1 Monday, 11 May 1998
2 (In open session)
3 (The accused entered court)
4 --- Upon commencing at 10.05 a.m.
5 JUDGE MAY: Yes. Let the registrar call the
7 THE REGISTRAR: Good morning, Your Honour.
8 Case number IT-95-4-PT, The Prosecutor versus Kvocka,
9 Radic, and Zigic; case number IT-95-8-PT, The
10 Prosecutor versus Zigic; case number IT-97-24-PT, The
11 Prosecutor versus Milan Kovacevic.
12 JUDGE MAY: The appearances, please.
13 MS. HOLLIS: Good morning, Your Honours. I
14 am Brenda Hollis, and I along, with my colleagues,
15 Michael Keegan and Ann Sutherland, appear on behalf of
16 The Prosecutor.
17 JUDGE MAY: Yes. For the defence?
18 MR. VUCICEVIC: Good morning, Your Honours.
19 Dusan Vucicevic, together with Professor D'Amato, on
20 behalf of Dr. Kovacevic.
21 MR. TOSIC: Defence counsel Tosic appear on
22 behalf of the accused Zoran Zigic.
23 MR. GUBERINA: Your Honours, lawyer Veljko
24 Guberina, Belgrade, appearing as Defence counsel for
25 the accused Mladen Radic.
1 MS. GRAHOVAC: Your Honour, I am for the
2 defence on Mr. Kvocka, replacement.
3 JUDGE MAY: Your name, please?
4 MS. GRAHOVAC: Slavica Grahovac.
5 JUDGE MAY: Now, can the defendants all hear
6 in a language which they understand? Can you hear?
7 Very well. Now, these cases are being listed
8 together for this reason: The case of Milan Kovacevic
9 was due to be tried today, but the Prosecutor, as those
10 in the case will know, applied to amend the indictment,
11 and that motion was refused by the Trial Chamber.
12 Against that decision the Prosecutor has appealed, and
13 the Appeal Chamber hasss not yet decided the appeal.
14 So the position is this, that the trial of
15 Mr. Kovacevic cannot start today and, indeed, cannot
16 start until the Appeals Chamber has determined the
18 Meanwhile, the other three accused have
19 appeared before another Trial Chamber, and the
20 Prosecutor now applies for the joinder of these cases
21 or, rather, the concurrent presentation of evidence, as
22 it is put, and that motion is listed for hearing today
23 together with a number of motions in the case of Milan
25 It is obviously convenient to hear the motion
1 for joinder first, and that we will turn to now.
2 Ms. Grahovac, I wonder if I could address you
3 on behalf of the Defence counsel? The position is
4 this, that the Defence in your cases have not yet, as
5 we understood it, received any of the material; is that
6 right? Is that right? Perhaps you could confirm it so
7 we can have it on the record?
8 MR. GUBERINA: On behalf of the accused
9 Radic, it was already on the 1st of May that we raised
10 an objection and we sent it in written form to Your
11 Honours, to the Trial Chamber, and we adhere to that
12 strictly because we would find ourselves in an
13 extremely unfavourable situation, and this is our
14 right; and in the name of honour and conscience, me, as
15 Defence counsel who has been Defence counsel for 45
16 years, working in crimes of the highest degree, and in
17 view of the fact that we are before a high institution,
18 an eminent institution, that the world is looking up to
19 and expecting decisions to be brought which shall form
20 in the future judicial practice for all the lawyers of
21 this world, in view of all this and in view of our
22 professional ethics, we have to ask the Trial Chamber
23 that we be provided, in order to be able to acquaint
24 ourselves with it, the complete material, both in terms
25 of the indictment of Mr. Radic, also the material which
1 has to do with the indictment of Dr. Kovacevic, who has
2 suddenly, I, as counsel, have to be in a position to be
3 able to prepare myself to reply to the indictment, and
4 it was very suddenly that we were informed about this
6 So, Your Honours, in view of the fact that I
7 neither have the complete material in regard of my --
8 of the accused that I'm defending and that we only have
9 half of the file -- of course, we have been promised to
10 get it -- and in terms of the material which charges
11 Dr. Kovacevic, we have no knowledge whatsoever why he
12 is being incriminated and what he is being charged with
13 in respect of which my Defendant would be implicated,
14 and we fail to see any link between that and the
15 indictment of Dr. Kovacevic.
16 That is why I wish to hear, on the basis of
17 what argument and on the basis of what facts stemming
18 from the material which was used in the process against
19 Dr. Kovacevic, on the basis of what was the disposition
20 arrived at that this should be linked with the trial of
21 my Defendant, the accused that I'm defending.
22 So, please, Your Honours, given my 73 years
23 of age and my 45 years of experience as Defence counsel
24 and also a member of the Amnesty International in
25 London for 24 years and a champion of the abolition of
1 the death sentence, I would like you to provide me with
2 a satisfactory answer.
3 Thank you.
4 JUDGE MAY: Mr. Guberina, we have, of course,
5 received your motion, and we have considered it. We
6 understand fully your position and, I should say, the
7 position of other Defence counsel who have not received
8 the material.
9 Could you switch the microphone off, please?
10 The position is that you have not had all the
11 material; therefore, you say, naturally enough, that
12 you are not in a position to respond to a motion about
13 the conduct of the case until you have had all the
14 material and the indictment, and that position we fully
15 understand. Nonetheless, we have decided to list the
16 matter today for this reason: that we want to hear
17 argument upon it.
18 In the case of Mr. Kovacevic, this is a
19 matter which must be resolved quickly in order that his
20 trial can begin, and this is an opportunity, the Trial
21 Chamber feels, for these matters to be aired in public
22 and for at least a preliminary view to be taken upon
24 We have very much in mind the position which
25 you mention. We have in mind your motion, and we shall
1 not make any orders in respect of those accused who
2 have not had the material until they have had it and
3 counsel have had the opportunity to address us upon it.
4 So that means this, that we will hear the
5 matter. If it can be resolved by agreement, it will
6 be. If it is rejected, it will be. If, on the other
7 hand, we are minded to make orders which would concern
8 your clients and upon which you wish to address us when
9 you have had the material, then we will have that in
10 mind and no orders will be made until such time as you
11 have had the material.
12 So at the moment, this is a preliminary
13 hearing for us to at least understand what the motion
14 is all about, and it may indicate a preliminary view
15 or, if we can, make a final ruling.
16 So you can rest assured we have your motion
17 and your position in mind.
18 With that, if I can turn next to the
19 Prosecution. Ms. Hollis or Mr. Keegan, whoever is
20 dealing with this more appropriately.
21 This motion clearly raises important issues
22 which have not been raised, I think I'm right in
23 saying, before this Tribunal before. They concern
24 the joinder of indictments and the concurrent hearing
25 of evidence. And, of course, we have to have in mind
1 that they must be decided against this background: On
2 the one hand, the Trial Chamber is required by Article
3 20 of our Statute to secure a fair and expeditious
4 trial for the accused. On the other, we must have
5 regard to the protection of witnesses and victims. So,
6 accordingly, we have to strike a balance of interests
7 in deciding this matter.
8 But let me, at the outset, say this, that in
9 national jurisdictions, this is a matter, which it may
10 be, can be sorted out between counsel, that it is a
11 matter which is very much for discussion, the order of
12 evidence, the way it is given, that sort of thing; and
13 so if there is anything to be gained by discussion
14 between counsel, time is available for it, and I would
15 like to make that point as far as all counsel are
17 We have this courtroom today and tomorrow
18 and, indeed, for the rest of the week, it may be, so if
19 there is anything to be done by way of agreement in
20 order to resolve the problem, we, as a Trial Chamber,
21 would encourage it.
22 And perhaps, Mr. Keegan, I could begin by
23 asking if there has been any discussion between
24 counsel, discussion which you feel you can mention to
25 the Trial Chamber -- of course, there is no need to
1 mention something you don't want to -- but if there has
2 been any discussion which you think might be of
3 assistance to us, perhaps you would let us know. We
4 notice, for instance, that Mr. D'Amato has made a
5 suggestion about the way in which the case can be
6 presented. It doesn't clearly follow your motion, but
7 it is a possible compromise.
8 MR. KEEGAN: Yes, Your Honour. There have
9 not been any discussions with counsel on this issue,
10 and with respect to Mr. D'Amato's suggestion, we don't
11 feel that that addresses the central issue here, which
12 is the protection for the witnesses and victims --
13 JUDGE MAY: Well, I will hear you in a
14 moment. The position is this, that we will
15 certainly -- we will hear argument about it now. There
16 will be the usual break, and it may be that time can
17 usefully be spent during the break between counsel to
18 discuss this matter, and if any round table discussion
19 or anything of that sort could assist to resolve it,
20 then you will have the time necessary.
21 But before I hear you, Mr. Keegan, let me
22 just make sure that I have got it right in my own mind
23 what it is you are asking for because it seems that the
24 Prosecution seek orders on three matters: First of
25 all, you are asking for the case against all four
1 accused be heard by the same Trial Chamber, and that,
2 presumably, is under Rule 54, which gives us power to
3 make such orders as may be necessary for the purposes
4 of the conduct of the trial.
5 Next, as I understand it, that in the case of
6 the three most recently arrived accused, that is,
7 Messrs. Radic, Kvocka, and Zigic, you are asking that
8 the two indictments against them be tried together, and
9 that will require a consideration of Rule 48 which
10 allows persons accused of the same or different crimes
11 committed in the same transaction to be jointly charged
12 and tried.
13 Thirdly, you are asking that the evidence
14 against all four should be presented concurrently; and
15 in that connection, there will be a need to consider
16 Article 20 of the Statute which I have mentioned and
17 Rule 75(A) which permits us to order appropriate measures
18 for the protection of witnesses, provided that they are
19 consistent with the rights of the accused.
20 Presumably, the decision on the first two
21 matters, that is, concerning the joint trial of all
22 four and the joinder of the indictments, that the
23 decision on those two matters really depends on our
24 decision on the third matter, that is, in relation to
25 the concurrent presentation of the evidence, because if
1 we are against you on the third, the first matter falls
2 and won't have to be considered in any event, and the
3 second matter, that is, about the joinder of the
4 indictments, that would be for the Trial Chamber who
5 dealt with the trial of those three accused.
6 Is that a right analysis of the motion?
7 MR. KEEGAN: That's right, except to the
8 extent that with respect to your first point, strictly
9 speaking, we are not requesting that they necessarily
10 be heard by the same Trial Chamber. In a concurrent
11 presentation of evidence, theoretically and technically
12 it's possible to have two Chambers hearing the evidence
13 concurrently. So that, as a technical matter, is
14 not --
15 JUDGE MAY: I thought that was what was in
16 your motion, and I merely copied it out.
17 MR. KEEGAN: But the first matter, Sir, was
18 we decide as a matter of practicality to try to have
19 all the accused assigned to the same Trial Chamber to
20 facilitate that, but as a technical matter, if the
21 decision was that concurrent presentation of evidence
22 was appropriate but yet it was difficult to have the
23 same Chamber hear all of the cases, it would be
24 technically possible to have two Chambers hearing the
25 same evidence. That's our only point.
1 JUDGE MAY: Very well.
2 MR. KEEGAN: As a practical matter, I think
3 you're probably correct, but I'm not so sure it's
4 technically required.
5 JUDGE MAY: Just help us with this before we
6 go into the argument: Mr. Guberina suggested that some
7 of the material had been served on Defence counsel in
8 those three cases.
9 MR. KEEGAN: Yes, sir.
10 JUDGE MAY: Can you help us as to how much
11 and what your position is?
12 MR. KEEGAN: I could. On the 5th of May,
13 part of the supporting materials, that is, the
14 statement of facts, the extracts of evidence relating
15 to the individual accused, were hand-delivered by
16 members of the OTP to the Defence team for Radic and
17 Kvocka, and then on the 5th of May -- excuse me, the
18 7th of May, the supporting material, including
19 statements related to the individual accused, were
20 delivered to Mr. Tosic for the accused Zigic and the
21 remainder of the statements to counsel for Kvocka. The
22 remainder of the statements were also conveyed by
23 courier to Belgrade to Mr. Guberina's office on the 7th
24 of May. So from the OTP's perspective, we believe that
25 all the supporting material has now been conveyed to
1 all of the counsel.
2 JUDGE MAY: Can I turn to defence counsel.
3 MR. TOSIC: Your Honours, what has been said
4 by the Prosecution in respect of that, neither myself
5 nor my defendant, Zoran Zigic, have received in our
6 native tongue -- I left Banja Luka, actually material
7 arrived the following day in the English language, so
8 it was not of use to me. As regards the segment of my
9 colleague, Guberina and I wholly subscribe to his
10 opinion as regards the joinder in this particular
11 case. Thank you.
12 JUDGE MAY: Mr. Guberina, what have you
14 MR. GUBERINA: It is with particular
15 pleasure, Your Honour, that I can say that on the 5th
16 of May, when I was to see the Defendant for the first
17 time, indeed we did receive at 15 to 9 on the 15th of
18 May a part of the material, and I should like to thank
19 our colleague, I believe her name is Ann, I should like
20 to thank her very much, because when we asked her about
21 the material the day before she told us, "Please, you
22 will have to wait a bit" as she was taken a bit by
23 surprise and as I myself was taken by surprise because
24 that had been some twenty days after the indictment had
25 been served on us without having received any
1 supporting material then our colleague Ann asked where
2 we were so that she could contact us that very evening
3 by telephone and give us a part of the material on the
4 next day.
5 So that part of the material which we have
6 received is this. That is it. We also said that for
7 the purposes of the defence, please send it to us also
8 in the English language; we will have it translated.
9 And we did so. It is here. But we have no
10 possibility -- we really cannot accept the fact that
11 the Defendant has not received this because we want to
12 go through it together with him once the complete
13 material has been made available. We, of course,
14 signed the receipt of that part of the material on the
15 day that we received.
16 Now, if anything has arrived in the meantime,
17 and I can see that the OTP is referring to material
18 dated the 7th of May, I cannot say at this particular
19 point in time whether I can accept it because I am not
20 sure whether it has indeed arrived. If it has, I will
21 be most grateful and we will certainly acquaint
22 ourselves with the substance of the material, but this
23 will not detract from nor change our principal
24 attitude, which is that we will ask the Trial Chamber
25 that we be given a certain period of time, which we
1 need in order to familiarise ourselves with the
2 material in full and discuss it with the Defendants so
3 as to be able to address this court and say that we do
4 indeed appear as Defence counsel. Thank you.
5 JUDGE MAY: Ms. Grahovac, can you assist on
7 MS. GRAHOVAC: Yes. Concerning our client,
8 Mr. Kvocka, our position remains that the proceedings
9 for all the accused should be separate and our position
10 is negative on the joinder of the proceedings for
11 Messrs. Kovacevic and Zigic in question. And I think,
12 Your Honour, that you have received our preliminary
13 motion as well.
14 JUDGE MAY: I'm not sure we have. I don't
15 know that we've received anything.
16 MS. GRAHOVAC: Dated the 7th of May.
17 JUDGE MAY: Yes, I'm told it has been filed.
18 It hasn't reached me. But can you help us? I should
19 have asked you this before. Where is Mr. Simic? He is
20 Defence counsel, isn't he?
21 MS. GRAHOVAC: I am replacement.
22 JUDGE MAY: I know you're standing in and
23 we're very grateful to you for doing it.
24 MS. GRAHOVAC: I think he was prevented to
25 come, but next time, I think that he'll come.
1 JUDGE MAY: Perhaps you would like to make,
2 if you can, make some inquiries as to where he is.
3 MS. GRAHOVAC: Yes, I will.
4 JUDGE MAY: During the day, and perhaps you
5 could tell us.
6 MS. GRAHOVAC: Yes, I will.
7 JUDGE MAY: Because he should be here.
8 MS. GRAHOVAC: I hope so.
9 JUDGE MAY: Thank you.
10 MR. KEEGAN: Your Honour, if I might further
11 clarify on this issue of the disclosure? At the
12 initial appearance of Kvocka and Radic as well as at
13 the initial appearance of Zigic, the temporary counsel
14 assigned at that time, who were counsel appearing in
15 other cases before the Tribunal, on the record,
16 requested that they not receive, that they not be given
17 the supporting materials, and that rather that the
18 office of the Prosecutor wait until permanent counsel
19 or counsel of choice were assigned and that they
20 arrived at The Hague to see their clients and that they
21 then be given the supporting material, and that is why
22 the delay has been up until this point because we have
23 been waiting to get full answers on assignment of
24 counsel. Unfortunately, we received Mr. Guberina's
25 request on the same day that he arrived here, which
1 accounts for the surprise he attributed to
2 Ms. Sutherland, because we only received the request
3 itself and then he was here on the same day. But it's
4 our understanding that I believe much of the material
5 has been translated now into Serbo-Croatian, although
6 not the statements themselves, but the other supporting
7 material, the extracts and the other material. I will
8 have to verify that, however. But as you know, the
9 translation resources are a bit scarce, and it's our
10 understanding that some, but not all, may have already
11 been translated, and if so we will endeavour to provide
12 that today or tomorrow.
13 JUDGE MAY: What I think we may ask you to
14 do, Mr. Keegan, is to find out, so we have a final
15 updated position today sometime, as to what has been
16 delivered and in what language and what, if anything,
17 is outstanding.
18 MR. KEEGAN: We know that all of the material
19 has been sent, Your Honour. Whether it passed counsel
20 in transit, but it has all been sent in the English
21 language, and the Serbo-Croatian language we have been
22 awaiting, and it may at this stage be done or in part,
23 and we will verify that before the close of business
25 JUDGE MAY: Yes. We will hear your argument,
1 Mr. Keegan.
2 MR. KEEGAN: Thank you, Your Honour.
3 As Your Honour correctly pointed out in your
4 summary of the issues and as we raised in our motion,
5 the principal Article involved here is Article 20 of
6 the Statute which sets out the objective for trials
7 before this Tribunal, that is a fair -- that the
8 accused be given a fair and expeditious trial.
9 In conducting that trial, Article 20 points
10 to two principles, and that is full respect for the
11 rights of the accused and due regard for the protection
12 of victims and witnesses. By "protection," we submit,
13 the Statute intends that term to encompass far more
14 than physical security of the witnesses but also means
15 their physical and mental well-being. The inclusion of
16 the principle for the protection of victims and
17 witnesses in Article 20, and in particular in Article
18 22, indicates the importance that must be given to the
19 protection of victims and witnesses. The only
20 limitation on the measures that may be taken by a Trial
21 Chamber is where such steps may be in conflict with the
22 rights of an accused to a fair trial.
23 Article 22 of the Statute and Rule 75 of the
24 Rules of Procedure and Evidence further define the
25 mandate of the Trial Chamber to order appropriate
1 measures for the privacy and protection of witnesses.
2 That mandate includes the method or manner in which
3 testimony is given, and control of the questioning of
4 the witnesses.
5 In considering these issues, it must be noted
6 that the principle of a fair trial does not equate to
7 nor mean a perfect trial, nor does it mean a trial
8 conducted in accordance with an accused's wishes or
9 preferences; rather, it means a trial that accords the
10 accused the rights set forth in Article 21 of the
11 Statute. Provided those rights are accounted for in
12 full equality, the other aspects of the trial process
13 are within the discretion of the Trial Chamber, and in
14 determining those trial processes, the Trial Chamber
15 must give effect to the principles of Article 22 in
16 Rule 75.
17 As indicated in our motion, the joinder of
18 the three accused, Kvocka, Radic, and Zigic, and the
19 concurrent presentation of evidence against those three
20 and the accused Kovacevic, is clearly warranted in
21 light of the necessary protection for the victims and
22 witnesses, for effective judicial economy and the
23 interests of an expeditious trial for all of the
25 With respect to the topic of the protection
1 of victims and witnesses. As described above, this
2 issue concerns questions of both physical security as
3 well as mental and physical well-being. The act of
4 testifying, indeed the very determination to testify,
5 and the necessary preparation that goes into that
6 decision, are and can be traumatic events for all
7 witnesses, for some severely so. To have to recount
8 the horrors that these people witnessed or survived as
9 direct victims is extremely difficult, as testified to
10 by many of the witnesses in the Tadic case during
11 cross-examination on the issue of media exposure. Many
12 of the witnesses do everything they can to avoid having
13 to think about the past, let alone be directly
14 confronted by it, or to have to recount it in public.
15 It is also true that there is not an
16 unlimited supply of witnesses or victims that are
17 willing to cooperate with or testify before this
18 tribunal despite our best efforts and intentions, nor
19 is it the case that the office of the Prosecutor has
20 the ability to identify and locate all potential
21 witnesses in a case. Accordingly, the witnesses who
22 are identified and are willing to cooperate are indeed
23 precious, and whatever efforts can be taken, consistent
24 with the rights of the accused, must be taken.
25 The impact of a lack of security for
1 witnesses or even the perception of a lack of security
2 can have significant consequences on the right of the
3 international community to a fair trial. As has
4 already been seen in other cases before this Tribunal,
5 where security of information about witnesses has been
6 breached for reasons totally unrelated to necessary
7 investigation, witnesses have changed their minds and
8 been unwilling to come forward and testify. We would,
9 of course, point to the confidential annex which was
10 submitted with our motion, Your Honour.
11 Because the charges against all four of these
12 accused flow from the same basic facts and events which
13 occurred in the Prijedor municipality in 1992, the
14 cases all involve the very same witnesses. This group
15 of witnesses were utilised in the investigation process
16 and their evidence was the basis for all three of the
17 subject indictments. To require them to testify twice
18 or possibly three times would pose a significant risk
19 to their security and well-being, a risk which is
20 neither justified nor required by a full respect for
21 the rights of these accused.
22 With respect to effective judicial economy,
23 we believe this issue clearly speaks for itself. The
24 limited availability of courtrooms at the Tribunal and
25 the limited staff for all three organs of the Tribunal
1 strongly argue for the conduct of one trial instead of
2 two or three.
3 Having to conduct two or possibly three
4 trials that recount the exact same areas of evidence
5 unnecessarily detract from the ability of the Office of
6 the Prosecutor to conduct other investigations and
7 trials, of the Trial Chambers to hear other cases which
8 are already pending, and of the registry to be able to
9 support both organs or to provide assistance to other
10 Defence counsel and other accused.
11 With respect to the issue of the right of an
12 accused to an expeditious trial, it goes without saying
13 that the principles and rights in Articles 20 and 21
14 apply to all accused equally. In a situation such as
15 we have here present, we submit that the right of an
16 expeditious trial is relative as to each accused and
17 conditional on a determination of what would be the
18 greater good; that is, what would best protect the
19 interests and rights of the larger group of accused. A
20 joinder and concurrent presentation of evidence would
21 result in a fair and expeditious trial for all four
23 While it is true it might result in some
24 amount of delay for the accused Kovacevic, the amount
25 of which, of course, is unknown, given that we have no
1 trial date at this present time, such a delay would not
2 violate the standard of Article 21 of a trial without
3 undue delay. Such a determination, with respect to a
4 joinder and concurrent presentation, would be in accord
5 with the precedents we have already considered in the
6 Kovacevic case with respect to the issue of pre-trial
7 detention, when we considered the standards under
8 Article 14 of the ICCPR, the International Covenant on
9 Civil and Political Rights, as well as the European
10 Convention on Human Rights. A further delay in this
11 case, in order to effect a fair and expeditious trial
12 for all four accused, would not violate the standard of
13 "undue" delay, and we believe that is the key.
14 The indictments related to all four accused
15 establish themselves, the factual basis for this
16 request for joinder and concurrent presentation of
17 evidence. It is clear from a reading of the four
18 corners of the indictments that the charges all flow
19 from the very same events that were committed in the
20 Prijedor municipality in 1992. Moreover, the accused
21 Kvocka, Radic, and Zigic, are among the individuals
22 subordinate to the accused Kovacevic, and their
23 particular acts and crimes form part of the basis of
24 his responsibility under Article 73 for the conduct of
25 the camps. The joinder of Kvocka, Radic, and Zigic is
1 in full accord with Rule 48 as referenced by Your
2 Honour earlier. First off, they are charged with
3 crimes in the same indictment related to the Omarska
4 camp. And second, the joinder of the indictment which
5 charges the accused Zigic with crimes in the Keraterm
6 camp falls within the parameters of persons charged
7 with different crimes committed in the course of the
8 same transaction. That transaction being the ethnic
9 cleansing of the Bosnian Muslim and Bosnian Croat
10 population in Prijedor municipality in 1992.
11 The joinder of the three, including the
12 Keraterm indictment against Zigic, would also be in
13 accord with the principles discussed above with respect
14 to Article 14 of the ICCPR and Article 6 of the
15 European convention and, of course, with the Articles
16 20 and 21 of this Tribunal Statute, and it is within
17 the authority of the Trial Chamber under rule 54 to
18 issue such orders as are necessary for the conduct of
19 the trial.
20 Further, as mentioned in our motion, the
21 evidence regarding Keraterm would be relevant to
22 establish the legal element of Article 5 charges that a
23 widespread or systematic attack was committed against a
24 civilian population in terms of considering the charges
25 in the Omarska indictment against the accused Kvocka
1 and Radic.
2 And finally, as mentioned in our motion, all
3 of the evidence with respect to those three accused,
4 that is, Kvocka, Radic, and Zigic, all the evidence
5 would be relevant for consideration against the accused
6 Kovacevic on the charge of complicity and genocide and
7 therefore forms the basis for the concurrent
8 presentation of evidence request.
9 Thank you, Your Honour.
10 JUDGE MAY: Perhaps you can, before you sit
11 down, help us with this, Mr. Keegan: First of all, the
12 word "transaction" in Rule 48 is defined in Rule 2
13 as "a number of acts or omissions, whether occurring as
14 one event or a number of events, at the same or
15 different locations, and being part of a common scheme,
16 strategy or plan," and you would point, would you, to
17 the ethnic cleansing as part of a common scheme,
18 strategy or plan?
19 MR. KEEGAN: Yes, sir, as a shorthand term,
20 you know, which has been commonly accepted for the
21 events which occurred, it would translate -- if we want
22 to put it in terms directly, to the last point I made
23 about the Article 5 charges. There is a requirement
24 for the Article 5 charges, of course, that the crimes
25 were committed as part of a widespread or systematic
1 attack against a civilian population. All of the acts
2 which occurred in the Prijedor municipality in 1992
3 with respect to what's generally referred to as the
4 ethnic cleansing, that is, the attacks on the villages
5 or areas inhabited by Bosnian Muslims or Bosnian
6 Croats, the roundup of the population, the
7 transportation to the camps, the crimes committed in
8 the camps, as well as the unlawful transfer or
9 deportation of the majority of the population, we
10 argue, yes, is all part of that widespread or
11 systematic attack, that being, if you will, a common
12 plan or scheme, a transaction. Yes, sir.
13 JUDGE MAY: And turning to the
14 practicalities, I think you said in your motion that
15 there were 25 witnesses who you were proposing to call
16 in the case of Dr. Kovacevic; is that right?
17 MR. KEEGAN: Those were the -- yes, sir, the
18 25 which we had firmly identified we intended to call
19 in accord distance with your instructions. There will
20 be additional witnesses.
21 JUDGE MAY: Just dealing with that aspect of
22 it. And the 25, I think you also said in the motion,
23 were also to be called in the case of the other three
24 or the cases of the other three; is that correct?
25 MR. KEEGAN: That's correct, Sir. And with
1 respect to some of those witnesses, they are, in fact,
2 direct victims of the three accused, one or more of the
3 three accused.
4 JUDGE MAY: So we have a position where there
5 are 25 witnesses, at least, who are common to both
7 MR. KEEGAN: Yes, sir.
8 JUDGE MAY: But there are additional
10 MR. KEEGAN: They would also be common. As I
11 indicated in my argument, Your Honour, the pool of
12 witnesses which we have available to us were the
13 witnesses who were -- formed the basis of the
14 investigation and who almost all would be relevant --
15 would be called for both trials because it's the same
16 pool which form the basis for the indictments, the
17 individual indictments. There have, of course, been
18 additional witnesses since '95, so I'm not going to
19 stand here and say that all the witnesses we called
20 were witnesses that were utilised in the -- in drafting
21 those '95 indictments, but their development has been
22 part of the continuing investigation and they would
23 certainly be called to substantiate those indictments
24 now, even though they weren't available to us at the
25 time we drafted the indictments. But they will
1 certainly be called now.
2 JUDGE MAY: Just to give us some idea, in the
3 case, first of all, Mr. Kovacevic, how many witnesses
4 are we talking about?
5 MR. KEEGAN: As we've indicated all along,
6 Your Honour, it is our firm desire to limit the number
7 of witnesses to 50 or less, and we intend to maintain
8 that now, if at all possible.
9 JUDGE MAY: And in the case of the other
10 three or the cases of the other three accused?
11 MR. KEEGAN: It would be hard to -- if I
12 could have just one moment, Your Honour?
13 Your Honour, we, of course, would -- it's our
14 intention to limit the number of witnesses to the
15 amount necessary for the establishment of our case, and
16 I am hesitant to give you a firm number at this time
17 for any of the cases. Obviously, we're still pending
18 the issue of the amended indictment in Kovacevic which
19 would affect, presumably, could affect the number of
20 witnesses, and with respect to the other three, since
21 the preparation of those cases in the sense of for
22 trial is still in its development, I'm hesitant to give
23 you a firm number, but certainly not a large number.
24 JUDGE MAY: Turning to the practicalities of
25 the situation, as I said earlier, the case of Milan
1 Kovacevic was supposed to be heard today.
2 MR. KEEGAN: Yes, Your Honour.
3 JUDGE MAY: But because there is an
4 interlocutory appeal still outstanding, we have not
5 been able to start. But I take it that you are ready
6 for trial in that case.
7 MR. KEEGAN: We are, Your Honour.
8 JUDGE MAY: In the case of the other three,
9 what is your state of readiness?
10 MR. KEEGAN: If the concurrent presentation
11 were granted, Your Honour, we would be ready for those
12 trials I think in fairly short order because, as I
13 indicated, it would be the -- the core would be the
14 exact same witnesses and what we would do now is look
15 at what witnesses might be necessary to add onto this
16 core group to facilitate all three indictments, that
17 is, the two cases against the three accused and against
18 Kovacevic. So I'm a bit hesitant, but I would
19 certainly suggest, by July we could be prepared to
20 proceed on all of the cases, as I believe we indicated
21 in our motion that we thought we could be prepared by
23 JUDGE MAY: Well now, turning to the trials
24 themselves, how do you foresee the trials being held?
25 There won't necessarily have to be openings in all the
1 cases, both cases or all the cases, because as I
2 understand it, you are not asking for the joinder of
3 the indictments against the three and also
4 Mr. Kovacevic, you are asking for concurrent
5 presentation of evidence.
6 MR. KEEGAN: That's correct, Your Honour.
7 JUDGE MAY: Have you ever come across
8 anything like that before?
9 MR. KEEGAN: I myself have not personally
10 participated in such a trial, but I am aware of them
11 occurring and have been -- in offices I've been with
12 have conducted them.
13 JUDGE MAY: In what circumstances?
14 MR. KEEGAN: They were drug distribution
15 rings who overlapped, Your Honour, and so because there
16 was a core group of -- again, a core group of witnesses
17 against both groups involved in the drug distribution
18 process and because of the witness protection issues,
19 in fact, they simply brought all the accused together,
20 conducted the presentation, that aspect of the evidence
22 JUDGE MAY: These were trials by jury?
23 MR. KEEGAN: No, Your Honour. In both -- for
24 those cases, they were judge alone trials.
25 JUDGE MAY: And so what happened was this,
1 was it, that the cases were opened separately,
2 progressed in the normal way, but at the same time --
3 but then when it came to the common witnesses, the two
4 cases were joined, as it were?
5 MR. KEEGAN: Yes, Your Honour. In that case,
6 much like this case, the vast majority of the evidence
7 was common. The Prosecution would do a common opening,
8 a joint opening, if you will, one opening address
9 related to all the accused with respect to describing
10 the evidence, and then proceed with the case.
11 Now, certainly it is possible that the
12 concurrent presentation could be limited to only those
13 witnesses related to all of the accused. It's also
14 possible, of course, to allow just the complete
15 presentation of the evidence against all the accused
16 from the Prosecution's side, the Court considering the
17 evidence as necessary against the accused, and the
18 Defence being involved only to the extent the evidence
19 is relevant to their accused. At that point, once we
20 proceed to the Defence case, as we indicated in our
21 motion, it is possible, of course, at the request of
22 the Defence and if the Chamber felt necessary, to allow
23 separate presentation of Defence evidence. But we
24 believe that the entire Prosecution case could be heard
25 concurrently and, of course, it would be up to the
1 Judges to determine which evidence was relevant to the
2 particular accused because certainly there will be some
3 evidence that may be relevant to the authority of the
4 accused Kovacevic which is not necessarily relevant,
5 although it might be in certain aspects, to the other
7 So we would argue that the full Prosecution
8 case should be heard concurrently and allow the Judges
9 to make the determinations of which evidence would be
10 relevant to a particular accused.
11 JUDGE MAY: That in effect would be a joinder
12 of the indictment, at least for the Prosecution case.
13 MR. KEEGAN: Your Honour, I even hate to
14 qualify it, in practical terms as a joinder of the
15 indictments because I don't believe it is. There are
16 certain aspects of the evidence which would not be
17 necessary and, of course, while all of the factual
18 presentation is common to all the accused, certainly
19 the qualification of that evidence in terms of the
20 particular charges is not the same, and so it is not a
21 complete joinder. And I would refrain from even, as a
22 practical matter, trying to categorise it as such.
23 JUDGE MAY: The suggestion made by
24 Mr. D'Amato, as you know, is that there should be a
25 simultaneous hearing to this extent, that the cases
1 would be heard side by side, one in the morning, one in
2 the afternoon, as it were, so the witness would only be
3 required or the relevant witnesses would only be
4 required to come once, although they would have to give
5 evidence twice.
6 Now, while there may be practical
7 difficulties about arranging that, it would secure, of
8 course, that there were separate trials and that there
9 were not a joinder in any way, and it therefore has
10 that attraction.
11 From what you have said earlier, I gather you
12 oppose that.
13 MR. KEEGAN: Yes, Your Honour. The point of
14 the bifurcated trial as it was referred to by defence,
15 does nothing to address the concerns for the witnesses
16 which are the central issues here that we are looking
17 at and then considering in light of the rights of the
18 accused to a fair and expeditious trial. The question
19 from the Prosecution's perspective is, that if the
20 concurrent presentation of the evidence is not itself
21 violative of the accused's right to a fair trial, which
22 we don't believe it is, then to that extent, once that
23 determination is reached, in every measure which is
24 necessary for the protection of the witnesses, that
25 being not only their physical security, of course, but
1 their physical and mental well-being, must be taken
2 under Article 22 and Rule 75. The problem with the
3 suggestion by the Defence is, it does nothing to
4 address the concerns of having a witness having to go
5 through full examination on two separate occasions,
6 whether it's possibly in the same day or, more likely
7 in many cases, on different days, even if they are
8 subsequent days. It still involves the witnesses
9 having to give their direct testimony twice, be subject
10 to cross-examination twice, to questions from the
11 judges twice. So it does nothing to address the
12 difficulties, the mental difficulties that witnesses
13 have and the traumatic experience that they go through,
14 many of them, in having to give evidence.
15 And I can also foresee, Your Honour -- I'm
16 sorry --
17 JUDGE MAY: I see that, of course they would
18 have to give evidence twice and go through the evidence
19 in chief twice. It wouldn't add to the
20 cross-examination. They would have that in any event.
21 They would have however many Defence counsel were going
22 to cross-examine. But I see that they would have to
23 give evidence in chief twice.
24 But as against that, it would address some of
25 the other concerns about the security of witnesses,
1 their having to travel here on more than one occasion,
2 the delays between the various hearings, all that I see
3 as putting pressure on the witnesses and putting
4 pressures on their security. That aspect of the case
5 would be addressed, would it not?
6 MR. KEEGAN: Presumably, Your Honour. I
7 would suggest, though, as I mentioned earlier in my
8 argument, under Article 22 and Rule 75, of course, this
9 Trial Chamber has the right to not only modify the
10 conditions or the manner in which a witness gives
11 testimony but also to control the questioning of the
12 witnesses. We don't believe that it is necessarily the
13 case that all Defence counsel would have to
14 cross-examine a potential witness, nor perhaps would
15 they even want to. So we don't think that that is
16 necessarily the case. Certainly, if it's to the point
17 where the questions are merely repetitive and bordering
18 on the issue of harassment, then certainly the Trial
19 Chamber would be able to tailor the scope of the
20 cross-examination. I hesitate because I'm also very
21 concerned about crossing over into the issue of
22 testimony here, but I would suggest that the experience
23 of this Tribunal clearly indicates that the trauma
24 suffered by many of these witnesses after giving
25 testimony might, in fact, prevent them from retaking
1 the stand, particularly on the same day and even in
2 subsequent days. I think the records and the
3 experience in the trials to date speak for that.
4 As to, I think, the experience of our cases
5 here so far would also indicate that despite the best
6 intentions of the Defence to continue with witnesses on
7 the same day or perhaps next day, I think experience
8 would indicate that probably would not happen often,
9 particularly when you have transcripts which are
10 readily available. You know, it's often the case where
11 counsel would want to get the transcript of the
12 witness's prior testimony before questioning them in
13 the subsequent hearing on the matter. Whether that
14 could happen in the same day or not, I don't know if
15 it's possible. I think it would put a huge strain on
16 the reporting system certainly, and then in that case
17 might occasion delays of one or two -- certainly the
18 more days that the witnesses stay in the Hague, the
19 greater risk they are here being discovered and
20 exposed, the longer they're away from home, the
21 noticeable absence has the effect of affecting the
22 potential security risk, many of them come from small
23 towns or villages and it's readily apparent when
24 they're gone for a long period of time. Whether
25 they're coming from Bosnia-Herzegovina or other areas in
1 the former Yugoslavia or even as refugees, given the
2 status of refugees, any time they travel, it's a
3 noticeable event.
4 So we believe that, in fact, it doesn't
5 necessarily address the security risks and concerns.
6 And we do not believe that it would proceed as smoothly
7 as the Defence suggests given our experience here to
8 date, and we believe again the fundamental question is
9 whether the current -- concurrent presentation of
10 evidence would violate any of the requirements of
11 Article 21 which are the requirements for the accused
12 for a fair trial, and again, Your Honour, we believe
13 the answer on that particular question is "No." So if
14 the focus is Article 21 and the accused's rights, we do
15 not need to discuss now deviations on what would be the
16 maximum concerns for witness security and protection,
17 that we focus on the rights of the accused and consider
18 whether just concurrent presentation would violate
20 JUDGE MAY: As far as any delay is concerned
21 from counsel wanting to see the transcript of any
22 testimony which was given in an earlier trial, that
23 would seem to me to be totally unnecessary. If they
24 wanted to, they could attend the hearing of the witness
25 and take a note of it, and they could then
1 cross-examine from that. So that side of it I don't
2 see as a problem.
3 The issue which is raised by the Defence, by
4 Mr. D'Amato, is the potential prejudice which may be
5 involved, and that's why I suggested this was, in
6 effect, a joinder of the indictment. The potential
7 prejudice which may occur from defendants having
8 different interests to serve in the conduct of their
9 defence. Of course, if you have a joint indictment,
10 then there can be no argument about that; that is the
11 way the trial is conducted. But if you have separate
12 indictments and then try and present the evidence
13 together, there is a risk, isn't there, that the
14 Defence will sustain prejudice from the
15 cross-examination which one or other Defence counsel
16 may engage in, that they may have an interest which is
17 completely contrary to the interest of the other
18 Defence counsel, and the example, of course, was given
19 in Mr. D'Amato's motion or response.
20 MR. KEEGAN: Yes, Your Honour, but as we
21 indicated in our reply, the trial process as a search
22 for the truth is going to define the facts regardless
23 of the interests of a particular accused. To the
24 extent that the same witnesses are testifying and are
25 giving the exact same evidence against the individual
1 accused, whether it's in one trial or three, the same
2 facts presumably are established and found by the Trial
4 So to the specific example of the armed
5 conflict in Prijedor, whether the Defence for the
6 accused Kovacevic would want to argue that an armed
7 conflict establishes -- relates to a motive as to why
8 there were attacks against the Bosnian Muslim and
9 Bosnian Croat population, that's an issue, as we
10 indicated, that we don't think is a particularly viable
11 option to begin with since the motive is irrelevant to
12 the issue of the genocidal intent.
13 So we think that the trial process, because
14 in this the circumstances as we indicated, you have the
15 same evidence being put forth to the Trial Chamber
16 against all of these accused, it really matters not
17 what particular legal strategies they may adopt in
18 terms of arguing against the indictment against their
19 accused. At the end of the day, the same amount or the
20 same category, qualification or quality of evidence, is
21 going to be adduced before this Trial Chamber.
22 Certainly in the first trial. The problem is, from the
23 Prosecution's perspective, having to conduct two or
24 three trials may, in fact, deny the international
25 community and the Office of the Prosecutor the
1 opportunity to present a fair trial for the
2 international community because we may not have those
3 witnesses if we have to conduct two or three trials
4 because they may not be willing to testify again. And
5 that is the essential point.
6 JUDGE MAY: The point is not an idle one,
7 because if you have a joint indictment then, of course,
8 the Defence can't complain if they use different
9 strategies and damage one another. But if the
10 indictment isn't joined, normally of course, the other
11 Defence counsel aren't there, and the Defendant then,
12 as it were, has a trial on his own, without suffering
13 the risk of damage of cross-examination from another
14 Defence counsel. This is the point that Mr. D'Amato
16 Now, as I say, if you have a joint
17 indictment, then the problem doesn't arise at all, and
18 no complaint can be made. But if the indictment isn't
19 joined, in the normal course of events, the trials
20 would be totally separate, and so a defendant would not
21 have that disadvantage.
22 Now, the procedure which you're suggesting of
23 trying the cases together, would, it seems to me --
24 this is, of course, subject to argument -- but it seems
25 to me to run the risk which Mr. D'Amato raises in his
2 MR. KEEGAN: Your Honour, what I -- what we
3 believe is that if you were to follow the argument that
4 if these were joined indictments, the joinder, the
5 prejudice to the -- because the prejudice is still
6 going to be there to the individual accused. They may
7 want to argue different theories for the defence. So
8 if you take that as the first premise, that the
9 prejudice exists whether it's an official joinder or
10 not, if you then say that if there was a technical
11 joinder, the fact of the technical joinder would
12 outweigh the potential prejudice to the accused such
13 that the joint trial would occur, it is our position
14 that then you really are only making the same
15 determination for the concurrent presentation of
16 evidence, you simply aren't using a technical legal
17 determination, you're using the question of an analysis
18 of the fundamental rights.
19 And so we suggest that if you could find that
20 if these indictments were technically joined, that
21 would overcome the prejudice given the interests of
22 witness security and protection and that the potential
23 prejudice to the accused does not outweigh those
24 interests as well as the other interests of judicial
25 economy which we mentioned, then we believe you can
1 find the same -- reach the same determination without
2 that technical joinder by simply going through the same
3 analysis, that it's the same basic evidence, the same
4 pool of witnesses, the same documents, et cetera, would
5 be presented for all of these cases to a large extent.
6 That that evidence is going to lay before the Trial
7 Chamber a certain set of facts which the Trial Chamber
8 will then determine the guilt of the accused. That is
9 not going to change whether it's a technical joinder or
10 not. And the potential variations in Defence strategy
11 won't change whether there's a technical joinder or
12 not. So we believe that that technical joinder is not
13 necessary to reach the appropriate determination that
14 the concerns for witness protection and safety as well
15 as the other concerns for judicial economy outweigh
16 possible prejudice to the accused by virtue of
17 potential arguments they'd want to make because we
18 must, of course, remember that from the Defence side,
19 this is all purely hypothetical at this point. They,
20 of course, are not required to put on any evidence at
21 all, nor advance any theory. They're not required to
22 cross-examine any witnesses, if they don't wish to. So
23 we do not know and cannot say for certain what their
24 defences will be or they intend them to be at this
25 time. And given that framework, in light of the known
1 parameters of what the Prosecution must prove in its
2 case with its evidence, we believe that the same
3 determination can be reached.
4 JUDGE MAY: Thank you, Mr. Keegan. Unless
5 there is anything else you wanted to say ...
6 MR. KEEGAN: No.
7 JUDGE MAY: Yes, Mr. D'Amato, we will hear
8 from you.
9 MR. D'AMATO: Thank you, Your Honour.
10 May I begin just with a point of order?
11 Mr. Keegan referred to a reply. We have not received
12 any reply. Did he write a reply?
13 JUDGE MAY: Have you got a copy of that?
14 MR. D'AMATO: Mr. Keegan, if you have written
15 a reply, this is the second time in two appearances
16 here that I am getting it --
17 JUDGE MAY: Well, Mr. D'Amato, through the
18 Bench, please.
19 MR. D'AMATO: Your Honour, we looked in our
20 box this morning. There was no reply. I didn't get it
21 by fax. And this is the second time that I'm getting
22 it the instant I'm getting up to give an oral
23 argument. It's a little unfair.
24 JUDGE MAY: Well, you should have a copy. No
25 doubt you would like some time to look at it. We can
1 take the break rather early if it is more convenient.
2 MR. D'AMATO: I can proceed with my argument,
3 and if there is anything that is left over by virtue of
4 the reply, and if you give me a little more time later,
5 I could --
6 JUDGE MAY: We will have to adjourn at half
7 past eleven, so make a start, Mr. D'Amato.
8 MR. D'AMATO: Okay. I would like to make a
9 start without the benefit of the wonderful reply that
10 awaits me.
11 I would like to address Mr. Keegan's remarks
12 starting from the end and working back to the beginning
13 because I think those are the ones that are freshest on
14 our minds.
15 When he says it's all hypothetical at this
16 stage, we don't know what the Defence will do, that's
17 of course true, but Rule 82B says "in order to avoid a
18 conflict of interest that might" -- "might cause
19 serious prejudice to an accused," the word "might" is
20 an invitation for us to look at this stage, pre-trial,
21 to see whether these hypothetical situations could
23 So I don't think it's fair to say that just
24 because we're talking about hypotheticals, that there's
25 something wrong about that. We must talk about
1 hypotheticals if we're trying to assess the probability
2 of a conflict of interest that causes serious
4 With respect to Your Honour's point about a
5 joint indictment would cause no problems, let me say
6 this: Let's suppose, first, that Dr. Kovacevic was
7 indicted for 15 counts of genocide and all the others
8 that the Prosecution would like to add and his trial
9 were all by itself. Well, of course, there would arise
10 those prejudices that we're talking about. He would
11 have to determine what his theory would be when it
12 comes to genocide versus, say, crimes against humanity,
13 and there would be a difficulty. But that difficulty
14 would be under our control. The attorneys for the
15 Defence would be able to make a strategic decision
16 which way, which theory to go, given the fact that he's
17 being charged with these incompatible crimes. But
18 that's fair.
19 What would be unfair would be to join our
20 trial with other Defendants whose sole interest is
21 incompatible with ours. So that when Your Honour made
22 the suggestion that there would be no problem if there
23 were a joint indictment, with all respect, if there
24 were a joint indictment, I would have to move for a
25 separation of trials given the incompatibility of
1 genocide with crimes against humanity. The proof is
2 entirely different, as I tried to point out in my
4 So that the problem is not solved by assuming
5 that it's only a technicality that there be a joint
6 indictment; as a matter of fact, if there were a joint
7 indictment, we would have to move for separate trials
8 and we'd be having the exact same argument we're having
9 now; that is, are these two crimes compatible? Is it
10 fair to pit one set of Defendants against another on
11 factual issues, on basic factual issues of the trial?
12 And I want to get to that in a minute, but I just
13 wanted to make that point about the joint indictment,
14 that it's not a technicality but it would result in the
15 same problem.
16 The point that was raised just before that
17 with respect to my suggestion about a bifurcated trial,
18 Mr. Keegan raised a number of issues of the trauma on
19 witnesses who might have to speak twice in the same
20 day, et cetera. That may be. There may be problems
21 with that. I only made a suggestion. It's the
22 Prosecution's motion here, and I only came back with a
23 suggestion that, admittedly, is not 100 percent
24 perfect, it can't solve every problem, but it is put
25 forward in the spirit of trying to help with respect to
1 the witnesses, as Your Honour pointed out. They still
2 only have to make one trip here and not two.
3 I think that Mr. Keegan is asking for a
4 muddle. The trial that he envisages would be a
5 disaster. There would be conflicting evidence
6 throughout and Defence teams arguing against each
8 This is evident from what he said in response
9 to Your Honour's question about what a transaction is.
10 It was very interesting when you asked him the
11 definition of a transaction. His response was: It's
12 all part of the Article 5 crimes. That's fine. But
13 we're being charged with Article 4. The genocide is
14 not -- he never mentioned the problem of genocide with
15 respect to transactions.
16 Our position is that Dr. Kovacevic is being
17 accused of genocide; that's quite different from the
18 ethnic cleansing that Mr. Keegan is talking about, or
19 at least it could be quite different. Ethnic cleansing
20 could be accomplished without destruction, in whole or
21 in part, of a minority group. It could be
22 accomplished, for example, by deportation, which is, as
23 Mr. Keegan acknowledges, an Article 5 crime.
24 But the transaction -- let's not get muddled
25 with respect to what a transaction is, because once we
1 are clear about that, it's pretty clear that it
2 doesn't -- it's not something that would link our trial
3 with that of the other Defendants.
4 Mr. Keegan asserts that the linkage between
5 Dr. Kovacevic and the other three Defendants has to do
6 with the fact that they are subordinate to him, and
7 therefore, the evidence of their crimes reflects back
8 on Dr. Kovacevic. Your Honour, that's a bald
9 assertion. There's not an iota of proof about that.
10 There's nothing in the indictment that brings up the
11 names of these other Defendants in connection with
12 Dr. Kovacevic. It is just an assertion. If we
13 disprove it at trial, then it would be incredibly
14 prejudicial at the trial for us to be hearing all the
15 evidence against the other three Defendants when we
16 have shown that there isn't a link. It will still
17 create a psychological barrier for the Court to see
18 Dr. Kovacevic's case clearly.
19 Now, if there were a link, then there might
20 be something to the argument that has been made. But
21 it is a sheer assertion. He doesn't establish a link
22 by simply asserting it, and that's all he's done. And
23 without that assertion, there's no link at all.
24 My main point, though, after these
25 preliminaries, is that let's assume Mr. Keegan's
1 arguments are 100 percent persuasive with respect to
2 the need for protecting witnesses, the need for this
3 Tribunal to get on with its business, the limited funds
4 at its disposal, the interests of justice. One hundred
5 percent conceded. Nevertheless, we're facing here a
6 textbook case of conflict that will cause serious
8 It is impossible to have a fair trial if
9 situations arise where one Defence lawyer is trying to
10 establish an evidentiary fact and the other Defence
11 lawyer is trying to disprove that same fact. I'm not
12 talking about culpability, I'm not talking about one
13 Defence attorney saying, "Well, my client didn't do
14 it," I'm talking about the basic fact. And the
15 suggestion I gave in my brief -- which I know the other
16 Defendants haven't heard yet -- suppose there is a Serb
17 who is taken to one of these camps near Prijedor. In
18 fact, Witness P might be an example of such a person,
19 although he wasn't taken to the camp, but reading his
20 statement, here is a Serb who is sympathetic, perhaps,
21 with the other side. This Serb is taken to the
22 concentration camp and interrogated. Why? Because
23 they want to know whether he's loyal to the Serb
24 cause or whether he's loyal to the opposition. That
25 was one of the reasons to have a detention camp, is to
1 sort people out.
2 Let's assume that this Serb detainee dies
3 in the prison, in the camp, and the defendants are
4 accused of murder. They will, of course, try to argue
5 that the Serb -- the victim was not killed by them nor
6 by any other guard but perhaps died at the hands of his
7 fellow prisoners. In other words, an alibi excuse that
8 would suggest, "Yes, he died in the camp, but not at
9 our hands, he died at the hands of his fellow prisoners
10 who, for whatever reason, murdered him." That would be
11 a fair alibi defence for them to assert.
12 But what would Dr. Kovacevic want to argue?
13 Strangely enough, because he's being accused of
14 genocide, Dr. Kovacevic would want to argue that these
15 Defendants, in fact, murdered this victim. They would
16 argue the absolute opposite of what the other
17 Defendants are arguing because Dr. Kovacevic wants to
18 show that people were killed in the detention camps not
19 because of their ethnicity or racial or national
20 background because they were opponents of the Serb
21 forces, and this Serb who was killed is proof that it
22 was not a genocidal campaign at all but it was a civil
23 war sorting-out kind of campaign.
24 So we would have the crazy, the absolutely
25 unjust situation at a trial where the Prosecution could
1 sit back and smile and watch the Defendants tear each
2 other apart. Two sets of lawyers arguing whether this
3 person did it or didn't do it, whether the other person
4 did or didn't, and it would be a farce, and I think
5 that is an overwhelming textbook example of why there
6 would be serious prejudice at a trial like this when
7 you're trying to mix genocide in with crimes that are
8 incompatible with it, that are evidentiarily
9 incompatible; and therefore, no matter how much
10 deference we give to the Prosecution's arguments about
11 fairness to witnesses and everything, the Rule 82B is
12 very clear: In order to avoid a conflict of interest
13 that might cause serious prejudice to an accused, what
14 could they have in mind that would be a better example
15 of Article 82B than the case I just gave you that will
16 inevitably come up in this trial, not just once but
17 many, many times. Every time the other Defendants want
18 to prove that there was no armed conflict, we would
19 want to prove that there was. There would be a clash
20 at every stage of the argument. We'd want to prove
21 that there was armed conflict so that there was no
22 overriding genocidal intent but, rather, was a civil
23 war intent. They're going to want to prove that there
24 was no armed conflict because they want to prove --
25 because they're being charged with war crimes and
1 violations of the Geneva Convention.
2 So all the way throughout the trial there
3 would be an example of what Rule 82B is trying to
4 avoid, and therefore I think that no matter -- it would
5 be very good to try to solve the problems of the
6 witness protection, but this way would ensure the
7 unfairness of the trial to our client and, undoubtedly,
8 to the other clients.
9 Finally, one little word about expeditious
10 trial. Even though Mr. Keegan is ready to proceed with
11 a trial against everyone, the Defendants in the other
12 cases would probably ask for 60 days to prepare.
13 That's their right. And therefore, Dr. Kovacevic's
14 trial would be postponed for two months more. He has
15 been in jail a long time now, and it is his turn to
16 come to trial and not to wait an additional two months
17 for the trial to start. That's one reason I think the
18 bifurcated motion makes a little sense. We could
19 proceed with that without any of these joint witnesses,
20 and maybe the happy conclusion would be that there
21 would be no need to continue on with the trial if the
22 Prosecution fails to prove that Dr. Kovacevic had the
23 requisite intent to participate or to be complicitous
24 in a genocidal plan.
25 I see that I maybe just got under the wire,
1 and with the possible reservation of possibly
2 addressing anything that's in the reply brief that
3 hasn't been covered, we rest our case.
4 JUDGE MAY: There will be a break of 30
5 minutes now. Any remaining Defence counsel who would
6 like to make any submissions, we will hear them then.
7 Just one moment while I consider something
8 with my colleagues.
9 Mr. Keegan, we have just considered the
10 position generally. We can't, clearly, make any
11 binding ruling or anything like at the moment because
12 we haven't heard your reply, we haven't heard all the
13 arguments, and we need to do that. But it may be that
14 you would like to consider further -- we have heard
15 your position about it, I know -- but it may be you
16 would like to consider further Mr. D'Amato's suggestion
17 as a way of proceeding.
18 We do have in mind the problems which the
19 witnesses have before this Tribunal, we do have in mind
20 our duty towards their protection and security, and
21 clearly they are matters which have to be at the
22 forefront of any consideration. But as I said at the
23 outset, we have to balance that against the rights of
24 the accused to a fair trial.
25 Now, it would seem to me that it might be
1 possible by agreement to reach some sort of compromise
2 which would allow those interests to be properly
3 balanced and also to secure as expeditious trials as we
4 possibly can, given the shortage of time.
5 For that reason, I am going to allow an
6 adjournment of 40 minutes in the hope that during that
7 time it may be possible for counsel to have a word
8 together to see whether some agreement can be reached
9 on these matters. If you would like more time, then
10 send a message, and you will have it.
11 MR. KEEGAN: Yes, Your Honour.
12 JUDGE MAY: Thank you. But for the moment,
13 ten past eleven.
14 --- Recess taken at 11.31 a.m.
15 --- Resumed at 12.15 p.m.
16 JUDGE MAY: Mr. D'Amato, have you had the
17 opportunity of seeing the other submission by the
18 Prosecution, the reply? Have you had the opportunity
19 of seeing that now?
20 MR. D'AMATO: Yes, Your Honour, I have. I
21 perhaps would have changed the emphasis or tone of what
22 I said, but I don't see anything to add at this point.
23 JUDGE MAY: I take it that useful discussions
24 have taken place during the adjournment?
25 MR. D'AMATO: Useful in the sense that we
1 have realised the gap, the chasm that separates us.
2 JUDGE MAY: Remaining Defence counsel, I know
3 the position which you have adopted so far, and
4 particularly what you say about not having received any
5 or sufficient material. But if there is anything you
6 want to say about these matters, I will hear you now.
7 Yes, Mr. Guberina, is there anything you
8 would like to say?
9 MR. GUBERINA: Your Honour, we thank you for
10 the possibility that you have given us, if need be,
11 from the standpoint of the Defence, to say something.
12 However, having heard the proceedings so far, I would
13 like to say only that I do not wish to use my
14 opportunity because I don't wish to disturb you and I
15 remain by the motion that we submitted, and that would
16 be it for today. Thank you.
17 JUDGE MAY: Does anybody else want to say
19 MR. TOSIC: Your Honours, as the Defence of
20 the accused Zoran Zigic, I agree with the stance of my
21 colleagues as far as the procedure; however, as a
22 long-term former prosecutor, I would have certain
23 comments concerning the stand of the Prosecution about
24 the motion for joinder.
25 Taking into account the Prosecution and their
1 aims, I feel that the reasons cited were not argumented
2 [sic] for several reasons. As far as the stance of the
3 Prosecution regarding the traumatic experience of the
4 witnesses, we have a question that should there be a
5 possibility for the witnesses in separate proceedings
6 to come out with their testimony, we feel that this
7 would be favourable to the Prosecution in view of the
8 fact that the witnesses could remember all of the
9 circumstances and all the questions that they are
10 supposed to respond to.
11 Furthermore, the claim cannot be accepted
12 that these are the same witnesses because, looking at
13 both the indictments, it is obvious that this is a
14 detention centre, Keraterm and Omarska are two of them,
15 and the incriminated acts, so our defendants are not
16 the same for both camps so that we cannot talk about
17 the fact that the same witnesses are therefore all of
18 the accused.
19 As far as the economy of the Prosecution in
20 the name of truth and justice, we feel that the space
21 and lack of personnel cannot be a reason for conducting
22 one trial which, as far as the joinder of the
23 indictments, the representative of the Prosecution has
24 said that in order to have one trial and not to have a
25 joinder of the indictment, I think that this would be a
1 unique example in International Court because you
2 cannot have one proceeding without joinder of the
4 As far as the witnesses which would be heard
5 in this one trial, there is a question of whether, in
6 such a process, situation, we would be in the position
7 to have the statements of the witnesses, in view of the
8 stance of the Defence, could in some way be beneficial
9 to the Prosecution in order to expand the indictment to
10 other acts as well as to other persons.
11 That is all.
12 JUDGE MAY: Thank you.
13 MS. GRAHOVAC: Yes, Your Honour, as for the
14 Defence of Mr. Kvocka, the opposition is negative. We
15 are against the joinder of proceedings and cases.
16 Thank you.
17 JUDGE MAY: Mr. Keegan, is there anything you
18 would like to say in response?
19 MR. KEEGAN: Yes, thank you, Your Honour.
20 With respect to the citation to Rule 82, as
21 one of the reasons -- or the primary reason, standard,
22 which the Defence asserts would require a determination
23 against a concurrent presentation, Mr. D'Amato
24 indicated that it's a determination that -- their
25 interests that might cause serious prejudice. We, of
1 course, would focus on the phrase "serious prejudice."
2 And then, once again, in considering whether a
3 concurrent presentation would violate the accused's
4 right to a fair trial and in looking at Rule 82, in
5 fact one can read that even if there was some
6 prejudice, that is not a sufficient basis to deny the
7 concurrent presentation of evidence but, rather, would
8 have to rise to the level of serious prejudice against
9 the accused because, again, the right to a fair trial
10 applies to both parties, not just to the accused, and
11 that the interests of the protection of the victims and
12 witnesses, which is also a mandate for these Trial
13 Chambers, does have an effect on that issue or the
14 question of what is a fair trial and what kind of
15 prejudice would be sufficient to negate the otherwise
16 requirement to consider witness issues.
17 Now, with respect to the issue of the
18 transaction, and Mr. D'Amato referred to my analogy to
19 Article 5, that was simply in terms of trying to put it
20 in context of charges. Of course, the definition, as
21 cited by Your Honour, quite clearly indicates it's not
22 relegated directly to any particular charge or form of
23 charge, nor is it related to any particular crime;
24 rather, the argument of the related transaction here,
25 as I indicated, is that the concurrent events in
1 Prijedor during 1992 itself forms a transaction which I
2 tried to then break down or categorise under the rubric
3 of "ethnic cleansing," as it's commonly referred to, or
4 made the analogy to the issue of a widespread or
5 systematic attack which, of course, is an element under
6 Article 5.
7 But, in point of fact, it's not solely
8 related to Article 5, and, of course, the same
9 transaction of facts, which is the issue here in the
10 concurrent presentation of evidence, that is, the
11 presentation of facts, that same transaction of facts
12 could be relevant to or is relevant to charges under
13 Articles 2, 3, 4 and 5.
14 Rule 48 supports that argument in that in its
15 terminology where it discusses that individuals charged
16 with same or different crimes in the course of the same
17 transaction, obviously recognising that again the same
18 facts can make one liable for more than one type of
20 With respect to the link of the other three
21 accused, Kvocka, Radic, and Zigic to Kovacevic,
22 Mr. D'Amato indicates that's a mere assertion. Well,
23 in fact, when one reviews the indictments, the
24 indictments themselves clearly indicate why they would
25 fall within the personnel who were subordinate to the
1 accused Kovacevic and therefore form part of the basis,
2 their acts forming part of the basis for his
3 responsibility under Article 7(3), and more
4 particularly when one reads the supporting materials or
5 statements that accompany the indictments and those
6 three accused are prominently mentioned, it makes it
7 very clear how they relate.
8 Mr. D'Amato tries to chalk up the problem
9 with respect to concurrent presentation of evidence to
10 incompatible crimes. Well, the issue here is not the
11 crimes, it's the facts which would be presented in that
12 evidence, and the whole point of the motion is that the
13 facts to be presented to this Trial Chamber would be
14 the same for all of the accused. The application of
15 those facts to the law may differ or vary as a result
16 of the particular charges, but it's the basic
17 underlying facts which are the issue here, and those
18 facts will be the same.
19 As we indicated in our response to the
20 Defence motion for bifurcated trial which was filed on
21 the 7th of May, we indicated that the main problem with
22 the Defence suggestion is that the Defence suggestion
23 is based on a fundamental misperception of the
24 indictment against Kovacevic.
25 The Defence, in paragraph 10 of their motion,
1 asserts that the accused Kovacevic is not charged with
2 participating in or even witnessing any of the alleged
3 atrocities in the camps, instead the accused is charged
4 with participating in an alleged plan that was intended
5 to bring about the physical destruction of detainees in
6 the camps on account of their membership in Muslim or
7 Croat groups. That as far as Dr. Kovacevic is
8 concerned, his alleged participation in the plan
9 occurred, if at all, entirely outside the boundaries of
10 the detention camps.
11 They then posit in paragraph 11 that if the
12 Prosecution fails to prove that the accused was
13 criminally implicated in an alleged plan or conspiracy
14 to commit genocide, then the accused would stand
16 These assertions are a gross misapprehension
17 of the indictment against Kovacevic. In determining
18 the scope of the charge, the indictment must be red in
19 toto, and that indictment does not limit the accused's
20 culpability or planning, nor is he, of course, charged
21 with conspiracy and genocide. Further, while it's true
22 that we would not have to prove the accused witnessed
23 atrocities in the camps in order to prove his guilt,
24 the indictment does not exclude the possibility of such
25 evidence as relevant to prove his guilt.
1 Finally, the Defence completely ignores the
2 reality that the accused is charged both with
3 individual criminal responsibility pursuant to Article
4 7(1) and 7(3); and, of course, under 7(3) it would be
5 the very acts committed in the camps by the accused
6 such as Radic, Kvocka and Zigic that would form the
7 basis for his liability for complicity.
8 The relief requested by the Defence for
9 Kovacevic ignores the relationship between the criminal
10 conduct which is the subject of the indictments against
11 the other three accused and the charge against this
12 accused Kovacevic.
13 The charge against Kovacevic indicates that
14 between April '92 and January '93, Milan Kovacevic did,
15 by his acts and omissions, commit the offence, and so
16 therefore, it's that framework within which the other
17 paragraphs of the indictment must be read, and it's
18 clear then that from the language of the indictment,
19 his responsibility for the crimes charged flows from
20 the totality of his acts or omissions during that
21 period, that is, 30 April of '92 until 31 December,
22 '92. That would include, of course, any acts or
23 omissions related to the conduct in the camps
24 themselves, not simply acts prior to the establishment
25 of the camps.
1 I've already addressed the issue of the
2 Defence's lack of appreciation of the individual
3 criminal responsibility under Article 7(3) and what
4 that would entail in terms of proof.
5 As I raised earlier, the central point is
6 that the concurrent presentation of evidence relates
7 only to the Prosecution case, and the question here
8 really is the presentation of the facts of the
9 Prosecution case against all of the accused, and it is
10 those facts which are common to all four and which can,
11 by their common basis, form the proof of responsibility
12 under all of the articles of the Statute.
13 There is, of course, also the issue related
14 to -- we must, of course, proceed under the current
15 indictment, but obviously if the Appeals Chamber
16 decides, for example, in favour of the Prosecution,
17 certainly that would dramatically change the whole
18 position of the Defence or the support for its argument
19 of a bifurcated trial because then you would, in fact,
20 have violation of the exact same articles for the
21 accused, and one would wonder would the accused then
22 ask to separate the charges in the indictment, of
23 Kovacevic himself in that case, because of this alleged
24 incompatibility? And we raise that point just to
25 establish, in fact, that this argument of
1 incompatibility is a purely hypothetical one and one
2 which has no basis in actual presentation of facts
3 within a courtroom for determination of individual
4 responsibility for crimes.
5 Thank you, Your Honour.
6 JUDGE MAY: In ruling on this motion, we bear
7 in mind, first, that we have a duty towards the
8 protection and security of witnesses, but as I said at
9 the outset, we also have a duty to secure a fair trial
10 for all the accused.
11 We have come to the conclusion that the
12 course which is proposed in the motion is one which
13 would be so prejudicial to the accused that a fair
14 trial of all of them would not be possible.
15 We also have in mind that, in the case of
16 Dr. Kovacevic, an expeditious trial must be held, and
17 were this motion to be allowed, it would hold up
18 matters further.
19 For those reasons, and for further reasons
20 which will be given subsequently in writing, the motion
21 put forward by the Prosecution is rejected to this
22 extent: That the motion which calls for the case
23 against all four accused to be heard together by the
24 same Trial Chamber is rejected.
25 The motion for the concurrent presentation of
1 evidence against all four is also rejected.
2 The motion which calls for the two
3 indictments against Messrs. Zigic, Radic and Kvocka to
4 be tried together is adjourned. It is a matter for the
5 Trial Chamber which tries those Defendants to determine
6 and not for us.
7 The motion, if it is one, by the Defence, for
8 what is being called a "bifurcated trial," is not a
9 matter on which we shall rule. If the parties wish to
10 consider the matter further, they can do so, and it can
11 be re-presented, but at the moment, there will be no
12 ruling upon it.
13 For those reasons, as I say, this motion is
15 That concludes the proceedings as far as the
16 three more recently accused are concerned.
17 This afternoon we shall proceed to hear a
18 number of motions in the case of Milan Kovacevic. It
19 may be of assistance to counsel in that case if we
20 indicate the order in which we propose to hear those
22 We will begin by hearing the motion for the
23 protection of victims and witnesses. We shall then
24 deal with the motion in relation to the investigator.
25 We shall deal next with the Defence motion concerning a
1 code for the Prosecutor. We will then turn to deal
2 with evidential matters and we will deal with the
3 Prosecutor's request in relation to judicial notice and
4 deal, finally, for the motion in relation to pre-trial
6 We will then have a status conference in
7 closed session.
8 Now, it may well be that we shall not be able
9 to deal with all those matters this afternoon. We will
10 continue tomorrow morning if that is the case.
11 We shall adjourn for an hour and a half. I
12 will say at ten past two.
13 --- Whereupon proceedings adjourned
14 at 12.37 p.m.