1 Thursday, 20 March 2008

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.26 a.m.

5 JUDGE BONOMY: Good morning, everyone. The delay in sitting was

6 the result of the fact that none of us had seen a copy of the

7 Prosecution's submission, which we've now seen and had an opportunity to

8 read. I think we would be best assisted by hearing, first of all, from

9 the Defence. Is there a spokesperson nominated or are we to hear a

10 number of submissions?

11 MR. O'SULLIVAN: Well, Your Honour, we filed a joint submission,

12 and I can begin and I don't know if any colleagues will want to

13 supplement what I say. This is the submission that you requested on

14 Prosecution interviews of the accused.

15 Your Honour, this matter arose a few days ago and I think now

16 from the submissions we can see the following: The first is our position

17 is that the Prosecution made full submissions in relation to this matter.

18 In fact, they did two things. They took a position that they were --

19 that the statements were offered for limited purposes; and during the

20 course of the trial, as we show in paragraph 6 of your submission, the

21 Prosecution made full submissions on the issue of whether a statement of

22 one accused is admissible against a co-accused.

23 We say there's no misapprehension of the law. The Prlic decision

24 does not change the law. The Rules are there, the submission had been

25 made in other cases as well, and the same submissions were made in our

1 case. That's the Prosecution's position, we say.

2 In addition, one matter that we had a discussion on last week or

3 earlier this week was whether there had been final determination or a

4 decision by this Trial Chamber. We bring to the Chamber's attention the

5 exchange that took place between counsel for Mr. Pavkovic and counsel for

6 Mr. Milutinovic during the first Defence witness, Professor Markovic, on

7 this very issue. We highlight that transcript at paragraph 12 of our

8 filing, where the Chamber said quite clearly that what Pavkovic said in

9 that interview, the OTP interview, "is not evidence against your client.

10 We've made that clear."

11 That is a clear pronouncement, we say, that took place

12 significantly during the testimony of the first Defence witness. That is

13 the position as we understood it. We say that amounts to a ruling, and

14 the trial proceeded on that basis. So the Chamber balanced the interests

15 of the parties, the Chamber was aware of the law, and the Chamber ruled.

16 That is our -- the gist of our submission, which we say is

17 reflected in our written submission.

18 JUDGE BONOMY: The extract you quote from the Appeals Chamber

19 says that: "Should new facts be established during the remainder of the

20 trial, the Trial Chamber having heard the parties is free to revise its

21 own or the Appeals Chamber's previous decision when assessing the

22 entirety of the evidence before it."

23 What do you make of that?

24 MR. O'SULLIVAN: Well, there are no new facts that have arisen.

25 JUDGE BONOMY: Yes, but they may yet do. You're wanting a

1 decision at this stage.

2 MR. O'SULLIVAN: Well, we're at --

3 JUDGE BONOMY: Just an example, if Chamber witnesses deal with

4 any of these issues, it --

5 MR. O'SULLIVAN: That seems to be a --

6 JUDGE BONOMY: There's a difference, I think, Mr. O'Sullivan,

7 between the Trial Chamber making a firm determination and what the

8 Appeals Chamber say about the Prlic approach and what a Trial Chamber

9 might do. One of the disappointing things for us is that if you are

10 correct that the Trial Chamber accepted the Prosecution position, which I

11 think is your ultimate submission in writing here, that what we have done

12 is apply what the Prosecution said their position was.

13 MR. O'SULLIVAN: No, I go beyond that.

14 JUDGE BONOMY: Well, that statement goes beyond that, but that's

15 not what your submission says.

16 MR. O'SULLIVAN: Well, with --

17 JUDGE BONOMY: If you look at paragraph 15.

18 MR. O'SULLIVAN: Well, the Prosecution did make its full

19 submissions, which we reproduced in paragraph 6.

20 JUDGE BONOMY: Yes, but if you read 15 and the end, it says:

21 "The Trial Chamber had told the parties that the statements of the

22 co-accused are not admitted as evidence of the acts, conduct, or mental

23 state of other co-accused."

24 MR. O'SULLIVAN: Yes.

25 JUDGE BONOMY: Now, that seemed to be your distillation of the

1 outcome of these various exchanges.

2 MR. O'SULLIVAN: Well --

3 JUDGE BONOMY: Now, are you withdrawing that and saying it goes

4 further than that?

5 MR. SULLIVAN: No. We're saying that that was the -- I would say

6 that was your determination of the matter.

7 JUDGE BONOMY: Well, in fact, if you are relying on the quotation

8 in paragraph 12, it actually goes further. Now, if what has happened

9 here is that the Trial Chamber has taken a view of the law that

10 ultimately turns out to be wrong, what should it do? Ignore for the

11 moment the role of the Prosecution in creating this situation. If the

12 Trial Chamber get it wrong and a decision of the Appeals Chamber in the

13 course of the case suggests that is the position, what is the law to be

14 applied when the Trial Chamber ultimately makes its decision? Sadly, no

15 one's addressed the legal issues that arise from this in this submission.

16 Can we change our decision or are we bound by the decision we've

17 already made?

18 MR. SULLIVAN: Well, we get to the issue of prejudice to the

19 accused, and we say that the prejudice is manifest when we are told

20 during the testimony of the first not to pursue matters that may be

21 contained in the statements of the co-accused.

22 JUDGE BONOMY: But you might have an even stronger position than

23 that. That position my depend on you actually demonstrating how you've

24 been prejudiced, rather then simply saying, "Oh well, we've been

25 prejudiced. But take a step away from that and go to the earlier stage.

1 Is there no principle of law that applies here before we even get to the

2 question of looking at prejudice?

3 If you're relying on the Prosecution's position alone, then

4 undoubtedly you would require to establish some form of prejudice to seek

5 relief; but if you were to rely on the Trial Chamber having erred in some

6 way, then there might be a principle that assists you.

7 MR. O'SULLIVAN: Well, we say that you exercise your discretion

8 properly.

9 JUDGE BONOMY: Yes, I appreciate that. Essentially, that was

10 your position the other day. This adds nothing to, I think, what was

11 said the other day, except it amplifies the factual background.

12 MR. O'SULLIVAN: Yes.

13 JUDGE BONOMY: And founds on a more specific statement than any

14 of the ones you identified in the oral exchange the other day.

15 There is a rule in here ...

16 [Trial Chamber confers]

17 JUDGE BONOMY: Mr. O'Sullivan, Judge Chowhan has a question for

18 you.

19 JUDGE CHOWHAN: Well, these are legal propositions, and I'm

20 acquainted to these legal propositions. We have the principle of

21 estoppel. An estoppel has various species. One of the species is

22 estoppel in pias. So where by a conduct or by a position taken by

23 someone, the others are led to follow a certain course because of that

24 position. Then the position is whether the person who has taken that

25 position is allowed to alter it. This is one proposition of law.

1 The second thing which bothers me is how can we apply Rule 6(D)

2 to this principle? As a sequel to that, I feel that are we really

3 confronted with a real issue in the sense that is the Prosecution after

4 having set at rest its case is now thinking of using that or is it merely

5 something academic or desire and aspiration.

6 So if it is an aspiration, then we close this chapter; but if it

7 is something they have to used, then, of course, we have to answer by

8 laying a ratio decidendi as to what are the consequences of that position

9 taken by them at the time of the genesis of the trial which started.

10 These questions will have to be then answered. It's like this,

11 that you have a list. As I feel it, and I want to be enlightened on this

12 by the Prosecution itself, I have a list of witnesses and I say I give up

13 these. Can I later say, No, because of a certain change in this, I want

14 to bring them back? It's a similar situation.

15 I mean, the principle, as I see laid down by the Appeals Chamber,

16 in that case is distinguishable from what I see here, and then these

17 legal propositions are to be answered. Then last of all is whether an

18 estoppel in pias can be used in international criminal law, but I don't

19 find any forbiddens. I think, if you would like, you could address us on

20 these matters, and I'm very grateful for your patience.

21 MR. O'SULLIVAN: Thank you, Your Honour. I agree that the

22 Prosecution's position will probably help us decide whether it's a purely

23 academic exercise or not, but we would certainly -- we certainly on our

24 side have been looking along the lines of what Article 6(D) says because

25 that seems to be, by analogy at least, a situation that we're finding

1 ourselves in. The trial proceeded in one way and now there's a question

2 of, Well, has there been a rule change, has there been a difference in

3 the law? We say there hasn't.

4 Assuming people can reasonably say there has been, well, then we

5 have what we say is close to an Article 6(D) by parity of reasoning. I

6 believe you probably cut to the chase, Your Honour, by saying what's the

7 Prosecution's position now on this matter, and it may end the whole

8 affair.

9 JUDGE CHOWHAN: Thank you.

10 JUDGE BONOMY: Mr. Fila, you'll have your opportunity once

11 we've dealt with Mr. O'Sullivan.

12 Where I then need clarification, Mr. O'Sullivan, is the provision

13 in Rule 6(D) is that a change shall not operate to prejudice the rights

14 of the accused. Now, there are two ways of dealing with that: You can

15 either not apply the rule because you think it prejudices the rights or

16 you can apply the rule but grant relief.

17 Which course would be the one to follow?

18 [Defence counsel confer]

19 MR. O'SULLIVAN: Well, it's -- we're in a situation, we say,

20 where you cannot unring the bell. We've moved on from this case. We've

21 heard -- we're up to over a hundred Defence witnesses. Not all of them

22 could have been asked questions about statements of co-accused, but the

23 matter, we say, was met head on when the first witness of the first

24 accused testified. Now, I cannot stand here and say --

25 JUDGE BONOMY: I'm not asking you to deal with the practical

1 implications. I'm asking you to deal with the principle. Are these, in

2 fact, two ways of dealing with a rule change as a matter of law? It's

3 the interpretation of the rule I'm asking about.

4 MR. O'SULLIVAN: Well, you certainly -- the Chamber has

5 discretion to ensure the fair trial.

6 JUDGE BONOMY: Yes. So that's the answer to the question, that

7 we ensure that the trial is fair. All right. Thank you.

8 Mr. Fila.

9 MR. FILA: [Interpretation] Your Honour, I, as usual, have a

10 special view of what you are saying. First of all, I think that your

11 agenda is premature. We are dealing with something that you agreed upon,

12 when speaking to Mr. O'Sullivan, that does not involve any new facts.

13 You, yourself, said what will happen if this crops up on the basis of the

14 future two witnesses.

15 For the moment, the situation was that the other prerequisite was

16 not met, that the Appeals Chamber requires, and that is that new facts

17 have come up. There is no doubt that such facts have not appeared yet,

18 as much O'Sullivan has said. This would be a topic for our agenda, in my

19 view, if after you decide to hear Court witnesses and then we hear new

20 facts, and it is only then that you could apply this decision or not

21 apply this decision.

22 My position is perhaps a bit different, therefore, and that is

23 that it's a bit premature to deal with this topic now. This is what I

24 wish to say, and I do apologise if I took up too much of your time.

25 JUDGE BONOMY: Does any other Defence counsel wish to supplement

1 the submission that's been made? Thank you.

2 Ms. Kravetz, can you assist us further?

3 MS. KRAVETZ: Thank you, Your Honour. I do wish to apologise for

4 the late delivery of our filing this morning. It was just an inadvertent

5 error when the e-mail went out with a courtesy copy.

6 JUDGE BONOMY: Thank you.

7 MS. KRAVETZ: Your Honour, our position is that the Trial Chamber

8 has not made a final determination on this matter. The applicable law

9 here has been stated by the Appeals Chamber in the Prlic decision

10 recently. We are aware that our position during this case has been the

11 position that we have stated in the reply filed in August of 2006. We

12 understand that the Defence, based on the representations that have been

13 made here today, has relied on the assertions made by the Prosecution in

14 relation to the use we intended to give to these suspect interviews when

15 we tendered it into evidence.

16 We are of the view, however, that the Trial Chamber is not bound

17 by the representations made by any of the parties and that the Chamber is

18 bound to apply the law as it currently stands, to apply the law properly,

19 regardless of the representations made by the parties.

20 We recognise that, given the Defence's reliance on our

21 assertions, they could argue that there's an issue of prejudice here

22 involved; and we are of the view, given the late stage that we are at

23 this moment in this trial and in full fairness really to the Defence,

24 that they should be given the opportunity to demonstrate if any prejudice

25 has been incurred due to their reliance on our assertions on the use of

1 these suspect interviews. We will not oppose if any steps are taken to

2 rectify this prejudice, if such prejudice is demonstrated by the Defence.

3 Those are our submissions, Your Honour.

4 JUDGE BONOMY: Let me ask you two questions. Assuming for the

5 moment that the Trial Chamber made a decision consistent with the

6 position the Prosecution took in that response, would that be in keeping

7 with the Appeals Chamber's determination of the law in the Prlic appeal?

8 MS. KRAVETZ: Your Honour, maybe to simplify the matter, I should

9 say that we intend to adhere to the position that we've taken with

10 respect to the use of suspect interview --

11 JUDGE BONOMY: Yes. I'm sorry. You intend to adhere to it?

12 MS. KRAVETZ: Yes, we intend to adhere to it.

13 JUDGE BONOMY: So what are we arguing about?

14 MS. KRAVETZ: Well, our position is that our representations do

15 not bind the Chamber, so that the Chamber can go beyond what we ourselves

16 have stated.

17 JUDGE BONOMY: But you do not seek to do that?

18 MS. KRAVETZ: Not from our perspective, no, because we are acting

19 in fairness to the Defence, and we are aware that we have taken this

20 position throughout the case.

21 JUDGE BONOMY: Mr. O'Sullivan, is there any issue between us,

22 then, if the Trial Chamber were to follow that course?

23 MR. O'SULLIVAN: I don't believe so, Your Honour, no.

24 JUDGE BONOMY: Thank you.

25 [Trial Chamber confers]

1 JUDGE BONOMY: Do you say, Ms. Kravetz, that the Prosecution

2 position is entirely consistent with the Appeals Chamber decision in

3 Prlic?

4 MS. KRAVETZ: No. That's not what I'm saying, Your Honour. What

5 I'm saying --

6 JUDGE BONOMY: Now, Mr. Stamp, when addressing us on the 13th

7 when this issue arose, said: "The law now has been clarified and

8 enunciated quite clearly by the Court of Appeal and we accept that as the

9 law, and we'll submit that that is the approach the Court should take

10 unless a party can show real and concrete prejudice if that approach is

11 taken."

12 Now, your position appears to be different from that.

13 MS. KRAVETZ: Maybe I should clarify the matter. I think there

14 are two separate issues here. One issue is whether the Prlic decision

15 is -- reflects the current state of the law as it stands allow; I think

16 it does or we think it does.

17 JUDGE BONOMY: Yes.

18 MS. KRAVETZ: And we feel that the Trial Chamber is not bound by

19 any representations that have been made by the parties on this matter.

20 The Trial Chamber is free to apply the Prlic decision, if it so wishes,

21 or to stick to what our position has been on this matter during this

22 case.

23 A separate issue is the Prosecution's position with respect to

24 the use we intend to give to these suspect interviews. Since last

25 Thursday, we have given this matter further reflection, and we believe

1 that in fairness to the Defence, given that we have stated this position

2 and have reiterated it during the course of this case and the Defence

3 have indicated that they have relied on the assertions we have made, we

4 do not intend to change or we intend to adhere to the position that we

5 have stated with respect to the use we will give these suspect

6 interviews.

7 That being said, the Chamber, of course, is not bound by that,

8 and what we are basically saying is that if the Chamber wishes to go

9 beyond that, given that we now have a specific decision from the Appeals

10 Chamber stating the clear issue, we don't think the Chamber is bound by

11 the position we have taken.

12 JUDGE BONOMY: Do you, though, envisage a situation where you

13 say, "Well, this is our position as the Prosecution," and we follow that;

14 and then when you get a decision you don't like you say, "Well, it was

15 really the Court's duty to follow the law, and it's our duty as a

16 Prosecutor to raise with the Appeals Chamber that the Trial Chamber

17 didn't actually follow the law. That's our public duty." Do you see

18 that situation arising?

19 MS. KRAVETZ: No, I don't, Your Honour.

20 JUDGE BONOMY: So the Prosecution is saying that you will not be

21 critical of the Trial Chamber if it follows the course that you suggest

22 is the appropriate course for the Prosecution here in its interpretation

23 here of the law on the admissibility of statements of one accused who's

24 not a witness against another?

25 MS. KRAVETZ: The Trial Chamber has discretion to interpret the

1 law, obviously, so that is a matter for the Trial Chamber to decide the

2 scope of --

3 JUDGE BONOMY: Yes, but --

4 MS. KRAVETZ: -- the applicability of these statements.

5 [Trial Chamber confers]

6 JUDGE CHOWHAN: Would you like to take any position on 6(D) or

7 not?

8 MS. KRAVETZ: I don't think it's relevant to the matter at issue.

9 [Trial Chamber confers]

10 JUDGE BONOMY: For the next stage of this hearing, we shall go

11 into private session.

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20 [Open session]

21 THE REGISTRAR: We are in open session, Your Honours.

22 JUDGE BONOMY: Thank you.

23 We thank everyone for your patience. I regret to say we have not

24 finally resolved either matter. We're close to doing so and we'll issue

25 our determination of both issues; at least, we shall issue a decision in

1 writing. It may be confined to the first issue. It may not be necessary

2 for us to deal specifically with the second one; that will depend on the

3 position that we ultimately take. But that decision will be issued

4 fairly soon. It will certainly be issued no later than the resumption of

5 sittings at the beginning of April, but it probably be earlier than that.

6 That then concludes our sitting for today, and we will resume on

7 Tuesday, the 1st of April, in this courtroom at 9.00, when we hope

8 everyone will return fit and well for the final stages of the trial.

9 --- Whereupon the hearing adjourned at 12.23 p.m.,

10 to be reconvened on Tuesday, the 1st day of

11 April, 2008, at 9.00 a.m.

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