Tribunal Criminal Tribunal for the Former Yugoslavia

Page 45

1 Tuesday, 9th March, 1999

2 (Motion Hearing)

3 (Open session)

4 (The accused entered court)

5 --- Upon commencing at 10.03 a.m.

6 THE REGISTRAR: Good morning, Your Honours.

7 This is case number IT-98-30-PT, the Prosecutor versus

8 Miroslav Kvocka, Milojica Kos, Mladen Radic, and Zoran

9 Zigic.

10 JUDGE MAY: Appearances, please.

11 MR. NIEMANN: Good morning, Your Honours. My

12 name is Niemann, and I appear with my colleagues

13 Mr. Keegan and Mr. Waidyaratne, and the case manager

14 for the Prosecutor is Ms. Reynders.

15 Your Honours, we have moved back to here. I

16 hope that is not inconvenient to the Court, but it does

17 give us a bit of perspective of the bench, if Your

18 Honours please.

19 JUDGE MAY: The Defence, please.

20 MR. SIMIC: (Interpretation) Good morning,

21 Your Honours, Mr. President. My name is Krstan Simic

22 representing the Defence of Mr. Kvocka.

23 MR. NIKOLIC: (Interpretation) Good morning,

24 Your Honours. My name is Sarko Nikolic, Defence

25 counsel for Mr. Milojica Kos, along with Ms. Jelena

Page 46

1 Nikolic.

2 MR. FILA: (Interpretation) Good morning,

3 Your Honours. I am Toma Fila and, along with

4 Mr. Petrovic, represent the Defence of Mr. Mladjo

5 Radic. Thank you.

6 MR. TOSIC: (Interpretation) Good morning,

7 Your Honours. I am Attorney Simo Tosic, Defence

8 counsel for Zoran Zigic, and I am assisted by legal

9 counsel, Jelena Lopicic, attorney from Belgrade. Thank

10 you.

11 JUDGE MAY: Thank you. Turning next to the

12 accused to make sure that they can hear in a language

13 which they can understand. You can't. Can someone go

14 and try get the correct channel?

15 AN ACCUSED: We have no interpretation here.

16 JUDGE MAY: I understand there is a

17 difficulty with the interpretation.

18 You can now hear, can you, all of you?

19 Very well. I just make sure that the accused

20 can hear. That being so, this hearing has been called

21 to deal with a number of motions. There is, firstly, a

22 motion to amend the name of an accused and to make

23 various other minor amendments to the indictment. We

24 will deal with that first. That is a Prosecutor's

25 motion, it relates to Mr. Radic, and I understand that

Page 47

1 there is no opposition to the motion.

2 The problem is that any motion in relation to

3 the indictment and the amendment of the indictment at

4 this stage of the proceedings, that is, before we have

5 started to hear evidence, must be dealt with by the

6 confirming Judge, and it is to him or her that the

7 Prosecution should send the motion.

8 What we have in mind is that the motion

9 should be sent and a transcript of this hearing, or

10 this part of the hearing, should be sent with it, to

11 confirm that, in fact, there is no opposition --

12 Mr. Fila, can I take it that that is the position?

13 MR. FILA: (Interpretation) You're absolutely

14 correct, Your Honour.

15 JUDGE MAY: Thank you very much. There are

16 then a series of motions relating to the form of the

17 amended indictment and jurisdiction, and it would seem

18 to us convenient to deal with those motions next,

19 hearing the Defence first and then the Prosecution can

20 deal with all the motions together afterwards.

21 So I shall call on the Defence. Perhaps in

22 the order of the indictment would be most convenient.

23 Mr. Simic, would you like to start, please?

24 MR. SIMIC: (Interpretation) Thank you,

25 Mr. President.

Page 48

1 The Defence of Mr. Kvocka has filed a motion

2 which was submitted in writing, taking into

3 consideration that a good portion of this motion is

4 following the same line of argument as filed by

5 Mr. Fila regarding Article 3 and Article 1 of the

6 Statute. I am not going to dwell on this and I will

7 let Mr. Fila focus on that because these two motions on

8 these particular points are practically identical.

9 I am instead going to focus on those points

10 which relate to the form of the indictment. I am going

11 to try to summarise which points, and point to only

12 those which we believe need to be highlighted.

13 I first reaffirm all the written arguments

14 which we have submitted, but I would like to point out

15 that in the amended indictment, which was confirmed by

16 the confirming Judge, my client is, for the first time,

17 charged with responsibility pursuant to Article 7 of

18 the Statute, and it refers to the individual criminal

19 responsibility which has to do with planning,

20 instigation, ordering, committing or otherwise aiding

21 and abetting in the planning, preparation, or execution

22 of a crime contained in Articles 225 (sic) of the

23 present Statute.

24 We believe that the facts stated, which are

25 the basis for any court proceeding, and here we have in

Page 49

1 mind a number of decisions of this Tribunal, we say

2 that the accused has the right to be given detailed

3 information of the charges and incriminations. We

4 believe that the minimum of this factual basis has not

5 been provided. Nowhere has it been stated that

6 Mr. Kvocka has ordered anyone anywhere, that he

7 instigated anything anywhere, and we say that there are

8 no facts in the supporting material provided by the

9 Prosecution that Mr. Kvocka was present to a single

10 incident which may have been a serious violation of

11 humanitarian law.

12 In this situation, we are unable to prepare a

13 defence which would provide any basis for the

14 individual criminal responsibility of Mr. Kvocka

15 pursuant to Article 7(1). Similar arguments also apply

16 to the charges pursuant to Article 3, which is the

17 superior responsibility provision. We are not going to

18 submit any arguments in that regard because we are

19 going to point to the facts during the presentation of

20 evidence. However, the arguments which I have just

21 mentioned can also be referred to in point 17 of the

22 indictment because there is no prima facie basis. The

23 indictment does not detail the names of the guards or

24 the members of the police force who were providing

25 security in Omarska at that time. The indictment

Page 50

1 should have provided a sufficient factual basis, citing

2 individuals by name, so that the responsibility of

3 Mr. Kvocka could be contextualised.

4 I also submit that all charges in the

5 indictment are too vague for the Defence to be able to

6 proceed to preparation of a defence and providing

7 evidence which would be exculpatory. This is not to

8 say that we are not prepared for the trial. We are

9 prepared. But this form of indictment does not lend

10 itself to an efficient and fair trial.

11 In some points, the indictment is also

12 contradictory with respect to certain facts. In almost

13 all points, it is stated that Mr. Kvocka was in Omarska

14 somewhere between the 26th of May and the 30th of

15 August, 1992. However, in one of the counts of the

16 indictment, it states that he was there between the

17 26th of May until about the 15th of July, and this

18 again is contradictory and puts us in a position to

19 have to wonder whether it has to deal with the time

20 period of the 26th of May until the end of August or

21 the 26th of May until the 15th of July.

22 There are certain witness statements which

23 clearly point that he was there for less than one

24 month, and it is very clear that on July 1st, he was

25 already on another duty. We believe that the

Page 51

1 Prosecution had enough elements there and, again, let

2 me stress that the incidents which are covered in the

3 indictment have taken place in a particular period of

4 time and the Prosecution should have been more accurate

5 about stating that.

6 Further, we have points of vagueness, such as

7 "unknown person," "unknown date," and also the

8 Prosecution affirms that Mr. Kos and Mr. Radic were

9 also in positions of superiority, which is not true,

10 and if they are covering every period of time when all

11 of them were shift commanders, that is contradictory.

12 An attempt should have been made from a

13 number of pieces of evidence provided by the

14 Prosecution, a daily schedule of Mr. Kvocka should have

15 been laid out, especially given the fact that the

16 evidence exists that Mr. Kvocka was also working on a

17 regular basis in the police station in Omarska. Again,

18 these facts, had they been presented in a more detailed

19 way, would have simplified our proceedings and

20 contributed to judicial economy.

21 I am not going to dwell on the cumulative

22 responsibility which is part of Article 7(1) and 7(3),

23 I believe that Mr. Fila will touch on that more, but

24 the Prosecution has charged Mr. Kvocka in the

25 alternative, which points again to a certain vagueness.

Page 52

1 Let me point out the case of the Prosecutor

2 versus Furundzija. The Prosecution spent a lot of time

3 trying to prove the whereabouts of Mr. Furundzija,

4 whether he was present there or whether he was 20

5 metres away. In comparison, this is a very summary

6 indictment which the Prosecution has offered in this

7 case because there has been no attempt made to specify

8 exactly the place where Mr. Kvocka was. We therefore

9 ask that the Trial Chamber direct the Prosecution to

10 clarify and specify these points of fact which we

11 believe to be essential for the further proceeding and

12 presentation of evidence. Thank you.

13 JUDGE MAY: Thank you. Mr. Nikolic.

14 MR. NIKOLIC: (Interpretation) Your Honours,

15 the Defence for Mr. Kos has filed a preliminary motion

16 to amend the indictment. The first part is a general

17 part for an amended indictment and the second refers to

18 concrete criminal acts. In my oral presentation, I

19 should like to refer to the special section because I

20 feel that to be crucial.

21 In response to the motion, the Prosecution

22 said that the indictment must be concise, and that is

23 the criticism, that is to say, that the indictment as

24 it stands is not concise, and we have a time period

25 which is too broad, in fact, and practically

Page 53

1 encompasses the whole time of the functioning of

2 Omarska, from the 26th of May to the 30th of August;

3 for example, with point 5, which refers to the murders

4 done by Kos and the other accused, but these victims

5 are precisely defined in the case of Tadic, for

6 example. So the Defence sees no reason why, in the

7 case of these accused, the events which refer to these

8 victims could not have been precisely defined in the

9 same way as they were in the Tadic case. That is as

10 far as this point is concerned and the other point

11 concerning maltreatment, torture, inhumane treatment,

12 and so on and so forth.

13 The second thing that the Defence would like

14 to state is that in the initial indictment, the accused

15 Mr. Kos is accused on the basis of Article 7(3) of the

16 Statute, but in the amended indictment, it is enlarged

17 to encompass 7(1), and in that section too the Defence

18 considers that criticism can be made and that the

19 Prosecutor, in his reply, comments on this, and states

20 that the arguments presented by the Defence were not

21 well-placed and quotes an example.

22 The example that the Prosecutor gives in his

23 response is considered by the Defence to be abstract.

24 As it is stated, it probably can exist and be explained

25 in that way. However, the Prosecution did not throw

Page 54

1 light upon any piece of evidence from which this kind

2 of example could be deduced and would emanate, and it

3 is in that direction that the Defence would like to

4 make use of the judgement in the case of the Prosecutor

5 versus Anto Furundzija, it is para 8 of the judgement,

6 which states that the Prosecution has been told to send

7 a document in which it will precisely define in what

8 way the accused has gone against Article 7(1) of the

9 Statute, and I should like to ask that the same be done

10 in this case and that the Defence be presented with a

11 document which would show the responsibility of the

12 accused's course with regard to Article 7(1) of the

13 Statute.

14 As far as Article 7(3) is concerned, I don't

15 think I need give any special explanation, because it

16 is a question of fact which will be ascertained during

17 the trial itself. Thank you, Your Honours.

18 JUDGE MAY: Yes, Mr. Fila.

19 MR. FILA: (Interpretation) Your Honours, the

20 Defence of Mr. Radic, and on behalf of the other

21 Defence counsel as well, in keeping with Rule 72(A),

22 under (i) and (ii), that is, challenging jurisdiction

23 and defects in the form of the indictment, I would like

24 to say something in that regard.

25 The Defence was encouraged by a good idea

Page 55

1 presented by our learned colleague, Mr. Niemann, in the

2 Dokmanovic case, that the best thing is to discuss

3 matters of this kind before the trial begins so that we

4 deal with facts at the trial. You have also encouraged

5 the Defence in that respect, and I thank you for that,

6 because I do feel that we should clarify all these

7 questions before we begin with the concrete situation

8 and concrete cases under the given indictment.

9 In great detail, the Defence explained why it

10 considers that the United Nations -- that is to say its

11 Security Council -- did not have the intention of

12 having Common Article 3 of the Geneva Conventions being

13 placed under the competency of this Trial Chamber. And

14 that was the first question I dealt with.

15 The second question was that if he did not

16 include this, as he did not, whether Common Article 3

17 has become part of international customary law or not,

18 and so come under the jurisdiction of this Tribunal.

19 As you know, in written form, I go on to

20 explain and emphasise the difference between the

21 Statute of this same ad hoc Tribunal for Rwanda, where

22 after 18 months, Common Article 3 of the Geneva

23 Conventions has been introduced. Then I refer to the

24 report of the Secretary-General, and Cherif Bassiouni's

25 opinion, and others, who said that it appears that

Page 56

1 Common Article 3 should not come under the jurisdiction

2 of this Tribunal.

3 It would be taking up too much of Your

4 Honours' time if I were to expound all this again,

5 because what I wrote, I wrote in my motion, the

6 Prosecution provided a response, and we provided a

7 response again, so I have nothing more to add nor any

8 legal authority to add, nor do I have the authority to

9 do so. But I would like to look at these questions,

10 because they have to do with this trial and other

11 trials, because the judgement will, of course, be used

12 as stare decisis in other matters.

13 I think that the criticism which has been

14 made as regards the Tadic judgement is not a case in

15 point, because there was a different decision made

16 there, and this Honourable Court is not bound to the

17 Tadic decision, particularly because the stare decisis

18 principle is not always applied in international law as

19 it is in national jurisdictions, and for that reason

20 the Tadic judgement does not represent a judgement that

21 can be applied in this case.

22 The Defence also looked at Article 1 of the

23 Statute and considered that particular article. We

24 also consider that this high and distinguished Court

25 cannot deal with all matters at once, and at all times,

Page 57

1 and that precisely for that reason it states that the

2 competence of this International Tribunal is a serious

3 violation of humanitarian law, and I say this in all

4 seriousness. What we say with regard to Witness F

5 cannot be considered a serious violation of

6 international humanitarian law, even if it did occur as

7 it occurred, and that would be below the competencies

8 of this International Tribunal. That kind of question

9 will come up on the agenda of national courts in

10 Bosnia-Herzegovina when they are established and when

11 they are capacitated to deal with cases of that kind.

12 Furthermore, the Defence looked at Point B,

13 and the challenges in the form of the indictment and

14 their defects. I have already expounded this in

15 writing, and referred to three particular decisions

16 with regard to the defects in the form of the

17 indictment. I would like to quote them, and then I

18 won't be taking up more of your valuable time, Your

19 Honours.

20 One of the decisions, in the case of Dusko

21 Tadic, the 14th of November, 1995, as a response to the

22 Defence motion with regard to the form of the

23 indictment. The second decision is in the Tihomir

24 Blaskic case, and a decision there, once again, a

25 response to criticisms as to precision, and the third

Page 58

1 and latest decision was one taken with regard to the

2 Milorad Krnojelac case. I don't know at the moment --

3 that is, we filed our motion after the term given by

4 Your Honours for one simple reason, and that is because

5 the decision was taken after that time limit, that

6 deadline. I don't know if it was distributed; I have

7 no knowledge on that matter. But we did send it out as

8 soon as we had received it, and it is the decision of

9 the 24th of February of this year, where we adopt the

10 criticism made by the Defence and which states to the

11 Prosecution that it should precisely define when the

12 actual crime took place and who it refers to.

13 The last thing that I have to say in this

14 sense is that we have been using too much descriptive

15 terms, that the Prosecution is using descriptive terms

16 and bringing itself into a collision of a certain

17 kind. I would like to state the introduction of the

18 indictment with Mladjo Radic where he says he was

19 responsible for everything that took place in the camp

20 when Dzelko Meakic was not there, Miloslav Kvocka was

21 not there, and civilians and inspectors, they're all

22 referred to, and when that was within his shift. We

23 never know, according to the indictment, when it

24 actually took place; that is to say when Meakic,

25 Kvocka, and these civilians and inspectors were not

Page 59

1 there and when those shifts actually took place, what

2 particular day.

3 So it is no problem that the learned

4 Prosecution, via its multitude of inspectors that it

5 has, to send them to the Omarska police station, where

6 documentation exists as to the schedule of the

7 individual shifts, because with us, during Tito's

8 Yugoslavia, at least, there was some order, and we

9 would keep documents of this kind for 20 years at

10 least.

11 Perhaps the Prosecution has evidence of this

12 kind, but it doesn't agree with the Prosecution to put

13 them forward, because then they would have to specify

14 what day each one of the individuals had a shift and

15 what happened during those shifts, and that Meakic and

16 Kvocka, all the investigators, all the civilians, were

17 in fact not present. Only then would we have command

18 responsibility of Mladjo Radic, had he been the shift

19 commander, which it is asserted that he was, and which

20 he was not.

21 So without precisely defined facts of this

22 kind, we're going to sink into a sea of various

23 proceedings and will never emerge.

24 That is all I have to say. Thank you very

25 much, Your Honours.

Page 60

1 JUDGE MAY: Thank you, Mr. Fila.

2 MR. TOSIC: (Interpretation) Your Honours, the

3 Defence of Zoran Zigic would like to stress that we

4 fully remain with the stand taken with our preliminary

5 response to the motion and to stress that everything

6 that my colleagues have said with regard to the

7 precisions of the indictment I consider to stand. The

8 place, the time, when the acts occurred, were not

9 precisely defined, and so we should like to associate

10 ourselves with them.

11 In our motion we stressed and said that we

12 have severance of responsibility in the indictment, and

13 the fact that there was a change in the Rules,

14 particularly with regard to Rule 82(B), and that the

15 accused that I represent is not responsible for command

16 responsibilities, not held responsible for command

17 responsibilities. So that in that sense I don't think

18 it would be economical to have one single trial, and in

19 particular I should like to highlight the provision of

20 Rule 94(B).

21 In view of the Rules and provisions, I feel

22 that there could be conflicting interests, bearing in

23 mind the defence of the accused and also that this

24 could harm the accused. All this I say in the aim of

25 having a fair and expeditious trial.

Page 61

1 As far as that proposal is concerned, I think

2 that at all events the Trial Chamber should once again

3 look into the matter, because all indications point to

4 the fact that the accused that I represent is not there

5 to answer for command responsibility. So in order to

6 have a fair and expeditious trial, I think that there

7 should be a severance in the trial proceedings.

8 Thank you so much. Thank you, Your Honours.

9 Thank you, Your Honours.

10 JUDGE MAY: Yes. Thank you.

11 Mr. Keegan.

12 MR. KEEGAN: Thank you, Your Honour. Good

13 morning.

14 I shall endeavour not to repeat anything

15 already submitted by the Prosecution, but rather refer

16 to some general points, some of the issues raised this

17 morning, and then to the extent that I can assist Your

18 Honours with any question that you may have based on

19 the submissions.

20 Dealing first with the issue of the

21 jurisdiction, to remove that, since it was raised only

22 briefly this morning, we would stand essentially on our

23 pleadings, Your Honour. It doesn't appear that

24 anything new has been raised this morning. The

25 essential points we believe are of most relevance are

Page 62

1 the fact that, of course, the concept of stare decisis

2 is, and should be, applicable before this Tribunal for

3 it to function effectively. We would note specifically

4 that the issue of stare decisis appears to have been

5 considered and utilised in the decision in the

6 Krnojelac case referred to today, and I would point

7 specifically to paragraph 5 of that decision.

8 In particular, with respect to the claims made by

9 the accused here, and in particular Mr. Fila in his

10 briefs, as we indicate in our response, the claims made

11 by these accused are the very same claims that have

12 been litigated previously, and in particular decided by

13 the Appeals Chamber on this issue on those very

14 specific arguments. They have been redressed a bit,

15 but they are in effect the same arguments, and

16 therefore we believe that the prior determination of

17 this Tribunal should stand.

18 With respect to the form of the indictment,

19 we would respectfully suggest that when considering the

20 concept of the particularity that's required in the

21 pleading of a case, it must be considered

22 contextually. It is clear that the nature of an

23 indictment for a particular actor in a single crime

24 will by definition be a more specific pleading. As one

25 moves away from the concept of a specific crime -- a

Page 63

1 one-off event, if you will -- and you move away from

2 criminal liability based on direct commission of an

3 act, the very nature of the pleading itself changes,

4 and the particularity which is necessary changes.

5 We would in fact agree with the citation in

6 the Krnojelac case, the citation coming in paragraph 14

7 to the case of RV Associated Northern Collieries, where

8 the Court said that; "the opposite party here, the

9 accused, shall be placed in possession of its broad

10 outlines and the constituted facts which are said to

11 raise his legal liability. He is to receive sufficient

12 information to ensure a fair trial and to guard against

13 what the law terms 'surprise,' but he is not entitled

14 to be told the mode by which the case is to be proved

15 against him."

16 That quote will obviously have very different

17 meanings in different contexts and in different types

18 of cases.

19 The standard under the Statute and the Rules

20 calls for a concise statement of the facts. "Concise",

21 of course, meaning "summary"; not necessarily specific

22 in the nature of the detail requested by accused in

23 their present motions. In fact, to give the accused

24 the detail which they are seeking, one would not have a

25 concise statement of the facts; one would have an

Page 64

1 extensive and lengthy statement of facts.

2 The question is whether the accused have been

3 placed on notice of the material facts which give rise

4 to their criminal responsibility. That is, of course,

5 as stated in the Krnojelac case, the particular acts of

6 the accused or the particular course of conduct on his

7 part which are alleged to constitute that

8 responsibility. The crimes charged against these

9 accused are all course-of-conduct violations, and with

10 respect to the persecution charge, in fact entail

11 essentially an allegation of common purpose.

12 With the exception of the accused Zigic,

13 these are not cases of individual specific one-off

14 crimes but rather a series of criminal acts committed

15 by these accused, or at their direction, and not the

16 type of pleadings which the Defence have referred to in

17 other judgements before this Tribunal; for example, the

18 Furundzija case. That was in essence a one-event

19 indictment.

20 Similarly, the Tadic case, Mr. Tadic was

21 charged with specific acts in addition to the overall

22 crime of persecution. Therein the pleadings, and as

23 accepted by the Trial Chamber in the decision on the

24 form of the indictment, reflected different standards,

25 in essence, in the pleadings.

Page 65

1 We believe that those different standards are

2 reflected in this indictment when one views the

3 allegations as alleged, how they are in fact drafted

4 against the three accused charged with criminal

5 responsibility by virtue of their positions as

6 superiors in addition to their individual

7 responsibility, and that of Mr. Zigic, who is charged

8 on a number of occasions with specific crimes in

9 addition to the overall persecution count. With

10 respect to the persecution count, the pleadings are the

11 same as the other three accused. With respect to the

12 particular crimes, there are specific victims, dates,

13 and places alleged.

14 So the Prosecution believes that the

15 pleadings do meet the requirements of the Statute and

16 the Rules given the context of the nature of the

17 responsibility and the crimes for which the accused are

18 charged.

19 For example, with respect to Mr. Kvocka, the

20 complaint is that the allegations are too vague, yet

21 the accused entered pleas, and in fact, as his counsel

22 indicated today, they are prepared to go to trial.

23 That in effect is an inconsistent position, one which

24 the Prosecution believes --

25 JUDGE MAY: Well, Mr. Keegan, I don't know

Page 66

1 that that's a very good point. They pleaded to the

2 material that was available, and they say they're ready

3 for trial. But even if you're right about the nature

4 of the pleadings in this Tribunal, and that detailed

5 pleadings are not required, even if you're right about

6 that, there will come a time when the Prosecution must

7 clearly spell out how it is said, in the case of each

8 accused, that he is guilty of these offences, what it

9 is that he said or did that makes him guilty according

10 to you.

11 While you may be right, of course, that the

12 mode by which the Prosecution are going to prove the

13 case -- i.e. the way they're going to prove it -- does

14 not have to appear in the pleading. In due course, it

15 must be made plain to the Trial Chamber, and of course

16 to the defendants, how it is alleged that each one of

17 them committed each offence.

18 No doubt, with your experience, you have that

19 in mind.

20 MR. KEEGAN: Yes, Your Honour. If I may

21 respond to that, we believe that in fact the

22 achievement of that requirement -- that is, to make it

23 plain to both the accused and to the Trial Chamber of

24 the actual basis of the accused's responsibility, those

25 come in two different stages, of course.

Page 67

1 As reflected in the prior decisions and the

2 most recent one, the Krnojelac -- and I keep butchering

3 that name; I apologise -- case, there is in effect a

4 balance between the form, the pleading of the

5 indictment itself and the content of the supporting

6 material. While decisions make clear that the

7 supporting material cannot take the place of the

8 indictment, cannot make up for substantial defects, the

9 indictment must be read in the context, as I indicated,

10 of the crimes and of the supporting material.

11 The issue for the accused is whether the

12 indictment meets the requirements of the Statute and

13 the Rules, which are of course reflective of the

14 international standards as reflected in the

15 International Covenant on Civil and Political Rights,

16 to give him notice of the charges against him.

17 The second aspect, in terms of preparation

18 for a defence, that must be considered not only on the

19 face of the indictment but also in the context of the

20 supporting material provided to the accused. I believe

21 that has been accepted in these decisions that have

22 been referred to before this Tribunal, and they're

23 certainly accepted in the case law flowing from the

24 European Court of Human Rights, based upon the European

25 Convention of Human Rights and the ICCPR.

Page 68

1 With respect to when that must be made plain

2 to the Trial Chamber, we believe, in the first

3 instance, that comes with, under our practice, the

4 submissions of the Pre-Trial brief to the Trial

5 Chamber, at which point the Prosecution has generally

6 been charged by chambers, in my experience, to provide

7 the detail of the case upon which it intends to rely,

8 in essence providing a roadmap for the Trial Chamber.

9 Opening statements provide the second aspect

10 of that notice to the Trial Chamber, and the third and

11 most important component is of course the actual trial

12 itself, so that -- yes, Your Honour?

13 JUDGE MAY: I'm sorry to interrupt, but

14 there's a distinction there. You refer to the detail

15 which will be provided in the Pre-Trial brief. It is

16 of course not only the detail, some of which has been

17 referred to this morning; it's also the Prosecution

18 case. I believe in United States practice it's

19 referred to as the theory, sometimes; that's not a

20 particular concept I'm familiar with, but I think I

21 understand what's meant. We would rather say the

22 Prosecution case, how is it that the Prosecution

23 propose to prove in each case that the accused is

24 guilty of the particular offence? That is what the

25 Trial Chamber wants to know, and that's what the

Page 69

1 accused are entitled to know. How is it said by the

2 Prosecution that they are guilty? That needs to be

3 said at the outset.

4 Of course, during the course of the case, as

5 the evidence is given, it may be necessary to change

6 positions, because the evidence may vary, and you can

7 never tell at the outset precisely what's going to be

8 proved and what isn't. But at least at the beginning,

9 the Court and the Defence should know how it is being

10 alleged, how it is being said, that the Prosecution are

11 going to prove the case against all the defendants.

12 MR. KEEGAN: Yes, Your Honour. We believe,

13 for example, in the present indictment, a distinction

14 between this indictment, for example, and the Krnojelac

15 case. In the decision, the Trial Chamber refers to the

16 fact that in the background section of that indictment,

17 there was information which was of relevance to the

18 issues being complained of, but that that information

19 was background only and didn't address, because it was

20 not part of the actual pleadings -- the charges, that

21 is -- did not address the concerns.

22 In this case, for example, we have

23 specifically stated that that background section is

24 incorporated and re-alleged for each of the particular

25 charges. That background section, we believe, provides

Page 70

1 the underlying basis for the charges, and particularly

2 the Article 5 charges, but also substantiates the

3 underlying requirement for Article 3 as well.

4 That background section, when read in

5 conjunction with the paragraphs alleging the superior

6 authority liability, the basis for it, and then with

7 the particular crimes alleged, if read together, we

8 believe does provide exactly the theory of the

9 Prosecution case: That these accused, with respect to

10 the persecution count, all participated in an ongoing,

11 systematic, and widespread attack on the civilian

12 population within the Opstina Prijedor; that these

13 accused played a particular role with respect to giving

14 effect to that persecution in the conduct of the

15 camps. That's why, with respect to some of the

16 particular complaints made, there is no merit in the

17 complaint that the three accused charged under superior

18 responsibility have no relation to the Keraterm and

19 Trnopolje camps because, in fact, of course those other

20 camps formed a part of the overall campaign of

21 persecution, Omarska being one of the camps, but one of

22 the three which was being utilised. There was of

23 course a relationship between those three camps as

24 indicated in the proceedings and in the supporting

25 material.

Page 71

1 With respect to the fourth accused, Zigic,

2 his role in that persecution was slightly different in

3 that he was a tool of the leadership as opposed to part

4 of that leadership which the other three accused were.

5 The complaint about superior authority, that the

6 specificity of dates and times not being reflected in

7 the indictment we believe are not appropriate because

8 it is the entire period of the operation of the camp

9 that is the relevant time frame. In this case, it

10 amounts to less than 90 days as opposed to the 16

11 months or so alleged generally in the Krnojelac case.

12 So the objection there as to the time specificity we

13 think is addressed because we have a much more narrow

14 focus of time, and the particular places are alleged

15 because the conduct occurred in the camps.

16 To say that the accused Radic or Kos had no

17 authority when the accused Kvocka or the camp commander

18 Meakic were present is a legally untenable argument.

19 Their authority may be superseded by their superiors

20 but it does not derogate their authority to their

21 subordinates. They still have authority over their

22 subordinates whether the commander is in the camp or

23 not. To follow that line of argument would indicate

24 that only the commanding generals of armies could be

25 held responsible and not the field commander whose

Page 72

1 troops are actually committing the crime. That, of

2 course, is an untenable position under international

3 law with respect to command responsibility.

4 So we believe that, again, under the context

5 of these crimes, when the entire document is read

6 together, those concerns are addressed because the

7 entire document is incorporated into each of the

8 particular charges.

9 In addition, the accused then have reference

10 to the supporting material, and in the supporting

11 material there is reference to particular crimes and

12 dates that aren't mentioned in the indictment itself,

13 although some of those crimes are mentioned because,

14 with respect to the allegations against the accused

15 Zigic, to the extent those crimes are committed in

16 Omarska, they're directly relevant to the three

17 accused. To the extent they were committed in

18 Trnopolje or Keraterm or even out in town, they are

19 still relevant to these accused to the extent that

20 those acts by the accused Zigic reflect part of the

21 operation of the persecution. So to the extent that

22 the other acts of Zigic which did not occur in Omarska

23 fall within the persecution, they are also relevant

24 then to these accused as evidence of the ongoing

25 persecution.

Page 73

1 I would like to address also, Your Honour,

2 the issue raised by Mr. Fila with respect to the crimes

3 against Witness F and that they don't rise to the level

4 required to reach this Tribunal, that is, serious

5 violations of international law. It would be perhaps

6 possible if an accused was able to sever each

7 particular act of which he is accused to make that same

8 argument. It is a rather untenable argument when any

9 one particular act is considered in the framework of a

10 course of criminal conduct, and that is the nature by

11 which those charges are brought. They are

12 representative of the course of conduct which was

13 ongoing, and the fact that that crime may be relevant

14 to establishing the crime of persecution which, of

15 course, falls squarely within a serious violation of

16 international humanitarian law, and, in and of itself,

17 amounts to a violation within the jurisdiction of this

18 Tribunal, it is entirely appropriate for that charge to

19 be brought before this Trial Chamber.

20 JUDGE MAY: Mr. Keegan, arising from what you

21 have said. You referred to Krnojelac. That also, as I

22 recollect, is a case involving a camp.

23 MR. KEEGAN: That's correct, Your Honour.

24 JUDGE MAY: You say the distinction between

25 that case and this one is that the events there were

Page 74

1 spread over a much longer period. Sixteen months, I

2 think you said.

3 MR. KEEGAN: Yes, Your Honour. I believe the

4 allegation there was April '92 to August '93, and I

5 intended to make mention of particular aspects of that

6 decision which are similar to the complaints made by

7 the accused here with respect to specificity, and in

8 particular, I would note again that the Trial Chamber

9 itself in that case found that the background section

10 answered some of the issues but, because it had not

11 been incorporated into the charges, could not be

12 considered to address those issues with respect to the

13 charges. Here that's exactly the opposite case. You

14 will find in the indictment that they are specifically

15 re-alleged and incorporated. I believe it is paragraph

16 18. Yes, paragraph 18 re-alleges and incorporates into

17 each of the charges the background section.

18 With respect to the time frame, we believe

19 that there is a substantial distinction between

20 alleging a relevant time frame that amounts to somewhat

21 less than 90 days and one that amounts to 16 to 18

22 months.

23 JUDGE MAY: The other matter I was going to

24 raise with you are some specific points which were made

25 by Defence counsel. In the case of Mr. Simic, he says

Page 75

1 that there were contradictory dates alleged against

2 Mr. Kvocka when he was at the camp, and Mr. Fila raised

3 the question of whether you had the lists of shifts.

4 Now, that, of course, is a detail matter, but there may

5 be no harm in raising it now because, he says, that

6 would throw much light on these allegations.

7 MR. KEEGAN: Yes, Your Honour. As to the

8 first allegation, the distinction between the dates

9 used for Mr. Kvocka relate to the distinction between

10 the persecution count overall and particular crimes

11 because the evidence does, in fact, indicate, in the

12 main, that Mr. Kvocka left the camp sometime between

13 the 1st of July and mid July. There is, however,

14 information that he returned to the camp at the end,

15 and it is based on those contingencies of proof which

16 you alluded to earlier, Your Honour, that those

17 relevant time frames are pled.

18 Now, to the extent that obviously the

19 evidence at trial would indicate that he left in mid

20 July and never returned, then, of course, any acts

21 which came after that would not be relevant to the

22 issue of his criminal responsibility in terms of

23 finding him guilty or responsible for those crimes.

24 They could, theoretically, be relevant to issues of

25 intent, motive, whether it was widespread and

Page 76

1 systematic, so there is still relevance to the acts

2 potentially against him even after the fact, but they

3 could not obviously be used with respect to his

4 particular findings of criminal responsibility.

5 So that is the basis for those dates as

6 alleged that way.

7 With respect to this issue of schedules,

8 clearly, Your Honour, those would be relevant evidence

9 if they exist and certainly if the Prosecution ever is

10 in possession of them. That's a separate matter,

11 however, from whether or not the accused has sufficient

12 notice for purposes of his case, and we believe that,

13 obviously, that kind of schedule is not necessary to

14 provide the notice required for an indictment.

15 JUDGE MAY: Mr. Keegan, I accept that

16 entirely. It is merely that the issue, having been

17 raised, I wanted to pursue it.

18 MR. KEEGAN: There was one other aspect, Your

19 Honour, I would raise, and that was the question, if I

20 may --

21 JUDGE MAY: Before you do, may I take it you

22 don't have those lists or schedules?

23 MR. KEEGAN: That's correct, Your Honour, we

24 do not have those schedules, as far as we're aware. As

25 we have made reference before, Your Honour, of course,

Page 77

1 we are still continuing the review of the document

2 collections. We are limited by resources and we are

3 working as quickly as we can.

4 As far as we're aware, having gone through

5 virtually all the documents, they don't exist, and as I

6 understand, based on my information from the Defence,

7 they indicate those records would be specifically held

8 in the Omarska police station. Well, we have not been

9 to the Omarska police station, so we would certainly

10 not have the particular records they're referring to.

11 Now, to the extent they may have been in the Prijedor

12 police station, we may have documents, but not that we

13 are aware of.

14 The final point that I wanted to refer to was

15 the issue raised by Mr. Tosic about the -- I'm sorry,

16 it was actually made by Mr. Fila, raised with respect

17 to the issue of the identification of the specific

18 perpetrators and of the victims with respect to command

19 responsibility. I would note that the decision he

20 refers to, the Krnojelac case, indicates that the

21 categories, if particular names are not known, that the

22 categories of the perpetrators and the victims is

23 sufficient.

24 In that case, the problem was, it was unclear

25 whether, with respect to the allegations relating to

Page 78

1 the superior authority of the accused in that case, the

2 perpetrators were actually guards under his control or

3 not. Here the pleadings do specifically indicate that

4 the crimes were committed either by guards or by

5 visitors to the camp who were allowed in to commit

6 crimes but were under the direct control of the various

7 accused.

8 Similarly with the victims, it's clear from

9 the pleadings that the victims are all Bosnian Muslims

10 or Bosnian Croats who were prisoners in the camp, or

11 the various camps in the case of Mr. Zigic. So we

12 believe that the specificity required by the Trial

13 Chamber in Krnojelac is met.

14 JUDGE MAY: Thank you, Mr. Keegan.

15 MR. KEEGAN: I'm sorry, Your Honour. The one

16 other issue raised was the severance issue. To the

17 extent that there are any questions, we believe,

18 obviously, our pleadings are sufficient. I would only

19 note that today in the pleadings there is no basis for

20 the severance indicated clearly. Here, counsel for

21 Mr. Zigic raised the issue of conflicting interests

22 under Rule 82 but doesn't provide a basis or elaborate

23 what the conflicting interests are except to say the

24 general assertion that Mr. Zigic isn't charged under

25 Article 7(3). Whether we believe that the Defence has

Page 79

1 not raised any of the bases reflected under Article 82

2 and that the main issue here, of course, as it is in

3 any severance motion, is a question of prejudice, the

4 accused here failed to make a showing of prejudice to

5 the accused, there is no conflict of interest with

6 respect to the charges, rather the interests of

7 justice, both with respect to speedy trial for all

8 accused here as well as the interests of justice with

9 respect to the Prosecution evidence and particularly

10 the witnesses necessary to prove these crimes, would

11 indicate that a joint trial is the most appropriate

12 forum for these four accused.

13 JUDGE MAY: Thank you.

14 MR. KEEGAN: Thank you, Your Honour.

15 JUDGE MAY: Now I turn to the Defence. Would

16 anybody like to respond? In the same order then,

17 please. Yes?

18 MR. SIMIC: (Interpretation) Your Honours, I

19 would like to go back to the jurisdiction regarding

20 Common Article 3 and whether it has been incorporated

21 or not in the provisions. At one point, Mr. Keegan

22 said that the Defence had offered no new arguments

23 which would open the possibility of re-examination of

24 this decision.

25 I would like to point out -- perhaps I did

Page 80

1 not read or follow well -- but in the

2 Secretary-General's report, in paragraphs 41, 42, 43,

3 the basis for Common Article 3 is introduced, and there

4 it is specifically stated that the legal basis for this

5 provision was The Hague Conventions, Conventions 3 and

6 4. At another point in this report, it is mentioned

7 that the Hague Conventions are not in contradiction

8 with the Geneva Conventions.

9 My understanding of it was that the

10 Secretary-General's position was justified by the fact

11 that there was no contradiction between these

12 provisions, but I think he drew a clear line that the

13 legal basis for the relation was to provide the basis

14 for the humanisation of the armed conflict itself, so

15 my thinking is that the drafting of this provision

16 would be focused on the armed conflict itself and that

17 this Article would only apply to those provisions. In

18 the Secretary-General's report, paragraphs 41, 42, 43

19 lead me to believe that we can construe this, so I

20 would like to have that point taken into consideration

21 when you reach your decision.

22 Now, something with respect to the defects in

23 the form of the indictment. Mr. Keegan avers that it

24 refers to all four of the accused and it was a

25 systematic persecution of non-Serbs in the Prijedor

Page 81

1 municipality. We believe that we should take into

2 account the status of these accused. Mr. Kvocka is

3 just a regular police officer, before the war, during,

4 and after the war, even to date, that is, until he was

5 arrested, he was a policeman. Mr. Kos was a waiter.

6 He was mobilised during the war. Today we learn that

7 they were part of a system of planned persecution of

8 non-Serbs because, by applying the laws and rules of

9 the former Yugoslavia which were adopted by Bosnia and

10 Herzegovina in this terrible war, they became part of a

11 machine, became part of a system such as was set up in

12 Omarska, Keraterm, Trnopolje, and so on.

13 Again, in response to Mr. Keegan's arguments,

14 we say that the indictment does not provide the factual

15 basis which would place our clients into the context

16 which is alleged here, that they have consciously taken

17 part in the systematic military system of persecution.

18 There are documents which talk about the

19 setup of the investigating centre of Omarska. The

20 police station in Omarska was to provide security. I

21 don't know if somebody who is part of a security agency

22 and goes to work there, based on these provisions that

23 were set up, makes him part of the systematic

24 persecution. When talking about the command

25 responsibility or superior responsibility, it has to be

Page 82

1 individualised because a superior person has to be

2 responsible or liable for specific persons. Mr. Kvocka

3 cannot be charged with anything and everything that

4 happened in the Prijedor area, he cannot be made

5 responsible for the Keraterm camp as well, the events

6 which took place there, and I come from that area. We

7 would be able to provide many more facts to provide a

8 more specific context for indictments.

9 Also, the way the indictment is framed

10 precludes the possibility of alibi because it charges

11 all of the accused being everywhere at all times. If

12 they had shifts even of 12 hours, I cannot see how you

13 can accuse them of being there for 24 hours at a time.

14 So the argument of the Prosecution, that they

15 were part of a premeditated system and plan, that they

16 were part of a plan which they have adopted and carried

17 out as their own systematically, has to be supported by

18 a much broader basis in fact. Thank you.

19 JUDGE MAY: Judge Robinson?

20 JUDGE ROBINSON: Mr. Simic, I would like to

21 ask you a question in relation to the reach of Article

22 3 of the Statute.

23 What the Prosecutor is saying is that the

24 very points that you have raised in relation to that

25 Article were specifically considered by the Appellate

Page 83

1 Chamber in the Tadic case. There are three main

2 points: First, whether Common Article 3 is included in

3 Article 3, whether Common Article 3 is part of

4 customary international law, and whether Common Article

5 3 entails individual criminal responsibility. All

6 those points were explicitly considered by the

7 Appellate Chamber in the Tadic case.

8 You are now asking a Trial Chamber to

9 reconsider these points which were determined as a

10 matter of law by the Appellate Chamber. Is it not a

11 prescription for chaos if each Trial Chamber had the

12 option, had the right, to review decisions of the

13 Appellate Chamber on questions of law, and what would

14 be the point of the Statute establishing an Appellate

15 Chamber with specific power to correct mistakes of law

16 and mistakes of fact if, having issued its decisions,

17 those decisions are not binding on Appellate Chambers?

18 Would you like to comment on that, please?

19 MR. SIMIC: (Interpretation) Your Honours, the

20 arguments you raise are indeed convincing. However,

21 the Defence also views this Tribunal as something new.

22 We are all brought into the situation of implementing

23 certain rules that have just been adopted several years

24 ago, and I believe that both my colleague Mr. Fila and

25 I have provided arguments to the effect that this,

Page 84

1 being a new decision, it still needs to be tested. We

2 were also looking at the Rwanda Tribunal. I have to

3 say that we are not fully convinced that the arguments

4 provided are fully convincing. We think that we are

5 still at a stage where we need to re-examine things and

6 readdress, and I don't think that it would lead to

7 judicial chaos. I think that there are enough

8 arguments which I find lead to the overturning of the

9 Tadic decision yet. We therefore believe that this

10 position needed further re-examination.

11 JUDGE ROBINSON: Yes, but if it is to be

12 overturned, then it has to be overturned by the

13 Appellate Chamber itself. It can't be overturned by

14 the Trial Chamber. Is that not so?

15 MR. SIMIC: (Interpretation) I accept that

16 argument too, and if our motion is not granted, we will

17 obviously turn to the Appellate Chamber in the future.

18 JUDGE MAY: Yes. Thank you.

19 MR. SIMIC: (Interpretation) Thank you, Your

20 Honours.

21 JUDGE MAY: Mr. Nikolic?

22 MR. NIKOLIC: (Interpretation) In my motion, I

23 did not touch upon Article 3, so I will spare you

24 the chaos there, but I have additional arguments.

25 I believe that there is a certain chaos

Page 85

1 emanating from the indictment referring charges

2 relating to Mr. Kos. I may have missed something due

3 to the interpretation, but I think that we really need

4 to specify the time frame of the crimes for which the

5 accused is charged as a perpetrator, and I raise the

6 very Tadic case as a basis for that. Now, this is one

7 point.

8 The second point that I just heard for the

9 first time is that the accused Kos supported what

10 Mr. Zigic did in Keraterm and Trnopolje in the original

11 indictment. Again, I don't know whether this was

12 interpreted correctly to me, but this is what I heard.

13 In the original indictment, there is no Trnopolje and

14 Keraterm, but now the way the Prosecutor said we should

15 understand the indictment, I somehow construe that Kos

16 should also be liable for what happened in Keraterm or

17 Trnopolje, and in no point, nowhere in the indictment,

18 is the presence of Kos mentioned because he never was

19 there -- excuse me. Trnopolje and Keraterm; he was

20 never there.

21 As far as Mr. Zigic is concerned -- and this

22 is something that will be argued in the presentation of

23 evidence -- he never knew this man. Thank you.

24 JUDGE MAY: I think, Mr. Nikolic, and this

25 will be spelled out by the Prosecution -- it is not for

Page 86

1 me to do their job at all -- but they say, presumably,

2 that the fact that a person wasn't at a particular

3 place or didn't know another particular person is

4 neither here nor there if they were part of a general

5 enterprise, a joint enterprise, which involved the

6 particular crime which is alleged. So they may well be

7 saying that it doesn't matter where a particular person

8 was at a time. If he was part in some way of the

9 persecution, then he is guilty. But no doubt that is a

10 matter which can be followed in due course.

11 MR. NIKOLIC: (Interpretation) Your Honour, if

12 we stipulate that Mr. Kos was in Omarska, we can do

13 that right away, but here he is also charged with some

14 specific things, and in this way, the alibi defence is

15 precluded because the indictment charges that there

16 were three shifts, and they are indicted as shift

17 commanders. One is here in The Hague and the others

18 are at large. Now, the alibi defence is precluded by

19 this. In the supporting material that the Prosecution

20 provided, I cannot believe that there is something in

21 the supporting materials -- the additional supporting

22 material that has now been provided to the Defence

23 where this is stated.

24 JUDGE MAY: Yes, Mr. Fila?

25 MR. FILA: (Interpretation) First of all, I

Page 87

1 would like to refer to the question of Judge Robinson,

2 that is to say, whether there would be legal chaos if

3 the decisions of the Appeals Chamber were not abided

4 by. If the decision of a Trial Chamber is erroneous

5 and if new facts emerge which would lead to another

6 judgement of the Appeals Chamber had those circumstances

7 been known, then the whole case can be brought before

8 the court again, and we would seek that that be done.

9 I think that that is included in everybody's national

10 right.

11 The problem is that the Rules do not provide

12 for an institution of that kind and, second, the fact

13 that Tadic, who was tried and is being tried, would be

14 interested in bringing the case back to trial and not

15 us. For example, in the Celebici case, the Defence,

16 once again, asked for the re-opening of the case by the

17 Appeals Chamber because there is no way that we can

18 indicate the elements which were not present or not in

19 evidence during the case and when the Trial Chamber

20 made its judgement.

21 Second, if I understood my learned colleague

22 Mr. Keegan properly, he said that the time will come

23 when he will precisely define the indictment, and that

24 leads me to conclude that he himself agrees that the

25 indictment is not sufficiently precise. The problem

Page 88

1 that is raised now is when am I going to wait for that

2 time and what can I do after that time when the

3 Prosecution has decided that the right time has come

4 for him to define more precisely the time span?

5 So it is not up to the Court to keep people

6 with this lack of knowledge and that they should not

7 receive something had they had a clear idea of what

8 they were actually being accused of. So the Court

9 cannot resort to ruse but to justice and truth, and

10 that is where the specific features of the Prosecution

11 in this Tribunal, compared to national prosecutions,

12 lie.

13 I therefore consider that a fair trial would

14 be possible only if the accused knows in precise detail

15 what he is being accused of, what he is being charged

16 of, and when these acts were committed. So it is not a

17 problem when we say the name and surname of the

18 individual, if we say that it is Omarska and that

19 something happened there. In the same way, you can say

20 that the term "Muslim" represents equality which is

21 sought for in canulae. One Muslim, a particular Muslim

22 man; what does that mean? It is just a religious

23 denomination. It doesn't say when, doesn't say why.

24 It is not a category. That is what my learned friend

25 Mr. Keegan was talking about.

Page 89

1 He does not refer to the situation with

2 regard to Witness F. I said that Witness F was twice

3 accused of the same thing, and you have this in writing

4 in point 17, I believe, and 27 -- Count 17 and Count

5 27. Mr. Keegan does not refer to that, and this was

6 raised twice in the two counts.

7 The third matter that I wanted to draw your

8 attention to was that in the general premises of the

9 indictment, Counts 19, 20, 21, and 22 -- for example,

10 when any of the accused are being mentioned, let us

11 take Milojica Kos, for example, or Mladjo Radic, and it

12 is stated that he was the leader of the shift, and that

13 when he was present in the camp, he was in a superior

14 position with regard to the other personnel in the

15 camp, which means that when he was present in the camp,

16 for the Prosecution and for us, it means something,

17 when he was present in the camp means something. And

18 argumentum a contrario. It states that when he was not

19 present, he was not responsible.

20 So how are we going to ascertain, if the

21 indictment is imprecise, when he was present and when

22 not? If the indictment refers to events that took

23 place in 1992 and was written in 1994, is it perhaps a

24 lack of seriousness that we have not found time in five

25 years in the entire Tadic case to go to the police

Page 90

1 station in Omarska and get the documents from it? When

2 the protector of Bosnia and Herzegovina,

3 Mr. Westendorp, is able to replace presidents and

4 states and do what they like, can they not go to the

5 police station in Omarska, for the Prosecutor to get

6 that documentation so that we can ascertain when

7 Milojica Kos was there, when the accused were there,

8 when Mladjo Radic was there and what were they when

9 they were there.

10 So in each of these statements that we have

11 dating back to the Tadic trial, the victims say that it

12 was the policemen, the victims say that they were the

13 policemen of the police station in Omarska when these

14 three people are in question, that is, two of them, two

15 of the accused. Is it not a good idea to look at the

16 documents of the police station in Omarska? Were they

17 policemen? When were they on duty? What were they

18 doing while they were on duty? We can't wait for the

19 right time for Mr. Keegan to decide when he is going to

20 do that. Those documents exist. I have seen the list,

21 but I cannot get them because I am not the Prosecutor

22 nor am I Westendorp, and I am not even a citizen of

23 Bosnia and Herzegovina to boot. You have the power to

24 ask for those documents. You have them proprio moto,

25 if the Prosecution wishes to do so -- that is, does not

Page 91

1 want to do so.

2 My request is that if the Prosecution does

3 not wish to do so, that it should be made to do so, so

4 that we can see who was in which shift and what

5 happened in a particular shift, and individuals must

6 have names and surnames and not just give a general

7 category and say "a Muslim," I don't know any category

8 like that. That is a religious denomination.

9 Thank you, Your Honours.

10 MR. TOSIC: (Interpretation) Your Honours,

11 with full respect for Mr. Keegan, I should like to

12 refer to what he said in connection to my defendant and

13 the positions in the indictment that it is not

14 essential, as regards the details, when concrete

15 actions took place, and I should like to stress in that

16 regard that in the entire indictment and case, the

17 Prosecution does not have facts as to when my defendant

18 was in the reserve formation of the police force and

19 when he was recruit, and also it is unacceptable what

20 Mr. Keegan said with regard to the operation of

21 persecution and that my defendant was sort of the

22 extended arm of the leadership. If we look at the

23 status of my defendant, my defendant was not a leader,

24 nor was he a member of any party, nor did he take part

25 in any civilian authorities, and the question can be

Page 92

1 raised whether this kind of indictment can say that he

2 took part in a persecution.

3 As regards the stand that there is no grounds

4 for severance, I should like to stress that two-thirds

5 of the evidence and material that we are going to

6 present during the case will refer to command

7 responsibility, which has nothing to do with my

8 defendant, so that for that period and the evidence, my

9 defendant could not even be in the courtroom, outside

10 the courtroom, because all the witnesses with regard to

11 the other accused refer to command responsibility, so

12 that they have nothing to do with my own accused, and I

13 thought that because of a fair and expeditious trial,

14 there should be severance in this case.

15 Thank you so much from me. Thank you, Your

16 Honours.

17 JUDGE MAY: Judge Bennouna.

18 JUDGE BENNOUNA: (Interpretation) I would like

19 to ask the Defence a question after the presentation

20 made by Mr. Fila and also the position stated by

21 Mr. Tosic on the question of precision. I am tempted

22 to ask what that means. If I understand correctly,

23 there is a question of dates. That is the first issue

24 that was raised: There is the question of dates. One

25 must also specify exactly what dates we are referring

Page 93

1 to and when the dates with which the accused are

2 charged took place and also the presence of such and

3 such an accused in the camps.

4 I believe that the Prosecutor did not deny

5 the fact -- everybody is referring back to Krnojelac,

6 the decision that was rendered, in one way or another,

7 and what we know here of this decision is that they

8 stated that there was the possibility of having

9 additional precision on the part of the Prosecution.

10 We should also define what this mean. What does the

11 term "precision" mean? Once we have a better idea of

12 what "precision" means, we will be in a better position

13 to make a ruling on this matter.

14 The other issue is whether or not the accused

15 were present in the camp, as I stated, and the other

16 question which was asked, if I understood Mr. Fila

17 correctly, is whether the responsibility is based on

18 their presence in the camp. That is a question of law;

19 it is no longer a question of fact. One can be

20 responsible even if one is not present, of course.

21 The other question of fact -- I am trying now

22 to follow what you are requesting in what you stated --

23 that when there is command responsibility at issue,

24 then one must specify also what crimes were committed

25 by the subordinates, Article 7(3), that is to say, to

Page 94

1 establish the link between the commander and his

2 subordinates, and it is specified quite clearly in our

3 Statute, I believe. It states that if the superior

4 knew, or had reason to know and also punish him if he

5 did not take necessary and reasonable measures to

6 prevent or to punish.

7 So these are the matters before us now. I

8 would like to hear from you whether or not there are

9 any questions of fact that you would like to ask and to

10 be as clear as possible with regards to the indictment

11 and also have the Prosecutor's position on specific

12 matters because it was stated that the Prosecutor, the

13 Office of the Prosecutor, in his pre-trial motion, he

14 states that he was prepared to set forth additional

15 precisions, and you stated that that was a question of

16 strategy. Why doesn't he present them now and not

17 later? Of course, there is no ruse here. It is simply

18 a matter of working with transparency, total

19 transparency, and for everyone to have as fair a trial

20 as possible. So if there are any precisions that may

21 be made available, then perhaps they will be given

22 without any further ado, further delay.

23 From what I have understood of your position,

24 can you state whether there are matters that could be

25 specified in relation to this indictment in reference

Page 95

1 to what I have just stated, and, if so, can we then

2 turn to the Prosecution and see whether they have these

3 precisions in hand at this time, and, if so, can they

4 then respond immediately to your request?

5 MR. FILA: (Interpretation) Your Honours, for

6 you to be able to understand me clearly and briefly,

7 the basis of my criticism of the indictment is the

8 indictment itself, and I quoted the fact that the

9 accused were accused as shift commanders, which they

10 deny in their defence. But let us take it that they

11 were shift commanders.

12 According to Article 7(3), they are held

13 responsible only if them and their subordinates were in

14 the camp. That is what it says in the indictment,

15 "when he was present in the camp." So to define more

16 precisely the indictment is something the Defence

17 requires because I want to know the dates -- I

18 apologise. Let's begin again.

19 The camp lasted for less than 90 days. It is

20 not contested -- and Mr. Keegan knows this full well --

21 that they had shifts: one shift for 12 hours and then

22 it would not work for 24 hours, which means that each

23 of them, according to that rotation principle, 12, 48,

24 24, he was not there for at least 30 days of the 90

25 days that the camp existed, according to that

Page 96

1 principle. Or 60 -- or he wasn't there 60 days. That

2 is to say, he was not there a third of the time. Quite

3 simply, he was not there for a third of the time. Yes,

4 sorry. One-third of the time he worked, two-thirds of

5 the time they were not there and didn't work, which

6 means that each of the accused of that rank will be

7 held responsible only for 30 days and not for the other

8 60 days, and that is the reason why I am asking that

9 via the police station we ascertain what days were in

10 point, and when the shifts worked, and what happened

11 while that shift was on duty, and if we ascertain that

12 Mladjo Radic was indeed the shift commander, then he

13 will be held responsible according to 7(1) of the

14 Statute for when he and his shift were on duty because

15 that is what he is being accused of, whereas I cannot

16 prepare a defence for the other 60 days because that is

17 not something that I would have to deal with, it is not

18 a matter of interest to me, and that is the precision

19 that I seek.

20 (Trial Chamber deliberates)

21 JUDGE MAY: Mr. Fila, you have raised this

22 question of the shift documents. We take the view that

23 this is purely a matter of evidence; it doesn't affect

24 the form of the indictment. We take your point that

25 these are crucial documents, if they are available, and

Page 97

1 would be very important for a trial.

2 After this hearing, when we have heard all

3 the motions, we shall have a Status Conference, and it

4 may be possible then to pursue matters further with the

5 Prosecution as to the availability or the possibility

6 of obtaining those documents. That might be the

7 appropriate time to deal with these.

8 MR. FILA: (Interpretation) Thank you, Your

9 Honours. I would just like to give the other half of

10 my answer to the Judge.

11 JUDGE MAY: Yes.

12 MR. FILA: (Interpretation) One limitation we

13 spoke about were shifts. The second limitation, which

14 the Prosecution goes on to state in its description and

15 says that Mladjo Radic and Kos were in a superior

16 position with regard to the overall personnel in the

17 camp, and that's okay, but the problem arises after

18 that, "except for the commander and deputy commander

19 and most of the visitors."

20 If we ascertain when the shifts were, that is

21 to say, when they worked, and that is a question of

22 fact which I agree with, it is also a question of fact

23 when they were not in the camp and when, during their

24 shift, the commander -- when the commander, deputy

25 commanders, and most of the visitors were not in the

Page 98

1 camp because if the commander, the deputy commander,

2 and most of the visitors were there, once again,

3 argumento tempere criminis, Meakic, the commander was

4 present, so we are not responsible. So we have to

5 know, once again, more precise details, when it

6 happened -- when all this did not happen, that is to

7 say, and then -- and I would like this to be my last

8 sentence -- what happened at that particular time?

9 Because we have ascertained theoretically the command

10 responsibility, 7(3) when Meakic wasn't there, when the

11 visitors weren't there and when the deputy commander

12 was not there, but it remains to be seen what happened

13 next, and that is the important part, because if I were

14 to have command responsibility, some crime must have

15 been committed, and that is not included here, and that

16 is another question that we have to settle.

17 Before I begin to collect my evidence to

18 ascertain whether the actual things happened then or

19 did not happen then, and that is why I protested when

20 the category was used, saying "a Muslim." That is not

21 a legal category, "a Muslim," it once happened that he

22 was beaten, killed, or whatever. When? When? And

23 then I can see who was responsible for that.

24 Thank you, Your Honours.

25 JUDGE MAY: It is time for the usual break.

Page 99

1 We will sit again at ten past twelve.

2 --- Recess taken at 11.44 a.m.

3 --- On resuming at 12.10 p.m.

4 JUDGE MAY: We will consider the motions

5 which were discussed this morning, and we will give our

6 decisions in due course in writing.

7 I turn next to the remaining motions, which I

8 hope we can get through by the luncheon adjournment. I

9 would also like, if it's possible, to hold a Status

10 Conference after we've heard the motions, again this

11 morning, to review the current state of the trial.

12 The remaining motions which I have here are

13 first of all a Prosecutor's motion -- they're all

14 Prosecutor's motions. There's one for judicial notice

15 of adjudicated facts. There is another relating to the

16 admission of documentary evidence, and finally there is

17 a request for the admission of the evidence of an

18 expert. It may be that we can take these matters in

19 that order, beginning with the motion for judicial

20 notice, which we have, and the response from the

21 Defence, we have.

22 If I have understood it aright, the

23 Prosecutor is asking for some 583 items to be the

24 subject of judicial notice. Those all arise from the

25 Celebici and Tadic judgements.

Page 100

1 As far as the Defence are concerned, the

2 Defence of Mr. Kvocka accepts none; that of the

3 remaining defendants would accept Items 1 to 125, and

4 I'm referring now to the annex to the Prosecutor's

5 motion which sets out these items, items 1 to 125,

6 relating to the context of the conflict, and the

7 background, except for 17 which are spelt out in the

8 Defence, so that we can understand the background.

9 Is that the position in relation to the

10 defendants? Mr. Simic.

11 MR. SIMIC: (Interpretation) Your Honours,

12 first of all, I would like to express dissatisfaction

13 because the materials which were the basis for this

14 motion have not been provided to me by the Prosecution,

15 but taking into consideration my desire that the Trial

16 Chamber proceed to the trial as soon as possible, I

17 have given my statement referring to the Rules of

18 Procedure.

19 However, I stated some facts could be

20 adjudicated which I find to be incontrovertible, and I

21 would now like to enumerate those, but again, let me

22 point out that I did not receive all the materials.

23 The Kvocka Defence agrees to accept 1 through

24 6, 8, 10 to 17, 21 to 70, 74, 78 to 87, 89, 96 to 113,

25 113 to 125.

Page 101

1 So we join the positions of Mr. Fila and

2 Mr. Nikolic, who have also agreed to stipulating these

3 facts as adjudicated. We are also prepared to accept

4 them because they are just incontrovertible in

5 themselves, rather than that they are any product of

6 the trials. But we again would like to point out that

7 we need to receive the materials which the Prosecution

8 has used to base these adjudicated facts on.

9 JUDGE MAY: Mr. Simic, so that I have that,

10 you adopt the same position as the remaining Defence

11 counsel; is that right?

12 MR. SIMIC: (Interpretation) yes.

13 JUDGE MAY: Thank you.

14 That being the position, I turn to the

15 Prosecution. Mr. Niemann, if you would like to add

16 anything to what you said, as briefly as possible,

17 please; I think we've got the arguments.

18 MR. NIEMANN: Yes, Your Honours. It seems

19 that there is a considerable portion on which agreement

20 is being reached on. It really then becomes a matter

21 for the Chamber to decide whether or not you consider

22 that any of the other material should be judicially

23 noticed in accordance with Rule 94(B). I don't wish to

24 add anything further in terms of submissions; I just

25 wish to point out a couple of matters which have been

Page 102

1 raised by the Defence.

2 Firstly, they have said that the materials

3 that we have referred to from the Tadic case are the

4 subject of an appeal; they are not in fact the subject

5 of an appeal for at least the vast majority of them.

6 There are perhaps the incidents to which the name of

7 Mr. Tadic has been referred to concerning his

8 particular crimes; that could be resolved, not the

9 incidents themselves, but his involvement in it has

10 been appealed.

11 If Your Honours had any concern at all about

12 taking judicial notice of matters which are under

13 appeal, that could be resolved simply by removing the

14 name "Mr. Tadic." The incidents themselves are not

15 contested. Mr. Tadic isn't contesting the incidents.

16 His contest relates to his participation and

17 involvement. So removing his name would achieve that

18 end.

19 So in our submission, in any event, the Rule

20 is not designed to deal with a situation where its

21 operation is dependent upon whether or not an appeal is

22 being filed or not. In our submission, the Tadic

23 decision is a final decision. It clearly comes within

24 Rule 94, and Your Honours are in a position to take

25 judicial notice of those matters.

Page 103

1 Now may not be the time when Your Honours

2 have reached the point where you should take judicial

3 notice of these matters. But in my submission, Your

4 Honours, the time will be reached when traversing all

5 of these matters in each case will become so onerous

6 and so unnecessary that the point will have been

7 reached when judicial notice of all these things should

8 be taken having regard to the expediency of the trial.

9 In my submission, the time is now. They're

10 extensively canvassed in the Tadic case. Clearly the

11 Trial Chamber regarded them as relevant and important,

12 because they included them in their judgement. Clearly,

13 in relation to all of those matters, there's no major

14 controversy which touches directly upon the accused

15 themselves, general events in relation to the vast

16 majority of them, which are pleaded and which are

17 required, in our submission, for the purposes of

18 establishing that the widespread and systematic nature

19 of the crime, motive, and other general matters, that

20 they could easily be taken judicial notice of and

21 incorporated.

22 But at the end of the day, it's a matter for

23 Your Honours. It's for you to decide what you want to

24 take judicial notice of, and we can only assist you, in

25 what way we can, in drawing your attention to matters

Page 104

1 which we consider you can safely take judicial notice

2 of.

3 Unless I can assist, Your Honour, that's my

4 submission on that particular motion.

5 JUDGE MAY: Thank you, Mr. Niemann.

6 Would anybody for the Defence like to say

7 anything? I see Mr. Fila, yes.

8 MR. FILA: (Interpretation) Your Honour, I

9 appreciate your efforts and also the efforts of my

10 colleague Niemann, and I appreciate his point that we

11 will in time reach that level. But there are two

12 issues arising from this. In Tadic, if on appeal the

13 judgement is either overturned or if the appeal of

14 Mr. Niemann is upheld, the Tadic decision will change.

15 Second, I don't understand the position. If

16 you say that this was an internal armed conflict,

17 because nobody questions that, what does Omarska have

18 to do with Kosovo, with Milosevic, with the events in

19 Vojvodina? This is the territory of another state,

20 events which took place after Omarska and which were in

21 another state. I, for instance, don't know why I would

22 in a similar way ask some facts about the history of

23 the state of Texas. But if we at some point come to

24 the point where we -- crimes which may have taken place

25 in the Kosovo indictment, we may then be able to use

Page 105

1 some of the facts here.

2 But there are also other things that refer to

3 Mr. Radic, and that is according to 421 and 422. These

4 are not general facts which would point that Mladjo

5 Radic committed a rape. If this is an adjudicated

6 fact, then I don't know if there are any other -- what

7 are we doing here? So this is wrong.

8 In the case of Dokmanovic, we had worked with

9 the Prosecution to stipulate a number of matters, and

10 that is the only appropriate manner. But I cannot

11 agree to link Kosovo here and to adjudicate that Mladjo

12 Radic committed a crime. If that is what we agree on,

13 then what is it that we do not agree on?

14 So the position that we take is that we have

15 to only take into account the cases which have been

16 fully completed and on which we can base our

17 agreements. Thank you.

18 JUDGE MAY: Does anybody else want to say

19 anything?

20 The next motion that I have is the request by

21 the Prosecution for the admission of documentary

22 evidence. The Defence position, as I understand it, in

23 relation to these documents, is that there is a dispute

24 about a video, 41, "Victims of War, Time to Mourn," as

25 there's no transcript as yet available. But that

Page 106

1 apart, I understand there to be no dispute about the

2 admission of these documents.

3 I would say the fact that a document is

4 admitted does not mean, of course, that the Trial

5 Chamber in any way attributes weight to it, if any.

6 It is merely part of the evidence, and when the Trial

7 Chamber comes to consider all the evidence, it will

8 have to determine what weight, if any, a particular

9 document is afforded.

10 At this stage, Pre-Trial admission merely

11 allows the Prosecution to produce the document. I

12 would also add this: That it would not preclude in any

13 way, in my judgement, anybody objecting to a particular

14 document if some matter arose which in their view made

15 the document inadmissible. I would not see it as

16 precluding any further debate as to admissibility but

17 merely admitting it at this stage.

18 If that represents the Defence position, then

19 the motion could be allowed, except in relation to this

20 video, which would obviously require rather more

21 attention, and that could be given in the next few

22 months before the trial.

23 Perhaps someone could tell me if that does

24 represent the Defence position.

25 MR. FILA: (Interpretation) Your Honours, that

Page 107

1 precisely represents the Defence position. Let me

2 clarify videotape 411. First of all, because they are

3 victims that are speaking, and so their testimony would

4 become evidence, so to speak; second, the tape was

5 taped in the German language, and German is not a

6 language which we speak; neither is it the official

7 language of the Tribunal. So the Defence suggested

8 that, if the Prosecution insists on having this tape,

9 that a transcript be made or that it be translated into

10 English, and then we can see what it's about.

11 Therefore the position of the Defence is just as you

12 have explained it and interpreted it, Your Honour.

13 JUDGE MAY: Thank you, Mr. Fila.

14 Can we deal, then, with the tape. I can't

15 remember -- I've got 41, but it may be 411.

16 MR. NIEMANN: My understanding, it's 41, Your

17 Honour.

18 JUDGE MAY: 41.

19 MR. NIEMANN: In relation to that, Your

20 Honours, yes, we take the point, and we will endeavour

21 to make a translation available for that, and we can

22 take that up as a separate matter. So it does resolve

23 all matters except one question, Your Honour, and that

24 is that in the motions, the Defence have said that

25 among the challenges they wish to reserve the right

Page 108

1 to -- and we don't quarrel with this -- they wish to

2 reserve the right to authenticity.

3 Now, I think that what I say with

4 authenticity and relevance, I think relevance will be

5 dealt with anyway. The question of authenticity does

6 raise this issue: If we don't know about which

7 documents they are going to contest the authenticity

8 of, it is unlikely that we will call the evidence in

9 our case in chief, as such, because there is no point

10 in doing it merely on the basis of suspecting which

11 ones -- we won't know which documents they're going to

12 challenge, in terms of authenticity.

13 It seems to us that if they could tell us in

14 advance, we can then cater for that in our case in

15 chief by calling appropriate evidence to deal with

16 authenticity. Alternatively, so long as it's a matter

17 that everybody's in agreement with, we would be quite

18 as happy to deal with it by way of rebuttal, so that if

19 in the course of the trial, in the course of both the

20 Prosecution and the Defence case, it emerges that a

21 document or a number of documents are challenged on the

22 basis of authenticity, then we could deal with that in

23 the rebuttal case.

24 In my submission, that would be the most

25 efficient way, because it would, a) save the Defence

Page 109

1 the burden of now having to determine which ones they

2 wish to challenge the authenticity of, because they may

3 in fact change their mind, in the course of the trial,

4 on this question. Secondly, it's possible that at the

5 end of the case, when it comes to the rebuttal case, we

6 ourselves may say, "Well, look, we're not going to

7 proceed with that," and for the sake of expediency not

8 proceed to establish the authenticity and therefore

9 withdraw it. We can do it that way.

10 It seems to me to be much more efficient to

11 allow the Prosecution, on everybody's understanding

12 that we will have the opportunity to address

13 authenticity at the rebuttal stage, and if everybody is

14 in agreement with that, then that would be the way that

15 I think it could be most efficiently disposed of. But

16 if Your Honour wishes to deal with it in our case in

17 chief, we are very happy to do that, but we need to

18 know which ones are going to be challenged on that

19 basis.

20 So that would necessitate an order from Your

21 Honours directing the Defence to inform us which ones

22 are challenged on the basis of authenticity. If we

23 proceed down the route of dealing with it in rebuttal,

24 no order would be necessary, because we can pick that

25 up in the course of the case, and we will know, by the

Page 110

1 time we get to the rebuttal case, what ones are

2 challenged on authenticity and what aren't.

3 That's the only matter, Your Honour.

4 JUDGE MAY: Does the Defence want to comment

5 on that proposal?

6 MR. FILA: (Interpretation) The Defence quite

7 simply saw the documents that it received from the

8 Prosecution, and it seeks the right to deny the value

9 of the documents when they are presented as evidence.

10 They are presented as evidence; I cannot accept that

11 they are absolutely authentic, and I would like to take

12 advantage of the time to see whether they are

13 authentic.

14 If I ascertain that they are authentic or

15 not, then I will do as has been suggested. But I have

16 no reason to doubt the good intentions of the

17 Prosecution, nor do I think that they have given us

18 documents which are not authentic. This is just in

19 case we feel, sometime along the line, that some

20 document is not authentic. If we don't do this in any

21 of the cases, then of course all the documents are

22 relevant and authentic, and that is what Mr. Niemann

23 has just said, I think.

24 JUDGE MAY: Mr. Simic?

25 MR. SIMIC: (Interpretation) Your Honours, I

Page 111

1 accept Mr. Fila's stance, and I would like to underline

2 that we have understood that not all these documents

3 may be used. They are documents, they are parts of

4 press cuttings from the period of the indictment, and

5 the question is; when they will occur with regard to

6 individual facts? The Defence merely wish to state

7 that when a document of this kind appears, it will give

8 its opinions, and how far -- and its probative value

9 and authenticity, perhaps. But we're not going to make

10 the work of the Prosecution more difficult, because in

11 the time that we have before us, we shall be seeing

12 whether the documents are authentic or not, and we will

13 of course present our views.

14 So I don't see any contesting views there,

15 and I don't see that we will have to give our views on

16 every document. Every document will be assessed on its

17 own merits, and of course if we feel that one is not

18 authentic, we will say so. But I think that we

19 actually agree and don't want to prolong the process

20 any further. Thank you, Your Honours.

21 (Trial Chamber deliberates)

22 JUDGE MAY: Very well, as far as this motion

23 is concerned, we shall order that the documents be

24 admitted. If there is a dispute about authenticity, it

25 can be raised at trial, and the Prosecution will be in

Page 112

1 the position of calling rebuttal evidence as they

2 suggest. That seems to us a sensible and neat way of

3 dealing with the matter.

4 The remaining motion concerns expert

5 evidence. The evidence in question is that of

6 Dr. Hanne Greve, who gave evidence in Kovacevic and

7 Tadic. The Defence position, as I understand it, is

8 this: That at the moment they object to the admission

9 of the evidence, largely because they want to

10 cross-examine the witness, and they haven't had that

11 possibility, or they wouldn't have that possibility if

12 she were not called.

13 Supposing this were the position -- and I

14 merely put it forward as a suggestion: That the

15 transcripts which the Prosecution refer to, together

16 with the exhibits, be admitted as evidence in chief of

17 the witness; so that means that the witness would not

18 have to go through it all again, having given it on

19 previous occasions at the behest of the Prosecution,

20 but that she be brought here for cross-examination so

21 that these accused may have the opportunity of

22 cross-examining her during the trial.

23 Is that a solution which seems practicable?

24 MR. FILA: (Interpretation) Yes, Your

25 Honours. That is the position of the Defence. We

Page 113

1 agree.

2 JUDGE MAY: Does the Prosecution want to say

3 anything?

4 MR. NIEMANN: Briefly, Your Honour, yes. I

5 think perhaps what Your Honour has suggested is the

6 best solution to the matter, and I think we are very

7 content with that, with two possible issues that I

8 might raise. One, again, the question of authenticity

9 has been raised with relation to the documents that she

10 tenders. It may be that it's not quite the same issue,

11 because she can deal with authenticity to some extent

12 herself; but in relation to some of the documents, she

13 may not able to deal with them, so we merely ask that

14 we be extended the opportunity to deal with

15 authenticity in the rebuttal case should that become

16 necessary. It may not become necessary at all, because

17 we'll have a witness here dealing with the documents,

18 and it may not even raise itself.

19 The other point I wish to raise, Your Honour,

20 is that at this stage, I don't think there are any

21 other matters that we would wish to ask her in chief

22 which are separate and distinct from what she has

23 already testified to in both the case of Tadic and

24 Kovacevic, but it's possible we may want to raise fresh

25 matters which she hasn't touched upon. In that event,

Page 114

1 Your Honours, we would just intimate at this stage that

2 we would like to make an application at the relevant

3 time should that become necessary.

4 Finally, Your Honours, I just remind Your

5 Honours of the recent decision in Aleksovski, where

6 this document in fact could be tendered as a hearsay

7 statement. I don't wish to pursue it any further than

8 just to remind Your Honours of that. Thank you, Your

9 Honours.

10 JUDGE MAY: Aleksovski may not be appropriate

11 in this case.

12 MR. NIEMANN: It may not be, Your Honour.

13 JUDGE MAY: But if, therefore, the Prosecutor

14 could examine, with leave, that would presumably

15 satisfy your requirements.

16 MR. NIEMANN: Your Honours, it just occurred

17 to me, before I sit down, may we treat the transcripts

18 in both those cases as her statement, rather than

19 having the trouble of going to her and obtaining from

20 her a statement? I seek to do that. She has now been

21 appointed a judge of the European Court of Human

22 Rights, and she's very busy, and we don't wish to

23 trouble her with that if we can possibly avoid having

24 to obtain another statement.

25 (Trial Chamber deliberates)

Page 115

1 JUDGE MAY: Very well. The transcripts and

2 exhibits of the witness will be admitted as evidence in

3 chief, but the witness must be available for

4 cross-examination, the Prosecution to have leave to

5 examine in chief, only with leave, the statements, the

6 transcripts, rather, of the evidence of the witness,

7 are to be treated as her statement. So there will be

8 no further statement from the witness, simply those

9 transcripts, which should clearly cover that particular

10 aspect of the case.

11 We will consider the motion, the application

12 in relation to judicial notice of adjudicated facts,

13 and we will give our decision on that in due course.

14 Now, unless there are any other matters to be

15 dealt with in open session, I propose that we go to

16 closed session for a Status Conference.

17 Are there any other matters which anybody

18 would like to raise in open Court?

19 Very well, we'll go into closed session.

20 --- Whereupon session proceeds into a

21 Status Conference, at 12.44.





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