UNITED NATIONS

International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of former Yugoslavia since 1991

IT-95-5/18-T D62232 - D62227 25 April 2012

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TR

Case No.

IT-95-5/18-T

Date:

25 April 2012

IN TRIAL CHAMBER III

Before:

Judge O-Gon Kwon, Presiding Judge Howard Morrison Judge Melville Baird Judge Flavia Lattanzi, Reserve Judge Mr John Hocking THE PROSECUTOR v. RADOVAN KARAD@I]

Registrar:

PUBLIC
PROSECUTIONS RESPONSE TO KARAD@I]S SUBMISSION ON COMMENCEMENT OF DEFENCE CASE

The Office of the Prosecutor:

Mr Alan Tieger Ms Hildegard Uertz-Retzlaff The Accused:

Standby Counsel:

Mr Radovan Karad`i}

Mr Richard Harvey

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THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA

Case No. IT-95-5/18-T

THE PROSECUTOR v. RADOVAN KARADI]

PUBLIC
PROSECUTIONS RESPONSE TO KARAD@I]S SUBMISSION ON COMMENCEMENT OF DEFENCE CASE

I. 1.

Introduction The Prosecution notes the Accuseds submission on the timing of the commencement of the Defence case.1 The Prosecution does not take a specific position on the appropriate timing. However, as detailed below, the Accuseds request for the Defence case to commence in March 2013 is grounded upon assertions based largely on misconceptions and mischaracterizations. The Prosecution has responded to these assertions in an effort to assist the Trial Chamber in determining the appropriate timing for the commencement of the Defence case.

II.

Discussion

The Accused Erroneously Interprets the Equality of Arms Principle 2. The equality of arms principle does not require that the Accused be permitted to present a case of equal scope to that of the Prosecution, and that he be provided with the time he feels is necessary to prepare such a case. 3. In his Submission, the Accused refers to the number of Prosecution witnesses and exhibits in this case, then asserts that he plans an equally robust defence

Prosecutor v. Karad`i}, Case No. IT-95-5/18-T, Accuseds Submission on Commencement of Defence Case, 11 April 2012 (Submission). As the Submission requests specific relief, the Prosecution considers the Submission to constitute a motion within the meaning of the Rules of Procedure and Evidence and Practice Directions, and responds accordingly.

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case.2 He claims that he intends to call a similar number of witnesses and that the equality of arms principle requires that he be given time to prepare for a Defence case of this scope.3 4. The equality of arms principle requires that neither party is put at a disadvantage when presenting its case;4 this does not mean that the parties must be provided with equal time and facilities.5 As only the Prosecution has the burden of telling an entire story, putting together a coherent narrative and proving every necessary element of the crimes charged beyond a reasonable doubt, a strict principle of mathematical equality is generally not the appropriate manner of determining the time and witnesses to be allocated to the two sides, and is not mandated by the equality of arms principle.6 The Accused erroneously suggests that it is. The Accused Improperly Asserts that the Chambers Prior Decisions are Unfair 5. The Accused makes unsubstantiated assertions that the Chamber has been unfair to him by granting him insufficient periods of adjournment. The fact that the Accused disagrees with prior decisions of the Chamber does not imply that the fairness of this trial has suffered, nor do they excuse any failure by the Accused to properly prepare to present his case. 6. The Accused claims that, in granting prior adjournments for the Defence to review newly-disclosed material, the Chamber consistently provided for less time than needed and ordered the defence to prioritize its review of the material.7 The Accused cites five prior decisions of the Chamber in support of this assertion.8 In none of those decisions did the Chamber state that it was granting the Accused less time than necessary to review the material, or ordered him to prioritize his review of the material in question. To the contrary, in each of these decisions, the Chamber granted the Accused a period

Submission, paras.2-6. Submission, para.18. 4 Prosecutor v. Ori}, Case No. IT-03-68-AR73.2, Interlocutory Decision on Length of Defence Case, 20 July 2005 (Ori} AC Decision), para.7. 5 Ori} AC Decision, para.7; Prosecutor v. Naletili} and Martinovi}, Case No. IT-98-34-PT, Decision on the Accused Naletili}s Motion to Continue Trial Date, 31 August 2001, para.7. 6 Ori} AC Decision, para.7. 7 Submission, para.9. 8 Submission, para.9, fn.2.
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of adjournment ranging between one week and six weeks that the Chamber determined would allow the Accused sufficient time to review the material. As the Chamber has noted, it has actively taken steps throughout the proceedings to protect the Accuseds fair trial rights by ensuring that the Accused has sufficient time to review newly-disclosed material.9 7. With no basis, the Accused now improperly suggests that these decisions provided for less time than needed, and that this unfairness has meant that he has had no time to conduct any preparation of the Defence case. 8. In a similar vein, the Accused has no proper basis to claim that the Chambers decision denying the Accused an adjournment prior to the commencement of the Srebrenica component of the case diminished the fairness of the trial and the ability of the Defence team to prepare to present its case.10 The Accuseds Inefficient use of Resources 9. The Submission indicates that the Accused has failed to efficiently allocate his resources. For example, the Accused claims that very little has been done to identify and interview potential defence witnesses.11 However, as the Prosecution has previously noted, the Accused has spent significant resources on matters peripherally relevant to his case.12 This practice continues.13 10. In addition, the Accused asserts that he must interview each of the approximately 600 persons on his list of potential witnesses for the Sarajevo, hostages and municipalities components; he bases his calculations for the commencement of his case on this premise.14 Aside from the question of whether or not it is realistic for the Accused to ground his Submission on an expectation of conducting 600 interviews of potential witnesses in relation to three of the four components of this case, the Accused has based his Rule 66(B) requests with respect to these same potential witnesses on the claim that
Prosecutor v. Karad`i}, Case No. IT-95-5/18-T, Decision on Accuseds Motion for Suspension of Proceedings Prior to Start of Srebrenica Evidence, 22 November 2011, para.15. 10 Submission, para.10. 11 Submission, para.11. 12 See, Prosecutor v. Karad`i}, Case No. IT-95-5/18-T, Prosecution Response to Motion for Suspension of Proceedings Prior to Srebrenica Evidence, 14 November 2011, paras.13-14. 13 See, e.g., Prosecutor v. Karad`i}, Case No. IT-95-5/18-T, Motion for Subpoena to Interview General Vladimir Zagorec, 10 January 2012; para.10; Prosecutor v. Karad`i}, Case No. IT-95-5/18-T, Motion to Report Germany to the United Nations Security Council, 24 January 2012. 14 Submission, paras.11,14.
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the material is necessary information for the Accused to select the witnesses to call in his Defence case.15 As such, the material the Prosecution has been providing in response to these requests which includes interviews and transcripts for many of his potential witnesses should allow the Accused to eliminate at least some of these potential witnesses, without having to interview them. 11. In any event, the Submission understates the actual resources available to the Accused.16 Whatever the size of his official Defence team, it is clear that the Accused benefits from the assistance of a much larger team.17 The Accused Improperly Seeks a Remedy from the Trial Chamber in relation to a Decision by the President 12. The Accused asserts that, because the President recognized that the Accused has been provided with inadequate resources during the Prosecution case, the Trial Chamber should assist in remedying this problem by providing the Accused the time he has requested to prepare his case.18 There is no proper basis for the Accused to claim a remedy from the Trial Chamber in relation to litigation between the Accused and the Registry, on which the President has issued a decision.19 In any event, according to the Accuseds own Submission, he has been granted a full remedy by the Presidents decision which has allocated to him 5000 retroactive hours of Defence time.20 The Accuseds claim that there is some continuing unfairness that the Trial Chamber should remedy is unfounded. The Accuseds Comparisons with other Cases are Unhelpful 13. The Accused bases his Submission in part on comparisons with other cases. Given the numerous case-specific factors that impact upon a given Trial

See, Prosecutor v. Karad`i}, Case No. IT-95-5/18-T, Motion to Compel Inspection of Items Material to the Sarajevo Defence Case, para.2; Prosecutor v. Karad`i}, Case No. IT-95-5/18-T, Motion to Compel Inspection of Items Material to the Municipalities Defence Case, para.2. 16 Submission, para.7. 17 See, Prosecutor v. Karad`i}, Case No. IT-95-5/18-T, Prosecutions Response to Karad`i} Motion for Fourth Suspension of Proceedings, 8 February 2011, para.11, fn.12. 18 Submission, para.17. 19 Prosecutor v. Karad`i}, Case No. IT-95-5/18-T, Decision on Request for Review of Decision on Defence Team Funding, 31 January 2012. 20 Submission, para.12.

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Chambers assessment of these matters, such comparisons are unhelpful. For example, in the Tolimir case referenced in the Submission the Trial Chambers scheduling decision was based on a number of case-specific factors, including the fact that the Accused in that case does not speak English and on the time needed to translate Defence material.21 In any event, the Accuseds suggestion that the Tolimir Trial Chamber granted the Defence a four-month adjournment in response to the Tolimir Defences announcement that it intended to call four witnesses mischaracterizes the facts.22 In fact, the Tolimir Defence announced its intention to call only four witnesses after the Chamber granted a four-month adjournment.23 Conclusion 14. As noted above, the Prosecution does not take a specific position on when the Defence case should commence. However, the mischaracterizations contained in the Submission call into question the Accuseds overall assertion that the Defence case should not start until March 2013.

Word Count: 1588 ____________________ Hildegard Uertz-Retzlaff Senior Trial Attorney Dated this 25th day of April 2012 At The Hague, The Netherlands.

Prosecutor v. Tolimir, Case No. IT-05-88/2-T, Order Regarding the Scheduling of the Defence Case and Related Matters, 20 September 2011 (Tolimir Order). 22 The Accused asserts that In the Tolimir case, where the defence announced an intention to call only four witnesses, the accused was granted a four month adjournment to prepare his defence. (Submission, para.19). 23 Tolimir Order, p.1 (stating that the Defence had indicated that it would need about a month to present its case, and referencing T.17788-17789 at which the Tolimir Defence stated, we still have to establish the number of witnesses).

21

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