Can a Fast Trial Be a Fair Trial?

The prosecution and defence in the trial of six former Bosnian Croat officials are protesting against strict time constraints imposed by tribunal judges, claiming pressure to meet deadlines imposed by the court’s completion strategy is being given priority over the fairness of proceedings.



The tribunal is due to close its doors in 2010, and all first-instance trials have to be finished by 2008.



The six Bosnian Croats, Jadranko Prlic, Bruno Stojic, Slobodan Praljak, Milivoj Petkovic, Valentin Coric and Berislav Pusic - senior political and military leaders of an unrecognised Croat entity known as “Herceg-Bosna” - face 26 counts of war crimes for the expulsion and murder of Muslims in Bosnia and Hercegovina during the Croatian-Muslim conflict in 1993.



Time restrictions have been a reoccurring feature of this trial since it began on April 26 2006, when presiding judge Jean-Claude Antonetti ordered the prosecution to cut its case to 400 hours from the 450 it requested.



Then on May 8, the judge ordered that for their cross examination of each witness, the defence teams would each have a sixth of the time used by the prosecution for its examination in chief - unless they reached an agreement among themselves to divide the time otherwise.



On November 13, despite vehement protests from both sides of the court, judges slashed the time allowed for the prosecution case by another 107 hours, to allow it to finish by the summer recess of July 2007 - a decision that also impinged on the defence.



The prosecution has appealed the ruling on November 30, saying it violated “the fundamental right of the victims, the prosecution and the international community to a fair trial”.



The defence counsels for Jadranko Prlic, Slobodan Praljak and Berislav Pusic supported the prosecution’s appeal, arguing the cuts were “dictated by the Security Council’s completion strategy”.



“It is not the function of the judges of the tribunal to concern themselves with, much less to implement, political decisions of the Security Council,” said their response.



Since the UN endorsed the tribunal's completion strategy in July 2002, judges have exercised greater control and have implemented reforms in order to speed through trials, and some observers argue that this is causing particular problems to the defence teams.



On September 30, 2003, former tribunal judge David Hunt spoke out against an appeals court decision in the case of former Yugoslav president Slobodan Milosevic, in which he said the completion strategy had “been given priority over the rights of the accused”.



The decision, he said, could permit written evidence to be given instead of live testimony, which went to prove the acts of the accused, where the witness was called to court – a change which has since been incorporated into the tribunal’s rules.



Hunt argued that since the adversarial system of law practiced at the tribunal means statements are prepared by a party to the case - and not by a neutral judicial officer - there was a risk of the statement “placing the best gloss on the evidence which suits that party”.



Michael Karnavas, Prlic’s defence counsel and president of the Association of Defence Counsel, shares these concerns.



“They're turning more and more to the inquisitorial system of trying to introduce more statements instead of live testimony. In some instances, that might be fine, but in others, I don't think it's correct, because you're entitled to challenge the testimony of witnesses, “ he said.



To give judges greater control when the nature of the system means they don’t have access to all the facts could create irreversible problems, he said.



“We’re not dealing with an inquisitorial system where the judges have a dossier containing the universal facts. Instead, we have an adversarial system where the prosecutor has no obligation to search for exculpatory evidence – but only to turn it over if they find it,” he said.



He says the decision to give each defendant in the Prlic trial just one-sixth of the time available to the prosecution to question each witness is irrational and unfair and means evidence is going unchallenged.



“It’s virtually impossible to have adequate time for cross examination of a major witness because you share it with five accused. The notion that the defence can be treated as one is unreasonable, because they all stand charged individually and not collectively,” he said.



He says that while he is impressed at the judges’ ability to manage the courtroom under difficult circumstances - and believes they are striving to find a balance between a fair and expeditious trial - he would prefer seeing a more flexible approach.



“They have to consider whether the areas that the lawyers wish to go into on cross examination are irrelevant or repetitive. If not, you should be entitled to go over it,” he said.



Bozidar Kovacic, defence lawyer of Prlic’s co-accused Slobodan Praljak, agrees.



“The judge should control the proceedings based on the relevance of the questions. There are six accused – if the second accused asks the same question, then he should be rejected,” said Kovacic.



He says the “absurd” practice of dividing up one block of time between six accused, each with his own defence strategy, is causing enormous strain, with lawyers forced to bargain for time.



“If you get more time with one witness, then the next time you’re obliged to give something in return. Everybody is keeping a record,” he said.



The pressure to be fast is creating a stressful atmosphere with lawyers reluctant to raise objections, he says.



“This is creating very strong pressure in the courtroom. Sometimes you have to intervene by all normal rules, but you’re limiting yourself,” he said.



Kovacic believes that if it comes down to a choice between a fast trial and a fair trial then the latter should take priority.



“For the defendants, it’s better to spend one year longer in the court, then life imprisonment after the judgement,” he said.



The defence laywer, who previously represented former Bosnian Croat commander Mario Cerkez in 1999 to 2000, recently came across a transcript of his cross-examination of a witness in that case.



“I approached it step by step, and in the end, I got my answer. That’s unthinkable here. Now you go straight in and you get bitten,” he said.



Kovacic thinks the tribunal judges have a duty to resist external political pressure.



If the rush to complete trials continues, he says, there will have been an opportunity missed.



“One of the primary goals of the tribunal was to develop international criminal law - something that had not been done since Nuremberg - but the work of the tribunal is being influenced so much by the exit strategy that we will have bad results. That’s a pity, really,” he said.



But Goran Sluiter, a professor of international criminal law at the University of Amsterdam, disagrees.



"In general, judges at the tribunal have struck a fair balance between ensuring efficiency of proceedings and the rights of the accused," he said.



Sluiter sees no problem with allowing more use of written statements and testimony to increase efficiency, and argues that the admission of written evidence has actually become more restricted at the tribunal.



He cites the trial of smalltime Bosnian Serb politician Dusko Tadic in 1996 - which saw the admission of certain hearsay evidence allowed by the chamber - and says this would not be permitted now.



Sluiter also believes there is ample opportunity for the defence to challenge evidence.



"The right to cross-examine witnesses is adequately protected at the tribunal - far more than it is in certain civil law systems, such as The Netherlands," he said.



Caroline Tosh is an IWPR reporter at The Hague.