Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Friday, 3 February 2012

 2                           [Rule 77 Hearing]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 9.03 a.m.

 6             JUDGE KWON:  Good morning, everyone.  Would the Registrar please

 7     call the case.

 8             THE REGISTRAR:  Thank you and good morning, Your Honours.  This

 9     is case number IT-95-5/18-R77.2, in the contempt case of Milan Tupajic.

10             JUDGE KWON:  Thank you.  Can I have the appearances.

11             MR. LAZAREVIC:  Good morning, Mr. President.  Good morning,

12     Your Honours.  My name is Aleksandar Lazarevic, and I will represent

13     Mr. Tupajic in this case.

14             JUDGE KWON:  Thank you, Mr. Lazarevic.

15             Good morning, Mr. Tupajic.  Are you following the proceedings in

16     the language you understand?

17             THE ACCUSED: [Interpretation] Good morning.  Yes, I can follow

18     the proceedings without any difficulties.  Thank you.

19             JUDGE KWON:  Thank you.  Before we begin today, the Chamber will

20     give a summary of the case against the accused, Mr. Milan Tupajic.

21             On the 9th of September, 2011, the Prosecution filed a motion to

22     the Chamber in the Karadzic case seeking a subpoena to compel the

23     testimony of Witness Milan Tupajic.  On the 23rd of September, 2011, the

24     Chamber in that case issued a subpoena ordering Mr. Tupajic to appear and

25     testify in the Karadzic case on the 3rd of October, 2011.  On the

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 1     5th of October, 2011, the government of Bosnia and Herzegovina filed a

 2     Memorandum of Service which indicated correspondence from Mr. Tupajic

 3     indicating that he was unwilling to appear and testify in the Karadzic

 4     case.

 5             On the 3rd of November, 2011, the Chamber in the Karadzic case

 6     issued a second subpoena again ordering Mr. Tupajic to testify in the

 7     Karadzic case.  On the 8th of November, 2011, the government of

 8     Bosnia and Herzegovina filed a Memorandum of Service which indicated that

 9     Mr. Tupajic refused to comply with the second subpoena.

10             As recalled earlier, Mr. Tupajic is being prosecuted for contempt

11     for having knowingly and willingly interfered with the administration of

12     justice by refusing to comply with two subpoenas ad testificandum.

13             Now, Mr. Lazarevic, you have the floor.

14             MR. LAZAREVIC:  Thank you, Your Honour.  In this case,

15     Mr. Tupajic after consulting his Defence decided to testify by himself in

16     his defence.  We intend to admit -- well, to offer for admittance

17     20 documents which will corroborate Mr. Tupajic's testimony and that's

18     basically all that we have, and we believe that his testimony will be

19     completed today by the end of working hour.

20             JUDGE KWON:  Thank you.  So please proceed, Mr. Lazarevic.

21             MR. LAZAREVIC:  Thank you, Your Honour.  I will now call

22     Mr. Tupajic to take the floor.

23             JUDGE KWON:  Thank you.  Yes.

24                           [The accused takes the stand]

25             JUDGE KWON:  Would Mr. Tupajic take the solemn declaration.

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 1             THE WITNESS: [Interpretation] I solemnly declare that I will

 2     speak the truth, the whole truth, and nothing but the truth.

 3             JUDGE KWON:  Thank you, Mr. Tupajic.  Please be seated.

 4                           WITNESS:  MILAN TUPAJIC

 5                           [Witness answered through interpreter]

 6             JUDGE KWON:  Please make yourself comfortable.

 7             Yes, Mr. Lazarevic.

 8             MR. LAZAREVIC:  Your Honours, if I may just for a second use

 9     Mr. Usher's assistance.  For Mr. Tupajic's convenience, I made hard

10     copies of all the documents that I intend to use.  I believe that it

11     would be much easier for him to deal with hard copies, and I have one

12     binder if I could hand it over to Mr. Tupajic.

13             JUDGE KWON:  Yes.  By all means, please.

14                           Examination by Mr. Lazarevic:

15        Q.   [Interpretation] Good morning, Mr. Tupajic.

16        A.   Good morning.

17        Q.   Before we commence with your evidence, I'd like to caution you

18     about one thing.  I know that you've already testified before this

19     Tribunal.  Still, since both of us speak the same language, wait for me

20     to put my question fully and wait for it to be recorded in the

21     transcript, which will be indicated by the cursor stopping on the screen,

22     and then proceed with your answer.  This is to ensure that all your

23     answer -- answers are accurately recorded.

24        A.   Yes.  I will do my best to assist in that.

25        Q.   Let us begin with some of -- information concerning your personal

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 1     background, starting with your full name.

 2        A.   My name is Milan Tupajic.

 3        Q.   Can you give us your date and place of birth.

 4        A.   I was born on the 2nd of June, 1954, in the place called Knezina

 5     in the municipality of Sokolac.

 6        Q.   And where do you reside at present?

 7        A.   In Sokolac.

 8        Q.   Are you married?

 9        A.   Yes.  I have -- I have been married since 1980.

10        Q.   Do you have any children?

11        A.   Yes, two sons.

12        Q.   And what are their ages?

13        A.   The older son is 30, and the younger 26.

14        Q.   Do you have any grandchildren?

15        A.   Not yet.

16        Q.   Mr. Tupajic, do you have any employment at present?  Can you tell

17     Their Honours?

18        A.   No.  I have not been employed since 30 -- 30th June 2004.

19        Q.   So where do you earn your livelihood?

20        A.   Well, from that date until the month of April of 2006, I didn't

21     have any earnings, whereas in April of 2006, a commission of the

22     Republika Srpska PIA fund declared that I should be retired, and I have

23     been retired ever since.

24        Q.   It seems, therefore, that you have retired at a rather early age.

25     What was the reason for your retirement?

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 1        A.   Well, I was retired early because in June of 2004, I had a very

 2     serious heart condition which worsened over time.  In April of 2006, the

 3     situation exacerbated and the commission decided that I am 70 per cent

 4     disabled.  Since that moment, I have been retired as a disabled person.

 5        Q.   Thank you.  We will get back to that at some point during your

 6     evidence.  I just wanted Their Honours to know where you get your

 7     earnings from.

 8             Can you tell us what is your pension at present.

 9        A.   In 2006, it was 180 euros, and at present it is 290 euros.

10        Q.   A couple of more questions concerning your family situation.

11     Does your spouse have an employment?

12        A.   She did have until last August, August of last year.

13     Unfortunately, she was declared redundant and was dismissed.  So in our

14     family of four, formally nobody is employed save for my older son who

15     occasionally does an odd job, though I must say it's on the black market,

16     whereas -- although he had graduated two and a half years ago from the

17     faculty of transport, and my younger son is still studying.  So we are

18     having it pretty hard.

19        Q.   Thank you.  I think we now have a clear picture of your family

20     situation.  Can you tell us if your wife has managed to become retired in

21     the meantime?

22        A.   No.  She's currently registered with the unemployment agency.

23     That's the standard procedure, and she is entitled to some 200 euros of

24     unemployment benefit in the coming four or five months, and at the end of

25     that period, we will be down to my pension.  And, of course, given the

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 1     situation in Bosnia-Herzegovina, although I have a degree in economics

 2     and -- although she has a degree in economics and has been working for

 3     28 years in her profession, it will still be very difficult for her to

 4     find a new job.

 5        Q.   Thank you, Mr. Tupajic.  A couple of more questions before we

 6     move on.  Can you tell us first if you have served your military service

 7     and when.

 8        A.   Yes, I did.  From mid-1979 to mid-1980.

 9        Q.   And did you get any sort of rank during your military service or

10     any sort of decoration?

11        A.   No.  I have a degree in mechanical engineering and my line of

12     profession is motor vehicle.  It was in Vojvodina in Serbia that I served

13     my military service, and I was trained in driving, basically.  And after

14     having done my compulsory training, I assisted my instructors in teaching

15     people driving.  I was only given a medal for exemplary conduct, for

16     being a model soldier, and that was a credit for -- that was the credit

17     for my proper service.

18        Q.   One last question on this score.  Do you have any misdemeanour or

19     criminal record, and, if so, what sort?

20        A.   No.  This is the first time that I am appearing before a court of

21     law, whatever branch of law it may be.

22        Q.   Mr. Tupajic, let us move to a different topic now.  It has to do

23     with your experience with this Tribunal so far and your dealings with it.

24             Can you tell Their Honours how far back was your first contact

25     with the Tribunal?  And when I say "the Tribunal," I mean any part of it,

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 1     including the OTP.

 2        A.   The first contact I had with the ICTY OTP was in December of 2002

 3     in Banja Luka.  The interview lasted the whole day.  This was followed by

 4     a number of contacts.  Should I continue?

 5        Q.   Well, let me guide you with my questions to make sure that

 6     everything is properly recorded and understood.

 7             So in December of 2002, you were first approached by the

 8     ICTY OTP.  Can you tell us what sort of contact was it?  Was it by

 9     telephone or in writing?

10        A.   It was a telephone call.  As I said, at the time I was a deputy

11     of the National Assembly.  The seat of the National Assembly was and is

12     still in Banja Luka.  Since the National Assembly was in session at the

13     time, I suggested that my meeting with them take place in Banja Luka, and

14     that was how it happened.  We -- I mean the Assembly was in session for

15     two or three days, and we met, the Prosecution and I, in Banja Luka at

16     what I believe to be a UN base.

17        Q.   You say that this first conversation or interview you had with

18     them was that day.  How long did it last?

19        A.   Well, some six to seven hours in substance, and if you count in

20     the breaks, perhaps a bit longer.

21        Q.   Did you give a statement for the OTP at the time in Banja Luka?

22        A.   No.  I have never given the standard statement to the

23     Prosecution.  This was merely a conversation between me and

24     representatives of the Prosecution.  The interview was recorded and there

25     is a transcript to that effect.  I have never been given an opportunity

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 1     to sign any sort of statements either in relation to that first interview

 2     or to those that followed.

 3        Q.   But at any rate, you have already told us that those -- that the

 4     interview was taped, and let me ask you what you spoke about.

 5        A.   We spoke about the events in Bosnia-Herzegovina, but more about

 6     the events in the Sokolac municipality and the wider area in 1991 until

 7     the end of 1992.

 8        Q.   Very well.  After that first interview in 2002 in Banja Luka, did

 9     you ever meet with the OTP of this Tribunal again, and did you speak to

10     them?

11        A.   Yes.  In 2003.  I cannot exactly remember the date, not even the

12     month, although I had my passport on me, although it's expired now, and

13     it has all the entry stamps of my travels here.  I was summoned by

14     Mr. Tieger, who explained to me that his investigators doesn't have

15     enough time to go to Bosnia-Herzegovina and asked me whether I was

16     willing to come to The Hague to continue the talks with them.

17             I must admit it was not so easy for me to come, because that was

18     the first time I ever came here, especially on my own, but I did respond

19     to all three invitations, which means that in April 2003, I was in

20     The Hague three times and spoke to OTP representatives for a couple of

21     days in a row each time.

22        Q.   In that period, and I mean 2002/2003, did you ever refuse to meet

23     OTP representatives and talk to them?

24        A.   Never during these almost ten years did I refuse any initiative

25     from the ICTY until that subpoena, unfortunately, which came in.  And it

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 1     wasn't easy for me to bear, because that was the first time I have ever

 2     failed to respond to an official summons of an official institution, but

 3     I will later try to explain how that happened, and I'll try to convince

 4     this Trial Chamber that I had valid reasons for doing so.

 5        Q.   All right.  Yes, we'll get there yet, but while we're dealing

 6     with this topic, tell us whether you have already testified before this

 7     Tribunal.

 8        A.   I testified in late June 2005 in the Krajisnik trial.  I was an

 9     OTP witness.

10        Q.   I don't want to go into the details of your testimony.  What

11     matters to me is that you tell us to what extent you testified.

12             As far as you remember, how much time -- how long before the

13     testimony did you come to The Hague?

14        A.   As far as I remember, I arrived some three or four days in

15     advance.  There is a period for proofing and preparing witnesses, as far

16     as I know, and that stage of preparation for the testimony may have taken

17     as much time, but I'm sure there are records about that.  I think I may

18     have been three days -- or may have arrived three days prior to my

19     testimony.

20        Q.   Your testimony itself, how long did that take from the moment you

21     made the solemn declaration till the moment when you were released?

22        A.   I think that it went on for some two and a half days.  I think

23     that on the last day we began in the morning and we finished around noon.

24     That's what I remember.

25        Q.   And that was a full examination, that is, an examination-in-chief

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 1     followed possibly by a cross-examination and maybe a re-examination.

 2     That is, you underwent all the stages of a witness examination.

 3        A.   Yes.  It was the procedure that I had been able to observe

 4     following the trials here on TV and otherwise.  There was nothing special

 5     about the procedure.  It was all standard procedure when you examine

 6     witnesses here.

 7        Q.   Did you testify in public session or possibly private or closed

 8     session?

 9        A.   I testified in open session, although Mr. Tieger asked me if I

10     wanted or preferred to testify in closed session or under protective

11     measures, but I declined that, because never in my life have I done

12     anything secretly.  Whatever I did, I did openly and transparently.  And

13     I still stand by everything I said during that testimony, and I also

14     stand by the approximately 70 hours of interviews that were taped before

15     that.  I saw it as my duty to try to give a contribution to establishing

16     the truth about the events in the war in Bosnia-Herzegovina, and I

17     thought that would be the end of my duties towards this Tribunal, because

18     I had said what was most important and everything that I was asked to

19     say.

20        Q.   Thank you for this rather detailed answer.  There are some

21     details, though, I would like to ask you about as they may prove

22     important for your subsequent examination.

23             Are you familiar with the full scope of protective measures this

24     Tribunal can offer to witnesses who have such needs?

25        A.   Yes, I am fully familiar with that, and I must point out that

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 1     Mr. Tieger and his co-workers were very fair in all their contacts with

 2     me.

 3        Q.   I only have a couple more questions about your relations with the

 4     Tribunal.

 5             Did you have a political function in the RS?

 6        A.   Yes, I did, but before that I would like to explain how that came

 7     about.  As I have already said, I'm a mechanical engineer by training.

 8     After graduating from university, I worked at the Fabrika Motora in

 9     Sarajevo [Realtime transcript read in error "Srebrenica"].  Once a ball

10     bearing factory was built in my hometown of Sokolac by a Swedish firm,

11     the local leadership contacted me and asked me if I could help in the

12     implementation of that project, and I worked there until June 1991, when

13     unfortunately that factory ceased to operate.

14             Then I was contacted by some people from the party that was in

15     power then, because the position of president of municipality had been

16     vacated, and I became president of the municipality from 20 -- from

17     1 August 1991 until 7 November 1997.

18             At the first elections after the civil war in Bosnia-Herzegovina

19     in late 1996, I was also elected a deputy, and I remained deputy until

20     29 June 2004, when I was removed from office pursuant to the decision of

21     the High Representative, Mr. Ashdown.

22        Q.   Thank you very much, but please wait for a moment for the sake of

23     the record, because I --

24             MR. LAZAREVIC:  Your Honours, if I may correct the transcript,

25     it's on page 11, row 7, it says here "Srebrenica."  Instead of that it

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 1     should read "Sokolac."

 2             JUDGE KWON:  Thank you, Mr. Lazarevic.  That will be corrected.

 3             MR. LAZAREVIC: [Interpretation]

 4        Q.   Mr. Tupajic, let me now go back to the part of your evidence

 5     where you said that you were a deputy in the Assembly of the

 6     Republika Srpska.  I would like the Trial Chamber to get a complete

 7     picture of that.  Please tell us which party delegated you.

 8        A.   I was a deputy of the Serbian Democratic Party, and from 1998 to

 9     2004, I was also chairman of the caucus of the SDS and the

10     National Assembly of Republika Srpska.

11        Q.   While you were both deputy and chairman of the SDS caucus in the

12     National Assembly of Republika Srpska, was the topic of co-operation with

13     the ICTY on the agenda of the Assembly?

14        A.   Yes.  As far as I remember, in 2000 the National Assembly of

15     Republika Srpska adopted a law on the co-operation with the ICTY, but

16     there were problems, and there was obstruction in the process of passing

17     that law, not only among the deputies from my party but also other

18     parties.  Then and much earlier, too, not to mention the present time, I

19     was aware of the fact that such a law must be passed, because it's -- it

20     doesn't only serve the interests of the ICTY but also the interests of

21     the RS.

22             I believe that my authority may have been decisive in the

23     adoption of that law.  As we were the majority in parliament then, it

24     wouldn't have been possible to adopt that law without our support.  There

25     were some deputies who were against that, and they voted against that

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 1     law.  That's when I became aware that these matters need to be taken care

 2     of.

 3             By the way, all my life I had been a legalist, and I've always

 4     tried to -- I've always striven to -- for my activities to be in the

 5     framework of the law.  And if I may add that my interventions must have

 6     been recorded in the transcripts from the National Assembly sessions.

 7     The minister of justice was Biljana Maric then, and the prime minister

 8     was Mr. Ivanic in 2000.

 9        Q.   Let us now take a look at a document that has to be -- has to do

10     with what you have just spoken about.  That's document D20.  In the

11     binder you have in front of you, that's the last document.  It's at the

12     W tab.

13             As we see in the upper right-hand corner of this document, it is

14     addressed to the Office of the High Representative for

15     Bosnia-Herzegovina.  Let me first ask you if this is your handwriting.

16        A.   Yes, it is.

17        Q.   What were the circumstances of the drafting of this letter?  When

18     was it sent and why?  What does it contain?  After that, I will point out

19     certain sections of the letter to you.

20        A.   At that time, Mr. Schwarz-Schilling was the High Representative

21     for Bosnia-Herzegovina.  He was from the Federal Republic of Germany, but

22     that doesn't matter much.  He invited all of us who had been removed from

23     office pursuant to the decisions of previous high representatives to

24     contact his office for those decisions to be reconsidered and the

25     sanctions possibly abolished.

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 1             Perhaps my style in this letter was not appropriate and possibly

 2     that was why it was never read out to him, but I took that opportunity to

 3     tell Mr. Schwarz-Schilling, in brief, that there was not a single reason

 4     for that decision of Mr. Ashdown back in 2004 removing me and other

 5     colleagues from office, because that happened without establishing the

 6     facts prior to that decision.  The reason was also because I and some

 7     others went about our jobs in the positions to which we were appointed.

 8     And finally I said whatever his decision, I would respect it the same way

 9     I respected the decision of Mr. Ashdown, although it was totally unjust

10     and unfounded on facts.

11             No investigation was ever launched against us, nor was there a --

12     a judicial procedure.  Only in August of last year, pursuant to a

13     decision by Mr. Intzko, all persons who were suspended with me in 2004

14     were rehabilitated.  However, in the meantime, many things happened that

15     ruined the health and careers of many of us.

16        Q.   I would just like you to look at the second page of this letter

17     sometime -- some place in the middle.  In the English version this is at

18     the end of page 1, where it talks about the SDS deputies.

19             I read this letter very carefully, and I can see that you've

20     already testified to this before this Tribunal.  All of these facts that

21     you have stated here before this Trial Chamber you also wrote about to

22     the High Representatives as your -- your -- in your role as the president

23     of the Deputies' Club and responsible for liaison with The Hague

24     Tribunal, so we don't really need to state those things again.

25        A.   Well, again, I said that the decision was made without actual

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 1     consideration of all the work we did in our co-operation with the

 2     Tribunal.  When the decision on our replacement was announced, it was

 3     said that it was due to our failure to co-operate with The Hague

 4     Tribunal, but by that time I had already been to The Hague three times,

 5     and I had already referred to the conversation I had with the

 6     Prosecution.

 7             This was also a topic of discussions before the National

 8     Assembly.  Simply, this decision was not founded on any facts, simply the

 9     High Representative decided to make that decision because we were

10     carrying out certain functions at that time, and I think that there was

11     no other reason.

12        Q.   Thank you very much.  To finish this topic, just tell me this,

13     please:  Again at one point in time you were summoned by The Hague

14     Tribunal to testify, only this time it was a summons to testify in the

15     case against Radovan Karadzic.  Are you able to tell me when this was?

16        A.   The first contact concerning this case was made in late July by

17     telephone.  I think that maybe Mr. Tieger got in touch with me at that

18     time, or one of his associates, I'm not sure, but that's not that

19     important right now.  Anyway, he asked me if I was prepared, since

20     two investigators were coming to Sarajevo in late July, whether I was

21     prepared to see them.  I said, "No problem at all, Mr. Tieger.  We just

22     need to set the place for our meeting."  And he also told me the topic

23     that they wanted to discuss with me.

24             The meeting took place in Pale in late July 2009.  Knowing,

25     because Mr. Tieger told me what it was all about, I wrote a letter to

Page 32

 1     Mr. Tieger personally, and in the letter I stated some facts that he was

 2     probably not aware of, some things that had happened in the meantime, and

 3     I told him then about my position that had to do with what was being

 4     asked of me.

 5        Q.   All right.  Well, now that you've mentioned that, I would like

 6     now in the e-court system to actually show this document but not to

 7     broadcast it publicly.  That's document D16.

 8             Mr. Tupajic, in your binder this is in the -- behind the yellow

 9     divider marked with the letter R.  Do you see that in front of you?  Are

10     you able to see it?

11             Is this your handwriting, can you tell us, and is this the letter

12     that you sent to the OTP of this Tribunal?

13        A.   Yes.

14             MR. LAZAREVIC:  Your Honours, if we can move into private

15     session, please, because now we will discuss certain topics which are not

16     to be discussed in public.

17             JUDGE KWON:  Yes, very well.

18             Could the Chamber move into private session.

19                           [Private session]

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

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16                           [Open session]

17             JUDGE KWON:  Yes.  We'll have a break for half an hour and resume

18     at 11.00.

19                           --- Recess taken at 10.32 a.m.

20                           --- On resuming at 11.03 a.m.

21             JUDGE KWON:  Yes, Mr. Lazarevic.  By the way, Mr. Lazarevic, at

22     the outset you said that Mr. Tupajic's testimony would be completed today

23     by the end of working hour.  Do you mean that his testimony will last

24     till 3.00?

25             MR. LAZAREVIC:  No, no, no.  By no means.  I believe that we can

Page 46

 1     finish in one hour, maybe an hour and a half.  That's a fair estimation,

 2     I mean, according to my questions that I drafted, I've already put

 3     two-thirds of the questions to Mr. Tupajic.

 4             JUDGE KWON:  Thank you.  Please proceed, Mr. Lazarevic.  But I

 5     wanted to let you know we are still -- we are in open session.

 6             MR. LAZAREVIC:  Yes.  I was just about to ask for a private

 7     session for one brief moment just in order to finish this topic with

 8     Mr. Tupajic.

 9             JUDGE KWON:  Yes.  Could the Chamber move into private session.

10                           [Private session]

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24   (redacted)

25   (redacted)

Page 47

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12                           [Open session]

13             JUDGE KWON:  Yes.

14             MR. LAZAREVIC: [Interpretation]

15        Q.   Thank you, Mr. Tupajic.  We'll be in open session for a while to

16     speak about some other facts concerning this case.

17             JUDGE KWON:  Mr. Lazarevic, could you think whether the last

18     answer should remain in private session or a confidential part of

19     transcript or whether that's something that can be discussed in public as

20     well, some part?  Shall we go back to -- shall we go back to private

21     session?

22             MR. LAZAREVIC:  Yes, maybe.

23             JUDGE KWON:  Yes.

24                           [Private session]

25   (redacted)

Page 48

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11                           [Open session]

12             JUDGE KWON:  Yes, Mr. Lazarevic.

13             MR. LAZAREVIC: [Interpretation]

14        Q.   Mr. Tupajic, I wanted to discuss this topic with you anyway, but

15     the Trial Chamber is interested too.  Let us go back to the first

16     contacts with the OTP when you were informed that you were to testify

17     before this Tribunal in the Karadzic case.  When did that happen?

18        A.   As I said, the first contact was in July 2009, and I spoke about

19     that interview with the OTP representatives at Pale in July.  In

20     September, Mr. Tieger called me up and asked me if I was opposed to

21     meeting him in Sarajevo as he would be there briefly at the UN base.  Of

22     course, I accepted to meet him, and I met him in the afternoon hours when

23     we spoke for about three hours.

24        Q.   Tell me, please, did that conversation take place before you sent

25     the letter to Mr. Tieger?

Page 49

 1        A.   No.  It was after that.  In late July 2009, I sent the letter to

 2     Mr. Tieger through his co-workers.  That was -- that's a letter we have

 3     already seen here.

 4        Q.   So after that letter you met again, and what did you speak about?

 5        A.   Mr. Tieger, probably not accepting the reasons I stated in my

 6     letter, tried to convince me to come and testify in this case anyway.  On

 7     that occasion, I tried to convince Mr. Tieger that I had valid reasons

 8     for my decision, but I had already stated that in my letter.

 9        Q.   Were there other calls or other meetings with OTP representatives

10     after that?

11        A.   No.  Until July 2011, there were no more contacts.  I believe

12     that it was Mr. Tieger who contacted me then, and basically I got a

13     number of instructions from them.  I went to Nedzarici, the UN base, to

14     receive the transcripts from my testimony in Krajisnik, and then later

15     they informed me that I didn't have a passport, which was true, because I

16     never needed one in the previous years, and I immediately filed an

17     application for a new passport.  And I didn't know how things would

18     develop.  I followed all instructions received from the OTP, and I

19     responded to each of their calls.

20        Q.   Very well.  If we honour the chronology, the next thing that we

21     should mention would be the reception of the subpoena.

22             Did you get the subpoena?  What were the circumstances?  Where

23     were you?  What was happening?  What did you do?

24        A.   The first subpoena came in rather late because it was issued on

25     the 23rd of December --

Page 50

 1             THE INTERPRETER:  No, September, interpreter's correction.

 2             THE WITNESS: [Interpretation] -- and I only received it on the

 3     5th of October.  I immediately went to the police station where it was

 4     handed it me.  They make an official note of that fact.  I never got a

 5     copy though.  I then collected medical documentation and sent it to the

 6     Trial Chamber asking it to accept the reasons I stated for not being able

 7     to respond to the subpoena.

 8        Q.   And after that there was another subpoena.  Tell us when you got

 9     it, how, and so on.

10        A.   The exact date is stated here.  It came in much sooner.  At the

11     police station I stated medical reasons, like the first time around, and

12     some other reasons into which I want to go later, I could not act

13     pursuant to the subpoena.

14        Q.   When you received the first and second subpoenas, did you read

15     them?

16        A.   Yes, I did.  There was nothing unclear neither in the first or

17     the second subpoena.  I was fully aware of all possible consequences.

18     But I also knew that even that would be easier for me to bear than

19     reliving everything I went through after my testimony in 2005.

20        Q.   After two subpoenas you said you got and understood, the decision

21     was issued to apprehend you and take you to The Hague.  How did you get

22     that order?

23        A.   Well, that was expected.  I actually expected that to happen much

24     earlier.  The period from the first subpoena to the arrest warrant was a

25     very stressful period for me.  I didn't know all the procedures in force

Page 51

 1     here.  For two months or so I was in suspense, but I expected the arrest,

 2     and I was aware of what would follow.

 3        Q.   When that came in, did you try to avoid your arrest in any way?

 4        A.   No.  Quite to the contrary.  The BH authorities know that.  I

 5     never did anything to indicate that I would oppose my arrest.

 6             When they came to arrest me, I told them that I had been waiting

 7     for them for quite a while.  So I didn't resist my arrest.

 8        Q.   Mr. Tupajic, I must ask you this question:  You have already

 9     testified before the Tribunal in the Krajisnik case.  Your state of

10     health at the time was what it was.  I don't want to go into the details

11     of it now because we're in open session.  You are testifying even now at

12     this moment before this Honourable Trial Chamber.  Tell me, what's the

13     difference?  How come you can testify today defending yourself but cannot

14     testify in the Karadzic case?

15        A.   I would just like to speak about this in a little more detail

16     now, please, but in view of what I'm going to say, I would kindly ask for

17     that to be done in closed session if that's possible.

18        Q.   Well, if you're asking for that, I think that would be a

19     cautionary measure.

20             MR. LAZAREVIC: [Interpretation] And I would like ask the

21     Trial Chamber to grant the witness's request.

22             JUDGE KWON:  Is it because it is related to your health

23     condition, Mr. Tupajic?

24             THE WITNESS: [Interpretation] No.  What I would like to talk

25     about now has nothing to do with my health condition, but it has to do

Page 52

 1     with the events that ensued after my testimony in the Krajisnik case and

 2     on my return to my place of residence.

 3                           [Trial Chamber confers]

 4             JUDGE KWON:  Out of an abundance of caution, we'll grant it.

 5     We'll back to private session.

 6                           [Private session]

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 53











11  Pages 53-69 redacted.  Private session.















Page 70

 1   (redacted)

 2   (redacted)

 3                           [Open session]

 4             JUDGE KWON:  Just a second.  Yes, we are now in open session.

 5             MR. LAZAREVIC: [Interpretation]

 6        Q.   Mr. Tupajic, for my question and your answer to be given in open

 7     session, we must repeat them.  I apologise.

 8             My last question was, Mr. Tupajic, whether you believe that you

 9     failed to respond to the subpoena of this Tribunal without a valid

10     reason.

11        A.   When I made that decision it was a decision that is contrary to

12     my personal codex or to the attitude I embrace in life in general,

13     because I was aware of not acting pursuant to a binding instruction by a

14     Tribunal.  But with regard to my state of health and its deterioration in

15     recent times, and given all the unpleasant experiences after my testimony

16     in 2005, as well as my commitments to my family which is in a rather

17     precarious situation, I think that my reasons should be sufficient.

18             Of course, if the Trial Chamber does not accept that, then I'm

19     guilty and I have to accept that.  I'm aware of the possibility that

20     my -- the reasons stated will be assessed as insufficient, in which case,

21     I'm willing and ready to accept all consequences.

22             MR. LAZAREVIC: [Interpretation] Thank you, Mr. Tupajic.  I have

23     no more questions of you.

24                           [Trial Chamber confers]

25                           Questioned by the Court:

Page 71

 1   (redacted)

 2   (redacted)

 3                           [Trial Chamber confers]

 4             JUDGE BAIRD:  Mr. Lazarevic, was this evidence given in private

 5     session?  Do you recollect?  I think it was.

 6             MR. LAZAREVIC:  Yes, it was, Your Honour.

 7             JUDGE BAIRD:  Well, can we go in private session then?  Can we?

 8             JUDGE KWON:  Yes.

 9                           [Private session]

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 72











11  Pages 72-73 redacted.  Private session.















Page 74

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7                           [Open session]

 8             JUDGE KWON:  Mr. Lazarevic, shall we deal with the documents you

 9     showed during your examination of the accused.  You showed 20 documents,

10     starting from D1 to D20.

11             MR. LAZAREVIC:  From D1 to D20.

12             JUDGE KWON:  And among them, if my memory's correct, D16, D20,

13     were discussed in open session, but the others were discussed in private

14     session.

15             MR. LAZAREVIC:  All the others should be under seal.

16             JUDGE KWON:  So is it your opinion that all the others should

17     remain under seal?  I'm particular interested in knowing the status of

18     D17, 18, 19.  Those are Mr. Tupajic's letter to MUP, two letters, and one

19     is a stenographical record of the Municipal Assembly.

20             THE WITNESS: [Interpretation] Published on the internet.

21             MR. LAZAREVIC:  Well, as for D19, it can be found on the

22     internet, so there is absolutely no reason for this one to be under seal.

23     However, as for D17 and D18, it's a private letter of Mr. Tupajic, and

24     during his testimony he somehow expressed his disagreement when these

25     letters were sent to the newspapers or made public because they were

Page 75

 1     intended to be sent to just the Ministry of Interior.  So maybe out of

 2     cautiousness, maybe these two letters should remain under seal.

 3             JUDGE KWON:  Very well.  How about D7, Mr. Lazarevic?  It's the

 4     High Representative's decision.

 5             MR. LAZAREVIC:  That one -- that one can be public, I think.

 6             JUDGE KWON:  So we will admit D7, D16, and D20 publicly, and

 7     others will remain admitted under seal.

 8             MR. LAZAREVIC:  Thank you, Your Honour.

 9             JUDGE KWON:  And I take it you closed your case.  There's no

10     further evidence you want to tender.

11             MR. LAZAREVIC:  Yes, Your Honour.  There is no -- any further

12     evidence.  Our case is finished.

13             JUDGE KWON:  And you are going to make a final closing argument,

14     and also, I take it Mr. Tupajic is going to make his statement.

15             MR. LAZAREVIC:  Yes.  That's -- that's the situation.  I am ready

16     to give my closing.  Although maybe it would be better if we take a break

17     five minutes earlier to prepare myself for the closing.  It won't take

18     more than 15 to 20 minutes for my side and approximately something like

19     that amount of time for Mr. Tupajic.

20             JUDGE KWON:  Would it be okay to have a break for half an hour

21     instead of an hour?

22             MR. LAZAREVIC:  Of course.  Of course, Your Honour.  That would

23     be more than sufficient.

24             JUDGE KWON:  Okay.  We'll take a break about half an hour, and we

25     will resume at 1.00.

Page 76

 1                           --- Recess taken at 12.25 p.m.

 2                           --- On resuming at 1.02 p.m.

 3             JUDGE KWON:  Yes, Mr. Lazarevic.

 4             MR. LAZAREVIC: [Interpretation] Your Honours, Mr. President, a

 5     respected colleague of mine while defending before this Tribunal in

 6     another contempt case said that there are no minor or small cases, and I

 7     completely agree with him.  The case in which Mr. Tupajic has been

 8     charged for contempt of court did not take long, just one trial day, but

 9     nevertheless, it is not a minor or a small case.  In volume, it's not a

10     large case.  However, it opens some legal and ethical questions on which,

11     of course, this esteemed Trial Chamber will give their opinion in their

12     ruling and the significance of which far exceeds the actual case itself.

13             Mr. Tupajic has been charged after receiving on the

14     5th of October, 2011, and the 8th of November, 2011, about the content of

15     two subpoenas dated the 23rd of September and the 3rd of November, as

16     well as after being informed of his duty to appear before the Chamber or

17     to state valid reasons due to which he was not able to respond to

18     two subpoenas, has been charged of knowingly and wilfully obstructing the

19     administration of justice because he refused to act upon those subpoenas.

20             Let us now look at the facts of this case.  Mr. Tupajic did

21     receive the first and the second subpoena.  He was informed about their

22     content and, therefore, was aware of his duty to act pursuant to those

23     subpoenas.  This is not in dispute.

24             As for whether Mr. Tupajic wilfully obstructed the administration

25     of justice when he refused to act upon those subpoenas, that is what is

Page 77

 1     at issue here.  In my desire to stay as long as possible in open session

 2     for my closing arguments, I'm now only going to talk about the fact

 3     whether Mr. Tupajic made his decision wilfully.  While looking at that,

 4     whether he did that wilfully or not, this Trial Chamber needs to keep in

 5     mind the following fact:  Reaching a wilful decision implies that the

 6     person who is making that decision has free will, rather, that there are

 7     no reasons which would in any way significantly restrict that

 8     individual's free will.

 9             I'm going to come back to this topic at some later stage of my

10     closing arguments.

11             Linked to this, of course, is the question of the validity of the

12     reasons Mr. Tupajic cited in his answers relating to the subpoena.  The

13     Trial Chamber is familiar with these reasons.  They were reviewed in

14     detail in the course of the proceedings, and according to Mr. Tupajic's

15     understanding, these reasons are justified.

16             Before I analyse them in my closing statement, I would kindly ask

17     the Trial Chamber not to look at these reasons one by one, separately,

18     but to view them as a group of circumstances in the case of Mr. Tupajic,

19     because it is not possible to separate each one of them.

20             When we speak about the reasons which led Mr. Tupajic not to act

21     upon the orders of this Trial Chamber, the Trial Chamber would need to

22     ask itself the following questions:  Would someone who already testified

23     in a case before this Tribunal refuse to testify again without having a

24     valid reason for doing so?  Because the situation of Mr. Tupajic is a

25     specific one.  He already testified in the Krajisnik case in 2005.  And

Page 78

 1     opposed to somebody who is testifying for the first time, he has

 2     first-hand experience about what that means, what it means to testify and

 3     what all the aspects of that are.

 4             Also, would somebody who in their political endeavours urged the

 5     establishment of the co-operation with Republika Srpska with this

 6     Tribunal and who actively took part in the adoption of appropriate laws

 7     within his jurisdiction without a valid reason refuse to testify before

 8     that same Tribunal?

 9             Mr. Tupajic testified as to those reasons in his defence, and he

10     was completely sincere before this Trial Chamber.  At his explicit

11     request, the Defence did not present any witnesses, and it relied

12     exclusively on written documents considering that they speak for

13     themselves and that the sincere testimony of Mr. Tupajic before this

14     Trial Chamber constitutes his very best defence.

15             If we may now, Your Honours, I would like to move into private

16     session, because now I'm going to be dealing with certain matters that

17     were dealt with previously in private session.

18             JUDGE KWON:  Yes.

19                           [Private session]

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 79











11  Pages 79-81 redacted.  Private session.















Page 82

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5                           [Open session]

 6             MR. LAZAREVIC: [Interpretation] At the end of my closing

 7     arguments, I would like to say this:  Mr. Tupajic would plead that this

 8     Trial Chamber acquit him in this case since the reasons that led him not

 9     to act pursuant to orders of this Trial Chamber are valid pursuant to

10     paragraph [as interpreted] 77 of the Rules of Procedure and Evidence.

11     Should this Trial Chamber make a different decision, all the

12     circumstances that were discussed today could be viewed solely as

13     mitigating factors for Mr. Tupajic.

14             The Defence would particularly like to emphasise that Mr. Tupajic

15     is a regular, modest, family man, a man who already testified before this

16     Tribunal and thus gave an important contribution to the work and role of

17     this Tribunal.  On the other hand, we believe that there are no

18     aggravating circumstances which could in this case influence the

19     situation of Mr. Tupajic.

20             At the end, I would just like to take this opportunity to thank

21     Mr. Tupajic for the confidence he expressed by allowing me to represent

22     him in his defence.  I would also like to thank all the participants in

23     these proceedings who helped to run the whole thing smoothly, and in

24     particular to the interpreters who, as always, have done an exceptionally

25     good job.  And I would also like to say that it was my exceptional

Page 83

 1     privilege and pleasure to appear again before this esteemed

 2     Trial Chamber.  Thank you very much.

 3             JUDGE KWON:  Thank you, Mr. Lazarevic.

 4             Mr. Lazarevic, does your client wish to make a statement.

 5             MR. LAZAREVIC:  Your Honour, after I had a brief discussion with

 6     Mr. Tupajic upon his arrival in the courtroom, he told me that he

 7     would -- would like to say just a few words, because he's not really

 8     feeling good today, and it was very exhausting for him, and instead of

 9     reading what he wrote, he will just like to address the Trial Chamber in

10     just a few words.

11             JUDGE KWON:  Yes, Mr. Tupajic, you have the floor.

12             THE ACCUSED: [Interpretation] Honourable Chamber, I am quite

13     tired already with the proceedings we've had today, and I will not repeat

14     the issues I've already stated.

15             In my evidence, I have tried to paint a picture of what I have

16     gone through in the past seven or eight years.  I don't know how

17     successful I was in doing that.  Being a person of technical vocation, I

18     am not given to judging matters relating to words.

19             Let me just emphasise that everything I have stated today is the

20     truth and nothing but the truth.  I would like to go back again to the

21     period following my testimony in 2005 to make just one point.

22             I think that I would have endured that period of my life far

23     easier had I been at the UNDU here in The Hague rather than in my place

24     which is Sokolac, and that because of the gravity of what I had to live

25     through.

Page 84

 1             I think that my co-operation with the Prosecution and the

 2     Tribunal as a whole did give some sort of contribution to shedding the

 3     light and establishing the truth of the events in Bosnia-Herzegovina.  I

 4     have always believed that truth will out, and no small role is played in

 5     that by the people who give their contribution to that.  My contribution

 6     to that would have been even greater but for the reasons detailed today

 7     by my Defence counsel and myself.

 8             I would like to thank both the relevant organs in

 9     Bosnia-Herzegovina, as well as the organs here in the Tribunal and the

10     UNDU for what was on their part very decent and correct treatment of me.

11     I trust that Their Honours will thoroughly consider the points I made and

12     that they will render a fair ruling, and whatever the ruling that they

13     may render shall be, I will respect it.  Thank you.

14             JUDGE KWON:  Yes.  Please be seated.  Thank you, Mr. Tupajic.

15             Very well.  The Chamber will consider all the evidence and

16     submissions and deliver the judgement in due course.

17             JUDGE MORRISON:  Mr. Lazarevic, I'm not commenting on the merits

18     of the case that we have to determine at all.  I simply want to thank you

19     for the very professional and clear way that you conducted this case.  It

20     was a pleasure to have that sort of advocacy, which we don't always have.

21             JUDGE BAIRD:  Mr. Lazarevic, let me endorse the views of my

22     brother Judge and colleague Judge Morrison.

23             JUDGE KWON:  The hearing is adjourned.

24                           --- Whereupon the hearing adjourned

25                           at 1.28 p.m. sine die