Case No. IT-00-39-T

IN TRIAL CHAMBER I

Before:
Judge Alphons Orie, presiding
Judge Joaquín Martín Canivell
Judge Claude Hanoteau

Registrar:
Mr Hans Holthuis

Decision of:
4 March 2005

Office of the Prosecutor

Mr Mark B. Harmon
Mr Alan Tieger
Mr Thomas Hannis

Counsel for the Defence

Mr Nicholas Stewart, QC
Ms Chrissa Loukas

1. The Chamber is seized of a motion for adjournment filed by the Defence on 22 February 2005. The context of the motion is as follows. The trial opened on 3 February 2004. By 28 February 2005, when a reconstituted bench began hearing the case from where it had left off in December of the previous year, there had been a total of 102 court sessions. Not all of these were to hear witnesses; about six days were given to opening statements and procedural matters. A standard court session at the Tribunal is four and three-quarter hours, not a full day.¹ In the course of the 102 court sessions, the Prosecution presented just under half of its case-in-chief.

2. Between 3 February 2004 and 28 February 2005 there were 243 available courtroom days, not counting around seven weeks’ worth of court recesses and public holidays. In this period, then, the trial utilized 42 per cent of available courtroom sessions, leaving at least 141 full days for trial preparation (excluding weekends, holidays, and recesses). This time included a block of seven unplanned-for contiguous out -of-court weeks, the consequence of the bench’s reconstitution. At 7.5 hours per day for each of the two Defence counsel, this amounts to 141 x 7.5 x 2 = 2,115 out -of-court hours since 3 February 2004, not counting the normal preparation time left over for counsel on sitting days and not counting the corresponding time of other members of the Defence team. The two Defence counsel have often divided witnesses between them and have not always been present in court at the same time. Thus their total out-of-court hours since 3 February 2004 is significantly greater than 2,115. The Defence’s case manager, who was rarely absent from court, had available to her at least 141 x 7.5 = 1,057 out-of-court hours. The same calculation applies to the Accused. Moreover, the Hague component of the Defence team has had several members working for it out of court during the period in question.²

3. While these calculations are rough and incomplete, the point is that the Accused and his Defence team have had several thousand out-of-court hours available to them since the trial commenced.

4. The Accused’s opportunities for case preparation in the pre-trial phase were also extensive. The Accused made his initial appearance at the Tribunal on 7 April 2000 and has been represented by counsel ever since. The Accused’s first defence team was dissolved in the second half of 2003, when the then lead counsel was suspended from practice. The first defence team billed in excess of 26,500 hours for case preparation. On 30 July 2003 a new lead counsel was assigned to the Accused, and on 16 September 2003 a new co-counsel. As noted in the Chamber’s decision of last September on the Accused’s first motion for adjournment,³ the new team came to include the legal consultant of the previous team, as well as another former member, Ms Cmeric, who has been the current Defence team’s case manager. As also noted in the September decision, the transfer of case materials from the old team to the new team was problematic for the new Defence team; there were significant delays in communication; and the material was in a disorderly state. However, there has been no submission that the Accused himself did not benefit from the work of his first team. There can be no doubt that the Accused was in a position to serve as an important link between the old and new teams.

5. The Chamber has always taken into account the difficulties expressed by the new Defence team, and had adjusted the start and the pace of the trial accordingly. This is documented in the September decision.

6. The Defence’s second motion for adjournment now requests an immediate six-month suspension of proceedings until 29 August 2005. The Defence again claims that it has not had adequate time and facilities to prepare the Accused’s defence. On 28 February 2005, the Chamber heard supplementary oral submissions from the Defence. The Prosecution has opposed the motion.⁴

7. In deciding the second motion for adjournment, the Chamber will refrain as much as possible from repeating what it said in its September decision, which was relatively detailed. Suffice to say that the Chamber there determined that the Defence had at that stage been afforded “adequate time and facilities” for case preparation; it therefore denied the earlier motion, although not without “assur[ing] the Defence that it would continue to closely monitor the level of the Defence team’s preparedness throughout the trial.” The question that must now be considered is what has changed since September 2004 to make ground for another motion on the same point. The Defence argues that its preparation is seriously lagging in several areas. The submissions on this will be considered below.

8. As a preliminary matter, the Chamber will supplement its discussion of the applicable law in the September decision with an observation on the meaning of “adequate time and facilities”. The European Convention on Human Rights provides that “Everyone charged with a criminal offence has the following minimum rights:... to have adequate time and facilities for the preparation of his defence” (Article 6 (3) (b)). The Statute of the Tribunal closely follows this formulation, stating that “the accused shall be entitled to the following minimum guarantees... to have adequate time and facilities for the preparation of his defence” (Article 21 (4) (b)). Both these formulations mention the accused as the subject of the right. In practical terms, where there is a counsel who speaks for the accused, it is the counsel’s state of preparation and service to his or her client which is often in issue.⁵ The second motion for adjournment hints at this distinction where it states that “the relevant enquiry is whether the Defence has had and will have adequate time to be prepared for the remainder of the trial, so as to ensure that Mr Krajisnik will receive a fair trial.”⁶

9. However, the test as articulated here by the Defence is not entirely accurate. The question whether an accused has had adequate time and facilities cannot always be fully analysed in terms of the question whether his or her most recently appointed defence team has had the required time and facilities. In some cases it will be justified to reduce one question to the other (in those cases, for example, where the defendant due to a mental disability is entirely reliant on his or her current defence team). In other cases it will be justified to consider the two questions separately. But in any case, the controlling test, as stated by the European Court of Human Rights is that, “in order to determine whether the aim of Article 6 – a fair trial – has been achieved, regard must be had to the entirety of the... proceedings conducted in the case.”⁷ And this means not only to the time and facilities afforded to an accused’s most recently appointed defence team, but also, usually, to the time and facilities afforded to the accused himself or herself since the beginning of the case.⁸ The adequacy of the former is one factor in assessing the adequacy of the latter, and the adequacy of the latter is one factor in assessing the fairness of the trial.

10. The Chamber now turns to the specific points raised in the motion. Nothing said below may be construed as being unsympathetic to counsel for the Defence, who signed up under difficult circumstances and may not have had the full cooperation of the Accused at all times. The Chamber stipulates that “Sthe DefenceC have run Mr Krajisnik’s defence in a diligent and professional manner in all the circumstances.”⁹

(a) “Collating, reading and analysing relevant and potentially relevant documents ”

11. According to the motion, the current counsel between them have been able to read “no more than 15% of the overall documents” in their collection. The Defence acknowledges the Chamber’s remark as found in the September decision, that a large case cannot realistically be dealt with in the same level of detail as a case of a smaller scale. The Defence submits, however, that this “cannot fairly mean that any area should be left unexplored below a safe minimum level or that the Defence should be denied time to explore and present those areas to that minimum level.” The Defence does not explain what this “safe minimum level” is, except to say that it “doSesC not adopt an unrealistic view of what constitutes a minimum standard and accepts that the best can be the enemy of the good and better.”

12. The submission that the Defence has had the time to read only a fraction of the tens of thousands of pages of materials in its collection has several weaknesses as an argument for adjournment. There is usually a significant difference between the amount of material disclosed to an accused and the amount of material admitted into evidence in the proceedings. Only the latter – smaller – amount is considered by the Chamber in reaching its judgement. The motion does not clearly distinguish between, on the one hand, documents disclosed as central to the Prosecution’s case and, on the other hand, routine disclosures “of exculpatory and other relevant material ” (Rule 68 of the Tribunal’s Rules of Procedure and Evidence). The motion does not inform the Chamber whether the Accused himself has had the opportunity to go through the material in question, or is perhaps already familiar with much of it. Annex I of the motion states that “Out of the entire material, some 60% is in BCS and some 40% in English.” It is not clear from the motion what overlap or repetition there is in the reams of documents cited. Still, if the two counsel, who do not read Serbo-Croatian, have read 15 per cent of the “overall documents”, then – unless the submission is different from what it seems – they have read around 38 per cent of the English collection, which includes translations of the BCS component. Thirty -eight per cent for the two counsel at this stage in the case may not be the ideal amount, but neither is it insignificant progress. Moreover, counsel have team members who are qualified to help them with the reading.

13. The reason why this submission fails is that it does not persuade the Chamber that counsel for the Accused must be provided with the necessary time and facilities to serially peruse the collected material for there to be a fair trial. The Chamber is well aware that a defence strategy will draw upon the knowledge of the accused himself or herself, and in large or complex cases the defence will rely on labour -saving strategies, documentation, and technologies which zero in on material relevant to the strategy. The material disclosed by the Prosecution to the Accused has been organized in various ways, explicit or implicit, and has been disclosed in several formats some of which support advanced computer-assisted access. Voluminous records of meetings, which make up a significant portion of the material in this case, are amenable to visual scanning by agenda-item heading to identify relevant subject matter. The progress of the trial to date has helped to differentiate contested from uncontested or secondary issues. The Accused himself is evidently an intelligent and knowledgeable man who takes a keen interest in the conduct of his defence. It is not contested, in this respect, that he has held important public positions, including that of President of the Bosnia-Herzegovina Assembly and President of the Bosnian-Serb Assembly. Even using the standard proposed by the Defence, the Chamber is not persuaded that the mere fact that counsel have so far read through less than half of the English material in their collection means that the Accused’s case is labouring below the “safe minimum level”.

(b) “Effective preparation for cross-examination of significant witnesses”

14. The Defence submits that where effective preparation has been possible “it has only been achieved by sacrificing all or most other work for significant periods. But except in relation to fairly straightforward crime-base witnesses, it has frequently been impossible even when that sacrifice has been made.”

15. The Chamber does not accept that the Accused and his defence team have not been given adequate time and facilities to prepare for the cross-examination of witnesses, or that they shall not have had the requisite time by the end of the Prosecution’s case without the requested adjournment. As mentioned above, since the beginning of the trial the Accused and his Defence team have had at least 141 non-sitting days to prepare his case. Prior to the start of the case, the newly assigned lead counsel and co-counsel had further months of preparation time, specifically around 1,045 hours for the two counsel alone.¹⁰ The Accused himself has been preparing his case, assisted by his counsel and other staff, since the year 2000. Upon the close of the Prosecution’s case the Accused and his Defence team shall have further time and facilities to prepare for the presentation of the Accused’s case, both before his case starts and in the course of its presentation.

(c) “An adequately developed Defence strategy covering all essential areas and making necessary use of the available relevant material”

16. This point is not elaborated in the motion. The Chamber does not find that it raises any new issue not already covered in other parts of this decision.

(d) “Interviewing witnesses in Bosnia by Counsel”

17. The Defence states that so far “only 8 hours have been managed” in this area. This refers to counsel and co-counsel hours. How the work is distributed among members of the Defence team is generally not the concern of the Chamber. The Chamber has been informed¹¹ that all of the Accused’s legal-aid allocation is spent on staff based in The Hague. This leaves the Accused with US$9,589 per month of his own funds (that is, his Registry-assessed expected contribution to defence costs in a Level 3 case) to spend on field work,¹² or 13 x $9,589 = $124,657 (= 91,872 euro) since the commencement of the trial. At 15 to 25 euro per hour (the amount paid to investigators, according to the Annex to the Directive on Assignment of Counsel), this translates into a minimum of 3, 675 hours for the identification and interview of witnesses since 3 February 2004. Another way of looking at this, is that the Accused is assumed to be employing very nearly three additional full-time support staff (at the Registry’s rate of US$3,600 per month per one support staff person) since the commencement of the trial, and, indeed, up until the end of the trial. The Defence states in its motion that “there have been problems over Mr Krajisnik’s assessed contribution to his defence costs. [These] problems have not aggravated to any appreciable degree the difficulties for the Defence team in The Hague in getting on top of this case as quickly as they reasonably can.” The Chamber observes that if – as the above statement seems to imply – the Accused is withholding his assessed contribution, he cannot very well complain to the Chamber that his team is falling behind in locating and interviewing witnesses. More generally, if the Accused is not resourcing his team at the minimum level, he should not be surprised if he receives less than that level of service in return. It is a matter of his own choice. Defence counsel are not expected to perform the impossible.

(e) “Defence experts have not been identified or interviewed”

18. The Defence states that it has not yet had the benefit of expert comment on Prosecution evidence because it has not had time to identify or interview experts. The motion indicates that around 110 co-counsel hours have been spent on reviewing the state of expert evidence.

19. The Chamber agrees that this is an important matter, as there is a clear advantage to being able to consult experts in the course of the Prosecution’s case. But this submission does not amount to a relevant factor in considering the need for an adjournment. Realistic use must be made of the time available for preparation, and if the Accused and his counsel decide to apportion this time in one way rather than another, it is for the Defence to find a proper balance along the way. Moreover, in cases where the consultation of experts by the Defence in the course of the Prosecution’s case has not been achieved, partially or at all, it is possible to gain much of the lost ground during the presentation of the Defence’s case. Since the Prosecution’s case is only at the half-way mark, there is still sufficient opportunity for the Defence to benefit from advice on expert evidence. The Chamber will not be drawn into an issue arising from time-management choices made by the Accused’s team.

(f) “Taking adequate instructions from Mr Krajisnik has been prevented by Counsel’s inadequate grasp of the overall documentation”

20. For the reasons given above, this point does not persuade the Chamber that an adjournment is called for. By any measure the Accused has the knowledge, capacity, and opportunity to give adequate instructions to his counsel.

(g) “Adequate investigations in the field”

21. The Defence submits that the Chamber’s proposed schedule means that the Defence team has not had and will not in the future have adequate time to instruct investigators properly and carry out the requisite follow-up in the field.

22. The Chamber is not persuaded by this argument for the reasons given above.

(h) “Language difficulties”

23. While the Defence’s submissions on this point are detailed, they seem to be about staffing issues (the availability of BCS speakers in the team). An adjournment of the trial is not going to solve these issues.

24. The Chamber wishes finally to comment on the statement of the Defence that the Chamber is proceeding at a pace “to meet the target date of April 2006 publicly announced and now recorded in the minutes of the UN Security Council meeting of 18 January 2005.” While it is true that the Chamber proposed a target date to the parties,¹³ the suggestion that that date has now somehow become a target date set by the Security Council – or any other body – is incorrect. The Security Council’s resolution states merely that it “Takes note in this regard of the intention of the International Tribunal to finish... the Krajisnik case before the end of April 2006.”¹⁴ This indeed has been the intention of the Tribunal, but whether the case will be concluded by that date or some other date is for the Chamber to decide in proper consultation with the parties and subject to the requirements of a fair trial.¹⁵

25. For the above reasons, the Chamber DENIES the motion.

26. The Chamber will of course continue to monitor the state of the Accused’s defence to ensure a fair trial. The Prosecution is requested to continue to assist Defence counsel in all reasonable ways, by ensuring in particular that documents are provided to the Defence in computer-searchable formats where possible.

Done in English and French, the English version being authoritative.

________________
Judge Alphons Orie
Presiding

Dated this 4th day of March 2005
At The Hague
The Netherlands

[Seal of the Tribunal]