Tribunal Criminal Tribunal for the Former Yugoslavia

Page 318

1 Monday, 19th April, 1999

2 (Open session)

3 (The Appellant entered court)

4 --- Upon commencing at 2.04 p.m.

5 JUDGE SHAHABUDDEEN: Mr. Registrar, will you

6 please call the case next on the list?

7 THE REGISTRAR: Case number IT-94-1-A, the

8 Prosecutor versus Dusko Tadic.

9 JUDGE SHAHABUDDEEN: Mr. Tadic, you can hear

10 me?

11 THE APPELLANT: (No translation)


13 appearances, please? First, counsel for Mr. Tadic?

14 MR. CLEGG: Mr. Clegg and Mr. Livingston

15 appear on behalf of Mr. Tadic.

16 JUDGE SHAHABUDDEEN: In all appeals?

17 MR. CLEGG: In all appeals.

18 JUDGE SHAHABUDDEEN: Mr. Prosecutor?

19 MR. YAPA: May it please Your Honours, I

20 appear as senior appeals counsel, Your Honours, for the

21 Prosecutor with Brenda Hollis, senior trial attorney,

22 Michael Keegan, trial attorney, and Ann Sutherland,

23 legal officer.

24 JUDGE SHAHABUDDEEN: Now, there are two

25 motions before the court. We have received, firstly, a

Page 319

1 motion for adjournment by Mr. Tadic.

2 Mr. Clegg, will you move?

3 MR. CLEGG: I do. Can I say by way of

4 introduction that we are not anxious to achieve any

5 adjournment, we are only anxious to ensure that the

6 position of the appellant is not compromised by the

7 adjournment last week of the contempt hearing.

8 The position appears to us to be that the

9 hearing that is now fixed for next week could possibly

10 result in evidence emerging that could be relevant to

11 this appeal. Whether that is likely or unlikely is

12 perhaps a matter of speculation, but no one could argue

13 that such evidence, at any rate theoretically, could

14 not emerge next week.

15 I am anxious to achieve a position whereby

16 the appellant is not prejudiced in the order in which

17 the hearings are heard. We would submit that could be

18 achieved in the following way: We would invite the

19 Court to consider proceeding this week to hear the

20 effective appeal against conviction and the

21 cross-appeal of the respondent. We would anticipate

22 that, in any event, judgement would be reserved in

23 relation to this appeal, and if that judgement could be

24 reserved until after judgement has been given in the

25 contempt hearing, then that would enable any fresh

Page 320

1 ground of appeal that did emerge or any fresh evidence

2 that emerged that was relevant to any of the existing

3 grounds to be aired before the Appeals Chamber while it

4 was still seized of the appeal. In our submission,

5 that would have the effect of making the best use of

6 court time this week because no adjournment would, in

7 fact, be necessary, and would enable the appellant's

8 position to be protected in the event, however

9 unlikely, that something were to emerge next week that

10 was relevant in considering the appeal that the Court

11 is seized of now.

12 My application would be, firstly, to invite

13 the Court to adopt this suggestion for proceeding, and

14 if the Chamber were to grant that application, then I

15 would not pursue the motion to adjourn. If the Court

16 felt unable to proceed in the way that I have

17 respectfully suggested, then I would reluctantly apply

18 to adjourn the entire appeal until after the conclusion

19 of the hearing next week in case anything emerged that

20 impacted on the appeal.

21 It is, of course, no fault of the appellant

22 that the hearings have had to be reversed. The Appeal

23 Chamber, of course, arranged the contempt hearing first

24 in time with the appeal to follow. That would have

25 enabled anything that did emerge to have been aired in

Page 321

1 the course of the appeal if it be relevant. It was, of

2 course, the unforeseen hostilities in Bosnia that -- in

3 Serbia that resulted in the hearings being reversed,

4 and I am just anxious that the appellant's position

5 ought not to be prejudiced as a result of those events.

6 Could I also indicate a position so far as

7 the appeal against sentence is concerned? For

8 completely separate reasons, we would apply to adjourn

9 the appeal against sentence until the same time but for

10 unconnected reasons. I think one of the reasons that I

11 need to advance in support of that application ought to

12 be aired in private session with the consent of the

13 Court.

14 JUDGE SHAHABUDDEEN: You would like to

15 present this aspect of your argument now?

16 MR. CLEGG: Yes.

17 JUDGE SHAHABUDDEEN: Perhaps I had better

18 hear from the Prosecution. Do you have any objections

19 to a private hearing?

20 MR. YAPA: We have no objections.

21 JUDGE SHAHABUDDEEN: Then Mr. Registrar, will

22 you ...

23 We have, in this institution, a whole house

24 and a halfway house: We have a closed session and we

25 have a halfway house in the form of a private session.

Page 322

1 Which are you asking for?

2 MR. CLEGG: I think the halfway house will

3 suffice.

4 JUDGE SHAHABUDDEEN: Halfway house. I

5 thought so. Private session.

6 (Private session)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

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Page 325

1 (redacted)

2 (redacted)

3 (redacted)

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5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (Open session)

14 JUDGE SHAHABUDDEEN: Would you say that that

15 Rule, Mr. Clegg, visualises that before the

16 commencement of the hearing of the appeal the applying

17 party should be in a position to specify the particular

18 evidence which it wishes to have admitted as additional

19 evidence? Now, I gather you are at the moment only

20 conjecturally in a position to do that, your position

21 being that whether or not you make a motion would

22 depend on what eventuates in the contempt proceedings

23 which are yet to take place?

24 MR. CLEGG: Yes. The Rule, in our

25 submission, ought to be read in the following way,

Page 326

1 namely, not less than 15 days before the date of the

2 hearing when the additional evidence is to be

3 presented. So an appeal hearing may, theoretically, be

4 adjourned over many weeks or months. There's no

5 statute of limitations so far as the appeal is

6 concerned, and there is, in our submission, nothing

7 contrary to the Rules if, theoretically, next week

8 something were to emerge that everybody recognised

9 provided a powerful and compelling ground of appeal.

10 If one assumed that for one moment, then notice could

11 be given then 15 days before the hearing of the appeal

12 hearing when that evidence would then be tendered. I

13 don't accept that this Rule was intended to apply to 15

14 days before the beginning of the hearing. It's the

15 hearing when the witnesses are called, on the day when

16 the witnesses are called.

17 Of course, the purpose of the Rule is clearly

18 designed to allow the other side to have an opportunity

19 to consider the evidence and to make investigations as

20 to the veracity and accuracy of the evidence, which, of

21 course, will all be done, in fact, in the contempt

22 hearing, even, I anticipate, the extent of a judgement

23 being given as to whether the evidence is accepted by

24 this Appeals Chamber or not.

25 There's nothing in the Rule that would

Page 327

1 prevent this. Indeed, if one just reflects for a

2 moment, it would be an absurdity if the Rule were to be

3 interpreted in that way because that could mean that

4 the most powerful and compelling evidence could not be

5 presented to the Appeals Tribunal merely because of an

6 entirely technical rule that had no merit behind it at

7 all.

8 Hypothetically, next week, Mr. Vujin could

9 say that he had deliberately compromised the

10 appellant's trial. No one anticipates him to give

11 evidence to that effect but it's theoretically possible

12 that he did. If he were to say that, can it seriously

13 be the case that the Appeals Chamber would have to

14 close their mind to evidence of that nature? In our

15 submission, the answer to that must clearly be "no."

16 In considering how to apply Rules that, of

17 course, have been drafted, in a sense, in a vacuum

18 because these were drafted before the Court had ever

19 sat, they must be interpreted in a way that is

20 consistent with the interests of justice, as long as

21 that doesn't do violence to the words of the Rule.

22 In our submission, the only interpretation of

23 this Rule that doesn't do violence to the principles of

24 justice is the one that we have just adumbrated. I

25 would also submit that, despite the wording of the

Page 328

1 Rules, there must be power for the parties to agree,

2 with the consent of the Court, to a shorter time limit,

3 if necessary. Obviously, I would anticipate in certain

4 circumstances one side or the other could apply for an

5 extension beyond 15 days.

6 We would submit that there's nothing in the

7 Rule to prevent this approach which I accede is

8 unusual, but it is borne out of a desire to ensure that

9 the appellant's case is not compromised as a result of

10 an unfortunate reversal of listing.

11 JUDGE SHAHABUDDEEN: Mr. Clegg, if I may say

12 so, that's a stimulatingly adventurous interpretation

13 of these facts. Perhaps we'd better hear from the

14 Prosecution.

15 Mr. Prosecutor?

16 MR. YAPA: Your Honours, with great respect,

17 I beg to disagree with my learned friend on his

18 interpretation of the Rules that deal with the

19 admission of additional evidence.

20 Your Honours will be pleased to see that the

21 Rule that is material here is Rule 115 which comes in

22 Part Seven of the compendium of Rules under the heading

23 "Appellate Proceedings." Your Honours will see that

24 in terms of 115, there is a requirement that the motion

25 for the admission of additional evidence should be

Page 329

1 served on the other party, in this case on the

2 Prosecution, and filed with the registrar not less than

3 15 days before the date of the hearing. This

4 particular hearing that is referred to is the hearing

5 before Your Honours, so that is what should have been

6 complied with.

7 Your Honours will be pleased to remember that

8 at a previous hearing too, I submitted to Your Honours

9 that with respect to the Rules, the Rules must be

10 implemented in the way that the Rules have been

11 formulated. So here it is quite clear, as the

12 Presiding Judge was pleased to say, that this

13 requirement in Rule 115 should have been complied

14 with. It is my submission that that has not been

15 complied with in this instance.

16 I thank Your Honours.


18 (Trial Chamber deliberates)

19 JUDGE SHAHABUDDEEN: The Court will suspend

20 for a few minutes to deliberate on your motion.

21 --- Break taken at 2.29 p.m.

22 --- On resuming at 2.48 p.m.


24 deliberated on the motion, and I pause to establish

25 this position, that we are dealing with one of the two

Page 330

1 motions only; is that correct?

2 MR. CLEGG: That is right.

3 JUDGE SHAHABUDDEEN: Now, I should say in a

4 preliminary way that the Court does not agree with your

5 presentation insofar as it might have been designed to

6 suggest that the Court itself thought there was any

7 linkage in the sequence of hearings. It was only

8 accidentally and without forethought that the hearing

9 in the contempt matter was fixed before the hearing in

10 the appeal proper. So nothing really turns on the fact

11 that the hearing of the contempt matter may now take

12 place after the hearing of the appeal proper. The

13 motion for adjournment is refused.

14 The Court does not accept that the decision

15 in the appeal proper is to be dependent on a decision

16 in the contempt matter being first made. However, if,

17 in fact, the contempt matter is heard before a decision

18 is rendered in the appeal proper and if, in the course

19 of the hearing of the contempt matter, new evidence

20 surfaces, the Court will be prepared to consider any

21 motion by the appellant for the admission of such

22 additional evidence as additional evidence.

23 As regards the matter which was discussed in

24 private session a while ago, the position is this, that

25 the Court will ask the Prosecutor to report by 10.00 on

Page 331

1 Wednesday as to whether the material to which you

2 alluded has any impact or would have any impact on the

3 sentencing exercise lying before us. What we will say

4 is that no decision on the sentencing aspects of the

5 case will be made before the Prosecutor has examined

6 the material and has reported back to the Court.

7 Now we will hear the second motion.

8 MR. CLEGG: I hope to briefly deal with the

9 second motion. It is an application under Rule 115,

10 not 15 days sadly before the hearing of the appeal, as

11 I have become consciously aware of during the course of

12 the afternoon.

13 To recall a witness who gave evidence at

14 trial who was given the identification mark of "W," he

15 has made a fresh statement in which he says that some

16 of his original evidence given before the Trial Chamber

17 was untrue and he's made a fresh statement correcting

18 that. The appellant personally is very anxious for

19 that to be brought to the attention of the Appeals

20 Chamber, and on his behalf, application is made under

21 Rule 115 to call this evidence to correct the false

22 position that arose at trial when he gave evidence

23 before the Trial Chamber. (redacted)

24 (redacted)

25 (redacted)

Page 332

1 (redacted)

2 (redacted)

3 It is, of course, a matter entirely for the discretion

4 of the Appeal Chamber whether they wish to hear from

5 this witness or not.

6 JUDGE SHAHABUDDEEN: Mr. Clegg, would you

7 like to address the Court on an aspect which you

8 mentioned but which evidently you did not feel there

9 was any need for you to expand on, and that is the

10 reference in the Rule to 15 days. Would you say that

11 such an application should be made, at the latest, 15

12 days before the hearing?

13 MR. CLEGG: Well, the date on the statement

14 of the witness -- the witness statement has been made

15 within the last 15 days, so it has obviously been

16 impossible to comply with the Rule, but we would submit

17 that Rule 89(B) does enable the Chamber to admit the

18 evidence if the Chamber itself is satisfied that it is

19 necessary to do so in order for there to be a fair

20 determination of the appeal. Rule 89(B) provides:

21 "In cases not otherwise provided for in this

22 Section, the Chamber shall apply rules of evidence

23 which will best favour a fair determination of the

24 matter before it and are consonant with the spirit of

25 the Statute and the general principles of law."

Page 333

1 Paragraph (C) also may be of some relevance:

2 "A Chamber may admit any relevant evidence

3 which it deems to have probative value."

4 We would submit that where evidence comes to

5 light not less than 15 days before the date -- less

6 than 15 days before the date of the hearing, there must

7 be a power, an inherent power, that the Appeal Chamber

8 has to admit the evidence. We would invite the Court

9 to determine the application on its merits rather than

10 on what we would submit is a procedural technicality.

11 JUDGE SHAHABUDDEEN: I ask you that question

12 because I think you yourself will appreciate that the

13 Court received this motion just minutes before the

14 Judges assembled on the Bench. My copy was received at

15 exactly a quarter to two this afternoon, and I don't

16 know that my colleagues were in a more advantageous

17 position than I.

18 Now, there are rules which give to the Court

19 a certain discretion in weighing and evaluating

20 evidence so as to make sure that justice is done, but

21 am I right that those rules imply that the evidence has

22 been admitted in accordance with the Rules of

23 Procedure? If the evidence has been admitted in

24 accordance with the Rules of Procedure, then the Court

25 may proceed to evaluate the evidence in the most just

Page 334

1 manner. But do the Rules which you have read authorise

2 the Appeals Chamber to ignore any particular Rule?

3 There is a difference between saying that the Court may

4 evaluate evidence and saying that that authorises the

5 Court to bend or to ignore a Rule which regulates the

6 admission of evidence.

7 MR. CLEGG: I think the way that I would put

8 it, I think the only way that I can put it to the

9 Appeals Chamber is that if evidence does come to light

10 late in the day, then the Rules must be sufficiently

11 flexible to cater for that eventuality. The 15-day

12 rule is an entirely arbitrary time set, and, of course,

13 it is one that must be complied with where possible,

14 but where it is impossible to comply with a rule, then

15 we would argue that the general provisions apply and

16 take precedence.

17 I don't think I can put it any more

18 attractively than that.

19 JUDGE SHAHABUDDEEN: That is very attractive,

20 Mr. Clegg.

21 May I turn to the Prosecution and ask for any

22 submissions?

23 MR. YAPA: If Your Honours will permit Brenda

24 Hollis, senior trial attorney, to respond to this?

25 MS. HOLLIS: Your Honours, the Prosecution

Page 335

1 position is that this motion should be dismissed out of

2 hand for two reasons.

3 The first reason is that it is untimely, and

4 certainly if good cause is shown, any Court may suspend

5 a rule regarding the timing of filing something, but no

6 good cause has been shown here.

7 We find three things of interest to the

8 timing of this motion. First of all, if you look at

9 the date and time that this motion was faxed, it was

10 apparently faxed on the 16th of April. If you look at

11 the statement itself in the original language, it

12 appears that the date at the bottom of that is typed

13 the 17th of April.

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 We suggest the Defence knew of this evidence

23 as early as November of last year, that they have shown

24 no good cause as to why they waited until just before

25 this appeals hearing began to raise this issue, and

Page 336

1 therefore, it is untimely, no good cause has been

2 shown, and it should be dismissed for that reason as

3 well.

4 The second basis for our submission that this

5 should be dismissed out of hand is that if you look at

6 the substance of what they have submitted, you will see

7 that the substance has no significant variance from

8 what this witness testified to at trial. (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted). So the

15 evidence itself is not relevant and it would have no

16 impact on the decision in this case.

17 For those two reasons, Your Honours, we ask

18 that you dismiss this motion out of hand. Thank you.


20 MR. CLEGG: Save but to indicate that, in

21 fact, on the original fax, although it looks like a 7,

22 it is actually a 5. It is the 15th of April, is the

23 first fax, and I have the original here. But other

24 than just to clarify that, there is nothing that I wish

25 to say by way of reply.

Page 337

1 JUDGE SHAHABUDDEEN: Mr. Clegg, the Court has

2 considered the motion, and the decision is that the

3 motion stands dismissed.

4 We turn to the appeals proper.

5 There is one case, and in that one case,

6 there are three appeals. On behalf of Mr. Tadic, there

7 are two appeals: one against conviction, one against

8 sentence. On behalf of the Prosecution, there is one

9 appeal against certain aspects of the judgement which

10 acquitted the appellant.

11 Now, we agreed on the 25th of January -- I

12 think that was the date when we last met -- that the

13 hearing would be comprehended within the time span of

14 this working week, and I think you, Mr. Clegg, were

15 good enough to say, well, it might even end one day

16 before, but we could keep the other day in cold storage

17 in case one needs to go beyond that.

18 I shall ask the registrar to pass around a

19 piece of paper in which we present a profile of the

20 time arrangements for this week. There are indicative

21 statements of time allotments in respect of each

22 speaker in each appeal and there are indicative

23 arrangements of the court's sitting time.

24 Let me start with the latter first. Today,

25 Monday, we are proposing to sit from 2.00 until 5.00

Page 338

1 with a break, which we will take in a few minutes'

2 time, half-an-hour break; and on the following days, we

3 will sit from 10.00 in the morning until 5.30 in the

4 afternoon with two half-an-hour breaks and the lunch

5 break. We hope in this way to conclude by Thursday

6 afternoon at the latest.

7 Now, as for the time slots for each speaker,

8 those are set out in the upper part of this scheme, and

9 you will see what they are. Unless you have any

10 objections, the Court would propose that we proceed on

11 the basis of an arrangement of this kind, it being

12 understood that there will be flexibility to be

13 exercised whenever the occasion requires an exercise.

14 I will give each side a chance to pore over

15 the suggestions, they are only suggestions at this

16 stage, and then we will resume.

17 I may say that the members of the Bench have

18 read diligently the literature provided by each side,

19 and so we expect that counsel would be good enough to

20 see value in spending their time by merely highlighting

21 those particular aspects which they wish to emphasise.

22 MR. CLEGG: Having just cast an eye over the

23 time allotments, the period allotted for the

24 appellant's response to the Prosecution's cross-appeal

25 I think would be very tight.

Page 339

1 JUDGE SHAHABUDDEEN: What would you like to

2 make it?

3 MR. CLEGG: I think two hours.

4 JUDGE SHAHABUDDEEN: Two hours. All right,

5 fine.

6 MR. CLEGG: I'm not sure whether the Appeal

7 Chamber has resolved to hear the sentence appeal before

8 judgement or was attracted at all to the suggestion that

9 I made of hearing the appeal on sentencing after

10 judgement when one knew for what offences the appellant

11 will be sentenced for.

12 JUDGE SHAHABUDDEEN: You mean after the

13 decision --

14 MR. CLEGG: After the decision, yes.

15 JUDGE SHAHABUDDEEN: -- on the appeal on

16 judgement.

17 MR. CLEGG: Yes.

18 JUDGE SHAHABUDDEEN: Is that what you mean?

19 MR. CLEGG: Yes. Because there is a --

20 JUDGE SHAHABUDDEEN: You don't have any

21 objections to the appeal on sentence being heard?

22 MR. CLEGG: Yes. I would prefer to advance

23 our submissions in relation to sentencing once we knew

24 the decision on the appeal and cross-appeal.

25 JUDGE SHAHABUDDEEN: Isn't the position

Page 340

1 this: If, if, the Prosecution were to succeed in its

2 appeal which challenges the acquittals in some cases,

3 then there would have to be a distinct sentencing

4 procedure insofar as the Prosecution succeeds. If they

5 fail, mind you, that's an end to the case. Wouldn't

6 that help you?

7 MR. CLEGG: Yes, it would. I think that

8 solved the problem.

9 JUDGE SHAHABUDDEEN: Isn't that what you were

10 saying, Mr. Yapa, this morning?

11 MR. YAPA: I think Your Honour has expressed

12 the meaning of the situation because the present appeal

13 on sentencing is the appeal from the judgement in the

14 trial court. The next stage will come after.

15 JUDGE SHAHABUDDEEN: So, Mr. Clegg, we are

16 now on the appellant's appeal on judgement. It is

17 nearly a quarter after three, very near to break time.

18 Would it be convenient for you to open your case at a

19 quarter to four?

20 MR. CLEGG: It would.

21 JUDGE SHAHABUDDEEN: In half an hour's time.

22 MR. CLEGG: It would.

23 JUDGE SHAHABUDDEEN: Then the court is

24 suspended.

25 --- Recess taken at 3.14 p.m.

Page 341

1 --- On resuming at 3.45 p.m.

2 JUDGE SHAHABUDDEEN: Mr. Clegg, you have the

3 floor for two and a half hours. We do not have the

4 signal lighting system, the red light system, under

5 which you are supposed to stop in the middle of the

6 word "if" when the light goes on, but we will ask the

7 registrar to keep time for us and to indicate when your

8 period has come to an end. You have two and a half

9 hours, and it's now, I would say, a quarter to four.

10 Yes, Mr. Prosecutor?

11 MR. YAPA: If Your Honours will be pleased to

12 give me a few moments and if my learned friend will

13 bear with me, my presence here as senior appeals

14 counsel in this appeal, if I may use the term, is

15 merely as a matter of formality. The appeal proper

16 will be argued by Ms. Brenda Hollis and Mr. William

17 Fenrick, who is due to come. He is indisposed today;

18 he will be coming subsequently. The others will

19 appear, I must say, because when I assumed the duty of

20 appeals counsel, the necessary papers had already been

21 filed and the work had been done by the team who will

22 be arguing the appeal. I thank you.

23 JUDGE SHAHABUDDEEN: We appreciate those

24 remarks. They are very graceful. We understand the

25 position entirely. We grasped that from a reading of

Page 342

1 the skeleton arguments and so on.

2 I will return the microphone to Mr. Clegg.

3 MR. CLEGG: May I begin by considering the

4 first of the amended grounds of appeal which embraces

5 the question of whether the appellant had a fair trial

6 and whether his right to a fair trial was prejudiced by

7 the prevailing circumstances in which the trial was

8 conducted and the linked concept of whether there was

9 an equality of arms between the Prosecution and the

10 Defence.

11 The starting point, in our submission, must

12 be Article 21 of the Statute to the Tribunal which says

13 in paragraph 2:

14 "In the determination of charges against

15 him, the accused shall be entitled to a fair and public

16 hearing, subject to Article 22."

17 So far as it may be relevant, in 4(b),

18 Article 21 says:

19 "In the determination of any charge against

20 the accused pursuant to the present Statute, the

21 accused shall be entitled to the following minimum

22 guarantees, in full equality:

23 "4(b) to have adequate and facilities for the

24 preparation of his defence and to communicate with

25 counsel of his own choosing."

Page 343

1 Now, the words contained there in Article 21,

2 "entitled to a fair and public hearing," are words

3 that have been lifted effectively from Article 6 of the

4 European Convention on Human Rights where one can see a

5 mirror image of those very words appearing. We would

6 submit that, as a consequence of that, it's not just

7 legitimate but must be intended to use the case law

8 from the European Court in order to assist the Tribunal

9 in determining what amounts to a fair and public

10 hearing.

11 Turning briefly to the development of this

12 law as embraced by the European Court, one can see how,

13 from the early days of the European Court, the

14 principles of a fair hearing and equality of arms was

15 embraced by the Court in a number of decisions that are

16 included in the appellant's bundle.

17 As early as the case of Kaufman and Kaufman

18 behind the second divider of the appellant's bundle,

19 one can see on page 115 a view by the commission, and I

20 emphasise "the commission," not the European Court

21 itself, but the commission, expressing an opinion that

22 the right to a fair hearing is a right which includes

23 the principle of equality of arms, and on the facts of

24 that case, it goes on to indicate that it does not

25 preclude States from regulating the exchange of

Page 344

1 memorials.

2 That principle is to be found in a series of

3 cases embracing, as it does, the principle of equality

4 of arms so far as parity exists between the Prosecution

5 and the Defence so far as access to the court is

6 concerned in relation to, in particular, the Court of

7 Cassation in Belgium, it embraces the principle of a

8 fair trial insofar as disclosure of information to the

9 Defence is concerned from information that is within

10 the knowledge of the Prosecutor, and it embraces the

11 principle that sufficient time must be allowed to the

12 Defence in order to prepare a case for trial.

13 All these principles are to be set out in the

14 cases contained in the appellant's bundle and they

15 embrace, in our submission, a principle of equality of

16 arms that, so far as the Courts have been able, seeks

17 to balance the position between Prosecution and Defence

18 in a criminal trial so that the greater resources that

19 are inevitably available to the Prosecution ought not

20 to work in such a way as to disadvantage a defendant.

21 In domestic courts, the same principles, we

22 would submit, have emerged under sometimes different

23 titles and different descriptions. Under the English

24 common law, the concept of staying a prosecution has

25 evolved by which the judge has an inherent power to

Page 345

1 stop a prosecution being conducted where the conduct of

2 the prosecution amounts to an abuse of the process of

3 the court. Under the English common law as it's

4 evolved where no equality of arms existed, this could

5 cause an indictment to be stayed. In other words, a

6 judge could exercise his inherent jurisdiction to

7 prevent a trial proceeding.

8 Illustrations of that are to be found where

9 there has been excessive delay in bringing a

10 prosecution as a result of the prosecution failing to

11 proceed with the matter expeditiously; likewise, a

12 failure to disclose material evidence can also result

13 in that power being exercised.

14 Now, almost inevitably, because most

15 litigation is conducted within a national forum, the

16 concept of equality of arms has developed as a

17 balancing act between the Prosecution or the State and

18 the accused. In domestic jurisdictions, the situations

19 where a separate State has any influence in the conduct

20 of the criminal trial will be few and far between. So

21 one can see that the development of the law in relation

22 to equality of arms in both the national and

23 international jurisdictions has been developed in a way

24 that seeks to control a balance between the State or

25 the prosecutor on one side and the defendant on the

Page 346

1 other, and hence one has issues such as access to

2 lawyers, reasonable time to prepare, disclosure of

3 material, all being factors which the court has

4 concluded must be balanced when one has an

5 investigation into whether there has been a fair

6 trial.

7 The distinction in this case is that the

8 fundamental complaint of the appellant is that it's not

9 the Prosecution who have been responsible for any

10 inequality of arms but it is the actions of an

11 independent government, namely, Republika Srpska which

12 we say has been responsible for the accused in this

13 case and the appellant here in being denied a fair

14 trial by obstruction of the Defence in the pre-trial

15 process and in failing to cooperate with the Defence.

16 Now, of course, that is something that is

17 quite outside the control of the Prosecutor and, in

18 reality, outside the control of the Trial Chamber.

19 Indeed, both the Trial Chamber and the Prosecutor

20 wanted the Defence to have a fair trial because all

21 were engaged in the pursuit of justice and justice can

22 only follow a fair trial.

23 The difficulty that one has to face in

24 considering this ground of appeal is assessing the lack

25 of equality between the parties brought about by an

Page 347

1 outside agency separate and apart from the Court,

2 separate and apart from the Prosecution, namely, the

3 Republika Srpska. It is, in some sense, an extension

4 of the application of the principle of equality of arms

5 that we are inviting the Court to entertain in this

6 appeal.

7 The Prosecutor's response to the grounds

8 advanced by the Defence clearly identifies this issue,

9 and they submit that, as a matter of settled law, the

10 complaint raised cannot amount to a ground of appeal on

11 the principle that the equality of arms has been

12 frustrated, because they indicate, and rightly so, that

13 the decided authorities are confined to circumstances

14 where the Court has some control over and jurisdiction

15 over the party that we submit is responsible for the

16 frustration of the fair trial.

17 I can indicate that we accept their analysis

18 and the limitations of the case that each side has

19 quoted, namely, Dombo Beheer and The Netherlands, which

20 is dealt with at paragraph 316 of the Prosecution's

21 reply, and I do not dissent from that analysis of the

22 case.

23 There is, we would submit, no clear appellate

24 authority either way on the issue of extending the

25 principle of equality of arms to matters that are not

Page 348

1 within the control of the Court or the Prosecutor. The

2 principle, however, we submit, that is fundamental to

3 the criminal code of all civilised countries is the

4 principle that an accused person should have a fair

5 trial. Rule 89 of the Rules of Procedure and Evidence

6 of this Tribunal import into the international arena

7 that concept of a fair trial that is hitherto developed

8 in various national courts.

9 In a wholly different context, I have already

10 referred the Court to those Rules this afternoon, but

11 they are, we submit, of vital importance for the

12 determination of this ground of appeal. Rule 89(B)

13 says:

14 "In cases not otherwise provided for by this

15 Section, a Chamber should apply rules of evidence which

16 will best favour a fair determination of the matter

17 before it and are consonant with the spirit of the

18 Statute and the general principles of law."

19 Rule 89(D):

20 "A Chamber may exclude evidence if its

21 probative value is substantially outweighed by the need

22 to ensure a fair trial."

23 So it is quite clear, we would submit, that

24 the draftsman of the Rules plainly had at its forefront

25 the question of ensuring that the need for a fair trial

Page 349

1 was inherent to the trial process set up under the

2 Security Council for this particular case.

3 In a number of domestic jurisdictions, courts

4 at first instance have wrestled with the difficulty of

5 trying people where it has been alleged that outside

6 agencies have frustrated the need or the possibility of

7 a fair trial. In recent years, the English courts have

8 tackled the difficult problem of trying men accused of

9 war crimes committed in Eastern Europe in the Second

10 World War. As part of that trial process, applications

11 were made that a fair trial was not possible because of

12 the actions of the Russian and Belarussian government

13 and government agencies in effectively frustrating the

14 defendant's attempts to obtain both documents and

15 witnesses from each of those jurisdictions.

16 On the evidence in each of those cases, the

17 court held that the Defence had not satisfied the court

18 that any such frustration had occurred or if it had

19 that it had any material effect on the fairness of the

20 proceedings, but the court entertained the application,

21 and by the entertaining of the application was their

22 acceding to the principle that if it could have been

23 demonstrated that an outside agency, namely, the

24 government of either Russia or Belarussia, had been

25 demonstrated to have frustrated the object of the court

Page 350

1 to have a fair trial, then the court indicated that it

2 would, in fact, have stayed the indictment by which the

3 judge would have intervened and prevented the trial

4 proceeding if he had felt that that action had

5 prejudiced the --

6 JUDGE SHAHABUDDEEN: Mr. Clegg, was there a

7 written ruling?

8 MR. CLEGG: There was no written judgement in

9 either of those cases. It were heard only at first

10 instance and not on appeal. In relation to the first

11 such case, the defendant was found medically unfit to

12 stand his trial, so there was no appeal.

13 JUDGE SHAHABUDDEEN: In this case, did the

14 Defence move at the trial level for the Court to stay

15 the proceedings on the ground of lack of cooperation on

16 the part of a certain state?

17 MR. CLEGG: Yes.

18 JUDGE SHAHABUDDEEN: There was a motion?

19 MR. CLEGG: There was. That was one I made

20 personally.

21 JUDGE SHAHABUDDEEN: In time, you will draw

22 attention to that, please.

23 MR. CLEGG: Yes. The position so far as that

24 case -- in fact, there were two cases -- were

25 concerned, that have been the only two trials in

Page 351

1 England of alleged war criminals from the Second World

2 War, in each case a motion was made to the trial judge

3 before the jury were impannelled, inviting the trial

4 judge to intervene and stay the indictment by which he

5 would have prevented the Prosecution from continuing on

6 the grounds that the governments of Russia and

7 Belarussia had, through the agency, primarily the KGB,

8 either refused to disclose documents to the Defence

9 that were submitted would be relevant and helpful

10 and/or frustrated the Defence's attempt to contact

11 witnesses.

12 As a question of evidence under the common

13 law, there is a burden on the Defence to satisfy the

14 Court on a balance of probabilities that that

15 evidential position has been achieved, and the Court

16 held in each case that the Defence had not discharged

17 the evidential burden that was on them in order to

18 demonstrate that such frustration had taken place. But

19 the reliance, such as it is, that I place upon that

20 decision, as an illustration of the common law,

21 entertaining such an application where the frustration

22 or, another way of putting it, the lack of equality

23 between the parties, was not something that the Court

24 itself had any direct control over -- indeed the

25 Prosecution had no direct control over it -- it was

Page 352

1 something that was orchestrated by an outside agency,

2 if it be orchestrated at all, and the Court held that

3 there was no evidence that there had, in fact, been

4 frustration, but by entertaining the application, the

5 Court was thereby indicating that certainly under the

6 common law as it has developed, the pursuit of a fair

7 trial and the pursuit of a concept of a fair trial was

8 such that they would have prevented a case continuing

9 if they were satisfied that an outside agency, such as

10 an organ of the state of Belarussia or Russia, had

11 prevented the Defence either obtaining exhibits or

12 witnesses in such a way that, in the opinion of the

13 Court, frustrated the object of a fair trial.

14 So that is the way I use those cases, merely

15 as an illustration of how the common law has developed,

16 and indeed we would submit that the cross-appellant's

17 response to the appellant's brief on appeal, filed on

18 the 12th of January of 1998, concedes at paragraph 3.21

19 this concept. If I could perhaps read from the

20 cross-appellant's brief? It says under the heading of

21 (d) of "Manifest injustice":

22 "The Prosecution does not deny that in

23 certain circumstances it could amount to a violation of

24 fundamental fairness or a manifest injustice to convict

25 an accused who was unable to secure the attendance at

Page 353

1 trial of significant Defence witnesses."

2 It goes on to say:

3 "At the same time, it is clear that a court

4 cannot be prevented from trying and convicting a person

5 merely because the accused claims that there are

6 witnesses who could prove his or her innocence but who

7 cannot be made to testify. Any accused can make this

8 claim. It is not per se a manifest injustice to

9 convict an accused following a trial at which one or

10 more potential witnesses were unavailable."

11 There is there a quote from authority in both

12 the United States of America and Europe.

13 The cross-appellant's submissions continue:

14 "It is therefore necessary in each specific

15 case to examine the exact circumstances which are said

16 to have prevented the attendance of the relevant

17 witnesses.

18 "In cases where the Defence encounters

19 difficulties either identifying or obtaining the

20 presence of Defence witnesses, there are a variety of

21 measures that can be ordered by the Trial Chamber ..."

22 And it there sets them out.

23 It then says at paragraph 3.25:

24 "If the Defence is unable to obtain the

25 presence of certain witnesses, this may be because:

Page 354

1 (1) either the Defence was not aware of the

2 existence of the witnesses or, being aware of their

3 existence, failed to inform the Trial Chamber of the

4 difficulties and request that measures of this kind be

5 ordered; or

6 (2) the Defence did request measures of this

7 type, but the Trial Chamber refused to grant them; or.

8 (3) the Trial Chamber did order measures of

9 this kind, but the witnesses nevertheless did not

10 attend ..."

11 Now, as a principle of the proper approach to

12 this submission, we would respectfully adopt the

13 argument contained in the cross-appellant's response,

14 and the crucial paragraph, we submit, is 3.21 where the

15 Prosecution says:

16 "The Prosecution does not deny that in

17 certain circumstances it could amount to a violation of

18 fundamental fairness or a manifest injustice to convict

19 an accused who was unable to secure the attendance at

20 trial of significant Defence witnesses."

21 We would submit that that is a concession

22 rightly made by the Prosecution, that the state of the

23 law as developed does embrace the position whereby the

24 frustration of a fair trial is due to the actions of an

25 outside agency not under the control of either the

Page 355

1 parties to the case or the Trial Chamber themselves.

2 From that starting point, we would invite the

3 Court to proceed to consider whether, on the facts of

4 this case, the appellant can demonstrate that there has

5 here been a violation of the fundamental fairness

6 and/or the manifest injustice spoken of by the

7 Prosecution resulting from the inability to secure the

8 attendance of significant Defence witnesses. In our

9 submission, the Court can be so satisfied.

10 Since the filing of the Prosecution's

11 response on the 12th of January of 1998, judgement was

12 given in the Rule 115 application made on behalf of the

13 appellant on the 15th of October of that same year.

14 The judgement, in our submission, is of considerable

15 importance.

16 The Court held in that judgement that the

17 witnesses for which application was made fell into a

18 number of different categories. One of those

19 categories, Category 3, was a category of witness and

20 evidence which existed at trial but of which the

21 Defence was unaware; and so far as that category is

22 concerned, the Appeals Chamber found that the appellant

23 had proved sufficient indication that these witnesses

24 and materials were unknown to the Defence despite the

25 exercise of due diligence and thus not available at the

Page 356

1 time of trial.

2 This evidence, in our submission, reflects

3 the difficulty faced by Defence counsel in preparing

4 and conducting this particular case at trial and

5 reflects and is reflective of the lack of cooperation

6 that existed from the government of Republika Srpska.

7 There was a separate category of evidence

8 considered by the Appeals Chamber in the same judgement,

9 and that was Category 4, which was headed "Material

10 which the Appellant was unable to adduce at trial," and

11 that category related to witnesses of whom the Defence

12 was aware at the time of trial but whose evidence they

13 were unable to produce, and the material fell into a

14 number of sub-categories, one of which was witnesses

15 who were alleged to have been intimidated.

16 Now, so far as that category of witnesses is

17 concerned, it is right to say that the Appeals Chamber

18 was satisfied that due diligence was not exercised

19 because no attempts had been made to obtain protection

20 for those witnesses from this Tribunal, and I don't

21 seek in any way to go behind that decision, but if one

22 reflects for a moment on the two categories that I have

23 just analysed, one is witnesses who were intimidated

24 and, secondly, those witnesses of whom the Defence were

25 unaware, it is not possible, in our submission, to draw

Page 357

1 a clean line between those two categories of

2 witnesses. There must be, inevitably, an overlap

3 between the two.

4 The clear inference -- indeed it is more than

5 an inference; it is the only conclusion consistent with

6 the judgement -- of why witnesses could not be found, in

7 other words, why were there so many witnesses of which

8 the Defence were unaware, the reason for that was

9 because of the lack of cooperation that had been given

10 by the government of Republika Srpska who did

11 everything that they could to seek to frustrate the

12 legitimate attempts of the Defence in seeking to

13 identify and locate and bring to this Trial Chamber

14 witnesses who would be able to assist the Court.

15 The effect, in our submission, of the actions

16 of the Republika in frustrating the work of those

17 charged with defence of this appellant before the Trial

18 Chamber, has been to deny the appellant the right of

19 calling before the Trial Chamber evidence that is

20 relevant and admissible, and it is that, we submit,

21 that is a fundamental frustration of his right to a

22 fair trial.

23 The witnesses that fell into the category of

24 potential witnesses of which the Defence were unaware

25 were all witnesses whom the Appeals Chamber accepted

Page 358

1 were witnesses who could give relevant evidence, they

2 were all witnesses who could give admissible evidence,

3 they were all witnesses who were capable of providing

4 evidence that would be probative of the charges laid

5 against the accused. The fact is that the Trial

6 Chamber heard none of those witnesses. Had the

7 appellant's lawyers charged with his defence before the

8 Trial Chamber known of the existence of those

9 witnesses, then the Court may be satisfied that

10 exercising the due diligence that they showed

11 throughout the trial below, then they would have called

12 those witnesses as part of the appellant's case and he

13 had an absolute right for that evidence to be called.

14 Nobody could prevent him calling relevant and

15 admissible evidence.

16 The position is that as a result of the

17 obstruction that the Defence team received from

18 Republika Srpska, which one can see illustrated in the

19 judgement of this Appeals Chamber who have accepted the

20 allegations of intimidation in relation to other

21 witnesses so their actions in frustrating the Defence

22 are clearly identified, the effect of that is that the

23 evidence that would otherwise have been admissible as

24 of a right was only admissible -- and I am reading from

25 paragraph 72 of the Appeals Chamber judgement; this is

Page 359

1 the 115 judgement of this Chamber on the 15th of

2 October, 1998, paragraph 72:

3 "The Appeals Chamber would only add that in

4 applying these --"

5 Sorry. It is paragraph 71.

6 "The task of the Appeals Chamber at this

7 stage is to apply a somewhat more flexible formula of

8 Rule 115 of the Rules, which requires the Chamber to

9 'authorise the presentation of such evidence if it

10 considers that the interests of justice so require.'

11 For the purposes of this case, the Chamber considers

12 that the interests of justice require admission only

13 if:

14 (a) the evidence is relevant to a material

15 issue;.

16 (b) the evidence is credible; and.

17 (c) the evidence is such that it would

18 probably show that the conviction was unsafe."

19 It is those words, "probably show that the

20 conviction was unsafe," that in our submission

21 demonstrate how the trial of the appellant was rendered

22 unfair by the Defence being prevented from access to

23 this class of witnesses.

24 The decision of the Appeals Chamber clearly

25 indicates that there is a burden on the appellant to

Page 360

1 show that the conviction was unsafe before evidence

2 would be admitted. The effect of that is to reverse

3 the burden of proof at the Appellate stage. At Trial

4 Chamber stage, the appellant had an absolute right to

5 call those witnesses. He didn't have to satisfy any

6 burden of demonstrating that it would probably show

7 that he was not guilty or any other hurdle. He had an

8 absolute right to call that evidence. He lost that

9 right after conviction and, at the Appellate stage, he

10 has to discharge a burden placed on him before evidence

11 can be admitted at this stage. One reason for that, of

12 course, being the necessity to have the principle of

13 finality.

14 I am not suggesting that the Appeals Chamber,

15 this Chamber, adopted the wrong test in the judgement

16 that it gave in October of last year; what I am doing

17 is demonstrating how, if that test is the right test,

18 and I accept it is at this stage, the burden being on

19 the appellant, that if the appellant can demonstrate

20 that those witnesses or some of those witnesses who

21 fall into that category would have been available to

22 him at the trial stage, then he has suffered unfairness

23 in that he has lost the opportunity and the right to

24 present witnesses before the Court, which is absolute.

25 Therefore, the question for the Court to

Page 361

1 address, I would submit, is whether the conclusion from

2 what happened at the trial, and what has happened

3 since, can be safely drawn that there was obstruction

4 of the Defence and that without that obstruction, one

5 could reasonably presume that those witnesses or, at

6 any rate, some of them, would have been able to have

7 been found in time for the appellant to have called

8 them in his trial, and we would submit that if we can

9 demonstrate that witnesses were not called or could not

10 be found because of obstruction and they were relevant

11 and material, then the appellant did lose his right to

12 a fair trial because he lost the right to present his

13 case in its best light and he lost the right to call

14 witnesses on his behalf because he has no right to do

15 so on appeal, he only has the power to call them if he

16 discharges the burden that rightly exists on him and

17 the Court exercises discretion in his favour. He has

18 no right to do it thereafter. If he has lost that

19 right, then we would submit he has lost his right to a

20 fair trial.

21 If we go back just for a moment to the

22 skeleton of the Prosecution, the Prosecution does not

23 deny that in certain circumstances it could amount to a

24 violation of the fundamental fairness or a manifest

25 injustice to convict an accused who was unable to

Page 362

1 secure the attendance at trial of significant Defence

2 witnesses. Now, that concession having been made, we

3 have and can identify significant Defence witnesses who

4 we were unable to secure the attendance at trial of.

5 We know for one reason that the Court has accepted,

6 that the trial lawyers exercised due diligence in their

7 search for witnesses, so we know that it is not the

8 fault of the Defence lawyers that they were not found.

9 We also know, and they are sobering words to

10 reflect on today, that in the opening remarks of

11 Mr. Wladimiroff, then lead counsel on behalf of the

12 appellant at his trial, he said at page 9 -- this is

13 all, I think, in Annex 1 of the appellant's amended

14 brief:

15 "The fact that this trial is starting today

16 does not provide us with a definitive answer. It

17 should be seriously considered that the conditions

18 required for a fair trial may ultimately not be

19 fulfilled. The reasons have already been given.

20 Uncertainty as to whether, at a certain stage, a point

21 is reached at which the conclusion has to be that a

22 fair trial is no longer possible is a great cause of

23 concern to the Defence."

24 A little later, he said, page 11:

25 "The people living in this area are

Page 363

1 scattered, they are threatened, they are afraid, and

2 the local authorities are answerable for that. Under

3 such conditions, it is very hard to conduct a fair

4 trial. Should it appear that the legal and factual

5 circumstances prevent the Tribunal from finding the

6 truth, then in our opinion, the limit of fairness is

7 exceeded. The intention to conduct a fair trial is not

8 sufficient. The point is that all conditions for a

9 fair trial should actually be fulfilled."

10 At page 17:

11 "The pre-trial proceedings have shown a

12 serious inequality of arms in that all the Prosecution

13 witnesses are outside Republika Srpska and that all

14 authorities, except those of Republika Srpska, have

15 fully cooperated with the Prosecution in this case. In

16 the weeks to come, we shall see how this lack of

17 equality of arms affects the trial itself."

18 Finally, at page 28:

19 "We have informed you of our grave concerns

20 about the proceedings of this trial. There are many

21 problems which have not been solved and there are many

22 indications that these problems will not be solved. We

23 are, therefore, deeply concerned about the quality of

24 this trial. We fear that eventually it will not meet

25 the demands of justice."

Page 364

1 So they are sobering words --

2 JUDGE SHAHABUDDEEN: Mr. Clegg, at what stage

3 did Mr. Wladimiroff make that statement?

4 MR. CLEGG: He made that statement on the

5 very first day of the trial, and, of course, it is

6 perfectly right to say that in the intervening months,

7 of which there were many, the Trial Chamber did

8 everything that it could to assist the Defence, and,

9 indeed, at the close of the Prosecution's case, there

10 was a substantial adjournment of weeks rather than days

11 to enable the Defence to make further efforts in the

12 material area to try to trace and find witnesses.

13 I make it plain that we are not suggesting

14 for one minute that the Trial Chamber did anything

15 other than its utmost to try to ensure that there was a

16 fair trial. They gave every assistance that they could

17 to Mr. Wladimiroff and his team, and it is, of course,

18 not suggested that the Prosecution in any way sought to

19 frustrate the object of a fair trial.

20 The effect, nonetheless, was that despite

21 every assistance, despite the substantial adjournment

22 that was granted, despite all the cooperation, the

23 witness protection, the anonymity, the taking of

24 evidence by video, and every other expediency that the

25 Court used, despite all that, we know that there was a

Page 365

1 substantial body of relevant and admissible evidence

2 that was not identified despite the exercise of due

3 diligence by Mr. Wladimiroff and his team.

4 Before the case commenced, he had indicated

5 in the clearest of terms that the Defence and he were

6 concerned about the ultimate fairness of the trial, and

7 we would invite the Court to accept that he is not an

8 advocate that would have used words like that lightly.

9 It was clearly --

10 JUDGE SHAHABUDDEEN: Did he later, in the

11 course of the proceedings, revert to that matter by

12 making a motion for staying the proceedings on the

13 ground that it was materially impossible to ensure a

14 quality of arms?

15 MR. CLEGG: He did not. The difficulty, I

16 think, was two-fold, and the first is identified in

17 another passage in his opening where he says -- and I

18 hope I do justice to his words -- he asks the question

19 rhetorically of the Trial Chamber, "Why, you may ask

20 yourselves, am I not applying for an adjournment if we

21 cannot have a fair trial?" He answers that question by

22 saying that the appellant Tadic had by then been in

23 custody for two years waiting for his trial and that

24 there must obviously be a limit to how long a man can

25 be kept in prison unconvicted whilst the trial is being

Page 366

1 prepared.

2 Therefore, it is a difficult balancing act

3 for Defence advocates in a situation such as

4 Mr. Wladimiroff had in weighing up the conflicting

5 pressures of the need for a reasonably speedy trial -

6 to use the word "speedy" after two years is a little

7 bit difficult, but the Court understands what I mean by

8 that - against the disadvantages of yet more delay,

9 perhaps an open-ended delay, whilst one waits for real

10 cooperation.

11 The other difficulty, of course, is that the

12 very nature of the obstruction that Mr. Wladimiroff and

13 his team faced prevented them knowing of the existence

14 of the witnesses who could help, and, therefore, he was

15 not in a position in relation to the witnesses who fall

16 into that category whom I identified as witnesses who,

17 despite the exercise of all due diligence, could not be

18 traced, without knowing of their existence, it was

19 clearly impossible to make any sensible motion to the

20 Trial Chamber seeking to adjourn the hearing.

21 One of the inherent problems with the type of

22 frustration that he identified here and the court has

23 examples of is that the ground conditions were such and

24 the response of the local authorities was such that you

25 didn't know whether there were, in fact, any witnesses

Page 367

1 there who would be able to help.

2 If one had been preparing the case in a

3 situation in which one would be more familiar, in a

4 domestic jurisdiction, then there would be no

5 difficulty in seeking to trace witnesses by any one of

6 the many methods that I used in the preparation of any

7 domestic criminal trial, by using private investigators

8 or relying upon the assistance of the police

9 authorities in helping to trace witnesses, so on and so

10 forth. None of that realistically was possible in the

11 preparation of the Defence case here. Indeed, the

12 police were as obstructive as they could conceivably

13 be. The Appeals Chamber has had experience of having

14 to make orders of compulsion against the State in order

15 to seek to force cooperation at the appellate stage.

16 So one can see a history of consistent obstruction and

17 frustration of the Defence case.

18 We would invite the Appeals Chamber not to

19 regard the failure of Mr. Wladimiroff, his failure in

20 seeking to make a motion to adjourn, as reflective of

21 the fact that he was in any way satisfied that the

22 preparation of the defence of the appellant was not

23 being frustrated. It may be it wasn't being frustrated

24 as much as he -- maybe he was not aware of the degree

25 of frustration. There's no reason why he could have

Page 368

1 been, and clearly he could not have known that these

2 particular witnesses had been kept out of his way, if

3 that's a polite way of putting it. He had not been

4 allowed access to clearly material witnesses on the

5 visits that we all know that he made to the area.

6 We would say that his failure to raise the

7 matter again by way of formal motion ought not to be

8 held against the appellant at this stage.

9 Mr. Wladimiroff certainly did, at the end of the

10 Prosecution case, obtain a significant adjournment to

11 try to remedy matters. I think that the adjournment

12 was something like four weeks at that stage of the

13 trial, but I'll check the exact period overnight.

14 If I could perhaps conclude this evening by

15 drawing together the strands of our submission so far

16 as the first ground of appeal are concerned. I have

17 taken the Court very swiftly, and I hope not too

18 swiftly, through what we say has been the development

19 of the principle of equality of arms and the principle

20 of a fair trial through both the international

21 jurisdiction of the European Court and national

22 jurisdictions concentrating, I confess, largely on the

23 English common law, but they are, we would submit,

24 principles that are well-founded and to be found really

25 within most jurisdictions of the world.

Page 369

1 The effect, we say, of the frustration of the

2 Defence was that witnesses who the Court has determined

3 were relevant and would have been admissible at trial

4 stage were not called. They are identified. The Court

5 will never hear from them. That has the capacity of

6 preventing a fair trial. The Prosecution concede that

7 in their own skeleton.

8 The first question, we submit, that the

9 Appeals Chamber needs to address is whether the Court

10 can be satisfied that the Defence at trial were denied

11 access to those witnesses by the Government of Srpska,

12 by their policy of non-cooperation. We would submit

13 that the effect of the judgement already delivered by

14 this Chamber is to recognise that there was that

15 element of frustration and obstruction.

16 The second question is whether that so

17 created such an imbalance between the parties that the

18 right to a fair trial was frustrated. Clearly, if one

19 witness had been kept hidden from the Defence on some

20 marginal and peripheral issue in the case, then the

21 absence of that one witness would not by itself be

22 sufficient to demonstrate that there had been an

23 inequality between the Prosecution and the Defence such

24 that would render the trial unfair.

25 It is a question, we would submit, of weight

Page 370

1 and balance, and we would submit that the volume of

2 evidence and the effect of the evidence that the Trial

3 Chamber was, in reality, denied here was such that

4 created such an imbalance between the Prosecution and

5 the Defence that the defendant's right to a fair trial

6 was, in truth, frustrated.

7 Now, there's nothing, Your Honour, like the

8 pressure of a timetable to bring an advocate very

9 swiftly through his argument, and I don't think I

10 really need to say or want to say anything further

11 about the first ground of the appeal. It is now just

12 after ten minutes to five. I think I would prefer, if

13 the Trial Chamber agreed, to deal with the third ground

14 of appeal in one submission tomorrow morning, rather

15 than have it divided overnight. I will conclude well

16 inside my allotted two and a half hours. I'm building

17 up some credit already.

18 JUDGE SHAHABUDDEEN: Mr. Clegg, the Chamber

19 agrees with your proposal that you should break new

20 ground in the morning, and I think I speak on behalf of

21 my colleagues in saying that we appreciate that the

22 time schedule which we presented has had this good

23 effect, as demonstrated by your presentation that you

24 have been able to focus on matters of central

25 importance to the point which you have dealt with.

Page 371

1 Perhaps tomorrow when you return, you might

2 like to think of one point which has occurred to me,

3 and it is this: Is it conceivable that, in a possible

4 case, the Prosecution can be in a position similar to

5 that which you have been presenting? So that if the

6 accused were acquitted, could the Prosecution appeal

7 from the acquittal on the ground that there had been no

8 material equality of arms? Perhaps in the morning you

9 would like to help the bench with your thoughts on that

10 point.

11 MR. CLEGG: I will reflect on that

12 overnight.

13 JUDGE SHAHABUDDEEN: Any objections to an

14 adjournment at this stage?

15 MR. YAPA: No. No objections.

16 JUDGE SHAHABUDDEEN: Then the Court stands

17 adjourned until 10.00 in the morning.

18 --- Whereupon the hearing adjourned at

19 4.53 p.m., to be reconvened on Tuesday,

20 the 20th day of April, 1999 at

21 10 a.m.