Tribunal Criminal Tribunal for the Former Yugoslavia

Page 6602

1 Tuesday, 28 November 2000

2 [Motion Hearing]

3 [Open session]

4 --- Upon commencing at 10.00 a.m.

5 [The accused entered court]

6 JUDGE RODRIGUES: [Interpretation] Please be seated while you're

7 waiting.

8 Good morning, ladies and gentlemen; good morning to the

9 technicians, to the interpreters; good morning, counsel for the

10 Prosecution. I think that we will have to hear the appearances.

11 Madam Hollis, please.

12 MS. HOLLIS: Thank you, Your Honour. Good morning. Your Honour,

13 Brenda Hollis, Kapila Waidyaratne, and Daniel Saxon appear for the

14 Prosecution. In addition, I would like to introduce Susan Somers.

15 Ms. Somers is a very experienced litigator within the Office of the

16 Prosecutor who is replacing Michael Keegan, and in January or February,

17 Ms. Somers will take over carriage of this case as the acting senior trial

18 attorney.

19 JUDGE RODRIGUES: [Interpretation] Mr. Saxon is here as well, as I

20 can see.

21 MS. HOLLIS: Yes.

22 JUDGE RODRIGUES: [Interpretation] For the Defence, please. Let us

23 begin with Mr. Krstan Simic.

24 MR. K. SIMIC: [Interpretation] Good morning, Your Honours. The

25 Defence is in the same composition. With me I have Mr. Branko Lukic, my

Page 6603

1 co-counsel.

2 JUDGE RODRIGUES: [Interpretation] Mr. Nikolic.

3 MR. NIKOLIC: [Interpretation] Good morning, Your Honour. There

4 are no changes. Mrs. Jelena Nikolic and Mr. Eugene O'Sullivan and Zarko

5 Nikolic are on the Defence team.

6 MR. FILA: [Interpretation] Good morning, Your Honour. The Defence

7 of the accused Radic is in the same composition: Toma Fila and Zoran

8 Jovanovic, Your Honours.

9 JUDGE RODRIGUES: [Interpretation] I think that we have

10 Mr. Stojanovic, if I'm not mistaken.

11 MR. STOJANOVIC: [Interpretation] Good morning, Your Honour. There

12 have been certain changes. We have a new co-counsel, Mr. Miodrag

13 Deretic. He is a lawyer from Prijedor. I think that it will be

14 interesting for me to mention that this is the first lawyer from Prijedor,

15 and as we know very well, there are many cases tried before this Tribunal

16 which occurred on the territory of Prijedor, so that I think that this

17 innovation will assist the Trial Chamber. Thank you, Your Honours.

18 MR. J. SIMIC: [Interpretation] Good morning, Your Honours. The

19 Defence of the accused Dragoljub Prcac is in the same composition, myself,

20 Mr. Jovan Simic, and Mr. Dusan Masic.

21 JUDGE RODRIGUES: [Interpretation] Thank you very much. I should

22 like to bid welcome to all new persons who have joined us both as members

23 of the Defence team and the Prosecution team.

24 Madam Registrar, could you please call the case. This is

25 something that we should have done at the beginning but we can do it right

Page 6604

1 now.

2 THE REGISTRAR: [Interpretation] Case IT-98-30/1-T, the Prosecutor

3 versus Miroslav Kvocka, Milojica Kos, Mladjo Radic, Zoran Zigic, and

4 Dragoljub Prcac.

5 JUDGE RODRIGUES: [Interpretation] Thank you very much. I think

6 that we are now ready to proceed with our work.

7 As you know, the parties were requested to prepare themselves for

8 a discussion of a number of issues which are contained in the Scheduling

9 Order, dated the 23rd of November, 2000. We are going to deal with these

10 issues in the order that is indicated in the Scheduling Order.

11 So we will first have a hearing for the arguments, since we have

12 already received written submissions from the Defence and the response

13 from the Prosecutor concerning the motion for a judgement of acquittal.

14 We will hear all of those arguments together in the first part of the

15 hearing, and then the second part of the hearing will be dedicated to a

16 Status Conference with a view to prepare for the Defence case.

17 I will first give the floor to the Defence counsel of Mr. Kos,

18 since the Defence of the accused Kvocka has not filed a motion for

19 judgement of acquittal. I will give the floor to the Defence counsel for

20 Milojica Kos.

21 MR. O'SULLIVAN: May it please the Court.

22 JUDGE RODRIGUES: [Interpretation] You may begin, Mr. O'Sullivan.

23 Please proceed.

24 MR. O'SULLIVAN: Thank you. Good morning.

25 For some reason, I'm getting the B/C/S.

Page 6605

1 JUDGE RODRIGUES: [Interpretation] I'm sure you have made a lot of

2 progress, Mr. O'Sullivan.

3 MR. O'SULLIVAN: I'm hearing it but I'm not sure I'm understanding

4 it.

5 Good morning, Your Honours. As Your Honours know, on behalf of

6 the accused Kos, we filed a motion for judgement of acquittal on the 6th

7 of November. I will speak to that motion with two objectives: to clarify

8 certain aspects of our motion and to respond to the Prosecution's filing

9 of November 20, 2000.

10 Let me briefly address Rule 98 bis. In our submission, the regime

11 to be applied to a Rule 98 bis motion is determined by the Statute and

12 Rules of the Tribunal and the precedents of this Tribunal. In regards to

13 case law, we rely on two decisions which are referenced in our motion: the

14 Kordic case decision of 6 April 2000 and the Kunarac decision of 3 July

15 2000. Both decisions interpret and apply the current version of Rule 98

16 bis.

17 Can I briefly turn to the indictment. Your Honours will know that

18 on the 13th of October of this year, a consolidated indictment was filed

19 in this matter, which includes Schedules A to E. The schedules are part

20 of the indictment pursuant to a decision of the previous Trial Chamber

21 which had conduct of this matter, a decision of 12 April 1998. In that

22 decision, the Chamber ordered the Prosecution to provide further

23 particulars in regards to that indictment, and on May 31st, 1999, an

24 amended indictment was filed with Schedules A through D which are now

25 expanded to A through E. Those schedules specify charges against the

Page 6606

1 accused.

2 In our submission, where there is no evidence or insufficient

3 evidence to sustain a conviction on one or more of the offences charged in

4 the indictment, the Trial Chamber shall order the entry of judgement of

5 acquittal on that or those charges.

6 Let me briefly address the charges alleged against Kos where we

7 say there is no evidence.

8 We say there is no evidence that Kos has any connection with the

9 Keraterm or Trnopolje camps, or any individuals detained therein. There

10 is no evidence that the following nine individuals listed in Schedule B

11 were victims of persecution, inhumane acts, and outrages upon personal

12 dignity. The nine individuals are: Refik Begulic, Mehmed Hadzic, Husein

13 Hodzic, Senad Husic, Safet Ilic, Sakib Jakupovic, Besim Kodzic, Sakib

14 Islamovic, and Ferid Mujcic.

15 In addition, at paragraph 46 of the Prosecutor's response, the

16 Prosecutor writes that: "The Prosecution accepts that there has

17 apparently been no evidence admitted pertaining to these persons."

18 Finally, under Counts 1 to 3, and by reference to Schedule B,

19 there is no evidence linking Kos to alleged beatings and torture on

20 Petrovdan. As requested in our motion of 6 November, this Trial Chamber

21 should enter a judgement of acquittal in favour of Kos in relation to

22 these aspects of the indictment.

23 Let me briefly turn to where there is no evidence under Counts 4

24 and 5: murder.

25 There is no evidence that the following six individuals were

Page 6607

1 murdered by Kos. One individual in Schedule A is Izmet Hodzic. Four

2 individuals listed in Schedule B are Becir Medjunjanin, Hanki Ramic,

3 Mehmedalija Sarajlic, and Miroslav Soljaja. The one individual listed in

4 Schedules C and E is Durat Dautovic.

5 The Prosecution, in its response, made no response to our

6 submission concerning these six individuals. We submit that a judgement

7 of acquittal in favour of Kos should be entered in relation to these

8 alleged murders.

9 Those are the areas of the indictment where there is no evidence,

10 Your Honours. I now turn to what we submit is an insufficiency of

11 evidence.

12 I'm referring to Witness AV, who testified before Your Honours.

13 We submit that this witness did not tell the truth when he implicated Kos

14 in alleged mistreatment. No other witness testified in relation to any

15 alleged mistreatment by Kos against Witness AV. In other words, AV is the

16 only person who gave evidence in relation to this matter.

17 Can I briefly remind the Chamber of the testimony given by AV.

18 The reference is page 5861 of the transcript. Witness AV was being

19 questioned by Judge Wald. She asked him:

20 JUDGE WALD: Did you ever see Krle present when a detainee was

21 being abused or beaten in any of those places?

22 A. I was there, standing in front of them. I was made to slap

23 other detainees, pursuant to his order.

24 JUDGE WALD: So you are telling us now that there was a time when

25 you saw when -- let me say, when he ordered you to slap

Page 6608

1 somebody else? Is that what you're telling us?

2 A. Yes.

3 Your Honours, on re-cross-examination, following Judges'

4 questions, Witness AV continued to insist on this version of events, which

5 I note he had not spoken about prior to Judge Wald's question. And

6 beginning on page 5863, Witness AV said that when Kos ordered him to slap

7 someone that he simply had to do it with without objections. He said it

8 was dramatic and traumatic for him. He said he would never forget it.

9 But when confronted, Witness AV changed his story, and in our submission,

10 he's been shown to be untruthful.

11 He was asked in relation to his statement to the Prosecution:

12 Q. But you never said that Krle ordered you to slap someone?

13 A. No.

14 Q. He never ordered you to slap anyone, did he?

15 A. No.

16 Witness AV is not worthy of belief, Your Honours. He lied to

17 Judge Wald. He continued to attempt to embellish his story. He finally

18 admitted Kos never ordered him to slap anyone. Witness AV was

19 untruthful. His is the only evidence given in relation to alleged

20 mistreatment by Kos of this individual. He can be given no credibility.

21 His testimony should be ignored.

22 Accordingly, we submit that a judgement of acquittal should be

23 entered in relation to Kos in relation to this aspect of Counts 1 to 3.

24 The final areas of insufficiency of evidence in our submission

25 deals with three murders alleged against Kos. We say the evidence is

Page 6609

1 insufficient to sustain the conviction of Kos for the alleged murder of

2 the individual Crnalic. The only witness who gave evidence alleging that

3 Kos shot and killed Crnalic was Witness AI. We say AI was unreliable and

4 was mistaken when he testified that Kos was responsible.

5 Can I remind Your Honours of this: AI testified that he believed

6 Kos was not from Prijedor, the man he believed was Kos was not from

7 Prijedor, based on his features and the way he spoke. Kos is from

8 Prijedor. As we've shown in our written submissions, because of his

9 physical state at the time, Witness AI's memory of events is unreliable.

10 It's no small matter that Witness AI did not identify a guard named

11 Drazenko Predojevic who he claims singled him out for this treatment.

12 Why do we say this? The Prosecution knows who Predojevic is. He

13 was indicted by the Prosecution. His photo was shown to the very next

14 Prosecution witness, Witness B, who identified him. That's Exhibit

15 3/69B. We say the ability of this Witness AI to recollect people and

16 events is quite unreliable.

17 In addition, however, there are other reasons why we say Witness

18 AI is unreliable. Two other Prosecution witnesses testified that someone

19 other than Kos allegedly shot and killed Crnalic. Nusret Sivac testified

20 that the guard who allegedly shot and killed Crnalic wore a hood and

21 always manned a guard position between the "white house" and the pista.

22 There's no proof that Kos ever held such a function.

23 Second, Kermin Mesanovic testified that Kos was present at the

24 time but Kos was sitting at a table, at the left corner near the "white

25 house." There's no evidence that Kos had a gun or fired any shots.

Page 6610

1 The second and third murders, and these are the final submissions

2 on the insufficiency of evidence, relate to two alleged murders: Those of

3 Abduhlah Puskar and Silvije Saric. Again, only one witness gave evidence

4 in relation to that fact: Witness J. We say she is not credible or worthy

5 of belief when she said that she heard Kos was present when these two men

6 were beaten. Your Honours, there's no proof that she can identify Kos'

7 voice; she did not identify Kos in court. We say that the evidence shows

8 that Kos was not present in the camp when the alleged beatings occurred.

9 And in her 1995 statement to the Prosecution, which she adopts as being

10 voluntary and truthful, Witness J never stated that Kos was involved or

11 present during the alleged beatings.

12 I've spent some time talking about the issue of identification

13 when we say the evidence is insufficient. We submit that the issue of

14 identification is of significant relevance and importance under a Rule 98

15 bis motion, especially where the evidence of a witness is the only

16 evidence given in relation to that fact. We rely on the Kordic and

17 Kunarac decision in this regard.

18 I've pointed out that in regard to Crnalic, Witness AI is the only

19 witness whom we say is mistaken and unreliable, and what is more, two

20 other witnesses testified that someone other than Kos allegedly shot

21 Crnalic.

22 In regard to Puskar and Sarajlic, similarly, only one witness gave

23 evidence in relation to these events: Witness J. And as I've indicated,

24 in her statement given five years ago, which she said provided the best

25 recollection of all her experiences, which was made closer in time to the

Page 6611

1 relevant events, she did not implicate Kos.

2 Let me conclude by saying this, Your Honours: Rule 98 bis

3 mandates that the Chamber shall order the entry of judgement of acquittal

4 where the evidence is insufficient to sustain a conviction on one or more

5 offences charged. Each named individual and event we specify in our

6 motion is a charge where the evidence is insufficient to sustain a

7 conviction either because there's no evidence or the evidence is

8 insufficient and unreliable. Both the Kordic and Kunarac decisions have

9 held that where there is insufficient evidence, the accused is entitled to

10 a ruling of no case to answer at this stage of the proceedings.

11 We, therefore, respectfully request that you enter orders of

12 acquittal, pursuant to Rule 98 bis, in favour of Milojica Kos as requested

13 in the motion filed on his behalf on the 6th of November, 2000.

14 Those are my submissions, Your Honour.

15 JUDGE RODRIGUES: [Interpretation] Thank you very much,

16 Mr. O'Sullivan.

17 Mr. Fila -- oh.

18 MR. JOVANOVIC: [Interpretation] Your Honour, I shall be presenting

19 the viewpoints for the accused Radic.

20 The accused Radic has presented his views in the motion for

21 judgement of acquittal for the accused Radic, and I shall repeat some of

22 those elements contained in the motion in brief and will refer also

23 briefly to the Prosecution response.

24 I think that in this situation, and bearing in mind the response

25 by the Prosecution, what is relevant and what we must talk about here

Page 6612

1 is -- and we must look at Article 7(1) and 7(3) of the Statute, because

2 the counts in the indictment, if we take them in their order, 1 to 3 of

3 the indictment, Counts 1 to 3, followed by Counts 4 and 5 and Count 8 to

4 9, must be viewed in the light of Article 7(1) and 7(3) of the Statute.

5 At the outset, the role of the accused Mladjo Radic, his position

6 in the Omarska camp, that is what I should like to talk about. The

7 Defence is of the opinion and has presented evidence that the position --

8 as to the position of Mladjo Radic and the type of authority that he

9 enjoyed in the camp. The Defence considers that the Prosecution has

10 failed to present evidence which would indicate beyond all reasonable

11 doubt that the accused Radic performed and wielded any kind of authority

12 in Omarska camp.

13 The evidence presented by the Prosecution are of such a nature

14 that, in the best of cases, they can be evidence which is put forward

15 indirectly. And we agree that Rule 98 bis provides for the fact that the

16 Trial Chamber may, on the basis of presented evidence, bring in judgement

17 and not that it should. And the Defence considers that with a respect for

18 this standard which the Prosecution sets forth in his response by virtue

19 of the evidence presented is of such a nature that they do not provide

20 proof beyond all reasonable doubt as to the position and status of the

21 accused Radic, as is represented in the indictment. And that is the first

22 point, and we must start out from that assumption if his behaviour -- if

23 he wished to express his behaviour following Article 7(3) of the Statute.

24 From the evidence presented, we have not been able to ascertain

25 beyond reasonable doubt that Mladjo Radic, within Article 7(1), directly

Page 6613

1 performed criminal acts, and in the sense of Article 7(3), the evidence

2 does not show that there was any command responsibility involved in his

3 case.

4 The Defence stressed that in his own testimony, the accused Radic

5 indicated a certain kind of authority; but on the other hand, the

6 Prosecution once again did not present evidence that it was the kind of

7 authority which could prevent or punish the conduct of others, if he had

8 knowledge of that kind of conduct and behaviour. There is no formal

9 appointment for the indictment for Radic, and the Prosecution did not

10 bring in any evidence to show formal appointment.

11 Let me repeat what I have already said: That it is only indirect

12 knowledge and the conclusions made by the individual detainees, or

13 conclusions made generally that the accused Radic was in a position as

14 guard -- head of the shift, but no formal evidence exists as we have seen

15 it; and that the accused Radic in 1994 became the head of the shift within

16 the frameworks of the Omarska police station.

17 The Defence would now like to refer to the conditions that

18 prevailed in the camp as a component part of the -- of persecution and

19 inhumane conduct. No evidence has been provided that Mladjo Radic could,

20 in general terms, with respect to the overall situation, change the

21 conditions of detention at all, and here we include the hygiene conditions

22 of the detainees, the food they received, and the water they were given to

23 drink, and we have heard testimony and evidence about that at length.

24 Sporadic attempts by the accused Radic to help and to see what

25 could be done and to offer help or refuse to give assistance cannot

Page 6614

1 indicate on sufficient grounds and evidence to indicate beyond any

2 reasonable doubt that Mladjo Radic was in a position of that kind, that is

3 to say, that he was able to change the conditions of detention for a large

4 number of detainees or all the detainees.

5 Let me repeat that it was only sporadic cases that we saw where

6 the accused Radic did, in fact, assist. But these allegations of the

7 witnesses of the Prosecution and Radic's own testimony do not indicate the

8 possibility that he himself was generally able to alter the prevailing

9 conditions in the camp. And I have already stated what conditions of

10 detention imply and what the categories were that should have been

11 changed, if that were possible.

12 The Defence furthermore considers that insufficient evidence has

13 been presented to show beyond reasonable doubt that Mladjo Radic could

14 have changed the regime, that is to say, the rules that were applicable

15 to detained persons in the sense of their freedom of movement, but also

16 with respect to the arrival of their families or contact with them; and

17 in that way, indirectly to have been able to change the conditions

18 prevailing in the camp.

19 Therefore, no evidence has been presented which would show beyond

20 reasonable doubt that Mladjo Radic could have enabled detained persons to

21 have contact with their families and in that way have changed the

22 conditions of their confinement.

23 The same applies to the application of the law of BH. Once again,

24 no evidence has been presented which would indicate the possibility of

25 somebody in the position as held by Mladjo Radic, the accused, could have

Page 6615

1 applied those laws during the duration of the armed conflict, whose

2 existence has been ascertained without a doubt. All the rules and

3 regulations of Bosnia-Herzegovina of the day were derided, and as a

4 policeman, that is to say, having the calling of a policeman - and there

5 is official evidence, formal evidence to prove that, and no evidence was

6 put forward to prove the contrary - Mladjo Radic was not in a position to

7 apply any law whatsoever, except to implement the orders he received from

8 his superiors. Briefly, those are the positions of the Defence of the

9 accused Mladjo Radic presented in the motion for judgement of acquittal.

10 Let me mention in this regard that as to Counts 14 to 17 of the

11 indictment, we shall discuss these at greater length at another time. I

12 have also touched upon the response by the Prosecution and should like to

13 repeat that the Defence did take into consideration all the standards

14 required by Rule 98 bis, and including the one that says that sufficient

15 evidence is required for the Trial Chamber to be able to enter a

16 judgement. And so in this phase of the proceedings, with respect to the

17 accused Radic, the trial could be continued only with respect to Counts 14

18 to 17 of the indictment and not the rest.

19 Thank you, Your Honours.

20 JUDGE RODRIGUES: [Interpretation] Thank you very much,

21 Mr. Jovanovic.

22 Let us now hear the Defence of Mr. Zigic. Mr. Stojanovic.

23 MR. STOJANOVIC: [Interpretation] Thank you, Your Honours. I shall

24 try and be brief. I usually do try. And in response to the Prosecution,

25 I do not wish to repeat what has already stated in our written motion for

Page 6616

1 judgement of acquittal. After the response by the Prosecution, we uphold

2 everything we stated in the motion.

3 It is our opinion that at this stage of the trial, the Prosecution

4 nonetheless needs a standard beyond reasonable doubt to be applied to the

5 case, because unless this standard -- if this standard is lacking at this

6 stage of the proceedings, then the Defence has no need to answer the

7 response, and it will not do so. And there will be no conditions for a

8 sentence to be passed with regard to the accused and his incrimination.

9 Having touched upon the question of standards, we are of the

10 opinion that the standards for presenting evidence and proving guilt with

11 this institution must not fall below the standards of the national laws

12 both for war crimes and for ordinary crimes. Regardless of the atrocities

13 that we have heard presented in this court, and I profoundly do believe

14 that they did take place, of course, without entering into the realm of

15 personal responsibility, I can never come to terms with the fact that, for

16 example, that verbal abuse of one's neighbour, we would have to present

17 far greater evidence than for a major war crime.

18 Many details have been brought forward with respect to our own

19 motion and the motion of the Prosecution. I should just like to highlight

20 some of the elements in the Prosecution motion. For example, in paragraph

21 66 of the Prosecution response, it says that for the murder of a certain

22 Spija Mesic, and this is something that Mr. Zigic is being accused of, it

23 is sufficient to present the fact that one of the witnesses mentioned that

24 that individual existed and that that individual was killed, was

25 murdered; and on the other hand, that there was a constant and notorious

Page 6617

1 presence of Zigic in Keraterm. That is not a sufficient standard. And

2 let me mention, having said that, that we profoundly contest this term,

3 the constant and notorious presence of Zigic in Keraterm. We contest that

4 allegation.

5 In our motion, we state that there is not a single piece of

6 evidence to bear this -- to bear out the fact that Mr. Zigic killed Jasmin

7 Izeiri or that this person Izeiri was in Keraterm at all. The Prosecution

8 states that Witness Hase Icic says that Jasmin Izeiri died in Omarska. I

9 think that the Prosecution, therefore, provides an argument to the

10 advantage of the Defence, because the indictment states that Zigic killed

11 him in Keraterm, whereas we now see that this person has died in Omarska.

12 So the difference itself has overruled that charge.

13 As a characteristic of this confrontation between Defence counsel

14 and Prosecution, I should like to indicate paragraphs 78, 80, and 81 of

15 the Prosecution's response where they make mention of the fact that the

16 Defence of Mr. Zigic objected with regard to the form of the indictment.

17 We should like to point out that this was the result of a

18 misunderstanding, because we did not object to the form of the indictment

19 at all. No objections were made there.

20 Paragraph 78 relates to persecution. We do not claim that the

21 indictment is lacking in form in that respect. What we are saying is that

22 the evidence presented cannot lead us to conclude that Zigic can be

23 charged for what he is charged in the indictment in that respect.

24 Paragraph 80 of the Prosecution response relates to other inhumane

25 acts, crimes against humanity, Article 5 of the Statute, and so on. We

Page 6618

1 did not say that the indictment was lacking there. What we said was that

2 the Prosecution has not provided a single piece of evidence and proof

3 showing that those acts had been committed, or facts put forward which

4 could come under that heading.

5 Paragraph 81 of the Prosecution response refers to our standpoints

6 with the application of Article 3 of the Statute. We did not actually say

7 that there were any lackings in the form of the indictment, nor that there

8 was an international conflict. That is an acknowledged fact. There was

9 an international conflict and that is an adjudicated fact. But we

10 consider that if -- that a state of war must exist to sustain conviction,

11 and the Prosecution did not at any point state that a state of war

12 actually existed.

13 We cannot understand some other positions that have been taken,

14 some legal constructions used in the Prosecution's response. To quote an

15 example, I think it is paragraph 85 in that document, where it says that

16 the Prosecution should maintain the fact that Zigic ordered certain

17 detainees to perform fellatio although there is no evidence. So the

18 Prosecution does acknowledge that there is no evidence to bear that out

19 but that this should remain in the indictment. The same goes for the

20 beating of Cirkic. The Prosecution maintains that this should be

21 retained in the indictment, although not a single piece of evidence goes

22 to show that.

23 Now, we don't want to resort to the same kind of legal

24 constructions. Our approach is very simple: Were these acts committed,

25 and was there anything to prove -- any evidence to prove that they were

Page 6619

1 committed?

2 Another characteristic in the Prosecution's response has to do

3 with the fact that we say that there is no evidence to show that Zigic

4 beat up a certain Fikret Alic and Fahrudin Hrustic in Keraterm. In the

5 response, it is stated -- that is to say, there is a combination of those

6 names mentioned by two witnesses, that a certain Fikret Hrustic was beaten

7 up, but, of course, those witnesses did not state that Mr. Zigic

8 had any connection with that or that he was present when that occurred.

9 The greatest problem, however, lies in the answers provided by the

10 two witnesses that Fikret Hrustic was beaten up in Omarska, whereas in

11 the indictment it states that this occurred in Keraterm. And there are

12 many details of that kind. We don't want to enumerate them all at this

13 point, but I would like to have the Prosecution supply us with the annex

14 that is mentioned in paragraph 86. We did not receive the annex along

15 with their response, but that is no hinderance for the Trial Chamber to

16 continue working. I shall look at the annex later on, and I don't want to

17 dwell on that.

18 Having said that, I thank you for your attention, Your Honours.

19 JUDGE RODRIGUES: [Interpretation] Thank you very much,

20 Mr. Stojanovic.

21 Let us hear the Defence of the accused Prcac. Mr. Jovan Simic,

22 you have the floor.

23 MR. J. SIMIC: [Interpretation] Good morning, Your Honours.

24 The Defence of Mr. Dragoljub Prcac would like to point out, first

25 of all, that in its written brief it has moved for a judgement of

Page 6620

1 acquittal in respect of all charges against the accused and not in respect

2 of separate acts and events, as the Prosecution tried to interpret it.

3 I think that through the analysis of the evidence presented by the

4 Prosecution, the Defence has shown that there is not enough evidence; that

5 it has not been proved beyond a reasonable doubt that Dragoljub Prcac is

6 indeed guilty of the crimes with which he is charged in the indictment.

7 At the outset, we should like to discuss the issue of the

8 indictment itself. One has to ask oneself whether the indictment has to

9 be a formal act or a kind of framework within which the Prosecution will

10 move while presenting its evidence.

11 The accused Dragoljub Prcac was charged with being the deputy of

12 the commander of the Omarska camp during the period of time between the

13 24th of May and the 30th of August; was responsible for the acts with

14 which he was charged in Counts 1 to 3, 4 to 5, and 8 to 10. If we should

15 assume that the indictment is a formal act and that it is a basis for a

16 fair trial, and the Defence must be notified of the charges against the

17 accused, then in that case we should stick to this indictment during the

18 presentation of evidence; that we should accept the fact, the requirement

19 that the Prosecution had to present evidence to the effect that the

20 accused was, indeed, in that capacity during the relevant period of time.

21 I will support my submissions with a number of examples. But let

22 me just mention at the beginning what happened here in these proceedings.

23 We made an agreement at the beginning, after the arrest, that there would

24 be a number of adjudicated facts, and we said that we would not be filing

25 a motion on the form of the indictment but that we would try and agree on

Page 6621

1 the form of the indictment. However, that did not happen, and the

2 Prosecutor did not disclose to us all the necessary material in due time.

3 If I remember correctly, in case of Witness K, the Defence wanted the

4 testimony to be deleted because the witness in question never mentioned

5 Mr. Prcac. We were never in possession of the material relating to

6 Mr. Prcac, and we were not aware of the fact that the witness would

7 testify against Mr. Prcac. But then the Prosecutor explained to us that

8 it happened spontaneously.

9 During the cross-examination that I conducted, and this is stated

10 in the record, Witness K had spoken to the Prosecutor and had indeed

11 mentioned Mr. Prcac, that she had indicated that she would be testifying

12 against him; however, that piece of information was never supplied to us

13 by the Prosecutor.

14 At this point in time, the Prosecution is relying on the testimony

15 of Witness K and trying to establish the credibility of the witness. The

16 Defence does not wish to assess the credibility of the witness at this

17 point; however, in order to take stock of the situation, in order to

18 assess the facts, all of the witnesses must be properly assessed. The

19 Defence has not skipped any single witness in their motion. We discussed

20 every witness in our motion, but the Prosecutor failed to do the same.

21 And let me illustrate this with a few examples, because I believe

22 that by proceeding in this manner, one can end up with a completely false

23 image of the factual situation. For example, it is stated that the

24 accused Prcac was present during all shifts, and it is also stated that

25 that was testified to by Witness Nusret Sivac. However, the record does

Page 6622

1 not reflect that piece of evidence. I'm not going to enter into details

2 regarding the testimony of the witness, but this information, as it is

3 stated here, cannot be found in the record. He only mentioned that from

4 time to time he would give the guards a list with names to read out.

5 Further on it is stated that Mr. Prcac had a certain role in the

6 camp, and then they support that with a number of witnesses and what they

7 stated to that effect, and they claim that what the witnesses said was

8 sufficient in order to support the allegation that Dragoljub Prcac was the

9 deputy commander. Thirty-seven witnesses have been heard, and only two

10 mentioned that fact.

11 The Defence has offered an analysis of the command responsibility

12 of Mr. Prcac in their written motion. The Prosecution had an opportunity

13 to ask specific questions of all of its witnesses whether Mr. Prcac was

14 there, what he did, and so on and so forth. But 17 witnesses failed to

15 mention him, and the Defence maintains that those witnesses cannot be used

16 as witnesses who proved that Dragoljub Prcac was in the camp during the

17 relevant times. A number of witnesses didn't even recognise the accused,

18 and there are a number of witnesses that talk about Mr. Prcac only in an

19 indirect manner. There are 13 witnesses who have some -- who have

20 provided some kind of information. Out of the 13 witnesses, we have

21 shown, through our analysis, that seven witnesses had some kind of direct

22 knowledge; five of them were women. So one has to ask oneself: What was

23 the role of the accused, indeed? And was it possible for the Prosecutor

24 to establish beyond any reasonable doubt that Mr. Prcac was the deputy

25 commander. However, nobody saw him. He didn't walk around. And

Page 6623

1 there were only a couple of sightings of the accused on specific locations

2 within the camp.

3 In their reply, the Prosecution is trying to revise their

4 position. They say even if one should assume that Mr. Prcac was not the

5 deputy commander in the camp, his mere presence would indicate a certain

6 responsibility. We have had similar cases in this Tribunal, but in order

7 to state that, one should prove that he was deputy commander and that he

8 had certain authority. The Defence maintains that the Prosecutor has to

9 prove that he was, indeed, the deputy of the commander; otherwise, they

10 should indicate in the indictment that he had some other responsibility,

11 some other kind of duty which enabled him to exert a certain authority in

12 the camp.

13 The second issue I wish to address is the relevant times.

14 Mr. Prcac is charged with the offences for the period of time between the

15 24th of May and the 30th of August. Not a single witness for the

16 Prosecution has testified about that. Not a single piece of evidence can

17 be found to the effect that Mr. Prcac arrived in the camp before

18 mid-July. All witnesses of the Prosecution who testified about the time

19 when Mr. Prcac arrived in the camp claim that he arrived in late July, in

20 mid-July, sometime between mid- and late July, at the very end of the

21 existence of the camp. Not a single witness has claimed that he arrived

22 in the camp before that.

23 The Prosecutor is now saying that the time framework is not

24 important. I don't know how to respond to this claim. I cannot even

25 understand how one can have an indictment without the relevant times and

Page 6624












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 6625

1 the relevant time framework. I don't know how we can discuss the

2 importance of relevant times at all while discussing criminal offences and

3 the presence of the accused in the camp. We believe that a person cannot

4 be held responsible for something that happened before he was involved in

5 the event. The Prosecution has not led evidence, either direct or

6 indirect, to show that Mr. Prcac had had anything to do with the camp

7 before or that he had had any functions, any duties, before, and that

8 perhaps on the basis on those duties, those prior duties, that he would

9 have exerted some kind of authority during the relevant times.

10 They tried -- they attempt to say that during the indictment he

11 had been an active policeman. Not a single witness has proved that fact.

12 All of the witnesses of the Prosecution who have testified or who were

13 cross-examined as to the issue whether Mr. Prcac was retired during the

14 relevant times, they said that, yes, he was; their assumption was that he

15 was retired. And there is not a single piece of evidence to the effect

16 that he was an active policeman.

17 If we adopt the criteria that the Prosecutor now wishes to

18 establish, and that is that the mere presence of Mr. Prcac is enough here

19 to sustain a conviction for what had happened in the Omarska camp and for

20 what he was charged with in respect of the time when he was not there, and

21 we know that we have an indictment which directly -- there had been an

22 indictment which directly accused guards as perpetrators, but that

23 indictment had been dropped. This Tribunal is supposed to try only the

24 individuals who can be held accountable as commanders or those who can be

25 held accountable as direct perpetrators.

Page 6626

1 At one point in time, the Prosecutor tried to interpret its

2 attachments to the indictment as only being of an illustrative nature.

3 However, in paragraph 39 of the indictment, the Prosecutor states:

4 "Miroslav Kvocka, Dragoljub Prcac, Milojica Kos, and Mladjo Radic

5 instigated, committed, or otherwise aided and abetted in the torture and

6 beatings of Muslim Croats and Muslim -- and Bosnian Croats, and they did

7 so in search cases by direct participation in the acts which were

8 described in the text and in annexes A and E."

9 So in this paragraph, the Prosecutor is directly stating that

10 there are charges for individual and for specific acts, and those specific

11 acts were indicated in their attachments, in their schedules. The Defence

12 has made an analysis of that material and claims with full responsibility

13 that not a single piece of evidence concerning these individual acts show

14 that those acts occurred during the time when Mr. Prcac was present in the

15 camp.

16 So these dates here, the dates that were indicated at the outset

17 by the Prosecutor, could not be contested. Not a single murder out of six

18 murders occurred during the period of time when Dragoljub Prcac was in the

19 Omarska camp. They had occurred before that. And that is why it is very

20 important for this Chamber to be informed of the fact that Dragoljub Prcac

21 was in the camp between mid-July until the 6th of August, unless the

22 Prosecutor can prove a higher hierarchial relationship.

23 Inhumane acts and torture did not occur during the period of time

24 when Mr. Prcac was in the camp. The analysis has been -- we have provided

25 our analysis in our written brief and you have that in our motion.

Page 6627

1 Can the Prosecutor then claim that Dragoljub Prcac, indeed, took

2 part in the establishment of the camp since they haven't led any evidence

3 to that effect? There is not, once again, a single piece of evidence to

4 that effect. He arrived later on. He arrived at the time when the system

5 was already functioning, when it was almost automatic. So we can perhaps

6 ask what he was able to do later on, but only on the condition that he had

7 certain authority. However, that authority, he didn't have it, according

8 to the Defence. He was, as we have already indicated, a person who was

9 involved in the administrative work. He was a kind of administrative

10 assistant. And the witnesses have shown that, and I'm referring to the

11 witnesses of the Prosecution. He never had the command responsibility nor

12 was it ever proved during the Prosecution case that he had some kind of

13 command responsibility. The Prosecutor is now trying to extend this

14 concept of command responsibility.

15 As regards the immediate perpetrators, the guards who were in the

16 camp, the charges against them were dropped. I don't know on what basis

17 one can retain the charges against Mr. Prcac if everybody who was -- if

18 the charges against all of those who were at the same level as him were

19 dropped. What do we have to prove that he was the deputy commander? Only

20 the fact that one man left and the other one came instead.

21 What the Defence would request of this Trial Chamber is that when

22 making a decision, it attempts to view the statements of all the witnesses

23 and not individual witnesses, as the Prosecution has done. A fair trial

24 in the sense of Article 98 bis implies that all the evidence that has been

25 presented be viewed and taken as a whole - taken as a whole. It is no

Page 6628

1 good if just one witness is put forward, as the Prosecution has done, and

2 to forget all the rest, to forget the 35 other witnesses, for example.

3 And what the Defence wishes to raise as a question, an issue, here

4 as well is whether, with evidence presented in the way that the

5 Prosecution has done in the case of Dragoljub Prcac, what would happen if

6 the Defence says that on the basis of this we don't want to present our

7 case at this point, as it stands?

8 Another fact that we should like to point out. The submission

9 made by the Prosecution dealt with an assessment of the credibility of the

10 witnesses. It is not the Defence that raised the question of

11 credibility. We do not raise credibility in our motion and say that one

12 witness ought to be believed and the other witness ought not. We just

13 presented the facts before the Trial Chamber for them to -- for you to be

14 able to ascertain whether anything definite can be determined and the

15 charges that are placed against our accused.

16 So of the seven witnesses, one witness said he was a deputy

17 commander; another said that he was the main commander; one person said

18 that he was a commander; one person said he was warden; the rest didn't

19 know, and the rest are 32 witnesses in all. But together, taking what is

20 in common to them all is that they saw him very rarely, that they don't

21 know what his job is and what he did, and that he just carried those lists

22 around.

23 And the Prosecution is trying to manipulate those lists as well

24 and says the following: "Mr. Prcac did call out the detainees, after

25 which, according to the testimony of certain witnesses, those detainees

Page 6629

1 were not seen anymore. They disappeared." That same statement from the

2 same witness says in another portion: "Other guards called people out as

3 well." It is not contested that on the 6th of August, when the detainees

4 left for Trnopolje from Manjaca, it was not only Mr. Prcac who did the

5 roll-call. A number of guards did the roll-call. And the Prosecution

6 also wishes to manipulate the fact that he called out women when they went

7 to Trnopolje on the 3rd of August and some of them later on disappeared.

8 It is true that they disappeared and that we don't know of their

9 whereabouts to the present day, but we don't know when they disappeared

10 and we don't know whether Mr. Prcac was in the camp until the end; that is

11 to say, we know that he was in the camp until the 6th of August. From the

12 6th to the 20th of August he was not there.

13 These are the facts, the facts as they stand, the facts that must

14 be looked into in all their complexity and their entirety. We do not have

15 the right at this point to single out a fact, to single out a witness, and

16 to interpret them falsely at that.

17 JUDGE RODRIGUES: [Interpretation] Mr. Stojanovic [sic], I will

18 take the opportunity of this little break to tell you that you will have

19 to finish soon. You have four or five minutes, so that you can organise

20 your presentation.

21 MR. J. SIMIC: [Interpretation] Yes, Your Honour, thank you. My

22 name is Simic. And having said what I said, I shall end there. So it is

23 up to the Trial Chamber --

24 JUDGE RODRIGUES: [Interpretation] I think it was a

25 misunderstanding. I don't think I said Stojanovic. I said Jovan Simic.

Page 6630

1 I'm sorry. Please continue.

2 MR. J. SIMIC: [Interpretation] I am drawing to a close, Your

3 Honour.

4 This Trial Chamber would have to look at the facts completely,

5 comprehensively, all-embracingly, and not individually, as best suits the

6 Prosecution. Thank you, Your Honour.

7 JUDGE RODRIGUES: [Interpretation] Thank you very much, Mr. Simic.

8 I think we will now have a half-hour break, and after the break we

9 will hear the response of the Prosecution. Our intention is to work until

10 approximately 1.00 and continue in the afternoon in necessary. So if

11 necessary, we will start in the afternoon at 2.00. So we will be working

12 until 1.00, then we will have a one-hour break for lunch, and then we will

13 resume at 2.00 if necessary.

14 --- Recess taken at 11.13 a.m.

15 --- On resuming at 11.47 a.m.

16 JUDGE RODRIGUES: [Interpretation] You may be seated.

17 Let us hear the Prosecution now. Madam Hollis, you have the floor

18 for the response.

19 MS. HOLLIS: Thank you, Your Honour.

20 The arguments that you have heard today from the Defence are a

21 summarisation of arguments that were made in their pleadings to which we

22 have responded. So my comments will also be very summary in form and, I

23 hope, very brief and very much to the point.

24 The Prosecution suggests to Your Honours that the first issue that

25 you must take on and you must determine is, first of all, what is the

Page 6631

1 scope of the Rule under which you are acting. We suggest that many of the

2 Defence arguments to you must fail because they are beyond the scope of

3 the Rule, and it is the Rule which defines what actions you are entitled

4 to take at this time.

5 The scope of the Rule itself is very clear: Judgements of

6 acquittal of offences charged, not material facts that are alleged in

7 support of offences charged, not legal characterisations of the acts or

8 omissions of the accused, and that is what you have under Article 7.

9 Because if you look at the punitive articles, Articles 2, 3, and 5, the

10 offence that is charged does not change based on the mode of liability or

11 the legal characterisation of the acts or omissions of the accused. In

12 Article 4, it appears that, indeed, the offence you would charge does

13 change based on the mode of liability, so that you have genocide and then

14 you have the possibility of conspiracy to commit genocide and then you

15 have the possibility of attempted genocide and complicity in genocide.

16 Those various charges, we suggest, in Article 4 reflect a real difference

17 in the crime you charge based on how you legally characterise the acts or

18 omissions of the accused.

19 But the articles we are concerned with, Articles 3 and 5, that is

20 not true. So Article 7(1) arguments do not follow within the scope of

21 Rule 98 bis acquittals because you don't acquit them of Article 7(1) or

22 Article 7(3), you acquit them of the offences that are charged.

23 For that same reason, if you look at Rule 98 bis, you do not

24 acquit someone of particular incidents that fall within the count, because

25 it speaks about the offences charged. And if you look at what the

Page 6632

1 offences are, they are the counts set out in the indictment, Counts 1 to

2 3. The counts are set out at page 10. And what are the counts?

3 Persecutions, inhumane acts, outrages upon personal dignity. Those are

4 the offences charged. And what is the general category of victims and the

5 general time frame that is alleged?

6 If you look at paragraph 24, it gives you the general parameters

7 of the offences charged, and in paragraph 24, it tells you that they are

8 charged, between the 24th of May and the 30th of August, with persecutions

9 of Bosnian Muslims, Bosnian Croats, and other non-Serbs in the Prijedor

10 area, based on political, racial, or religious grounds. So that is the

11 parameter of the charge.

12 And if you look at the other counts, you will find the same type

13 of procedure followed. You have the count itself, which is murder, and

14 then you have a paragraph that gives you the characterisation of the

15 victims and the time period, and it is a very broad one.

16 When we look at the schedules, the schedules are nothing more than

17 further particulars that fall within the broad counts. And the question

18 that you must answer is whether Rule 98 bis gives you the authority to

19 enter acquittals related to specific incidents within a count. Because

20 what offence will you acquit an accused of if you find that there is no

21 evidence relating to one aspect, one incident, that is subsumed in the

22 broader count. Is he then not guilty of Count 4, murder? Then you are

23 ignoring all the other murders.

24 So we suggest that you must first determine for yourself what is

25 the scope of Rule 98, and we suggest that the scope is the offences

Page 6633

1 charged and those are offences that allege cumulative acts, cumulative

2 crimes, cumulative victims over a long period of time. So that Rule 98

3 does not envision entering judgements of acquittal for specific incidents

4 within those counts.

5 There is contrary authority in this Tribunal to that, and we have

6 noted that, even as far back as Blaskic, which acted under the general

7 authority that the Trial Chamber had, but also, I believe, felt that its

8 actions were within the then new Rule 98 bis. They alluded to finding

9 someone guilty of a part of an offence. We suggest, very simply, that

10 that is beyond what is allowed by Rule 98 bis.

11 Once you determine what is the scope of the Rule, then you must

12 move to the remaining allegations made by the accused where you do have to

13 look at the Rule and that they are within the scope of the Rule. What is

14 the standard that you apply? We have set forth for you what we believe

15 the standard is to be applied. We believe that standard is not proof

16 beyond a reasonable doubt, that it is a lesser standard.

17 And if we look for one brief moment at what is meant under the law

18 by proof beyond reasonable doubt, of course what that means is that when

19 you look at all of the evidence and you weigh the evidence and you judge

20 credibility, that there can only be one explanation, one reasonable

21 explanation for the evidence, and that is guilt. When you are faced with

22 a Rule 98 bis motion, that is not the test you apply. Rather, it is: Is

23 there some evidence which, if believed, would tend to reasonably establish

24 each element of each offence. That is the test, and it is a lower test.

25 Could you find the person guilty, not is there only one reasonable

Page 6634

1 explanation which is proof beyond reasonable doubt.

2 In applying the Rule 98 bis standard, we suggest again, as we have

3 suggested in writing, that you do not look at the credibility issues, you

4 resolve those at the end of the case; that you do not look at issues such

5 as reliability unless you find that the only evidence that can support an

6 element is totally unreliable, is totally incredible. Only in such a very

7 limited circumstance at this part of the proceeding would you look at

8 credibility or reliability.

9 We also suggest that Rule 98 bis envisions some requirement on the

10 part of the moving party to specify where the evidence is insufficient and

11 to explain to you why, so that a general or broad assertion that the

12 evidence is insufficient, the Prosecution submits, is not adequate basis

13 for Rule 98 determinations and judgements of acquittal.

14 If we look at the arguments that you have heard today, we find

15 that many of the arguments go to the scope of Rule 98, and we suggest that

16 perhaps the most clear example of where you must define the scope and act

17 accordingly are those instances where we have admitted in writing that

18 there appears to be no evidence of record to support individual murders.

19 What do you do in that instance? If the scope of Rule 98 bis is such, as

20 we suggest it is, that you must look at the crimes charged, that is, the

21 broad murders, then you would not enter judgements of acquittal because

22 there is no count upon which to enter a judgement of acquittal. If you

23 determine otherwise, if you determine that you can enter acquittals for

24 portions of a count, then your action would be different. But that is

25 what clearly brings into focus -- that category of specific incidences --

Page 6635

1 what clearly brings into focus, perhaps your most difficult task, and that

2 is determining what is the scope of Rule 98 bis.

3 We suggest that when you have heard the Defence submissions this

4 morning, and also in their written submissions, that they have

5 mischaracterised the evidence. They suggest we have mischaracterised the

6 evidence. Ultimately what the evidence is is determined by what is in the

7 transcript or in a document, if that document is in question.

8 You have been given references to the transcript, and we suggest

9 that when you look at the language in those transcripts that it will

10 support our position on the evidence. But ultimately, final determination

11 must be made by Your Honours after you look at what is down in black and

12 white, in writing, in the transcripts of this case.

13 If you look at the arguments as well, and taking them now somewhat

14 more individually, if you look at the arguments set forth on behalf of the

15 accused Kos, it appears that one of their arguments is really an argument

16 that is aimed against the Prosecution and not against the witness, and

17 that is Witness AI, in regard to why we did not ask him to identify a

18 photograph of Drazenko Predojevic. If they have an issue with the

19 Prosecution, that doesn't impact this witness. Had this witness

20 misidentified such an important person, we would have disclosed that to

21 the Defence because it could have cast doubt on other identifications. No

22 such misidentification occurred. Their argument about our failure to show

23 him this photograph is, perhaps, an attack on us, but it says nothing of

24 the reliability or credibility of this witness should you believe that

25 that issue must be looked into.

Page 6636

1 Regarding paragraph 10 of the submissions by accused Kos, where he

2 talks about no evidence having been presented that Kos murdered Becir

3 Medjunjanin, Mehmedalija Sarajlic, Hanki Ramic, or Miroslav Soljaja, we

4 suggest that that is a general allegation that we do not have to address.

5 We further suggest that there is evidence in the record of the murder of

6 all of these victims, and we suggest that perhaps what is really being

7 addressed here is that mode of liability can be limited at this stage of

8 the proceedings, or a legal characterisation of the acts of the accused

9 can be limited at this stage of the proceedings.

10 Our position all along has been that we have charged the accused

11 with particular offences and we have said that any mode of liability may

12 apply, any legal characterisation of their acts may apply, under Article

13 7(1) or 7(3), and if any of those applies, their guilty. So that he does

14 not have to have pulled the trigger or beaten to death any of these

15 accused in order for you to ultimately, at the conclusion of these

16 proceedings, determine he is guilty.

17 There is some evidence of his position in the came; there is some

18 evidence of his continuing presence in the camp; there is ample evidence

19 of the conditions of the camp, of the open and notorious events that

20 occurred in the camp, including killings, beatings, torture. We suggest

21 that at least one mode of liability would support his being found guilty,

22 even at the end of this case, of this murder, based on those types of

23 evidence and that is the theory of common purpose which the Tadic

24 Appellant Chamber set forth as a mode of liability under Article 7(1).

25 In terms of whether a person testified to something or not, again,

Page 6637

1 we have addressed that in our written submissions. We submit once again,

2 very clearly, that at trial, Nusret Sivac testified to you that it was

3 Krle's shift on duty when Crnalic was killed, and that the "testimony"

4 that the accused Kos refers to is, in fact, questions about a prior

5 statement and that Nusret Sivac disavowed the accuracy of that prior

6 statement.

7 Turning to the submissions by the accused Kos -- excuse me,

8 accused Radic, we suggest again that a great deal of that submission goes

9 back to the idea that Article 7(1) and Article 7(3) are offences charged;

10 rather, they are modes of liability or legal characterisations. So that

11 you cannot acquit a person of Article 7(1). You cannot acquit a person of

12 Article 7(3). You can acquit a person of the counts that are set forth in

13 the indictment.

14 In regard to the distinction that the counsel made between

15 indirect knowledge and conclusions versus formal evidence, we suggest that

16 you can convict someone even if there is no paper anywhere which says that

17 a person held a certain position. Rather, you can look to testimony based

18 on observations and make that determination.

19 Certainly, at this point of the proceedings, however, you look to

20 see if there is some evidence which would support the accused's presence

21 in the camp. The accused would allow you to legally characterise the

22 accused's actions in any way under Article 7(1) or Article 7(3), and if

23 you can find one mode of liability that is supported by the evidence, then

24 we move forward and continue the case.

25 Regarding the accused Zigic's presentations, we look at the

Page 6638

1 comments regarding Izeiri. Again, we have noted that when there are

2 disputes about the evidence, we look to the testimony of the witness, and

3 in that regard, the Defence statement is correct in that in our written

4 argument we had indicated that Hase Icic said that this man died in

5 Omarska. Indeed, if you look at the transcript reference to which we have

6 cited you, you will find that Hase Icic testified that a young Albanian

7 man was taken out of Room 2 at Keraterm, so that the testimony of the

8 witness relates to Room 2 at Keraterm, not Omarska.

9 In regard to the comment that they did not receive the annex for

10 their accused, annex 3 of the consolidated response to the motions for

11 acquittal is the annex that relates to the accused Zigic. We filed that,

12 and if they have not received that, we suggest that they ask the Registry

13 for annex 3.

14 If we look at the submissions by the accused Prcac, we again

15 suggest that the test that is being applied is the incorrect test. It is

16 not proof beyond reasonable doubt. There were comments made by counsel

17 for accused Prcac that we were alleging mere presence was enough to

18 support a denial of their motion for acquittal. Mere presence is not

19 criminal liability. However, as was discussed in the Tadic case, there

20 can be presence which is not mere presence. And we suggest there is some

21 evidence of record to indicate that the presence of the accused Prcac was

22 not mere presence but, in fact, was presence as part of an ongoing

23 concentration camp regime of mistreatment of these victims, and that this

24 presence goes far beyond mere presence and is one legal characterisation

25 of his acts and omissions which could render him liable for the crimes in

Page 6639

1 that camp. So we agree that mere presence is not enough. We suggest,

2 however, in relation to Prcac, the evidence shows more than mere presence.

3 Counsel for accused Prcac indicates, as one example, that we have

4 stated that Nusret Sivac stated that Prcac was in the camp on all shifts

5 and that he gave orders, and counsel indicates that the record does not

6 show that. Again, we have given you references to Nusret Sivac's

7 testimony. We would simply point you to page 4132, beginning at line 19,

8 which is a question by Judge Riad who says:

9 JUDGE RIAD: Now, speaking of Prcac, you said that he would give

10 orders to the guards. But did you also watch or notice that he was

11 commanding one of the shifts?

12 And the response is, beginning at line 24 of that page:

13 A. He was not a shift commander. He would be in all of the

14 shifts. He would even come to the camp during the night very

15 often, and he would bring lists with names of detainees with

16 him.

17 At page 4126 of the transcript, in response to a question by

18 counsel for Mr. Prcac, at line 9:

19 Q. Did you see Drago giving orders to someone?

20 At line 10:

21 A. Yes, I did.

22 At line 11:

23 Q. To whom?

24 At line 12:

25 A. To the guards.

Page 6640

1 Again, disputes about evidence in the record must be resolved by

2 looking at the record.

3 We have put our written submissions forward regarding the

4 discussion of relevant times, and we suggest again that the relevant time

5 is between the 24th of May and the 30th of August, and the crimes must

6 fall within that time period, at whatever point within that time period

7 they are covered by the offences.

8 There was also reference to paragraph 39 of the indictment. We

9 suggest that paragraph speaks to, again, legal characterisations or modes

10 of liability and not to offences charged.

11 In regard to this discussion of the schedules by many of these

12 accused, if you look at the introductory section for all of these counts

13 and all of these schedules, you will find it is a general reference; all

14 prisoners in Omarska between these dates, all prisoners in Omarska and

15 Keraterm for Zigic, all prisoners in Omarska, Keraterm, and Trnopolje for

16 Zigic. So that each of these schedules incorporates this broad category

17 of people and broad time in which these accused committed these crimes.

18 We suggest that when you apply the proper scope for Rule 98 bis,

19 when you apply the proper test, and when you look at how you apply that

20 test to the evidence, that all of these challenges must fail. And we

21 would ask you to proceed on all of the offences charged in the

22 indictment.

23 Thank you, Your Honours.

24 JUDGE RODRIGUES: [Interpretation] Thank you very much, Ms. Hollis.

25 We will now give the floor to each of the counsel who wishes to

Page 6641

1 intervene in order for them to reply, and you will all have five minutes.

2 Mr. O'Sullivan.

3 MR. O'SULLIVAN: Thank you, Your Honour. I have two points to

4 make.

5 The first is in regards to what my learned friend is describing as

6 the scope of Rule 98 bis, and in my submission, the way in which that is

7 tied to the indictment which includes the schedules.

8 The schedules list specific individuals and events and allege

9 liability of certain accused. Those lists, in our submission, are charges

10 against the individual accused. My friend is quite correct that if you

11 look, just as an example, to Schedule B for Kos - and I invite Your

12 Honours to do that when you retire - there is a broad allegation of all

13 prisoners, fixing a date, but that is followed by a list of seven names.

14 Now, clearly the order of the previous Trial Chamber to set particulars

15 must mean that the seven names which follow are made in allegation against

16 Kos, and that's the way to read those schedules, in my submission, and

17 that's the way to interpret and apply Rule 98 bis. And if there is no

18 evidence or insufficient evidence, Your Honours must acquit.

19 Can I also draw your attention to the Kunarac decision. Again,

20 when you retire, I invite you to look at paragraph 26 of that decision,

21 where, indeed, the Chamber entered a judgement of acquittal for a

22 particular individual within a count because of an insufficiency of

23 evidence. Your Honours will also see in that paragraph 26 that the

24 Kunarac Chamber was applying the same test and standard as the Kordic

25 Chamber. But I'll leave that with Your Honours to review.

Page 6642

1 My second point is rather more specific and it is just what my

2 learned friend said about the witness Nusret Sivac and the fact that his

3 statement, previous statement, was read to him. Now, the first thing is

4 that, as you know, only portions -- the relevant portions are read to a

5 witness and that forms part of the record. That's part of his testimony;

6 it is evidence. With all due respect to my learned friend, Nusret Sivac

7 did not disavow his previous statement, he adopted it. He said it was

8 truthful and voluntary and conducted over a considerable period. And what

9 he said in evidence is that the person who allegedly shot Crnalic was not

10 Milojica Kos.

11 Those are my submissions.

12 JUDGE RODRIGUES: [Interpretation] Thank you very much,

13 Mr. O'Sullivan, and thank you for being so concise.

14 Mr. Jovanovic, the floor is yours.

15 MR. JOVANOVIC: [Interpretation] Thank you, Your Honour. Article 1

16 of the Statute provides that the International Tribunal shall have the

17 power to prosecute persons responsible for serious violations of

18 international humanitarian law, committed in the territory of the former

19 Yugoslavia since 1991, in accordance with the provisions of the present

20 Statute.

21 Therefore, the sense and position of Radic with respect to the

22 application of Article 7(1) and 7(3) of the Statute is to be found -- is

23 contained in persons responsible for serious violations, that is to say,

24 Articles 2, 3, 4, and 5 of the Statute must be linked up, that is to say,

25 they must be linked up with Articles 7(1) and 7(3), and the responsibility

Page 6643

1 for a certain individual to commit criminal acts of that kind, that person

2 must be in a position as stipulated by Article 7(1) or 7(3) of the Statute

3 for us to be able to apply the other articles linked up with Article 7(1)

4 and 7(3), which provide for criminal acts as quoted.

5 Therefore, criminal acts, the ones in the indictment and the

6 counts in the indictment and the crimes committed, cannot exist

7 independently of Articles 7(1) and 7(3) of the Statute, unless we

8 determine the position of the accused in the sense of these two articles

9 of the Statute. Then one element will be lacking in the criminal act or

10 criminal acts which the accused is being charged of on the basis of the

11 indictment. And it is along those lines that the Defence said that the

12 evidence presented does not indicate the position held by the accused

13 Radic. So one vital element is lacking in that chain.

14 The same is true with respect to the conditions that prevailed in

15 the camp. The status, once again, of the accused Radic has not been

16 determined or ascertained, and the possibilities he had to influence those

17 conditions and ultimately to change them.

18 So much from me, Your Honour. Thank you.

19 JUDGE RODRIGUES: [Interpretation] Thank you, Mr. Jovanovic.

20 Mr. Stojanovic.

21 MR. STOJANOVIC: [Interpretation] Thank you, Your Honours.

22 Just two or three very brief remarks. We do not see any basis for

23 this Trial Chamber to burden itself with certain events for which no

24 evidence has been presented. It is a very complex and very expensive

25 case, very expensive proceedings, indeed, and I think it would be of great

Page 6644

1 assistance to all of us to simply stop discussing the events for which no

2 single shred of evidence has been presented.

3 This remark concerns the allegation of the Prosecutor that the

4 partial acquittal of certain counts in this stage of the proceedings is

5 unacceptable, if I have correctly understood the position of the

6 Prosecutor in that respect. I think that that kind of argumentation would

7 lead to the conclusion that the Chamber would not be in a position to do

8 so at the very end; that is, it could not bring a judgement of that kind,

9 so the accused must be acquitted of certain individual counts. Therefore,

10 I believe that this argument cannot be accepted. Thank you.

11 JUDGE RODRIGUES: [Interpretation] Thank you, Mr. Stojanovic.

12 Mr. Jovan Simic is next. I think that I have pronounced your name

13 properly and stated it properly. Mr. Jovan Simic.

14 MR. J. SIMIC: [Interpretation] Yes. Thank you, Your Honour.

15 The Defence would, first of all, like to remind the Trial Chamber

16 of the fact that the Chamber, practically in the identical composition,

17 made a decision in the Jelisic case, and I do not think that the

18 criteria -- that that criteria is the criteria that has to be applied

19 here and now today.

20 With respect to Mr. Nusret Sivac, the Defence would like

21 to state that it is impermissible that we draw parts out of context,

22 because if you extract parts and portions out of context of the whole

23 testimony, you have a half-truth, and half-truths, in the respectful

24 submission of the Defence, is worse than a complete falsehood.

25 Nusret Sivac said that Mr. Prcac was present during all the

Page 6645

1 shifts. That means that he was present during all the shifts that took

2 their order one for another, and the Prosecution said that he attended the

3 shift change, which means that they are alluding to the fact that he was

4 present, that he was in charge of the takeover of shifts, and that on the

5 basis of that he had an authority of some kind. No. What the witness

6 said was that he was present during the shifts. The witness also said

7 that he does not know what he did. He saw him with some lists in his

8 hands, that sometimes he would give the guards those lists to read, and

9 that was the end of his testimony. The witness never said that he was

10 present and attended the actual changeover of the guards at their shifts.

11 So they are using a half-truth.

12 What the witness said was that he was there and present in the

13 space of 24 hours when the shifts were on duty, but no authority during

14 the actual changeover and takeover of the shifts.

15 That is what I wanted to point out.

16 JUDGE RODRIGUES: [Interpretation] Thank you very much, Mr. Jovan

17 Simic.

18 I think that my colleagues have questions for you.

19 Judge Fouad Riad.

20 JUDGE RIAD: [Interpretation] Thank you, Mr. President.

21 [In English] Good morning, Ms. Hollis. I have a question of a

22 general character, without going into the merits of the motions, and

23 concerning exactly your view and concept concerning the scope, the scope

24 of the Rule 98 bis.

25 In essence, you consider that 98 bis only envisions a conviction

Page 6646

1 on a charge and not a portion of a charge, or an instant. Now, I just

2 want to be enlightened and to know more. I want you to develop this view

3 more in the light of several considerations.

4 The first is another, more or less, general rule which I know in

5 French, I don't know in English, which says, "Qui peut le plus peut le

6 moins." If you can do more, you can do less. So if we can acquit on a

7 charge, we can acquit on a portion of a charge. Now, in that case, is

8 this in the interests of the Defence or not? And is that -- does this put

9 the Prosecution into any disadvantage? And would this be in the interests

10 of the Court or not?

11 The first question: Would this put you into any disadvantage?

12 And then would it be of any benefit to the Defence? It would alleviate

13 their burden. And of course the accused is entitled to have any

14 alleviation of burden. It could be economical; it could be expedient.

15 So in light of these considerations, why would you consider that

16 Rule 98 bis only envisions charges and not a portion of a charge? Thank

17 you so much.

18 And I just want a small question for Mr. Simic, also without going

19 into any merits. You mentioned that Mr. Prcac would only be reading

20 lists, and I think I put this in connection with what you said that he had

21 an administrative role. Did I understand you rightly?

22 MR. J. SIMIC: [Interpretation] Yes, Your Honour.

23 JUDGE RIAD: So reading lists for people to be -- whatever done

24 with them is only administrative. It's not an order. He's a clerk, he's

25 just like a clerk.

Page 6647












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 6648

1 MR. J. SIMIC: [Interpretation] Yes, Your Honour. He read out

2 lists not as he saw fit but pursuant to orders. He had the same status

3 and was at the same level as all the other guards. Nothing more. Someone

4 stood guard; other people dealt with the radio; and he was in -- he read

5 lists. From time to time he read these lists when he wasn't on duty by

6 the radio station, the radio transmitter. So this was ordered by Zeljko

7 Meakic and so forth, and there is sufficient evidence to bear that out in

8 the testimony of the witnesses.

9 In addition to that, Your Honours, there is evidence that other

10 guards read lists too. This occurred on the 6th of August. There is

11 testimony that it occurred on the 3rd of August as well when the women

12 were transferred to Trnopolje. And we heard testimony that other guards

13 called people out as well, not at the very end of the camp, when the camp

14 came to an end, but during its duration. This wasn't his exclusive duty,

15 it was just one of the jobs that he did as a guard in the camp or, rather,

16 as an administrative worker, clerk.

17 JUDGE RIAD: Reading the list, knowing what this would entail, do

18 you still consider that this is only an administrative, clerical

19 function?

20 MR. J. SIMIC: [Interpretation] Your Honour, let me remind you, if

21 I may, of part of the testimony when my learned colleague, Mr. Saxon, was

22 examining Witness U, and he said the following: "Dragoljub Prcac

23 determined which women would stay on in the camp," of the names he read

24 out, "and which ones were to be transferred to Trnopolje." And the

25 witness said, no, he just read out the names. There is no evidence to

Page 6649

1 support that he had any authority in any way whatsoever. He was just

2 noted because one of his duties was, at one point, to read out a list. He

3 didn't know why he was doing this; he didn't know what was on the lists.

4 And then we have the testimony of Omer Mesan, and the Prosecution

5 erroneously interpreted what that witness said. They read out the lists

6 of witnesses, and on that occasion, Dragoljub Prcac and some unidentified

7 guards said that there were 50 detainees more than were on the list, which

8 indicates the fact that they didn't know how many detainees there were,

9 where they were supposed to go, and the kind of

10 behaviour exerted towards them. All they did was read out what they had.

11 And Omer Mesan said that. But the Prosecution made this appear as if he

12 determined where they were to go. All he did was to read. That was just

13 one of the jobs that he was assigned to do.

14 JUDGE RIAD: Thank you very much.

15 MR. J. SIMIC: [Interpretation] Thank you, Your Honour.

16 JUDGE RIAD: [Interpretation] Thank you, Mr. President.

17 JUDGE RODRIGUES: [Interpretation] Do you wish to reply,

18 Ms. Hollis?

19 JUDGE RIAD: Either now or when my colleagues have finished their

20 questions. It's up to you to decide.

21 MS. HOLLIS: If Your Honours would permit, it would be easier if I

22 would answer it now or answer them now.

23 Your Honour, in regard to the adage that if you can do more, you

24 can do less, we suggest that that depends upon the language or the intent

25 of the statutory provision or Rule that you were implementing. For

Page 6650

1 example, if you are looking at sentencing, and it says that the maximum

2 imposable punishment is imprisonment for the person's natural life, that

3 means you can do less. But if you are looking --

4 JUDGE RODRIGUES: [Interpretation] I apologise, Ms. Hollis. It is

5 difficult when counsel speaks amongst themselves because we can pick up

6 your voices via the microphone. Your voices are registered via the

7 microphone. So I apologise, but would you please pay attention to that

8 and please refrain from speaking amongst yourselves.

9 Ms. Hollis, please proceed.

10 MS. HOLLIS: Thank you, Your Honour.

11 So we suggest that no, you cannot always do less if you can do

12 more, and it depends upon the Rule or the statutory provision. When we

13 look at Rule 98 bis, we suggest that it is a Rule which is limited in its

14 scope because what it is doing is it is stopping mid-trial, before the

15 Defence puts on any evidence, and it is prematurely, if you will, entering

16 a judgement. So for that reason we suggest that it is limited in its

17 scope. And we further suggest that the plain language of the Rule limits

18 its scope. It could have said that you can acquit on all or part of a

19 count. It did not say so. It said an offence. And we suggest that

20 because it is a Rule which does not favour a broad definition but rather

21 favours a narrow definition, because in fact it is interposing a judgement

22 at the mid-point of a trial so that you narrow the scope of what you do

23 rather than enlarge it. That would be our response to the adage that you

24 quoted.

25 In regard as to whether it is in the interest of the Defence, we

Page 6651

1 suggest that on a very broad and philosophical level it would be in the

2 interest of the Defence any time you would drop out a particular incident.

3 If you were to use that argument, then you could look at all the material

4 facts that are alleged in an indictment and you could at mid-trial sift

5 them out. Would that somehow benefit the Defence? In a very broad way we

6 say it would. Does it benefit the Defence in the sense that it gives them

7 an acquittal of the count that is actually charged? No it does not. So

8 it doesn't benefit them in that way. Does it benefit us or is it harmful

9 to us? That's hard to say, Your Honour.

10 What would happen if, during the Defence case, one of their own

11 witnesses would come out with proof of the killing of one of these

12 victims? In the normal course of events, if you went forward with the

13 charge and the offence, you could consider that evidence in your final

14 decision. If you acquit on that specific victim at mid-trial, then, of

15 course, we would suggest that you wouldn't be able to do that. So in that

16 sense, we think it's probably unlikely that it would happen, but in that

17 sense, it would be of some detriment to the Prosecution, and in broader

18 terms, a detriment to a final determination in accord with what actually

19 happened at these camps and what is charged as having happened.

20 Would it be economically expedient? Would it be judicial

21 economy? Well, Your Honours, we have closed our case in chief, so the

22 evidence is as the evidence is. I don't see the judicial economy of

23 entering judgements at this point on something that is already in the

24 record or not in the record. So I don't think it would speed up your

25 process; I don't think it would slow down your process. So those would be

Page 6652

1 my general submissions, Your Honour, to your questions.

2 JUDGE RIAD: Can I just add an explanation of my question, because

3 to take your test, your criterion, you said that there should be no

4 evidence reasonably established to sustain a conviction. This would be

5 the criterion to acquit. Now, the fact, as you said, that the Prosecution

6 has finished its part and its evidence which means they have no more

7 evidence to prove, and in the light of what the Prosecution -- this is

8 just for the sake of understanding -- and there is no chance to get more

9 proof of a certain incident or a part of a crime or one of the -- let's

10 say one of the instants, we don't expect any more proof. And in light of

11 what the Prosecution has offered, there is no reasonable chance of

12 conviction.

13 Now, if we -- if the Chamber deals with this, wouldn't that

14 dispense, alleviate, the charge of the Defence in the sense that they do

15 not need to bring witnesses to disprove this fact which is already --

16 which is already out of the trial, because there is no reasonable -- there

17 is no reasonable evidence for it, and it is just making it clear that

18 there are certain things which don't require any more waste of time and

19 waste of money for all the Tribunal. That was the issue. Of course, if

20 you consider that this will disturb the totality of the trial, that's

21 another thing.

22 MS. HOLLIS: May I respond, Your Honour?

23 JUDGE RIAD: Please.

24 MS. HOLLIS: Your Honour, first of all, the accused have no burden

25 at all to disprove or prove anything. So that if there is no evidence now

Page 6653

1 about these specific incidents, they certainly have no burden to even deal

2 with these instances. So it doesn't impose a burden on the Defence, and,

3 in fact, the Defence has never had a burden and does not in a criminal

4 trial have a burden of any sort. They may choose to put on a case, not

5 because they have a burden but because they choose to. So no, it doesn't

6 alleviate a burden because no burden exists.

7 If we could perhaps just focus the real heart of the issue, if I

8 may be allowed to, the Prosecution's position is this: If we had charged

9 these accused with a specific count of murder for each named victim, if we

10 had done that, at this point in the proceeding, within the scope of Rule

11 98 bis, Your Honours would enter judgements of acquittal relating to those

12 specific victims that are individually charged and victims for which we

13 have no evidence. So if it were a count, you would at this point within

14 the scope of the Rule, we submit, enter a judgement of acquittal. So it

15 does come back to, again, the scope of the Rule, and we have discussed our

16 position on that. Our position is you -- there's nothing to enter a

17 judgement of acquittal on because the count is a cumulative count and

18 includes many victims. So you can't find them not guilty of the count.

19 And because we have not individually charged those individual murders,

20 there's no count to find them not guilty of. But that is what Your

21 Honours must decide in your determination of what the scope of the Rule

22 is.

23 JUDGE RIAD: Thank you again, Ms. Hollis.

24 JUDGE RODRIGUES: [Interpretation] I can see that the court

25 reporter for English is having a problem. Have you got a replacement?

Page 6654


2 JUDGE RODRIGUES: [Interpretation] You may take a break, a short

3 break. May we continue?


5 JUDGE RODRIGUES: [Interpretation] Okay. Madam Judge Wald has the

6 floor.

7 JUDGE WALD: My questions are for Ms. Hollis. The first one is

8 somewhat of a follow-up to Judge Riad's, because I think it is a difficult

9 barrier that you're trying to surmount here, and the theory, I know, is --

10 I understand the charge is murder and there are some incidents which are

11 cited in the schedule; however, I'm always drawn back to the fact that the

12 original Chamber which had this said that you had to provide those

13 schedules in order to give the Defence some opportunity to prepare for the

14 trial. I mean, in other words, you couldn't have gone and just said:

15 "You're guilty of murder under Article 3 and under Article 5." It simply

16 wouldn't have -- it wouldn't have withstood any kind of, I think, of a

17 motion to dismiss unless you had these annexes. And now at the end of the

18 period where you have some of these incidents or specific instances which

19 you have no evidence, you say, "Just keep them in there until the end.

20 Maybe something will show up in the Defence's case which will make our

21 case for us." But if I were a Defence counsel, I wouldn't be too

22 comforted by that. I guess I would feel that as long as those incidents

23 were in the indictment and hadn't been dismissed by the Court after a

24 motion for acquittal, I'd better prepare for the defence to some degree.

25 Why doesn't it make sense to get rid of the brush -- the

Page 6655

1 underbrush, and as we move into the second part of the case, focus on

2 those incidents in which you did have enough evidence to withstand a

3 motion for acquittal? Why carry this dead weight just on the chance that

4 maybe something will show up in the second part of the case?

5 MS. HOLLIS: I think that it goes back to the fundamental issue

6 that Your Honours face, and that is, what is the scope of Rule 98 bis --

7 JUDGE WALD: I will give you time. My point is: Like Alice in

8 Wonderland, I think that, you know, there are words there and it's up to

9 us to interpret them. I don't happen to read 98 bis as saying under no

10 circumstances can you ever dismiss one of the incidents or -- and, indeed,

11 two other Trial Chambers, as you have suggested, have gone that way. So I

12 don't know that it's a clear statement. I think it's more a question of

13 our interpreting in a way that makes sense both for justice and for the

14 procedure of the trial. Go ahead. I'll let you finish now.

15 MS. HOLLIS: Thank you. I do think that since it is a Rule that

16 we suggest is a Rule that is limited because it is this decision at

17 mid-term in the trial, that it is a Rule which needs to be read by the

18 plain language of the Rule, and certainly as regards other Rules, this

19 Trial Chamber itself has made that determination, that you must strictly

20 interpret the Rules, such as the Rule for affidavits. So we suggest that

21 the Rule does say offence or offences charged, and that's what it means.

22 And when you come to the order of the Trial Chamber, it was basically in

23 the form, we suggest, of a bill of particulars, to give further specific

24 -- and we suggest they are material facts in support of the count which

25 is the cumulative charge of murder of many --

Page 6656

1 THE INTERPRETER: Could the counsel please slow down.

2 MS. HOLLIS: -- so we believe that it does not transform those

3 into individual counts of murders. If it does, we would very much like to

4 know that interpretation because it will influence how he approach

5 sentencing should we get to sentencing. But we believe that does not

6 transform that into individual counts, and if it does not, we believe that

7 the Rule, by its language, does constrain the entering of judgements of

8 acquittal.

9 We again suggest there's really no further work to be done in

10 regard to individual incidents, so that it is not a burden to either the

11 accused or the Chamber, because the accused have looked at these. We have

12 said there is no evidence on these specific incidents, so they have no

13 reason to delve into the incidents --

14 JUDGE WALD: So yours is a pure Rule interpretation argument,

15 because contrary-wise, there's no burden to you if we say -- I'm just

16 using this as an example here. If we say the seven or the six, whatever

17 it is, murders that Kos says that you admit there was no evidence on, and

18 we say, "Sorry, those go out," we haven't thrown away the murder count. I

19 mean, you still have your murder count, you still have your Article 3

20 count and Article 5 count. So you haven't suffered anything except the

21 possibility that something might come up later in the case. So, I mean,

22 it has to come down to your argument that we don't have the authority

23 under that Rule to do what two other Chambers have already done.

24 MS. HOLLIS: That's correct.

25 JUDGE WALD: Okay. So we understand each other.

Page 6657

1 MS. HOLLIS: Yes, we do. We do.


3 MS. HOLLIS: And we do suggest that it is very unlikely that

4 evidence would come out through the Defence case of these victims. But if

5 it does, these are very serious offences -- incidents within a very

6 serious offence, and then what would the Chamber do with that evidence?

7 And it would not necessarily be evidence that we would try to bring out.

8 So we again go back to what are the counts, what are the offences charged,

9 in the scope of Rule --

10 JUDGE WALD: So, then, how would you sustain your burden of proof

11 under that scenario? Because if you admit at this point -- in our case in

12 chief we put on nothing, and then a Defence witness gets on the stand and

13 blurts out something which does not -- not as your witnesses but as one of

14 the Defence witnesses, have you sustained your burden of proof?

15 MS. HOLLIS: If he gives you evidence that convinces you beyond a

16 reasonable doubt that this incident also should be included, then, yes, we

17 have. You are not limited in the Defence case to using it for the

18 Defence's benefit or using it purely to contradict Prosecution evidence.

19 Whatever comes out in the Defence case, you may use in making your final

20 decision in this case. So we believe, yes, indeed, it would depend on

21 what that person said in their testimony, but that could be the basis for

22 you to include another incident within the overall count.

23 JUDGE WALD: All right. I have a second line of questioning, and

24 that is that on several -- you have told us that you don't think we should

25 consider any particular theory of liability at this juncture, that that

Page 6658

1 would come later; that "any mode of liability that could conceivably

2 result in finding guilt, we have to consider." But I have to say that it

3 does seem to me that if we are considering whether or not there is a

4 sufficient amount of evidence that a reasonable Chamber could find the

5 person guilty or could not, that has to be tied to the theory of

6 liability. And let me tell you what I'm saying.

7 For instance, you've used reference both in your written materials

8 and here many times to the so-called common purpose theory. I have to

9 tell you, I'm not sure what you mean by the common purpose theory.

10 There's one paragraph or two paragraphs in Tadic which were not applied in

11 that case. Common purpose theory, to my knowledge, has never been

12 applied -- except for a few lines of Kupreskic, but that's a completely

13 different situation. It's never been applied, to my knowledge, in a

14 concentration camp case.

15 Therefore, it's not particularly helpful to me for you to say,

16 "Well, Mr. Prcac, he might be found liable under common purpose theory,"

17 and then you just tell us mere presence isn't enough, but presence plus

18 notoriety of the conditions plus status. I don't know what if any

19 authority you have to say that even if that were so, Mr. Prcac, you could

20 go backward and say that he was liable for things that happened before he

21 even got to the camp or maybe you don't say that but I don't know whether

22 you said that or not.

23 Or even more perplexing to me, that any of these people, with the

24 exception of Zigic, who is alleged specific instances which took place at

25 Keraterm and Trnopolje, the rest -- I looked over your own annex, I can't

Page 6659

1 find a word connecting them with the other two. So I don't have any

2 notion of what you think common purpose is. Does it cover the three

3 camps? Does it go backward on liability to May 24th before Prcac even

4 came to the camp? And I'm wondering how, therefore, I'm supposed to try

5 to assess whether or not there's sufficiency of evidence. I think at some

6 point this has got to be cleared up. I mean, I know the theory, I've read

7 the Nuremberg cases, but they don't explain it with any detail either. So

8 it's not like a magic wand you wave around and you say "common purpose,"

9 and you've invoked the Holy Grail. I don't know what you mean by common

10 purpose.

11 I don't expect you to give me the full explanation, but I'm

12 pointing out to you a problem I'm having in making that determination.

13 MS. HOLLIS: Thank you for bringing that to my attention, Your

14 Honour. In this Tribunal, the Tadic Appellant Chamber dealt at length

15 with common purpose --

16 JUDGE WALD: A couple of pages of dicta basically.

17 MS. HOLLIS: No, Your Honour. If you would look at the Appellate

18 decision, beginning where they begin to talk about modes of liability,

19 really, under paragraph 185 --

20 JUDGE WALD: I have read that.

21 MS. HOLLIS: -- but when you begin with 195, where it says:

22 "Close scrutiny of the relevant case law shows that broadly --"

23 THE INTERPRETER: Could counsel please slow down.

24 MS. HOLLIS: I apologise. "... the notion of common purpose

25 encompasses three distinct categories of collective criminality," and that

Page 6660

1 goes all the way through paragraph 228.

2 JUDGE WALD: I have read the whole thing, but I don't think it

3 answers some of the questions I have.

4 MS. HOLLIS: It does talk about concentration camp --

5 JUDGE WALD: Yes, it does.

6 MS. HOLLIS: -- common purpose.

7 JUDGE WALD: Right, right. But it says that's one of the three

8 instances of common purpose --

9 MS. HOLLIS: That's right.

10 JUDGE WALD: -- but it really doesn't answer any of the questions

11 that we would have to answer here, or that I would have to answer, to know

12 whether or not if we use the common purpose theory, Mr. Prcac or maybe

13 some of the others too would be liable for what? What would be the scope

14 of their liability under --

15 MS. HOLLIS: It goes back to the --

16 JUDGE RODRIGUES: [Interpretation] I'm sorry. I'm sorry to

17 interrupt you, but both of you are speaking the same language, and I think

18 that our interpreters have problems following you because there were no

19 pauses between questions and answers. We've been telling this to the

20 Defence counsel, but please bear this in mind, the necessity of making a

21 pause.

22 JUDGE WALD: I apologise.

23 JUDGE RODRIGUES: [Interpretation] Thank you.

24 MS. HOLLIS: And I as well, Your Honour. You have certainly asked

25 me to keep that in mind before. I do apologise.

Page 6661

1 I would suggest, Your Honour, that the Appellate decision does

2 give you what you need because it gives you the elements, it gives you the

3 theory; and what we suggest to you is that when you're looking at what

4 happened in the other camps, that is the context in which these individual

5 acts of the accused must be considered, because it does give you the

6 broader common purpose, if you will, the common enterprise, of what was

7 happening in opstina Prijedor. It is related to the findings that this

8 Chamber has previously made, and that is that the mistreatment of persons

9 in these camps was connected to the widespread or systematic attack and

10 the armed conflict.

11 It is within that context and using that as evidence to show some

12 of the elements required for these offences that you will ultimately, as a

13 Trial Chamber and as individual Judges, have to legally characterise what

14 these accused have done. So, for example, Your Honour, if I may --

15 JUDGE WALD: Sure.

16 MS. HOLLIS: -- taking your example of what happened in Omarska

17 before the accused Prcac arrived, can you find him guilty under common

18 purpose of the actions that occurred before he acted at the camp? We

19 suggest you may very well find you cannot. However, what happened prior

20 to his arrival and happened during his stay is proof of the regime of the

21 camp which does go to common purpose. So we believe that would have

22 significance for you.

23 And our point about modes of liability --

24 JUDGE WALD: How about -- if you wouldn't mind addressing what is

25 really bothering me: Keraterm and Trnopolje. Are you really suggesting

Page 6662

1 the common purpose; that if they joined up, as it were, in Omarska, they

2 are going to be held responsible for what happened at Trnopolje and

3 Keraterm? Not defendant Zigic but the others.

4 MS. HOLLIS: What we are saying is that in showing the breadth of

5 this common purpose, we are using these other camps. It was connected in

6 this broader common purpose.

7 In legally characterising the import of the accused's conduct at

8 Omarska, we believe that the conduct of what was happening in the other

9 camps is relevant. As to whether you are going to say they are liable for

10 what happened in those other camps, we are not saying you may necessarily

11 do that. What we are saying is it is a relevant context in which to

12 ultimately determine what mode of liability, if any, you may apply to

13 their acts or omissions, because ultimately, of course, it is their acts

14 or omissions that you're looking at for liability. But in determining the

15 scope of that liability, and looking at the Common Purpose Doctrine, there

16 is even a third category that says you didn't specifically intend the

17 result in a particular place but it was reasonably foreseeable in the

18 common purpose to which you became a part.

19 So that is something for final determination as to exactly how

20 broad that goes. But certainly for purposes now, we believe it is a

21 relevant context in which to determine if there is any mode of liability

22 on which there is some evidence.

23 JUDGE WALD: I understand your basic -- and I would agree with

24 your basic notion -- pause. I would agree with your basic notion about

25 looking at any possible mode of liability. I think you understand from

Page 6663

1 your answer what my problem is, that nobody -- I did not find the Tadic

2 dicta sufficient for me to determine what you were talking about as the

3 common purpose mode of liability that would be applied here. I assume at

4 some point in this whole proceeding you'll brief that a little bit more

5 down the line.

6 But what you have said has helped me to some degree, so thank you.

7 End of pause.

8 MS. HOLLIS: I'm sorry if I didn't address your question. Perhaps

9 I'm too obtuse, but I intended to address it. I apologise if I wasn't

10 able to.

11 JUDGE RODRIGUES: [Interpretation] Yes, thank you, Madam Hollis.

12 In follow-up to the issue that has just been discussed, I should

13 like to ask a question and hear your views about certain doubts that I

14 have at the moment. And I hope that you will help me clarify certain

15 things.

16 You'll remember that this case was, at the very beginning, Radic,

17 Kvocka, Zigic, and Kos, that it involved four accused; however, Zigic was

18 made part of this case because of his involvement in the events in the

19 Omarska camp. But he was also the accused in one other case, Simic, I

20 think, involving the events that took place in Keraterm and Trnopolje. At

21 one point in time, the Zigic case was joined to the present case, so he

22 was accused for the events that took place in Omarska, and in addition to

23 that, he was joined in the sense that he participated in the events that

24 took place in Keraterm and Trnopolje. Am I correct, Ms. Hollis?

25 MS. HOLLIS: Yes, Your Honour.

Page 6664

1 JUDGE RODRIGUES: [Interpretation] My question in relation to that

2 is the following: Before Zigic was joined with this case, including the

3 Trnopolje and Keraterm events, the other accused at the time, Kvocka, Kos,

4 and Radic, were already held responsible, according to the theory of the

5 Prosecutor, for the events that took place in Keraterm and Trnopolje, or

6 not. Was that the case? Were they held responsible for those events as

7 well, before Zigic came to this case?

8 MS. HOLLIS: Your Honour, if we exclude Zigic from discussion, the

9 events in Trnopolje and Keraterm are relevant to the charges against these

10 accused because it is part of the broader crime that occurred in Prijedor;

11 it is part of the ethnic cleansing of the municipality of non-Serbs. So

12 in that regard, the context is significant.

13 The context is also significant because the evidence of those

14 camps further supports that there was a regime within the opstina Prijedor

15 of repressive conduct toward non-Serbs in camps. So it is significant for

16 that as well.

17 Why is it significant? It is significant for the common or

18 jurisdictional elements; it is also significant for intent and inferring

19 intent; it is also significant for different legal characterisations of

20 the conduct of these accused, different modes of liability, if you will.

21 That's where we go back in to proof, first of all, that there was this

22 common purpose; to proof that it could extend to this concentration camp

23 regime, so it was relevant to all of that.

24 If we look at the counts themselves, as we talked about earlier,

25 and if we look at persecutions, for example, we look at what was

Page 6665

1 actually stated in there and we look at, for example, paragraph 24 -

2 paragraph 24 in the indictment basically indicates that they were guilty

3 of persecutions of Bosnian Muslims, Bosnian Croats, and other non-Serbs in

4 the Prijedor area on political, racial, and religious grounds - now, if

5 you look at that language, it does not say they're guilty for what

6 happened in Keraterm or they're guilty for what happened in Trnopolje.

7 We suggest that at the conclusion of this case, when Your Honours

8 decide the parameters of their liability, if any, under common purpose,

9 that it is possible that Your Honours could determine that they are guilty

10 of crimes in those other camps because they took part in a common

11 enterprise. The intended result for them was to continue the regime in

12 Omarska, or it was to inflict the specific types of abuses that are

13 alleged, or -- and you can either argue that they also intended for the

14 other abuse, so that they are guilty under this common purpose theory, or

15 you could find that they limited their intention to what happened in

16 Omarska, but they were aware that the regime of misconduct would

17 reasonably include the same type of crimes at Keraterm and Trnopolje.

18 Under the third theory of common purpose, if you are a part of the

19 common purpose and you don't intend a specific result but that specific

20 result is reasonably foreseeable based on what you do intend, then you can

21 be found criminally liable for that as well.

22 So when Your Honours conduct your ultimate deliberations, you may

23 conclude that they were liable for these other acts of misconduct. And

24 then the question would be, really, the degree of liability. And if at

25 some point causation does break off, and that even if you find they were

Page 6666

1 liable because it wasn't in the camp in which they were working, then on

2 sentencing you would reflect that with a lesser sentence. But we believe

3 that is a permissible final determination you could make, and it is

4 encompassed within this theory of common purpose, which is one mode of

5 liability.

6 JUDGE RODRIGUES: [Interpretation] So, Ms. Hollis, in view of what

7 you have just told us, can I conclude that in the Simic case, the accused

8 in the Simic case are also responsible for everything that we are

9 discussing here concerning the Omarska camp?

10 MS. HOLLIS: I think this is an issue as to when does liability

11 attach. Yes, Your Honour. And that is something also that Judge Wald had

12 raised as a problem for her and a question for her. We suggest that the

13 issue is one for resolution at the conclusion of the case because of the

14 way the counts are alleged, but we would suggest to you this: that the

15 determining factor would be, we would suggest, when the person joins the

16 common purpose. So that even if an accused came to the camp at, say, the

17 end of July, which is not the case here, but the end of July, if they had

18 joined the common purpose earlier and if Your Honours could determine that

19 what happened in these camps was reasonably foreseeable given the common

20 purpose they had joined, then, yes, they could be held guilty for what

21 occurred in these camps prior to their arrival at the camp.

22 So we suggest the real legal issue, and it's not a legal issue for

23 discussion under judgements for acquittal, we suggest, but the legal issue

24 is when does the evidence show, either directly or through reasonable

25 inferences, that the person joined the common purpose, that they became a

Page 6667

1 part of it? And that is the point at which liability would attach.

2 The evidence of what happened before that would still be relevant

3 to Your Honours because it does establish the ongoing nature of the

4 enterprise; it establishes what the common purpose was. Because

5 individuals don't all have to be present at the creation of the common

6 purpose, they can join later. That's the fatal flaw with the argument put

7 forth by the counsel for the accused Prcac. You don't have to be in at

8 the beginning. Any time you jump on board, your liability commences.

9 So when they would be liable --

10 JUDGE RODRIGUES: [Interpretation] We don't have the transcript

11 anymore. There seems to have been a problem. I was trying to have a

12 break but I don't know now. I think we should have a break before our

13 Status Conference.

14 Madam Hollis, could you perhaps just finish your intervention, and

15 then we will have the break, because we're not getting the transcript.

16 Yes? No, nothing is being written down at the moment, because we don't

17 have the court reporter in the courtroom here. I think that the best way

18 would be to have a break at this point, and we will come back to finish

19 your argument, Ms. Hollis, and to begin the Status Conference.

20 So a one-hour break.

21 --- Recess taken at 1.10 p.m.

22 --- On resuming at 2.07 p.m.

23 JUDGE RODRIGUES: [Interpretation] You may be seated.

24 Ms. Hollis, as you can see on the transcript, the last sentence

25 that you uttered was "they don't have to be in at the beginning." Please

Page 6668

1 continue with your argument, Ms. Hollis.

2 MS. HOLLIS: Your Honour, I have reviewed the last part of the

3 transcript, and the part I reviewed also had the sentence "They can

4 join." I have also recalled the principle or adage that Judge Riad has

5 set forth: If you can do more, then you can do less. We have argued that

6 that principle does not apply to Rule 98 bis. However, that principle

7 would apply to my comments, Your Honours, and I have nothing further to

8 say unless you have additional questions.

9 JUDGE RODRIGUES: [Interpretation] I do have one more question,

10 Ms. Hollis. What I wanted to know was whether in the Simic case the

11 accused will also be held responsible for these actions that were

12 committed in the Omarska camp. But let me, perhaps, try to rephrase the

13 question.

14 Before the joinder in the Omarska case, the acts for which Zigic

15 was held responsible and which took place in Keraterm and Trnopolje, did

16 the configuration of the indictment, if I can put it that way, did it

17 change? So before Zigic was joined to the indictment, did the accused

18 that were already present there in Omarska, were they accused for the acts

19 committed in Omarska as well, or did that happen only at the moment when

20 Zigic joined them with the acts that he committed in Keraterm and

21 Trnopolje?

22 MS. HOLLIS: Your Honour, again, I think, to clearly answer that,

23 we have to look at the counts themselves and the language of the counts.

24 If we look at the murders, I believe, in regard to the four accused -- or

25 the three accused who were in the case before Zigic, the murders talked

Page 6669

1 about prisoners in Omarska. If we talked about the torture counts, I

2 believe that those counts in the relevant paragraph referred to prisoners

3 in Omarska. When we looked at persecution, I believe I earlier alluded to

4 that language, and that language was in the area of Prijedor, so that that

5 was broader.

6 Given that, Your Honours, we would suggest the following: For

7 Counts 1 to 3 for Kvocka, for Radic, for Kos, and later for Prcac, that it

8 is possible that Your Honours could, on the language of the indictment,

9 find them guilty for what happened in those other camps using one of the

10 modes of liability that is referred to as common purpose, and that is the

11 third mode of liability that says that you join a common purpose intending

12 certain things. Other crimes occur which were not within the intent that

13 you had but they were reasonably foreseeable. Under that mode of

14 liability, you could conclude, we suggest, they were liable for crimes in

15 Keraterm and Trnopolje. The language of the indictment would allow you to

16 do that. We suggest further that is a decision for final judgement. That

17 is not a decision for Rule 98 bis.

18 So I hope I have answered your question, Your Honour.

19 JUDGE RODRIGUES: [Interpretation] Thank you very much, Ms. Hollis.

20 I should like to go back to one other aspect that was touched upon by one

21 of my colleagues. You tell us that, for example, the charge of murder

22 refers to several individuals, but I think that when it comes to the

23 definition of the criminal offence of murder, if we talk about the

24 abstract elements of the criminal offence of murder, I don't think that

25 there is a -- that the element was that there had to be several persons

Page 6670

1 murdered. When you say "several persons" in the criminal offence of

2 murder, it is enough to have one victim to sustain this count of the

3 indictment.

4 So in follow-up to the question that was asked by Judge Riad, if

5 we say that there is not enough evidence, and to a certain extent you

6 refer yourself to the Kordic case law and you also admit, to a certain

7 extent, that you haven't met the required standard for the charge of

8 murder, I would like to know whether this criminal offence of murder can

9 still stay, because it does not require several victims. The only thing

10 that it requires is one victim. I don't know how you can respond to

11 that. I'm talking about the abstract definition of the criminal offence

12 of murder. What is necessary, what is required, is only one victim, not

13 several victims. What is your opinion on that?

14 MS. HOLLIS: Your Honour, in the count, at least Counts 4 and 5,

15 but also as against the accused Zigic, Counts 6 and 7, if we look at

16 paragraph 34, we find the universe, if you will, of victims, as well as a

17 time frame, and it indicates a time frame between the 24th of May and the

18 30th of August. And then it indicates that Kvocka, Prcac, Kos, and Radic

19 participated in the murder of prisoners, in the plural, in Omarska camp

20 including those listed in the schedules. So those listed in the schedules

21 are among the universe of victims.

22 The same thing would be true in Counts 6 and 7, at paragraph 37.

23 The same time frame is alleged, and it accuses Zigic, either alone or with

24 others, of entering the Omarska and Keraterm camps and participating in

25 the murder of prisoners. And then in that, proceeds to list A through D

Page 6671

1 in terms of victims. So in regard to how it was charged, it was charged

2 as murder of more than one person.

3 Your Honours, we suggest, at the conclusion of these proceedings,

4 you could find the accused guilty of Count 4 and 5 by what, in my

5 practice, we would have called "by exceptions" in that you could find that

6 the accused are guilty of murder but the exception would be you would only

7 find murder of one victim. So that as to prove a murder charge, even if

8 it is a cumulative charge, you have to meet all of the elements for

9 murder, so that you have to prove that either named or unnamed persons

10 were killed and that the accused, somehow his acts or omissions could be

11 legally characterised in a way that would give him criminal responsibility

12 for those murders, and that the requisite intention was present.

13 So you could find him guilty of just one person, but it would not

14 transform each individual victim into a separate murder count, and that is

15 the basis for our argument: to say that you would not have a basis in the

16 Rule to acquit for specific victims because there are no individual murder

17 counts for each specific victim. The schedules do not give individual

18 murder counts. They are further particulars to support the existing

19 counts which are counts of multiple murders.

20 JUDGE RODRIGUES: [Interpretation] Very well, then. Thank you very

21 much. I don't think we have any additional questions for the parties. So

22 this actually concludes our hearing of the arguments in support of the

23 motion for judgement of acquittal.

24 We will now proceed with the Status Conference, which was

25 announced in our Scheduling Order, and we will follow the agenda indicated

Page 6672

1 therein.

2 --- Whereupon the Motion Hearing adjourned at 2.26 p.m.,

3 to be followed by a Status Conference























Page 6673


2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.26 p.m.

6 JUDGE RODRIGUES: [Interpretation] The Prosecution has used 53 days

7 of hearing in order to present its evidence against the five accused in

8 this case. In principle, the Defence has the right to use the same amount

9 of days in order to present its case. The Chamber believes that each of

10 the accused should have at least two weeks for the presentation of his

11 defence.

12 In view of that, I should like to hear the views and positions of

13 Defence counsel, in particular, regarding the number of witnesses that

14 they intend to call to testify at trial. However, before I give the floor

15 to Defence counsel, I should like to mention that, as you know, we have

16 just discussed this motion for judgement of acquittal, and the Chamber, of

17 course, has not made a ruling as yet. What we know at this point is that

18 the Defence is going to continue with its case. There is at least one

19 accused who hasn't filed a motion for judgement of acquittal. And also in

20 respect of those accused who have admitted, to a certain extent, that

21 there are still elements that need to be discussed. So we will continue

22 our discussions in light of that.

23 If we take the worst case scenario, then I should like to ask each

24 of the Defence counsel to tell us what will be the number of their

25 witnesses in accordance with their estimate at the moment.

Page 6674

1 So having said that, I will now give the floor to Mr. Krstan

2 Simic.

3 MR. K. SIMIC: [Interpretation] Thank you, Your Honours.

4 The issue that is going to be discussed during this Status

5 Conference is linked, I must say, to our previous discussion both as

6 regards the Defence counsel, the Prosecution, and the Chamber.

7 From the very beginning, we have a problem involving the

8 indictment; that is to say, the indictment that we have in this case, it's

9 different from all other indictments before this Tribunal. You remember

10 when I told Mr. Niemann that I hoped that he would not have me arrested,

11 and today I have just received a confirmation of a theory from Ms. Hollis

12 in accordance with which the Common Purpose Doctrine equals the common

13 responsibility -- collective responsibility.

14 Talking about an individual that have a certain position, that

15 makes the position of the Defence very complex, because we do not know how

16 to organise our defence. Rule 98 bis has another provision whereby the

17 Trial Chamber may order the entry of judgement of acquittal and motion of

18 an accused or proprio motu. In view of the allegations made by

19 Ms. Hollis, and in view of the evidence that has been presented in this

20 case so far, I must say that not a single witness mentioned the fact that

21 Mr. Kvocka was present at any single murder, any single incident, any

22 single torture --

23 JUDGE RODRIGUES: [Interpretation] Madam Hollis.

24 MS. HOLLIS: Your Honour, to the extent that Defence counsel is

25 arguing Rule 98 bis, the Prosecution objects to it. He did not submit a

Page 6675

1 pleading, he has not put anyone on notice that he wishes to argue it, and

2 we believe that given those circumstances, it is inappropriate for this

3 counsel now to argue Rule 98 bis.

4 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Simic. I was wondering

5 what your objective was, because my question concerned the presentation of

6 your evidence, that is, the Defence case, in particular, the number of

7 witnesses. I can understand your wish to state once again that you are in

8 a very difficult position to organise your defence, but I don't think that

9 it is necessary and wise to reopen the discussion that we had on a number

10 of occasions. We are now beginning a new phase in these proceedings, and

11 I should like your specific answer to my specific question, that is, the

12 number of witnesses that you intend to call in support of your case.

13 MR. K. SIMIC: [Interpretation] Mr. President, Your Honours, I do

14 accept your criticism, but I was about to finish. I just wanted to say

15 that the issue discussed so far has brought us into a situation where we

16 have to do the job of the Prosecutor. And when I say that -- having said

17 that, I can also indicate that we intend to call 27 witnesses, and we have

18 six alternative witnesses and two affidavit witnesses, plus two expert

19 witnesses who are supposed to give evidence. And I wanted to say -- I was

20 about to say, that because of a certain approach, we have been brought

21 into a position where we are held responsible for a wider area of

22 Prijedor. The Defence was supposed to call evidence regarding the

23 organisation of the camp, and the Prosecution has provided us with a

24 number of materials from which it was clear that they were able to discuss

25 the organisation of the camp itself. But it seems that we have to do it

Page 6676

1 right now.

2 JUDGE RODRIGUES: [Interpretation] Mr. Simic, if you wish to

3 discuss these issues, you have to file the adequate motion, the motion for

4 the judgement of acquittal. We are now discussing the presentation of the

5 Defence case. Okay. You have told us that you intend to call 27

6 witnesses, two expert witnesses --

7 MR. K. SIMIC: [Interpretation] That's right, Your Honour.

8 JUDGE RODRIGUES: [Interpretation] So please try to focus yourself

9 on these specific issues.

10 MR. K. SIMIC: [Interpretation] Twenty-one affidavit witnesses, and

11 we also intend to call a representative of the OTP to challenge the

12 identification. The minimum amount of time that we need is two to three

13 weeks, but it will, of course, depend on the written of -- hearing of

14 witnesses. Once again, we have to bear in mind all technical problems in

15 calling the witnesses to testify before trial. So that is the reason why

16 we have such a long list of witnesses.

17 We will file a motion by the 15th containing the list of

18 witnesses, including facts to which they intend to testify. And as

19 regards our pre-trial brief, it was filed on the 15th of September, 1999

20 and we will more or less follow the same grounds and arguments that we

21 indicated in our written brief and that were discussed by Mr. Kvocka

22 during his testimony.

23 Thank you, Your Honours.

24 JUDGE RODRIGUES: [Interpretation] Thank you very much, Mr. Simic.

25 I believe that you have the order of the Chamber, issued on the 23rd of

Page 6677

1 November. In that order, we indicated what would be the agenda for

2 today, under number 2, Status Conference, the same date, in order to be

3 able to address the following issues. And then we have the issues

4 enumerated one by one, and we are going to follow this agenda. We work

5 with five Defence teams and we have to be able to organise ourselves

6 properly. Now we are discussing the number of witnesses the Defence of

7 each accused intends to call. Afterwards we are going to take up one by

8 one all of the issues that are contained in the agenda. I think that this

9 is a far better approach than to discuss all of the issues at once.

10 I'm going to give the floor to Mr. Nikolic now.

11 Mr. Nikolic, could you tell us the number of witnesses that you

12 intend to call in support of your case.

13 MR. NIKOLIC: [Interpretation] Thank you, Your Honour.

14 The number will require a brief introduction. May it please the

15 Court? Can I go ahead with that before I state the numbers?

16 JUDGE RODRIGUES: [Interpretation] But are we going to arrive at

17 numbers that you don't know now, or have you got the number of witnesses

18 already before you go into your introduction?

19 MR. NIKOLIC: [Interpretation] Let me be more specific, Your

20 Honour.

21 JUDGE RODRIGUES: [Interpretation] Very well. But quickly, please,

22 Mr. Nikolic.

23 MR. NIKOLIC: [Interpretation] In response to this question, I

24 shall refer to Rule 82 which speaks about joint and separate trials, Rule

25 82 of the Rules of Procedure. And in cases of this kind, each accused

Page 6678

1 shall be accorded the same rights as if such accused were being tried

2 separately.

3 Now, the number of witnesses will depend on a ruling by the Trial

4 Chamber with respect to the pleading as regards Rule 98 bis, which was

5 filed on the 6th of October by the Defence, and the presentation of the

6 case for the accused Kvocka, who is before the accused Kos. At this point

7 in time, the Defence plans to call approximately 15 witnesses; however,

8 depending on the two aforementioned facts, that number might be halved.

9 The Defence has borne in mind the need for a fair and expeditious

10 trial, but also we are fully conscious of the fact that the trial must be

11 fair and expeditious, as I say, as well as being just. And that is why it

12 states that we feel that we will need five to seven days, but we should

13 like to ask that Rule 82 be respected, of the Rules of Procedure and

14 Evidence.

15 JUDGE RODRIGUES: [Interpretation] Very well, Mr. Nikolic. Let us

16 go on with the other points at a different point. Mr. Fila, you have two

17 or three -- the right to two or three words by way of introduction, and

18 after that I want to hear the number of witnesses you intend to call.

19 MR. FILA: [Interpretation] Your Honour, everything is very

20 simple. Are there or are there not depositions in Banja Luka? If

21 depositions in Banja Luka exist, then I will need two weeks here. That

22 will be sufficient. That will make 19 witnesses, three or four expert

23 witnesses, depending, and several affidavits, which are not going to take

24 up any time. If depositions in Banja Luka exist, then I will have 48

25 witnesses plus four expert witnesses, and then I will need seven days at

Page 6679

1 trial here.

2 That is the response by the Defence with respect to that issue,

3 Your Honour. Thank you.

4 JUDGE RODRIGUES: [Interpretation] Thank you, Mr. Fila.

5 Mr. Stojanovic is next.

6 MR. STOJANOVIC: [Interpretation] Thank you, Your Honour. I won't

7 be trying your patience with some of the problems that we have at this

8 point. Let me just give you a provisional piece of information.

9 We filed a more detailed report yesterday. We intend to have 22

10 witnesses, three depositions, eight alternative witnesses, and three

11 expert witnesses. That is a provisional list for the moment, but

12 Mr. Zigic will be one of the witnesses testifying, and we plan to have his

13 examination last and testimony last over a period of several days. I

14 don't think I have understood what you mean by two weeks. Does that mean

15 two times five working days? Is that what you mean by two weeks?

16 But at all events, it is our position that we would require more

17 time, all the more so as the accused is the only accused for three camps.

18 I know how much time we spent with Omarska, but with Mr. Zigic, we must

19 focus on Keraterm and Trnopolje, and this will require much greater time.

20 So our examination of these witnesses will require longer time.

21 Thank you, Your Honour.

22 JUDGE RODRIGUES: [Interpretation] Thank you, Mr. Stojanovic.

23 Mr. Jovan Simic has the floor next.

24 MR. J. SIMIC: [Interpretation] Your Honour, the Defence of

25 Mr. Prcac plans to call to The Hague, to the Tribunal, 14 to 16 witnesses;

Page 6680

1 one expert witness amongst them, and 16 affidavits. We will have to have

2 a meeting with the Prosecution, and have asked for one and hope that this

3 will be done today or tomorrow, because some witnesses that the

4 Prosecution did not bring forward, we intend to call. So that is the

5 general framework for the numbers, and I think that we will be able to get

6 through them in 14 days, in two weeks.

7 If there are depositions in Banja Luka, however, and if the facts

8 that we discussed previously in keeping with Rule 98 bis, then we could

9 reduce the number of witnesses, and that will require half the amount of

10 time than we would need otherwise.

11 Thank you, Your Honour.

12 JUDGE RODRIGUES: [Interpretation] Thank you, Mr. Jovan Simic.

13 With respect to the number of witnesses, and we have already

14 considered this point, they are provisional, but we are getting to know

15 the general dimensions of the Defence case, although the numbers are

16 provisional. So before discussing what will be presented by the Defence,

17 we will have to discuss these points, but we have to have a general idea

18 of what is going to happen.

19 The other aspect that I would like to consider and share with you

20 with respect to the number of witnesses are the protective measures

21 required for the witnesses. Without wasting -- in order not to waste time

22 during the proceedings themselves, could the Defence tell us before the

23 presentation of evidence in the Defence case what protective measures

24 they shall be requiring for their witnesses, and for which witnesses in

25 particular.

Page 6681

1 Mr. Krstan Simic, have you got a general idea of what you will be

2 requiring at this point?

3 MR. K. SIMIC: [Interpretation] Your Honour, the Defence does not

4 intend to avail themselves of the use of protective measures except for

5 one case which I wish to explain to you.

6 The Defence intends to call one witness called by the Prosecution

7 and who has already testified, and we shall ask for the same protective

8 measures that the witness had when he was called -- they were called by

9 the Prosecution, whereas all the other witnesses will be testifying with

10 their own names and surnames, without any protective measures being

11 required and sought.

12 Thank you, Your Honour.

13 JUDGE RODRIGUES: [Interpretation] Very well, Mr. Krstan Simic.

14 Thank you very much.

15 Mr. Nikolic is next.

16 MR. NIKOLIC: [Interpretation] Your Honour, looking at it from this

17 perspective, we might have to request protective measures for one

18 particular witness, but that, again, will depend upon the number of

19 witnesses when we come down to the specifics.

20 Thank you, Your Honour.

21 JUDGE RODRIGUES: [Interpretation] Okay. Thank you, Counsel

22 Nikolic.

23 Counsel Fila.

24 MR. FILA: [Interpretation] Mr. President, unfortunately, I'm going

25 to give you the same answer. If depositions in Banja Luka exist, then

Page 6682

1 protective measures, as I wrote in my submission of the 14th of December,

2 1999 - you have all the facts there in writing - then they will be seeking

3 measures to travel to The Hague and to come back and safe conduct. If

4 there are no depositions, and I will reduce the number of people from 48

5 to 19, as I have said, they will ask for the same measures when they come

6 here. And those who were coming here anyway, that is to say, even if

7 there are or there are not depositions, are not seeking protective

8 measures. So everything is linked to Banja Luka. I apologise, but that's

9 how things stand at the moment.

10 Thank you, Your Honour.

11 JUDGE RODRIGUES: [Interpretation] Well, we shall see what happens

12 in Banja Luka. We are going to discuss that point later on. Perhaps this

13 was not a convenient order for you, but we'll see to that later on.

14 Mr. Stojanovic, the floor is yours.

15 MR. STOJANOVIC: [Interpretation] Thank you, Your Honours. In our

16 submission, and I handed it in yesterday, we are categorical on only one

17 case, that we will truly need protective measures, all available

18 protective measures, for just one witness. For the moment, we don't see

19 that we shall be needing these measures for other witnesses, but we will

20 see what happens as time goes on.

21 Thank you.

22 JUDGE RODRIGUES: [Interpretation] Mr. Jovan Simic.

23 MR. J. SIMIC: [Interpretation] Your Honour, for the moment, the

24 Defence of Mr. Prcac will not be seeking any protective measures for any

25 of the witnesses, whether they are here or in Banja Luka, depositions in

Page 6683

1 Banja Luka.

2 JUDGE RODRIGUES: [Interpretation] Thank you very much, Mr. Jovan

3 Simic.

4 Another question that we must consider, and I apologise to keep

5 having to get you up on your feet, but I think a little exercise is rather

6 welcome, is it not? The other point is the summaries of the facts on

7 which each witness will testify. That is the second point.

8 Article 60 ter (G) requires that summaries of the facts be

9 supplied on which each witness will testify, and this will allow us to

10 rationalise the presentation of evidence. And the Chamber hopes that the

11 witnesses called to testify will not be testifying about facts that have

12 not been contested or are under judicial inquiry. I think that the

13 Defence might also bring in common witnesses to testify if it is a crime

14 that all of the accused have been charged with. So with respect to the

15 Defence case, we must bear in mind that the Prosecution -- that the

16 Prosecutor will have to be prepared for the cross-examination. So the

17 Prosecution will have to have information as to the events or facts on

18 which each witness will testify.

19 Bearing that in mind, I am now going to give the floor to

20 Mr. Krstan Simic, once again, with respect to the summary of the facts,

21 summaries of the facts. Where do you stand with respect to that issue?

22 MR. K. SIMIC: [Interpretation] Your Honour, up until the 15th,

23 which is the deadline, we will -- our submission will contain all the

24 summaries, and we shall be complying with the deadline as you have

25 prescribed.

Page 6684

1 Thank you, Your Honour.

2 JUDGE RODRIGUES: [Interpretation] Thank you, Mr. Krstan Simic.

3 Mr. Nikolic, may we hear you.

4 MR. NIKOLIC: [Interpretation] The Defence will certainly be

5 handing in summaries to the opposite side before the presentation of the

6 case. That is what I would like to request before the Defence case of

7 Mr. Kos proceeds.

8 JUDGE RODRIGUES: [Interpretation] Okay. Very well, Mr. Nikolic.

9 Mr. Fila.

10 MR. FILA: [Interpretation] Mr. President, we have a question to

11 deal with here, and the question is the following: Is it a fair trial if

12 the Defence of all five accused puts forward, on the 15th, a summary of

13 its defence although the witness will be brought to testify in three or

14 four months' time? Or are we supposed to present the summaries before

15 each of us begins our case? I hope I have been clear. So either all five

16 of us at the same time, which is not something which we find agreeable,

17 that is, when Mr. Krstan Simic finishes, then Mr. Nikolic can go ahead;

18 once Mr. Nikolic completes, then it is me; and when I am over, then it is

19 Zigic. And in that sense, I would like to hear a ruling by you, and we

20 shall respect that ruling, whatever it might be. Thank you, Your Honours.

21 So do you want me to do it by the 15th? If you do, I will do so.

22 But if not, then I would rather, I would prefer, the other option, because

23 then we will see what has been proved while the counsel before me has

24 presented the evidence. And then the Prosecution will, of course, receive

25 summaries within eight to ten days prior to the presentation.

Page 6685












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Page 6686

1 JUDGE RODRIGUES: [Interpretation] Thank you very much, Mr. Fila.

2 We should perhaps hear the response of the Prosecution, first of

3 all, concerning what has been exposed so far. However, my idea was that

4 the order of the presentation of evidence during the Defence case will be

5 in accordance with the order of the indictment, that is, what we are

6 actually doing right now. First we will hear the defence of the accused

7 Kvocka, Kos, Radic, Zigic, and then Prcac at the end, that is, in

8 accordance with the order of the indictment. Each Defence team will

9 present its defence in accordance with that order.

10 I will give the floor to Ms. Hollis for all of the issues that

11 have been brought up so far, or if she wants to, she can address them one

12 by one. It's really up to you, Ms. Hollis. I don't know in what manner

13 you wish to respond to the submissions made by the Defence.

14 MS. HOLLIS: Your Honour, regarding all of the submissions --

15 JUDGE RODRIGUES: [Interpretation] I'm sorry, Ms. Hollis. If you

16 can just tell us now whether you prefer to respond to all of the questions

17 that have been raised by the Defence or if you prefer to intervene after

18 each issue has been brought up.

19 MS. HOLLIS: Your Honour, we don't have a response for most of the

20 questions because we believe it is between you and the Defence. There's

21 only one issue that we would like to speak to, and that is when the

22 accused must provide you with summaries. May we speak to that now?

23 JUDGE RODRIGUES: [Interpretation] Yes, yes, I think it will assist

24 us.

25 MS. HOLLIS: Your Honour, first of all, we don't believe it would

Page 6687

1 be a violation of a fair trial to have all of the accused submit their

2 summaries on the 15th of December. We also believe that that would

3 facilitate a smoother functioning of the trial as it proceeds for this

4 reason: There is a difference in the Rules between the disclosure that is

5 provided by the Prosecution and disclosure that is required to be provided

6 by the Defence. There is no provision in the Rules themselves or in the

7 Statute except in the case of notice of affirmative defences which

8 requires disclosure by the Defence to the Prosecution of witness

9 statements or what witnesses will testify about, except for Rule 65 ter.

10 So if we look at the situation, the Prosecution must provide all

11 witness statements to the Defence, and then they also must provide 65 ter

12 which gives summaries. The only vehicle in the Rules by which the

13 Prosecution learns the substance of the testimony of witnesses is through

14 the vehicle of 65 ter. We suggest that in order to enable us to proceed

15 with an effective and prepared cross-examination, that we must be

16 provided with those summaries well in advance of the testimony. We

17 suggest that it is not enough for the Prosecution to be given summaries

18 eight to ten days before a case from a particular accused begins if the

19 summaries are the only information we have about what all of those

20 witnesses will testify to. It simply does not give us enough time to

21 prepare effective and appropriate cross-examination. That is different

22 than the situation that the accused are in because of the difference in

23 the disclosure rules.

24 So we would ask that you ask the Defence to present their

25 summaries to you on the 15th of December, and we would also ask that those

Page 6688

1 summaries be detailed enough to enable us to effectively cross-examine the

2 witnesses.

3 JUDGE WALD: I have one question for you. Your position is

4 different from the Defence, but the Defence has a little bit of an

5 additional obstacle. The Prosecution knows theoretically, and I'm sure

6 practically, what its case will be before it goes to trial. Pretty much

7 it knows where its witnesses are. The Defence are five different

8 defendants, and it may be that the -- you know, some witnesses of Kvocka

9 will say something that the Kos or the somebody else that could have an

10 implication for them that they hadn't expected. It seems to me that you

11 might adhere to your Rule, but there would have to be some flexibility; in

12 other words, they would have to be at least allowed to expand if something

13 came up in the trial that they had no reason to anticipate and their

14 witness could take care of it.

15 MS. HOLLIS: Your Honour, we certainly agree with that, and we

16 believe that Rule applies to the Prosecution as well, because in the

17 presentation of the Prosecution's evidence, issues may arise or questions

18 may be resolved. We think the Rules allow for additional witnesses to

19 be added just by the language of the Rules. When they talk about

20 disclosure of all witness statements, the witnesses you've identified, and

21 then if you later identify them, you have to disclose those statements as

22 well. So we believe there is flexibility there, and we would certainly

23 agree that witnesses can be added or taken off the list depending on how

24 the case evolves.

25 JUDGE WALD: Pause. I was also referring to a particular

Page 6689

1 witness. Say, Witness A, you find out on December 15th that Witness A is

2 Mr. Kos' witness, and he says that when he's going to testify about 1, 2,

3 3, 4, 5, and then during the prior presentations, Kvocka or something,

4 some evidence comes up that now makes it necessary for Mr. Kos to cover

5 some other aspect that this witness could cover. I just say -- I would

6 hate to have the Prosecution leaping up and saying, "We object to their

7 going outside of the summary because they didn't give it to us on the

8 19th." Okay.

9 MS. HOLLIS: Your Honour, we wouldn't do that, and I think our

10 position would be that we may need a little bit of time to cross-examine

11 on things that were caught by surprise. But our position all along is

12 that these things happen, and there has to be flexibility to allow it.

13 JUDGE RODRIGUES: [Interpretation] Very well. Mr. Fila has raised

14 the issue of the filing of summaries of facts, and he said that he will

15 abide by the decision of the Chamber. But I think that we can still hear

16 and have an idea about the opinion of the Defence counsel, and to see what

17 they think about this issue. The issue, I think, can be considered at the

18 end. We have a list of items on our agenda, and I think that

19 Mr. Stojanovic was about to state his position about the summaries of the

20 facts on which each witness will testify.

21 I hope that you have something to tell us in that respect.

22 MR. STOJANOVIC: [Interpretation] Your Honour, in the filing that I

23 mentioned that was sent the day before yesterday, when talking about

24 witnesses, we provided information also as to the facts on which each

25 witness will testify. I don't know whether the Prosecutor will deem it

Page 6690

1 sufficient. If they should request additional information to that effect,

2 I believe that we will be in a position to give them that additional

3 information only at the beginning of the presentation of our case, that

4 is, the case for Mr. Zigic. I don't think that we will be able to provide

5 any additional information by the 15th of December, in view of the

6 circumstances, including the change in composition of the Defence team,

7 and also including the situation of witnesses and other accused and their

8 cases.

9 Thank you.

10 JUDGE RODRIGUES: [Interpretation] Thank you, Mr. Stojanovic.

11 Mr. Jovan Simic.

12 MR. J. SIMIC: [Interpretation] Your Honour, the position of the

13 Defence of Mr. Prcac is identical as the position expressed by Mr. Nikolic

14 and Mr. Fila. We also believe that it would be fair and correct for all

15 our material to be handed over right at the beginning -- before the

16 beginning of our case. But let me mention one other thing.

17 The Chamber is familiar with the fact that the Defence accepted to

18 proceed with the trial only 45 days after the arrest of the accused Prcac,

19 so we only had 45 days in order to prepare ourselves. We have been

20 working on the case for the Prosecution so far, and only recently have we

21 begun to work on our case. I really think that it would be only fair for

22 this Defence team to be allowed an additional amount of time for the

23 filing of these summaries, and not by the 15th of December.

24 Let me stress two other aspects. We received summaries from the

25 Prosecution on the day of the hearing, not perhaps every time but very

Page 6691

1 often, and let me mention once again the case of Witness K, in which we

2 didn't receive anything, and that evidence was also accepted despite that

3 fact. I think that we should stick to your order which stated that such

4 summaries should be handed over within seven days prior to the testimony

5 of the witness in question.

6 JUDGE RODRIGUES: [Interpretation] Yes, you are quite right,

7 Mr. Simic. We do intend to adopt the same conditions of work for the

8 Defence as well. So the same procedure which was used during the

9 Prosecution case will be applied for the Defence case. That is a minimal

10 request, I should say.

11 If what Mr. Jovan Simic is saying is true, we must admit that the

12 Defence has received a number of materials which enable them to

13 cross-examine their witnesses. But the Prosecutor hasn't received

14 anything so far except for several pieces of information. We have to

15 continue in that perspective. The Chamber will have to make appropriate

16 rulings because the Prosecutor must respond to the pre-trial brief of each

17 Defence team, and the Prosecutor has the right to say, "Well, the

18 summaries won't do. They're insufficient and we need more information."

19 You will all remember that we spent quite some time during the

20 Prosecution case discussing details of witness statements, several witness

21 statements, including those given to the authorities of Bosnia-Herzegovina

22 and statements given to the OTP for one and the same witness. You will

23 remember that at one point in time I said that the Defence will also be

24 required to supply detailed information to the Prosecutor; otherwise, we

25 will not have the equality of arms that needs to be applied.

Page 6692

1 We have to put something in writing; that is, the Defence must

2 submit written filings to that effect, and then we will hear the response

3 of the Prosecutor.

4 But let us continue with the agenda. We have covered the issue of

5 summaries. As regards the issue of witnesses, I think that we need to

6 stress that such summaries should indicate the points in the indictment to

7 which each witness will testify. This is provided for in our Rules. So

8 when the Defence -- when filing its summaries, the Defence should also

9 indicate which are the points in the indictment or, rather, the counts in

10 the indictment as to which each witness will testify.

11 I think we have already discussed the issue of the estimated

12 length of time required for each witness, because you have already touched

13 on this issue, and I hope that you will also indicate it in your written

14 brief.

15 Let us now move to the issue which might affect our work during

16 the presentation of evidence for the Defence, that is, the issue of

17 deposition testimony, involving the issue of the Presiding Officer, the

18 number of witnesses that can be heard by way of deposition, whether the

19 deposition-taking will take place here in The Hague, in Banja Luka, or

20 some other location.

21 Let us hear you on the issue of depositions, and if you can also

22 tell us how many witnesses you intend to have heard by way of deposition,

23 where do you think they should be heard, here at the seat of the Tribunal

24 or away from the seat of the Tribunal; and how do you think we should

25 proceed. And I should like to hear you in general terms, each of you,

Page 6693

1 regarding the issue of depositions.

2 Mr. Krstan Simic.

3 MR. K. SIMIC: [Interpretation] Thank you, Your Honour.

4 The Defence of Mr. Kvocka supported depositions at one point for

5 the reason that we were in a position to have to wait for the trial to

6 begin. But as the trial has already begun and is under way, we shall not

7 have any deposition witnesses because we should like to present the

8 evidence before this Trial Chamber which we consider to be relevant for

9 bringing in the right judgement. And so I don't think I need to comment

10 further on issues which do not concern me as such.

11 JUDGE RODRIGUES: [Interpretation] Thank you.

12 Mr. Nikolic, may we have your views.

13 MR. NIKOLIC: [Interpretation] Your Honours, the Defence was in

14 favour of depositions while the case was in Trial Chamber III and the list

15 of witnesses was handed in that it thought to hear through deposition.

16 There were 12 witnesses in all of this type.

17 In the meantime, we have given up having one witness present

18 testimony by means of deposition, and this leaves us with 11, and that

19 number, 11, will depend on the decision taken by the Trial Chamber with

20 respect to Rule 98 bis, and with respect to the Kvocka case. But it

21 principally depends on the place in which the depositions would be taken.

22 The Defence at this point in time does not know where this would take

23 place. The Defence preferred Banja Luka from the very beginning, and we

24 had an agreement with the witnesses and depositions were taken and sent to

25 the opposite side, and we told the witnesses that the depositions would

Page 6694

1 take place in Banja Luka, so we're still in favour of that.

2 The only thing that I can say with certainty is that if there were

3 depositions in Banja Luka, the number of witnesses would quite certainly

4 be fewer than 11.

5 JUDGE RODRIGUES: [Interpretation] Yes, thank you, Mr. Nikolic.

6 Mr. Fila, I think that you have already spoken on the issue, but

7 please go ahead. You have some more time.

8 MR. FILA: [Interpretation] First, I should like to say that the

9 Defence has sent 90 per cent of the testimony of witnesses to the

10 Prosecution and the Court at the very beginning of trial, and the

11 witnesses -- what the witnesses will be testifying about is in the

12 Registry and with the Prosecution, just a few of them that we haven't

13 received yet.

14 If the depositions are taken in Banja Luka, then, in that case,

15 the Defence will bring three witnesses and four expert witnesses to

16 testify before this Tribunal. Everything else will take place in Banja

17 Luka where it is cheaper and where we'll be able to get through the job

18 quicker. If depositions are taken in The Hague, then there's no

19 difference. It would be just as if we had brought the witnesses to the

20 Trial Chamber, the only difference being that the Trial Chamber can do

21 some other work, but then that would be 19, as we said, to begin with. So

22 that's what I have to say. Thank you.

23 JUDGE RODRIGUES: [Interpretation] Thank you.

24 Mr. Stojanovic is next.

25 MR. STOJANOVIC: [Interpretation] Thank you, Your Honour.

Page 6695

1 THE INTERPRETER: Microphone, please, counsel.

2 MR. STOJANOVIC: [Interpretation] Thank you, Your Honours. We also

3 have a witness whose testimony would be made via deposition. We have

4 three witnesses of this kind, that is to say, but we think that the

5 number will be greater. And we hope that the depositions will be taken in

6 Banja Luka, although I don't wish to present arguments in favour of that.

7 I think they are fairly strong arguments, but we'll say more about this at

8 a later date. So it is our position that we have testimony by deposition

9 in Banja Luka.

10 Thank you, Your Honour.

11 JUDGE RODRIGUES: [Interpretation] Thank you, Mr. Stojanovic.

12 Mr. Jovan Simic has the floor.

13 MR. J. SIMIC: [Interpretation] Your Honour, at this point, the

14 Defence of Mr. Prcac has envisaged just one witness to testify by

15 deposition, and in our talk with him he insisted that he come to The

16 Hague, that he --

17 THE INTERPRETER: Microphone, please.

18 MR. J. SIMIC: [Interpretation] -- if we decide that the

19 depositions are going to be in Banja Luka, then the Defence could reduce

20 the number of witnesses and the number of days needed for trial in The

21 Hague. And this would reduce -- as I say, reduce the number of days

22 necessary in The Hague by half. This would, however, increase the number

23 of deposition witnesses, but we would save time at trial.

24 Thank you, Your Honour.

25 JUDGE RODRIGUES: [Interpretation] Thank you, Mr. Jovan Simic.

Page 6696

1 I think that this question of depositions was considered

2 beforehand, and our orientation was that we could have a Presiding

3 Officer, and all the other necessary staff that are required to undertake

4 this task, to have them travel for one week and only one week. For

5 security reasons, that would be the time allotted. But now I think that

6 we should look at this issue again with a view to implementing it. The

7 Chamber is sitting in complete form, and you have furnished us with all

8 the necessary elements, and the Chamber will make a ruling, that is to

9 say, to appoint a Presiding Officer. And afterwards, the entire question,

10 as you have heard with respect to the other Chamber that tried to organise

11 the taking of depositions, the Presiding Officer will have contacts and

12 meetings with the parties in order to organise everything required for

13 these depositions. And therefore we must bear in mind the conditions;

14 that is to say, we would have just one week and see how many people we

15 would need to get the job done, and this is something that the Chamber

16 will see who the Presiding -- which Presiding Officer to appoint.

17 So we have received all the necessary information from you, you

18 have communicated it to us, and we shall make a decision on the issue.

19 Let us now move on to another question.

20 MS. HOLLIS: Excuse me, Your Honour.

21 JUDGE RODRIGUES: [Interpretation] Yes, Ms. Hollis.

22 MS. HOLLIS: Your Honour, if I could make a few brief comments

23 regarding the depositions.

24 JUDGE RODRIGUES: [Interpretation] Yes, go ahead. Please proceed.

25 MS. HOLLIS: Your Honour, we would note, first of all, very

Page 6697

1 basically, that of course Rule 90 says that, in principle, witnesses will

2 be heard directly by the Chambers. And then Rule 71 says where it is in

3 the interests of justice to do so, you may order depositions.

4 Our position on this is that we support the request for

5 depositions however long that may take if the Defence can show that the

6 witnesses would not appear or that it is otherwise in the interests of

7 justice for the evidence to be taken by way of deposition. It could be,

8 Your Honours, that they would be able to make a showing that would extend

9 beyond one week. If they were to make that, the Prosecution's position

10 would be that Your Honours should seriously consider that and perhaps

11 allow for more than one week. But before you get to depositions, we would

12 suggest the following:

13 Number 1, the Defence counsel should indicate what is the

14 interest of justice for each of these witnesses that requires a

15 deposition versus live testimony. And quite honestly, Your Honours, if a

16 witness is prepared to come here to The Hague, why don't they testify

17 live?

18 Secondly, if they are able to show that a witness would not come

19 to The Hague, for example, as some of them apparently would not, we would

20 suggest Your Honours consider the alternative of videolink testimony,

21 because that is live testimony for all practical purposes. You are seeing

22 it as it happens; you are able to ask questions. It has worked

23 successfully in the past. So we would suggest perhaps, as you say, you

24 are reflecting on this issue again, that you reflect on it all the way

25 from the beginning what has been shown in regards to the interests of

Page 6698

1 justice that require it, would videolink be possible as a preferred option

2 to live testimony?

3 But, finally, if you are persuaded that depositions are necessary

4 in the interest of justice, we would ask that Your Honours rule that these

5 depositions will be conducted even if they would extend to beyond one

6 week. And we again support the request of the Defence that should there

7 be depositions or should there be videolink testimony, that it occur in

8 Banja Luka.

9 Thank you, Your Honour.

10 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Fila. Are you speaking

11 on behalf of all the counsel or ...

12 MR. FILA: [Interpretation] Yes. Mr. President, let's wind the

13 film back. We don't mind if it is videolink in Banja Luka or deposition

14 in front of a Presiding Officer or testimony in front of a Presiding

15 Officer, and generally it is out of fear that the witnesses don't want to

16 come to The Hague. But, as we say, all of this would, I think, facilitate

17 the Trial Chamber to come to the right decision.

18 I accept everything that Ms. Hollis has said, especially when she

19 said that more than one week should be allowed; even two or three weeks,

20 because it would be a great saving for the Tribunal. Their coming and

21 going does not cost anything. The expenditure would be zero, and it would

22 be faster.

23 Videolink is an expensive procedure, a costly procedure, I have

24 seen, and this would be simpler. But, of course, the Defence will abide

25 by any ruling that the Trial Chamber may take.

Page 6699

1 Let me also mention one more detail. An alternative to all of

2 this is an affidavit, but you don't see the person, the live person, with

3 an affidavit, and that is the drawback there. It is just a statement,

4 regardless of whether it is under oath or a solemn declaration or whatever

5 you'd like to call it. It's the same thing. You don't see the actual

6 human being, and that is the reason why I would prefer to see

7 depositions.

8 JUDGE RODRIGUES: [Interpretation] You know that the objective of

9 deposition evidence is to speed the trial up, and we have this problem of

10 judicial economy in this and every other case. Everything that can be

11 done outside the courtroom should be done outside the courtroom. The

12 witnesses who will come to The Hague to testify before the Chamber are the

13 ones who will be testifying about the facts concerning the accused.

14 Everything else, political, military, ethnic background, personality

15 traits, elements that go to the sentencing, so on and so forth, including

16 general allegations that are often of a repetitive nature, that has to be

17 heard by other means. It is true that the principle is that of viva voce

18 testimony; however, we have certain constraints and we have to find ways

19 to solve this problem.

20 There are legal systems where evidence is presented mainly in a

21 written manner. So we should hear witnesses viva voce when they testify

22 about facts, and as regards other matters, we have to have recourse to

23 other means.

24 We appreciate the contribution that you have just given us, but we

25 have to bear in mind the principle of equality of arms when it comes to

Page 6700

1 the presentation of evidence as well, and this is something that is very

2 important for the Chamber. All those elements will be present in the

3 decision of the Chamber.

4 Thank you very much for the time being, Mr. Fila.

5 I think that we have a number of other issues that need to be

6 discussed. We have touched upon, more or less, all of the aspects having

7 to do with the presentation of evidence and calling of witnesses.

8 However, I think that we have skipped -- that we haven't covered the

9 number of exhibits.

10 Some Defence counsel have already submitted their lists of

11 exhibits, but we need to put them in proper context. Those lists arrived

12 at a certain point in time, and an indication was made that they were of a

13 provisional nature. Now we have to have final lists, and I should like to

14 hear you on the presentation of exhibits that each counsel intends to

15 present.

16 Mr. Krstan Simic.

17 MR. K. SIMIC: [Interpretation] Your Honour, I didn't have an

18 opportunity to react regarding the issue of witnesses.

19 We have a very serious problem here. We have five accused in this

20 case. Mr. Nikolic invoked Rule 82. In view of the indictment and the

21 form of the indictment, I should like to know what will happen. I

22 remember the practice that was adopted in the Celebici case, but I should

23 like to know what will happen here with the cross-examination of Defence

24 witnesses.

25 JUDGE RODRIGUES: [Interpretation] Mr. Krstan Simic, it is one of

Page 6701

1 the issues on the agenda; it's item 7 on our agenda. We haven't come to

2 that as yet.

3 MR. K. SIMIC: [Interpretation] Yes, Your Honour, but this concerns

4 only the accused Kvocka and Radic and not other Defence witnesses. But we

5 can, of course, discuss it in the context of item 7.

6 Let me now go back to the issue of exhibits.

7 JUDGE RODRIGUES: [Interpretation] Yes, please do, Mr. Simic.

8 MR. K. SIMIC: [Interpretation] This Defence team has submitted a

9 list containing some 56, 57 exhibits, and within the prescribed time

10 limits, it will also provided the list of exhibits that it intends to use

11 during the examination of its witnesses and the presentation of evidence.

12 JUDGE RODRIGUES: [Interpretation] Thank you very much, Mr. Simic.

13 Mr. Nikolic.

14 MR. NIKOLIC: [Interpretation] Your Honours, the position of this

15 Defence team is as follows: We intend to present several documents and to

16 tender them into evidence, but once again, that number will depend on your

17 ruling and the pre-Defence brief, and also it will depend on the Defence

18 case of the accused Kvocka.

19 But be that as it may, the Prosecution will receive on time those

20 documents and they will have enough time to verify their authenticity, and

21 I don't think it will disrupt in any way the usual course of the

22 proceedings.

23 JUDGE RODRIGUES: [Interpretation] Thank you very much,

24 Mr. Nikolic.

25 Mr. Fila.

Page 6702

1 MR. FILA: [Interpretation] Mr. President, our Defence team does

2 not have any written documentation which hasn't been used or presented so

3 far, and I do not intend to burden you with additional written material.

4 Everything that I had has already been tendered into evidence.

5 JUDGE RODRIGUES: [Interpretation] Thank you very much, Mr. Fila,

6 for this present.

7 Mr. Stojanovic.

8 MR. STOJANOVIC: [Interpretation] Your Honours, together with the

9 list of witnesses which was submitted awhile ago, we also submitted a list

10 of exhibits. But we are intensifying the preparatory work of our case and

11 I don't think that I will be able to give you any more specific

12 information at this time. I will be able to do so only before the

13 beginning -- before the opening of our case.

14 JUDGE RODRIGUES: [Interpretation] Thank you very much,

15 Mr. Stojanovic.

16 Mr. Jovan Simic.

17 MR. J. SIMIC: [Interpretation] Your Honours, the Defence team of

18 Mr. Prcac will provide you with all of the documents that it has at its

19 disposal at the moment by the 15th of December. However, we reserve our

20 right to continue with our investigation work in the preparation of the

21 Defence, and we might come up with some additional documents which will be

22 presented subsequently.

23 JUDGE RODRIGUES: [Interpretation] Thank you very much.

24 We seem to be forgetting about time; we are completely immersed in

25 our work. We have been working for one hour and twenty minutes, and I

Page 6703

1 think that we should really have a break at this point in order to give an

2 opportunity to everybody to have some rest.

3 Let's have a half-hour break at this point, and we will continue

4 after that.

5 --- Recess taken at 3.25 p.m.

6 --- On resuming at 3.52 p.m.

7 JUDGE RODRIGUES: [Interpretation] Please be seated.

8 Let us resume our work. We cannot work beyond 5.00. So having

9 said that, we must try and be more concise and to the point.

10 The question now is to know whether the parties have the intention

11 of making opening statements.

12 Mr. Krstan Simic, how long do you think you will need for that?

13 MR. K. SIMIC: [Interpretation] Your Honour, in our introduction --

14 I think there's something wrong with the interpretation.

15 JUDGE RODRIGUES: [Interpretation] We're all equal now, I think.

16 Are you receiving the interpretation?

17 MR. K. SIMIC: [Interpretation] Yes, I am, Your Honour. Thank

18 you.

19 Your Honour, we said at the beginning that we planned to bring two

20 expert witnesses; one of those witnesses will be a witness that did

21 the psychiatric examination and report at the request of the Court and the

22 second expert witness will be speaking about the organisation of the

23 police force. And --

24 JUDGE RODRIGUES: [Interpretation] I apologise, Mr. Krstan Simic,

25 but where are we agenda-wise? I think we have reached point 5, Article

Page 6704

1 84, regarding the opening statement.

2 MR. K. SIMIC: [Interpretation] I do apologise, Your Honour. I

3 wasn't getting the interpretation.

4 JUDGE RODRIGUES: [Interpretation] Very well. So we're talking

5 about opening statements and Rule 84. Do you intend to make an opening

6 statement? And if so, how long?

7 MR. K. SIMIC: [Interpretation] Yes, we do intend to make an

8 opening statement which will last between two and three hours.

9 JUDGE RODRIGUES: [Interpretation] Very well. Thank you.

10 Mr. Nikolic, please.

11 MR. NIKOLIC: [Interpretation] Your Honour, the answer is yes, and

12 it will take one hour at the most.

13 JUDGE RODRIGUES: [Interpretation] Now I am not getting the

14 interpretation. Thank you. That is a very brief answer and succinct.

15 Thank you, Mr. Nikolic.

16 Mr. Fila.

17 MR. FILA: [Interpretation] Just like Mr. Nikolic, the same applies

18 to us, Your Honour.

19 JUDGE RODRIGUES: [Interpretation] Thank you.

20 Mr. Stojanovic, let's hear you.

21 MR. STOJANOVIC: [Interpretation] Your Honour, we too intend to

22 make an opening statement which we think will last between two and three

23 hours. Thank you.

24 JUDGE RODRIGUES: [Interpretation] Mr. Jovan Simic, let's hear

25 you.

Page 6705

1 MR. J. SIMIC: [Interpretation] Your Honour, we are also going to

2 have an opening statement which will not go beyond one hour.

3 JUDGE RODRIGUES: [Interpretation] Very well. And now we come to

4 the cross-examination and the mutual cross-examination of the accused

5 Kvocka and Radic. As you know, these accused testified in their own

6 defence at the beginning of trial. We agreed that the cross-examination

7 of the accused will not take place before the end of the presentation of

8 the Prosecution case.

9 Now I have a question for the Prosecutor: When does the

10 Prosecutor think that the cross-examination of these accused will take

11 place?

12 MS. HOLLIS: Your Honour, when do we think they take place, or

13 when would we prefer that they take place?

14 JUDGE RODRIGUES: [Interpretation] What you prefer.

15 MS. HOLLIS: We would prefer to cross-examine them at the end of

16 their cases.

17 JUDGE RODRIGUES: [Interpretation] After the Defence case has been

18 presented; is that right, Madam Hollis?

19 MS. HOLLIS: Yes, of each accused after their case has been

20 presented.

21 JUDGE RODRIGUES: [Interpretation] Very well. And as to the

22 counsels of Mr. Kvocka and Radic, Mr. Krstan Simic, the cross-examination

23 for you of Mr. Kvocka, how do you feel about that?

24 MR. K. SIMIC: [Interpretation] Your Honour, I consider that in the

25 Kvocka case, the cross-examination should start and then the Prosecution

Page 6706

1 should declare its position with respect to all these issues. I am of the

2 same opinion, Your Honour.

3 JUDGE RODRIGUES: [Interpretation] Very well. Thank you.

4 Another question is the following: We need to know whether the

5 Defence counsels of Mr. Kvocka and Mr. Radic would like to proceed with a

6 mutual cross-examination.

7 Mr. Krstan Simic.

8 MR. K. SIMIC: [Interpretation] Your Honour, I broached the subject

9 earlier on and I was advised to leave it until this particular point, and

10 we discussed this issue during the break, and that is the question of

11 cross-examination and the mutual cross-examination, that is, examination

12 of the Defence witnesses. I start out from Rule 82, which says that each

13 of the accused be accorded the same rights as if such accused were being

14 tried separately. Therefore, we have a Rule which prescribes how

15 cross-examination is to be conducted, and it provides for the fact that

16 cross-examination be restricted to the subject of the examination, that we

17 can discuss the credibility of the witness, and that under extraordinary

18 circumstances, the Trial Chamber can ask the witness relevant questions

19 about the case.

20 This opens up a very relevant question. We have five accused.

21 Now, what is the limit up to which we can examine those witnesses? It is

22 our view, and I think it is the view of the rest of the Defence teams, and

23 that is the following: It is my case, they are my witnesses, and I don't

24 mind the Prosecution asking the witnesses about all relevant cases linked

25 to exclusively the Kvocka case. So the witnesses brought in by Kvocka and

Page 6707

1 Kos, they are not witnesses of the Prosecution so they can't ask them

2 questions relevant to another accused. And we consider that the other

3 Defence counsels would not have the right either to pose questions to

4 these witnesses, because we consider it to be the Kvocka case. So it is

5 between Kvocka and the Prosecution.

6 If we were to adopt a different attitude, then we would bring

7 ourselves into a position where we cannot rationalise our time. I would

8 consider that I need two hours. If we have four people, 20 minutes each,

9 this would lead us into a chaotic situation, and that is why I don't think

10 that justice will be denied or hampered in any way if we proceed in that

11 way in respect to all the accused and their witnesses.

12 Thank you, Your Honour.

13 JUDGE RODRIGUES: [Interpretation] Yes, thank you, Mr. Krstan

14 Simic.

15 Mr. Fila.

16 MR. FILA: [Interpretation] Mr. President, I think that the Trial

17 Chamber must make a ruling in this respect; otherwise, we're going to face

18 a problem. You know all the things that can happen, everything is

19 possible, and that it would be best if the Trial Chamber were to make a

20 ruling on the issue, of course after having heard from our learned

21 colleague, and we shall abide by your decision.

22 JUDGE RODRIGUES: [Interpretation] Thank you.

23 Madam Hollis, on this point, cross-examination and mutual

24 cross-examination of the accused Kvocka and Radic, and we know that

25 Mr. Zigic will also testify in his own defence. But independently of

Page 6708

1 that, let us have your views on the cross-examination and the mutual

2 cross-examination. Do you have an opinion there?

3 MS. HOLLIS: Your Honour, in terms of the --

4 THE INTERPRETER: Microphone, please.

5 MS. HOLLIS: Sorry, Your Honour.

6 Your Honour, in regard to the restriction that has been put

7 forward on the content of the cross-examination, we disagree with the

8 characterisation of Rule 89(H) and we suggest that you look closely at

9 (iii) subparts. They do allow the cross-examining party to go beyond the

10 evidence in chief, and also matters affecting the credibility of the

11 witness, and indicate that where the witness is able to give evidence

12 relevant to the case for the cross-examining party, then you may go into

13 that.

14 In regards to Kvocka and Radic, there are two grounds for doing

15 that. One is that our allegation in part of the indictment is that they

16 were superior to the others, so the conduct of the others would have a

17 bearing on the criminality of these accused, both Kvocka and -- I'm sorry,

18 I should have said Kvocka and Prcac.

19 Secondly, going back to the theory that we discussed earlier

20 regarding the Common Purpose Doctrine, cross-examination relating to other

21 crimes or incidents in the camp would be relevant to the accused's

22 liability based on that.

23 As to Kos, Radic, and Zigic, we believe we could examine as to

24 matters that were relevant to our case which would go beyond the direct

25 examination. We also believe that we could examine -- because of the

Page 6709

1 theory of common purpose, we could go into questions about other actions

2 in the camp. So we don't believe that we would be restricted in content

3 as the Defence suggests we would be.

4 If your question goes to when in the order we would cross-examine

5 compared to the other accused, we believe that ultimately that is a matter

6 for Your Honours. We would request we be allowed to cross-examine after

7 the other accused have cross-examined both the witnesses and the accused

8 who have testified or will testify.

9 JUDGE RODRIGUES: [Interpretation] Very well. Thank you very much,

10 Ms. Hollis.

11 Now, with respect to the Defence counsel for Kos and Prcac, I

12 would like to hear their views and whether these accused are going to

13 testify on their behalf, in their own defence, or not.

14 Mr. Nikolic, let's hear you.

15 MR. NIKOLIC: [Interpretation] Your Honour, according to Rule

16 85(C), the defendant can testify on his own behalf, and I have in view the

17 ruling in the Celebici case, IT-90-31, of the 4th of April, 1998, in which

18 it is stated that the accused can choose when he wishes to testify - that

19 is under number 1 - and 2, the accused may testify at any time in the

20 course of his case, during the trial proceedings, and that is Article

21 21(4)(g) of the Statute. It is expressed there. So the Defence presented

22 the time plan, will not overstep that, and if it decides to, it will been

23 within that time span.

24 JUDGE RODRIGUES: [Interpretation] So Mr. Kos is going to testify

25 on his own behalf, is that it?

Page 6710

1 MR. NIKOLIC: [Interpretation] That is not what I said. I did not

2 say that, Your Honour.

3 JUDGE RODRIGUES: [Interpretation] Okay. My question -- I'm asking

4 you now: Is he going to testify in his own defence or not?

5 MR. NIKOLIC: [Interpretation] I don't know yet, Your Honour. At

6 this point in time, I do not know that.

7 JUDGE RODRIGUES: [Interpretation] So you're reserving the right to

8 tell us at some given point in the future; is that right?

9 MR. NIKOLIC: [Interpretation] Yes.

10 JUDGE RODRIGUES: [Interpretation] Thank you.

11 Counsel Stojanovic, what about Mr. Zigic? Have we understood that

12 matter? Yes, he's going to testify?

13 MR. STOJANOVIC: [Interpretation] Yes, Your Honour.

14 JUDGE RODRIGUES: [Interpretation] Mr. Jovan Simic, what about

15 Mr. Prcac?

16 MR. J. SIMIC: [Interpretation] Your Honour, we take the same

17 position as the Kos Defence.

18 JUDGE RODRIGUES: [Interpretation] Okay. Very well.

19 MR. K. SIMIC: [Interpretation] Your Honour.

20 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Krstan Simic.

21 MR. K. SIMIC: [Interpretation] Your Honour, I should just like to

22 respond to Ms. Hollis in one sentence. Ms. Hollis and I agree absolutely

23 on one point: The Defence does not wish to limit the Prosecution in

24 asking the witness relevant matters but linked to Mr. Kvocka. She can ask

25 whatever she likes, and that is our position on this problem. Ms. Hollis

Page 6711

1 and I are in agreement there. She will have no limitations and no

2 restrictions. But the witness did not mention Zigic. He did not mention

3 anyone else, and if we went into that, then that would extend the whole

4 thing. So that is the point we're trying to make.

5 JUDGE RODRIGUES: [Interpretation] The Chamber will take a

6 decision, having been provided with arguments from the two parties.

7 I think that we now ought to look at the calendar and scheduling.

8 If I summarise everything that we have discussed up until now, I shall go

9 back to Article 65 ter (G) of our Rules and you will find a synthesis.

10 All the matters we discussed in detail are set out in Rule 65 ter; that is

11 to say, after the close of the Prosecution case and before the

12 commencement of the Defence case, the Pre-Trial Judge shall order the

13 Defence to file the following: A list of witnesses the Defence intends to

14 call and all the elements which are mentioned in (G)(i); second, a list of

15 exhibits that Defence intends to offer in its case, stating, where

16 possible, whether the Prosecutor has any objection as to authenticity.

17 As you see, it is the Rule which mirrors the one that we used for

18 the Status Conference that we had for the Prosecution case and the

19 presentation of the Prosecution case. Now you have a synthesis of all the

20 work that we have developed today. You have this Rule which you must bear

21 in mind.

22 And now as to calendar, as to the schedule, we have the basis that

23 you gave us. The Prosecutor took 53 days to present his evidence. In

24 principle, and I underline that word, in principle, each Defence counsel

25 will have approximately two weeks. I say "approximately two weeks," and

Page 6712

1 "in principle."

2 Now, I should like us to be able to programme our time. You are

3 well aware of the fashion in which the proceedings evolve. So at the

4 beginning of the Defence case, you are going to tell us how long you will

5 take to complete your cases, and we always said that organisation is an

6 instrument of our work; that is to say, it is an instrument to serve us

7 and not us to serve the instrument. So we are going to exchange views and

8 see what we can do.

9 The calendar is the following -- that has been proposed is the

10 following: From the 22nd to the 25th of January; from the 5th to the 8th

11 of February, those are the sittings; from the 12th to the 16th of

12 February; from the 5th to the 30th of March; from the 2nd to the 13th of

13 April; from the 23rd to the 27th of April. As you know, the 16th and the

14 30th of April are holidays. No audiences in the week from the 16th to the

15 20th of April either.

16 After that, from the 1st to the 18th of May we shall be sitting,

17 and we envisage to have the end of the Defence case then; from the 28th of

18 May to the 1st of June for the rebuttal by the Prosecutor; from the 12th

19 to the 15th of June, the redirect by the Defence, rejoinder, and one day

20 for each member of the Defence; and from the 2nd to the 10th of July, the

21 pleadings and closing arguments.

22 Then we have the calendar with respect to the preliminary

23 motions. You have the Scheduling Order already with respect to this.

24 Preliminary motions, a filing of the pre-Defence briefs on the 15th of

25 December, 2000, and the response of the Prosecutor on the 5th of January,

Page 6713

1 2001. Pre-Defence Conference on the 12th of January, and it will be at

2 10.00 a.m. and not at 16 hours as is indicated. We said 16 hours because

3 we had another matter to attend to that day. But now that we do not have

4 to attend to that matter on that particular day, the Pre-Defence

5 Conference will start at 10.00.

6 I think that it might be possible or, indeed, necessary, and if

7 so, if it is necessary, we might have a Status Conference to discuss the

8 pre-Defence brief and the responses by the Prosecutor perhaps in the week

9 of the 8th -- 7th of January. The 7th of January is the Orthodox

10 Christmas so we shall bear that in mind. So it will be the 8th or the 9th

11 of January because the 7th of January is the Orthodox Christmas. So the

12 Status Conference could be on the 9th or 10th of January if necessary.

13 But we're going to go through all your documents and material

14 again, and if we find the need for an extra Status Conference, we shall

15 invite you to attend. If we find that we don't need a Status Conference,

16 then we go ahead with the Pre-Defence Conference on the 12th of January,

17 as we have already stipulated in the Scheduling Order.

18 I, therefore, think that we have the calendar for the Defence case

19 and for the different stages of the Defence cases. We have this schedule

20 for preparing the Status Conference. We shall contact you if we need to.

21 I think that that exhausts our agenda for today. Let me just ask

22 both parties whether there is any urgent matter that they wish to discuss

23 at this point, and I give the floor to Ms. Hollis.

24 MS. HOLLIS: Thank you, Your Honour.

25 Your Honour, there is one matter that we would like to put on the

Page 6714

1 record today. As you will recall, at the end of our case, we had marked

2 the Exhibit 3/167A, B, and C, that is, the record of interview of the

3 accused Prcac; A being the English version, I believe; B being the B/C/S

4 version; and C consisting of three documents that were shown to the

5 accused during the interview.

6 After the conclusion of our case, counsel for accused Prcac

7 examined that transcript and has notified us and, I believe, the Court

8 that he has no objections as to the accuracy of the content. Therefore,

9 Your Honours, we would move again for you to admit that exhibit into

10 evidence, and that would be 3/167A, B, and C.

11 JUDGE RODRIGUES: [Interpretation] Ms. Hollis, I thought that you

12 were actually going to clarify the situation as regards other exhibits.

13 Hasn't there been a motion concerning exhibits that is still pending?

14 MS. HOLLIS: Yes, Your Honour. We filed a motion for

15 clarification and admission of evidence. We filed that, I believe, within

16 a short period after the conclusion of our case in chief, and that is

17 still pending before Your Honours. I didn't wish to appear that I was

18 attempting to hurry Your Honours. I didn't mention that since it has

19 already been filed and is pending.

20 JUDGE RODRIGUES: [Interpretation] I think that we can make a

21 ruling for both things at the same time. But we will hear Mr. Jovan Simic

22 as well.

23 I think, Mr. Simic, that you have already submitted your written

24 motion concerning this particular exhibit.

25 MR. J. SIMIC: [Interpretation] Yes, Your Honour, you are quite

Page 6715












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 6716

1 right. We have informed the Prosecutor of that, and the transcript is

2 identical with the original. We have examined it, and it is up to Your

3 Honours to make a ruling.

4 JUDGE RODRIGUES: [Interpretation] Thank you.

5 MS. HOLLIS: There is one final matter for Your Honours to

6 consider and that is: During the Prosecution case, once a witness took

7 the oath, the Prosecution was not allowed contact with the witness, and we

8 ask Your Honours if you intend to apply the same procedure to the Defence

9 witnesses: Once the witness takes the oath, Defence counsel may not have

10 contact with the witness.

11 The further refinement of that rule would be to ask Your Honours

12 what your position will be when it is an accused who testifies. After

13 they take the oath, will you have the same rule or a different rule? And

14 we certainly do not request a response from Your Honours now, but we

15 wanted to raise that for your consideration.

16 JUDGE RODRIGUES: [Interpretation] I don't know about my

17 colleagues, but I will tell you my personal opinion. We will apply the

18 same rule in respect of Defence witnesses; that is, once they have been

19 sworn in, there will be no contact between the counsel and the witness.

20 However, the decision also made provision for certain exceptional

21 circumstances, and I think that we have already availed ours of such

22 exceptional circumstances. The accused can act here in his capacity of a

23 witness, but he's, first of all, an accused in the case and I think that

24 that justifies the application of the provision for exceptional

25 circumstances. I can, of course, discuss it with my colleagues and we can

Page 6717

1 make the appropriate ruling later on. The accused who is testifying in

2 his own defence is in a somewhat different capacity than the regular

3 witness, and it is a bit difficult for the accused and the counsel not to

4 have communication during that period of time because very often an

5 accused testifies over a period of days.

6 But we will take into consideration your arguments and we will

7 make a ruling.

8 Let us perhaps hear the Defence regarding this issue. Mr. Fila,

9 I don't know if you are going to take the floor on behalf of your

10 colleagues as well. Mr. Fila.

11 MR. FILA: [Interpretation] Mr. President, this conversation is

12 beside the point because Mr. Kvocka and Mr. Radic testified almost a year

13 ago. If we should stick to the rule strictly, then I wouldn't have had an

14 opportunity to talk to my client during that period of time. So that

15 situation in itself is, I think, the appropriate answer to the question,

16 whether we like it or not. Thank you.

17 JUDGE RODRIGUES: [Interpretation] Mr. Nikolic.

18 MR. NIKOLIC: [Interpretation] Your Honours, just one question for

19 the purposes of clarification: The 15th of December and the filing of

20 pre-trial briefs, is that in accordance with Rule 65 ter (G)?

21 JUDGE RODRIGUES: [Interpretation] Yes.

22 MR. NIKOLIC: [Interpretation] That is, names of witnesses,

23 summaries of facts, counts of the indictment.

24 JUDGE RODRIGUES: [Interpretation] Yes, yes, indeed. Yes,

25 Mr. Nikolic, the pre-Defence briefs are provided for in that Rule.

Page 6718

1 MR. NIKOLIC: [Interpretation] I agree with you, Your Honour;

2 However, the discussion that was held here went into a different

3 direction. On the 22nd of January, we will begin with the Kvocka case,

4 and the estimated time that the case will take is two weeks, that is, 14

5 working days. And then there is a break between the 16th of February

6 until the 5th of March.

7 I think that if we bear in mind, if we respect Rule 82 of the

8 Rules of Procedure and Evidence, I think that that should be the

9 appropriate time for the Defence of the accused Kos to present its

10 case, and at that moment the Rule 65 ter (G) should be triggered, because

11 only at that point in time can that Rule be applied in a specific and

12 concrete manner. Otherwise, if we have to file the pre-Defence brief by

13 the 15th of December, we can only discuss the matters in abstract terms.

14 JUDGE RODRIGUES: [Interpretation] Yes, but, Mr. Nikolic, if I

15 understand your argument, you are telling us that you are not in a

16 position to file the pre-Defence brief in accordance with the provisions

17 of the relevant Rule because the discussion at this point in time is still

18 somewhat academic for you and abstract.

19 MR. NIKOLIC: [Interpretation] Conditionally speaking, yes, because

20 I don't know whether by the 15th of December I will receive the decision

21 of the Chamber pursuant to the motion which was filed in accordance with

22 Rule 98 bis.

23 JUDGE RODRIGUES: [Interpretation] Yes. That is why I indicated

24 that we might need another Status Conference before the pre-Defence

25 Conference which will treat the elements you have invoked.

Page 6719

1 If we want to be really ready to proceed with the Defence case,

2 and perhaps we will not be ready to proceed before the end of January, I

3 think that you should put in writing your arguments that you will have to

4 file, the pre-Defence brief, bearing in mind the first scenario, that is,

5 if your motion is rejected.

6 It is possible that the Chamber makes public its ruling this week

7 or maybe next week, and then once you receive the decision, you will

8 revise, if necessary, your pre-Defence brief. But it is also possible

9 that the decision is made only once you have already filed your

10 pre-Defence brief. If that should happen, we will need another Status

11 Conference to discuss the matters which will be pending at that time

12 before the opening of the Defence case.

13 We have to try and proceed as expeditiously as possible, and that

14 is why it is necessary for you to file the pre-Defence brief.

15 MR. NIKOLIC: [Interpretation] Yes, Your Honour, that is one

16 aspect, but we also have the issue of the Kvocka case which affects the

17 position of my client.

18 Looking at the schedule that you have suggested, I think that the

19 Defence of the accused Kos fits perfectly in that schedule. Our intention

20 is not to manipulate the schedule, but we want to be given an opportunity

21 for the accused Kos to be tried separately, pursuant to Rule 82, that is,

22 that he should receive the same treatment as if he were being tried

23 separately.

24 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Nikolic, but this

25 concerns every single accused at this trial. This particular Rule is

Page 6720

1 applicable in respect of all of the accused in the case.

2 MR. NIKOLIC: [Interpretation] I agree with you, Your Honour, when

3 you say that the Rule is applied to all of the accused. But the provision

4 here is made that they should be accorded the same rights as if such

5 accused were being tried separately, and this was also debated by my

6 colleague, Mr. Fila. We do not intend to disturb the schedule that has

7 been suggested by you, Your Honours; we can assure you of that.

8 Let me try and make myself clear. Once the accused Kvocka has

9 completed its case, within the period of five days, that is, on the 16th

10 of February until the 20th of February, the Defence of Kos will be filing

11 its pre-Defence brief in accordance with Rule 65 ter (G), which will be

12 almost two weeks before the beginning of his case.

13 JUDGE RODRIGUES: [Interpretation] I think that we have to take up

14 this issue once again. I believe that we said that we would come back to

15 this question, and we should perhaps now find out whether all of the

16 accused will present their pre-Defence briefs at the same time or not. My

17 understanding was that the pre-Defence briefs would be filed for all of

18 the accused by the 15th of December, because the Scheduling Order did not

19 concern any specific accused, it concerned all of the accused in this

20 case, and this is what is stated in the schedule.

21 MR. NIKOLIC: [Interpretation] Yes, Your Honour, indeed. That is

22 stated in the schedule. But we wanted to present our arguments to that

23 effect, and our arguments are based upon relevant provisions of the Rules

24 of Procedure and Evidence, including Rule 82 and Article 21 of the

25 Statute. And we also have Rule 73 of the Rules of Procedure and Evidence,

Page 6721

1 then Article 2 of the Statute -- I'm sorry, Rule 2 of the Rules of

2 Procedure and Evidence, and Rule 85(C). Those are the relevant provisions

3 which give us the basis for our position, the position that we have taken

4 up in respect of this issue.

5 JUDGE RODRIGUES: [Interpretation] So you're going -- you're trying

6 to say that you're not going to file your pre-Defence brief by the 15th of

7 December but by some other date.

8 MR. NIKOLIC: [Interpretation] Mr. President, I cannot tell you

9 that I'm not going to do that. I would merely like to be given an

10 opportunity to avail myself of the rights contained in the Rules, and for

11 me to be able to present my pre-Defence brief once the Kvocka case has

12 been completed. Then Mr. Fila would follow, Mr. Stojanovic, and

13 Mr. Prcac in the end. That is our common position except for the Defence

14 team of Mr. Kvocka, for whom this issue is irrelevant, because he is the

15 first on the list.

16 JUDGE RODRIGUES: [Interpretation] Just one moment, please.

17 [Trial Chamber confers]

18 JUDGE RODRIGUES: [Interpretation] Mr. Nikolic, I think we finally

19 understand your argument. I have to apologise. There has been a

20 misunderstanding here. But as far as I understand, the position of the

21 Defence is the following: A pre-Defence brief will, first of all, be filed

22 in respect of Kvocka, which will be followed by Kos, then Radic, Zigic,

23 and Prcac.

24 Let us discuss the issue. Why such a procedure, Mr. Nikolic? Why

25 do you think it wouldn't be such a good idea to file all of the

Page 6722

1 pre-Defence briefs at the same time? How do you think that the right of

2 an accused to have a separate trial can be endangered by the fact that his

3 pre-Defence brief is filed at the same time as the pre-Defence briefs in

4 respect of all his co-accused?

5 MR. NIKOLIC: [Interpretation] Your Honour, I will repeat once

6 again what the basis of our position is, and that is Rule 82 of the Rules

7 of Procedure and Evidence which discusses the issue of joint and separate

8 trials. In our view, the Rule is perfectly clear. In joint trials, each

9 accused shall be accorded the same rights as if such accused were being

10 tried separately.

11 JUDGE RODRIGUES: [Interpretation] Yes, I understand, Mr. Nikolic.

12 But how can a joint filing of the pre-Defence briefs endanger this right

13 to separate trial? In what manner?

14 MR. NIKOLIC: [Interpretation] Well, Your Honour, in that case, the

15 pre-Defence brief, if it is filed separately, can be precise, specific,

16 and concrete, because we would have already heard the case of the accused

17 Kvocka by that time. And the pre-Defence brief of my client would be of a

18 better quality.

19 JUDGE RODRIGUES: [Interpretation] Is that the reason -- is that

20 the argument that works only in favour of your client or in favour of all

21 other accused?

22 MR. NIKOLIC: [Interpretation] No, Your Honour. My colleagues are

23 joining me in my position because their situation would also be much

24 clearer after the presentation of the case of the accused Kvocka, then

25 Kos, so on and so forth. They will be in a much better position once they

Page 6723

1 have heard the cases of their co-accused.

2 While the case was being heard by Trial Chamber III and when

3 discussing the issue of depositions, we already touched upon the issue of

4 multiple witnesses and overlapping witnesses, and I think that in

5 proceeding in this manner, we would avoid that problem. We would hear one

6 case, complete the case, and then we would begin with the following case.

7 In the meantime, the Defence would act pursuant to the provisions of Rule

8 65 ter (G). If it proceeds in that manner, I believe, I hope, that we

9 will be very specific in our pre-Defence briefs and we would not be

10 speaking in abstract terms.

11 JUDGE WALD: Mr. Nikolic, can you cite us any other -- any other

12 examples here in the Tribunal of joint trials where it's been proceeded

13 that way, either Celebici that your co-counsel was with or perhaps some

14 other ones?

15 MR. NIKOLIC: [Interpretation] Yes, the Celebici case is a case in

16 point.

17 JUDGE RODRIGUES: [Interpretation] I beg your pardon. I was

18 following the suggestion made by Judge Wald.

19 Mr. O'Sullivan, could you enlighten us as to how Celebici stood on

20 that point? Mr. O'Sullivan.

21 MR. O'SULLIVAN: Indeed, at the time of the Celebici case, there

22 was no Rule 65 ter, but the Tribunal, under the general powers of Rule 54,

23 ordered that the Defence, as and when the cases began, disclosed to the

24 Prosecution the information. I may have been a little less complete than

25 Rule 65 ter, But by and large, what Rule 65 ter obliges. So there was

Page 6724

1 no obligation on the Defence to disclose it prior to the commencement of

2 their respective cases. So it was done in the way that we're proposing

3 here, not all at once but at a reasonable point prior to the beginning of

4 the next Defence case.

5 Indeed, that's the -- if I might add, it seems that that is the

6 structure of these Rules. It is a disclosure provision, Rule 65 ter, and

7 the key thing is the date at which that date of disclosure is triggered.

8 And to be fair and equal among the accused, it shouldn't happen all at the

9 same time. So there are no discrepancies between the first, second,

10 third, and so on down the line. So it's a case of -- that's tied, I would

11 submit, to the presumption of innocence, burden of proof, and just the

12 general framework of the disclosure and the timing of disclosure. It's

13 unfair or unequal to request that all of the accused disclose at the same

14 time. The Rules do not contemplate that. There should be a staggered

15 date.

16 JUDGE RODRIGUES: [Interpretation] Madam Hollis, would you like to

17 speak to us on that issue?

18 MS. HOLLIS: Thank you, Your Honour.

19 Just a few comments. First of all, Your Honour, if you look at

20 Rule 82, we suggest that the fundamental flaw to the arguments you have

21 heard is that Defence counsel are somehow assuming or implying that

22 Rule 82 requires that the 65(G) submissions be given close in time to the

23 beginning of the Defence case. We suggest that the Rule doesn't require

24 that, nor does a fair trial require that. So this is not a matter of

25 treating these accused as though they were being tried separately.

Page 6725

1 We suggest it is purely within the discretion of the Trial Chamber

2 as to when they order the Rule 65(G) submissions to be given, and that if

3 you had a case where there was only one accused and there was going to be

4 a three- or four-month delay between the close of the Prosecution case and

5 the opening of the Defence case for that one accused, the Chamber could

6 order that the 65 ter (G) submissions be made within a very short time

7 after the Prosecution case closed.

8 So there is no requirement in the Rules or in the Statute that the

9 Defence provide the information required under 65(G), only until its case

10 is about to start. The Rule says sometimes after the Prosecution case

11 closes and before its case opens; that's a broad period of time.

12 Moving to the second point they have made, and that is somehow the

13 submission would be better if you waited until later, we suggest that

14 they're reading too much rigidity into 65 ter (G). They already know

15 because they've told you how many witnesses they will call if they have

16 to address the entire case against them. They can provide the information

17 about those witnesses by the 15th of December. If your rulings on the

18 motions for judgement of acquittal or if the evidence that is brought out

19 in the other presentations by the other accused somehow changes the

20 witnesses they need to call and witnesses drop out, they simply notify the

21 Trial Chamber and the Prosecution that these witnesses will not be called.

22 That is not a difficult thing to do.

23 The thing that having them provide their submissions on one date

24 does is that, number one, it is a, we suggest, better way to organise the

25 trial because then the submissions are all provided on the one day, and

Page 6726

1 then on the following date you have established the Prosecution has to

2 respond to all those submissions. If we do it the other way, the

3 Prosecution will respond to five different submissions. That can take

4 additional time, because each time you tell them they must file their

5 submission by a certain date, you have to give us some time to respond to

6 that submission, so that could delay the proceedings.

7 So we don't see that the Statute or the Rules require these single

8 submissions just before that particular accused's case goes on. We

9 suggest that the real question is: How would you better organise the

10 case?

11 And also there is as a by-product of Rule 65 ter (G), of course,

12 there is some disclosure. We suggest that the sooner the opposing side,

13 in this instance us, receives that disclosure, the more time that we have

14 to prepare an effective and a focused cross-examination. If those

15 witnesses drop out, that doesn't harm the accused if they decide not to

16 call them. Filing submissions early doesn't preclude them from changing

17 if circumstances require it.

18 So we believe that it is totally within your discretion as to when

19 you want this to be filed, and we would ask that you continue to ask them

20 to file it on the 15th of December.

21 There is a situation that could alter that. For example, the

22 Defence counsel for Prcac has indicated that they really have not had the

23 time to do it. If they can persuade Your Honours that they have not had

24 sufficient time to be able to prepare these submissions, then that's a

25 separate basis for giving them additional time. But that is something you

Page 6727

1 would have to consider after they present to you their reasons why they

2 haven't had sufficient time.

3 JUDGE WALD: Do you know what the experience is with any other

4 cases involving joint trials after 65 ter?

5 MS. HOLLIS: Your Honour, I cannot speak to that with any degree

6 of certainty.

7 JUDGE WALD: Even with a little degree of certainty?

8 MS. HOLLIS: I'm not aware that this procedure that is being

9 suggested has been followed. Celebici, I understand now, it has been;

10 but as to the other cases, I'm not aware that it has been. But I would

11 not make a statement -- a definite statement about that.

12 JUDGE RIAD: Ms. Hollis, you seem to find that there is no harm in

13 presenting -- from the side of the Defence, because they can, after all,

14 change the number of witnesses to their advantage, I mean they can reduce

15 it and then no harm done. But what about the opposite hypothesis: They

16 might need more witnesses after hearing one of the other accused. They

17 might find themselves in need of more witnesses, and in that case they

18 would be at a disadvantage if we ask them to decide it right at the

19 outset.

20 MS. HOLLIS: Your Honour, that is an extremely important point,

21 and I believe that earlier in the day at some point Judge Wald raised that

22 as well. The Prosecution's position is that filing something under 65 ter

23 (G) or the Prosecution's submission under 65 ter should not preclude that

24 party from presenting evidence if they can show why a changed circumstance

25 requires it. But this is true whether they present their 65 ter

Page 6728

1 submissions immediately before their case or two months before their case,

2 because in the middle of their own case, a witness could say something

3 that changes the circumstances and requires them to call yet another

4 witness.

5 We are very caught up today with the need for speedy trials, and

6 that is an appropriate consideration. But we stress again that a speedy

7 trial cannot be at the expense of a fair trial or a just trial.

8 So the Court has the power to and has in the past adapted the

9 proceedings to the situation. If justice requires they change the order,

10 it doesn't matter when they file their submissions, they should be allowed

11 to do so, as should the Prosecution. So we don't see that as a detriment

12 either, Your Honour.

13 JUDGE RIAD: Thank you.

14 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Fila.

15 THE INTERPRETER: Microphone, please.

16 MR. FILA: [Interpretation] As time is passing rapidly, we have to

17 say one thing: Ms. Hollis requests that I ask a request from you for me

18 to change the name of the witnesses, to increase the number or to reduce

19 the numbers, which means that that is something that is up to you, whether

20 you allow it or not. But if we accept the other solution, then I don't

21 have to ask for a request, and five days after Kos' case I will be able

22 to decide which witnesses I will have without asking permission from

23 anybody. And if we have at heart a fair trial, then why should Kvocka

24 have the advantage; that is to say, the Prosecution can prepare for him

25 15 days and one year for Prcac, for example. Where is the fair play

Page 6729

1 there?

2 Thirdly, let me remind you that Mr. Radic was arrested on the

3 basis of the testimony of one individual A, and we have received three

4 more incriminations from the Prosecution 20 days ago. The Prosecution did

5 not adhere to that rule of theirs to give us summaries in time. We either

6 didn't get them at all or Mr. Saxon would supply us with the summaries in

7 the morning, 15 minutes before the proceedings went ahead.

8 So I would like each of us, in making a request from the other

9 side, asking the other side to do something, should show by way of their

10 own example what should be done. And the extended indictment was in 1995

11 not in the year 2000.

12 So if that is fair, then I want that fairness to be applied to me.

13 I want to be given five days after the Kos case to see which witnesses I

14 am going to call and to decide, and not to ask for additional permission

15 and understanding from Ms. Hollis. Had Ms. Hollis had understanding, then

16 in 1995 she would have charged Mladjo Radic with everything that she did

17 later on in September or August, or whatever month it was - it's not

18 important - because she had it in her hands. She could have done it

19 during disclosure, but we did not receive that.

20 So the same that was applied to them, we request that it be

21 applied to us; that summaries are not given 15 minutes before we go ahead

22 with trial. I can come in the morning, like Mr. Keegan, and say, "The

23 changes for this week are such and such. We're not going to hear one

24 witness, we're going to hear another." And now you are asking us to do so

25 by the 15th of December, to tell you exactly who is going to come on what

Page 6730

1 day, at what time. And if that is not so, then I will ask to ask the

2 Court's indulgence to show understanding. Why should that apply to us

3 when it did not apply to the Prosecution? Had they set the example, I

4 would have followed it. But you must reap as you sow, as we say in our

5 country, and I think it applies generally.

6 Thank you.

7 JUDGE RODRIGUES: [Interpretation] Mr. Krstan Simic, have you got

8 anything to add? Because it is five minutes to five o'clock.

9 MR. K. SIMIC: [Interpretation] I do, Your Honour. In principle,

10 this discussion is something that does not concern me, but there is

11 something that concerns my case. Everybody is setting yardsticks. How

12 much Kvocka does, we are going to do the same. That will be our

13 yardstick. Whereas the schedule is done in advance. And that is why I

14 should be given all the necessary time. Because what would happen if I am

15 given ten days - I am speaking hypothetically - and I need 15 days

16 perhaps? And then somebody later on within those 53 days to keep the

17 balance, there's no need for us to do that because it was done in the

18 Kvocka case.

19 So the question here is the correct distribution of time, because

20 it is the first 10 or 12 days which are set as a parameter and yardstick

21 to what will happen later on. So we don't want it to be at our

22 disadvantage and to the advantage of everybody else.

23 JUDGE RODRIGUES: [Interpretation] Let me ask Mr. Jovan Simic

24 next. Are you ready to respond in general terms? I say "in general

25 terms," without making any specificities, with respect to the Defence of

Page 6731

1 Mr. Prcac? Can you tell us now? Are you prepared to do so?

2 MR. J. SIMIC: [Interpretation] Your Honour, I could give a

3 provisional programme. We have talked to many witnesses. Some witnesses

4 are afraid to testify because of their own environment; others are afraid

5 because of the IPTF visits.

6 JUDGE RODRIGUES: [Interpretation] You can tell us all that in the

7 pre-trial brief defence. Can you tell us what you have and what you still

8 need? Can you tell us that?

9 MR. J. SIMIC: [Interpretation] Yes, I can.

10 JUDGE RODRIGUES: [Interpretation] Thank you. Just one moment,

11 please, for the Judges to confer.

12 [Trial Chamber confers]

13 JUDGE RODRIGUES: [Interpretation] The Chamber makes the following

14 ruling:

15 Several pre-Defence briefs, multiple pre-Defence briefs, will be

16 submitted on the same date, that there will be a single submission, and

17 the date will be indicated in the same decision, that is, the decision on

18 the motion for judgement of acquittal. The pre-Defence briefs will have

19 to be submitted ten days after the publication of the said decision. The

20 Prosecutor will have one week to file her response, one single response to

21 several pre-Defence briefs.

22 That was the best solution that we could have reached. We

23 understand that everything is somewhat unclear because we haven't yet made

24 the decision on the motion for judgement of acquittal. So I think that

25 the best way for all of you will be to file your pre-trial briefs ten days

Page 6732

1 after the publication of the decision on the motion for judgement of

2 acquittal, and the Prosecutor will be given another seven days to file her

3 response.

4 This brings us to the end of our working day today. It is almost

5 5.00, and I think that all of us are quite tired.

6 [Trial Chamber confers]

7 JUDGE RODRIGUES: [Interpretation] I was saying that we have

8 reached the end of our hearing today. I should like to thank the parties

9 for their availability to begin at 10.00, because we realised at one point

10 that two hours would not be enough to discuss all of the pending issues.

11 As soon as we learned that we had enough time to hear your case today,

12 this other case has been cancelled, we informed you of the new schedule,

13 and I should like to thank you once again on your availability to proceed

14 earlier on.

15 As far as I understand, Ms. Hollis is not going to continue

16 working with us. Am I correct in understanding that, Ms. Hollis?

17 MS. HOLLIS: Your Honour, it would depend upon how long it takes

18 Ms. Somers to familiarise herself with the case so that she can

19 effectively function. If she does that before the January session, then I

20 will not be involved. If she needs a little bit more time, then I will

21 assist in January. So I don't know. I guess, as many other things today,

22 if this scenario, this, and if that scenario, that.

23 JUDGE RODRIGUES: [Interpretation] We will see. Let me take this

24 opportunity to wish you a Happy Christmas to all of those who celebrate

25 it, and also to wish you a Happy New Year, and also to wish you a happy

Page 6733

1 Orthodox Christmas.

2 We worked a lot today. Thank you for your patience, once again,

3 and I should like to thank the interpreters who have worked hard today.

4 We really have to wind up because I think that everybody is tired.

5 The hearing is adjourned.

6 --- Whereupon the Status Conference adjourned at

7 5.05 p.m.