We do have a proofing chart. It's only a partial one. It's a good --

10 they started off on the right foot, finally. It's a lot of work, I

11 understand. I'm sure had they known in advance, they would have done it

12 in advance because I think that they are operating in good faith. On the

13 other hand, it's only a partial one. So when Madam Del Ponte says, well,

14 you know, you have to accept more 92 bis statements, well, we need the

15 complete proofing chart for that. So I do agree with her that maybe we

16 could do better, but we need their entire proofing chart, and until we

17 have that and until you have that, you cannot make that decision.

18 Regarding the photocopying, well, I do agree with Madam Del Ponte

19 that it's taxing. If it's taxing to her, and I'm used to saying that they

20 an armada of staff, a fleet, a legion. We only have here four -- five --

21 four Prosecutors, but behind them there is 20 others. You've got people

22 listening in to the proceedings, as the proceedings are going on where

23 they are e-mailing and they're able to react. The Defence doesn't have

24 these resources. So I'm -- my heart goes out to her that she doesn't have

25 all these resources for copying, but think of the poor Defence. And by my

Page 733

1 estimation, we are going to be needing about 15 or 16 copies. I'm not

2 suggesting that the Prosecution do our work or that we do their work, but

3 that is a realistic issue that we need to tackle and it will take all of

4 us to do that, but I welcome her concerns because they are our concerns as

5 well.

6 With respect to the dossiers, sometimes -- we saw a model dossier,

7 if you want to call it that. I don't wish to call it that but if we are

8 going to use a term, let's use that one, but let's not confuse that with a

9 dossier that you would get in a civil law system, please. Let's just make

10 sure of that. What we are talking about is a file, a particular

11 individual file that would deal with certain issues. I welcome that. Why

12 didn't we have that from the beginning? That would have been much easier.

13 In fact, Mr. President, is not your proofing chart in and of itself the

14 dossier that you have been asking for? It would have been much easier.

15 We wouldn't have to go through these machinations, we could all look at

16 the proofing chart and then prepare our own dossiers or files. I don't

17 think that's going to help us that much, but nonetheless, as I indicated

18 last time, I'm fully prepared to engage and work with the Prosecution on

19 that. I suspect that there will be times when we will need to supplement

20 what they are providing you and there will be some times when we will

21 disagree what should be in there, in a particular dossier, but I don't

22 have a problem with that.

23 Adjudicated facts. This is -- I don't mean to sound pedestrian,

24 but it's like a broken record. It's over and over again every time they

25 come in here. We've heard this so many times: If you would only accept

Page 734

1 more adjudicated facts. Of course, I've been asking for them to reduce

2 their indictment. Nobody hears me on that aisle. We could only accept

3 certain adjudicated facts. Others we had to challenge. Again,

4 Mr. President and Your Honours, when you look at the indictment itself,

5 it's not just the counts, it's everything that's in the indictment; in the

6 four corners, from page 1, from the first word, to the very last word of

7 that indictment. Everything that needs to be challenged. If we don't

8 have to challenge it and if it's not necessary, then why is it in there?

9 Why have this historical background if it's not part of the indictment

10 that I have to challenge? Why is it necessary to have it in there?

11 Because we saw this in the Stakic decision recently in the Appeals

12 Chamber's decision, that in essence everything can come in, everything can

13 be used for context purposes, and so we have to worry about what's in it.

14 And if there is something in the historical fact that we disagree with, we

15 have to challenge it. And I don't want to repeat myself, but last time I

16 did indicate that the problem with this Tribunal was that from its

17 inception it was trying to -- part of their mission, I guess they thought,

18 was a historical truth, try to find a historical record, and so the

19 indictments and the procedure was to figure out who started the war, why

20 did the war start, who is responsible for the war, and so on and so forth,

21 rather than try to reduce the indictment to the individuals that they

22 charge.

23 So now, if you look at this indictment, the Republic of Croatia is

24 on trial. That entire government that existed there was on trial.

25 President Tudjman, the late President Tudjman is on trial in absentia. So

Page 735

1 is Mr. Susak, so is General Bobetko, and so on and so forth. That's what

2 this case is about. And what they are asking us to do is either accept

3 that in order to reduce the time of trying the case -- in other words,

4 accept that these people and this government and in essence everyone who

5 was a member of the HVO, when you look in the joint criminal enterprise,

6 every single person who was involved essentially is being tried. And

7 because of the wideness of the indictment, it causes us to challenge

8 everything. It's not that we are obstreperous or that we want to be here

9 for the next 20 years, but as I indicated last time, Your Honours, I don't

10 have the discretion of drafting the indictment. I've offered to help them

11 reduce it. I have. I don't have the power to confirm the indictment.

12 But I do have the right, as my clients have that right, to be here and to

13 try to protect them. And so I don't think that we can reduce the time of

14 the trial by accepting adjudicated facts. Facts that we believe were not

15 properly ruled upon in the first place because the indictments perhaps

16 were not as wide, you didn't -- you might not have had the joint criminal

17 enterprise, or the lawyers chose a particular tactic in their case where

18 they wanted only to try the charges in the indictment, disregarding the

19 factual background or other matters that were in the indictment, but I

20 believe that my client, because he was invited to be here by force, due to

21 their indictment, he's entitled to challenge everything. And if something

22 in that indictment is not necessary, take it out, strike it out. Excise

23 it. Make it easier for us. But they can't have it both ways; they can't

24 put it in and then say don't worry about it, just accept it because there

25 is a completion strategy. That's their problem, that's New York's

Page 736

1 problem, it's not my client's problem. His problem is he's fighting for

2 his future. That's his problem, and he wants to make sure he gets a fair

3 trial. And we are not going to get a fair trial by just agreeing to

4 adjudicated facts.

5 Cross-examination. I agree with Madam Del Ponte that we all need

6 to be vigilant to make sure that we only ask questions that are relevant.

7 If something is not relevant, neither the Prosecution nor the Defence

8 should be asking these questions. I'm in total agreement. On the other

9 hand, it's a well-known tactic, and sometimes it's not a tactic but it's

10 an unnecessary need, for the Prosecution to go into certain areas with a

11 particular witness. The question is can I, as a Defence, go into areas

12 outside the scope of the direct? And the answer to that question, in my

13 opinion is yes, if it's relevant. Absolutely. I'm entitled to go outside

14 the scope of the direct if it's relevant to the case itself. So if the

15 Prosecution because for tactical reasons chooses not to go into a

16 particular area, and I need to, I have to. Sometimes a witness may come

17 here and may have information that I might be able to take out from that

18 witness in order to impeach another witness. Now I have a choice. I can

19 confine my cross-examination or I can call that witness to come back here

20 and to give direct evidence. Again, as long as I'm able to say,

21 convincingly, to you that it's relevant, I should be able to go into those

22 areas.

23 One other issue: We talked about this on previous occasions and,

24 Your Honour Mr. President, you mentioned it yourself. Simply because a

25 reference is made to a document, to one or two lines in a document, you

Page 737

1 and your colleagues will not just look at that one line or two lines. You

2 will look at the entire document, and I dare say even the footnotes to the

3 document. That's what I would do. So what does that mean? The

4 Prosecution can take literally one minute to introduce a particular

5 document or make reference to one line or two lines, but if in that

6 document hidden some place is a trap, something that might be used,

7 something that I need to explain away, that may take 10 or 20 or 30

8 minutes for me to get to it. That's why some magic formula doesn't work.

9 I go back. If it's relevant, I'm entitled to do it. And I think the only

10 thing that should prevent me or my colleagues is, is it repetitive? And

11 again, because there are six of us, there may be some very fine, some

12 subtle issues that we each may have, and while it may sound like it's

13 repetitive at first blush, it may not necessarily be so. But again, I

14 think all of us are professional, we all want to move along, and I think

15 the Rules are designed in a way to make sure that you, Mr. President and

16 Your Honours, have maximum control in this courtroom. You control the

17 environment. So if any one of us gets out of hand, is going into areas

18 that are not relevant, is repeating themselves, you have the possibility

19 of intervening.

20 You indicated that you wished perhaps to even begin the

21 questioning yourself. As I noted before and I'll say it again, I have no

22 problem with that. If that's the procedure that's adopted, I'm willing to

23 go along with it. I'm still entitled to my cross-examination, of course.

24 Alibi defences, Rule 67(A). Again, you know, I have to -- I have

25 to take a deep breath when I hear this every time. Why? I get a little

Page 738

1 emotional, I guess, because maybe after all these years, the Prosecution

2 still doesn't get it that we are in an adversarial system. I don't mean

3 to be mean spirited. I know that they would like to know as much as they

4 want about the Defence so they can begin to actually attack the Defence

5 before we even put on our case, but I have to remind Madam Del Ponte that

6 you have the burden of proof, you have to go forward. It's not for me to

7 give you the alibi defence if I'm going to run one at this point in time.

8 I would agree with her and with all of her colleagues that at some point I

9 have to give them notice of a defence, especially alibi, before the

10 defence puts on their case in chief. Why? The whole purpose of giving

11 notice in alibi, Your Honours, is to make sure that they have an

12 opportunity to investigate that alibi. That's all -- that's what it's all

13 about. But for me at this point in time to disclose my defence, my theory

14 of their -- of my case, to them, after they spent eight years

15 investigating, after they drafted the indictment, and they are saying

16 maybe we can speed things up if the Defence would only cooperate and tell

17 us what they plan on doing in their case, again, we are not in the

18 continental system, we are not in -- this is a mixed system, in the

19 procedure-wise but when you look at the substantive system itself, the

20 Prosecution bears the burden of proof. The burden never, ever shifts. I

21 may have a burden of going forward but the burden rests on the

22 Prosecution. They know it, or they should know it, and if not, they

23 should know it by now, or after today, at least.

24 The pre-trial brief. Again, I think we've gone over this. I

25 think if you look at the combination of all the pre-trial briefs, they

Page 739

1 have enough knowledge and information there that they know exactly what

2 this case is about, they know what our defences are. I can write a

3 hundred-page brief and waste a tree or two and all of your time, or I can

4 put it down in four pages, which is what I did. I think from those four

5 pages, they can glean enough. Am I going to go after each and point out

6 every flaw or every tactic that I intend to use? Of course, not. But

7 again, keep in mind that I don't have that proofing chart. Had I had the

8 proofing chart, maybe they could make a more legitimate argument, but I

9 think that argument doesn't fly, hasn't flown before, and shouldn't fly

10 right now. And I think they have enough. And even if I were to do

11 another pre-trial brief for them and make it maybe 20 or 30 or 40 pages or

12 200 pages, it's still not going to shorten them. They are still planning

13 on calling 185 witnesses viva voce.

14 So I covered more or less all the points that Madam Del Ponte

15 brought up, including the ten points, as if we were at the Treaty of

16 Versailles, you know. We have Wilson's 12 points in that instance. I

17 don't think those ten points are going to get us anywhere. I think there

18 are some innovative techniques we are willing to adopt, we are willing to

19 work, but at the end of the day unless that indictment is excised, unless,

20 Mr. President, you order, and I'm not sure whether you can order but if

21 you were to at least encourage the Prosecutor to take another look at that

22 indictment and only choose the modes of liability that they could actually

23 prove, that they believe that they could actually prove, as opposed to

24 putting in all the alternatives, I think if they were to do that, you

25 would find that one-third, if not one-half, of that indictment would be

Page 740

1 thrown out. They would still have the other half. So if you got four

2 years you predicted, you throw out 50 per cent of the indictment, you get

3 to your two years right there. So I've solved the problem. Then we can

4 take on board some of their other solutions. I'm willing to assist them

5 in trying to excise some of those parts of the indictment.

6 Thank you, Mr. President, Your Honours. Thank you, Madam Del

7 Ponte.

8 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Karnavas. I

9 shall now give the floor to Mrs. Nozica.

10 MS. NOZICA: [Interpretation] Thank you, Your Honour. Today we

11 have gone over once again all the material covered at the previous Status

12 Conference. The Prosecutor has outlined her ten points and I don't intend

13 to address them once more. I agree for the most part with what my

14 colleague Mr. Karnavas has said. These ten points are such that it is not

15 possible to accept them. Therefore, the plan presented by the Office of

16 the Prosecutor is impossible to carry out. Today, it is Your Honours who

17 have the most difficult task because Your Honours have to reach a decision

18 in this difficult situation and say what the optimum time for the

19 presentation of the Prosecution case is. I think we have to bear in mind

20 that today we have before us a problem of time. I am concerned that this

21 may go against the interests of justice. Your Honours should not forget

22 that we have before us the most complex indictment ever seen at this

23 Tribunal. Never before has there been an indictment for as large a number

24 of accused. It is not only these six men here who are accused but a large

25 number of others as well. Never before has so much evidence been before a

Page 741

1 Chamber. Never before has all this had to be compressed into a time

2 period of two years. I will be very happy if all this could be over in a

3 year and a half. However, the time, the pressure of time, should by no

4 means be allowed to go against the interests of justice.

5 I fully agree with my colleague Mr. Karnavas when he says that we

6 cannot be expected to assist the Prosecution. However, we can and must be

7 expected to assist the Chamber. We are prepared to do this at every

8 point. I have already stated what I feel about the dossiers. They are of

9 great assistance to the Court because they represent a shortening of the

10 work that was to be done when Your Honours asked that a list of witnesses

11 be presented. We have had an opportunity of seeing a dossier of this

12 kind, and it is of assistance, yes, to Your Honours and to the Defence.

13 However, I'm not sure that it will save time. The ten or 15 per cent of

14 the time that the Prosecution feels might be saved perhaps will be saved

15 by the Prosecution, but the Defence will need that time to prepare, and I

16 feel we have to keep in mind that as of now, the Defence must be given

17 time to prepare for all the evidence it is presented with. The plan we

18 have received for the first witnesses includes evidence we have not yet

19 received. Today, we have to prepare for the witnesses who are to testify

20 next week and we have not yet received all of the materials. Some of the

21 materials are still coming in. Therefore, we must be given enough time to

22 prepare.

23 Finally, let me repeat that the time that the Chamber will set

24 should be realistic and should be the optimum amount of time. The Defence

25 should not be put under pressure to accept the adjudicated facts presented

Page 742

1 by the Prosecution because it is not up to the Defence to present this

2 case and this evidence.

3 JUDGE ANTONETTI: [Interpretation] Mr. Kovacic, you have the floor.

4 MR. KOVACIC: [Interpretation] Your Honours, after my esteemed

5 colleagues Mr. Karnavas and Ms. Nozica presented their arguments in

6 response to what we heard from the Prosecutor, I do not wish to repeat

7 what they have already said. I will therefore draw attention only to

8 three issues where my opinion either differs slightly or where I feel

9 further clarification is needed.

10 Firstly, for the clarity of the record, I wish to say that I fully

11 agree with what the two colleagues who spoke before me have said, except

12 for the remarks I will make now.

13 As regards the discussion about adjudicated facts and the

14 possibility of making use of Rule 94 relating to adjudicated facts, and

15 this issue was first raised by Madam Del Ponte, I have to say that I feel

16 we should not take too optimistic a view of this issue because this

17 mechanism, which is part of the ten point plan offered by the Prosecution

18 to shorten the proceedings, it will not actually save time in practice.

19 Why? Your Honours, in your decision, you accepted 88 adjudicated facts

20 out of some 520, I think, presented by the Prosecution. However, in

21 accordance with the same Rule, the Defence does have the right to

22 challenge these facts. Out of the 88 accepted so far, I believe there are

23 some we will have to challenge. I am saying this to show what the effect

24 will be of taking adjudicated facts from other cases on the length of this

25 trial. Even were the Chamber to allow a far greater number of adjudicated

Page 743

1 facts, and it seems to be what the Prosecution is seeking, it will not

2 affect the length of the proceedings because, as my colleague Mr. Karnavas

3 has said, the Defence will have to challenge those facts because the

4 Defence in those cases did not have the same case, the same theory, or did

5 not have to challenge the same facts that we have to challenge, precisely

6 because all forms of liability are mentioned in the indictment. We have

7 given a few examples to show why the Defence teams in those other cases

8 perhaps did not have to challenge those facts whereas this Defence does

9 have to challenge them.

10 Therefore, a mechanism which at first sight might seem to have the

11 effect of shortening the proceedings will not in fact do so in practice.

12 Perhaps a few days may be saved, but not more.

13 Another issue I wish to raise were the dossiers that have been

14 discussed here. I cannot but express a general viewpoint here. The

15 parties to these proceedings, in this case the Prosecution and the

16 Defence, but we are referring now to something that the Prosecution has

17 put forward, have full liberty to present their case as they wish. They

18 can call two witnesses, 22, 302; they can present two documents, 200

19 documents; they can classify the documents by topic into dossiers or

20 present the evidence in any other way they choose. It's up to the party,

21 and in this case it's the Prosecution that is the first to present its

22 case in these proceedings. It's up to them to decide what the best way of

23 presenting their evidence is. Therefore, I feel that as another party to

24 these proceedings, it's not up to me to go into this issue and to say

25 whether the dossiers are a good thing or not. In the Kordic and Cerkez

Page 744

1 case the dossiers proved not to be a good idea. I won't go into this any

2 further.

3 However, dossiers also have a practical effect on the manner of

4 work of both parties in the courtroom. Following the directive and

5 following the assistance of the Registry, we invested a great deal of

6 effort into preparing for e-court. We organised our work in order to be

7 prepared for e-court. I see that some problems have emerged in this field

8 in the meantime, and I hope they will be overcome in time. Now we are

9 being told that if the Prosecution uses dossiers, then we as Defence might

10 have to do the same. So now we are supposed to do something that e-court

11 was supposed to avoid, precisely the same thing. It seems that there are

12 at least eight and at most 12 sets of this material, and without

13 elaborating on this, I just need to tell you that we will need at least

14 one or two persons to deal with this. As you have heard, our resources

15 are very limited. That is the case with Prosecution as well but they have

16 more people than we do. Even if we had enough people on our team, all of

17 us Defence teams in this Tribunal have to use one single photocopy machine

18 and it is absolutely impossible for us to produce this amount of material.

19 It is physically impossible for us.

20 The Registry will certainly promise us that they will make

21 everything available to us. We have had similar promises from them

22 before, but let's be realistic: We currently do not have such resources.

23 I don't want to go further into these details but allow me to

24 bring one more issue to your attention. And it deals with the number of

25 viva voce witnesses and witnesses whose written statements would be

Page 745

1 admitted into evidence. I think this affects fundamental rights of the

2 accused to have a fair trial. I ask the Chamber to proceed extremely

3 cautiously when deciding on these issues because the Defence has a

4 fundamental right to challenge such evidence and that has to be taken into

5 account, just as in case of adjudicated facts Defence teams in some other

6 cases had no reason to challenge some issues that we have to challenge in

7 our case.

8 Thank you very much.

9 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Kovacic.

10 Mrs. Alaburic?

11 MS. ALABURIC: [Interpretation] Your Honours, I do not wish to

12 repeat what my colleagues said before me, however, I need to reiterate the

13 following: Most of those on Defence teams who took the floor so far come

14 from systems where the Defence is expected to assist the Prosecution and

15 not defend their clients conscientiously and with zeal, and something that

16 we are familiar with, those of us coming from former communist regimes.

17 Mrs. Del Ponte called upon Defence to cooperate with the

18 Prosecution and, in a way, make the work of Prosecution easier. This is

19 something that we have already heard. This was deja vu for us. We think

20 that it is utterly improper for Prosecution to expect from the Defence to

21 give them a glimpse of their future defence and in that way assist the

22 Prosecution and allow it to adjust its case in view of the Defence

23 strategies. In addition to that, I think that it is also improper to have

24 all facts mentioned in the indictment and in all of the documents

25 considered as indisputable and then expect the Defence to state which

Page 746

1 facts in their view are going to be challenged and give their reasons for

2 that.

3 In addition to that, we also believe it to be improper that

4 Defence is expected to cooperate with the Prosecution when it comes to

5 adjudicated facts in such a way as to agree that all of these facts are

6 beyond dispute and to limit its participation in this trial to barely just

7 nodding to proposals of the Prosecution and to admit that the crime base

8 presented by the Prosecution is accurate. If we are going to discuss

9 about the ways to shorten this trial, I think that we need to start from a

10 very thorough analysis of the indictment and see whether the Prosecution

11 can do something about making this trial a rational one and a trial that

12 can be conducted in a time-wise manner.

13 If we look at all of the facts stated in relation to all of the

14 accused in all of the charges, then we will see that all of our clients

15 are accused of instigating, committing, aiding, abetting and there are

16 another 15 verbs in relation to each accused. We wonder whether the

17 Prosecution knows or has a concept of the liability in each of the accused

18 when they are unable to state accurately what it is exactly that they are

19 charging them with, and instead they are charging them with all

20 theoretically known modes of liability. If we also analyse various modes

21 of liability, we will see that even though this Tribunal permits

22 alternative charges, we will see that there is not a single mode of

23 liability that was not included in this indictment. This creates a huge

24 burden for the Defence because we need to defend our clients from -- in

25 relation to each mode of liability. We also wonder whether the

Page 747

1 Prosecution knows what are facts that they are relying on when it comes to

2 each of our clients.

3 This indictment includes even some outdated modes of liability.

4 For example, aiding and abetting, joint criminal enterprise. This is

5 something that has been ruled an improper mode of liability before this

6 Tribunal, and it is included in this indictment. The same applies to

7 indirect co-perpetratorship which, according to the appeal judgement in

8 Stakic, is also impermissible, and it can be found in our indictment.

9 If the Prosecution were to organise, both legally and factually

10 this indictment, and if it were to turn it into an acceptable civil law

11 indictment, then this trial would last -- would be much shorter.

12 Another issue that I want to raise is the right to a fair trial.

13 We discussed this in previous Status Conferences, therefore just two

14 sentences concerning this. We believe that the political decision on the

15 completion strategy of this Tribunal must not affect the rules concerning

16 the trial. I'm sure that the Trial Chamber will be aware of this. One of

17 the basic fundamental rights that all of us, including the Prosecution,

18 need to have in mind is the right of the accused to a fair trial, and

19 should the political decision on the length of existence of this Tribunal

20 need to be amended, then I think that we need to get involved in this

21 process. I think that the Judges on this Trial Chamber must be allowed to

22 run this trial without being pressured by time limits so that they can

23 pass a judgement which will be fair and only such a judgement can be

24 acceptable to the victims. It is precisely because of the victims that

25 this Tribunal was founded.

Page 748

1 Another issue that has to do with a right to fair trial, I want to

2 say the following: According to the Rule 82(A), each of the accused has a

3 right in a joint indictment trial to be tried as though he was the sole

4 accused. Therefore my client, General Petkovic, is not one-sixth of the

5 accused in this trial. No. He is an accused that has identical rights to

6 all other accused, and I believe that this needs to be taken account when

7 we conduct cross-examination, although we understand that relevance --

8 irrelevant questions should not be put, but despite of that, we think that

9 each Defence team needs to be given an appropriate time to put questions

10 on behalf of their client. Thank you.

11 JUDGE ANTONETTI: [Interpretation] Mr. Jonjic, you have the floor

12 to speak about the proceedings and the duration of the trial.

13 MR. JONJIC: [Interpretation] Thank you, Your Honour. I fully

14 support what was said by my colleagues, especially Mr. Karnavas, and let

15 me add just two or three more sentences.

16 What I wish to say has to do with the so-called dossiers. When

17 speaking of dossiers, we are actually discussing three, five binders

18 pertaining to a particular event or particular area. It is true that such

19 dossiers could be useful, both to the Chamber and Defence teams. However,

20 I don't think that we should overestimate their use, because it is not the

21 task of the Prosecution to establish the truth. The task of the

22 Prosecution, as they understand it, and as rules provide, is to do

23 everything to ensure that our clients are found guilty and sentenced

24 accordingly. In order to achieve that task, the Prosecution will compile

25 these dossiers in such a way as to select documents which would go to

Page 749

1 prove this. Therefore, they will do this selectively and without paying

2 much attention to authenticity of these documents. A lot of these

3 documents come from intelligence services, and we are aware of this based

4 on previous trials. We know that this was done in previous trials as

5 well. Therefore, I don't think that we should overestimate the use and

6 value of such dossiers.

7 JUDGE ANTONETTI: [Interpretation] Mr. Ibrisimovic.

8 MR. IBRISIMOVIC: [Interpretation] Thank you, Mr. President. I

9 will be very brief. I do not want to repeat what was already stated.

10 This plan that we received from the Prosecution really makes us doubt that

11 this can be concluded within 450 hours. We have 16 witnesses here and the

12 Prosecution estimates that they will need 55 to 66 -- to 60 hours for

13 that. This means that until June the Prosecution would use about 25 per

14 cent of the allotted time. Therefore I'm quite sceptical about whether it

15 is realistic that the Prosecution can conclude this within 450 hours, as

16 they estimated.

17 JUDGE ANTONETTI: [Interpretation] Thank you. Before we have a

18 break, for technical reasons, I am going to give the floor to Madam Del

19 Ponte if she wishes to add something, but just to sum up what the Defence

20 counsel said, they had already said what they said at the Status

21 Conferences. There is nothing new in this respect. I only note that

22 there are points of agreement, for example, as to the dossiers, and main

23 points of disagreement regarding other facets.

24 A judge is here in order to settle such issues, and this is what

25 we are going to do as a Trial Chamber. Madam Del Ponte, do you want to

Page 750

1 have the floor before the break?

2 MS. DEL PONTE: Just a few words, Mr. President. I shall be very

3 brief. But I did hear things about the way we should do our work. I want

4 to say this once and for all: That it is the Prosecutor who writes the

5 indictment. The Defence is not here to tell us how to do it. But it is

6 true, Mr. President, if we want to have a three-month long trial, it can

7 be done. We just need to have an indictment with one count. But this is

8 not a justice a la carte. This is not what I'm supposed to do. I have

9 received my mandate from the Security Council. All the highest ranking

10 politicians and military officers have to be tried. So I have an

11 indictment. You have it before you. You don't like it, but that's the

12 way it is. I have to prove what I put into the indictment because this

13 mandate given to me by the Security Council doesn't just tell me to

14 punish, to say choose the most serious crime. No, no. It's not what it

15 tells me. This mandate is an overall mandate. It deals with liability.

16 And this is what we are attempting to do here, Mr. President. This is not

17 justice a la carte. You have the indictment as it is in front of you. We

18 apply the Rules of Procedure and Evidence that we have, and this is merely

19 what we are asking here and what we've been asking during the Status

20 Conference. We said just try to apply the rules, because if you do so,

21 you can endeavour to save time. Of course we ask the Defence for their

22 help. Of course, with the help of the Trial Chamber, we could reduce the

23 length of the trials. We have 92 bis, we have 89(F). These are means

24 used or given by the rules. So don't tell me, ladies and gentlemen from

25 the Defence teams, because look at the rule. We are not asking you, at

Page 751

1 the end of the Defence case, to tell us each and every point that the

2 accused challenge, because this is stated in the rule. In Rule 65 ter, it

3 said, when, when should it happen? Once the Prosecution have filed the

4 documents mentioned in subrule (A). Or you have Rule 67, Mr. President.

5 It does not say that it should be done after the Defence case. It says

6 within the time limits prescribed by the Trial Chamber or by the Pre-Trial

7 Judge. And the Pre-Trial Judge, when does he intervene? Before the trial

8 commences. So please, Mr. President, please, Trial Chamber, Your Honours,

9 we merely ask for the rules to be implemented, the Rules of Procedure and

10 Evidence so as to endeavour to speed up the pace of the proceedings based

11 on our principles.

12 However, I also want to tell you that the Security Council will be

13 very vigilant, despite the Resolutions, if this trial is not concluded,

14 completed within the time limit. We are just asking the Defence to work

15 together with us so that the trial can be conducted, of course within the

16 respect of the fair trial principle for both parties. But I'm asking you

17 to speed up the pace of the proceedings because it is another principle,

18 that of an expeditious trial, that is mentioned in the rules. So I count

19 on you, Mr. President, Your Honours, so that the Rules of Procedure and

20 Evidence can be properly implemented.

21 JUDGE ANTONETTI: [Interpretation] It is now ten to 4. We need to

22 have a break, because you know that the tapes run out. The hearing shall

23 resume in 20 minutes' time, around ten past 4.

24 --- Recess taken at 3.50 p.m.

25 --- On resuming at 4.18 p.m.

Page 752

1 JUDGE ANTONETTI: [Interpretation] So we are now resuming our

2 hearing on the agenda for this Pre-Trial Conference. We mentioned that we

3 would like to get to know the accused whom we don't know yet, so I shall

4 now turn to the accused and ask them each in turn to introduce themselves.

5 If you could give us your name, please. Before coming to The

6 Hague, what position did you hold? What are you called? Because on

7 reading the indictment I realised that some of the accused had been Prime

8 Ministers, ministers, generals, presidents of commission, and teachers or

9 professors, so please let me know whether you would like me to call you

10 sir or Prime Minister or general. Please let me know. Let me remind you

11 that you are presumed innocent until such a time that a judgement has not

12 been rendered. You're therefore deemed to be innocent until such a time.

13 The presumption of innocence means that you have certain rights, and you

14 therefore are entitled to human dignity. In addition, I would like you

15 to tell me whether you have any health problems whatsoever. I did address

16 this issue with your lawyers at the former Status Conferences. If you

17 have any health problems, please let me know right away because I would

18 like to make sure that the Judges are informed about this and that we know

19 what your health situation is in detention. I have therefore asked the

20 Registrar to call in the doctor working in the detention unit, to send me

21 before the 16th of May a medical certificate for each of you.

22 All the Judges hope, of course, that you are in good health.

23 So let me begin with the first accused, in no particular order. I

24 would like to ask the first accused here to my right, if you could give me

25 your title position -- name, title position, and tell me whether you have

Page 753

1 any health problems or not.

2 THE ACCUSED CORIC: [Interpretation] Good afternoon, Your Honour, I

3 am Valentin Coric. I held the following titles: Chief of police

4 administration, minister in the Croatian government of Herceg-Bosna,

5 minister of the interior. I was also minister of one canton within

6 Herzegovina. I was deputy minister in the government of

7 Bosnia-Herzegovina, and that was the last post I held before coming here

8 to The Hague. I hold the rank of major general of the Croatian Defence

9 Council. You can address me as you wish.

10 Now you wanted me to turn to my health. Prior to coming to The

11 Hague in April of 2004, I had certain health problems, namely with my

12 blood circulation system. Later on, upon my return to Zagreb, as I was

13 waiting for the trial to commence, I was hospitalised twice. Once I had a

14 minor stroke and then I had to do a number of blood tests. Out of six

15 enzymes, one of them, called treponem finding from one enzyme was

16 abnormal. The second time I was hospitalised, a very detailed blood test

17 was done and all of the findings are normal, including the enzyme called

18 treponem, which remains normal until this day, and I am very happy about

19 that.

20 I would like to use this opportunity to say something very briefly

21 about what my former Defence counsel, Mr. Jonjic, said.

22 JUDGE ANTONETTI: [Interpretation] We will address this issue

23 later. So it's on the agenda but we will address it at a later stage. So

24 I would like to set this aside for the time being and come back to it

25 later.

Page 754

1 THE ACCUSED CORIC: [Interpretation] I hope I have answered all of

2 your questions. Thank you.

3 JUDGE ANTONETTI: [Interpretation] Thank you. You may sit down.

4 THE ACCUSED PUSIC: [Interpretation] Your Honour my name is

5 Berislav Pusic. The only position I held in the course of the war from

6 1993 to 2001 was the president of the Commission for Exchange of Prisoners

7 of War and the Missing. I was involved in humanitarian work. I took part

8 in exhumations of individual and mass graves. I cooperated with The Hague

9 Tribunal from the initial phase of the exhumations. I was a low-ranking

10 official and I was the only humanitarian worker who was put on trial.

11 Even at Nuremberg none of humanitarian aid workers were tried. The last

12 position I held was a member of the Commission of Bosnia-Herzegovina for

13 Exchange of Persons and for De-mining.

14 As for my health, four days after the surgery in Ljubljana, I was

15 brought here after my voluntary surrender to The Hague Tribunal. When I

16 released provision -- when I was released provisionally, I did not have

17 proper medical care as I do not have medical insurance in the Republic of

18 Croatia. I went to the Republic of Croatia against my will. I went three

19 times to Mostar, upon receiving prior approval from the Tribunal, where I

20 tried to undergo some medical examinations, and as you can see, my health

21 is still quite poor.

22 JUDGE ANTONETTI: [Interpretation] Thank you for having given us

23 these details.

24 Mr. Ibrisimovic, you have the floor.

25 MR. IBRISIMOVIC: [Interpretation] Thank you, Your Honours. I

Page 755

1 think that there is a mistake in the transcript. It is stated that

2 Mr. Pusic was president of the Exchange Commission whereas in fact he was

3 president of the service which was involved in exchanges, and by your

4 leave, let me say this: Judge Orie, in one of the previous Status

5 Conferences, allowed Mr. Coric, who was trouble sitting for a long time,

6 to get up for a minute or so every hour, if that is not disruptive.

7 JUDGE ANTONETTI: [Interpretation] Very well, no problem.

8 Next person, please. Who would like to take the floor?

9 THE ACCUSED PETKOVIC: [Interpretation] Your Honours, good

10 afternoon. My name is Milivoj Petkovic, I am a colonel general. I served

11 for two terms as chief of the Main Staff of Croatian Defence Council. My

12 last military post was chief inspection -- inspector of the Ministry of

13 Defence of Croatia. You may address me either by "sir" or "general" as

14 you please. I accept both.

15 As for my health, I prepared myself, so if you say that this trial

16 is going to last 20 years, then yes, I think that I will persevere for

17 that long. I have some problems with my spine, with my back. I have

18 consulted doctors and they will do everything in their power to ensure

19 that I can carry on normally. I hope that I will be able to stay in good

20 physical and mental health throughout. I'm sure that all assistance I

21 need will be provided to me in the Detention Unit, as was the case during

22 my previous five-month stay there. My father back home is quite sick. He

23 is in terminal stage, suffering from lung cancer, and other than that, I

24 don't have other serious family problems.

25 JUDGE ANTONETTI: [Interpretation] Mr. Praljak, we know each other

Page 756

1 because we have already seen each other on other occasions but I would

2 like you to introduce yourself, please, for those judges who don't know

3 you.

4 THE ACCUSED PRALJAK: [Interpretation] My name is Slobodan Praljak.

5 I'm a graduate of philosophy, sociology. I'm also a graduate engineer of

6 electrical engineering, and I have also graduated from the academy of film

7 and acting. I did this work before the war. During the war and

8 aggression, I did 12 or 13 various jobs. I was assistant to Minister

9 Gojko Susak in the Ministry of Defence of the Republic of Croatia, and I

10 held a number of other posts which it would be difficult to enumerate now.

11 By rank, I'm a colonel general of the Croatian army. I am very

12 proud of my rank and I ask that you address me as Colonel General Slobodan

13 Praljak. I am mentally and physically prepared to withstand everything

14 here. Minor health problems will be solved in the Detention Unit.

15 Whether my physical body as opposed to my metaphysical body will withstand

16 all this is in God's hands. Thank you.

17 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Praljak.

18 THE ACCUSED STOJIC: [Interpretation] Good day. My name is Bruno

19 Stojic. With respect to my health, I'm quite well, at least I believe so.

20 And as regards the conditions in the Detention Unit, I have no complaints.

21 With respect to my previous posts, when you refer to ministers, I

22 thought you meant me. I was a head of the Defence Ministry of the HVO,

23 and I'm proud of this. The last position I held, seven years ago, I was

24 director of the Dubrovnik Bank in Mostar. I have been unemployed for the

25 last five years. I have no social security or welfare in the Republic of

Page 757

1 Croatia, but as I am now in the Detention Unit, I have been given medical

2 checkups and my health seems to be in good order.

3 As for the manner of addressing me, you may address me as you

4 wish. Thank you.

5 JUDGE ANTONETTI: [Interpretation] Thank you.

6 THE ACCUSED PRLIC: [Interpretation] Your Honours, good day. When

7 somebody asks me what I did, I usually say imagine a state and all the

8 posts of that state and just add the word former in front. I was a

9 journalist, an editor, I was a Prime Minister, I was a mayor, the mayor of

10 Mostar before the war, the Deputy Prime Minister, and for a short time the

11 Prime Minister of Bosnia-Herzegovina before the multi-party elections.

12 After that, I was the managing director of a large corporation in

13 Bosnia-Herzegovina. In the Croatian Community of Herceg-Bosna, I held

14 various posts. I was the Prime Minister, later on I was appointed to the

15 transitional government in accordance with the Vance Owen Plan. After

16 that, I was vice-president of the government, defence minister of the

17 Republic of Bosnia-Herzegovina, minister of defence of Bosnia and

18 Herzegovina. After the Dayton Accord, I for more than five years was the

19 minister of foreign affairs of Bosnia and Herzegovina. I was reappointed

20 several times. After that, I was in the Ministry of Trade. I served in

21 various systems in various governments before the elections during the

22 national party rule and then the multi-ethnic rule. I have also been

23 university professor. I have a Ph.D. in political economy.

24 I am in good health. This morning we were examined in the

25 Detention Unit. I feel that I will be able to face all the challenges of

Page 758

1 this trial. Thank you.

2 JUDGE ANTONETTI: [Interpretation] Very well. The Trial Chamber

3 through me thanks you for this introduction. Thank you for telling us in

4 detail but very succinctly what your various positions were prior to

5 coming to The Hague. And I note that in terms of health, even though some

6 of you may experience some problems, generally speaking, the situation is

7 good. Of course, don't hesitate to tell us straight away if you have a

8 problem or refer it to the doctor in the Detention Unit or speak about it

9 to your Defence counsel, and you can send us any mail relating to such

10 problems if you deem it necessary. Please be aware of the fact that your

11 personal situation will be followed up very closely and I will personally

12 take great care to see how the situation evolves for you if you ever were

13 to experience any problems. As you know, we are going to spend several

14 months or even several years together in this courtroom. Needless to say,

15 as time goes by, we will be made aware of any problem that might turn up.

16 So the agenda of the Pre-Trial Conference calls for a major item

17 now. The issue of Defence counsel. You know it all: The trial will

18 commence tomorrow, officially. The Pre-Trial Conference is a hearing

19 devoted to solving all problems prior to the commencement of trial.

20 Luckily, for the time being, all the Defence counsel are present. There

21 were two problems, two pending issues; one to do with Mrs. Alaburic, who

22 wanted to choose her co-counsel. According to the latest information, she

23 has given up her first choice. This being so, normally speaking the

24 Registrar should appoint a co-counsel to assist Mrs. Alaburic. As I told

25 you last time, if you were ever to fall ill or you were not available for

Page 759

1 some length of time, your client must be represented, and the lawyer must

2 be present. So Mrs. Alaburic, do you want to say anything on this

3 subject?

4 MS. ALABURIC: [Interpretation] Your Honours, I wish to tell you

5 that I have not given up the idea that Mr. Orsat Miljenic should be my

6 co-counsel. He has a great deal of experience in working with the

7 Tribunal. To be sure in a different position, but in my view he is well

8 acquainted with this case, both the facts and the legal issues, and in my

9 view he would be the best possible choice for my co-counsel. I have

10 discussed this with General Petkovic, and I would like him to express his

11 opinion also in connection with Mr. Miljenic and all the issues that have

12 arisen.

13 What I have changed my mind about is the following: The proposal

14 that Mr. Orsat Miljenic be appointed pursuant to Rule 44 is something I

15 have replaced with notice that we have appointed him -- I apologise. The

16 first rule I wish to mention is Rule 45, but instead of this, I now wish

17 to say that we have appointed him pursuant to Rule 44 and that he will do

18 this work pro bono until the summer break by which time we hope to find a

19 more permanent solution, either with Mr. Orsat Miljenic or without him,

20 with counsel who is on list 45. In this way, we have resolved one part of

21 the issue I addressed the Chamber about, and this has to do with the

22 experience an attorney has to have in order to be appointed counsel or

23 co-counsel in line with Rule 45.

24 The remaining issues have to do with interests. It seems to me

25 that the Prosecution has not submitted any submissions. We just have the

Page 760

1 general opinion that someone who worked in the Croatian Office for

2 Cooperation with The Hague Tribunal, in a manner of speaking, some way

3 participated in the work of the OTP and this would prevent my colleague

4 from being appointed co-counsel. General Petkovic is fully acquainted

5 with all the former posts held by Mr. Orsat Miljenic, and General Petkovic

6 and I decided together that I should propose to my colleague that he join

7 the attorneys office and we started collaborating two years ago. I won't

8 repeat what I have stated in my submissions. If the Prosecution wishes to

9 further expand on its arguments in connection with conflict of interest, I

10 would be very pleased to hear their arguments. Thank you very much.

11 JUDGE ANTONETTI: [Interpretation] I shall give the floor to

12 General Petkovic on this issue, but before I do so, let me make the

13 following remark: You said that under Rule 44, you decided to suggest

14 this lawyer to the Registrar, but this means that, as Rule 44 states, this

15 lawyer is paid by your client. If your client has the financial means to

16 pay him, the issue of you being assigned counsel arises under Rule 45. So

17 how do you solve that?

18 MS. ALABURIC: [Interpretation] I stated right away that my

19 colleague Orsat Miljenic will do the work of co-counsel in this team pro

20 bono, which means free of charge. My client, General Petkovic, is

21 duty-bound, pursuant to the Registrar's decision, to participate in paying

22 his part of his Defence to the amount of $180.000. However, he's unable

23 to pay this amount. The bank accounts of my colleague Orsat Miljenic can

24 be checked and it will be easy to see that he will not earn a single

25 dollar or euro by working on this case. So it is clear he will be working

Page 761

1 pro bono or free of charge. My team has looked into the jurisprudence and

2 we found a similar case before the Tribunal in Rwanda. Unfortunately, I

3 have not prepared to discuss this issue at great detail so I have not

4 noted down the name of the case, however, I can check it during the break,

5 and a decision was reached in that case which I propose here; that is that

6 the lead counsel is funded by the Tribunal and the co-counsel is working

7 pro bono. Therefore, I am not proposing something that would constitute a

8 precedent. It is something that has already happened before an

9 International Tribunal. In my view, this would be a fair solution because

10 my client would have a co-counsel that he accepts as appropriate, I would

11 be working with a -- my colleague with whom I have been working for the

12 past two years, and I believe that in this way we will enable the

13 proceedings to go on without hindrance. If the Registrar were to choose

14 my co-counsel, we would be having a person entering the proceedings at

15 this stage who knows nothing of the case and who would not be able to

16 stand in for me. With my colleague as my co-counsel, he would be able

17 indeed to stand in for me and this would be a fair solution.

18 JUDGE ANTONETTI: [Interpretation] So your co-counsel would be

19 working pro bono. One issue remains, that of the conflict of interest,

20 because the said co-counsel would have already worked for the Office of

21 the Prosecutor. But I have some very obvious examples that show that

22 individuals having worked for the Office of the Prosecutor became Defence

23 counsel in various cases. So the notion of conflict of interests is a

24 very flexible one, as it were.

25 General Petkovic, what can you say on this? Because you are the

Page 762

1 first one to be involved in this.

2 THE ACCUSED PETKOVIC: [Interpretation] Your Honour, I have

3 discussed this at length with my counsel and I feel we have found the best

4 possible solution, or rather, the one that is best for me. At least,

5 that's what I think and I think that this should be taken into account.

6 I do not speak another language and I would need an interpreter to

7 talk to another co-counsel. As for Orsat Miljenic, I know what posts he

8 held and I am sure that this will not affect my situation in any way.

9 Therefore, in order for the proceedings to continue without obstruction, I

10 kindly ask Your Honours to accept the solution proposed by my counsel. I

11 would have a co-counsel I can rely upon who is familiar with the case. If

12 I were to have a co-counsel who is not familiar with the case, one I

13 cannot communicate with, that is somebody I do not actually need. Thank

14 you.

15 JUDGE ANTONETTI: [Interpretation] Very well. Second item relating

16 to Defence counsel, and I now turn to Mr. Coric.

17 First let me -- before I give the floor to Mr. Coric, let me ask

18 his counsel whether he wants to discuss this in private session or not.

19 If he does, we will move into private session. If he feels that we can

20 talk about this in open session, we will do so. So what do you want?

21 MR. JONJIC: [Interpretation] Thank you, Your Honour. I have no

22 objection to this discussion being held in open session. I have nothing

23 to hide. But let me say the following: The fact that a confidential ex

24 parte submission was handed round to all parties, including the

25 Prosecution, and that at the last session we discussed something that was

Page 763

1 confidential and ex parte has made it possible for the Prosecution to gain

2 insight into the weaknesses of a Defence team. However, they have not

3 expressed any gratitude for this. If, however, the Tribunal feels or the

4 Bench feels that we can raise this issue in public session, I have no

5 objection.

6 JUDGE ANTONETTI: [Interpretation] Very well. Let's mention this

7 in open session. The issue of a Defence counsel is a fundamental one,

8 indeed. The accused must be assisted by counsel. So far --

9 [Trial Chamber confers]

10 JUDGE ANTONETTI: [Interpretation] Majority decision of the Trial

11 Chamber has been made. We are going to move into private session.

12 Mr. Registrar, please.

13 [Private session]

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 764











11 Pages 764-782 redacted. Private session.















Page 783

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 [Open session]

7 THE REGISTRAR: [Interpretation] We are back in open session, Your

8 Honour.

9 JUDGE ANTONETTI: [Interpretation] We will have to speed things up

10 a little bit because we have only one hour left. We will have to finish

11 in an hour's time. We shall render this decision in writing, having to do

12 with the guidelines that are designed to prepare for an appropriate

13 management of this trial.

14 I would like to address the issue of the guidelines designed to

15 help this Court, this trial unfold as best as possible. In March 2006 I

16 had rendered a decision and filings had been made by both parties. We had

17 had an opportunity to discuss this on several occasions. At our last

18 Status Conference on the 12th of April 2006, the Prosecution presented a

19 ten point outline, the purpose of which was to cut down on the Prosecution

20 case. The Trial Chamber has scrutinised the proposal put forward by the

21 Prosecution, as well as by all the proposals put forward by Defence

22 counsel, would like to make this trial as short as possible. In order to

23 achieve this, the Trial Chamber notes as follows:

24 The length of the Prosecution case will be limited to one year.

25 The Trial Chamber has taken into account the fact that that equals 46

Page 784

1 weeks or 920 hours, if you do away with the six weeks' recess overall and

2 various UN holidays. Therefore, according to this decision, which will be

3 handed over to you in writing tomorrow, the Trial Chamber, after having

4 conferred, rules that the Prosecution will have 400 hours for the -- their

5 examination-in-chief, and the -- of their witnesses. This calculation

6 does not bear in mind the time needed by Defence counsel for their

7 cross-examination, does not bear in mind procedural issues nor questions

8 put by the Bench either.

9 At this stage, the Trial Chamber does not intend to limit the time

10 of the cross-examination of Defence counsel. The Trial Chamber has based

11 its calculation on the fact that Defence counsel will jointly - and I

12 would like to underline the word "jointly" - the same time as the

13 Prosecution -- will have the same time as the Prosecution, and the time

14 given to the Defence should be shared between the various Defence counsel

15 of the co-accused.

16 The Trial Chamber will stringently monitor use of time, and if

17 need be, the Trial Chamber will take any additional decision according to

18 circumstances and difficulties encountered. The Bench has felt that this

19 was a good working plan. The decision could be amended at a later stage,

20 of course, but you know from experience when Defence counsel will take the

21 floor, you will not all repeat the same thing. Therefore, this is a good

22 way of using our time.

23 As far as adducing evidence is concerned, this is a very important

24 point, so please pay attention. As a rule, the exhibits will be filed via

25 each witness. The Trial Chamber will in due course look into the question

Page 785

1 of written statements according to Rules 92 bis and 89(F) of the Rules of

2 Procedure and Evidence. As far as admission of exhibits via expert

3 witnesses are concerned, as a rule, the Trial Chamber does not intend --

4 the Trial Chamber only wishes to tender the report and those points which

5 have been discussed in the presence of the witness when he is called -- he

6 or she is called to testify. The Trial Chamber will not accept to tender

7 all the documents mentioned in the expert report. Let me give you an

8 example. If, for instance, 400 exhibits are mentioned in a given report,

9 if the expert witness will only talk about 20 or 30 of the exhibits, those

10 30 exhibits will be tendered into evidence but the remaining 370 will not

11 be tendered into evidence.

12 In the event that the Defence -- but this also applies to the

13 Prosecution when the time comes. In the event that a party disputes the

14 authenticity of an exhibit, a reasoned objection will have to be filed.

15 I'm speaking about the authenticity of an exhibit, I'm not talking about

16 reliability, which is a different issue.

17 The Trial Chamber accepts evidence in the form of a dossier.

18 However, this is now a very important question. Presentation of a case in

19 the form of a dossier does not mean that the party that presents the

20 dossier does not have to comply with the Rules of Procedure and Evidence.

21 That still applies. Which means, in other words -- let me refer to the

22 Gornji Vakuf dossier which you have all been able to read. The Gornji

23 Vakuf dossier contains five volumes. Certain files contain maps and lists

24 of people's names, and in the second part you will find witness

25 statements. The Prosecution must provide us with a dossier without the

Page 786

1 exhibits, to begin with, at any rate. The dossier comprises a number of

2 items; maps, witness lists, and various number of other items, but no

3 exhibits. The exhibits will only be included in the dossier once the

4 witness has had an opportunity to discuss it and has been cross-examined.

5 After that, at a second stage, these exhibits will be included in the

6 dossier.

7 The Prosecution, if it so wishes, can then ask the Trial Chamber

8 to be given a number for the particular dossier, which means that, as far

9 as Gornji Vakuf is concerned, we will have a small dossier containing

10 maps, lists of witness lists, paragraphs of the indictment, reference to

11 paragraphs in the pre-trial brief, and then afterwards, when witnesses

12 come to talk about Gornji Vakuf, the exhibits can then be added on to this

13 dossier. I hope Mr. Mundis has understood all of this, but this will be

14 spelled out in our written decision. This was done because all and

15 everyone felt that a dossier was a useful instrument but it was also

16 designed to protect the rights of the accused.

17 From a personal standpoint, and I shall not quote any witness

18 names, but I have realised that the Prosecution, according to what I had

19 asked, the Prosecution has cross-referenced the exhibits with a number of

20 witnesses, so you have all received a CD-ROM. I've had this CD-ROM

21 printed out, and I'm sure you have the same, and if you look at this, you

22 will be able to realise that we have a number of exhibits and a number of

23 witnesses. Number of exhibits that are likely to be presented to the

24 witnesses total 320. Mr. Mundis will certainly encounter a problem here.

25 How, when a witness is in the witness box, how will you be able to adduce

Page 787

1 320 exhibits? You will have to, as one of the Defence counsel has stated,

2 you will have to make a selection and adduce those exhibits that are

3 relevant. There is no point in drowning all and everyone in too large a

4 number of exhibits. As I have said, there are 320 exhibits. This is in

5 the CD-ROM which you have been provided with. The Prosecution must think

6 about this.

7 Also I had drawn the attention of all the parties, people present,

8 but Mr. Karnavas also mentioned this a while ago: We should not overlook

9 the fact that when an exhibit is presented to a witness, the questions put

10 either by the Prosecution or by the Defence can concern one or other

11 paragraph of the said document but when the Judges of the Bench need to

12 deliberate on the probative value and relevance of the exhibits, we may be

13 more interested in some of the paragraphs which haven't been mentioned

14 here. As Defence counsel, when the time comes for the cross-examination,

15 maybe it is more important for you to consider those elements which you

16 deem to be the most important. It is important not to overlook this.

17 When we need to compare this exhibit with other exhibits, when we render

18 our judgement, we can mention parts of the document which will not have

19 been mentioned here because, when an exhibit is being admitted into

20 evidence, it is the entire exhibit and not just one paragraph.

21 This also applies to you, when you will be calling your witnesses

22 to testify, and presenting -- and when you will be presenting your

23 exhibits. I'm sure you will have thousands of exhibits. The same applies

24 to you; you will be asking a number of questions on a particular document

25 but the Judges will look at the entire document. Be aware of the fact

Page 788

1 that judges will read everything. I say "everything" [In English] All.

2 [Interpretation] Furthermore, regarding the filing of Defence

3 submissions, the Trial Chamber encourages the Defence, as much as is

4 possible, of course, to file motions and replies jointly. Situations may

5 arise where you all agree, so there is no need for six submissions or six

6 replies to say one and the same thing. So it's up to you to share the

7 work load with the six Defence teams signing one and the same motion.

8 However, if you do not agree, of course you are free to file motions

9 yourselves. This is just an encouragement to you from the Chamber.

10 When a motion is filed by either party, as a rule, the Trial

11 Chamber will not allow any reply. So you file your motion, you have a

12 first reply by the other party, and that's it. We are not going to play

13 table tennis here, legal table tennis.

14 Regarding the e-court system, you all know that we are going to

15 use this e-court system during the trial. However, the Trial Chamber

16 would like, when a witness is called to testify, and when a party submits

17 documents to the witness, that the party presenting the documents supply

18 the Trial Chamber with the hard copies of the documents. I'm not asking

19 you to make 25 photocopies. If there is one photocopy, that's enough.

20 Four is even better. And the judges will be grateful for this. But given

21 the means you have available, you may not be able to do more than one

22 photocopy. Personally speaking, I have experienced one trial already in

23 which this was not an issue. I don't see why it should be an issue in

24 this trial.

25 The chart, witness list and exhibit list. Further to the order of

Page 789

1 the 30th of November 2005, the Prosecution submitted to the Trial Chamber

2 this famous chart. However, I'm looking at you, Mr. Mundis. I can see

3 that what has been done is not quite complete, given what I had asked you

4 to do. The missing link or part is the reference to the liability of each

5 and every accused under 7(1) or 7(3). If you had done so, the Judges

6 would have been able to understand the way you articulate your case better

7 and the Defence would have been better able to prepare for

8 cross-examination. You're going to tell me that you were under time

9 pressure, et cetera, so in the future, I do urge you, when you provide us

10 with the next chart, to endeavour to put across each witness the nature of

11 the allegation. Does it concern all of them, all of the six, or only four

12 or only one? Only you know this.

13 I also remind you that the charts must be filed on a regular

14 basis. Here, this chart takes us to July. But after July, every three

15 weeks we must be provided with a chart for the next two weeks, with regard

16 to witnesses. This is doable. You know that, Mr. Mundis. And this would

17 apply to the Defence as well. You must understand that whatever I say to

18 Mr. Mundis I am saying to you as well, Defence counsel.

19 Regarding Mr. Donia, expert witness Donia, under 94 bis, as you

20 know, several accused challenged his quality of expert. The Trial Chamber

21 noted that this witness testified as an expert in many cases; therefore

22 deems him an expert, but it is up to the Defence counsel to challenge his

23 expert quality. Mr. Donia will come to the stand and you will be free

24 during cross-examination to challenge everything about him.

25 Testimony of expert witness William Tomljanovich. Mr. Mundis,

Page 790

1 according to your submissions, I understood that Mr. Tomljanovich, or

2 Tomzanovic [phoen], will testify on the 13th, 14th and 15th of June; very

3 soon, therefore. Today, we still have not received his expert report. I

4 think the Defence teams may not have received it either. So Mr. Mundis,

5 make sure you produce the report by the 12th of May. Make sure that the

6 Defence teams, who will have two weeks under Rule 94 bis, file their

7 remarks.

8 Regarding pending motions, a decision will be issued soon under

9 Rule 70, but this should not be a problem. This is going to be done very

10 soon.

11 Under Rule 94 bis, Mr. Praljak had asked for leave to testify or

12 to make a statement. He is so granted by the Trial Chamber. This regards

13 his opening statement. At this stage, Mr. Mundis, do you -- how much time

14 do you need for your opening statement?

15 MR. MUNDIS: Your Honour, the Prosecution -- as Mr. Scott

16 indicated previously, the Prosecution anticipates that it will take no

17 more than one full court day. There could be a little bit of slippage

18 there; in other words, it might go slightly longer than that, but we fully

19 expect that we can do it in one full court day.

20 JUDGE ANTONETTI: [Interpretation] Very well. We discussed this

21 among Judges. If you need the full court day tomorrow, Mr. Praljak will

22 have all of Thursday. If, unfortunately, there is some slippage and you

23 need some time on Thursday, we will have to have a morning hearing. I do

24 urge you to limit yourself to Wednesday for your opening statement. So to

25 keep things equal, Mr. Praljak will have all of Thursday. So Wednesday

Page 791

1 we'll have the Prosecution and Mr. Praljak will have the Thursday. But

2 mind this: Mr. Praljak's lawyer or Mr. Praljak himself will have to tell

3 us if they need somebody's help because it is planned to have visual aids,

4 slides, or something, I'm not quite sure. So can we have some

5 specifications as to the way to run this? Mr. Praljak, could you shed

6 some light on your plans on Thursday, without really speaking on the

7 merits, of course.

8 THE ACCUSED PRALJAK: [Interpretation] Your Honours, technically

9 everything has been prepared. It's on the computer. We have the whole

10 presentation ready. The person who will be providing technical assistance

11 to me is already here, becoming familiar with the Court procedure. I

12 think that this will be expeditious and exciting, not boring, in all

13 aspects. Thank you.

14 JUDGE ANTONETTI: [Interpretation] In the event that we have video

15 footage or maps or charts, flow charts, I ask the Registry, and it has not

16 been denied so far, I've asked for a large screen to be displayed in the

17 courtroom so that the screen can be positioned above the witness's seat so

18 as to make it possible for the Trial Chamber, the accused, and the parties

19 to see it. Of course, the public in the public gallery should also have a

20 large screen. It will be easier to have a large display to see what is in

21 a document rather than on this monitor which is big enough as it is, but

22 sometimes if you have a large screen, you see better. I'm looking at

23 Mr. Frejabue, our court deputy. The Registry has committed itself to

24 preparing this. I hope everything will be available very soon. I don't

25 know how they are going to do it, but there could be a video projector,

Page 792

1 that's quite possible and feasible. Everybody will be able to see much

2 more easily.

3 We still have 20 minutes left.

4 I'm now turning to the Prosecution. Mr. Mundis, do you want to

5 intervene? But let's move just for a few minutes to private session, to

6 tackle another subject. Please, Mr. Court deputy.

7 [Private session]

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 793

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 [Open session]

16 THE REGISTRAR: [Interpretation] We are in open session,

17 Mr. President.

18 JUDGE ANTONETTI: [Interpretation] I'm now turning to Mr. Mundis in

19 open session. Do you have anything to mention to the Trial Chamber? The

20 floor is yours.

21 MR. MUNDIS: Thank you, Mr. President, Your Honours. We note,

22 Mr. President, that the Trial Chamber has rendered a decision concerning

23 the issues concerning counsel. We did, with respect to one of those

24 issues, wish to file something and we will be doing so tomorrow,

25 notwithstanding the Trial Chamber's earlier decision as announced at the

Page 794

1 beginning of this session. That's really the only outstanding issue that

2 we have arising from today's conference. Thank you.

3 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Mundis.

4 I can see that Mr. Karnavas is eager to take the floor.

5 MR. KARNAVAS: I am. Mr. President, Your Honours, I know it's

6 late in the day. I have to register my disappointment -- I know you don't

7 like hearing that, Mr. President, but disappointment it is with your

8 announcement that we will jointly have to share the time on

9 cross-examination. Just briefly, if I could just give an example. If,

10 for instance, Mr. Donia were to testify for two hours, that would be 120

11 minutes. If you divide that by six, then that doesn't leave much for any

12 particular counsel to do anything, if at all. And when you look at what

13 Donia has done in six prior cases - and I've read all his transcripts - he

14 alone, as I indicated last time, is about a three- or four-day

15 cross-examination, and I say that because, when you look at his report,

16 you don't see any footnotes and the footnotes that you do see are from

17 newspaper articles. So in order to challenge this individual -- and I'm

18 not saying that he's not an expert in the sense that he's got a Ph.D. in a

19 particular area for a particular period of time, but for what he has been

20 called to do in this case and in other cases, I dare say it's gone a

21 little bit beyond his expertise, and so in any event, I'm registering my

22 disappointment, and also I'm hoping that the Court or the -- Your Honours

23 will be a little bit more flexible because we aren't -- I understand that

24 there is this concept of joint criminal enterprise. When we are treated

25 as jointly, then it only feeds into this mindset that there is such a

Page 795

1 thing, that we get together and then we jointly sort of figure out what we

2 are going to be doing, and that's not the case, which is probably why on

3 many occasions we don't join each other's motions or we don't file joint

4 motions. That's one.

5 Number 2, disclosure. Disclosure is still coming in. There are

6 some unresolved issues. I can speak with Mr. Mundis privately, I don't

7 need to take the time right now, but at some point I think it would be --

8 it would really help us if the Trial Chamber were to put a deadline, say,

9 for instance, as of August 1, no more disclosure in the case, this is it,

10 forget it. If you come up with some other witnesses, they cannot be

11 introduced. Now, I understand in the system it's very difficult to do

12 that, but they've had eight years. On the other hand, if we are going to

13 have a short trial, if the case continues to grow, how can we possibly

14 live within a time limit? So I would urge the Trial Chamber to consider

15 that, and I'm begging the Prosecution to be a little more forthcoming with

16 some of the disclosure that they anticipate having, and perhaps at some

17 point they can address the Trial Chamber as to what remains out there,

18 what they think remains out there. And I'm not referring to where they

19 have to react based on what comes out in court. Obviously they have an

20 obligation to do that. But certainly they shouldn't be going out there

21 trying to develop new leads that they haven't explored already.

22 Witness lists. You know, here we are, on the eve of trial, I have

23 a list of some witnesses up until June. They have 185, according to Madam

24 Del Ponte. Why can't I have the order of the witness list, and why can't

25 we have all of this done by now? You've indicated that they haven't met

Page 796

1 fully your expectations with respect to the proofing chart. I understand

2 they are labouring in a hard -- but they've had five months. We've got

3 some of it, not all of it, and I think we are going to need to do a little

4 bit better. I think you're a little bit overly generous with them,

5 Mr. President, if I may say so. I would probably be a little tougher, but

6 I've never been a judge, so you know. But I think -- you have to

7 understand that the trial days are very difficult for us and we don't have

8 enough time to react to everything. We don't have the resources. So if

9 I'm just getting a list for two weeks, in advance, it's very difficult for

10 me to deal with motions, look into all this other material, check and see

11 what else is out there.

12 Which brings me to my next point. This fellow, Tomljanovich, he

13 was an employee of the Office of the Prosecution -- he's still, thank you.

14 And it begs the question: How on earth we don't have a report yet?

15 What's he doing? Is this -- is he writing -- what is going to produce? I

16 need to react. I need to check it. How can I do that, prepare for court,

17 and now you're giving me this Herculean task. You're saying to me be

18 efficient in court, and as I indicated last time, for me to be efficient,

19 I need to spend more time preparing. If I'm getting that report two weeks

20 -- and I only have two weeks to react to it in front of everything else,

21 it's a little bit -- I think, Mr. President, Your Honours, you should ask

22 for their -- his report by the end of the weekend, and let

23 Mr. Tomljanovich come here and he can give us explanation why he hasn't

24 provided his pay masters with that report. And if he can't produce, he

25 should get fired. It's as simple as that.

Page 797

1 I'm a little bit worried, as I said, about Mr. Donia. I think if

2 the Prosecution ends up putting him on for two hours, there is no way on

3 Earth that I alone, let alone all six of us, could cross-examine him for

4 two hours. It is physically impossible and I think it would be a

5 miscarriage of justice to hold us to that. As I indicated, I'm prepared

6 to try to provide with a list of all the questions I would have asked if I

7 had the opportunity. I don't want to go that route, but I do think, at

8 least as we start with some of these very, very important witnesses,

9 because they are bringing in the big guns early on, as you can see, they

10 are not bringing in some crime-base witnesses. These are heavy hitters

11 that take a lot of time to prepare, and I think as we start, at least, I

12 beg for your consideration for a little bit more time.

13 One other issue before I get to a technical issue. My client

14 would like to have the use of a computer in court. He's computer

15 literate, has been forever, and I think it's important for him to have

16 those resources. He's entitled to assist in his own defence, he wishes to

17 assist in his own defence, and in that vein I also wish to emphasise that

18 I made a request that he be provided or he be allowed to use the internet

19 while he's in the facilities. And I say this not because he's going to be

20 or should be communicating privately or doing private affairs but

21 everything that we have is electronic. You have this electronic

22 disclosure system. You have the JDB. He should be entitled to do his own

23 research, and it would also be important for him to communicate with me,

24 if need be. So that's a technical issue that we need to at least think

25 about. I've asked the Registry to think about it. I'm not being

Page 798

1 dogmatic, neither is my client, but nonetheless I want to press as much as

2 I can. We are in the age of technology and we can't say, well, gee, they

3 may disclose something while they were out on provisional release. And

4 nobody raised that issue, that they shouldn't have the use of the

5 internet. Why, all of a sudden, now they are going to be a threat where

6 they are under the watchful guise [sic] of the United Nations here in The

7 Hague. Lastly, one minor technical issue. My client informed me that on

8 page 35, line 24, apparently he had indicated one of his positions which

9 was misinterpreted. Perhaps, rather than me saying what he said, perhaps

10 he can be given the opportunity to correct the record so I don't get it

11 wrong.

12 And again I apologise, I don't mean to be disrespectful when I say

13 I'm disappointed, but on the other hand, I have to raise it.

14 JUDGE ANTONETTI: [Interpretation] Mr. Prlic, did you want to

15 correct something in the transcript?

16 THE ACCUSED PRLIC: [Microphone not activated] transcript, but I

17 saw just after finish my remarks that it was [B/C/S spoken]. So I said

18 president of executive council of Mostar, which means president of

19 government. Prime Minister is not the same as president of government.

20 Second, I mentioned during war that I was president of temporary

21 executive council of Croatian community Herceg-Bosna, and later on Prime

22 Minister -- president of government of Croatian Republic of Herceg-Bosna.

23 The first part wasn't translated at all. And at the end, I said that I

24 had Ph.D., if I'm able to recall, in international economy. It was said

25 just political economy. So I said international relations --

Page 799

1 international economy and political economy. So I think that those three

2 issues should be changed.

3 JUDGE ANTONETTI: [Interpretation] Very well. It will be done so.

4 The transcript will be corrected.

5 Mrs. Alaburic, you have the floor.

6 MS. ALABURIC: [Interpretation] Your Honours, during the trainings

7 organised by our Bar association for counsel who are new, on such cases we

8 were told that sometimes, and maybe even often, we will be saying things

9 not for any other purpose but to put them on the record. I hope that this

10 will not be said of my next remark which has to do with the amount of time

11 allotted for cross-examination. I fully agree with Mr. Karnavas, and I

12 wish to add the following: Namely, that this violates the principle of

13 equality of arms in this trial. The Prosecution not only has the time for

14 examination-in-chief, but they also have on their side additional

15 material, evidence, documents that they want to introduce through that

16 witness. So we cannot speak of any equality of arms if we are only

17 analysing the allotted time and not the entire documentation.

18 My other remark means -- is that the rights of each accused will

19 be adversely affected if each of them is given only one-sixth of the time

20 allotted to the Prosecution. This goes contrary to Rule 82(A). The

21 Defence of Mr. Petkovic will appeal this decision. Thank you.

22 JUDGE ANTONETTI: [Interpretation] Before I give the floor, I

23 wanted to respond to Mr. Karnavas. Regarding the issue of the computer or

24 the laptop, Mr. Frejabue, please check with your Registry to see whether

25 it's possible for accused to have laptops during the hearing. It's not up

Page 800

1 to me, it's up to the Registry. I went to the Tribunal web site no later

2 than this afternoon. 36 computers were given to Bosnia-Herzegovina. They

3 went off in a truck. So maybe laptops can be made available to the

4 accused.

5 Regarding your disappointment, please trust the Trial Chamber.

6 Don't be overly disappointed. Of course, the issue of the expert witness

7 which you challenge, why can't you, all of you six Defence teams, decide

8 as to the one who is going to cross-examine in chief as it were? You

9 don't need all of you to repeat the same questions again and again. So

10 just agree among yourselves, because when it comes to the historic

11 factors, there should be some consensus among the Defence if they want to

12 challenge specific facts mentioned in the so-called expert report. So I

13 think you could agree among yourselves. Also don't forget that the -- you

14 yourselves will have an opportunity to call your own experts. Do not

15 forget that. This is now the Prosecution case but you will have your

16 Defence case, during which you will be free to call whomever you want. I

17 mean, fair trial, it's a fair trial between the two parties, right?

18 Balanced between the two parties. We'll see how all of this unfolds but

19 very soon you'll realise that questions have been already put by a

20 colleague of yours so there is no need to repeat it, but of course, the

21 Trial Chamber will listen to you if you want to take the floor, which is

22 now the case. So I do give you the floor.

23 MS. NOZICA: [Interpretation] Thank you, Your Honours. I must

24 confess that it seems to me that in the ruling of the Trial Chamber about

25 expert witnesses, you resolved this dilemma. If I misunderstood you, you

Page 801

1 can correct me, but it seems you have resolved this dilemma concerning the

2 expert witness by saying that only what they state viva voce will be

3 admitted into evidence. I'm saying this not because I'm trying to amend

4 your ruling but let me say that our greatest problem is that such rulings

5 are strictly applied only initially and later on the application becomes

6 more loose. When it comes to expert witnesses which will be testifying

7 against all of the accused, we would like to kindly ask you to be somewhat

8 more lenient when it comes to time in those cases. Naturally, all of the

9 Defence teams will try to do as you instructed us; namely, to divide the

10 time among us, and we hope that none of those questions will be relevant.

11 JUDGE ANTONETTI: [Interpretation] Back to the issue of the expert

12 witnesses, the accused were not present last time and I think it needs to

13 be stated again. Donia is an expert witness who testified on several

14 occasions in various trials. I looked at the Blaskic judgement, at the

15 Kordic judgement, and if I remember well, in the Blaskic judgement, this

16 is a witness who testified for days on end. Well, in the Blaskic

17 judgement, there are two footnotes. Two. In Kordic, unless I'm mistaken,

18 there are three of them. So that's the problem as it stands. Do we have

19 to devote entire hours to arrive at a situation where -- when judges,

20 after 15 days of testimony, only use two words, two footnotes with

21 referral to a footnote? This is food for thought.

22 Regarding the other expert, I'm hearing this for the first time,

23 he's an employed person with the Office of the Prosecutor. Mr. Mundis,

24 you should give this report to the Defence very soon. Why should they be

25 left without it, especially if the report is 50, 100 or 200 pages long?

Page 802

1 They need time to look into it, to scrutinise it, and to pass it on to the

2 accused who may also have relevant remarks to make.

3 We just have a few minutes left. Yes, you have the floor.

4 MR. IBRISIMOVIC: [Interpretation] Thank you, Your Honour. Very

5 briefly, I think an issue raised by the Defence of Mr. Praljak and

6 Mr. Kovacic remains. I think Mr. Karnavas also spoke about it. It

7 concerns the right of the accused to put questions in exceptional

8 circumstances. I believe that this has to do with expert witnesses. We

9 have not heard what the position of the Chamber is in this respect.

10 JUDGE ANTONETTI: [Interpretation] Very well. For the time being,

11 we have not discussed -- or the Bench has not discussed this issue yet. I

12 have told you what my personal point of view is but I don't know if the

13 other Judges share my point of view. Personally, I feel that I have no

14 objections to Mr. Praljak completing the question or supplementing the

15 questions put by his Defence counsel, but the Judges of the Bench need to

16 agree with this. This is something we are going to look into and we will

17 let you know what our position is. We still have a few days ahead of us

18 and we shall inform you of our position.

19 Mr. Kovacic, you're remaining very silent. Would you like to say

20 something?

21 MR. KOVACIC: [Interpretation] May I just add, my colleague has

22 interpreted this previous discussion more or less correctly. I believe it

23 was an oral motion made by my client while he was representing himself. I

24 feel that there are other witnesses where it would be very useful and

25 practical for the accused to put questions directly. I will now invent a

Page 803

1 scenario. Let's say you and I were in the same place a few years ago and

2 you're talking about this to a third person and you remember a certain

3 beech tree that was there, and it jogs your memory. So it's useful to put

4 questions of this kind. The witness might say to me, I don't remember,

5 but when he looks my client in the eye, he couldn't say that. It might be

6 useful to jog the memory of witnesses.

7 Your Honour, if I may add very briefly in connection with

8 examination of expert witness Donia, Your Honour stated very correctly

9 that in the Blaskic and Kordic judgements, he is mentioned in only a few

10 footnotes. Let me remind you, however, that these footnotes represent the

11 basis for further conclusions made by the Chamber in those cases. I agree

12 with what Your Honours say, that so much time was spent in those cases on

13 this one expert witness but the results were minimal. Let me remind you,

14 however, that the Defence of the accused Prlic proposed that this

15 testimony, or rather, this witness be not called at all. If we look at

16 this from the standpoint efficacy and expeditiousness, regardless of the

17 time frame set by Your Honours, I am convinced that because of the

18 relevance of the questions put by the Defence, you will extend our time.

19 I'm certain of it, because Your Honours will see that the questions truly

20 are relevant. We will lose a lot of time with Donia and the result will

21 be precisely what Your Honours have stated. It is an irrelevant testimony

22 and we should not waste time on it. Thank you.

23 JUDGE ANTONETTI: [Interpretation] We have a few minutes left. Let

24 me turn to the accused. Would one of the accused like to say something?

25 Mr. Praljak raised his hand. Could you be brief, please, because the

Page 804

1 interpreters from now on are working overtime.

2 THE ACCUSED PRALJAK: [Interpretation] I will be brief. I wish to

3 leave open the possibility in the case of certain witnesses, especially

4 those we call experts, a historian however cannot be an expert, he can

5 only provide the Court with information, because if you take ten

6 historians, they will mutually disagree. All he can do is bring

7 documents. But his opinion is relevant only as information, not as an

8 expert. An expert may be a surgeon, a ballistic expert, or another kind

9 of scientist in the exact sciences, so I ask Your Honours for leave to

10 question these so-called experts myself, because my own knowledge is so

11 much greater than theirs that I will be able to expose them.

12 THE ACCUSED PUSIC: [Interpretation] Thank you, Your Honours.

13 There is an old adage that whoever does something makes mistakes. I

14 believe that the Prosecution has made a big mistake in raising the

15 indictment and they have chosen the wrong person for this. In the war

16 which is behind us, many people called Pusic played a role. The

17 Prosecution still has time to withdraw the indictment in my case. Thank

18 you.

19 THE ACCUSED CORIC: [Interpretation] I will be very brief. I

20 support this motion that we the accused should have the right to put

21 questions to witnesses. I especially wish to draw attention to my own

22 situation and I wish to assist my future counsel by putting a question now

23 and then. Thank you.

24 JUDGE ANTONETTI: [Interpretation] Do other people wish to say

25 something? No. In that case, Mr. Mundis, just in a few seconds because

Page 805

1 the Prosecution would always -- would like to be the last to speak. You

2 have the floor.

3 MR. MUNDIS: Thank you, Mr. President. Your Honours, I will be

4 very brief. On the issue of whether the accused are permitted or offered

5 an opportunity to question witnesses, the Prosecution certainly would like

6 to be heard on that particular issue prior to the Trial Chamber rendering

7 a decision allowing that. We believe that an informed decision is one in

8 which all of the parties have a right to be heard and we would ask for an

9 opportunity to fully brief that issue and to fully set forth the

10 Prosecution's view on that. We've alluded to this in one of our earlier

11 filings, and we simply at this point would take the view, Your Honours,

12 that although the accused have an absolute right to remain silent, that at

13 any point when they exercise any rights to speak, including questioning

14 witnesses, that anything that they say, the way they formulate a question,

15 any hypothesis that's built into the question, can certainly be construed

16 as a statement which we will seek to use against them at any opportunity

17 that we can do so. And that would be our position in a nutshell. We

18 would like the opportunity to more fully brief that issue prior to the

19 Trial Chamber rendering a decision.

20 JUDGE ANTONETTI: [Interpretation] If you would like to file

21 submissions, you have all night to draft these. You can file your

22 submissions as of tomorrow morning onwards. As Mr. Karnavas said, you

23 have a armada standing behind you, so make use of the armada and file your

24 submissions. We the Judges -- well, I'm sure -- I believe that behind the

25 wall there are a number of people sitting there, and we will have to rule

Page 806

1 on this.

2 It is now ten minutes past 7. I apologise to the interpreters.

3 As you know, we shall reconvene tomorrow at quarter past 2, and we will

4 have our hearing until 7 p.m. and we shall reconvene again on Thursday.

5 Thank you, and see you tomorrow.

6 --- Whereupon the hearing adjourned at 7.11 p.m.,

7 to be reconvened on Wednesday, the 26th day of

8 April, 2006, at 2.15 p.m.