1 Monday, 15 March 2010
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.36 a.m.
5 JUDGE PARKER: Good morning.
6 If would you call the case for hearing.
7 THE REGISTRAR: Good morning, Your Honours.
8 This is case IT-98-32/1-R77.1, The Prosecutor versus
9 Zuhdija Tabakovic.
10 JUDGE PARKER: Thank you very much.
11 Mr. Rogers.
12 MR. ROGERS: [Microphone not activated]
13 THE INTERPRETER: Microphone, please, for the counsel.
14 MR. ROGERS: Good morning, Your Honours. Paul Rogers appearing
15 for the Prosecution together with Mr. Kyle Wood and our Case Manager
16 Jasmina Bosnjakovic.
17 JUDGE PARKER: Thank you, Mr. Rogers.
18 Mr. Powles.
19 MR. POWLES: Good morning, Your Honours. I appear on behalf of
20 Mr. Tabakovic, Steven Powles.
21 JUDGE PARKER: Thank you. Now, you wish to deal with some
22 matter, I understand, Mr. Powles.
23 MR. POWLES: Your Honours, yes, it's perhaps safer to go into
24 closed session, of course. I've got Your Honours' ruling or indication
25 on the matter that was raised on Friday, but there was one other very
1 brief matter to raise and perhaps best dealt with in closed session.
2 JUDGE PARKER: What we will do is briefly go then into private
3 session and we can deal with that matter before going back into public.
4 MR. POWLES: Thank you, Your Honour.
5 [Private session]
11 Pages 15-20 redacted. Private session.
18 [Open session]
19 THE REGISTRAR: We're in open session, Your Honours.
20 JUDGE PARKER: The Chamber sits today to try Zuhdija Tabakovic on
21 an indictment which alleges six counts of contempt arising from the trial
22 of Milan Lukic and Sredoje Lukic, who were convicted and sentenced for
23 war crimes by this Tribunal last year. The indictment against
24 Mr. Tabakovic was filed in October of last year. At an earlier stage of
25 these proceedings, the accused had entered pleas of not guilty to all six
2 On Friday last, a motion for this Chamber to consider a plea
3 agreement was jointly filed by the Prosecutor and the Defence of
4 Mr. Tabakovic. The Chamber will now turn its attention to that motion.
5 And for that purpose, the Chamber should indicate there was also
6 filed a motion which sought to protect the identity of two persons,
7 neither being the present accused, in respect of conduct. They are named
8 in the indictment. In view of other potential proceedings in this
9 Tribunal, the Chamber is of the view that it would be appropriate for
10 them to be granted protective measures, in that they should each be
11 assigned a pseudonym for the purpose of this hearing, respectively being
12 X and Y as proposed in the motion.
13 Mr. Rogers, is it convenient for you now?
14 MR. ROGERS: Your Honour, yes. Thank you.
15 Your Honours, you have the plea agreement, and clearly it
16 currently remains confidential. And we would ask jointly that the
17 confidentiality of that document be lifted, subject to the redactions
18 Your Honour has indicated. And we will file today a public redacted
19 version of the plea agreement and that can then be on the record for the
21 Your Honours, the plea agreement sets out a summary of the
22 intended pleas, and Mr. Tabakovic agrees to plead guilty to a total of 3
23 counts of contempt as charged in the indictment dated the
24 30th October, 2009
25 criminal responsibility for contempt as a result of the acts and
1 omissions alleged in the indictment.
2 Your Honour, he proposes to plead guilt to Counts 1, 3, and 4 of
3 the indictment, all counts of contempt. And as a result of that plea, we
4 will move to dismiss the remaining alternative charges should
5 Your Honours accept his plea, which are Count 2, attempt to commit
6 contempt; and Counts 5 and 6, incitement to commit contempt, as we have
7 always said that those were alternative allegations to Counts 1, 3 and 4.
8 And, Your Honour, we draw your attention to the fact that as a
9 result of his indication of this plea, the Prosecution is prepared to
10 recommend to the Trial Chamber the imposition of a term of imprisonment
11 within the range of four to six months and no fine.
12 Your Honours, we point out specifically that the recommendation
13 has taken into account from the Prosecutor's perspective the assessment
14 of the available mitigation, including his cooperation to the date of
15 plea and the pleas of guilty themselves. And we understand that the
16 accused is entitled to submit that he should receive a sentence of less
17 than four to six months and the accused understands that the
18 Trial Chamber is not bound to accept any recommendation and may impose a
19 sentence above or below the range indicated. And we recognise that such
20 recommendation that the Prosecution have made is without prejudice to any
21 application for commutation or pardon in due course that he may seek to
22 make pursuant to Rules 123 and 1 -- to 125.
23 JUDGE PARKER: Just one matter before we pass on, Mr. Rogers.
24 MR. ROGERS: Yes, Your Honour.
25 JUDGE PARKER: My reading of the indictment would suggest that,
1 within Count 1, there is an alternative to the charge of contempt but
2 that Count 2 is itself a separate charge of contempt.
3 I think as you were dealing with it you may have suggested that
4 Count 2 itself was a count of attempt.
5 MR. ROGERS: Your Honour, we -- we have always conceived Count 2
6 to be an attempt. That's why the -- the line coming between Count 1 and
7 Count 2 on the indictment says: "Alternatively, he attempted to commit
8 Count 2, Contempt of the Tribunal."
9 I think the problem, if it's a problem, arises from the wording
10 of the rule which says that there shall be -- any incitement or attempt
11 to commit any of the acts punishable under paragraph A - this
12 is 77(B) - is punishable as a contempt.
13 JUDGE PARKER: As a contempt. Yes.
14 MR. ROGERS: So, I mean, we could debate perhaps whether it is
15 truly an attempt or incitements are truly incitements because they are
16 all considered to be contempt anyway.
17 Your Honours will probably know that there have been no
18 indictments here for attempt to commit contempt, so it's unchartered
19 water. And to some extent, so is incitement. But that is the way we
20 envisaged it.
21 JUDGE PARKER: Well, perhaps you would be at ease referring to it
22 as a contempt within the meaning of the rules.
23 MR. ROGERS: Your Honour, I would, yes.
24 So far as the nature of the charges is concerned, Mr. Tabakovic
25 understands that the Prosecution would be required to prove beyond
1 reasonable doubt all the elements of contempt, that is, that he knowingly
2 and wilfully interfered with the administration of justice. And he and
3 the Prosecution have agreed the facts and matters set forth in the
4 Factual Basis which I will turn to in due course as being correct and not
5 disputed and established beyond a reasonable doubt. And he accepts full
6 responsibility for the actions described both in that Factual Basis and,
7 of course, in the indictment as he pleads to it.
8 And the parties agree the matters contained within the basis
9 support appropriate findings of guilt as to his individual criminal
10 responsibility for the commission of contempt under Counts 1, 3, and 4.
11 Then there are the formal parts, Your Honour, relating to what
12 the maximum possible sentences are, that is, a sentence of seven years'
13 imprisonment and a fine not exceeding 100.000 euros or both in relation
14 to each count. And Mr. Tabakovic, at paragraph 9, understands that he is
15 not bound by any agreement -- sorry that the Chamber is not bound by any
16 agreement between the Prosecutor and the Defence. But importantly, he
17 agrees that regardless of the sentence imposed, he will not seek to
18 withdraw his guilty plea or appeal his conviction pursuant to such guilty
19 plea, should such a conviction be entered by Your Honours.
20 He then recognises that the Chamber will, when considering the
21 appropriate sentence, have regard to the gravity of the offence and the
22 individual circumstances of the convicted person and take account of any
23 aggravating or mitigating circumstances including any substantial
24 cooperation with the Prosecutor and have regard to the general sentences
25 in the former Yugoslavia
1 And he understands that the Prosecution and the Defence will
2 provide to Your Honours any and all information that Your Honours
3 consider to be relevant to sentence. By his plea of guilty, he
4 understands that he will be giving up certain rights, rights to have the
5 charge proved by the Prosecution during the course of a trial. And in
6 that regard, he gives up the right to plead not guilty and require that
7 proof to a beyond a reasonable doubt standard to put forward a Defence to
8 these charges during a trial, et cetera. And the right to be tried, et
10 Your Honours have them there.
11 Of course, it doesn't mean he waives his right to be represented
12 by counsel in these proceedings or in any subsequent proceedings. And he
13 enters the plea voluntarily, agrees that no threats were made to induce
14 him to enter this plea, and that the only promises made to him is set
15 forth in the agreement, namely that the Prosecutor will make the
16 recommendation that it has said it would. There are no additional
17 promises, understandings, or agreements between the Office of
18 the Prosecutor, Mr. Tabakovic, or his counsel.
19 And Your Honours will see the declaration by Mr. Tabakovic that
20 he has read the plea in a language that he understands and reviewed it
21 carefully and closely with his counsel Mr. Powles, and Mr. Powles has
22 advised him of his rights and possible Defences and the consequences of
23 entering into the plea agreement, and he is satisfied with his
24 representation to date.
25 No other promises or inducements had been made to him, he agrees.
1 And no one has threatened him or forced him to enter into the plea
2 agreement in any way. The plea is voluntarily, and he is of sound mind
3 and agrees to each of the terms. And then there is the declaration by
4 Mr. Powles that he fully advised his client, et cetera. Your Honours may
5 wish to go through that or not, but it is there and the declaration is
6 plain for all to see and substantially mirrors the declaration of
7 Mr. Tabakovic, albeit it from counsel's perspective.
8 Your Honours, I don't propose at this stage to go through the
9 Factual Basis. It is perhaps now for Your Honours to go through the
10 formal parts with Mr. Tabakovic to ensure he does understand what he is
11 doing and then to reach any appropriate conclusions on the materials
12 available to you regarding the counts as they are set out.
13 Can I assist Your Honours any further at this point of time?
14 JUDGE PARKER: Thank you, Mr. Rogers, no.
15 Is there anything, Mr. Powles, you would want to say at this
17 MR. POWLES: No. Thank you very much, Your Honour.
18 JUDGE PARKER: Thank you.
19 Mr. Tabakovic, you're able to follow the proceedings so far in
20 a -- translated into the language you understand?
21 THE ACCUSED: [Interpretation] Yes, I have, Your Honour.
22 JUDGE PARKER: Thank you very much.
23 Now, the proceedings this morning are primarily looking at an
24 agreement under which you have proposed to enter a plea to three of the
25 six charges of contempt that are set out in the indictment.
1 Do you understand that this is the nature of what we are dealing
2 with? A proposal by you that we should receive from you a plea of guilty
3 to three of the charges, and that we are not to deal with you in respect
4 of the other three charges which will be withdrawn; you understand that's
5 what we're dealing with?
6 THE ACCUSED: [Interpretation] Yes, I do. I understand.
7 JUDGE PARKER: Thank you.
8 Now, before the Chamber, there is an agreement which is dated
9 last Friday, the 11th of March, in which you have both signed the
10 agreement and signed a declaration, which is paragraph 17 of the
12 Are you familiar with that, the signed agreement?
13 THE ACCUSED: [Interpretation] Yes, I am, Your Honour.
14 JUDGE PARKER: You signed the agreement and the declaration, did
16 THE ACCUSED: [Interpretation] Yes, I did.
17 JUDGE PARKER: Attached to the agreement there is also a -- an
18 outline of facts, the fact -- which form the Factual Basis for the
19 agreement, and at the end of that what appears to be your signature
20 appears again. You signed -- is it correct that you signed that
21 Factual Basis to form part of this plea agreement?
22 THE ACCUSED: [Interpretation] Yes, it is correct, Your Honour.
23 JUDGE PARKER: Your counsel here, Mr. Powles, has discussed the
24 nature and effect of this agreement with you, has he?
25 THE ACCUSED: [Interpretation] Yes, he has.
1 JUDGE PARKER: He has explained to you, I believe, that it is
2 open to you to maintain your pleas of not guilty to all of these charges,
3 in which event it would be for the Prosecution to prove its case against
4 you in respect of each one of the six counts.
5 That's been explained to you by Mr. Powles, has it?
6 THE ACCUSED: [Interpretation] Yes. We've gone through that
8 JUDGE PARKER: Did Mr. Powles discuss with you possible lines of
9 Defence that you might take, if you were to plead not guilty and proceed
10 to trial?
11 THE ACCUSED: [Interpretation] Well, yes, we did discuss several
12 possible lines of Defence. Yes, we did discuss the matter.
13 JUDGE PARKER: Are you confident in your own mind that you should
14 act according to this agreement and enter pleas on just three of the six
15 counts? Pleas of guilty.
16 THE ACCUSED: [Interpretation] Well, that's how my counsel and I
17 agreed, although, in essence, Counts 2, 4, and 5, basically boil down to
18 the -- to Counts 1, 3, and 5, or the other ones.
19 Counts 1, 3, 5, and 2, 4, and 6, actually, not that different,
21 JUDGE PARKER: The -- your client, Mr. Powles, seems to be
22 displaying quite a careful knowledge of the indictment.
23 MR. POWLES: Your Honour, yes. My only concern and why I rise,
24 of course, I appreciate why Your Honour is going through these matters
25 with Mr. Tabakovic. My only concern is the question of legal
1 professional privilege and -- and whether we might be getting close to
2 that line. I don't think we've crossed it just yet, but I'm not sure
3 Mr. Tabakovic necessarily fully appreciates the nature of that rule. I'm
4 not sure whether Your Honour has any more in relation to these sorts of
5 matters that you wish to explore with Mr. Tabakovic. I just raise that
6 as a precautionary matter.
7 JUDGE PARKER: The issue, Mr. Powles, was to be confident that
8 there had been a discussion of potential possibilities of Defence.
9 MR. POWLES: Your Honour, yes.
10 JUDGE PARKER: Not sought particulars.
11 MR. POWLES: Your Honour, yes. I'm not sure Mr. Tabakovic
12 necessarily appreciates that though.
13 JUDGE PARKER: I think, though, that his answer was very
14 informative on a number of bases.
15 MR. POWLES: Your Honour, yes.
16 JUDGE PARKER: Thank you, Mr. Powles.
17 MR. POWLES: Thank you.
18 JUDGE PARKER: You realise that a consequence of entering pleas
19 of guilty to three counts would be that the Chamber would proceed to
20 consider the question of penalty and to sentence you, in respect of those
21 three counts, to which you would plead guilty and that there would be no
22 trial of the facts about those three counts.
23 THE ACCUSED: [Interpretation] I understand that, Your Honour.
24 JUDGE PARKER: Thank you very much, Mr. Tabakovic.
25 The Chamber has to consider at this stage the force of
1 Rule 62 bis, which requires that any plea be voluntary, informed, not
2 equivocal, and is supported by a sufficient Factual Basis. In this
3 regard, this Chamber has been assisted by the written agreement which
4 sets out, carefully and fully, matters which provide a basis upon which
5 the Chamber could be satisfied of those matters.
6 The accused has confirmed today that this is agreement -- an
7 agreement into which his has entered. And by his signature to that
8 agreement and to the declaration it contains, he has confirmed that he
9 has been advised about and has considered matters, which indicate that
10 the plea is informed, and that his conduct is not equivocal in proposing
11 to make them. And it is apparent from what he has said orally and from
12 the terms of that agreement that he acts voluntarily in this regard.
13 The Factual Basis upon which those pleas are to be offered is set
14 out, again fully, in the annexure to the plea agreement, which the --
15 Mr. Tabakovic also confirms he has signed. The Chamber has had occasion
16 to consider that Factual Basis and the legal question whether it provides
17 a sufficient basis for the pleas which the accused proposes to offer.
18 The Chamber is satisfied that on the Factual Basis set out in the
19 annexure there is a proper and sufficient Factual Basis for the proposed
20 pleas to the three counts.
21 The Chamber has also had a declaration from Mr. Powles, who is
22 present and represents the accused this morning, as to his conduct in
23 fully setting out and explaining to the accused the options open to him,
24 the consequences of the plea, and the rights which would be foregone by
25 the accused if he enters a plea.
1 Having regard to these matters, the Chamber is persuaded that it
2 may properly allow and receive the pleas of guilty, in respect of the
3 three counts, as are proposed in the plea agreement.
4 Now, Mr. Powles, are you content that the Chamber proceeds simply
5 to -- on the motion or would you prefer that the three counts again be
6 put to the accused?
7 MR. POWLES: Your Honour, I think it would be easier if we
8 proceed on the motion. It is all set out in the motion, and it would
9 seem to me that that would be the most practical way to proceed, if
10 Your Honours were minded to agree with that.
11 JUDGE PARKER: Thank you, Mr. Powles. In those circumstances,
12 the Chamber would allow, as moved in the motion, the accused,
13 Mr. Tabakovic, to change his plea to one of guilty in respect of each of
14 Counts 1, 3, and 4 of the indictment. And the Chamber, accordingly,
15 enters a finding of guilt in respect of each of those three counts.
16 The Chamber is also persuaded that the three convictions which it
17 has now recorded adequately reflect, for the purposes of punishment, the
18 conduct of the accused in the knowing making of a false statement by
19 himself and a false statement by each of two other men, for use by the
20 Defence in the trial of Milan Lukic and Sredoje Lukic. The Chamber is
21 satisfied, therefore, that it should dismiss the remaining counts - 2, 5,
22 and 6 - in the indictment.
23 We now come to the question of sentence.
24 Mr. Rogers.
25 MR. ROGERS: Your Honours, I propose to go through the
1 Factual Basis for the plea agreement which is annexed at tab 2. The --
2 there will be a public redacted version that we will file today, but for
3 now I will simply read it into the record as we take the view it fully
4 sets out the relevant facts for your determination in relation to
6 Your Honours, Zuhdija Tabakovic was approached by the former
7 Case Manager of the Milan Lukic Defence team sometime in October 2008.
8 They arranged to meet at a cafe in the Robot shopping mall in Sarajevo
9 and during this meeting he was offered a -- and this is how he put it:
10 "Good job in which good money can be made."
11 Case Manager produced to him a blank statement. And Your Honours
12 have a bundle of documents set out in a blue bundle, I hope, and you will
13 see the blank statement in tab 3. It's already complete in the terms of
14 what it's to say. And you will see the only thing that is missing from
15 it are the names and various dates in the formal parts at the top.
16 Mr. Tabakovic read the statement and asked what he was to do
17 next. It was explained to him that the person worked for the
18 Milan Lukic Defence team in The Hague
19 persons who, for financial compensation, would confirm this statement or
20 similar ones. Those statements were to be used by the Milan Lukic
21 Defence team.
22 Mr. Tabakovic asked what the financial compensation would be and
23 was told 2.500 euros. The money was to include all travelling expenses
24 to The Hague
25 for preparation. He was to be paid a thousand euros after signing the
1 statement and having his signature verified by a municipality official.
2 He was then told that there would be a second payment of 1.500 euros and
3 new clothes which he would receive before leaving for The Hague to
4 testify in the Milan Lukic case or just after arriving there.
5 He said he was told that the money was coming from Mr. Lukic
7 At some point prior to the signing of the statement,
8 Mr. Tabakovic was told -- or the Case Manager describes to him the
9 purpose of the statement as being for him to say that he was on the other
10 side of the Drina River
11 persons survived and that he was to describe some of the killers and
12 their vehicles. Whilst it's not suggested that Mr. Tabakovic knew the
13 precise purpose for which the statement would be used nor the impact the
14 statement was intended to have on the Lukic and Lukic trial, it was in
15 fact relevant to Milan Lukic's Defence of alibi in relation to one of the
17 Mr. Tabakovic said that he needed money desperately and that he
18 agreed to provide the statement and sign it before a municipality
19 official. He knew that the statement was not true and that it was for
20 use by the Milan Lukic Defence in The Hague.
21 On the 20th of October, 2008, at the Novi Grad municipality
22 building in Sarajevo
23 signed, and verified the statement in five copies. That included a
24 section concerning protective measures for him at this Tribunal. He kept
25 one copy of that statement which is Exhibit 5, which he voluntarily
1 handed over to the Prosecution investigator, Don King, in the
2 30th of December, 2008, in the Sarajevo
3 what he had done. The statement is signed by him.
4 And Your Honours will see, if you turn to tab 3 in the bundle,
5 the form of the statement is in substantially the same form as that of
6 the blank with the details filled in at the top. And then there is, on
7 the page 4, a declaration, and it's obviously in B/C/S, this particular
8 version, and then his signature appears dated the 20th of October, 2008.
9 And if Your Honours look to page 2 of what is the translation,
10 you will see the witness acknowledgment.
11 "I've read the statement of four pages, and it contains
12 everything I said to be the best of my knowledge and memory and made the
13 statement of my own accord, and I am aware it can be used in judicial
14 proceedings before the International Criminal Tribunal for the former
17 And then there is a request for protective measures.
18 Your Honours will note that the name is wrong. That's a
19 translation difficulty with this particular translation, but the
20 declaration is accurate.
21 On the 11th of September, 2009, the Milan Lukic Defence disclosed
22 to the Prosecution another identical copy of that statement that bears
23 Mr. Tabakovic's original signature, and that's found at Exhibit 4. And,
24 again, you have that. It's the same copy.
25 Both of the statements bear the stamp of the Novi Grad Sarajevo
1 municipality and other data confirming that he signed them at the
2 municipality in the presence of a municipality official who first checked
3 his identity with his identification documents. And documents and
4 witnesses from the Sarajevo
5 Your Honours, the -- specifically relating to the certification,
6 the relevant law in Bosnia-Herzegovina on the certification of signature,
7 handwriting, and copies require that before a stamp of certification can
8 be placed on the document, the person submitting the document must sign
9 the document with his own hand in the presence of an authorised official.
10 That is, to put a signature identical to that on the submit the document
11 in the field designated for that in the register. So there is a
12 certification and the registration. The certifying official must also
13 establish identity by checking the identification of the individual or
14 their passport before any such stamp can be placed on the document. And
15 the stamp contains a number of pieces of information relating to date and
16 persons signing.
17 The stamps on the copy of the statement Mr. Tabakovic provided to
18 Don King on the 30th of December, 2008, and on the copy he -- the Defence
19 provided on the 11th of September, 2009, include his name, the date of
20 certification of the 20th October, 2008, the Novi Grad Sarajevo
21 municipality stamp, and a certification number corresponding to the
22 municipality's register. This entry in the register includes a signature
23 identical to the signatures on the two statements and Mr. Tabakovic
24 confirming that one of the signatures on the statements was his. And
25 then there was a confirmation of the certification of the statements by a
2 After the signing the statement, Mr. Tabakovic and the
3 Case Manager went to the entrance of the municipality building where the
4 Case Manager handed to Mr. Tabakovic a folded piece of white paper
5 containing 1.000 euros in 50 euro notes taken from within a green notepad
6 or agenda. Mr. Tabakovic agrees that the statement he signed at Exhibits
7 4 and 5 was not in his own words, accept for his signature. He not seen
8 or been involved in any of the events referred to in the statement and
9 indeed at the relevant time to the statement, that is the 7th of June,
10 1992, he had been in Sarajevo
11 He said that before signing his statement he had waited for about
12 40 minutes in the municipality building talking with the Case Manager.
13 He was told that when the time came for him to go to The Hague to
14 testify, he would be provided with food and accommodation. In addition,
15 he would probably be contacted prior to testifying in the courtroom in
16 order to be proofed. However, he was told the main lawyer in the case,
17 an American, was not to be told that the statements were fake and that
18 they had been paid for. Whilst in the municipality building, he was
19 given by the Case Manager a hand drawn map. Your Honours will see that
20 at Exhibit 1. This was, she told him, was from -- she said, Milan Lukic,
21 and was to enable Mr. Tabakovic to better understand the events described
22 in the statement at Exhibits 4 and 5.
23 She told him that it was with a map to explain how people were
24 killed or executed in Visegrad on the 7th of June, 1992, and was to
25 indicate what he was supposed to say and where he was standing.
1 And Your Honours can see that is quite obvious from the face of
2 the map itself. And if you turn to the translation, you will see some
3 words that have been translated from it, and they all refer to a Muslim
4 soldier across the river and various other things to help you understand
5 what this document was meant to mean.
6 In addition, he was given a photograph of a victim in the case,
7 Jasmina Vila, and was asked if for 10.000 euros he would be able to find
8 the address of this woman as Milan Lukic believed that she was still
10 At around the same time that Mr. Tabakovic first met with the
11 Case Manager and signed his false statement, she asked him whether he
12 knew of others who would agree to sign false statements for money. She
13 provided to him a blank pro forma which is found at divider 3 -- similar
14 to the one in divider 3, and asked Mr. Tabakovic she wanted a witness to
15 sign a statement similar to it and another to sign a statement about the
17 former soldiers who had been born in Visegrad.
18 Sometime shortly after Mr. Tabakovic signed his statement at the
19 municipality, he contacted two men, Y and X. And asked them to come for
20 coffee because he had a job for them. He asked X if he wanted to make a
21 thousand euros and told him to go to the Novi Grad Sarajevo municipality
22 with his identity card. The three of them met at a restaurant near the
23 Novi Grad Sarajevo municipality building, and Mr. Tabakovic showed Y and
24 X the statements the Case Manager wanted them to sign. He told them they
25 would reach receive a thousand euros for signing the statement.
1 Tabakovic told X that he and X would testify regarding some execution.
2 Y and X agreed to sign the statements. Tabakovic telephoned the
3 Case Manager and told her, I finished this job for you; I've got the
4 people. And arranged for X and Y to meet her at the Novi Grad Sarajevo
8 On the same day, Y signed a statement regarding the SDS in Visegrad. That
9 morning, Tabakovic accompanied each man in turn from the restaurant to
10 the Novi Grad Sarajevo municipality building and back and introduced each
11 of them to the Case Manager who was inside the building.
12 Tabakovic said Y was drunk as hell. Each man signed his
13 statement - and you'll find those at Exhibits 6 and 7 - before a
14 municipality official who verified it and made copies of it. On their
15 way out, a man approached X and Y. Tabakovic was present as X and Y were
16 paid in the same way that he had been from a green agenda or in a form of
17 envelope with 20, 50 euro notes by a man the Case Manager had pointed out
18 to X and Y. Case Manager told Tabakovic that the man who made the
19 payment was "our man."
20 After X and Y had finished certifying their statements, she told
21 Tabakovic she would speak with him by phone later. She then left with a
22 man in a taxi. Tabakovic returned to the restaurant with Y, and Y's
23 1.000 euros was divided equally, between Tabakovic, Y, and X with 100
24 euros left over to pay for the bill of the drinks that the three men had
1 X agreed that he had signed a false or forged statement; he said
2 it, he did it, just take the money. Y had been told by Tabakovic and X
3 that if he signed something he would be given 1.000 or 2.000 euros.
4 Tabakovic had contacted the two men and asked them if they wanted to make
5 money by signing false statements. Both Y and X made their statements
6 knowing that their statements were untrue. Tabakovic said both knew that
7 they were signing and providing a false statement in the Milan Lukic
8 case. Tabakovic knew that their statements had been signed, verified,
9 and given to the Case Manager. Initially, he was reluctant to tell
10 investigators the names of these men. But on the 28th of January, 2009,
11 he identified them as Y and X.
12 Subsequent to the signing of the first statements in
13 October 2008, Tabakovic was contacted again by the Case Manager as there
14 was an error in the statements signed by him, X, and Y. That error
15 related to a date on the statements and -- and the Case Manager new --
16 needed new statements to be signed. Tabakovic contacted Y and X again,
17 and he said the next day they signed the changed statements. He gave
18 those statement to the Case Manager, and they're dated
19 5th of December, 2008. And they are found as Exhibits 8, 9, and 10.
20 And, Your Honours, the only significance to them is a date
21 change. But the date is significant to the alibi.
22 After this meeting, he met the Case Manager when she asked for
23 clothes sizes. Tabakovic asked when he was to be paid. After his
24 meetings with the Case Manager, she took the statements with her and left
25 for Belgrade
1 Prosecution by the Defence during the trial on the 20th of January, 2009.
2 And, again, whilst it is not suggested that Mr. Tabakovic knew the
3 precise purpose for which the statements would be used nor the impact the
4 statements were intended to have on the Lukic trial, they were in fact
5 relevant to Milan Lukic's alibis.
6 Your Honours, I'm not suggesting that Mr. Tabakovic knew the
7 significance of the date change. It's just that -- the fact is that's
8 what happened and that's what its significance was.
9 On the 29th of December, 2008, Mr. Tabakovic presented himself to
10 the gate at UN house, Sarajevo
11 requested some form of compensation for providing information about the
12 payment of witnesses and in particular he asked for 2.500 euros. He was
13 told that no such payment would be made for information and he left
14 without leaving any identification. Nevertheless, he did return to the
15 Sarajevo field office the next day, leaving his identification
16 information and the false statement that he had signed.
17 Mr. Tabakovic gave the Prosecution investigator Don King an
18 outline of what he could say. He explained that he did it for the money.
19 He had a wife and two children. There wasn't much thinking into it, and
20 he was not involved for patriotic reasons. A meeting was arranged on the
21 31st December, 2008, for Mr. Tabakovic to come to the Sarajevo field
22 office to provide his account. In a video recorded interview,
23 Mr. Tabakovic explained what had happened in detail and volunteered
24 documents to corroborate his statement. He also said he was expecting a
25 further payment of 1.500 euros around the 5th or 6th of January from the
1 Case Manager. Tabakovic explained that he had contacted the Office of
2 the Prosecutor because it was "the proper thing to do actually." He said
3 the purpose of his visit to the OTP was that -- was that did he not
4 consider what he was involved in was okay. He said he felt relieved and
5 much better as a result of bring matters to the attention of the
6 Prosecution. And during his further interviews with the office
7 investigators, he raised concerns he had about his security and his
8 financial situation.
9 On the 10th of January, 2009, Mr. Tabakovic met with members of
10 the Milan Lukic Defence and others at a Mercator store. Prior to this
11 contact with the Defence, Tabakovic contacted Mr. King, the OTP
12 investigator, for advice but was given no advice as to whether he should
13 attend or not. During this meeting, Tabakovic was told that the
14 Case Manager had been removed from the Defence team because she had
15 messed up something to do with the second instalment of money to be paid
16 to the witnesses and that payment would now happen as these people came
17 to testify and that a man named Dragan was to be Tabakovic's contact from
18 then onwards.
19 The following day, at the request of Dragan, Tabakovic met with a
20 lawyer at the Mercator. The lawyer asked whether Tabakovic had been in
21 trouble with the law, said he could provide passage for Tabakovic to
22 The Hague, and that there would be protective measures there. The lawyer
23 and Tabakovic then went through his false statement line by line and
24 discussed what he could say about how he remembered the date about which
25 he was to testify and how he knew Milan Lukic.
1 Tabakovic made clear to the lawyer that he did not know
2 Milan Lukic.
3 After this meeting, Tabakovic said he was going to take steps to
4 get a passport. At the lawyer's request, Tabakovic also gathered
5 personal information from X and Y, including what they did during the
6 war, whether they had criminal records, and anything else "that could
7 compromise" them in court. And he delivered this information to Dragan.
8 On or about the 15th of January, 2009, Dragan phoned Tabakovic and told
9 him to arrange a passport for travel to The Hague to testify.
10 Your Honours, there's a short paragraph I would wish to deal
11 with, please, in closed session.
12 JUDGE PARKER: Private.
13 [Private session]
11 [Open session]
12 THE REGISTRAR: We're in open session, Your Honours.
13 MR. ROGERS: In all, Mr. Tabakovic participated in eight
14 videotaped interviews with the Office of the Prosecutor between the
15 31st of December, 2008, and the 24th of September, 2009.
16 And Your Honours, I should make it clear that that last interview
17 was an interview, as I would say, under caution as a suspect. The other
18 interviews he came as a witness.
19 Some contact was initiated by him; others by the Office of the
20 Prosecutor. And each time he was asked to come in, he appeared willingly
21 and voluntarily. He provided the names and details of others involved
22 and took part in identification procedures in order to help identify
24 He was asked why he came to the ICTY. He said he had made a big
25 mistake and wanted to correct it, and that he realised that he made that
1 mistake "sometime in December" 2008.
2 Your Honours, those are the facts. Unless I can help you any
3 further, that's all I would propose to say at this stage.
4 JUDGE PARKER: Thank you, Mr. Rogers.
5 I notice the time. I think in fairness to you, Mr. Powles, we
6 might have the necessary break now to enable you then to speak with
7 continuity after the break.
8 MR. POWLES: I'm very grateful. May I indicate, there are two
9 documents that I would seek to hand up to Your Honours, mitigation --
10 written mitigation submission and a short chronology of some of the key
11 dates and events in relation to this case.
12 Now might be a useful time to provide those to Your Honours so
13 you can perhaps reflect on them before I mitigate on Mr. Tabakovic's
15 JUDGE PARKER: We would be grateful.
16 MR. POWLES: Thank you very much, Your Honours.
17 [Trial Chamber confers]
18 JUDGE PARKER: Thank you, Mr. Powles.
19 We'll adjourn now and resume at a quarter past 11.00.
20 MR. POWLES: Thank you, Your Honours.
21 --- Recess taken at 10.48 a.m.
22 --- On resuming at 11.17 a.m.
23 JUDGE PARKER: Yes, Mr. Powles.
24 MR. POWLES: I believe Mr. Rogers wants to address you briefly
25 first, although can I deal with it, if --
1 There was -- Your Honour there are two points: First of all, in
2 the document that have I provided to you at paragraph 29, I think it's
3 right to say that -- we can go -- sorry, Your Honours, if we may go into
4 closed session.
5 [Private session]
15 [Open session]
16 THE REGISTRAR: We're in open session, Your Honours.
17 JUDGE PARKER: You just indicated, Mr. Rogers, that there -- it
18 has come to your attention the accused has within previous conviction in
19 2003 in Sarajevo in the municipal court, where he was convicted on a
20 count of fraud in respect of a case in which it was -- he had indicated
21 that he could obtain a German visa. And on that pretense, he had
22 obtained some 1570 of the local currency.
23 MR. ROGERS: Convertible marks, Your Honour, that's right.
24 JUDGE PARKER: Convertible marks, yes. And for that he was
25 sentenced -- what was the sentence again?
1 MR. ROGERS: Five months' imprisonment, Your Honours, and ordered
2 to repay the sum of 1.570 convertible marks to the victim in that case.
3 The maximum sentence was three years' imprisonment. And prior to that
4 offence, he had no previous criminal convictions. The judgement was
5 confirmed on appeal on the 9th of September, 2004.
6 I'm sorry I omitted that at the end of my remarks earlier.
7 JUDGE PARKER: Thank you very much, Mr. Rogers.
8 Yes, Mr. Powles.
9 MR. POWLES: May it please Your Honours, on behalf of
10 Mr. Tabakovic, he's, of course, accepted that contempt of this Tribunal
11 as with any court and the interference with the administration of justice
12 is obviously a serious matter. This case, however, we would submit falls
13 at the very bottom end of the scale of seriousness. In contacting the
14 Prosecution at the end of December 2008, Mr. Tabakovic effectively put
15 right his wrong and ensured that no actual damage could be done to the
16 trial process.
17 Mr. Tabakovic's action in contacting the Prosecution at the end
18 of December 2008 ensured that no false evidence was actually presented to
19 the Trial Chamber for its consideration in determining the guilt or
20 innocence of the Lukic accused. The content of the Tabakovic, X, and Y
21 false statements was not presented to the Trial Chamber in evidence and
22 was not ultimately taken into account by the Trial Chamber. This, we
23 submit, was entirely due to the decisive action taken by Mr. Tabakovic in
24 contacting the Prosecution.
25 Ultimately, Milan Lukic was convicted and sentenced to life
1 imprisonment. The statements had no effective whatsoever.
2 The extent of Mr. Tabakovic's interference with the
3 administration of justice we would submit is limited to two matters:
4 First of all, the inclusion of his name, that of X, and that of Y on the
5 Milan Lukic Rule 65 ter witness list with a summary of the issues that
6 they would cover. That was presented to the Tribunal on the
7 19th of November, 2008. And the second matter was the provision of the
8 false statements of X and Y to the Prosecution by the Lukic Defence on
9 the 20th of January, 2009.
10 If I may expand on that by drawing Your Honours' attention to the
11 schedule of Mr. Tabakovic's contact and put alongside his cooperation
12 with the Office of the Prosecutor, what's attempted to be done in this
13 document is to clearly set out when and what Mr. Tabakovic did by way of
14 inference with the administration of justice and put it alongside the
15 steps he was taking in cooperating with the Prosecutor at the time. The
16 matters in italics are the conduct that amounts to an interfere -- or
17 that amounts to an interference with the administration of justice. And,
18 of course, in bold, is his contact in dealing with the Office of the
19 Prosecutor. The shaded boxes set out quite clearly, we would submit,
20 those points in which there was an interaction between the Lukic Defence
21 and the Tribunal/Office of the Prosecutor and the extent to which those
22 documents and information made its way into the official proceedings.
23 Starting then in October 2008, Mr. Tabakovic was approached and
24 asked to provide a false statement for money. Something which he agreed
25 to do and did on the 20th of October, 2008. That was really phase one of
1 his conduct.
2 The second thing he did was to, at the request of Rasic, find two
3 others who would be interested in signing statements for money. X and Y
4 were found and both signed statements and were given 1.000 euros each,
5 although X shared his with both Mr. Tabakovic and Y. That really is
6 phase two.
7 The third matter is the amendment of the statements or the
8 amended statements being signed on the 5th of December, 2008. Those are
9 Exhibits 8, and 9 and 10. Those are the statements which were eventually
10 provided to the Office of the Prosecutor on the 20th of January of 2009.
11 But I'll come to that if I may.
12 So that -- those are the three stages of Mr. Tabakovic's action
13 or conduct, as it were. On the 19th of November, Mr. Tabakovic, X, and Y
14 were included on the Milan Lukic 65 ter witness list and a summary of the
15 issues that they would -- that their statements went to were provided.
16 Those are the three stages, and Mr. Tabakovic put a stop to that
17 decisively we would say by going to the Office of the Prosecutor at the
18 end of December 2008.
19 On 29th of December, he went to the ICTY field office, didn't
20 leave his name. Went back the next day, identified himself, and provided
21 a copy of his false statement to the Office of the Prosecutor. We would
22 submit at that point there was no prospect thereafter of Mr. Tabakovic
23 ever coming to this Tribunal and giving false evidence. It could just
24 never ever work. He put a stop to it decisively.
25 The minute he walked through that door of the court to give
1 substance to that false statement, the Prosecution will be able to say,
2 Well aren't you the man that came to see us on 29th December and gave us
3 a copy of your false statement and said it was a false statement?
4 It could not happen from there on in. He put a stop to
6 On the 31st of December, Mr. Tabakovic gave a full recorded
7 interview, the first of eight recorded interviews to the Office of the
8 Prosecutor. He explained what had happened in detail and said he felt
9 relieved and much better as a result of telling the Prosecution
10 everything that had happened.
11 Moving on, then, to 2009. On the 9th of January, 2009,
12 Mr. Tabakovic again met with an OTP investigator and was told that he was
13 "free to speak with anyone you wish to and that you must decide for
14 yourself how you proceed with this matter."
15 Mr. Tabakovic explained that he was concerned that the
16 information he had provided does not come into the wrong hands because if
17 they do this may be the end for me.
18 The next -- that was on Friday, the 9th of January. The next
19 day, the 10th of January, Saturday, at 10.45 in the morning,
20 Mr. Tabakovic himself contacted the Office of the Prosecutor, an
21 investigator, and explained that he been contacted by the Milan Lukic
22 Defence to attend a meeting. He asked for direction on how he should
23 react to the call and was again told that his response was entirely a
24 matter for him.
25 He met with members of the Milan Lukic Defence at the Mercator
1 hotel and was told that Rasic had been removed from the team and Dragan
2 was to be the contact. He was asked to meet someone the following day on
3 the 11th January, which he did. He met them at the Mercator and the
4 false statement was discussed. That was the Sunday.
5 The day after, on Monday, Mr. Tabakovic dutifully reported to the
6 Office of the Prosecutor and told them everything that had happened that
7 weekend. He provided the details of the Mercator meeting and all his
8 contact with the Milan Lukic Defence team over that weekend.
9 Just as an aside, he mentioned that he was thinking of getting a
10 lawyer and he was told, You have to consider the fact that it might
11 also -- there might be cost involved in doing that. Mr. Tabakovic said,
12 I don't know what to do anymore; I don't know how to behave.
13 On the Tuesday, the 13th of January, on the basis of the
14 information that Mr. Tabakovic had provided to the Office of the
15 Prosecutor, an investigator went to the Mercator hotel and obtained the
16 CCTV images. On the 15th of January, Mr. Tabakovic phoned -- was phoned
17 by Mr. -- by Dragan and told to arrange a passport for travel.
18 Immediately after, immediately after that call, Mr. Tabakovic went to the
19 Office of the Prosecutor and reported that contact to the Office of the
20 Prosecutor. He stated he had been contacted by Dragan regarding his
22 Again, in relation to getting a lawyer, he was told it was
23 entirely a matter for him. Mr. Tabakovic confirmed that he felt that
24 there was no need to engage a lawyer.
25 Then moving again to the shaded areas, the interaction between
1 the Lukic Defence and the provision of any materials to the Office of the
2 Prosecutor. On the 20th January, 2009, the 5th of December statements
3 were provided to the OTP by the Milan Lukic Defence. That was on the
4 20th of January. Three days later, three days later, Mr. Tabakovic, X,
5 and Y were removed from the Milan Lukic Rule 65 witness list. So there
6 was only a period of three days when the statements were provided and
7 thereafter they were removed from the witness list.
8 It is also worth pointing out that on 28th January, Mr. Tabakovic
9 was again interviewed by the Office of the Prosecutor and identified both
10 X and Y. So much the same way as once he identified himself at the end
11 of December 2008, there was no prospect of him ever giving life to the
12 contents of his statement. On the 28th of January, 2009, once
13 Mr. Tabakovic identified both X and Y to the Office of the Prosecutor,
14 there was no prospect that similarly they could ever come and give life
15 to the contents of their statements.
16 In any event, they had already been removed from the Milan Lukic
17 witness list.
18 It's probably worth noting that on the 28th of January an OTP
19 investigator told Mr. Tabakovic, We are grateful for the help and the
20 information that you have given and we hope that this relationship
21 between us continues.
22 Moving on then to 15th January, 2009, Mr. Tabakovic interviewed
23 by Mr. Rogers, Mr. Wood, and a investigator, Mr. Schweiger. He was told
24 at that stage that if any charges are brought against any person, you are
25 likely to be a witness. He was shown the CCTV images from the Mercator
1 hotel that were obtained on 13th of January. He was shown those, and he
2 helpfully identified those present at the meetings that he had at the
3 Mercator hotel by identifying them on the CCTV image.
4 He made clear at that stage that if he were asked by the Defence
5 to go to the ICTY to testify, he would not go. On the 2nd of March, he
6 helped identify -- take part in identification procedure in relation to
7 Rasic and interviewed again on the 11th of March by the Office of the
9 The 3rd of April, he travelled to the ICTY to give -- well,
10 Your Honours will see that the matters contained in the box relating to
11 the 3rd of April. And, of course, it is covered in the plea agreement as
13 On 21st of August, some months later, he was told he -- contacted
14 the OTP to inquire about his status and was told that he is still a
15 witness. If the OTP will need to speak to him again, he will be notified
16 accordingly. That was in August of 2009.
17 Finally, on the 24th of September, he was interviewed as a
18 suspect, again by the same team that had interviewed him earlier, and he
19 took part in a further identification procedure to help identify Dragan.
20 Your Honours, we would hope that that really puts into context
21 and identifies quite clearly the very limited scope of Mr. Tabakovic's
22 wrong-doing and the very narrow and limited impact that his actions had
23 on the proceedings of the Lukic and Lukic trial.
24 That said, Mr. Tabakovic accepts that he did wrong. His decision
25 to bring his actions to the attention of the Prosecution at the end of
1 2008 we would submit establishes as much. He knew it was wrong; he drew
2 it to their attention. He was anxious for the matter to be resolved and
3 to prevent any serious harm to the trial process.
4 We would also seek to draw Your Honours' attention that
5 Mr. Tabakovic's decision to sign a false statement was motivated out of a
6 desperation for money. It was not motivated out of any political or
7 ethnic motive to frustrate the trial process. It was not a well thought
8 out plan. As he said himself, There was not much thinking into it, and
9 it was not for patriotic reasons.
10 Moreover, as acknowledged by the Office of the Prosecutor,
11 Tabakovic did not know the precise purpose for which the statements were
12 to be used nor the impact that the statements were intended to have on
13 the Lukic trial.
14 Your Honours, Mr. Tabakovic, unprompted, has specifically asked
15 me to convey to the Trial Chamber that he has the utmost respect for the
16 ICTY as an institution and the utmost respect for the role it plays in
17 bringing to justice those responsible for the crimes committed in the
18 former Yugoslavia
19 conduct be expressed to both the Trial Chamber and to the victims of the
20 crimes identified in the Lukic and Lukic case. His desire to cause no
21 further injustice to those victims prompted him to report to the
22 Prosecution at the end of 2008. It was, in his words, the proper thing
23 to do.
24 This is a case, we would submit, in which maximum credit should
25 be given for his guilty pleas. Mr. Tabakovic has consistently
1 acknowledged that what he did was wrong. He, appropriately and of his
2 own accord, reported matters to the Prosecution. Without him, there
3 would have been no case against him or anyone else. It was his actions
4 alone that led him to being in this courtroom today.
5 Your Honours will see the matters set out in paragraphs 12 to 16
6 of the Defence mitigation note, matters dealing with Mr. Tabakovic's
7 personal circumstances. I don't propose to go into those matters in
8 detail in open session save to say that Your Honours have those details
9 before you, and we would submit and hope that Your Honours take those
10 matters into consideration when passing sentence on Mr. Tabakovic.
11 All I will draw to Your Honours' attention is, of course, he is a
12 man of limited means. It is worth, perhaps, drawing to your attention
13 that five -- that one convertible mark is 50 cents, so one euros is two
14 convertible marks. So Your Honours will see from the matter set out that
15 he is a man of very limited means. Moreover, in 2008, due to his health
16 problems, he spent some time in hospital, some three months, obviously
17 preventing him from being able to work. And that was in the period
18 immediately before he entered into this -- this matter and obtained the
19 money as a result of signing a false statement.
20 So he was unable to work for three months. He is a man of
21 limited means, in any event, prior to that. And, of course, his
22 detention in relation to this matter is having a impact on his family and
23 who are at present living only off his wife's income in -- in Bosnia
24 And Your Honours will, of course, see the matters set out in paragraph 16
25 in relation to that.
1 The third portion of my address to Your Honours deals with the
2 circumstances of his arrest and the time that he has spent in custody.
3 Your Honour will note that in November 2009 Mr. Tabakovic was in Croatia
4 He had just thankfully found a job. While in Croatia, he heard through
5 friends that he was wanted in relation to proceedings at the ICTY. He
6 immediately, immediately tried to make contact with the field office in
8 investigators and face the allegations. He was arrested on the
9 23rd of November, 2009. Prior to his arrest, he spoke to police officers
10 by phone and arranged a place to meet for his arrest by mutual agreement.
11 He did not resist arrest and no coercion was used nor necessary.
12 He was held in custody until his release on bail by the court of
13 Bosnia and Herzegovina on the 26th of November, 2009
14 period in custody from arrest on the 23rd of November to the 26th of
15 November, 2009. He was then placed on fairly stringent bail conditions.
16 He was prohibited from leaving his place of residence. I understand that
17 to mean that he was prohibited from leaving the environs of the city that
18 he lived in, and was to sleep -- live and sleep each night at his home
19 address. He had to surrender various identification documents, and he
20 had to report daily at his local police station. And that was for a
21 period of some 21 days until his transfer to The Hague on the
22 18th of December, 2009. He has remained in custody since.
23 May I just deal with one in relation to the time that he has
24 spent in custody. He spent, obviously, 90 days in custody here in
25 The Hague
1 But may I go into private session to deal with one discrete
2 matter in relation to that.
3 JUDGE PARKER: Did you mean 90 or 87 in custody in The Hague
4 MR. POWLES: Sorry, 87 in custody in The Hague plus the time he
5 spent in custody in Bosnia
6 90 days in custody altogether, including both those periods.
7 JUDGE PARKER: Private please.
8 [Private session]
2 [Open session]
3 THE REGISTRAR: We're in open session, Your Honours.
4 MR. POWLES: Moving on, then, Your Honours, to the Prosecution's
5 sentence recommendation. I'm obviously extremely grateful to the
6 Office of the Prosecutor for the very helpful digest of all the cases in
7 relation to contempt and the various sentences that were imposed here at
8 the ICTY. It is a helpful digest.
9 May I draw to Your Honours two mistakes in relation to some of
10 the sentences that were imposed. In relation to Haraqija, the
11 17th of December 2008 case, disposition guilty, imprisonment for five
12 months, it's worth noting that he was acquitted on appeal. So that
13 sentence did not stand.
14 And the only other error is on the Bulatovic case, a case
15 involving refusal to testify in which in the note it said that four
16 months' imprisonment was imposed. It is right to observe that those four
17 months were suspended. It was a suspended sentence for two years by
18 virtue of the health concerns of Mr. Bulatovic.
19 So those are the matters in relation to that. Obviously there is
20 a wide range of sentences for contempt here at the ICTY. In relation to
21 contempt cases at this Tribunal for interference with or intimidating
22 witnesses in which imprisonment has been imposed, the range is from
23 3 to 5 months in the cases of Beqaj, Morina, and Haraqija, which of
24 course, was quashed on appeal.
25 It's worth drawing to Your Honours' attention that all of those
1 sentences, of those 3 to 5 month sentences, all of those sentences
2 followed contested trials at which the accused protested their innocence.
3 In all those cases, the accused's contact was designed to specifically
4 have a direct impact and a serious impact and consequences on the
5 administration of justice. Moreover, in none of those cases, did the
6 accused bring their own conduct to the attention of the ICTY for it to be
7 dealt with accordingly.
8 The other case relating to interference with witnesses or dealing
9 with false evidence and witnesses is, of course, the Milan Vujin case.
10 The Appeals Chamber find Milan Vujin, who was counsel for Mr. Dusko
11 Tadic, 15.000 Dutch guilders. He received that sentence in circumstances
12 where he had obtained false evidence to present to the Appeals Chamber
13 and which was presented to the Appeals Chamber against the interests of
14 his own client. That gross breach of trust and corruption of justice did
15 not even warrant a custodial sentence. I'm all for treating lawyers
16 leniently, but we would submit that Mr. Tabakovic's conduct falls well
17 below of that Milan
18 We would submit, therefore, that the Prosecution's recommendation
19 of four to six months is far, far too high, especially in light of the
20 very limited scope of Mr. Tabakovic's interference with justice and the
21 very positive steps he took to cooperate with the Prosecution and these
22 proceedings. Again, it was Tabakovic himself who sought to ensure that
23 no harm was done to the outcome of the Lukic trial.
24 Your Honours will see the matters dealt with at paragraph 26 of
25 the Defence mitigation note. It arose during the context of closed
1 proceedings in another trial, so I don't seek to go into it any detail.
2 But I would highlight the final line of the quoted paragraph in
3 paragraph 26, the line from the proceedings that were held in closed
5 Mr. Tabakovic's conduct clearly falls on the other side of the
6 line of whether it is contempt or not. It clearly is, and that is
7 attested to by virtue of his pleas. However, we would submit that that
8 statement by the Prosecution at that earlier stage on the record in those
9 proceedings really does highlight very starkly how his conduct falls at
10 the very bottom end of the level of seriousness with regards to contempt.
11 In light of that stated previous position, we would submit that
12 the Prosecution's recommendation of four to six months is clearly
14 So we move on, then, to the Defence recommendation for sentence.
15 Mr. Tabakovic's interference with the administration of justice
16 is limited to the matters set out in paragraph 6 of the mitigation note
17 and the schedule of conduct which Your Honours have. In addition to his
18 very limited -- the very limited scope of his activity, we would submit
19 that it is appropriate to consider his conduct in light of the
20 involvement of others perhaps more serious and senior protagonists in
21 relation to this affair. His initial involvement was obtained and
22 marshalled by the Case Manager in the Milan Lukic Defence. Thereafter,
23 he was handled by another individual. Your Honours will see that on the
24 11th January he had discussion with a member of that team and that member
25 of the team was aware that -- of various matters in relation to the --
1 Mr. Tabakovic's position in relation to his knowledge of Milan Lukic.
2 The significant factor, we would submit, that none of those
3 properly behind this contempt are before this Tribunal. Mr. Tabakovic's
4 role should perhaps also be compared to that of Mr. X and Mr. Y, neither
5 of whom have been prosecuted for contempt. Both X and Y knew their
6 statements were false and for use in the Milan Lukic case. That could
7 not be clearer than by looking at the statements that they signed, behind
8 tab -- behind tab 6 in relation to Mr. Y. Your Honours will see the
9 signature on 23rd of October, 2008. Above it is the declaration,
10 obviously I won't try and read the B/C/S version, but at the end of tab 6
11 is the declaration that appeared above the signature. It states:
12 "I have read the statement consisting of four pages containing
13 everything I said, and it -- I have given the statement voluntarily, and
14 I'm aware that it may be used in legal proceedings before the
15 International Criminal Tribunal for the former Yugoslavia, and I may be
16 called to give evidence in public before that Tribunal."
17 A similar statement appears at the end of X's statement which is
18 at tab 7. There can be no doubt, we submit, that both knew that the
19 statements they were signing were for use in these -- for the proceedings
20 at the ICTY. Moreover, X, like Tabakovic, told Y that he would be given
21 money if he signed something. Again, neither X nor Y have been
22 prosecuted for contempt in stark contrast to Mr. Tabakovic.
23 Not only have X and Y not been prosecuted, but both have had
24 their involvement in this matter kept out of the public domain.
25 Mr. Tabakovic by contrast has been publicly indicted, and his involvement
1 with the Lukic Defence and his preparedness to sign a false statement
2 widely known. Your Honours will see the matter set out at the -- the two
3 concluded sentences to paragraph 31. And, additionally, I don't seek to
4 go into any detail in relation to the matters set out in paragraph 32,
5 obviously because they arose in private session.
6 Mr. Tabakovic's time in custody has caused him real anxiety and
7 concern over the last three months or so. However, he perhaps faces even
8 greater hardship upon his return home. At present, the real impact of
9 his detention did being felt by his family.
10 Finally, by way of highlighting the cooperation that
11 Mr. Tabakovic has given to the Office of the Prosecutor, may I highlight
12 the following points.
13 He initiated this case by bringing matters to the attention of
14 the Prosecution. Secondly, he himself provided his statement and
15 Milan Lukic's hand-drawn map to the Prosecution at the very outset of his
16 contact with them. Thirdly, he was initially informed that he was a
17 "witness" in this case and cooperated fully with the Prosecution in that
18 regard. Fourthly, after making initial contact with the Prosecution, he
19 was quick to inform them of any further contact with the Lukic Defence.
20 Fifthly, over nine months, he dutifully attended eight interviews with
21 the Prosecution. He was -- or felt certainly at one point discouraged
22 from seeking the assistance of a lawyer who would perhaps have offered
23 him independent advice on how to conduct himself. Notwithstanding that,
24 he did dutifully attend nine interviews. And in his suspect interview on
25 24th of December last year, he didn't even invite the assistance of a
1 lawyer at that stage. Sixthly, he provided details of all others
2 involved in this case to the Prosecution. Seven, he took part in
7 Your Honours will see the matters set out at point 9. I don't
8 seek to deal with that at this stage, but Your Honours will no doubt have
9 the point.
10 In all the circumstances, Your Honours, we would submit that in
11 light of his very substantial cooperation with the Office of the
12 Prosecutor, in light of the fact that he brought his conduct to the
13 attention of the Office of the Prosecutor, and in light of the fact that
14 there could have been no case without his bringing it to the attention of
15 the Office of the Prosecutor, we would submit that in the very unusual
16 circumstances of this case, a reprimand or perhaps modest fine would have
17 been the appropriate way of dealing with Mr. Tabakovic.
18 He has now spent three months in custody. On his behalf, this
19 Court is urged to impose a sentence that will ensure his immediate
21 Your Honours, those are our submissions, unless I can assist you
23 JUDGE PARKER: Thank you, indeed, Mr. Powles.
24 Mr. Rogers.
25 MR. ROGERS: Your Honours, yes, there are just a couple of
1 matters I'd like to address, if I may, arising from what my learned
2 friend has said. Just a few factual points, really.
3 The first is at paragraph 6, Roman (ii), where he refers to the
4 provision of false statements of X and Y, on the 20th of January, in fact
5 all three statements were provided on the 20th of January from all three
6 individuals, so Mr. Tabakovic and the other two. It wasn't just those
7 two that were provided on the 20th of January at court.
8 And Your Honours, there are two matters I'd like to address, if I
9 may, please, in private session.
10 JUDGE PARKER: Private, please.
11 [Private session]
20 [Open session]
21 THE REGISTRAR: We're in open session, Your Honours.
22 MR. ROGERS: Your Honours, I can confirm that Mr. Tabakovic did
23 contact the Office of the Prosecutor prior to his surrender. It is not a
24 matter that was covered within the plea agreement, but it's only fair and
25 proper that the Court should know that that did in fact happen. He
1 inquired, once he became aware of the proceedings himself, and to what he
2 should do and what steps he should take.
3 Your Honours, the expression of view that my learned friend
4 refers to, Your Honour, we submit that whatever expressions of view may
5 have been prior to this accused's prosecution, those expressions of view
6 should not and cannot in any way bind the Chamber once it has concluded
7 that a crime has in fact been committed. We all have differences of view
8 from time to time, but once the conclusion has ban been made that a crime
9 has been committed, it is irrelevant. What matters is the sentence that
10 should be passed in respect of the contact.
11 And likewise the fact that others may have not yet been or should
12 have been or might have been prosecuted for other roles in whatever went
13 on is also not a relevant sentencing consideration, in our submission, in
14 relation to this accused's conduct. Your Honours are not concerned with
15 why others are or may not be before the Court. Your Honours are simply
16 concerned with this accused's conduct and whether it warrants a sentence
17 of X or Y length.
18 Finally, in relation to the two points my learned friend makes in
19 relation to previous sentences, in relation to the Haraqija case, of
20 course, the relevance is the sentence that was passed by the
21 Trial Chamber. The fact that it was quashed on appeal, the conviction
22 was quashed on appeal, is really neither here nor there. The question
23 is: If the contact had been criminal, what was the relevant sentence.
24 And so far as the Vujin case is concerned, there are two aspects
25 to that. Firstly, I would invite Your Honours to read it. Secondly, it
1 was a case that was dealt with under the old regime when the maximum
2 sentence available was six months' imprisonment. And thirdly, the Court
3 pondered long and hard over whether or not the accused should go to
4 prison in this case, but because he was a Serbian lawyer and was likely
5 to be disbarred, the Court took that into account in deciding that they
6 would opt for a fine rather than imprisonment. So in our submission,
7 Your Honours may find limited assistance from that case. But, of course,
8 it's a matter for you, and you have the list and can use it as you wish,
9 in relation to sentence.
10 Your Honours, that is -- there is one other matter, in fact, I
11 need to raise just briefly in private session.
12 JUDGE PARKER: Private, please.
13 [Private session]
23 [Open session]
24 THE REGISTRAR: We're in open session, Your Honours.
25 MR. POWLES: Your Honours, in relation to paragraph 6,
1 Roman (ii), of the Defence submissions in the provision of the false
2 statements of X and Y to the Prosecution by the Lukic Defence on
3 20th of January, 2009, it is, of course, right that Mr. Tabakovic's
4 statement was also given at that stage, and that is clearly set out and
5 acknowledged in the chronology or schedule of conduct. The reason why it
6 is not mentioned there is, of course, at that stage he had already
7 identified himself to the Office of the Prosecutor, which would have
8 meant that notwithstanding his provision of his statement to the Office
9 of the Prosecutor, they knew who he was and they would have immediately
10 been able to identify him, which is why in Roman (ii) of 6 he is not
11 included in there. But it is, of course, right that his statement was
12 also provided with those two statements.
13 Finally, in relation to others who may or may not before this
14 Court, we would submit that is a relevant factor. Of course, this Court
15 will want to take into account how others have been treated in relation
16 to this case to ensure that there is a parity of treatment between
17 Mr. Tabakovic and others. And the fact that two others who have
18 committed if not identical certainly very similar conduct to him, the
19 fact that they have not even been prosecuted or even identified, we would
20 submit that that is a factor that is relevant for this Court to take into
21 consideration when determining how best to deal with Mr. Tabakovic.
22 And those would be my submissions, Your Honours.
23 JUDGE PARKER: Thank you, Mr. Powles.
24 [Trial Chamber confers]
25 JUDGE PARKER: The Chamber has received very considerable
1 assistance in this matter from both counsel, and this is reflected not
2 only in the care in which the motion and the proposed plea agreement has
3 been prepared and framed but is also reflected in the very careful and
4 thorough submissions in mitigation and the supporting papers that have
5 been put before us by Mr. Powles. We acknowledge those.
6 Because of those, and having regard to the circumstances, we have
7 been able to reach a decision today as to the sentence that should be
8 imposed. It is the Chamber's view, though, that it would be helpful in
9 the longer term for its reasons for reaching that decision to be
10 published, and that will be done in the next few days. But, in view of
11 the circumstances, it is the view of the Chamber that it should announce
12 its decision with respect to sentence today so that appropriate
13 consequential actions can be taken and so that Mr. Tabakovic is not left
14 in further anxiety.
15 Mr. Tabakovic, if you would stand.
16 The Chamber has given consideration to the very careful
17 submissions that have been put on your behalf, in which the issues have
18 been covered most thoroughly, and your role in this matter and the
19 consequences for you have been put before us very carefully.
20 We will impose a sentence on you and we will publish in a few
21 days full written reasons for that sentence, but out of concern for your
22 situation, we will take the unusual step of announcing the penalty now.
23 In the view of the Chamber, in respect of the three convictions
24 that have been imposed today, you will be sentenced to one term of
25 imprisonment of three months. Credit will be given under the Rule, in
1 respect of the time spent in custody, and the effect, therefore, of that
2 sentence is that, later this week, you will be eligible for release. And
3 the Chamber would expect that the formalities necessary to enable that
4 release will be made with expedition that you can be released at the
5 earliest opportunity.
6 You may be seated.
7 The Chamber would thank both counsel for their assistance in this
9 We will now adjourn.
10 --- Whereupon the hearing adjourned at 12.12 p.m.