1 Friday, 1st August 1997.
2 (9.30 am).
3 JUDGE JORDA: Please be seated. Registrar, would you have
4 the accused brought in, please?
5 (The accused was brought in).
6 Mr. Aleksovki, would you please be seated. Please
7 put your headset on and, anyway, first I would like to
8 know everybody hears me. Does the Prosecution hear me?
9 Fine. Does the Defence hear? Mr. Aleksovki do you hear
10 in your own language? Are things being interpreted into
11 your language? Fine. Then before we begin the hearing,
12 I would like to have the appearances for the Prosecution
13 and the Defence. Mr. Niemann?
14 MR. NIEMANN: Thank you, your Honour. My name is Niemann
15 and I appear with Mr. colleges Mr. Meddegoda and
16 Mr. Marchesiello. I am assisted at the bar table by Ms.
18 JUDGE JORDA: And the appearances for the Defence please?
19 MR. MIKULICIC: Your Honour, my name is Mikulicic. I am
20 defence counsel for the accused Zlatko Aleksovki.
21 JUDGE JORDA: Thank you. This morning, during the hearing,
22 we have to review three, but actually four motions.
23 There is a motion from the Prosecutor on the collecting
24 of certain depositions, another motion from the
25 Prosecutor on the protection of witnesses, of certain
2 with defects in the form of the indictment and the other
3 a request for a separation of proceedings.
4 I think the best thing would be to take them
5 chronologically, if you have no problem with that.
6 I see that they were prosecution motions having to do
7 with depositions that were filed on 5th June. Then
8 there was the motion of the Prosecutor for the
9 protection of witnesses and victims on 13th June and the
10 Defence filed on 19th June, two motions which were put
11 together in one motion, one dealing with the defects in
12 the form of the indictment, and the other the separation
13 of proceedings.
14 If the parties agree, I suggest that we just begin
15 by -- begin with the oldest one, oldest one,
16 chronologically, 5th June, dealing with certain
17 depositions from the Prosecution, specifically those
18 relating to the Blaskic case. You did not ask for in
19 camera here, Mr. Niemann; is that correct? You did not
20 request in camera for that part of the motion.
21 MR. NIEMANN: No, your Honours. It occurred to us that the
22 proceedings could proceed in public unless, of course,
23 it got into a discussion of the particular witnesses
24 involved. In that event we might ask that the sound
25 that goes outside of the courtroom be turned off if that
2 JUDGE JORDA: That is fine. Excuse me, Mr. Niemann,
3 I forgot to tell you that you have the floor.
4 MR. NIEMANN: Thank you, your Honour. Your Honours, I am
5 not aware of whether or not there is to be a great deal
6 of opposition to this motion from the Defence. In the
7 event that there is not opposition from it then we rely
8 on our written submissions that we have already tendered
9 in the motion itself. Perhaps just dealing very briefly
10 with the matter, the Prosecution brings this motion
11 essentially on two bases, one in order to relieve the
12 difficulty associated with bringing witnesses twice to
13 The Hague, and what we say is inconvenience and trauma
14 associated to witnesses on having to testify on two
15 occasions, if it can be resolved by the parties to take
16 their evidence by way of deposition.
17 We submit, your Honours, that deposition evidence
18 in these circumstances would overcome that necessity.
19 Secondly, your Honours, we see it as a means by which we
20 can proceed with taking evidence in preparation for
21 trial, and hence as a means of expediting the
22 proceedings and hopefully ensuring that the trial
23 itself, should there be no contest, or significant
24 contest, in relation to the evidence which needs to be
25 resolved before The Chamber, would considerably
2 which would take place if we simply waited until the
3 trial proper.
4 It is on those bases that in our submission it is
5 appropriate that an order be granted that deposition
6 evidence be obtained from the witnesses. There is
7 considerable discussion, I think, necessary on the
8 actual procedure which would take place before the
9 Registrar. It is a matter upon which I would wish to
10 expand, depending on the approach that your Honours take
11 to the matter. But, having regard to the fact that we
12 have set, in some detail, the bases of our motion, in
13 our -- the basis of our argument in the motion, might
14 I invite my friend from the Defence to express his
15 position on it? And then perhaps I can expand in reply
16 on the matters that he would wish to raise at this
18 JUDGE JORDA: Mr. Mikulicic, I know that you have read the
19 Prosecutor's motion. You heard the explanations that
20 had to be brief because the Prosecutor is prepared to
21 discuss the issue with you. First we have to know
22 whether in principle you agree, and then of course to
23 see whether in a private session we might come to an
24 agreement. I read your writings, and I believe that
25 I understood that you did not object to the principle,
2 I must say that I did not really understand everything
3 that you meant, specifically in addendum 2. I think
4 this is the proper time for you to explain what you
5 meant, first in regard to the principle what you think
6 about this in terms of accelerating the proceedings.
7 You know this Tribunal, and specifically this Trial
8 Chamber is very interested in having speedy trials, and
9 therefore would like to know what your opinion is,
10 Mr. Mikulicic, both on the principle and the methods to
11 be used. First speak about the principle. And I give
12 you the floor now.
13 MR. MIKULICIC: Thank you, your Honours. On the part of the
14 Defence, I can say, in the first place, that we, too,
15 are eager to expedite the proceedings, as you have just
16 indicated. Therefore, any motion, any measure that may
17 be taken by this court which is in the interest of
18 expediting the proceedings and is not to the detriment
19 of the interests of my client will always meet with our
20 support and understanding.
21 Speaking in principle, as we had indicated at the
22 last status conference, the Defence, in principle, is
23 not opposed to certain witnesses who will be coming to
24 The Hague to testify in the Blaskic case, and who might
25 also appear in this case, should make a deposition
2 principle, the Defence is agreeable to the proposal of
3 the Prosecutor in that sense.
4 In our submission, -- in their submission of 5th
5 June, 1997 my learned colleague, the Prosecutor, on page
6 7 of his motion, under B to F has specified certain
7 circumstances and conditions within which such a
8 deposition would be taken from witnesses. If I may be
9 allowed, I should like to comment briefly on those
11 Regarding point B, the Defence agrees. Regarding
12 point C, the Defence would prefer that this 7 days
13 notice could be extended to make it longer. Therefore,
14 the Defence would prefer if it could be given notice of
15 the Prosecutor's intention to take a deposition from a
16 specified witness 14 days ahead of that deposition.
17 Regarding point D, the Defence is also agreeable.
18 Regarding point E, we also have no opposition to it, as
19 well as regarding point F, we have no objections. So
20 much about the motion of the Prosecution.
21 Have I made myself clear now? If necessary I am
22 at your disposal for additional clarifications.
23 JUDGE JORDA: Mr. Mikulicic, thank you. Therefore, we will
24 say that you agree on principle and as well as the
25 methods concerning the six points mentioned by the
2 floor again?
3 MR. NIEMANN: Yes, briefly your Honour, certainly we have no
4 problem with 14 days notice, if that is of more
5 assistance to the Defence. I think we should have no
6 difficulty in complying with that. So, it can be that
7 just noted as part of your Honours orders should your
8 Honours decide in favour of the motion. Alternatively
9 we could amend our motion if that makes it more
10 convenient to the court to read 14 rather than 7 days.
11 JUDGE JORDA: I think that we are moving forward. The
12 principle is that both parties agree. This does not
13 require a decision. The Registrar will simply put it in
14 the transcript, and we will set these methods to be used
15 in an order that we will give. In the transcript, we
16 will state that there were agreements on points A, B,
17 modified C, with the 14 days advance notice, D, E and F,
18 that there is total agreement. Yet, I would like to go
19 to the very end of things. If I have understood you
20 properly so Mr. Mikulicic and everybody understands one
21 another, in your response dated 18th June, apparently
22 you made comments about two witnesses. If I have
23 understood you correctly, this is no longer relevant,
24 and there were 7 or 8 witnesses that were mentioned by
25 the Prosecutor. I am not going to mention their names,
2 are 8 witnesses.
3 Let me repeat the two questions. One the question
4 for the Prosecutor, there are 8 witnesses not 7. I want
5 to know if we agree on that. I would like to go back,
6 so we finish with this issue, I would like to go back to
7 your answer. I did not quite understand. Apparently
8 you had certain reservations about two witnesses,
9 I think that is what it was. I will not of course give
10 their names, so I cannot specify them any more than
11 that. Perhaps we could assign a number to them, perhaps
12 that might be witness number 1 and witness number 5.
13 But I am not quite sure I understood what your
14 reservation is. Perhaps you have waived something and
15 it is no longer valid. Mr. Mikulicic, could you explain
16 yourself further on this issue, please?
17 MR. MIKULICIC: Thank you, your Honours. My reservation has
18 to do with the two witnesses that you have mentioned,
19 insofar as the documents disclosed by the Prosecutor did
20 not include the statements of those witnesses. However,
21 this has been remedied, and the Prosecutor has provided
22 us with these two statements, so that that objection no
23 longer stands.
24 If I may make just one further additional point.
25 In the Prosecutor's motion that we are talking about,
2 apologise in advance if I was not careful enough in
3 studying it, I did not identify the position of the
4 Prosecutor regarding the presence of the accused during
5 the taking of the depositions. It is the position of
6 the Defence that the accused should also be present in
7 addition to the Prosecution and the Defence when these
8 depositions are being taken.
9 JUDGE JORDA: Mr. Niemann?
10 MR. NIEMANN: Yes, certainly the Prosecution would wish that
11 the accused be present, your Honour.
12 JUDGE JORDA: All right then, in the minutes or in the
13 transcript we will say we can confirm the methods to be
14 used. But we confirm that the accused be present.
15 Before we complete our discussion of this motion there
16 was another point, there was the measures asked of the
17 Tribunal, that of this witness you do not want the name
18 revealed either to the public or the media. I suppose
19 that the Defence agrees with that point?
20 MR. MIKULICIC: Yes, with respect to these witnesses listed
21 individually, the Defence has no objection.
22 JUDGE JORDA: Fine. Let me turn to each of my colleagues
23 to see whether they have any comments or observations
24 they wish to make, or remind me of something I may have
25 forgotten. Fine. The motion is settled. This will not
2 expedite the proceedings. We will not render a decision
3 specific to this subject.
4 However, when the Prosecution is ready, perhaps
5 Mr. Niemann could -- we are not going to render a
6 decision specifically related to this. This will be
7 noted in the minutes of the Registry, but when you are
8 ready, Mr. Niemann, you will inform the Registry who will
9 ask, and here I think I can say this under Rule 54, will
10 render an order which will define the more specific
11 methods to be used for the deposition. Do we agree on
13 MR. NIEMANN: Yes.
14 JUDGE JORDA: Fine. Then if there are no other comments,
15 as I said, we can move to the second motion, following
16 the same chronology. This is also from the Prosecutor
17 on the motion to protect victims and witnesses. This
18 was a motion dated 13th June, which was answered by
19 Mr. Mikulicic on 10th July. Mr. Niemann?
20 MR. NIEMANN: Again, your Honour, this motion deals with the
21 issue of disclosure beyond that which is necessary for
22 the Defence to prepare their case, and is designed, in
23 our submission, to ensure that witnesses' names are not
24 in the public domain, or published in newspapers, and of
25 that sort of publication, which we say is not in the
2 expressly directed to that end. It is not in any way
3 suggested to deal with the ability of the Defence to
4 proceed to obtain evidence in reply to the Prosecution
6 Your Honours, I think, as we understand it, the
7 main area of concern that the Defence had with our
8 motion in this regard related to the question of the
9 specification of the witnesses themselves, in terms of
10 names and/or other descriptions applicable to them.
11 That has been remedied. Our original motion was of a
12 general nature and related to all witnesses. The
13 Defence position on that was they should at least know
14 who it is that we are referring to. That, your Honours,
15 has been resolved. We have now provided the Defence,
16 Mr. Mikulicic, with a list of all the witnesses to whom
17 we are referring and to what this particular motion
18 applies. I have provided that list to Mr. Mikulicic this
19 morning. It is a letter addressed to him, but if The
20 Chamber would be assisted by seeing this list and our
21 covering letter, and if Mr. Mikulicic has no objection to
22 it I am happy to hand that to The Chamber for your
23 assistance. I see Mr. Mikulicic has no objection to it,
24 so perhaps I might hand to your Honours a copy of the
25 letter that we gave to him this morning, which sets out
2 statements were to -- the date that the statements were
3 disclosed to him. It is in respect of those particular
4 witnesses mentioned there, on the attached list, to whom
5 we are referring.
6 Your Honours, I should just state at this stage
7 that it is possible that further witnesses may come to
8 light. We are not expecting very many, but it is
9 possible that further witnesses may come to light. In
10 that event we will raise the matter with Mr. Mikulicic,
11 and if agreement cannot be obtained, then we will file a
12 separate motion in relation to those specified
14 Your Honours, I do not think, at this stage, I am
15 aware of any other objection to the Prosecution motion.
16 As I say, it is not a motion for anonymity, it is a
17 motion designed to protect the names of the witnesses
18 being put into the public domain. As I understand
19 Mr. Mikulicic's position he has no objection to that.
20 I think that the specification of the names may have
21 resolved any objection he had. I might leave my
22 submission at this stage until we hear further from
23 Mr. Mikulicic on the matter.
24 JUDGE JORDA: Yes, Mr. Niemann, just one moment, please.
25 Perhaps it is a translation problem. On page 3 in the
2 also be in the English version it says that the
3 Prosecutor respectfully requests The Chamber to grant
4 the following request. There is a first but there is no
5 second, you see. I think that the -- is this one which
6 sort of was put into -- came out of the computer
7 somewhat miraculously. Or was there a second request?
8 MR. NIEMANN: There is no second request. I apologise your
10 JUDGE JORDA: That is all right. Let me turn to
11 Mr. Mikulicic. If I understood you correctly, your
12 comments that were expressed on 10th July specifically
13 related to identifying elements which were not given to
14 you. In principle you were in agreement. I would like
15 to ask you, Mr. Mikulicic, whether you confirm what has
16 just been said, ever since you have received this
17 identifying information?
18 MR. MIKULICIC: Your Honour, that was our main concern. The
19 Defence was, in principle, opposed to the Prosecutor's
20 motion for protection measures, regarding witnesses and
21 for their names not to be disclosed to the public
22 without indicating which witnesses they supplied to.
23 And the Defence understood the Prosecutor's request as
24 being in the bonam partem and felt such bonam partem
25 motion is not in accord with the rules of procedure of
2 need -- on the need for learning of identification
3 information regarding the witnesses concerned.
4 I can confirm that this morning I received from
5 Mr. Niemann a list of the witnesses concerned, to whom
6 this proposal applies. The Defence has no objection to
7 these witnesses from the list being covered by the
8 measures proposed by the Prosecution, that is that their
9 names are not released in the public domain at this
10 stage of the proceedings. Thank you.
11 JUDGE JORDA: We will take note of this agreement. We are
12 not going to draft a decision. Everybody agrees, but it
13 will be indicated in the Registry's minutes. But the
14 Tribunal will render an order on the protective
15 measures, which will be taken at the request of the
17 If my colleagues have no questions, Judge Riad,
18 Judge Shahabuddeen, if they do not we can move on to the
19 third fourth motions which are put together by the
20 Defence as part of the writings dated 18th June, dealing
21 with the defects, and the form of the indictment, and a
22 request for separation of proceedings.
23 Mr. Mikulicic, by the way I want to go backward
24 just a little bit. I have a terminology question,
25 because our Tribunal is using a lot of Latin and you
2 What is bonam partem. What do you mean by that? What
3 does it mean bonam partem?
4 MR. MIKULICIC: I use this Latin term in order to describe
5 good procedural rules, only for that purpose. I do not
6 know if that is clear.
7 JUDGE JORDA: Yes. All right, we can now back to your own
8 motion, Mr. Mikulicic. I give you the floor. There is
9 the separation of proceedings and the question of the
10 defects in the form of the indictment which you have
11 alleged as to that indictment, 19th June, and the
12 response of the Prosecutor. All right, I give you the
13 floor, Mr. Mikulicic.
14 MR. MIKULICIC: Thank you, your Honours. Allow me to start
15 from the second motion, that is the motion for a
16 separation of trial, because I believe that no further
17 argument will be required after this, since my learned
18 colleague, Mr. Niemann, in his submission, has agreed
19 with the proposal of the Defence for a separate trial.
20 Therefore, I think that we are in agreement as far
21 as that is concerned, and I therefore propose that if
22 necessary Mr. Niemann could make his comment and then we
23 can go on to the defect in the form of the indictment.
24 JUDGE JORDA: Yes, Mr. Niemann?
25 MR. NIEMANN: Mr. Mikulicic is quite right. We raise no
2 JUDGE JORDA: All right. Therefore, the Registry's notes
3 will note that, that there will be separate trials.
4 Mr. Mikulicic, as regards the fourth request, dealing
5 with the defects in the form of the indictment.
6 MR. MIKULICIC: Thank you. Regarding this motion, I should
7 like to remind your Honours of the motion of the Defence
8 of the 19th June, when the Defence sought, as concisely
9 as possible, to indicate certain defects in the
10 indictment as it sees them.
11 I still stand by the objections presented in my
12 motion in writing as regards the actual form of the
13 indictment, but as a brief reminder let me just say a
14 few words.
15 The main objections of the Defence regarding the
16 form of the indictment have to do, actually, with
17 several points. The first remark or the first objection
18 in the view of the Defence is that in the text of the
19 indictment, and I am referring to paragraph 31, on page
20 8 of the indictment, of the 13th November, 1995, no
21 indication is given of the place, time, persons and
22 manner of the execution of the alleged crimes, which
23 should be the object of this trial. And further to
24 that, it is the submission of the Defence that no
25 detailed description has been given of any criminal
2 In view of such a form of the indictment, the
3 Defence feels that the accused is unable to prepare his
4 defence because he is not fully aware of the facts of
5 the indictment. A further objection of the Defence has
6 to do, in the submission of the Defence, with the
7 imprecision in the definition of the key notions, that
8 is the notion of the actual facility Kaonik, and the
9 notion of the function that the accused performed in
10 that facility. In the supporting materials to the
11 indictment, this Kaonik facility is described in various
12 ways. Once it is referred to as a camp, then as a
13 prison, then again as a detention camp, and there is no
14 need to list any further descriptions. The same applies
16 JUDGE JORDA: Where are you referring to, what paragraph?
17 MR. MIKULICIC: I am talking about chapter 31.
18 JUDGE JORDA: Thank you.
19 MR. MIKULICIC: Similarly, in the supporting materials, and
20 that is not reflected in the indictment itself, the
21 status of the accused is also defined in different
22 ways. In this connection, we come to the third section
23 of our objections, and that is the question of the
24 mental state of the accused in relation to the alleged
25 crimes. In the submission of the Defence, it is our
2 subjective position of the accused or rather the form of
3 his culpability. Does the indictment refer to direct
4 negligence, or possible, dolus directus or dolus
5 eventualis? Does it indicate negligentia, or culpa, or
6 mental state?
7 I do not wish to tire you with the details,
8 because it is all contained in my motion, and the
9 Defence proposes to this Trial Chamber that in view of
10 the objections expressed with respect to the indictment,
11 which the Defence considers to be defects in form, the
12 proposal to the Trial Chamber is that in accordance with
13 the submission of the Defence it issues orders to the
14 Prosecution to amend the indictment accordingly. That
15 would be my submission, thank you.
16 JUDGE JORDA: This is a question I would like to ask,
17 Mr. Mikulicic. What do you mean by the subjective
18 relationship? Are you talking about the mens rea.
19 MR. MIKULICIC: When talking about the subjective attitude
20 of the accused towards the crime, I am referring to the
21 form of his guilt. And we find that the indictment has
22 not specified that, as I have just explained. I do not
23 know whether I have made myself clear.
24 JUDGE JORDA: We now must ask the Prosecutor, since it has
25 heard the requests of the Defence asking for a
2 the definition of the form of guilt, what the Defence
3 refers to as the subjective relationship, in relation to
4 the alleged crimes, and more important specifications as
5 to time and place. Mr. Niemann?
6 MR. NIEMANN: Thank you, your Honours. Your Honours, I will
7 make a few observations concerning Mr. Mikulicic's
8 submissions, and then I might ask my colleague,
9 Mr. Meddegoda, if he wishes to add further to that, your
10 Honours. Your Honours, firstly, I would like to deal
11 with what the indictment itself does say. I think that
12 is illustrative, and assists in determining this
13 question. Firstly, in paragraph 7, the indictment tells
14 us who it is that is charged and gives a description of
15 the person. That is a description not only in relation
16 to family, but to where he comes from, and gives a brief
17 recital of his previous positions held by him and, in
18 our submission, puts the accused, Mr. Aleksovki, into the
19 context of the indictment, and then goes on and says
20 that in 29th January 1993 he left his previous position
21 and became commander of a prison facility at Kaonik near
23 Your Honours, in our submission, that is very
24 precise in its statement as to what the position held
25 is. It is very precise as to the location of the place
2 committed the crimes with which he is charged. It then
3 goes on to deal with where he was after that particular
4 period, from January 29th 1993, until May 1993. It
5 describes him as becoming the head of the district HVO
6 in the Heliodrome Prison in Mostar.
7 Your Honours, we have there, in our submission, a
8 number of things. We have a precise description of who
9 the accused is in terms of his name and his previous
10 employment and positions. We have a precise description
11 of where he was at times relevant for the indictment.
12 Now, your Honours, in paragraph 20 and 21, this is
13 expanded and added to. Again, we have Mr. Aleksovki
14 referred to in paragraph 20, as initially being an
15 official in a prison at Zenica, and then him going to
16 Kaonik. So there is a repetition of that. It expressly
17 states him as being in charge of the Kaonik prison. It
18 then goes on to deal with the question, in our
19 submission, his position there and his responsibility
20 there. In our submission, that responsibility being
21 relevant to the charges against which -- which are
22 alleged against him. It says that he was in charge of
23 the Kaonik prison. He was in a position of superiority
24 to every one else in the camp. As commander he met with
25 the international committee of the Red Cross, which, in
2 detail, some particular, of his position of command.
3 That he met with other international organisations while
4 in that position, namely the European community
5 monitoring mission, again being particulars of his
6 authority and responsibility. That authority and
7 responsibility, in our submission, is relevant to the
8 charges -- to the offences with which he has been
10 We deal with the question of knowledge, which
11 Mr. Mikulicic has discussed, that the indictment, he
12 alleges, is deficient in. But there it provides that
13 these people gave him lists of detained persons, and
14 acknowledged his position as commander of the facility
15 and his understanding of the Geneva Conventions in
16 relation to the detention and treatment of prisoners.
17 To some extent we get an insight, perhaps more than one
18 would ordinarily encounter in an indictment. It goes
19 further than most indictments one would ordinarily see
20 in national jurisdictions in addressing his mental
21 state, his state of mind, his responsibilities.
22 In paragraph 21, it then goes on and specifically
23 and expressly states that the accused Zlatko Aleksovki
24 has demonstrated or exercised his control over the
25 detention facility of Kaonik prison in a variety of
2 so forth of the nature I have discussed.
3 Then it goes on to allege allowing the unlawful
4 interrogation of detained persons and allowing them to
5 be used as human shields.
6 In our submission, that is indeed -- it provides a
7 considerable number of particulars in relation to the
8 type of crimes which are alleged, and at the time and
9 place when those crimes are said to have occurred.
10 One then goes, in our submission, your Honours, to
11 paragraph 31, which provides even greater specificacy
12 and detail in terms of time, in terms of what it is that
13 is alleged against him. That paragraph says that from
14 January 1993, at least until the end of May 1993, which,
15 in our submission, is very specific in terms of time,
16 having regard, of course, to the position that he
17 occupied and the nature of the crime with which he has
18 been charged, that is very specific, because it is
19 dealing with his role as commander of this prison, for a
20 specified time.
21 It says that Mr. Aleksovki accepted hundreds of
22 detained Bosnian Muslim civilians from the HVO or their
23 agents into his custody at the detention facility in
24 Kaonik. The detainees were from a widespread area but
25 not exclusive to Vitez and Busovaca municipalities.
2 to inhumane treatment, including, but not limited to
3 excessive and cruel interrogation, physical and
4 psychological harm, forced labour (digging trenches) in
5 hazardous circumstances, being used as human shields and
6 some were murdered or otherwise killed.
7 We have here, in our submission, a very detailed
8 specification of the matters with which the Prosecution
9 alleges that the accused -- offences it alleges the
10 accused committed.
11 Then finally we have the charges themselves. This
12 specifies with whom it is said that he has committed
13 these crimes. It again specifies the period of time,
14 this being more specific, because it specifically says
15 1st January to 31st May. It then relates back and
16 incorporates in the charge those paragraphs, at least
17 some of those paragraphs to which I have referred. It
18 specifies that he did it individually, some aspects of
19 the crime were committed individually, some aspects of
20 the crime were committed in concert. He ordered -- he
21 instigated, ordered and otherwise aided and abetted in
22 the planning, preparation, execution of unlawful
23 treatment, et cetera in the Lasva Valley. The Lasva
24 Valley is specified. The Republic of Bosnia-Herzegovina
25 is specified.
2 had reason to know that subordinates were about to do
3 the same, had done so and failed to take necessary and
4 reasonable measures to prevent such acts or punish the
5 perpetrators thereof.
6 In our submission, the indictment is very clear in
7 what it alleges. It is very clear at the time and place
8 where it is alleged to have occurred. And it also
9 deals, to some extent, with the giving particulars of
10 the -- what the Prosecution alleges the accused knew
11 about these events and what he failed to do about them.
12 Your Honours, the indictment, in our submission,
13 is not intended to be the whole prosecution case. It
14 never has been intended for that purpose. Indeed, Rule
15 47B provides that the indictment shall set forth the
16 name. It does that, the particulars of the suspect, it
17 does that, and a concise statement of the facts of the
18 case. It does that, and the crime with which the
19 suspect is charged. It does that. It does everything
20 that the statute and the rules in our submission
21 requires to be done by the indictment. Indeed, we would
22 say it goes further and is much greater in its
23 specification and detail than that which is required by
24 the rules or by the statute of the Tribunal.
25 In addition to that, your Honour, in terms of fair
2 only the indictment with which the accused can acquaint
3 himself with the allegations of the Prosecution. There
4 is extensive discovery provided for under the rules,
5 which discovery has been as diligently complied with by
6 the Prosecutor as has been possible in the
7 circumstances. That extensive discovery, in our
8 submission, puts the accused on full notice of the
9 Prosecution case, full notice of the Prosecution case, a
10 very substantial period of time prior to the hearing.
11 Indeed, the Defence, in our submission, would in
12 no way be inhibited from preparing their case having
13 regard to a lack of detail, considering the extent of
14 discovery that has been made and will continuously be
15 made right up to the period of the time of the trial.
16 In our submission, the Defence have nothing that
17 they can point to to suggest that they have been
18 inhibited so far by the nature of the discovery with
19 which they have been provided. In addition to that,
20 your Honours, there is, of course, the opening address,
21 which generally speaking is extensive and covers in
22 detail the allegations again which the Prosecution make,
23 and then, in that time, sets out such matters as the
24 elements of the offence and the evidence which the
25 Prosecution will specifically be seeking to rely on in
2 noticed. All of these matters are designed to assist
3 the accused in being aware of the charges against him,
4 to assist him in the preparation of his defence and, in
5 our submission, are more than adequate. That is all
6 I wish to say on the matter at the moment. Perhaps my
7 colleague may wish to add to that.
8 JUDGE JORDA: Mr. Meddegoda?
9 MR. MEDDEGODA: That is correct, my Lord.
10 JUDGE JORDA: Mr. Meddegoda, would you take the floor,
12 MR. MEDDEGODA: If I may expand, your Honours, on the
13 submissions that have been made by my learned friend
14 Mr. Niemann. The Prosecution has, in its response to the
15 form of the -- to the motion on the defects on the form
16 of the indictment, has set out very extensively the
17 rules of law governing the statuted provisions governing
18 the indictment that is submitted by the office of the
20 As your Honours will see, there is Rule 47B of the
21 rules of procedure and evidence read with Article 18(4)
22 of the statute. It is the submission of the Prosecutor
23 that there has been full compliance with the provisions
24 set out therein. The Prosecutor has, in preparing the
25 indictment, set out in detail the name and particulars
2 concise statement of the facts of the case and of the
3 crime with which the accused is charged.
4 To the indictment is also attached the statement
5 of fact setting out the conduct, the evidence against
6 the accused, and the conduct of the accused in relation
7 to the crimes with which he has been charged in the
8 present indictment.
9 It is also the complaint of learned defence
10 counsel, your Honours, that the Kaonik facility has not
11 been properly defined in the indictment. I think my
12 learned friend, Mr. Niemann, has sufficiently dealt with
13 that issue, and I do not think I should go into further
14 detail on that matter.
15 Another submission of the counsel for the accused
16 is that the indictment is vague. Your Honours, it is
17 the Prosecution's submission that each count of the
18 indictment has to give the accused a warning of the
19 nature of the crimes with which he is charged, and also
20 has to set out the factual basis of those charges. The
21 Prosecutor, your Honours, has articulated each charge
22 specifically and separately, and identified the
23 particular acts in order to sufficiently inform the
24 accused of the charges against which he has to defend
25 himself. As the Trial Chamber has held in the Tadic
2 very succinctly to demonstrate that the accused
3 allegedly committed the crime. It is the submission of
4 the Prosecutor, your Honours, that the Prosecutor has
5 very succinctly or more than succinctly demonstrated
6 that the accused has committed a crime and therefore it
7 is the submission of the Prosecutor that the indictment
8 is not vague.
9 It is also alleged, your Honours, that the
10 indictment fails to set forth the factual allegations
11 and regarding the identities of the victims. Your
12 Honour, it is the respectful submission of the
13 Prosecutor that the indictment, together with the
14 supporting material disclosed to the Defence, provides
15 sufficient factual details regarding the identities of
16 the victims in this case. The supporting material, your
17 Honours, contains numerous names of victims, and also
18 sufficient details regarding the identities of those
20 Therefore, your Honours, it is the Prosecutor's
21 submission that in that material -- with that material
22 has been supplied sufficient details identifying the
23 victims, numerous names of victims have been given with
24 the supporting material, and the victims have been
25 clearly identified in that material.
2 submission that the Defence motion on the defects of the
3 form of the indictment has no merit, your Honours, and
4 that the Prosecutor has complied with the provisions of
5 the statute and the rules of procedure and evidence.
6 The Prosecutor has given the accused sufficient notice
7 of the nature of the crimes with which he is charged.
8 The Prosecution has given the accused the factual basis
9 for those charges. The Prosecution has, in its
10 indictment, and the supporting material and the
11 statement of fact, concisely described the underlying
12 conduct and participation of the accused which forms the
13 basis of its culpability, and therefore the Prosecutor
14 has provided the accused with sufficient detail to allow
15 him to prepare his defence adequately.
16 Therefore, your Honours, it is the respectful
17 submission of the Prosecutor that the motion, that the
18 Defence motion on the form of the indictment be denied.
19 Is there any other matter your Honours would wish me to
20 address you on?
21 JUDGE JORDA: Thank you. Does the Defence wish to exercise
22 its right to reply? Does the Defence wish to reply?
23 MR. MIKULICIC: Yes.
24 JUDGE JORDA: Then do so, please.
25 MR. MIKULICIC: Thank you, your Honours. Fully
2 colleagues, on the Prosecution side, the Defence
3 continues to believe that the indictment is incomplete
4 and imprecise. The Defence wishes, once again, to draw
5 attention to the actual wording regarding the statement
6 of facts in connection with the crimes alleged to have
7 been committed by client, Zlatko Aleksovki. Allow me to
8 point to two places.
9 In paragraph 31 of the indictment the Prosecution
10 states that many of the detainees under his control, the
11 reference is to the control of the accused -- how can
12 one explain the word "many"? The Defence would be
13 content with the form of the indictment if it had
14 indicated the names of the people who were subjected to
15 inhumane treatment. The expression "many" is vague.
16 The same can be said of the worst form of culpability,
17 and that is that some were killed or otherwise deprived
18 of life. The Defence wishes to underline, once again,
19 that the Prosecution should indicate, by name, who were
20 the persons who were murdered or otherwise killed, and
21 under which circumstances, so that this might be linked
22 to the possible culpability of the accused.
23 That would be our main objection, regarding the
24 imprecision of the indictment.
25 JUDGE JORDA: Thank you, Mr. Mikulicic. Judge Shahabuddeen
2 JUDGE SHAHABUDEEN: Mr. Mikulicic, in paragraph 10 of your
3 written motion you plead that the indictment fails to
4 specify and to define the status of the object Kaonik.
5 The Defence does not know whether it was a prison, a
6 detention camp, a prisoners of war camp, a cantonment or
7 something else. Now I leave out the word "cantonment"
8 for the moment, because I have not succeeded in tracing
9 it. Maybe it exists in the indictment, but I have not,
10 as yet, chanced upon it. But I believe the other
11 expressions occur, do they not, in the indictment,
12 prison is referred to, detention is referred to.
13 Take, for example, paragraph 7 of the indictment,
14 refers to Kaonik as a prison facility. Paragraph 31,
15 paragraph 20, refers to it as a detention facility,
16 prison and a camp. So that the indictment does so
17 describe Kaonik. What I am trying to get at is; what
18 exactly is the objection? Is it the objection that the
19 indictment describes Kaonik in several ways? And is it
20 your contention that it should describe Kaonik in one
21 way only?
22 MR. MIKULICIC: Thank you, your Honours. That was precisely
23 the intention of the Defence, to require that the Kaonik
24 facility be described with precision, because depending
25 on that precise definition of the site where the alleged
2 actual definition of the status of the accused depends,
3 and thereby also the form of his culpability, if any, of
5 That is what the Defence has tried to indicate.
6 I am sorry if we were not clear enough, and not precise
7 enough, and I apologise to your Honours if that was the
8 case. But this was our intention. Thank you. I hope I
9 have managed to answer your question, your Honour.
10 JUDGE SHAHABUDEEN: Thank you. I think I understand. Now,
11 may I pose a question to Mr. Prosecutor? It relates
12 primarily to a paragraph of the indictment, paragraph
13 36, which I think you read out, Mr. Niemann. If I may
14 say so, without disrespect, it is a bit of a mouthful.
15 We have there that he is being charged for having done
16 certain things, both individually and in concert, a
17 point which you made.
18 Then it goes on, in the fourth line from the
19 bottom of the paragraph, to say:
20 "... and, or in the alternative he knew or had
21 reason to know, that subordinates were about to do the
22 same, or had done so, and failed to take the necessary
23 and reasonable measures to prevent such acts or to
24 punish the perpetrators thereof."
25 Now, I have followed you in your reading of Rule
2 specified have been supplied by the indictment. But
3 would it be the case that the mere supplying of the
4 specifying ingredients would not, by itself, satisfy the
5 imperatives of the statute if, in their totality, they
6 fail to accord to the Defence fair trial I think that is
7 stated in the master provisions or somewhere or other in
8 the statute. I need not recite the text to you.
9 Would it then follow that mere compliance with the
10 service requirements of Rule 47B, would not suffice if
11 it leaves the Defence in a position of uncertainty as to
12 what exactly it is required to respond to? We have, in
13 Rule 49, a joinder provision stating that two or more
14 crimes may be joined in one indictment. But you have
15 followed the usual scheme, which visualises that one
16 offence will be charged in one count. There is some
17 jurisprudence, I believe, of the Tribunal on the
18 question, and I would like you very much to address me
19 briefly on the implications of that jurisprudence for
20 paragraph 36. A distinction exists, I know, between
21 charging more than one offence in one count, and
22 charging one offence as having been committed by
23 different methods. But I seem to need your assistance
24 in appreciating exactly what is it that is being said in
25 this paragraph?
2 different offences, or is he being required to defend
3 himself on one offence, which is alleged to have been
4 committed by different methods?
5 MR. NIEMANN: Your Honour, I think the paragraph I read out
6 was paragraph 37, but it provides the detail. Your
7 Honours, what is sought in paragraph 37, as opposed to
8 the counts themselves, that is counts 8, 9 and 10, what
9 is done there is the theory of liability has been set
10 out; and true it is that the theory of liability, as is
11 provided for in Article 7(1) of the statute, and
12 Article 7(3) of the statute is provided for. Paragraph
13 (3) of the Article 7 being the alternative, that is knew
14 or had reason to know. Article 7(1), setting out the
15 theory of liability that he committed it individually,
16 in concert with others, planned, instigated, and
17 otherwise aided and abetted.
18 Your Honour, the theory of liability does vary,
19 having regard to the nature of the particular offences
20 charged here. What we have here, your Honour, is three
21 counts. Dealing with conduct in relation to a camp over
22 a period of time, the nature of the charge is that it is
23 alleged that there was inhumane treatment, for example,
24 in Count 8. But that inhumane treatment may have varied
25 according to particular prisoners and particular
2 I can perhaps assist by an illustration.
3 Say, for example, there had been a charge of
4 persecution, or say there had been a charge of genocide,
5 or a crime against humanity, could that have been
6 included there? Those crimes would not specify, for
7 example, that genocide was committed by this individual,
8 would not necessarily specify that genocide was
9 committed by the individual, because he killed X, victim
10 X. Genocide would be alleged, because it was a crime
11 committed against a particular group of people, with the
12 specified intention. So there would not be specificity
13 in terms of that. Likewise here, with the nature of
14 these charges, because you are dealing with a mixture of
15 people who are being contained in the camp, people have
16 different status's. So people who come into the camp
17 could be, in fact, people who are combatants, no longer
18 combatants but are prisoners of war and kept in that
19 facility. The Prosecution's allegations do not limit
20 itself to that. The Prosecution's allegations are all
21 embracing. They cover the people who may fall into that
22 category, or arguably could fall into that category. As
23 your Honours know a different provision of the Geneva
24 Conventions would apply to people who are prisoners of
25 war as opposed to civilians who were captured in the net
2 You have two different categories of people. We
3 say that is all alleged in the indictment itself,
4 because we say it is an attack on the Muslim
5 population. We say that is all embracing, so it can
6 cover both types of categories. The indictment reflects
7 that in dealing with theory of liability.
8 There also is, because you are dealing with the
9 period of time, him being commander of the camp over a
10 specified period, there are a number of acts which are
11 committed, some which we would say he is directly
12 involved, and some which we would say he merely aided
13 and abetted, or participated in planning or
14 preparation. And there is a variety of these
15 instances. The indictment, again, attempts to cater for
16 all of them, to put him on notice of all of these
17 allegations which are being made. If I may expand on
19 For example, it may be said that a person was
20 beaten in the camp. The accused -- it is not suggested
21 on the evidence that the accused was aware at the time
22 that that person was beaten. Evidence may be brought
23 however that he subsequently became aware of that, he
24 subsequently became aware of the fact that a guard, in
25 his camp, committed a series of beatings. The evidence
2 ever happened, there is no evidence whatever of him ever
3 taking action against that person. That, in our
4 submission, would be one theory of liability, we would
5 say catered for in the indictment and would come out in
6 the course of evidence, come out in the opening address
7 and be dealt with and become obvious on the supporting
9 We say the statute and the rules do not require
10 the Prosecutor to go in and specify every particular
11 instance. If you are dealing with massive crimes such
12 as genocide or a massive crime against humanity it would
13 be impossible the indictment would be thousands of pages
14 long because you would be attempting to deal with each
16 Further, your Honours, you might have a situation
17 where it may be alleged that prisoners that were kept in
18 the camp were sent out during the course of a day to dig
19 trenches, and the trenches were being dug on the front
20 line. These people were being exposed to fire from the
21 enemy and being put in a dangerous situation. They may
22 be prisoners of war, they may be ex-soldiers or, indeed,
23 they may be just civilians who were brought in and kept
24 in the camp for no other reason than the fact they were
25 Muslim. It may be a differentiation there, because
2 according to their categories in that regard.
3 In our submission, your Honours, this accused may
4 not be liable for requiring these people to dig trenches
5 because he stayed back in his prison camp and commanded
6 that and looked after it. The Prosecution are not
7 alleging that. The Prosecution would allege he aided
8 and abetted in that because he knew what was happening
9 to these people and he permitted these people to be
10 taken out of his camp, people under his control, he
11 aided and abetted in the commission of that crime.
12 Again, we have a different theory of liability. Again,
13 we are dealing with the substantial nature of the
15 So, in our submission, that is why the theory of
16 liability specifies, in our submission, the full gambit
17 of crimes which the Prosecution alleges this accused has
18 committed in terms of his responsibility, his criminal
19 responsibility. So that is the reason why it is recited
20 in this way. It is entirely possible that the evidence
21 may not come up to proof on one aspect of it. If that
22 happens then of course that falls. But the
23 Prosecution's allegations, at this stage, are that the
24 Prosecution case will come up to proof on each one of
25 these allegations, in an individual sense, according to
2 it appears perhaps less specific than what one
3 encounters when you are dealing with an individual count
4 of murder or an individual assault and battery or
5 something, that is because, in our submission, the
6 nature of these offences are that one needs to deal with
7 the magnitude of them, and the magnitude of them, as
8 such, that there are limits, of course, as to just how
9 specific we can be. Otherwise you would end up with,
10 you know, 2,000 counts or something like that, because
11 you would be dealing with each particular act. In our
12 submission that is not an economic way or indeed a fair
13 and reasonable way to deal with the allegations, and is
14 not within the nature of the crimes themselves.
15 JUDGE SHAHABUDEEN: Thank you. I understand you, and I owe
16 you the explanation of saying yes, I was intending to
17 read paragraph 36, but I realised that you had been
18 reading from paragraph 37. I would appreciate the
19 position to be this: that the words which I read though
20 carrying in a chapter in Counts 4 to 7 really belong to
21 what may be described as a chapeau to a further
22 itemisation of distinct counts each of which relates to
23 a specific offence. Perhaps that is the answer to the
24 question which I raised. So the specific counts
25 occurring beneath the generalised chapeau would remove
2 presented by the general words of the opening or
3 introductory section. I understand you. Thank you very
5 JUDGE JORDA: I would like to make two comments of a
6 general nature, and then end these proceedings. I would
7 like to thank Judge Shahabuddeen very much, who saw the
8 difficulty which is not semantic in this indictment.
9 Perhaps I might say to the Defence, first of all,
10 I suppose that they did it, that many things were
11 written, and the Tribunal has ruled many times, but not
12 in one case was there a preliminary motion referring to
13 the indictment, to the defects of the form of the
15 In that respect there is case law which is being
16 formed. That is my first comment there is the Delic
17 case through the Tadic case through the Blaskic case,
18 also which is covered by the same indictment. We have
19 tried to reconcile the relevant provisions of the
20 statute. That is 1898 statute of 45 and 47 of the
21 rules. There are two times here. There is the time of
22 the indictment, which necessarily must be briefer. Then
23 what happens right after the initial appearance when the
24 Defence has more important rights.
25 The second comment I would like to make is the one
2 was done very relevantly, but it is the word in the
3 alternative. I have a more general comment. The
4 indictment, perhaps, suffers from the time that has gone
5 by since it was drafted, in light of the different
6 requests which are more specific, that the judges have
7 heard. It is true that on several occasions the judges
8 have expressed themselves, since 1995, in these general
9 terms. We have often called the Prosecutor's attention
10 -- Mr. Niemann knows this -- to, for example, not here,
11 words like "around", "about", "approximately"; and
12 "alternatively" is sort of in between the specification
13 of facts and the specification of law, which Mr. Niemann
14 has just spoken to, referring to the count under
15 Article 7(1) and 7(3). These are general comments which
16 do not prejudice the Trial Chambers. Generally speaking
17 Judge Riad has no comments he would like to make, asks
18 no questions.
19 Perhaps I would like to turn to the Defence. You
20 know, Mr. Mikulicic, the 60 day time period for the
21 preliminary motions since the initial appearance should
22 be -- should expire on 29th June. Can we ask you today
23 whether you have any other preliminary motions you tend
24 to file? At any rate the time period has expired but in
25 other changes the Trial Chamber, for factual reasons,
2 that we asked this question during the status conference
3 of 6th June. We therefore consider that the 60 day
4 period has expired. There is no other motion from you,
5 which you would, at that point, have to justify; is that
6 correct? There are no others.
7 MR. MIKULICIC: Your Honours, the Defence counsel has no
8 further motions pending. We have exhausted our motions.
9 JUDGE JORDA: Yes, and Mr. Mikulicic, I want us to
10 understand. I am not talking about any other motions.
11 You have all the rights you want to exercise in order to
12 file motions. I am speaking about Rule 72 and 73 of the
13 rules dealing with preliminary motions. Ordinarily, as
14 in 73B, it says, in the 60 days following the initial
15 appearance. This period expired on 29th June.
16 Nonetheless, if justified at the request -- of the
17 request they can be extended. I believe that you have
18 completed all the preliminary motions that you wanted to
19 make. This is something you can confirm now because we
20 can then go forward towards setting up a schedule for
21 the trial.
22 MR. MIKULICIC: Yes, that is what I mean. I have no
23 preliminary motions.
24 JUDGE JORDA: The Trial Chamber will now respond with a
25 decision. In fact, it will be the only decision
2 do with case law and -- case law referring to the
3 defects in the form of the indictment.
4 Now, we can turn to the Prosecutor so that we can
5 try to set a date for the trial, although you do know,
6 Mr. Mikulicic, that there are physical problems which we
7 are experiencing for the time being in this Tribunal
8 since at this point we have only one courtroom. But you
9 know this, and also you are aware of the fact that a
10 second courtroom should be built soon. If there are no
11 other comments Mr. Prosecutor. Do you have any other
12 comments you wish to make.
13 MR. NIEMANN: No, your Honour.
14 JUDGE JORDA: Mr. Mikulicic, have you any other comments you
15 would like to make?
16 MR. MIKULICIC: Your Honour, I have no comments or
17 objections; but may I just make a brief statement,
18 without wishing to sound pathetic, I do appeal to you
19 when ruling on the object of today's debate that you
20 bear in mind, though I am sure you will do that anyway,
21 that today and in this place the history of a new
22 jurisprudence is being made and that any decision taken
23 is of the utmost significance, not only for this case,
24 but for all future cases which will be tried by this
25 Tribunal. Thank you, your Honours.
2 (Hearing adjourned)