1 Thursday, 22 March 2007

2 [Open session]

3 [Procedural Hearing]

4 --- Upon commencing at 9.05 a.m.

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

6 case.

7 THE REGISTRAR: Good morning, Your Honours. This is case number

8 IT-04-74/T, the Prosecutor versus Prlic et al. Thank you.

9 JUDGE ANTONETTI: [Interpretation] The hearing is convened in the

10 absence of the accused. It is aimed at procedural matters. The [B/C/S on

11 English channel] of this work plan containing a number of items that the

12 parties wanted to submit to the Chamber. Therefore, we decided that the

13 Prosecution would have one hour, and -- yes, Mr. Scott.

14 MR. SCOTT: There's no translation.

15 THE INTERPRETER: Microphone, Mr. Scott, please. MR. SCOTT:

16 Apparently it just came up. Up to this moment, Your Honour, there's been

17 no English translation, I'm afraid. Thank you.

18 JUDGE TRECHSEL: Did you try channel 4 because I get it.

19 MR. SCOTT: I get it now. It wasn't before.

20 JUDGE TRECHSEL: Unequal treatment.

21 JUDGE ANTONETTI: [Interpretation] We'll start again. I was

22 telling you that further to the agenda the Prosecution will have one hour

23 to make their submissions, and as to the Defence they, too, will have an

24 hour to do the same.

25 Yesterday, as we pointed out, the sooner the better. We will

1 tackle these issues in the presence of the accused who asked to be heard

2 since they, too, had questions. We as Judges discussed this matter

3 yesterday, and we want everything to take place and unfold in the best

4 climate possible. We would like this hearing to be a constructive hearing

5 and that any controversy be put aside.

6 I'm now going to give the floor to the Prosecution for their

7 submissions. Shall we start with the Defence? I don't mind. There are

8 not going to be any discussions. Please, let's start with the Defence.

9 MR. KARNAVAS: Thank you, Mr. President, and before I go into what

10 I intend to say, it might be worth noting that with respect to the one

11 item on the agenda which is the role of the accused in participating in

12 trial, that may be something that should be postponed until we meet with

13 the clients for the following reasons: This is not a substantive -- a

14 procedural matter, it's substantive as well, and I think it would be best

15 if we could deal with that when they are present, but I leave that up to

16 the Trial Chamber.

17 Let me begin by saying that -- with a first point, and that has to

18 do with the allocation of time for cross-examination, relationship to

19 Prosecution estimate of time required for examination-in-chief. That's

20 the topic, and here are some points that I think are necessary to -- to

21 think about: As Mr. Scott indicated when he took the floor a couple of

22 days ago, this is a party-driven system. I could not agree with him

23 more. Each party has its own case. The Judges do not have a case. You

24 do not have a case. You don't have a full dossier. What you do have are

25 some documents. When it comes to the Defence, you certainly do not have

1 the documents that the Defence intends to introduce. Some of those

2 documents may have been gathered in our own investigation. You only get

3 those documents right before the witness takes the stand, and sometimes

4 just by gleaning at the documents themselves they may not necessarily give

5 you an idea of where we're going. And again to echo what Mr. Scott said,

6 given that this is party-driven system and we all know our own case, we

7 may be going in a particular direction which may not necessarily make

8 sense at that point in time, and so obviously the Trial Chamber, if they

9 feel that a party has gone astray or is going into an area which is not

10 relevant, should ask for the party to give an explanation why is this line

11 of questioning relevant, and the party should be able to articulate the

12 reason. If the reason isn't sufficient, the Judges can control the

13 proceedings by simply asking the party to move on; it is not relevant.

14 But sometimes it may be relevant, and that's why we ask for the Court's

15 indulgence to allow us to put our case on, because we know it. We think

16 we know where the Prosecution is going. We only know that because we have

17 their documents and we've been working diligently in the field.

18 Next point: The -- there is a need to consult the Defence when it

19 comes to how much time should be allocated for cross-examination. I know

20 that in the continental system defence lawyers play a minor role and often

21 are just looked down upon as being minor players. They have nothing

22 really to do with the procedure. It may be some fine elocution at the end

23 for sentencing purposes or they -- but because primarily their role is, at

24 the pre-trial stage, where they play a much greater role than, say, at the

25 continental -- at the adversarial system, but I think here, because we

1 know our case, because we think we have documents that might be relevant,

2 it might be useful. It may not always, but it might be useful in some

3 major -- major witnesses. Crime base witnesses, you see, I don't ask many

4 questions, and many of my colleagues ask few, if many. But when it comes

5 to the major witnesses, there may be issues that we think are very

6 relevant that you may not be aware of. We may have documents. We may

7 have sources of information that we would like to put to the witness.

8 When the Prosecution chooses its time, the Prosecution knows

9 exactly how much time it needs to put on its case, to go through the

10 documents. So if they say two hours, it's because they've thought long

11 and hard how long it would take to get the information from that

12 particular witness, and, as we have noted, the Prosecution occasionally

13 gets it wrong. Why? Because that's the nature of the beast. We're going

14 to get it wrong as well. Sometimes you miscalculate. Sometimes the

15 witness is not quite as forthcoming because they're nervous. They don't

16 understand the questions. It's not that they're being necessarily

17 uncooperative, but -- or you may dwell on a document a little bit more

18 than you thought. Especially at the proofing stage it may become more

19 apparent that what seemed to be initially an inconsequential point now

20 because of the turn of events there's a need to make a little more time.

21 That's why I'm making this pitch for the Prosecution because it

22 affects the Defence as well and because -- and because it affects not just

23 us when it comes to our turn put on our evidence but also when this comes

24 to cross-examination.

25 Let's take Witness Okun as an example. Not only do we have his

1 diaries, but you have others who participated, such as Lord Owen, who

2 wrote a book. You have Mr. Zimmermann, who is no longer with us

3 unfortunately, but he also wrote a book and he also testified. His

4 transcript may -- may not be coming in, as I understand, but nonetheless

5 there's -- there's a wealth of information out there that we look at, that

6 we spent a lot of time, and I can assure you, Your Honours, and I can

7 speak for my colleagues as well, we spend a lot of time thinking about

8 what we need to put forward, and we try to condense it and try to be as

9 efficient as possible. And that's why it might be good for us to be given

10 the opportunity to state our case.

11 Now, in order for us to be able to do that, the Prosecution, of

12 course, would need to provide you and us with their entire list of their

13 witnesses. They've been doing it piecemeal. Not because, in my opinion,

14 they're trying to torture us, you know, with this Chinese torture method

15 of one drip at a time, but because that is, again, the nature of the

16 beast, especially when it comes to such a large case. But I think at this

17 stage of the proceedings they should be able to say, here are the

18 remaining witnesses that we have. Here is what will we estimate. And we

19 can sit down, it doesn't have to be in court because we shouldn't be

20 taking valuable courtroom time, but we can sit down and maybe have our

21 input.

22 I think if the Defence were consulted, you would find that we

23 would be reasonable, and I think if we are going to be demanding more time

24 we should be able to give concrete reasoning why we need that extra time.

25 Not because we want to -- we think there's a point to develop but we must

1 know exactly what we need to develop. When I teach trial advocacy, I

2 always say you have to know your destination before you get in the car to

3 go -- go to it. So we know where our destination is. Allow us to

4 participate in that process.

5 In the past the Trial Chambers -- this Trial Chamber has said,

6 Well, we have to worry -- we're worried about the rights of the accused

7 because they have this right to an expedited trial. Frankly, I think that

8 that's an overly abused concept in this particular Tribunal because you

9 have accused who are waiting four or five years to go to trial and then

10 all of a sudden when they get to trial they're saying now we're concerned

11 that you have a speedy trial. So I don't think that that's the proper

12 interpretation. But in thinking about this issue, Mr. Stewart was kind

13 enough to remind us of an experience that he had in front of Judge Orie in

14 the Krajisnik case and he brought up this topic and it's on page 4.460.

15 It was on 16 July, 2004, for the record. There is a long explanation, and

16 Mr. Stewart is going on about the need for the client to slow down the

17 process in order to put on his case. He's asking for time in order to

18 defend himself properly.

19 I don't want to read the whole expose because it would take up too

20 much time, but there are some eloquence being spoken by my colleague,

21 Mr. Stewart, where he's saying Mr. Krajisnik should have the time

22 necessary to put on his case. And this is what Judge Orie says. It's

23 quite telling. "That's one of the issues the Chamber, Mr. Stewart, has

24 already exchanged views on. The right of Mr. Krajisnik to an expeditious

25 trial will not be used against him."

1 Now, I thought about that. Think about it. And anybody who knows

2 Judge Orie, who was a Defence lawyer and then went on the Dutch bench and

3 now he's here, is very careful when he chooses his words. That they're

4 not going -- that "the right of Mr. Krajisnik to an expeditious trial will

5 not be used against him." And I must say, Your Honours, that at times we

6 feel that that right is being used against our clients because we're being

7 rushed through this case.

8 We need a little more flexibility shown when, for instance, we're

9 at a line of questioning and all of a sudden time is up, and we note it's

10 very visible that at least one -- one member of the Bench gets a little

11 agitated, and in fact my colleague was cut off by you, Mr. President,

12 mid-question. I don't think that this is a way to proceed. I think if --

13 if a point is being developed, then -- and it's relevant, even if it's

14 going to take an extra minute or two or five, so be it. I think where the

15 Trial Chamber can exercise more control is forcing the lawyers to be more

16 concrete in their questioning in the sense of -- on issues of relevance.

17 Is this really relevant? Tell me why so. As opposed to allowing perhaps

18 some extraneous information coming in. And I think all of us sometimes

19 stray away a little bit, but by and large I think some flexibility must be

20 shown. You cannot cut even -- Mr. Praljak, who sometimes may go on to a

21 particular point that he thinks is relevant, if he's in the middle of

22 requesting a question that now -- that is relevant, he should be allowed

23 to make his record. He's making his record for two reasons. First and

24 foremost, we need a record for our final brief. Because in this

25 particular procedure unlike, say, in the Anglo-Saxon or the adversarial

1 system, or maybe even in the -- in the continental system, at the

2 conclusion of the trial the parties - the parties - assist the Trial

3 Chamber by presenting what they believe are the findings of facts and the

4 conclusions of the law, and it's for you then to decide. So that's why

5 you need a record, and without that record it's very difficult.

6 And Mr. Scott indicated last week, you know, about the need to put

7 on his case. Well, when he has a lot of documents, as we do at times, and

8 we can't get to it a particular document, we can't elicit information from

9 a witness with respect to a particular document, or something that is in a

10 document, we don't have a record. And then at the conclusion you have the

11 document in, but then it becomes counsel's word as to what -- how the

12 document should be interpreted. And what we say, whether it's in opening,

13 whether it's in closing, whether it's during objections, is not evidence.

14 What's evidence is what comes from the words of the witness or the

15 evidence that's -- that's there, but if we're going to put an

16 interpretative spin on a particular document, the witness should be able

17 to elucidate on a particular passage from the document.

18 Now, let's go on to the next point, status of Prosecution list of

19 witnesses. I think I touched on that a little bit. There is a need to

20 revive the estimated -- the estimated time of direct examination, and I

21 think that's where Mr. Scott will probably need to tell us exactly how

22 much time he needs realistically, and then we can proceed to at least then

23 maybe have another session among ourselves to see how we can better manage

24 the time and where -- how much longer it will take.

25 From the Prosecution, the Defence would welcome expert reports as

1 quickly as possible. I know what the Rules say, but it's high time for

2 them -- for them to give us everything that they intend to introduce,

3 because after all, they've had years to prepare. They know their case.

4 Their experts should have prepared the reports by now, because one assumes

5 that when an indictment is filed and they're relying upon expert

6 testimony, that expert -- those experts would have been consulted in

7 advance prior to the indictment. This is where the adversarial and the

8 continental system diverge. I think in a -- had this been more of a

9 continental system, 95 -- the Prosecution's case would have been 98.9 per

10 cent finished by the time the indictment would have been confirmed,

11 whereas now, I dare say, maybe 50 per cent is done, and that's again

12 because of the Rules, not because anything that the Prosecution is doing.

13 So -- and there may be some need to revisit the time allocated to

14 the case. We'll leave that for another time.

15 Let me speak a little bit about the proposed guidelines. In

16 preparation for this meeting, we proposed some guidelines. Those

17 guidelines are nothing new in a sense that maybe they're written down, but

18 they're not written in stone, but they're guidelines based on practice,

19 based on practice that -- that -- that has evolved over the years in this

20 Tribunal, and there is a reason for that, and that is so that there's some

21 sort of a uniform procedure.

22 We would ask that these guidelines be adopted, maybe not formally,

23 but at least informally, that the Prosecution start when they're putting

24 on their case, we cross-examine, they can do their redirect, Judges'

25 questioning, the parties given a opportunity. I've always indicated that

1 if there is a point that needs to be further developed while it's being

2 raised by the parties, that hasn't been developed, that Judges should

3 intervene at that point in time, but allow the party to at least try to

4 develop the point. I think it makes more sense at that point to maybe

5 intervene a little bit, but again because it's a party-driven system it's

6 the point that the parties have raised.

7 I know that there is this notion that we're trying to get to the

8 truth and I'm going to talk a little bit about that, but I think we need

9 to be mindful that the Prosecution always bears the burden of not just

10 going forward but also the burden of persuasion. They have to persuade

11 you. At the end of the case, if the evidence -- if you're not persuaded

12 by their evidence, then you must acquit.

13 Now, I talked a little bit about consistencies and it was -- I was

14 reminded by a poem by Robert Frost. I just want to -- if I could put this

15 on the ELMO. Robert Frost wrote this wonderful poem called "A Road Less

16 Traveled." It's about a gentleman who gets -- he's young and obviously

17 he's walking down in a forest and he comes across a fork in the road and

18 he's trying to decide which fork to take.

19 One of the paths is well-worn, the other one isn't. I don't want

20 to read the whole poem and it wouldn't be fair to our translators, but I

21 just want to look at the last part, the last few lines because it's rather

22 telling it. It says: "I shall be telling this with a sigh, somewhere

23 ages and ages hence: Two roads diverged in a wood, and I took the one

24 less traveled by, and that has made all the difference." "I took the one

25 less traveled by and that has made all the difference."

1 And I'm reminded of that because when this comes to the procedure

2 I would say let's not take the one less travelled by. Why? Because I

3 think a mature legal system, and this one has to be mature because it's

4 been in existence for at least 10 years, should have a uniform procedure

5 whether you go to courtroom I, courtroom II, courtroom III. Whether you

6 have an continental bench or a adversarial bench or a mixed bench, the

7 procedure should be by and large the same. So I say, Your Honours, let's

8 not take the road less travelled there. But when it comes to slavishly

9 following the completion strategy, by all means, let us take the road less

10 travelled. Let us not be conventional. Let us not say, Well, this is

11 what they want us to do. I think that's where we can divert. That's

12 where we can take the road less travelled and try to carve out a process

13 here so that at the end both -- both parties will be better served, and

14 that's why I suggest in going through this -- this poem it helps us by

15 adopting to one -- to some extent our guidelines. We're not taking the

16 road less travelled. We're not being innovative. We're not going out of

17 the box when this comes to procedural justice, but when it comes to

18 slavishly applying some completion strategy that somebody in New York has

19 come up with, deadlines, there is where I think we need to diverge and

20 take the road less travelled, because that will make all the difference in

21 this case.

22 And I apologise for using a little poetry in this but I thought we

23 might lighten up the atmosphere after all the intensity that has been

24 going on in this case.

25 A few things about the burden of proof. I already said that this

1 is -- the burden is on the Prosecution at all times.

2 Now, the truth, as Mr. Murphy said, will ultimately emerge, but it

3 is the burden that the Prosecution carries. That's why they should be

4 entitled to put on their case and we should be entitled to meet that case,

5 but at the end of the day I don't think that the process here in court

6 should be where the Judges are trying to do the work of either party,

7 especially the work of the Prosecution. I'm not suggesting that that's

8 going on, but I think that the line of questioning should be restricted to

9 the points that are being raised by the -- by the parties because of the

10 nature of what was adopted here, and I think we need to realise that we --

11 this is not a truth commission. This is a court of law where we're here

12 to determine individual guilt, not some historical truth, not -- not to

13 find which country is to blame but whether the evidence that is being

14 presented by the Prosecution against these particular individuals that are

15 indicted here is there for a conviction. And if you're not convinced

16 beyond a reasonable doubt, you must acquit.

17 A few -- a few things about the proofing notes. With respect to

18 proofing notes, I just want to say one thing, that one of the Trial

19 Chambers recently is -- has been -- or motion has been filed or will be

20 filed asking that the proofing notes be -- the proofing sessions be tape

21 recorded. I don't think that that's a bad idea, but our primary concern

22 is that proofing sessions, especially with 92 ter witnesses, are turning

23 into whole new statements, and what the Prosecution is doing is, now that

24 they have some evidence that has come in and they want to bolster their

25 case, they're using this opportunity to take an entirely new statement.

1 And then we come to court and now we're faced with a new statement. It is

2 a disadvantage to the parties.

3 The ICC ruled that proofing is forbidden. A motion such as this

4 was filed in the Arusha case. The Trial Chamber denied it. It's now on

5 appeal. I'm not suggesting that proofing be abandoned completely. I

6 think it serves purposes, but it shouldn't be it an avenue to take an

7 entirely new statement from the witness and therefore I think that we

8 should perhaps have some guidelines. And as far as I'm concerned, the

9 proofing notes should only be to refresh the witness's testimony about

10 what he said. In other words, this is your statement, read it over.

11 These are the questions I will be asking you. This is the procedure.

12 When I show you a document, this is how it goes. That should be the

13 purpose of the proofing session. It shouldn't be to take a whole new -- a

14 whole new statement. That is not the basis of it.

15 Now, discussion -- okay. Discussion time allocated to the Defence

16 in front of the witnesses. I think this is a point that we want -- it's a

17 brief point but needs to be said. When you have witnesses, especially if

18 they're clever, and we've had some clever ones, and they hear that --

19 Defence counsel, you have 15 minutes, that telegraphs to the witness that

20 he can obfuscate. He can obstruct. He can play dumb, or she. He can ask

21 for the question to be asked again. He can ask -- give lengthy

22 explanations.

23 We would suggest that the witness not know how much time is

24 available to the Defence. I think it helps -- it at least alleviates that

25 problem. It doesn't telegraph to the witness how much time he needs to be

1 on the hot seat and therefore he or she may wish to use that opportunity

2 to -- to be evasive, and I think when you get clever witnesses, especially

3 some experts, that makes all the difference.

4 If I have someone like Mr. Tomljanovich on the stand and he knows

5 I'm going to be grilling him for the next three or four days, I can assure

6 you that he's going to be much more cooperative than if he knows I have

7 one hour and all he's got to do is dance around for an hour. So I make

8 that suggestion.

9 I don't -- I can go on. I believe that's -- that is what I have

10 thus far for the first part, but if the Court wishes I could go on very

11 quickly on the two other issues that are remaining. I leave it up to you,

12 Your Honours.

13 JUDGE ANTONETTI: [Interpretation] We said that you had an hour all

14 together, so I don't know. If it's only you, please go on, but if

15 Mr. Murphy wants to proceed or Ms. Alaburic, I don't know. You must have

16 decided among yourselves.

17 MR. KARNAVAS: Okay. Well, let me just touch upon and then I'll

18 give the floor to my colleagues.

19 With respect to the presentation of documentary evidence, I've

20 already said that the Prosecution should be given an opportunity to

21 introduce all of their documents that they feel that they need to

22 introduce to the witnesses.

23 One, I think, as I indicated, it helps them try to develop their

24 point. But two, and more importantly from the Defence aspect, from the

25 Defence aspect after the witness leaves then they try to introduce other

1 evidence.

2 Now, I don't know whether this is by intention or not. Probably

3 not, but a lot of the documents that they try to introduce later on could

4 have been introduced earlier. Perhaps they didn't have sufficient time.

5 But there may be issues in those documents, there maybe relevant passages

6 that, had they been presented to the witness, and had the Defence had the

7 opportunity to touch upon that, it might have been able -- we might have

8 been able to develop a line of facts or line of questioning that would be

9 of assistance to the Defence.

10 What he would find is, we get these documents afterwards and we

11 look at them and we are horrified. Now they want to bring in these

12 documents. Granted, they didn't have enough time, so I sympathise with

13 them, but then what am I to do?

14 Now, one of the things Your Honours have said in the past is,

15 don't worry. You can put it when you put in your case. Now, let me

16 address that issue.

17 I'm trying to be as respectful as I possibly can. I know

18 sometimes it doesn't appear that way, but I do. I mean, to me there's no

19 greater profession than the legal profession, you know. It's an honour

20 and a privilege to be served -- to be a lawyer and to be in a courtroom

21 especially. I don't have the temperament to be a Judge and I probably

22 will never have the opportunity to be one, but I think by saying that you

23 can put it on to your case, you're switching the burden of proof, because

24 you're essentially saying, yes, you will need to put on a case, even

25 though we have what we call the 98 bis motion for judgement of acquittal,

1 that is at the conclusion of the Prosecution's case in chief, if they

2 haven't presented sufficient evidence with respect to certain counts or

3 all counts, then from the bench you can issue a judgement of acquittal.

4 I'm simplifying it, of course, but the essence is there. Which means that

5 the Defence does not have to put on a single witness. In fact, there have

6 been some cases where there was no -- one in particular, no witness was

7 put forward by the Defence and there was an acquittal. Why? Because the

8 Prosecution did not meet its burden of proof during its case in chief.

9 So I don't think the -- when you say you can put it on -- you can

10 do it in your case, that doesn't help us. It doesn't help us also because

11 that witness -- maybe we will need to bring the witness back. The witness

12 may not be available. Maybe there is no mechanism to go into that

13 particular document.

14 We think that the best opportunity is to address the document or

15 address that issue when the witness is right there on the stand, and not

16 to say: Do it when you put on your case. Assuming, assuming that there

17 is a case to put on, we also don't know how much time we will be given.

18 What if you say to me, okay, now you have four weeks to put on your case,

19 Mr. Karnavas, but you told me I had all the world -- all the time in the

20 world. Yes, but, you know, this completion strategy or the case is taking

21 longer, but you have four weeks. Do it. How? On what basis?

22 So I think we're left in the dark. That's an issue that needs to

23 be addressed at some point. Not particularly -- not necessarily today,

24 but we need to be thinking about that, how much time, but I dare say that

25 you cannot take this approach in this party-driven system to say, you can

1 do it in your case. It's contrary to the Statute. Only the Security

2 Council can amend the Statute. I know Judge Pocar has indicated that this

3 is a -- President Pocar has indicated that this is now a Judge-controlled

4 system, but the Statute was adopted by the Security Council and no

5 judge-made law or judge-made rule that comes out of the Plenary Session

6 can trump the Statute that was adopted by the Security Council, and if I'm

7 wrong, I could be corrected by the Prosecution, but I don't think I'm

8 wrong on that one. On that one, I think I'm absolutely right.

9 JUDGE TRECHSEL: Mr. Karnavas, could you be a bit more precise,

10 quote the articles of the Statute? I mean, you just say, "it's the

11 Statute." Could you tell us more precisely which articles in the Statute

12 you are referring to? That would be helpful.

13 MR. KARNAVAS: Referring to in what sense? Where?

14 JUDGE TRECHSEL: You have just said, the Statute says this is what

15 it must be but you have not specified it.

16 MR. KARNAVAS: All right. Okay. I don't have the Statute in

17 front of me, but let me just go back on that issue because obviously I'm

18 not making myself clear.

19 The Statute, from my understanding of it, never says that a party

20 has to put on a case, a defence. It says that the burden is on the

21 Prosecution. The jurisprudence is on that. There is nothing in the

22 Statute, nothing in the system that says that a defence must -- he has

23 got the right to remain silent, he's got the right not to put on any

24 evidence. He's got the right to put on evidence. And I'm told it's

25 21(3), the accused shall be presumed innocent.

1 Okay. Now, we start with that. The moment you tell me you can

2 put it on in your case he's no longer presumed innocent. Now, I'm not

3 suggests that's what in Your Honours' mind, but I think that -- that it is

4 incorrect and it's contrary to the jurisprudence, it's contrary to the

5 system here to suggest that you can do it in your case, and that's why I

6 think we need to re-adjust the time and allow the Defence to go into

7 documents and to challenge witnesses when it's necessary and what it's

8 relevant. I think that's very, very important, and so I wanted to touch

9 upon that, and Mr. Murphy perhaps may wish to address that, although I

10 think he's addressed it in the past as well, but there seems to be this

11 disconnect, I think, and this is one of the things where perhaps the

12 marriages of the two systems is an unhappy one, you know. And -- so -- I

13 don't know how we can go beyond that, but I think it is false to assume

14 that the Defence can deal with something on their case. It's contrary to

15 the Statute.

16 I've already talked about postponing the role of the accused, you

17 know, that issue, because I think it's a substantive issue, but in my

18 opinion, and I wrote the motion supporting the rights of the accused to

19 participate, I do think they play a vital role. I do think perhaps we

20 need some modalities as to when, how, to what extent, and that's something

21 that can be discuss in front of them. But we do have guidelines, and the

22 guidelines specifically provide for especially to what extent when someone

23 as an accused can stand up and take the floor.

24 Lastly, agreed facts. Just very briefly I want to touch upon

25 this. With respect to the agreed facts, frankly we've looked at those

1 agreed facts. We've spent hours and hours on that. To the extent that

2 we're able to help the Prosecution, we have. But when you see some of

3 their agreed facts, I have to be crude, in a way, and say that they're

4 ridiculous. They're absurd. What they're asking, what they're asking for

5 us to agree, we might as well not even be here. We might as well go

6 straight to sentencing, because they want us to agree to facts, one, which

7 are contrary to what we believe is -- is true, but more importantly,

8 basically putting the noose around our client's neck and then say, okay,

9 now pull on it.

10 Now, how can we go beyond that? I think that I'm willing to sit

11 down, and I'm sure my colleagues are willing to sit down with the

12 Prosecution and maybe with the senior legal officer to go fact by fact by

13 fact by fact and to see what can be done. We could do that also with

14 adjudicated facts. We need somebody in the room and we can go fact by

15 fact. We did this in the Blagojevic case. We were able to agree on some

16 and disagree on others, and we left it at that, but at the end of the day

17 the Prosecution, at this point, and here's where I'm going to be a little

18 harsh on them because I think I've been far too kind to them this morning

19 so I think I need to give them a little tough love at this point, I

20 recognise that they have, I recognise that they have challenges. They

21 have time challenges, but they cannot -- I cannot solve those challenges

22 for them. I cannot say, okay, because you cannot -- you don't have

23 sufficient time to put on your case, guess what? I'll agree to a bunch of

24 facts. I'll agree to a bunch adjudicated facts. You don't have to prove

25 those facts. We'll just agree and that way you can meet your deadline.

1 I'm sorry. I think the best way to approach is to come to an

2 understanding, and that understanding is, no matter what we do this trial

3 cannot move any faster than it's moving, and it's moving way too fast, in

4 my opinion. In my humble opinion, I must say that I am concerned about my

5 client's right to a fair trial. I'm not so sure -- I think there have

6 been times when I've walked out of this courtroom thinking this was

7 unfair. This was a day when my client was not -- did not get a fair

8 opportunity. I was not able to do my job. I'm prepared, but I wasn't

9 able, and I'm not able because of the time constraints that the Trial

10 Chamber put -- put upon us.

11 I'm sure the Prosecution feels the same way, and the only way I

12 think that we can best move on is for Your Honours to just come to an

13 understanding that this case is going to take longer than what you

14 thought it would take. You just have to come to that understanding. And

15 I invite all of you to just pause and think, would you want to be sitting

16 in the box, as it were, where your lawyer has worked hard and is trying to

17 put a question to the witness and the Judge says -- the panel of Judges

18 says, "I'm sorry, you're out of time. Sit down." And now you don't have

19 that opportunity.

20 Now you go back to the client and the client is saying, Well, what

21 do we do now? Well, maybe we'll have an opportunity later on.

22 I dare say none of you, Your Honours, with all due respect, would

23 want to be sitting in a trial of this magnitude in the manner in which the

24 trial has been held thus far. It is not your fault to the extent that you

25 have time constraints, but I think you've taken an oath just as we have

1 taken an oath, just as the Prosecutor has taken an oath, and I think based

2 on that oath that gives you the strength that you need to buck the system,

3 to take the road less travelled, to do what's right, to give us the

4 additional time.

5 So that's what I needed to say at this point. I know we have some

6 remaining time, at least 15 minutes. I yield my time to Mr. Murphy and

7 whoever else wishes to speak. I appreciate the time, and I appreciate

8 your understanding for allowing us to have this meeting.

9 JUDGE ANTONETTI: [Interpretation] Very well. Thank you,

10 Mr. Karnavas.

11 I am going to give the floor to Mr. Murphy.

12 MR. MURPHY: Thank you very much, Mr. President. Good morning.

13 Good morning, Your Honours, everyone in the courtroom.

14 Mr. Karnavas has been very comprehensive, and in deference to my

15 colleagues, who might also have some things to say, I can be very brief.

16 Candidly, the things that I really wanted to say in this meeting I

17 have said on previous occasions, and as Your Honours will know having seen

18 the proposed agenda that the Defence submitted, it had been my intention

19 to go back to those matters today. I'm concerned really about one matter

20 in particular. I understand that the whole issue of time is now before

21 the Appeals Chamber, and for that reason Your Honours felt it might be

22 better not to address it today. That does, of course, mean that further

23 time goes by before we resolve that question.

24 I don't know whether the Prosecution intends to file further

25 pleadings in the Appeals Chamber. We have a slightly ambiguous situation,

1 of course. On the one hand, certification -- further certification may

2 not be needed. We understand that, if it is needed, it's been granted,

3 but whether that means the Prosecution needs to file another appellate

4 brief, I'm not sure. In that case, we would respond briefly. But in any

5 case, we may be looking at a month or two months' delay before some very

6 fundamental matters are decided regarding time, and that means that we may

7 be approaching the summer recess before the Trial Chamber has finally an

8 opportunity to decide how much time will be allocated to the Prosecution.

9 I think that does pose some serious problems. I'm not sure what the

10 answer is, but possibly we could at some point we could discuss on a

11 hypothetical basis what the alternatives might be, according to whether

12 the Appeals Chamber allows the appeal or dismisses the appeal.

13 The other matter that I had wanted to try to pin down,

14 Mr. Karnavas has in many case dealt with this today, so -- but in my mind

15 there is a general question still outstanding as to whether Your Honours

16 feel that this is indeed a fundamentally adversarial or fundamentally

17 inquisitorial trial, and I've indicated in of the past that I don't have

18 any objection in principle to either of those procedures, but I do feel

19 that we cannot change the rules in mid trial, the mode of trial that is.

20 To use Mr. Scott's analogy, we can't be halfway through the

21 football match and have the referee come and say, "By the way, the rules

22 have changed. The goalkeeper is no longer able to handle the ball." Or

23 even worse, perhaps, the referee and the assistant referees have decided

24 that they will participate in a match and score a goal for either side, if

25 the opportunity arises. And those are matters which, if not discussed

1 today, we may have to resolve by filing in due course a motion of some

2 kind. But I recognise it's not on the agenda today, Your Honours, so I

3 won't take any further time. I support what Mr. Karnavas has said

4 entirely, and I -- if there's one thing that I would add, and this really

5 doesn't affect Mr. Stojic because he has never indicated any intention of

6 conducting any part of the case himself, but I do, with respect, feel that

7 it's inappropriate to discuss the participation of the accused in their

8 absence. I know this probably affects General Praljak more than anyone

9 else, but I do suggest, with respect, that that be postponed.

10 Your Honour, I won't take my colleagues' time any more but if

11 Your Honours should have any questions, of course I'd be very pleased to

12 answer them.

13 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Murphy.

14 Mr. Stewart.

15 MR. STEWART: Good morning. The Petkovic team has agreed with our

16 colleagues and would ask Your Honours that we have our 10 minutes. I'm

17 going take very short time on one issue and then Ms. Alaburic is going to

18 deal with some -- some matters.

19 Your Honour, I'm going to speak very briefly to the guidelines

20 that Your Honours have, and in attempt to give Your Honours a degree of

21 reassurance as to what these guidelines are for, we rather hope and

22 perhaps even slightly expect that there'll be a measure of support from

23 the Prosecution for these guidelines because there is a common interest.

24 But simply to run through them very quickly, not to read them or repeat

25 them, but paragraph 1 of the guidelines in a nutshell is pretty

1 straightforward. We suggest to Your Honours that to concentrate Judges'

2 questions largely in a distinct phase or stage which is number 4 would be

3 a good thing for Your Honours and for everybody. I say no more about

4 that. A distinct phase would be better.

5 Paragraph 2 is a positive invitation and even an encouragement to

6 Your Honours to exercise firm control over the matters which are listed

7 there. They're not absolutely comprehensive. There may be other items,

8 but we do urge Your Honours, and we are willing to be controlled and

9 directed in those matters just in the same way that we invite Your Honours

10 to control and direct the Prosecution.

11 When we come to 3 and 4, which are linked, what we're proposing is

12 that Your Honours of course have your power under 85(B) to ask questions

13 at any time. We do suggest, with respect, that it's more apt to regard

14 that as a power and a responsibility, those two matters always going

15 together, rather than a right. To talk of a right. We don't claim rights

16 as Defence counsel. We -- we accept powers and responsibilities. We've

17 got the right to exercise our professional duties in that sense and so

18 have Your Honours, but Your Honours' power under Rule 85(B), we invite

19 Your Honours to use it judiciously. We say -- you suggest the guidelines

20 would normally confine questions, and that's not intended to be exclusive,

21 but it's intended -- they are guidelines, and what we're inviting is for

22 Your Honours to issue these guidelines in a way that's going to be

23 acceptable all round.

24 And 4, which is linked to it is -- is really just a matter of

25 really allowing counsel a clear run and to avoid the sort of disruption

1 which, even for the most experienced counsel, and there are very

2 experienced counsel in this court, does throw the cross-examination off

3 stride because perhaps a couple of -- my last two points are these: It is

4 a good rule of thumb, we suggest, a good working rule for Judges to --

5 during cross-examination to see whether objections come from the

6 experienced counsel on the other side to questions, because, if they

7 don't, there is a working presumption that the cross-examination should

8 proceed. And also that, if Your Honours make judicial suggestions, and we

9 don't say that you shouldn't, if you make judicial suggestions as to

10 perhaps the way in which a cross-examination might go in a different

11 direction, but nevertheless it is the parties who are best placed to

12 evaluate the usefulness at that point. So it's really that -- that clear

13 run during those first stages of cross-examination that we're inviting,

14 but not, overall, excluding at all Your Honours' opportunity of asking

15 questions, but inviting them to be asked at the right time, in the right

16 way, and we could suggest, Your Honours, if Your Honours were to issue

17 guidelines such as these, everybody would actually be happier and it would

18 be more satisfactory in the end.

19 Your Honour, I'm not going to attempt a sporting analogy or

20 metaphor. I think to ask a French, a Hungarian, a Swiss Judge to get into

21 the intricacies of leg before wicket in the context cricket might be

22 asking just a little bit too much, so I'm going to pause right there and

23 hand over to my colleague, Ms. Alaburic.

24 MS. ALABURIC: [Interpretation] Your Honours, good morning to

25 everyone, to my learned friends and to you, Your Honours. I have about

1 five minutes left and I will try to use that time to say a few words about

2 three topics. The first one is the right of the accused to an expeditious

3 trial. The second one is written evidence, and the third one is agreed

4 facts.

5 Here in this court we use very often the term right to an

6 expeditious trial, and it is defined as the right of an accused. I'm

7 trying to say now something that I've been trying to put across for a long

8 time in written submissions of our Defence team, namely that there is no

9 human right as right of an accused to an expeditious trial. There is a

10 right to fair trial and a right to a trial in a reasonable time. In

11 English the term is a right to a trial without undue delay.

12 This right to a trial without undue delay cannot be considered

13 identical to the right to an expeditious trial. In certain cases a trial

14 can take a long time because there are good reasons that require that. So

15 to refer to English terms, I would use the term "a due delay." Based on

16 all conventions, including those Geneva Conventions, undue delay is

17 banned. There are -- there is some jurisprudence in England stating that

18 the rights of the accused were violated because they were not tried within

19 a reasonable time. However, it was established that sometimes a trial can

20 last six to seven years without there being a violation of a right to an

21 expeditious trial.

22 Given in -- given the complexity of the indictment and many other

23 circumstances, we will be establishing whether in a certain case there was

24 a trial without an undue delay or whether perhaps the right of an accused

25 to such a trial was violated. Thus by invoking the right of an accused to

1 an expeditious trial, we cannot deny their fundamental right to a fair

2 trial and a trial without an undue delay.

3 If the accused wish to have more time to have some evidence

4 adduced, both the evidence of the Prosecution and evidence of the Defence,

5 if the accused themselves wish to use the time in detention in order to

6 ensure that they have a trial that they consider to be a fair trial, then

7 under no circumstances can it be considered that their human rights were

8 violated or that their right to a fair trial or a trial without undue

9 delay was violated.

10 The second topic I wish to speak about concerns written evidence.

11 I see that my time is running out, so I will be brief.

12 I believe that the most important aspect is to ensure that no

13 evidence is -- no documents are admitted into evidence that the Defence

14 did not have a chance to challenge or to verify here in this courtroom, to

15 test them in the courtroom. We are fully aware of the fact that not all

16 of the evidence can be introduced through witnesses, but I believe that it

17 is in the interest of all of us not to allow for documents to be admitted

18 into evidence which we did not have occasion to debate in this courtroom.

19 Should this occur, we will find ourselves in a situation where we have in

20 the evidence documents due to which perhaps we will not be able to render

21 judgement based on Rule 98 bis. In that case, I believe this would

22 constitute a tremendous violation of the rights of the accused to a fair

23 trial, including the violation of their right to a presumption of

24 innocence.

25 At this point in time I have to say that I do not have a specific

1 proposal as to how this should be done, but if we agree that it is in the

2 interests of all of us to ensure that this doesn't happen, then I'm sure

3 that we will find a way to guarantee this.

4 The third topic is the agreed facts. It is true that the

5 Prosecution offered to us a set of some 200 facts that they wanted us to

6 agree upon, and more or less we didn't manage to do that in relation to

7 any of them. The Defence cannot be expected to do something that would

8 exclusively benefit the Prosecution. We wonder -- or it is possible that

9 there could be some facts that could benefit the Defence as well. Yes,

10 there are such facts, and I can give you a very fresh example. Namely, in

11 relation to the Vares case, we agreed on the proposed fact number 92 --

12 or, rather, had we done that, then during the last week I would not have

13 attempted to ask the witness, Mufid Likic, whether in 1993 he was a member

14 of the army of Bosnia and Herzegovina, because in proposed fact number 92

15 it says that six persons who were arrested on the 18th of October, 1993,

16 they were members of the army of Bosnia-Herzegovina. Likic was one of the

17 six.

18 So why is it that the Defence of General Petkovic did not opt to

19 agree on these facts? Vares is the freshest example; that's why I quoted

20 it. Well, my colleague Mr. Stewart and I discussed it at length, and we

21 agreed that it was very risky for us to agree on certain facts, given the

22 circumstances, and the circumstances are as follows: As a rule, a month

23 before a stage in trial begins the Prosecution offers us some facts to

24 agree upon. At that point in time, we still do not have a definite list

25 of witnesses who would be testifying about that portion of the

1 indictment. In addition to that, we also do not have a list of exhibits

2 that the Prosecutor wishes to introduce into evidence, be it through the

3 witnesses or in another way, and related to that part of the indictment.

4 So when we receive a proposal for agreed facts, we still cannot see the

5 concept of the Prosecution in relation to that portion of the indictment.

6 Any discussion with the Prosecution at that point in time about the

7 proposed facts would constitute a beginning of an endless discussion.

8 That would be moot.

9 If we analyse the proposed facts for the Vares case, then we will

10 see that about half of those facts relate to Mr. Ivica Rajic from the date

11 of his birth, various appointments, dismissals, change of name, and so

12 on. Recently we found out that we still -- it is still not known whether

13 Mr. Rajic would be testifying in this case or not. Thus I believe that it

14 is in our common interest, that is to say in the interest of both the

15 Prosecution and the Defence, to change the mode of work when this comes to

16 agreed facts so that before we are given proposed agreed facts we be given

17 a definite and firm list of Prosecution witnesses and exhibits that they

18 intend to tender through those witnesses so that we can first see the

19 concept of the Prosecution's case in relation to that part of the

20 indictment and so that we can decide which of the proposed agreed facts

21 could be interest -- to be in the interest of the Defence so that we can

22 begin working on that not only based on the proposal of the Prosecution

23 but also based on the proposal of the Defence. I think that in that case,

24 we would significantly abbreviate the time needed on certain facts and it

25 would be in everybody's interest.

1 Your Honours, I see I ran out of time. Thank you everyone for you

2 attention.

3 JUDGE ANTONETTI: [Interpretation] Fine.

4 And for Mr. Praljak, on behalf of Mr. Praljak.

5 MS. PINTER: [Interpretation] No, not especially for Mr. Praljak.

6 I agree with my colleagues' proposal that this should be discussed when he

7 is present. As you have intimated that there will be another hearing, and

8 for my part I consider that the decision has already taken a ruling on

9 that.

10 MS. TOMASEGOVIC TOMIC: [Interpretation] Your Honour, I agree with

11 everything that my colleagues have said. I join in what they said so I

12 have nothing more to add myself.

13 MR. IBRISIMOVIC: [Interpretation] Your Honour, no more comments,

14 no fresh comments from me thank you.

15 JUDGE ANTONETTI: [Interpretation] Very well.

16 I believe it would be a good idea to have a short break now and

17 then we'll give the floor to the Prosecution. We will a 15-minute break.

18 --- Recess taken at 10.07 a.m.

19 --- On resuming at 10.23 a.m.

20 JUDGE ANTONETTI: [Interpretation] Very well. The hearing is

21 resumed. The Prosecution has one hour. It's 10.25. You have until 25

22 past 11.00.

23 MR. SCOTT: Good morning, Your Honours, Mr. President,

24 Judge Trechsel, and Judge Prandler, thank you, counsel. Good morning.

25 I hope not to use anything approaching an hour, but we'll see.

1 In terms of the first presentation agenda item, Your Honours,

2 examination of witnesses, I think there's not that much difference, I

3 think, between the parties' positions on this, and I think these are

4 issues that have been addressed before both last week and on Monday, and

5 in that particular respect the Prosecution doesn't really have a lot to

6 add to what both the Defence has said and what the Prosecution has said

7 before.

8 We -- we would note, as Mr. Mundis has noted with the Chamber

9 before some time ago when this issue has come up previously, there really

10 is a very acceptable, and certainly to the Prosecution, agreeable model

11 from the Hadzihasanovic case, which of course Your Honour,

12 Judge Antonetti, is very familiar with. In that case, as I understand it,

13 and as explained to me by, of course, Mr. Mundis, the basic procedure was

14 the calling party would conduct its direct examination. Of course there

15 would be the cross-examinations by opposing parties. At that point the

16 Judges would ask the substantial part of their questions, then the

17 opposing parties, if you will, would have an opportunity to follow the

18 Judges' questions, and the party calling the witness, essentially, if you

19 will, will have the last word, the last opportunity to clarify both

20 what -- the questions the Judges might have put and questions --

21 additional questions by the opposing side before finishing the witness. I

22 think the only divergence, in our submission, on that, from the Defence,

23 would be that we suggest that again the calling party would be the one to

24 go absolutely last and have the final word, if you will. That was the

25 position in Hadzihasanovic.

1 Of course, that would work to the benefit of the Defence and their

2 case. If the Defence calls a witness and they are the examination --

3 examining party in chief, excuse me, then they would have the final word.

4 For a Prosecution witness, the Prosecution would have the final word.

5 With that single divergence, it appears to me that the parties are in

6 substantial agreement on what they propose to the Chamber.

7 Your Honour, beyond that let me just respond in terms of item 1 to

8 some of the points made primarily by Mr. Karnavas since, of course, he

9 spent most of the Defence time addressing these matters.

10 As I said, most of our points were made on Monday, and frankly I'm

11 not going to belabour them again, and I'm sure the Chamber probably

12 doesn't want to hear those same points repeated.

13 The Prosecution witness list, Your Honour, have been provided for

14 a long time now to the Defence some weeks if not -- I think in most

15 instances a full month prior to the appearance of the witness.

16 Mr. Karnavas has indicated that the Prosecution has provided its witness

17 scheduling information piecemeal and I don't think that's entirely fair.

18 I think four to six weeks' advanced notice is a very substantial time

19 period and the one that we have generally abided by since the beginning of

20 the trial. It seems to the Prosecution that's eminently fair and

21 acceptable, and of course we will hope to receive the same treatment in

22 the Defence case, to receive a notice of Defence witnesses four to six

23 weeks in advance of their appearance. And again, Your Honours, as I've

24 said before and you'll probably hear me say again, we would be opposed to

25 any sort of double standard or different standard for the conduct of the

1 Defence case as different to what has happened during the Prosecution

2 case. So we look forward to getting four to six weeks' of notice from the

3 Defence in the Defence cases, should they choose to present a case. We

4 think that's a fair position, and there's really no need for any

5 significant change in that regard.

6 Estimates in response to Prosecution calendars in terms of

7 cross-examination. I just note in passing, Your Honour, that was

8 discussed -- it was discussed many months ago that when the Prosecution

9 submits its calendars for a week -- excuse me, a month, four weeks, six

10 weeks in advance. There's every opportunity, and the Defence have been

11 invited on a number of occasions to then, at that time, give their general

12 estimates, just as the Prosection has to give its time on direct, we think

13 it will be three hours, we think it will be two hours, that the Defence

14 could equally look ahead and give the Chamber its estimates. Now I'm not

15 going to belabour that any further except that that's been discussed a

16 number of times. The Chamber has invited the Defence to do that a number

17 of times, going back to the very beginning, early days of the trial. And

18 that's never been done but it might have some value for the Chamber's

19 consideration.

20 I would like to note in passing, Your Honour, just as a general

21 matter, the issue of the 65 ter time estimates because, frankly, these are

22 probably frustrating for the Defence and sometimes frustrating for the

23 Prosecution as well. These are nothing more, nothing more than best

24 questions as to what a witness will take. They are given -- the 65 ter

25 list in this case was filed in February, January or February of 2006. I

1 think January 19th, now that I think about it, January 19th of 2006, more

2 than a year ago. They are a best guess of looking at a witness that may

3 come months from now, even years later, even a year. A witness now --

4 coming now some 15 months later after that estimate was made, things have

5 happened during trial. Certain issues have not been disputed. Certain

6 issues have not been disputed. You look at the evidence further and I

7 think all of us trial lawyers can agree that the imminent preparation of a

8 witness or witness who is about to appear focuses the mind sharply, and

9 you see points and fine details that, to be perfectly honest, you may not

10 have seen or fully appreciated before. That may require that the 65 ter

11 estimate be amended or given some flexibility.

12 And I must say that I'm -- I'm bemused when they are treated as if

13 somehow they've been written if stone, as if they're somehow sacred, that

14 these sometime estimates almost come down from the Pope or something and

15 say, this is the time estimate that was given in January 2006. That's the

16 only time estimate that applies. It's a bit mysterious, and I don't think

17 entirely fair to anybody in the courtroom, Prosecution or Defence. There

18 should be some flexibility, of course. Of course the parties give some

19 good faith guesstimate, and that's all it is, a guesstimate of what they

20 think a particular witness will need months or years in a -- in advance

21 that witness actually appearing in court.

22 Now, in many instances, again, this cuts both ways. We've taken a

23 number of witnesses shorter than our original estimates but there will

24 indeed be some witnesses that on further reflection are going to require

25 more time than originally estimated, and we would ask in general that the

1 Chamber extend some greater flexibility on that. If we think a particular

2 witness is coming, it's an important witness, we underestimated the time,

3 and we tell the Chamber, Look, we know we said two hours but we really

4 need three, we would appreciate some greater flexibility from the Chamber

5 on that.

6 As to proofing notes, Your Honour, I am -- I don't want to be --

7 to be perfectly honest drawn into some more fundamental discussion of the

8 propriety of proofing and how it should be done or what notes or records

9 should be made of that. I think that's an entirely broad and fundamental

10 point that would require extensive briefing probably by both parties.

11 As Mr. Karnavas said, and said well, in quoting Robert Frost,

12 procedural rules in particular should not in general follow the road less

13 travelled. Procedural rules need to be predictable for everyone and there

14 are certain rules and practices that this Tribunal has developed over the

15 past, what is it now 12, 13 years, and we need to follow those generally

16 speaking. Of course, rules can evolve of overtime practices can be

17 improved upon, of course. But they can't as Mr. Karnavas said they can't

18 vary from Chamber to Chamber, courtroom to courtroom, Presiding Judge to

19 Presiding Judge, case to case, with all respect to everyone. When a party

20 prepares its case both in its strategic, overall sense, and on a

21 day-to-day sense, you have to be able to walk into the courtroom with some

22 predictability. These are the rules that apply -- as -- to again continue

23 the sports analogy, when I go on the field today, when I go on the pitch,

24 these are the rules that apply. I can throw the ball this way or I can do

25 this. The goaltender can be here or he can't be there. But you can't

1 change the rules every day or even more -- less than every day, every week

2 or every month, and say, Well, today we've changed the rules differently.

3 Today, just today, parties were telling you a forward pass is agreeable

4 and we're going to play by different rules today. No one can play a game

5 that way. I'm not suggesting this is a game, but it's the analogy that

6 we've all been making in terms of there has to be predictability in the

7 process.

8 As to the proofing notes I would just come back, putting the

9 broader issue to the side, and, I guess, let me just say, the reason I --

10 the reason I led into that was to say proofing has been an established

11 practice at the Tribunal for the last 12, 13 years, and I think, again, it

12 is too late to revisit that and again change the entire practice of the

13 institution based upon some -- the reactions or feelings of particular

14 Judges to that. If the Plenary -- if someone in the Plenary wants to take

15 that on and all the Judges together think that's an appropriate thing to

16 do, then maybe that's the case, but I think we should not get pulled into

17 that today.

18 I would say this, that what Mr. Karnavas describes is appropriate

19 during proofing is exactly what happens, in fact. A witness comes in, for

20 better for worse, and again, if I was designing the system to start all

21 over again, I would probably do some things differently myself. But to

22 me, these witnesses, again for better or worse, I make no justification

23 for it have not been seen for a number of years. They were interviewed in

24 1998. They were interviewed in 2001. They come in. We meet with them.

25 We talk to them. We take them through their statements. Now, you said

1 this in your statement. Now, is that right? Well, yes, it is, but now I

2 remember something a little bit different. I think -- I think the jacket

3 was maybe a darker blue or I think this may have happened the next day

4 instead of that day. I think I got the date wrong. When that happens, we

5 try to put that in the proofing note and provide that to counsel, and I

6 think the Prosecution, frankly, I'll take the opportunity, I think we do a

7 very good job of that, by and large. Every once in a while, again, we're

8 all fallible. We're all human beings, and errors are made. But I think,

9 by and large, the Prosecution has done a commendable job of advising the

10 Defence of thee matters, and the Chamber, as early as we reasonably can

11 under the circumstances.

12 I do not think that in the vast majority of instances they

13 represent new statements or something fundamentally new. Usually it's

14 additional -- it's an additional detail, it's an additional amplification

15 of something that's been said. There are -- there have been, I would say,

16 maybe a handful of instances when indeed a witness may say something is

17 more new, more significant, and I think when that's happened we tried to

18 work around that as best as we could. Cross-examination has been

19 delayed. Cross-examination has been given more latitude, what have you.

20 But I don't think -- I can't -- while I agree with many things

21 Mr. Karnavas said today, I can't agree that many of these proofing notes

22 have been fundamentally new or different statements. I don't think that's

23 the case.

24 I think on the question of presentation of witnesses, I think

25 that's -- the Prosecution points, I would go back -- just to close on that

1 point, I would just go back to the beginning and say, I think there's

2 fundamental agreement among the parties with the difference that

3 Prosecution would propose that the calling party be the last to clarify

4 points with the witness. So therefore just to sum up, the calling party

5 conducts direct examination. The opposing parties conduct

6 cross-examination. The Judges conduct Judges' questions. The opposing

7 parties respond to Judges' question. The calling party has essentially

8 the last opportunity deal with the witness.

9 In terms of item number two, presentation of documentary evidence,

10 again, Your Honour, not to belabour things that have been said before too

11 much, I've said -- I addressed it briefly the other -- on Monday. The

12 Chamber knows that we've made a -- written submissions on this in past and

13 continue to. Again, I go back to -- again, the practice and the rules and

14 as -- to use Mr. Karnavas's reference to Robert Frost again, the rules

15 should not diverge into a wood or onto the road less travelled when there

16 is an established institutional practice. This institution, again for

17 better or for worse, recognised some years ago that the nature of these

18 cases, the nature of the evidence, the time limitations, the resource

19 limitations of this institution, there is simply no way that all

20 documentary evidence can be tendered from the witness stand. You cannot

21 tender every single piece of paper to the witness. It's never been done.

22 I don't think in any case. It's never been done, and we shouldn't adopt a

23 different procedure or policy, again, in just this case, a one-off

24 situation where there's different rules in this Chamber and this trial

25 than there are in all the other Chambers and all the other cases to date.

1 The reality is that the Tribunal has recognised that there have to be

2 other means for putting large volumes of material into evidence. That is

3 just the reality.

4 Now, have we done that perfectly? Probably not, but again as

5 counsel said today, I don't really have any specific ideas of how to do

6 it differently, but I would propose that the way forward is to follow

7 established Tribunal practice and that is that, in fact, documents are

8 put in by motion. Documents are put in from counsel table. That's been

9 done. The institution has recognised that as sheer necessity in the

10 practicalities of conducting these cases, for a number of reasons which I

11 won't belabour because we've said these things in our various oral and

12 written submissions previously.

13 I'll just -- to finish on that I'll just say, as I mentioned on

14 Monday, we intend to continue this practice. We see no alternative, and

15 we anticipate making additional document submissions over the next few

16 weeks, including a large number of HVO documents that we received from

17 Croatia and from the state archives. So I simply preview that to be as

18 transparent as possible. No one need be surprised when that happens a few

19 weeks from now, and we will go forward, all of us, I'm sure, when that

20 happens.

21 As to role of the accused in participating in trial, I'm happy to

22 postpone that until the parties are in the -- the accused are in the

23 courtroom. So I won't address it now.

24 Let me go back. I did skip over one very small point. We had

25 indicated in our objection it really falls under the examination of

1 witnesses, the objection process. It is again a very small point, and

2 that is only this that in many instances objections if there are to be --

3 if there are to be objections and -- and they are appropriate. I think in

4 the common -- you know, whatever you want to call it, a mixed, hybrid

5 system it is appropriate for counsel on both sides to make objections at

6 time. I think not overmuch but there are times when it is appropriate.

7 But objections should be handled in a typically -- and I would have to

8 say -- sorry. If the Judges will allow me, I think most of the common law

9 practitioners in the courtroom would say the best Judges, the best common

10 law Judges, handle objections very quickly and very efficiently.

11 Objection, hearsay; sustained. Objection, hearsay; overruled. But we

12 don't need to go into a 30-minute argument back and forth on terms of

13 we -- you know, everyone has to have 15 minutes of argument of what the

14 objection is and how it's relevant or not relevant and all that. So it's

15 a small point, it's a small point, but in terms of courtroom efficiencies,

16 if the objection process was handled a bit more efficiently it would, over

17 time, I think over time would save significant amounts of time.

18 The final issue's, again, a small one but a very important --

19 well, small one for this purpose. Not really a small point, but for

20 today's purposes, agreed facts. Your Honour, again the Prosecution

21 throughout the pre-trial process engaged in substantial efforts to narrow

22 the disputed facts for trial knowing that inevitably, no matter what

23 number of hours might be, whether there were 450 hours or 400 hours or 293

24 hours, there would be -- ultimately be limitations on the amount of time

25 available to all sides, all sides, to present their case. Therefore,

1 wouldn't it be most efficient and most beneficial for everyone if the

2 really disputed, the bona fide disputed facts could be identified and the

3 parties and the Court and Your Honours could focus your attention and your

4 efforts and energies on the really important disputed issues.

5 We tried to do that. As counsel correctly indicate, really,

6 frankly, didn't go very far. And, you know, there's really not a whole

7 lot more we can do about it. As I always mention when I mention this, and

8 I will -- I will do so again today and I will inevitably do so again in

9 the future, that is the reason, I think, the motivation behind Rule 65 ter

10 (F) which anticipates and it was an intent -- was intended in my view to

11 require a bona fide dispute-narrowing process by which the Defence has to

12 response to the pre-trial brief, to the Prosecution's submissions to

13 actually narrow the issues for trial, to say this is disputed and these

14 are the reasons why. But unfortunately, in my submission, in my

15 respectful, personal opinion, that Rule has never been followed at the

16 Tribunal, I think unfortunately because I think it has the potential to

17 make these cases much more manageable, but I'll leave that for another day

18 other than what I've already said.

19 The agreed facts have really not taken us anywhere significant,

20 unfortunately. I don't think it's productive to discuss it in the

21 abstract. If we want to sit down with specific instances and facts as to

22 the Vares facts or to the Dretelj facts or what are Mostar facts, I mean,

23 if they really want to do that, we could, and look at the individual

24 proposed facts. I mean, counsel says, Well, to admit any of these facts

25 would be essentially conceding or confessing the case. I don't think

1 that's the case in many instances. Is it really -- are some of these

2 things really disputed? I mean, is it really disputed -- whatever else

3 you want to say about it, is it really disputed that Vares, that Stupni Do

4 was attacked on the 23rd of October, 1993? I don't think so. Was it

5 defended? Maybe. How so? Who was actually killed? Who was taken out in

6 front of their houses and killed? Okay, maybe talking -- is there any

7 dispute that it was attacked on the 23rd of October? I don't think so.

8 Why do we have to spend a lot of time trying to prove that? That's just

9 one example.

10 Now, let me just say in general about that, in terms of the agreed

11 facts. Agreed facts, in my submission, Your Honour, are not -- it's not a

12 game, to go to the opposite way from the analogy of sports. I don't think

13 what's intended when people talk about an agreed fact process it's not for

14 us to beat the Defence over the head with the Prosecution evidence to the

15 point where they have to say, Well, I guess we have no choice but to

16 agree. I guess they've got us. The evidence is so overwhelming we might

17 as well admit it. I don't think that's what agreed facts is really about.

18 Agreed facts is about looking at the case and saying, whatever the

19 Prosecution case is, whether they can prove, whether they can bring 20

20 witnesses on this point or five or one, we all know this happened and

21 there's no point in disputing it. And I think that would be the type of

22 process that would move the trial forward more efficiently.

23 The fundamental point of this stage of the trial, now that we're

24 some, I don't know, 10 months into the -- 10 actual working months into

25 the case, I'm not sure it gets us very far. But the point is this: We

1 talk about time, and I know we're not going to talk about time today, and

2 I agree with that, but when the Prosecution is criticised directly are

3 implicitly or limits put on its case, we ask the Chamber to understand

4 when everything's -- when the Defence position is, We dispute everything

5 from A to Z, everything, every element, every aspect, every detail of what

6 happened on every day, the Prosecution has no alternative but to try to

7 put on its case. So if it takes a lot of time, well, it takes a lot of

8 time. Now, what else are we going to do? If there aren't agreed facts,

9 if there aren't adjudicated facts, if there are other things, the

10 Prosecution has no alternative but to call witnesses and off -- tender its

11 exhibits and try to prove every point that it's required to prove. We

12 just ask the Chamber to be mindful of that reality.

13 Your Honour, that's all the comments that we have. We hope that's

14 been helpful. Thank you very much.

15 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Scott. The

16 Judges are going to meet in order to deliberate following what has been

17 said. I personally at this juncture have the impression that what has

18 been said by all parties is very positive and constructive. You have made

19 suggestions that are positive ones, and they deserve our entire and

20 undivided attention.

21 To go back to the poet, Robert Frost, I say we have one path, and

22 the path is the Rules. That is our guide. There are two ways. There is

23 only one ways, that is of the Rules. So we operate within the Rules.

24 A lot of things have been said, interesting things. I've noted

25 with Mr. Karnavas that he said very, very relevant and interesting things.

1 Of course we're going to discuss all this together, and as soon as

2 possible we'll hear the six accused, and their counsel will tell the

3 accused what was said today, and after hearing the accused, we shall issue

4 a decision. Indeed initially the problem arose because of the questions.

5 So we'll issue a decision. But I thank you, Mr. Murphy, for his very

6 interesting draft which goes to which -- what we started implementing.

7 We'll go into that, but I am now giving the floor to my fellow Judge who

8 might have something to say. Only this, to conclude without starting a

9 discussion, I just wanted to say this: When a question is put, the

10 question is put because it is within the framework of the final work we as

11 Judges are going to have to do, and if questions are being put, they

12 usually arise once you parties have put your questions, because I -- I

13 have in mind, and I believe it is in the minds of my fellow Judges, we

14 have in our field of vision three fundamental questions: Who, what, and

15 how. So when a witness is before us, we want to know who committed the

16 fact. What? What was the outcome of it? And how, the modus operandi.

17 And more often than not when you ask questions there's something missing,

18 and we will be the ones who will have to assess in a final stage. If

19 there is something missing we'll be faced with a difficulty.

20 Just a very final word, but I believe you are aware of this, I'm

21 saying this to show you how difficult our task is. Based on the

22 indictment, we estimated the number of facts that may be characterised

23 legally. There are over 3.000 facts in the indictment. Some facts have

24 been receiving different legal characterisations. We have 3.000 facts we

25 have to decide upon. Now, you take these 3.000 facts under Article 7(1)

1 with, under 7(1), the various modes of responsibility, planning, ordering,

2 committing, criminal enterprise, and so on. So there you have to multiply

3 by that factor to start with. Then you multiply it with the number of

4 accused to see what the connection is with each and every accused. Only

5 on basis of this regulation under 7(1), we have 72.000 instances,

6 situations. But there's more than that. There's 7(3). You know as well

7 as I do the three periods, prevent, knowledge, and sanctioning. There

8 again you have to multiply 3.000 multiplied by 3, multiplied by the number

9 of accused, and you reach something like 54.000 situations. You add that

10 or you add the situation under 7(1) and 7(3), you get to over 125.000

11 situations. And we will have to settle those facts.

12 You can understand easily that a Judge who does his job properly

13 needs to have accuracy when he has a witness before him. Very often we

14 said, "But you said it, you said a soldier. From which army, HVO? From

15 which unit?" I just wanted to spell this out as background.

16 JUDGE TRECHSEL: [Interpretation] If you allow me, Mr. President, I

17 would like to raise three suggestions or raise three comments and the

18 parties may want to respond to this straight away.

19 [In English] I do this in English as a majority here speaks that

20 language. The first question refers to these wonderful guidelines which,

21 really, they go down like water and on the United Nations' Day of the

22 Water, this is a befitting image, I think. The question I have is whether

23 it would not be more economical to drop point 3, the redirect, and first

24 have questions from the Bench and then combine a possible redirect with

25 the answers to questions.

1 MR. KARNAVAS: The answer to that is yes.

2 JUDGE TRECHSEL: Good. Thank you. If all were that easy.

3 The second point concerns the relative time budget. I'm saying

4 relative. That is, I'm not touching upon the issue which -- which is so

5 controversial.

6 I observe that, and I'm in full agreement in this respect, with

7 the Defence mainly, I think, that there needs for cross-examination time

8 varies largely. As Mr. Karnavas has pointed out it has not escaped our

9 attention, of course, that in many crime scene witnesses there are hardly

10 any questions on cross-examination and much less than the time we have

11 budgeted, globally, is used. In other cases again the time budget,

12 according to our general view is too narrow in the concept of the

13 Defence.

14 Now, would it not be possible, and that's a suggestion to both

15 parties, that they get together over a month and it must be done, of

16 course, with sufficient leeway in advance, to say for these witnesses we

17 will reduce our request for time to cross-examine for the benefit of

18 having more time with those we consider more important witnesses.

19 We have said, normally, I think, the idea is the same time for the

20 Defence, and I would not suggest that we substantially change that, but I

21 think some flexibility could be obtained, and it could best be obtained if

22 the parties negotiate about it.

23 That's my second point. I'm not expecting an immediate answer.

24 The third point regards the presentation of documents, and coming

25 from a continental system where the idea that documents must be presented

1 through a witness is exotic, I have, nevertheless, been convinced of

2 course in many cases there is a point in this. So I'm not rejecting the

3 concept of it at all. On the other hand I cannot disagree with the

4 Prosecution when they say it can't always be done. There are just too

5 many documents. There's not enough time, and I think that is

6 understandable. On the other hand, I also understand the Defence who say,

7 we must have and opportunity to debate this.

8 Now, our procedure is that objections to the admission of

9 documents are to be presented in writing, and the Chamber then takes a

10 decision. What I'm wondering is whether it might, exceptionally, when a

11 document is considered particularly important, be possible to have an oral

12 debate on this without the witness because there is no witness that is fit

13 to assist the parties and/or the Chamber but just to have arguments

14 exchanged orally so that the character of adversarial proceedings can be

15 enhanced. That's just an idea that came to me over the last time. Not

16 only today, but I would like to hear the views of the parties on this.

17 Thank you.

18 JUDGE PRANDLER: Thank you very much, Mr. President. As you

19 pointed out previously, the Chamber will deliberate on the issues which

20 have been raised by the parties, and I would join to my colleagues at the

21 Bench that we have listened carefully to -- to many of the very important

22 and very useful suggestions and positions, and then we will make up our

23 mind and, of course, we will let you know our position about those

24 proposals.

25 I only would like to come back to one of the points which concerns

1 the time factor. We did agree with you that we are not going to discuss

2 the time -- the timing, et cetera, and it has not been discussed. At the

3 same time, there was a reference by Mr. Karnavas to the completion

4 strategy. I would only like, without the intention of arguing or to

5 discussing this point in detail, but I believe he mentioned this in the

6 framework of the timing and then, if I quote him correctly, he said

7 that, "But when it comes to slavishly applying some -- some completion

8 strategy that somebody in New York had come up with some deadlines," et

9 cetera, et cetera, here I would only like to say that -- to Mr. Karnavas

10 but also to the Defence, of course, that this Chamber has never

11 contemplated to, and I quote, "slavishly apply the completion strategy,"

12 and we are making all what we can really to see to it that the trial be

13 just and fair and without any kind of outside intervention as far as the

14 final results are concerned. So it is this point which I would like to

15 make. And, of course, throughout the deliberations we would like to keep

16 to this rule as we can.

17 So thank you, Mr. President.

18 JUDGE ANTONETTI: [Interpretation] Very well. So in conclusion, I

19 want to thank everybody, also for this very positive atmosphere and

20 positive contribution from all of you. This is going to help us ponder

21 further and help us make a decision.

22 As you know, we are convening again this afternoon for the

23 testimony of the witness. We'll start at 2.15, as scheduled. I know that

24 Mr. Scott had scheduled two hours. If you could do with less, that would

25 be a good thing, because the Defence will have the same time, and we only

1 have four hours at best. So -- so I just wanted to point this out to you.

2 But if you were in my seat, you'd say the same.

3 Let's meet again at 2.15. The hearing stands adjourned.

4 --- Whereupon the hearing adjourned at 11.01 a.m.,

5 to be reconvened on Thursday, the 22nd day

6 of March, 2007, at 2.15 p.m.

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