Tribunal Criminal Tribunal for the Former Yugoslavia

Page 28862

1 Monday, 2 June 2008

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 2.19 p.m.

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

6 case.

7 THE REGISTRAR: Good afternoon, Your Honours. Good afternoon

8 everyone in and around the courtroom. This is case number IT-04-74-T,

9 the Prosecutor versus Prlic et al. Thank you, Your Honours.

10 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Registrar.

11 Today is Monday, the 2nd of June, 2008. Good afternoon to you the

12 accused, to the Defence counsel, and to the OTP representatives, and to

13 all the people helping us, including the interpreters.

14 You have the floor, Mr. Registrar, because you've got some IC

15 numbers for us.

16 THE REGISTRAR: Thank you, Your Honour. Some parties have

17 submitted lists of documents to be tendered through Witness Sancevic

18 Zdravko. The list submitted by 1D shall be given Exhibit number IC

19 00799. The list submitted by the OTP shall be given Exhibit number IC

20 00800, the list submitted by 3D shall be given Exhibit number IC 00801.

21 Thank you, Your Honours.

22 JUDGE ANTONETTI: [Interpretation] Very well. The Trial Chamber

23 reminds you, but you were informed about this end of last week, this

24 witness whose name I'm not going to mention because he's a protected

25 witness, will be examined-in-chief for four hours and then the same

Page 28863

1 amount of cross-examination by -- there will be six hours for the

2 cross-examination by the Prosecution. The other teams, including the

3 Praljak teams, will have three hours for the cross-examination. The

4 Praljak Defence will not be allowed to tackle new topics during the said

5 cross-examination. Thereafter the witness will be heard as the Praljak

6 Defence witness. The Praljak team will have 15 minutes for the

7 examination-in-chief and redirect. The Prosecution will have 30 minutes.

8 As to the other Defence teams, including the Prlic Defence, they will

9 have 15 minutes. The Prlic Defence team will not be allowed to tackle

10 new topics during cross-examination.

11 So this is what we decided with regard to the witness who is

12 about to testify. I believe that Mr. Karnavas wanted to address the

13 Court.

14 MR. KARNAVAS: Good afternoon, Mr. President; good afternoon,

15 Your Honours. I did wish to address the Court just briefly with respect

16 to the hours that were allocated to us. Given that our hours were cut

17 down to four hours, we would be seeking also under 92 ter to admit the

18 witness's entire testimony during the Naletilic-Martinovic case. That

19 was my -- I just wanted to make that application at this point in time.

20 So it will not only be his statement that he gave to the OTP back in 1996

21 but also his entire testimony. I should note that the -- the

22 cross-examiner in that particular case was none other than Mr. Scott

23 himself, so there should be no prejudice. And also, I should note that

24 we did give notice earlier that in our letter back on 18 May, 2008, that

25 he had testified, reminded them of that. So it's not a surprise and they

Page 28864

1 will not be prejudiced. So that's our application, Your Honour.

2 JUDGE ANTONETTI: [Interpretation] Mr. Karnavas, the prior

3 statement by this witness whose name I'm not going to mention is to be

4 found under 1D 02934. I noted earlier on that the statement was taken in

5 French. In other words, there must be a statement in French. Do you

6 have it or not?

7 MR. KARNAVAS: No, Your Honour. We were provided a statement in

8 English, and we were also provided a statement which was in a redacted

9 form in B/C/S but not in French. And that's why you might notice that

10 we've added some pages that we had our staff translate from English to

11 B/C/S in order for the witness to -- to have that. But that -- maybe the

12 Prosecutor can answer that question.

13 JUDGE ANTONETTI: [Interpretation] Yes. Mr. Scott, you conducted

14 the cross-examination back then in another case. Do we have a French

15 version of the statement?

16 MR. SCOTT: Good afternoon, Mr. President, all of Your Honours,

17 and all those in and around the courtroom.

18 Your Honour, I have not seen one. I have not been aware of it,

19 but we will certainly check immediately to see if one can be identified.

20 Thank you.

21 JUDGE ANTONETTI: [Interpretation] Very well. Well, let's put

22 down the blinds and let's have the witness brought in. We are going to

23 move into closed session, Mr. Registrar.

24 [Closed session]

25 (redacted)

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16 [Open session]

17 THE REGISTRAR: Your Honours, we're back in open session.

18 MR. STEWART: Your Honours, the -- Your Honours will be aware

19 that the Prosecution filed a motion on the 20th of May concerning use of

20 leading questions, attribution of time and so on. The deadline for

21 response to that motion is tomorrow, and I can tell Your Honour at the

22 moment it's contemplated that there will be two responses. There will be

23 a joint response of two teams and then a joint response of four other

24 teams. That's the way it looks at the moment, Your Honour, but certainly

25 there are going to be two separate responses.

Page 28933

1 The -- the Prosecution motion was -- this is about word count,

2 Your Honour, so it's -- that's why it will be a very quick application.

3 The Prosecution motion was 4.126 words. That's just over 1.100

4 words over the limit. We have no problem, no objection with that. No

5 application was made but we're not fussed about that, Your Honour, but

6 what we would like, and I'm making the application for convenience, I've

7 been asked by my learned friends to make this application in relation to

8 both respective responses, we would like to have, please, 4.500 words for

9 each of those two responses. It's 3 or 400 words more than the

10 Prosecution, but I hope Your Honours will feel it doesn't has to be

11 absolutely tied. Sometimes the response takes a little bit more. And so

12 Your Honours, may we -- all the teams, may we have, please, 4.500 words

13 for each of those contemplated responses to be filed tomorrow?

14 [Trial Chamber confers]

15 JUDGE ANTONETTI: [Interpretation] Mr. Stewart, the Trial Chamber

16 is requiring additional explanations. If we understood properly, there's

17 a motion by the Prosecution of 4.126 words, and two groups of Defence

18 teams are going to answer -- or reply, so in one group there will be two

19 Defence teams and then there will be more Defence teams in the other

20 group. Does that mean that you want altogether 9.000 words? That's

21 twice as many as the Prosecution word count.

22 MR. STEWART: Yes, indeed, Your Honour, because the way it's

23 going -- and it looks as if it will be two and four at the moment because

24 I have drafted something for the Petkovic Defence and one of the other

25 teams has indicated that they will support and join our response.

Page 28934

1 There's been another response drafted which looks as if it will be joined

2 by all four other teams. I don't know that 100 per cent certain, but

3 there aren't going to be three responses anyway. There are going to be

4 two. But, Your Honour, the fact is that look at it from our point of

5 view, the Petkovic response with the other team. I have to draft a full

6 and proper response to the Prosecution motion. I'm not splitting it.

7 I'm not doing half a response with the other response coming in as the

8 other half of my response. I have to draft a proper response. I am

9 drafting a response to a motion containing 4.126 words. There's nothing

10 inherently unreasonable about going up to 4.500 words, which is within

11 shouting distance of the Prosecution level, in answering that, and

12 sometimes answering, Your Honours will know without going into detail,

13 sometimes answering an assertion or dealing with a simply expressed point

14 takes a bit more by way of explanation.

15 So Your Honour, we're in the same ballpark with 4.500 words, but

16 the idea that one should aggregate the words in some way for what are in

17 fact entirely separate responses, they're bound to hit some of the same

18 points but to that extent that's less of a problem for the Prosecution

19 after all if they're covering the same points.

20 MR. KHAN: Your Honour, I see my learned friend is on his feet.

21 Just a very brief matter, if my learned friend agrees, and perhaps he can

22 respond to both. It's not, of course, 9.000 words. The Prosecution

23 without leave, and no issue is taken about it, just went a little bit

24 beyond the word limit to 4.000 words. Of course it would be within the

25 right of the Defence, because each accused -- it's one of our points,

Page 28935

1 each accused has the duty to septately represent their client could put

2 in six briefs, six responses of 4.000 words, so Your Honours would have

3 to read 24.000 words. So it really is -- it's our intention for Bruno

4 Stojic to join the Petkovic motion. It simply is an extra 300 words over

5 the motion submitted by my learned friend for the Prosecutor. So it's a

6 very minor matter in my submission. Of course it's a matter for Your

7 Honours to consider.

8 JUDGE ANTONETTI: [Interpretation] Mr. Scott.

9 MR. SCOTT: Thank you, Your Honour. Your Honour, this is one of

10 those issues which I'm sure -- I'm not really sure how much to make an

11 issue to be honest. I don't want to appear petty or counting words too

12 much. Yes, we initially filed a pleading that was 4.126 words.

13 Mr. Stewart came over to me, properly so, no complaints, to ask if we

14 would agree to an additional word limit for the Defence and my immediate

15 response, frankly without even thinking about it was sure, of course,

16 something commensurate with the -- with the amount of words we take.

17 4.100, 44, 4.500 I'll give them the benefit of the doubt. They want 400

18 words more than me, I'll give them extra 400 words, 4.500, but I assumed

19 that's for the Defence as a whole. And I do have to say, Your Honour, I

20 mean that's why I say I'm on -- I'm kind of on the fence about how much

21 to say about this, but there does become a point of some principle

22 involved, and that is it cannot always be the case that the Prosecution

23 gets, you know, to use a round number that we get ten pages and the

24 Defence get 60. Now, it cannot -- that just cannot continue to be the

25 practice. And looking ahead to the final briefs on which the, you know,

Page 28936

1 the Prosecution of course has the burden of proof on all elements of

2 every crime, and I can only guess and I -- well, I should say I can only

3 hope that the Chamber is not going to say that the Prosecution gets 200

4 pages and the Defence gets 1.200 pages. I certainly hope that won't be

5 the case.

6 Well, then we'll have to fight about that if it is, Your Honour.

7 I think -- I think that there's room for compromise here, and my

8 original approach response was fine I don't mind for them having some

9 additional words beyond, but I mean not twice as many words, Your Honour.

10 And I would say further and with great respect to my learned friends on

11 the other side, this is a relatively narrow issue of a few legal

12 principles. Now, with all due respect there can't be that many distinct

13 arguments unless there are factual differences somehow between some

14 position that Petkovic wants to take as opposed to what the Coric Defence

15 wants to says. These are legal procedural issues, and I would say

16 indeed, this is one in which there could very well be and perhaps should

17 be a joint Defence position. We're not talking about factual matters

18 here. We're talking about principles of law. There's only a very few

19 points that can be made. I don't think we need 9.000 pages -- 9.000

20 words, excuse me, to deal with it.

21 JUDGE ANTONETTI: [Interpretation] [Overlapping speakers]

22 MR. STEWART: Your Honour, I must with respect be allowed,

23 somewhat to enter a reply. Yes the conversation went exactly like that.

24 It's not personal, of course, I don't suggest that any counsel is

25 ludicrous but the submission is ludicrous. The -- if the Prosecution had

Page 28937

1 put in a 3.000 word motion within the limit, then after all we are the

2 ones who have actually made the proper application to exceed the word

3 count, unlike the Prosecution. If they put in a 3.000 word motion, we

4 would have been entitled as a right to file six separate responses of

5 3.000 words each without any application for word count and stick 18.000

6 words on poor Mr. Scott and all his team to have to read through. But

7 the simple fact is that we are not obliged to put in joint responses

8 because and it is an essential point. There are six of us, and

9 Ms. Alaburic and I represent our client, and if we wish to draft

10 something in a particular way and we wish to say particular things in a

11 particular way on behalf of Mr. Petkovic, that is our absolute right. Of

12 course we are pleased and it's helpful to the Trial Chamber when it

13 doesn't end up with six of us, but as it turns out, we've got two and

14 four. Those the teams' preferences about how they wish to express

15 themselves, and in these circumstances what we must be allowed with

16 respect is adequate words for us to do our response to the motion that we

17 face, and that's what we're asking for, and judged according to that

18 yardstick, we go back to, actually, what was Mr. Scott's initial entirely

19 reasonable position is 4.500 words in response to a 4.126 motion -- word

20 motion what's the matter with that? The conversation entirely amicable

21 of course as it always is, but I was a bit taken aback to find that we

22 apparently were expected to come up with joint responses all the time

23 when two responses on this issue entirely reasonable approach.

24 [Trial Chamber confers]

25 JUDGE ANTONETTI: [Interpretation] Very well. The Trial Chamber

Page 28938

1 has discussed the issue, and there is a majority decision which is to

2 grant the Defence its application. Therefore, the Defence will be

3 allowed to file a first reply of 4.500 words, the other also bearing the

4 same amount of words. So we grant you the application.

5 MR. STEWART: Thank you very much indeed, Your Honour. It may

6 sound cheeky, but, Your Honour, may we know who are the majority and who

7 are the minority? I do think that is a normal part of a public

8 pronouncement of a public decision. It's always helpful, Your Honour.

9 Judge Prandler's hand is going up. I don't know for what

10 purpose.

11 JUDGE PRANDLER: I'm not afraid of explaining my position on that

12 matter. My position is the following: Were the issue a question which

13 relates separately to the six or four or -- well, no matter what the

14 number of the accused, then of course I would be perfectly agreed to

15 separate answers, but I believe that here we speak about a strictly

16 procedural matter which could be handled in a way together with the very

17 eminent counsel here around us, and that is why I really feel that if we

18 would make a precedent, and we do now make a precedent, that on each case

19 the six Defence teams are entitled to have separately the same, I

20 would -- I do not mind 1.000 or 10.000 words to use on strictly

21 procedural matters, let me underline again. I believe that it would

22 really make our life and your life more difficult so that is why I

23 dissent my position. I was not in a very strictly and very vehemently

24 against it, but I tried to explain, very briefly of course, my position

25 as we seen. Thank you.

Page 28939

1 MR. STEWART: Thank you very much indeed for that explanation,

2 Your Honour. And Your Honours, that's appreciated. Of course I will say

3 nothing at all in response except that I always like 3-0 but I will be

4 happy to take 2-1 when that's on offer. So thank you very much, Your

5 Honours.

6 JUDGE ANTONETTI: [Interpretation] Very well. Let's have the

7 witness brought in unless Mr. Scott wants some certification.

8 MR. SCOTT: No, Your Honour, I'm not going to seek certification

9 on that, but I would pause for a moment and I would invite the Chamber's

10 further attention of that as a matter of continuing deliberation and in

11 terms especially when it comes to the question of final briefs. I do

12 think it's an extremely important point, and on that point if the Chamber

13 were -- I'll just -- I'll be very transparent with the Chamber. If the

14 Chamber were to take the position in the closing briefs, the Defence gets

15 six times as much volume as the Prosecution I will seek certification. I

16 certainly will. So I'm just being -- that's not a threat. I'm just

17 being transparent.

18 Secondly, Your Honour, the Chamber asked -- Mr. President, you

19 asked earlier today that -- whether there was a French version, and as

20 you know the Prosecution always tries to be responsive to the Chamber's

21 request. There is -- there is a French language version of the statement

22 that's been provided to your staff. Thank you.

23 MR. KHAN: And Your Honour, just very briefly with your leave, it

24 is of course premature at this stage, perhaps, although we are being very

25 short, it's premature to talk about closing briefs. No doubt my learned

Page 28940

1 friend in due course can file an application and we will respond at that

2 time.

3 Suffice it to say, however, that it seems inappropriate in effect

4 to penalise the Defence, if my learned friend, was correct for working in

5 a collegiate fashion wherever possible. Of course in the vast majority

6 of cases joint responses have been submitted, whereas an individual right

7 of six accused is individual, and the Prosecution repeatedly are trying

8 to characterise their opposition as one composite defence. Of course

9 that does suit their theory of JCE, but of course it's not the reality

10 that under the Rules, under the Statute, and the position that six

11 individuals are in jeopardy here and they have a right to answer the

12 accusation independently. Of course in the majority of cases the Defence

13 are trying not to waste Your Honours' time and submit joint responses

14 wherever of possible. I'm grateful.

15 JUDGE TRECHSEL: Thank you. Where all speak I can now not remain

16 silent. I must confess that of course it would be convenient and we

17 appreciate when we get one brief for an issue, but on the other hand, I

18 absolutely and very strongly support the right of each Defence team to

19 file what is in the interest of their client. It may be that the

20 interest is the same for all. It may be that it is not. But be it as it

21 may, our comfort and the slimness of the files of reading material on our

22 desk is not really a decisive element. And although we must also -- we

23 have a responsibility to expedite proceedings to the degree possible, it

24 is in my view clearly the second choice of Defence.

25 MR. SCOTT: Thank you. Mr. President, I'm sorry to belabour this

Page 28941

1 further, but I do have to respond to one point Mr. Khan has made and it's

2 not the first time it's been said and I just would like to be able to

3 address it. It would be too optimistic to say once for all, but perhaps.

4 It is not the Prosecution's position, it's never been the

5 Prosecution's that there's some extension of the joint criminal

6 enterprise rationale to treatment of the Defence teams and that we view

7 them all as one single monolithic group. That has never been our

8 position, I suspect it will never be our position, and I would appreciate

9 counsel not characterising it in that way. And if they do in the future,

10 I can say it will be directly contradictory to the representations I've

11 just made to the Chamber just now.

12 MR. KHAN: Well --

13 JUDGE ANTONETTI: [Interpretation] Mr. Khan, we've just spent over

14 20 minutes, at least 2.000 words have been spent on this issue.

15 MR. KHAN: Your Honour, just to say I apologise to my learned

16 friend if there's been any inaccuracy. I'm very grateful for his

17 clarification and it won't be repeated, but I am grateful that he's

18 clarified this issue and it is noted.

19 MR. KARNAVAS: I would be grateful if we could continue.

20 JUDGE ANTONETTI: [Interpretation] Yes. We're going to proceed.

21 Let's move back in closed session.

22 MR. KARNAVAS: Yes. And I would ask, Your Honours, to the extent

23 possible, because this week is rather a tight week, if we could sort of

24 limit the procedural issues that are non-essential. I'm the first one to

25 abuse the process, you know. I stand guilty as charged, but -- but I

Page 28942

1 think that it would be good if we could just proceed without any

2 procedural --

3 [Closed session]

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2 --- Whereupon the hearing adjourned at 7.02 p.m.,

3 to be reconvened on Tuesday, the 3rd day

4 of June, 2008, at 2.15 p.m.