Case No. IT-96-21-T
Tuesday, 1st October 1996
JUDGE GABRIELLE McDONALD
(The Presiding Judge)
ZDRAVKO MUCIC a/k/a "PAVO"
ESAD LANDZO a/k/a "ZENGA"
MR. ERIC OSTBERG and MS. TERESA McHENRY
appeared on behalf of the Prosecution
MR. SALIH KARABDIC appeared on behalf of the accused Delic
MR. MUSTAFA BRACKOVIC appeared on behalf of the accused Landzo
align (Open Session)
1 THE PRESIDING JUDGE: This morning we will hear four motions, oral
2 arguments on four motions, first, Mr. Delic's motion for
3 provisional release, then we will hear Mr. Delic's motion on the
4 form of indictment, then Mr. Landzo's motion on the form of the
5 indictment and then I understand we will go into closed session
6 to hear Mr. Landzo's motion for provisional release. May I have
7 appearances for counsel? For Mr. Delic? Who represents
8 Mr. Delic?
9 MR. KARABDIC [In translation]: Yes, I am Salih Karabdic, counsel
10 assigned to the accused Hazim Delic.
11 THE PRESIDING JUDGE: Are you ready to proceed, Mr. Karabdic?
12 MR. KARABDIC: Yes.
13 THE PRESIDING JUDGE: Appearances for Mr. Landzo, please?
14 MR. BRACKOVIC [In translation]: Mustafa Brackovic, lawyer from
15 Sarajevo, assigned to the accused Esad Landzo.
16 THE PRESIDING JUDGE: Mr. Brackovic, are you ready to proceed for
17 Mr. Landzo? Are you ready to go forward with these motions?
18 MR. BRACKOVIC: Yes, I am, your Honour, quite prepared.
19 THE PRESIDING JUDGE: Thank you. May I have the appearances for the
20 Prosecutor, please?
21 MR. OSTBERG: Good morning, I am Eric Ostberg appearing today with my
22 co-counsel Mrs. Teresa McHenry and our case manager, Miss Elles
23 Van Dusschoten.
24 THE PRESIDING JUDGE: Are you ready to proceed, Mr. Ostberg?
25 MR. OSTBERG: Yes, I am, your Honour.
26 THE PRESIDING JUDGE: Thank you. We received a request from the
27 Prosecutor to conduct these proceedings by delayed
28 transmission. What that means is that there will be a delay of
1 30 minutes for the actual transmission to go out. I have signed
2 an order granting that request. So I wanted to tell the parties
3 that we will be proceeding that way. The purpose is to protect
4 and guard against any inadvertent mention of protected witnesses
5 or persons who have asked that their names be withheld from the
7 We have read the papers, the motions that have been
8 filed, and we have considered them very carefully. I have read
9 them carefully, each of the Judges have read them carefully. So
10 in the oral arguments today we would request that you do more
11 than just read us back the motion that you filed, because we
12 have already, each of us individually, read the motions. So we
13 do not want just a repeat of what is in the motion because we
14 have already read it. We want you to emphasis any points that
15 you consider are particularly important, and that relates to
16 counsel for the accused as well as the Prosecutor.
17 We have set aside time to hear these four motions
18 until 1.00 p.m. Today. Then, as you know, this afternoon at
19 2.30 we will have the status conference. So we would encourage
20 the parties to move expeditiously so that we may hear oral
21 arguments on the four motions and complete the oral arguments by
22 1.00 p.m.
23 I have nothing else preliminarily, so why do we not
24 proceed then with Mr. Delic's motion for provisional release?
25 Mr. Karabdic, are you ready to proceed?
26 MR. KARABDIC: Yes.
27 THE PRESIDING JUDGE: Fine, then you may.
28 MR. KARABDIC: We submitted a motion for provisional release and we
1 explained it by exceptional circumstances relating to the family
2 circumstances of Mr. Delic. We also pointed out that Mr. Delic
3 was ready to offer whatever guarantees might be needed that he
4 would appear before the Court for trial, and that the State of
5 Bosnia-Herzegovina has issued guarantees to that effect, that
6 is, that he would be present whenever summoned by the Tribunal.
7 The Prosecution replied to our motion with several
8 remarks which we find unacceptable. To begin with, he said that
9 the circumstances were in no way special. As for these
10 extraordinary circumstances, I need to say that these provisions
11 could not apply here and that one needs to apply general
12 provisions from international law.
13 I should only like to quote the International Covenant
14 on Civil and Political Rights of 1966 which says, and I shall
15 read it in English: "It shall not be the general rule that
16 persons awaiting trial shall be detained in custody", and so on,
17 "but release may be subject to guarantees to appear for
18 trial". It clearly says that one cannot stay in prison awaiting
19 trial as a general rule, that it applies to everyone and that
20 the release pending trial, until trial, may be conditioned only
21 on guarantees provided that the accused will appear before the
23 A similar provision can be found in the European
24 Convention on Political Rights, the Convention for the
25 Protection of Human Rights and Fundamental Freedoms, which in
26 its Article 3, Article 5, paragraph 3 says -- I shall read it in
27 English again:
28 "In keeping with provisions of paragraph 1, shall be
1 entitled to trial within a reasonable time or to release pending
2 trial. Release may be conditioned by guarantee to appear for
4 The Rules of Proceedings and Evidence introduce a
5 provision that any person accused before this Tribunal needs to
6 be detained and may be released only under extraordinary
8 I believe that this provision of the Tribunal's Rules
9 is a contravention of the general rules on human rights and that
10 the provisions on human rights also apply to those accused
11 before this Tribunal. Therefore, I believe that this provision
12 from the Rules on the extraordinary circumstances should not be
13 applied and that the Tribunal should apply directly these
14 International Covenants and Conventions on the right of every
15 man when accused to be released pending trial.
16 Both these regulations say that a trial must be
17 ensured and that is a condition for provisional release within a
18 reasonable period of time. This is by no means a reasonable
19 time. I am referring to the time since which the accused has
20 been in prison. My client has been in prison since 2nd May when
21 he was detained by the Bosnian court and here since 13th June.
22 This is too long to keep him imprisoned.
23 Moreover, it is difficult to say when the trial will
24 start. I believe, therefore, that it is his inalienable human
25 right to be released pending trial and he is ready to provide
26 any guarantees needed that he will appear for trial.
27 The second thing that the Prosecution points out is
28 that we do not have the consent of the host country of the
1 Netherlands government, that we do not yet know their opinion.
2 I do not think that this Rule can stand either because the right
3 to be released pending trial is a human right, and it cannot
4 depend on the will of a state or state agencies or a state
5 authority whether that person will exercise that right or not.
6 The United Nations and the Secretary-General were
7 bound to ensure the enforcement of rules, of regulations, on
8 human rights for persons accused before courts and that is their
9 right to be released pending trial, and if they fail to do so,
10 that should in no way interfere with the right of my client to
11 be released.
12 I think that the provisions of these International
13 Conventions are also binding on the Dutch government and that,
14 in compliance with these Conventions, it should allow my client
15 to be released to live here, to reside here, pending trial and
16 then to appear for the trial.
17 While respecting the orders of the Court, I shall also
18 show which are the extraordinary circumstances. As we have
19 already pointed out in the motions, I think that these are
20 extraordinary circumstances indeed. In these difficult times,
21 the man has been detained ever since 1994. It is quite evident
22 that he has very many problems at home, and that the
23 circumstances, his family conditions, are a great burden to him
24 and he needs to be with his family. These are, indeed,
25 extraordinary circumstances.
26 It may not be so if one looks at the family
27 circumstances of a Dutchman, say, but if we take into account
28 the circumstances of all the Bosnians there and what we went
1 through during these four years, it is evidently indispensable
2 that he joins his family so as to help them, that after this
3 frightening cataclysm that we went through in this war to help
4 them somehow settle and start a normal life once again.
5 This war has disrupted the lives of all of us and we
6 need a lot of effort to settle, to calm down and start leading
7 normal lives again; no doubt, Hazim's children and wife need
8 this most of all in view of all the horrible things that the
9 Bosnian people went through.
10 Furthermore, I have also indicated other extraordinary
11 circumstances, and that is that the mother of the accused is
12 severely ill and that it is a question of whether she will live
13 for much longer and that her son should be with his mother, both
14 for his own sake and for his mother's sake.
15 Furthermore, the accused Hazim Delic is a sick man,
16 and I am requesting that a report be asked from the prison
17 physician. He is suffering from various ills. He has very bad
18 injuries in his leg, he has very bad pain in his leg, due to the
19 herniated disc and he, by all accounts, needs an operation. He
20 has such pain that he screams, cries out, and asks for help.
21 According to what I have heard, he is given some drugs which
22 seem to be narcotic drugs because he tells me that he feels as
23 if he were flying and things like that. Therefore, I do think
24 he should be released so he can be treated properly and so he
25 can undergo surgery if the physicians find that it is necessary.
26 Furthermore, the Prosecutor then referring to our
27 motions says that we have not proven that our client will not
28 escape, that he has been charged with very severe crimes and so
1 on and so forth. But I should like to say that the burden of
2 proof is not on us, and any person, and even those accused
3 before this Tribunal, are innocent unless proved otherwise.
4 Even though Judge Jorda confirmed the indictment
5 against Hazim, it does not mean that Hazim is guilty. He still
6 needs to be treated as an innocent person until sentence is
7 passed and until that sentence becomes final.
8 The Prosecutor may not request from us to prove that
9 he will not escape. He is the one to show whether there are any
10 reasons for the slightest doubt that my client intends to
11 escape. I do not think so, and the Tribunal is trying to turn
12 the tables on us. If the Prosecution insists on this, then
13 I believe the Prosecution needs to prove that. I do not think
14 there is anything to show that.
15 The only other thing I wish to point out is that my
16 client was not arrested, that he responded to summons, and he
17 responded to summons and when did that without an arrest warrant
18 he came from Orahovica to Konjic, from Konjic to Sarajevo. Only
19 upon arriving in Sarajevo was it decided that he should be
20 detained. Had he wanted to run, he would have done so earlier.
21 I, therefore, believe that this cannot be attributed
22 to him. He responded to the summons of his own free will on
23 that occasion and he will do so if invited to appear before the
24 Court whenever necessary.
25 The Prosecutor says that the guarantees issued by the
26 State of Bosnia-Herzegovina that the accused will appear for
27 trial, rather, the Prosecutor deprecates the importance of these
28 guarantees. I think it is offensive to our State, such an
1 attitude, to guarantee which state recognised in this order,
2 recognised by the international community, to belittle, to think
3 so little of the guarantees issued by such a State. I think it
4 is tantamount to an insult.
5 The State of Bosnia-Herzegovina, like all other
6 States, needs to enjoy respect and to be treated as any other
7 State. The State of Bosnia-Herzegovina was able to bring him
8 when the Tribunal requested that. Again it shall also be able
9 to do so when the Tribunal requests that he appear again before
10 Court in due time. I think the Prosecution's view that the
11 guarantees issued by the present government may not be
12 recognised by the government to come like seriousness. I think
13 it is not serious.
14 We know what the Dayton Accords are and we know that
15 the Dayton Accords and that the State of Bosnia-Herzegovina has
16 a continuity and has been recognised since April 1992, and that
17 it shall also maintain its legal sovereignty and its legal
18 person even after the elections. Of course, some authorities
19 may change, but these authorities recognise and must recognise,
20 they must assume and will assume, by Dayton Accord all the
21 commitments of the State of Bosnia-Herzegovina, which the State
22 of Bosnia-Herzegovina had assumed in the period before these
24 That would be all that I would have to say. I wish
25 to draw to a close and say that, as has been said, my client's
26 motion is justified and that he should be released. We now
27 leave it to the Court to determine whether these guarantees
28 suffice or whether additional guarantees are needed. We are
1 ready to do all within our power, but we do not think that this
2 is necessary and that what we have supplied so far is quite
3 enough. Thank you very much.
4 THE PRESIDING JUDGE: Thank you very much. Who will respond for the
5 Prosecution? Ms McHenry?
6 MS McHENRY: Your Honour, I will. Your Honours, I would just like to
7 briefly respond to some of the points raised by the Defence in
8 their argument. With respect to the remainder, we will rely on
9 our prior papers.
10 The first thing is that the Statute of this Tribunal
11 and the Rules have a presumption that someone will be detained.
12 It is the accused's burden to overcome that presumption. That
13 presumption in the Tribunal's Rules and Statute are in full
14 conformity with international standards in so far, in this case,
15 as very specific, well founded and essential reasons for the
16 detention exist, thus justifying release only in exceptional
18 Here the accused has not been able to meet any of the
19 requirements set out in our Rules. The only argument put
20 forward in the written papers of the accused has to do with the
21 accused's family. Given that every accused has family, we do
22 not believe that this can in any way be considered exceptional.
23 With respect to some of the other things the Defence
24 said today, to the extent that the accused has been incarcerated
25 for most of the time since 1994, it is not because of this
26 Tribunal's proceedings; it is because in his own country he was
27 convicted of murder and was serving a sentence for which he
28 eventually was released pursuant to, I believe, a general
2 With respect to the medical circumstances of the
3 accused, this is the first that the Prosecution has heard about
4 these. We know that the Registrar is in charge of the accused's
5 medical care. We would just respectfully suggest that if the
6 Defence wants to follow this up, they ask for a written report
7 from the Registrar from an appropriate medical practitioner
8 about the exact situation. But certainly there is nothing in
9 this record which would demonstrate exceptional circumstances
10 that would justify any kind of release.
11 With respect to the question, will the accused appear
12 for trial, we note that there are no specific practical measures
13 proposed that would provide any kind of assurance that this
14 accused would appear. This is again not acceptable. We will
15 note that the accused did not turn himself into the authorities
16 after the arrest warrant was returned, despite the wide
17 publicity, especially in this area, given to the indictment and
18 the arrest warrants.
19 Apparently, eventually, after some six weeks or so
20 when the authorities made some effort to get him -- I do not
21 know the full circumstances, but at least after some period of
22 time they did gain custody of him. After being taken into
23 custody, the accused fought his extradition to The Hague,
24 including appealing to the Supreme Court. Now that he has been
25 here and has seen some of the evidence against him, we suggest
26 that there is even an increased risk of flight.
27 With respect to the assertion that Bosnia will ensure
28 that the accused is available to the Tribunal, as we have stated
1 many times, the Tribunal is very grateful for Bosnia's
2 co-operation with the Tribunal. Certainly our suggestion that
3 the guarantee is not sufficient is not any sort of insult or
4 anything else to them. But it must be noted that it appears
5 that the report is that they will comply with their legal
6 obligations to turn over the accused if they are able to find
7 the accused in his home. There are no assurances, however,
8 regarding how Bosnia or even this Tribunal could be assured that
9 the accused would, in fact, remain in his house.
10 Further, we note that there are a number of
11 outstanding issues regarding Bosnia's ability to turn over the
12 accused. These issues are complicated by the new political
13 structures after Dayton and after the recent elections. Thus,
14 with all due respect, we believe that before this Chamber would
15 rely on the document issued by Bosnia, an official
16 representative of the Bosnian government should be asked to
17 speak on the record regarding the assurances that they are able
18 to give. The Bosnian representative could be heard in official
19 court session, thereby assuring all parties are aware of the
20 facts relied upon, assuring that the parties have an opportunity
21 to explore relevant issues and, finally, ensuring that a full
22 record exists in the event of a subsequent appeal or later
23 problems about what was agreed to.
24 With respect, finally, to the question of whether the
25 accused would pose a danger to victims and witnesses, the
26 Prosecution would first point to the allegations in the
27 indictment which detail an horrific set of crimes, including the
28 accused's personal participation in murder, torture and rape.
1 These allegations alone should be sufficient to indicate that
2 the accused poses a danger to victims and witnesses.
3 In addition to those allegations, we note, among other
4 things, that the accused is a convicted murderer in his own
5 country, that no specific protections regarding his movements
6 are offered, and that the accused is aware of the identity of a
7 number of victims and potential witnesses.
8 THE PRESIDING JUDGE: We received or, at least, I received a
9 guarantee this morning. I suppose we can ask Mr. Karabdic some
10 questions about that.
11 MS McHENRY: Thank you very much, your Honour.
12 THE PRESIDING JUDGE: Thank you very much. We have listened to your
13 oral presentation. As I indicated, we did read the papers.
14 Judge Stephen, do you have questions?
15 JUDGE STEPHEN: I did have a question to ask of Defence counsel:
16 Looking at the guarantee, I see on the second page, the second
17 last paragraph of the guarantee does not make sense in the
18 English language. It refers to the delegation of Esad Landzo,
19 that he will up to the determination of the procedure before the
20 Tribunal stay in his house. Am I right in understanding the
21 word "delegation" is intended to mean the agreement or promise
22 of Landzo to stay in his house?
23 MR. KARABDIC: I must say that I gave the original to the Tribunal, I
24 have given the original to the Tribunal, but it certainly means
25 yes, the undertaking. But let me say something in connection
26 with what the Prosecutor's counsel has said, I would be very
28 JUDGE STEPHEN: Perhaps before you do that, if you could clearly
1 answer the question? "Delegation" is to be understood by us as
2 the promise or undertaking so that the guarantee is conditional
3 on the undertaking of your client to stay in his house, is that
5 MR. KARABDIC: I think that we speak about both the promise and the
6 obligation on my client to stay in his house and the obligation
7 of the State of Bosnia-Herzegovina, that it will make sure that
8 he stays in his house and that it will pay attention to the fact
9 that he must come to the Tribunal when summoned. If necessary,
10 I can perhaps translate because I have not got the original
11 Bosnian text with me, but I can perhaps interpret it from the
12 English text? Probably the translation was wrong and the
13 official translator might have been using the terms which are
14 not the best in the legal terminology.
15 JUDGE STEPHEN: It is the second last paragraph, if you would turn to
16 it? Do you see the second last paragraph? It begins "This
17 guarantee has the full validity".
18 MR. KARABDIC: "This guarantee", yes.
19 JUDGE STEPHEN: Then it goes on ----
20 MR. KARABDIC: I will read to you the Bosnian original and it will be
22 "This guarantee has the full validity if the
23 International Tribunal decides to temporarily, provisionally
24 release Esad Landzo and makes it possible for him to defend
25 himself from freedom with this statement" -- there is a misprint
26 here, there seems to be a misprint -- "given the undertaking of
27 Hazim Delic that until the end of the Tribunal proceedings it
28 will stay in his house". This is the first time we said "Esad
1 Landzo" and it should actually stand not "Esad Landzo" but
2 "Hazim Delic". So that Hazim Delic should be temporarily
3 released and defend himself from the state of freedom with his
4 undertaking that until the end of the proceedings he will be
5 staying in his house at Orahovica, a community of Konjic.
6 JUDGE STEPHEN: Thank you.
7 MR. KARABDIC: It was a misprint, but the meaning, what is meant,
8 I think, is very clear.
9 THE PRESIDING JUDGE: So Mr. Delic has undertaken then to remain in
10 his house?
11 MR. KARABDIC: Yes. If the Tribunal, Trial Chamber, allows him. If
12 there are any other conditions, if he should be staying in
13 Holland, he is prepared to stay in Holland.
14 THE PRESIDING JUDGE: But the undertaking then of Bosnia-Herzegovina,
15 is that not conditioned on Mr. Delic remaining in his house? By
16 that I mean if for some reason he does not remain in his house,
17 then what is the obligation then of Bosnia-Herzegovina?
18 MR. KARABDIC: Bosnia-Herzegovina will take all the necessary steps
19 to make sure that he stays in his house, in his village. It
20 will take care to see to it that he does not leave the house.
21 That is the obligation of the Bosnian State and it is the
22 obligation on Mr. Delic that he has undertaken that he would not
23 leave his house and his village. That is what he is undertaking
24 to do. The State of Bosnia-Herzegovina will monitor the
25 situation and will, of course, see to it that this undertaking
26 is met.
27 I think it is the usual practice that if somebody has
28 been accused or indicted and has been temporarily released, the
1 authorities will always watch over him to make sure that he
2 stays where he is obliged to stay or that he reports to the
3 police authorities or that the authorities inspect the way that
4 he behaves and what he does and so on. This is the substance of
5 the undertaking of the State of Bosnia-Herzegovina and this
6 undertaking, I think, is a serious one, needs to be taken
7 seriously, and both important and sufficient guarantee that this
8 will be the case. Thank you.
9 THE PRESIDING JUDGE: Does the guarantee provide that
10 Bosnia-Herzegovina will be responsible for Mr. Delic remaining
11 in his house? Is that how you read the undertaking or the
12 guarantee, rather?
13 MR. KARABDIC: I interpret the guarantee to mean that
14 Bosnia-Herzegovina will take all the necessary steps in its
15 power to make sure that Mr. Delic is in his house, and that the
16 State will take everything necessary, all necessary steps to
17 prevent his flight. But, obviously, he can move around the
18 house and in the village, but he could not travel, for instance.
19 THE PRESIDING JUDGE: Is that stated specifically in the guarantee
20 because I do not see any language that would support that
21 position? Is that said in the guarantee either in Bosnian or in
22 English, or is that your interpretation of the guarantee?
23 MR. KARABDIC: I think it follows logically from the text of the
24 guarantee but, if necessary, we can probably obtain further
25 undertakings or further explanations of what is meant, but that
26 is how I understand, how I read the guarantee, and I think
27 everybody should read it in that same spirit.
28 THE PRESIDING JUDGE: Ms McHenry, would you like to respond to the
1 guarantee issue?
2 MS McHENRY: Yes, your Honour. Not only did we read the guarantee to
3 say that Bosnia's assurance that the accused would appear was
4 premised on the accused's undertaking that he would remain in
5 his house, to the extent that the Office of the Prosecutor has
6 had prior conversations with Madam Vidovic, the official
7 representative of the Bosnian government, when a similar issue
8 was raised with another accused, our understanding is that
9 Bosnia is not able to guarantee that the accused will stay in
10 his house and they do not mean to imply that. Thank you.
11 THE PRESIDING JUDGE: I do not know whether it is appropriate for the
12 Trial Chamber to consider anything regarding the guarantee other
13 than what is written in the guarantee. We have the guarantee in
14 Bosnian and in English. So we will read it and apply our
15 understanding of it.
16 I have just a couple of questions, sir, of you:
17 Mr. Karabdic. Rule 65 of our Rules of Procedure and Evidence
18 provide that, "Once detained, an accused may not be released
19 except upon an order of a Trial Chamber". That is sub-section
20 (A). Subsection (B) provides, "Release may be ordered by a
21 Trial Chamber only in exceptional circumstances, after hearing
22 the host country and only if it is satisfied that the accused
23 will appear for trial and, if released, will not pose a danger
24 to any victim, witness or other person".
25 You have indicated in your argument that international
26 standards provide that detention should be the exception rather
27 than the rule, and that if our Rules provide for the contrary,
28 then our Rules are in derogation of international standards.
1 So my question to you is, has not the European Court
2 of Human Rights in applying the international standards held
3 that you look to the type of crime that the accused is charged
4 with in making this determination? So, is it not relevant,
5 considering that our Tribunal is charged with trying persons who
6 have been charged with the commission of serious violations of
7 International Humanitarian Law -- in this instance, murder,
8 rape, conditions of confinement at the detention, a number of
9 charges that are in the indictment -- for our Tribunal in
10 determining whether or not an accused should be released, is it
11 not relevant for us to look to the type of offence charged and
12 would that not comport with decisions of the European Court of
13 Human Rights?
14 MR. KARABDIC: I think that the international provisions of the
15 international law are very clear and they make no exception as
16 to the right of the detained person to be released and to defend
17 himself from freedom. The rules apply, I believe, also for
18 those who stand indicted before this Trial Chamber.
19 The danger for the victims, the danger for the
20 witnesses and for other persons does not exist. There is no
21 danger. The Prosecution has not given any indication or any
22 suspicion as to this kind of danger. The witnesses are
23 scattered all over the place, throughout the world. They are
24 not in Orahovica. There no witnesses in Orahovica on whose
25 statements the Prosecution relies or the indictment relies. The
26 accused has not shown in any way with his behaviour that he
27 might represent a danger for anybody or to anybody. I,
28 therefore, think that there is no reason for his further
2 It is my firm belief that there are no and there can
3 be no exceptions to the implementation of the rules of
4 international law on release from detention. Neither this Trial
5 Chamber nor the accused before this Trial Chamber can be treated
6 as an exception. Thank you.
7 THE PRESIDING JUDGE: The indictment charges that Mr. Delic was
8 Deputy Commander of the Celebici camp. In the indictment he is
9 charged with the commission of several murders, beatings and
10 other acts which are serious charges at least, and most
11 definitely he is innocent until the Prosecutor proves that he is
12 guilty of each of the counts beyond a reasonable doubt, but my
13 questioning is not focusing on the danger to the victims,
14 potential danger or the alleged danger to the victims and
15 witnesses, but on the nature of the charges, and has not the
16 European Court of Human Rights held that it is permissible and
17 appropriate to look at the nature of the charge? A person
18 charged with pickpocketing, for example -- to use an extreme
19 example -- might be treated differently than a person who is
20 charged with the commission of several violations, serious
21 violations, of International Humanitarian Law. I think you tell
22 me, no. You tell me it does not make any difference, but you
23 correct me?
24 MR. KARABDIC: There is a difference, of course, but I would like to
25 reiterate that the international rules and laws apply also to
26 people who stand accused before this Tribunal. Whether they are
27 guilty or not will be found later in the actual trial.
28 I do not have the decision that you are referring to
1 and I cannot consult it now, but I have here the Universal
2 Declaration of Human Rights and the European Charter. I think
3 that they do not give the Court the right to detain people in
4 prison simply because they have been indicted, simply because
5 there is an indictment.
6 THE PRESIDING JUDGE: Do you believe that the unique circumstances of
7 this Tribunal is a relevant consideration in determining whether
8 or not exceptional circumstances exist? By that I mean this
9 Tribunal has no police force. We are sitting in The Hague
10 thousands of miles away from the place where the accused will
11 be. We, the Tribunal, has faced enormous -- that is probably
12 not even the appropriate word because it is more serious --
13 obstacles from countries because they have failed to execute the
14 arrest warrant. So that although we have issued, I do not know,
15 70 some indictments, the Prosecutor has issued 70 some
16 indictments, after being confirmed by one of the Judges, several
17 countries have ignored their obligation under international law
18 to execute those arrest warrants and we have no police power.
19 Bosnia-Herzegovina, as you have indicated, is in a
20 different situation. They have co-operated in this instance.
21 But, keeping in mind again the guarantee, do you not think that
22 that is a factor that makes our Rules, the Tribunal's Rules, a
23 little different than those that might apply in a national
24 country where the accused is within the borders of the country
25 and there is a police force?
26 MR. KARABDIC: These are problems, of course, that need to be
27 resolved, but they ought to be resolved by those who established
28 this Court and this Tribunal. This question cannot be settled
1 at the expense of the accused, of people who have been brought
2 here before this Trial Chamber. I think that no special rights,
3 no greater rights, appertain to this Tribunal compared to any
4 other Tribunal or any other court. A great deal ought to be
5 discussed about the attitude of the founders of this Tribunal
6 towards the Tribunal.
7 Unfortunately, those who killed almost 300,000 Bosnian
8 people, they are not here in this Trial Chamber, but we have
9 some poor people from another nation who are responsible or held
10 responsible for a few acts simply because the State of
11 Bosnia-Herzegovina is co-operative. While we have very well
12 documented and proved crimes of thousands of people being killed
13 and massacred, these perpetrators are not here because of the
14 political reason and because of the inactivity of the founders
15 of this Tribunal and of the super powers or powers that were
16 involved in its establishment.
17 THE PRESIDING JUDGE: May I ask you a question about Mr. Delic's
18 health? Do you have a report from his physician regarding the
19 status of his health? That is the first question. The second
20 question is, based on your representations, it may be
21 appropriate, if it is possible, for the Registry to request a
22 physician to examine Mr. Delic and submit a report to the Trial
23 Chamber. Would that be permissible with you?
24 MR. KARABDIC: I agree with this proposal, this last proposal, but I
25 have direct contact with the accused and from him I learn that
26 he was ill. I was also informed by the prison management. They
27 told me that he is suffering pain, that he has been asking for a
28 doctor. Also, I have had information from his family with whom
1 he talks over the telephone. He complains of pain and suffering
2 and, obviously, he would not be telling his family unless it was
3 a very serious kind of pain and illness.
4 As far as I can judge, some medical examinations have
5 been undertaken. A specialist has examined him. I also agree
6 with your suggestion that the Trial Chamber should, perhaps, ask
7 for a medical opinion of the prison medical service. I am sure
8 that that examination will prove, quite clearly, that his health
9 is seriously deteriorating, and that this is just another reason
10 for him to be temporarily released.
11 THE PRESIDING JUDGE: As I understand from the papers that have been
12 submitted, Mr. Delic was convicted by a military court in
13 Bosnia-Herzegovina and sentenced to, was it 15 years or 10
14 years, for murder? Is that a relevant consideration for the
15 Trial Chamber in deciding whether or not it considers that
16 Mr. Delic will be a danger to victims and witnesses? I may be
17 wrong about the terms. It may have been 10 years. I really do
18 not recall.
19 MR. KARABDIC: Nine years. Nine years was the sentence, but it had
20 been reduced on several occasions. Mr. Delic was released from
21 the serving of this sentence, which means that the authorities
22 in Bosnia-Herzegovina decided that he represented no danger to
23 the State, to the community, and that he may be free. I think
24 that this is something which we also need to take into account
25 and respect.
26 THE PRESIDING JUDGE: Was that the general amnesty that all convicted
27 persons received or was this something that was directed
28 specifically at Mr. Delic?
1 MR. KARABDIC: All of these decisions were made for Mr. Delic
2 specifically and in these decisions there were some other people
3 involved, but he was mentioned by name in these decisions. So,
4 first of all, the sentence was reduced, reduced on several
5 occasions, and eventually he was released. He was actually
6 released before he had served the full sentence term.
7 THE PRESIDING JUDGE: Is there anything else on this motion for the
8 accused or for the Prosecutor?
9 MS McHENRY: No, your Honour.
10 THE PRESIDING JUDGE: I would like to raise one other matter. There
11 was a motion that was filed on September 26th. It was a motion
12 seeking leave for an additional filing. Does that relate to the
13 form of the indictment? It does. OK. We will talk about that
14 then when we get to it.
15 The next motion that we wish to consider is
16 Mr. Delic's motion on the form of the indictment. Would you
17 proceed, sir?
18 MR. KARABDIC: If I may, I should like my colleague to continue on
19 the same subject, that is in prison, but I may go on, if you
21 THE PRESIDING JUDGE: I do not have a preference. You can talk among
22 you and then we could present -- we could hear .....
23 MR. KARABDIC: All right, I shall proceed. May I?
24 THE PRESIDING JUDGE: I do not have a preference.
25 MR. BRACKOVIC: Excuse me.
26 THE INTERPRETER: Will counsel please switch on the microphone?
27 MR. BRACKOVIC: My colleague thought that I should also be speaking
28 about the provisional release, but you said that we would be
1 discussing it this afternoon in camera, so I just explained to
2 my colleague how were things. It is all right, I accept it, and
3 I shall, therefore, proceed.
4 THE PRESIDING JUDGE: We were going to discuss it in camera, as
5 I understand it, at the preference of the accused, is that
6 correct? Not this afternoon, no, this morning, I meant that.
7 MR. BRACKOVIC: Yes, in closed session. In any event, perhaps I did
8 not quite get you, whether it would be in the afternoon. But,
9 whatever the case, the request was to do it in closed session.
10 THE PRESIDING JUDGE: Very good thank you. Then, Mr. Karabdic, it
11 looks like you have to go first again and this time on
12 Mr. Delic's motion on the form of the indictment. Again we have
13 read the papers. Your argument on the motion for provisional
14 release, I think, was very succinct and to the point and hit the
15 major points persuasively. If you approach this motion the same
16 way, it would be appreciated.
17 MR. KARABDIC: Your Honours, I shall need some more time now and
18 I should like to apologise in advance. When we arrived here to
19 defend, both I and my fellow lawyer and other colleagues from
20 Bosnia, I must say that we were rather taken by surprise when we
21 saw what an indictment before this Court looked like, and that
22 it read counter to some of the ideas that we had before that.
23 I should like to say here that Bosnia is a part of
24 Europe; that in Bosnia we have the European system of criminal
25 proceedings and such a European system has been there in force
26 for over 120 years; that we have quite a long standing
27 experience; that the European criminal procedure was introduced
28 in our land by Austria Hungary which was a rule of law and
1 order, as everybody knows, and did its utmost to see those
2 European standards and rules introduced in Bosnia. So they were
3 and they still are there in force with, perhaps, some slight
5 However, here we came across an indictment which looks
6 quite differently from what we are used to. When we made our
7 objections and motions in this regard, we were always responded
8 that it was a common law system, Anglo Saxon system, and the
9 like. However, personally, I do not think that that is the case
10 because neither the Statute nor the Rules determine that what is
11 called common law ought to be applied in the proceedings.
12 I think that the manner in which these indictments are
13 drawn up is in contravention of the recognised civilisation
14 norms of criminal procedure. We do believe this to be indeed
15 the case. I shall be able to reason this out.
16 Secondly, whenever we made a motion, whenever we had
17 some objection, the Prosecution bombarded us with some decisions
18 and rulings passed in Tadic's case, for instance, or when it
19 comes to motions regarding the accused Mucic, which I simply
20 think to be erroneous. We do not know under which circumstances
21 those decisions were taken. I do not think we can discuss them
22 before this Court. What is even more important, even if these
23 decisions were all right and everything, they cannot be used as
24 precedents in this particular case and what we are advocating
25 before this Court, because neither the Statute nor the Rules
26 have a provision saying that earlier decisions of the Court were
27 binding on the Court or, rather, on the Tribunal with regard to
28 the future decisions, that is, that the Court should be bound by
1 its earlier decisions in some cases yet to come. This is not
2 either the Statute or the Rules. Therefore, I am not going to
3 touch upon all those decisions or all those quotations which the
4 Prosecution has served on us.
5 Thirdly, another thing which came as a surprise to me
6 was the following. The indictment was filed. I also filed
7 motions. The Prosecution replied to these motions. When
8 I studied those motions, I deemed it necessary to respond to
9 them in writing and to express my views in writing. I did so.
10 I think I am entitled to do it in that way under Rule 72 of the
11 Rules of Procedure and Evidence.
12 However, a couple of days ago I received from the
13 Registrar a letter saying that I had not asked for the
14 permission of the Court to submit my response to the
15 Prosecutor's response, and that I should ask for it. I did not
16 have this response and I had only a couple of days at my
17 disposal. So I wrote it the best I could on the basis of that
18 information received from the Deputy Registrar.
19 When I arrived here, I was served the decision of the
20 Chamber of, I believe, 16th May 1996, which determines that
21 whenever a party submits a brief or a motion the other party has
22 the right to respond to it. If one wishes to continue writing
23 and submitting this, then an additional permission of the Court
24 needs to be sought. But ever since we had been assigned the
25 counsel for these accused, nobody informed us about this and nor
26 did we know about this decision.
27 However, when I an analysed this decision I saw that
28 it referred to Article 54 or to Rule 54. However, this Rule
1 refers to specific orders, rather than general rules of
2 procedure, that is, orders in some specific cases. However, a
3 Chamber issues a rule of procedure, but I do not think that a
4 Chamber may do that. It is only all the Judges of this Tribunal
5 who may do so under Article 15 of the Statute. So that I do not
6 know whether my response was accepted, whether it is before the
7 Chamber and whether it will be taken note of.
8 Furthermore, as regards the form of the indictment,
9 there is a provision under Article 84 which says that in English
10 about crimes with which the accused is charged under the
11 Statute. The Tribunal was due to develop this rule further,
12 that is, this rule under Rule 15 and how to apply it. However,
13 as this statutory rule is explained in Rule 47(B), to my mind,
14 differs from the Statute and only confuses the issue.
15 I, therefore, think that the provision under 47(B) is
16 inapplicable. I think it ought to be ignored because what it
17 prescribes is something completely different from what the
18 Statute says. Here we have something of the case and this has
19 no bearing whatsoever, nor does it explain what it refers to,
20 I mean facts of the case, we do not know what that is, because
21 the case is a broad one and it is not clear what it refers to.
22 Then it also says a concise statement, a concise
23 statement that it refers both to the facts of the case and of
24 the crime and the criminal offence which is not true, according
25 to the Statute. The most important thing is that it completely
26 ignores the statutory provision that the indictment must say
27 that somebody is indicted under this Statute. In the Rules
28 there is nothing about that. The Rules abolish this. I,
1 therefore, think that what these Rules do is confuse the issues
2 and make it more difficult to apply the Statute. I thus think
3 this Rule ought to be disregarded.
4 In my view, as specified by the Statute and the
5 indictment, must include facts, that is the facts which mean
6 full description of the offence, the means of perpetration, the
7 manner of the perpetration of the offence, the facts thereof, so
8 that one can, indeed, conclude that a crime as specified by
9 Statute has been committed.
10 I believe that other counsel for the Defence have also
11 moved in this direction, but the Prosecutor somehow tried to
12 evade a response to it in two ways. First, the Prosecution
13 referred to the Article which speaks about the rights of the
14 accused, that he needs to be notified of the nature of the
15 indictment and so on and so forth, which is something completely
16 else, which talks about the human rights and so on and so forth,
17 rather than an act, a procedural act, such as indictment.
18 Secondly, the Prosecution also tried to avoid this
19 issue by saying that the particulars ----
20 JUDGE STEPHEN: I wonder if I can interrupt you for a moment? I do
21 not follow what you are saying about the inconsistency between
22 the Rules and the Statute because I look at Article 18.4 of the
23 Statute and it seems to be word for word the same as Rule 47(B),
24 containing "a concise statement of the facts and the crime or
25 crimes with which the accused is charged under the Statute".
26 I read the Statute. I then look at 47(B) which you attack and
27 it says, "... a concise statement of the facts of the case and
28 of the crime with which the suspect is charged". What is the
1 point you are making?
2 MR. KARABDIC: Maybe I was not clear enough, but the facts and words
3 are completely different and Article 18.4 and Rule 47(B) sound
4 differently. In 47(B) there is another added word which is "of
5 the case" which is not clear and which says nothing. There is
6 also an "and" added. As it is worded here, what derives from it
7 is that the concise statement relates both to the facts and the
8 crime, that the concise statement also relates to the crime.
9 That is according to the Rules. The Rules also do not have this
10 wording under the Statute. To my mind, this is of paramount
12 THE PRESIDING JUDGE: I understand your position, but 47(B)
13 says, "... concise statement of the facts of the case", and you
14 are correct that is not in 18.4, but then it goes on to
15 say, "and of the crime with which the suspect is charged". Of
16 course, 18.4 does say "crime". It also says "facts". Your
17 position is that the words "of the case" is something new that
18 is in 47(B) that is not in 18.4. You are correct. If I were to
19 read that, I would -- well, maybe I should not make a judgment
20 so quickly, it seems to be broader, that is, 47(B) may place a
21 greater obligation on the Prosecutor than 18.4 in the Statute,
22 because it makes them give a concise statement of the facts of
23 the case and of the crime; whereas 18.4 just says "a concise
24 statement of the facts and the crime or crimes".
25 But I guess your position is that to the extent that
26 the Trial Chamber relies on 14(B) and 14(B) places a lesser
27 obligation on the Prosecution, then that is ultra vires, or
28 47(B) is because it contradicts the Statute.
1 So the question is whether 47(B) places a lesser
2 requirement on the Prosecutor in terms of what it must allege in
3 the indictment and whether the Trial Chamber is accepting that
4 lesser standard, if there is one, in 47(B) as opposed to 18.4.
5 MR. KARABDIC: I think that the Statute enjoys primacy and that the
6 Tribunal ought to apply the Statute, and the Statute says that
7 the indictment must follow the Statute. I think that a concise
8 statement, at least as one reads the Statute, pertains only to
9 the facts, nothing else. When one reads the Rules, the concise
10 statement refers also to the crime, not to mention that it
11 disregards a specific provision of the Statute that the
12 indictment must follow the Statute, that is, that the indictment
13 must make reference to the Statute.
14 In my view and on the basis of legal practice and the
15 standards applied in the civilised world, the indictment in its
16 factual part must contain a full description of the crime, and
17 in the part about the crime it must contain the definition and
18 description of the crime under the Statute or, rather, under
19 international treaty in this particular case. I can explicitly
20 say that the Prosecutor did not abide by this Rule.
21 But I also wish to say another thing -- I have tried
22 to do that and your Honour interrupted me -- that the
23 Prosecution tried to avoid answering when counsel for the
24 Defence requested that the facts, that the particulars in the
25 indictment, be indicated. The Prosecution avoided it and
26 replied that the particulars are in the supporting material.
27 I think that such reply is unacceptable and needs to be
1 To begin with, this Statute makes no mention of
2 supporting material whatsoever. Therefore, when the Statute
3 speaks about the form of the indictment, it did not bear this in
4 mind. A indictment needs to be complete, that is, contain a
5 full description of a crime, of a felony, independently and
6 supporting material which the Rules introduced may only be used
7 to corroborate as a proof of what the indictment says, rather
8 than a supplement to the indictment, because we cannot defend
9 our clients from the supporting material. We can only defend
10 them on the basis of the indictment. The Prosecutor must say
11 what transpires from this material and then bring charges. Only
12 then when this is in the indictment can we defend our clients.
13 We cannot defend them on the basis and against supporting
15 I, therefore, opine that this Prosecution's reasoning
16 cannot be accepted. Furthermore, I also said that in my written
17 briefs, and I am not going to repeat that, but nevertheless the
18 indictment lacks precision. Often times, legal terms are used
19 in factual descriptions, rather than say X and Y have
20 perpetrated this or that, legal terms are used, and their
21 factual descriptions, they are only references to the conditions
22 and, therefore, the indictment is not precise.
23 Legal questions arising with regard to this
24 indictment: The International Criminal Tribunal for the former
25 Yugoslavia under Article 1, under Article 1 of the Statute, was
26 established to prosecute persons responsible for serious
27 violations of international humanitarian law. In other words,
28 every crime and every count of the indictment must be
1 accompanied by statements saying which provision of
2 international law has been violated, because that is the right
3 of every accused.
4 I can refer here to the International Covenant on
5 Human Rights. I read it: "No-one shall be accused for crimes
6 which were not crimes under domestic or international law at the
7 moment of their perpetration, nor can a sentence be pronounced",
8 etc., etc. I am not going to read any further. This is Article
10 The Prosecutor has many counts and where he only
11 refers to a provision of the Statute, but the Statute does not
12 prescribe criminal responsibility. All the Statute does is
13 pronounce the competence of the Tribunal. The Statute relates
14 to the procedural rather than to substantive law. The Statute
15 says that somebody may be brought for trial if he committed a
16 serious violation of International Humanitarian Law and so on
17 and so forth, but were summoned to be brought for trial in
18 addition to statutory provisions, one must also make reference
19 to provisions of international law which were violated, because
20 so and so only may the competence of this Tribunal be placed on
21 solid grounds.
22 I realised in time that my motion was a motion
23 relative to the competence of the Tribunal because the
24 Prosecution did not offer evidence, nor did they indicate the
25 grounds on the basis of which this Tribunal should act upon,
26 that is, the Tribunal can act only if somebody is accused for
27 serious violations of international law, and in more than half
28 of the counts the Prosecution only refers to the Statute which,
1 to my mind, is impermissible.
2 When I made my motions, I indicated this to the
3 Prosecution and the Prosecution admits that that is so, but does
4 nothing and still insists that is a proper form of the
5 indictment and this is the indictment with which one has to go
6 for the trial. I mean, he does nothing. He recognises that
7 this is not right and yet proceeds to do as before, and this
8 cannot be done. This is not done. I am sorry. Excuse me for a
10 Secondly, the Prosecutor has several counts which
11 I think are quite groundless. He charges a man for the
12 violation of the Statute as one count and, as another count,
13 severe violation, grave breach of the Geneva Conventions are
14 committed in law, all violations of laws and customs of war.
15 When this is objected to, then he says he can be sentenced twice
16 for these things, but I do not think that this can hold water
17 and it cannot do so, because we are talking about one crime and
18 not two counts, anything that this issue needs to be resolved in
19 the pretrial proceedings.
20 Perhaps I may have omitted some of the arguments but
21 they can be found in my written brief. I wish to point out one
22 more thing and that relates to the background to the basic
23 data. In the indictment the Prosecutor proceeds as if in this
24 case this was an inter-ethnic conflict, and as though Bosnian
25 Croats and Muslims had attacked Bosnian Serbs, that is, he draws
26 a sign of equality between the conduct of all parties, that is,
27 implying that all sides were the same and so on and so forth,
28 and disregards an important, if not a fundamental, fact which is
1 common knowledge, that the state of Bosnia-Herzegovina was
2 established under the forces which held that those villages
3 indicated in the indictment were the rebel forces, that they
4 were not regular forces, that they were the forces which served
5 the attack on Bosnia-Herzegovina; and that by that very effect
6 Bosnia-Herzegovina was entitled to undertake any possible
7 measures against such people. It was indispensable because
8 those forces held Bradina and Donje Selo. Bradina in the north
9 and Donje Selo in the south. Konjic was so blocked that there
10 was no way through. All the communications with the rest of us
11 is Herzegovina were cut. It is evident, and the State is
12 authorised and the forces loyal to the government of
13 Bosnia-Herzegovina had all the right to occupy and to liberate
14 those areas. It was the liberation of one's own territory.
15 Persons who did that, who kept that, were not
16 civilians. They may have worn civilian clothes, but they all
17 wore arms and they all fought against Bosnia-Herzegovina. This
18 is said even by the witnesses whom the Prosecution intends to
19 call, not to mention a case when a man says, "I came to visit my
20 mother-in-law. It was on the eve of the war. I came to pay her
21 a visit and I was given an automatic", somebody gave him. So
22 everybody was armed, because the JNA armed those people and they
23 were in the service of an outside enemy, of an external enemy,
24 and the State had to act against them.
25 When eventually the State came to that territory and
26 the forces loyal to it, then this State had the right to detain
27 them, to arrest them, under all rules, under its domestic rules,
28 as rebels, as perpetrators, as persons who were in possession of
1 weapons contrary to its stipulations and also under
2 international rules they may not enjoy protection as civilians.
3 Therefore, these provisions in the background or,
4 rather, the background needs to be changed. We cannot accept
5 that. Towards the end, there is a special paragraph which
6 speaks about unlawful imprisonment of civilians because this
7 detention was lawful. They plied their weapons, they attacked.
8 Had it not been done, then the fate of Konjic would have been
9 the same as the fate of Kozarac or Prijedor and other places
10 where well-known tragedies happened which we need not talk about
11 again here.
12 That will be that. I have said a great deal about the
13 form of the indictment, but how does it reflect on the
14 indictment against Mr. Delic, against Mr. Hazim Delic? All
15 I can say is that Delic is accused as Deputy Commander of the
16 camp without any proof whatsoever. I have seen no evidence that
17 he had ever been appointed or anything like it.
18 Secondly, I have seen nothing about why a Deputy
19 Commander should be responsible for what the Commander is
20 responsible for. A Commander is a superior person, so I do not
21 see why a Deputy Commander should be held responsible for it.
22 I cannot see that anywhere and it does not transpire from the
24 Furthermore, I can also say that my client is in a
25 very odd situation. He has been charged twice for one and the
26 same crime. First, there are paragraphs which say that he
27 participated in this or that, and then this and that died.
28 Later on it says, as a superior, he is responsible for that same
1 crime. I think that this nightmare, that one cannot do it that
2 way. In line with what I said before about the indictment,
3 Hazim Delic needs to be clearly said what he is charged for as
4 an immediate perpetrator, and that is what we will then defend
6 He must also be clearly said what crimes were
7 perpetrated by others and on what grounds is he being held
8 responsible for those acts committed by others. In other words,
9 each one of the counts of the indictment where he is charged for
10 crimes perpetrated by others needs to contain all the
11 ingredients for the crimes of others, plus the facts which will
12 indicate his responsibility for those crimes committed by others
13 and also under which Rule, under which Article, is he being
15 I think that this indictment cannot be accepted and
16 one cannot proceed on the basis thereof, that it needs to be
17 returned to the Prosecution for amendment. If the Prosecution
18 insists on this indictment, then it has to be rejected.
19 Just a moment, please. The separation of accusations
20 is necessary to make a defence possible at all. We do not know
21 what Delic is accused of. All the points in the indictment are
22 such that we cannot respond to them. We cannot defend the
23 accused against them. Therefore, I think that the indictment
24 should be made clearer by separating the charges and only then
25 can Mr. Delic properly defend himself and can actually
26 participate in the proceedings.
27 Let me add also that in making my motions, preliminary
28 motions, I objected to the form of the indictment, but actually
1 my objections are also objections to the competence of this
2 Court. I am not questioning or denying the competence of the
3 Court, but there is no basis in the indictment for making this
4 Court competent to hear this indictment.
5 I, therefore, would now move and add to what I said
6 earlier, namely, first, that the indictment should be rejected
7 practically in all its points and counts because the defects and
8 flaws are present at almost every step in the indictment.
9 Alternatively, the indictment could be sent back to the
10 Prosecutor to remove the defects within a reasonable period of
11 time. I apologise, your Honours, for speaking for so long.
12 I may have also missed some of the things which I wanted to say,
13 but I am prepared to give further explanations if needed. Thank
15 THE PRESIDING JUDGE: The motion seeking leave for additional filing
16 was filed on September 26th. That is the motion that you wanted
17 to file as a reply to the Prosecutor's motion -- as a reply to
18 the Prosecutor's response. This Trial Chamber has entered a
19 standing order which says that all responses are to be filed
20 within 14 days of a filing of a motion. So a motion is filed
21 and then the standing order says responses are to be filed
22 within 14 days. There is no provision in that standing order
23 for the filing of a reply. That is why it was sent back because
24 there is no provision for the filing of a reply. But all we
25 were asking was that a motion for leave to file this reply be
26 filed and that you did.
27 In the reply that you filed, however, to the extent
28 that you are raising jurisdictional issues which were not raised
1 in your first motion, it may not be timely but that is
2 something, I suppose, we can talk about when we return. As to
3 the competence of the Tribunal and the subject matter
4 jurisdiction, over the recess, if you wish, look at the
5 Secretary-General's Report, paragraphs 33 through 36. It seems
6 to me that what the Secretary-General is saying is that the
7 Statute that was drafted incorporates both conventional law and
8 customary international law. To the extent that the subject
9 matter jurisdiction is based on conventional international law,
10 it is only that that has become a part of customary
11 international law.
12 But look at those paragraphs and see if that responds
13 to you because I would like to discuss it. But we will stand in
14 recess for
20 minutes. When we return, we will hear from the
15 Prosecutor. We will then proceed and then hear, perhaps, from
16 the accused again and perhaps again from the Prosecutor and then
17 proceed on Mr. Landzo's motion on the form of the indictment.
18 (11.40 a.m.)
19 (The Court adjourned for a short time)
20 (12.00 p.m.)
21 THE PRESIDING JUDGE: Ms McHenry, will you respond to ----
22 MR. OSTBERG: I will do that, your Honour.
23 THE PRESIDING JUDGE: Mr. Ostberg?
24 MR. OSTBERG: Yes. Mr. Karabdic, indeed, has a broad approach in
25 attacking the form of the indictment, starting with a history of
26 European standards and questioning the foundation in the Statute
27 of the Rules of Evidence and Procedure, and going so far as to
28 trying to convince the Trial Chamber to disregard or ignore Rule
1 47 in which I do not think he will succeed.
2 He is also raising a lot of fundamental legal issues,
3 such as existing international law of which Madam President
4 already briefly dealt or just underlined, to put the submission
5 of the Prosecutor on the record, that the Security Council did
6 not legislate in instituting this International Tribunal, but
7 relied on existing international law.
8 At the end of what Mr. Karabdic said, he said
9 something of the competence of the Tribunal which I really did
10 not understand. Maybe we will have some clarification as to
11 what he meant by that.
12 THE PRESIDING JUDGE: I think what he said is that the Covenant,
13 Article 15, International Covenant, speaks to -- I guess it will
14 be an ex post facto claim, then that our Statute prohibits that,
15 trying of persons if it will result in ex post facto -- trying
16 of persons for violations of laws that did not exist at the time
17 that they committed the offence. He says that what the Statute
18 has done is to create these crimes. That is how I understood
19 his argument, however. So what do you say to that?
20 MR. OSTBERG: I will rely, of course, on our written response to
21 Mr. Delic's motions and highlight some of the questions. This
22 Chamber has already many times dealt with the meaning of the
23 words "concise statement of the facts of the case". In our
24 written response, we have quoted your Honours' decision on the
25 motion of the co-accused Mucic on the same matter. I do not
26 think that you would like me to read it here and now.
27 THE PRESIDING JUDGE: You may read the applicable portion, not the
28 whole decision, please.
1 MR. OSTBERG: This is in our response quoted from case
2 No. IT-96-
21 -T, decision on the accused Mucic's motions for
3 particulars. "The place, the approximate date and the names of
4 the alleged victims are provided. On the issue of the
5 involvement of the accused, the Prosecution asserts that in this
6 case Mucic was the Commander of the Celebici camp and,
7 therefore, had command responsibility", etc. "The direct
8 responsibility charges relate to a prolonged course of conduct.
9 For instance, the inhumane conditions at the camp, the unlawful
10 confinement of the civilians and the plunder of property.
11 "The factual allegations underlying these charges indicate
12 the approximate time period during which the conduct occurred,
13 describe the underlying conduct with specificity and provides
14 some information about the participation of the accused and
16 This is, in the estimation of the Court, giving him a
17 warning of the nature of the crimes with which he is charged and
18 sets out the factual basis of the charges. That, I believe, we
19 have done even in this case. It is the submission of the
20 Prosecution that the indictment now in question is in compliance
21 with the Statute and the Rules and also with the just read
22 statement of this Trial Chamber.
23 Many other questions were raised. I will turn to the
24 questions of cumulative charging adopted by the Office of the
25 Prosecutor. This manner of charging is somewhat unfamiliar,
26 even to me, but it certainly does not mean that the defendant is
27 accused of more than one criminal act. It just means that this
28 act is falling under more than one of the Articles of our
1 Statute. This Chamber has already this time in the Tadic case
2 ruled -- I will just briefly quote -- "What is to be punished is
3 proven criminal conduct and that will not depend on
4 technicalities of pleading". Consequently, this problem will be
5 taken care of when we reach the stage of sentencing.
6 At the end of Mr. Karabdic's oral statement here
7 today, he challenged the correctness of the description of the
8 underlying conflict in which the alleged crimes took place. He
9 contends, as far as I can understand, that the Bosnian forces
10 had the right to attack and imprison the Serbs and the Croats in
11 the villages. However, the issue is not why a conflict
12 erupted. The issue is whether in that conflict International
13 Humanitarian Law was violated. That is what this indictment is
14 all about.
15 Mr. Karabdic also took up the question whether Delic
16 was or was not a Deputy Commander and his superior authority in
17 the prison camp in the Celebici camp. This is, in our
18 submission, a matter of fact and the validity of that fact must
19 be proven at trial and not at this point of time.
20 I will see if I have something more on what we have
21 listened to. I think, your Honours, this is what I find
22 necessary to say in response to what we have heard from
23 Mr. Karabdic. Thank you very much.
24 THE PRESIDING JUDGE: Mr. Karabdic, as I recall, alleged that the
25 indictment was not sufficient because, although perhaps under
26 common law system the pleading would be sufficient, Bosnia is a
27 part of the civil law system, has been a part of Europe for a
28 long time, and there is nothing in the Statute that requires the
1 common law system of pleading be adopted. What do you say to
3 MR. OSTBERG: It is an interesting question, how much of common law
4 and civil law, who have been the fathers of writing this Statute
5 and adopting these Rules. I see ingredients from both these
6 legal systems and I do not think this is a valid way of
7 questioning the indictment, saying that it is not in the
8 parameters of one or another of these systems. The issue is:
9 is it in the parameters of our Statute and our Rules on
10 procedure? That is my submission, that it is.
11 THE PRESIDING JUDGE: Article 18.4, I think it is, lays down at least
12 from the Statute the requirement -- yes, 18.4 -- and so I think
13 that Mr. Karabdic would say: "Well, that may be true, but then
14 when you get to 47(B) there is a different standard".
15 MR. OSTBERG: Yes.
16 THE PRESIDING JUDGE: What is your position regarding that?
17 MR. OSTBERG: As far as I understand from Mr. Karabdic, the reason of
18 the inconsistency should be based on the fact that the word "the
19 case" is not to be found in 18.4 but is found in 47(B).
20 THE PRESIDING JUDGE: Is there a difference? Is there a significant
22 MR. OSTBERG: In my view, there is no difference. I do not think
23 this diminishes or makes greater any of the rights to indict the
24 way we have done.
25 JUDGE STEPHEN: Wasn't there one other point made, that the
26 word "of" appears in 47(B) and "of the crime", so it is a
27 concise statement "of the crime" in 47(B) which does not appear
28 in the Statute and, therefore, "concise statement" only governs
1 what has to appear in the indictment, according to 47 and not
2 according to the Statute?
3 MR. OSTBERG: I have never made any distinction at all, your Honour,
4 in respect of these two ways of putting it. I really find it
5 hard to see any difference. I found 47 well founded in the
7 THE PRESIDING JUDGE: Mr. Karabdic also says that your citings to the
8 Tadic decision, decisions from the Tadic case, are inappropriate
9 because they are not binding precedent.
10 MR. OSTBERG: OK. I noted that and I forgot to say something about
11 it. Of course, there is nothing saying that any Chamber is
12 bound by what another Chamber did, or not even that any Chamber
13 is bound what the Appeals Chamber said, etc. But it is certainly to
14 be considered, as any type of law I am familiar with, as valid
15 guidelines and for the consistency of the way this Tribunal in
16 these different Chambers are dealing, of course, to rely on what
17 has happened before, taking guidance from what has been done in
18 the other Chamber or in previous cases. That is exactly what
19 the Prosecutor does. We read, of course, what happens in the
20 Tadic case and the rulings of this and other Chambers. We take
21 that as guidelines without finding us either bound by it. Thank
23 THE PRESIDING JUDGE: Mr. Karabdic, do you have anything to add?
24 MR. KARABDIC: I did not say at all that the Security Council was
25 behaving as a legislative body and that it established the
26 International Criminal Tribunal. I only said that the Security
27 Council adopted the Statute which established the authority of
28 this Court, its jurisdiction and its competence to proceed to
1 issue proceedings and to try serious grave violations of
2 international law. These grave violations had been defined
3 earlier in the Geneva Conventions, in The Hague Conventions and
4 other international documents.
5 I believe that if the Prosecutor is bringing a person
6 before this Chamber, before this Court, then he must first
7 establish the competence of this Court and this is part of the
8 Statute as the procedural document. After that, he must also
9 quote the appropriate provisions of international criminal
10 documents. They must find the violations and see that a
11 particular act has been defined as a crime. I never said, nor
12 did I attack the Statute.
13 Of course, there may be defects and objections that
14 one could make to the Statute, but this is not our topic today.
15 I only spoke about the Rules and, in my opinion, I think I was
16 justified in saying that the Rules are not in agreement with
17 international law and I would like the Trial Chamber to keep
18 this in mind.
19 I did not say that the Muslims attacked the Croats or
20 the Serbs. I said that the forces of the legal state loyal to
21 the legal existing and recognised state, the forces of a member
22 of the United Nations, these forces loyal to the government of
23 Bosnia-Herzegovina undertook an armed intervention to remove the
24 blockade, to free, to liberate, Konjic and to make access to and
25 out of Konjic possible. This was the reason.
26 The Bosnian forces, the forces loyal to the State of
27 Bosnia-Herzegovina, did not attack the villages because the
28 Serbs lived there. They attacked the villages because in these
1 villages the population blocked the roads and shot at people,
2 made all communication impossible. That is why they were
3 attacked; not because they were Serbs or something else. So
4 this is the main reason for the action that was taken by the
6 Second, I must say to the Prosecutor once again that
7 the Prosecution is evading the answer. They are dallying, they
8 are beating about the bush. Then that is something which
9 I think one needs to say so drastically. If the legal forces
10 are attacking rebels, armed people, it was their duty to arrest
11 them and to detain them. Even the witnesses for the Prosecution
12 mentioned in the supporting material say that. The Prosecution
13 witnesses say: "We fought for three days. We were attacking",
14 and so on. "There were so many of us", and so on. The fact is
15 they rose up in arms against the law and order of
16 Bosnia-Herzegovina and the Republic of Bosnia-Herzegovina is
17 entitled to arrest and detain such people.
18 Now we come do another question whether some mistakes
19 were made, whether incidents occurred, but the actual detention
20 in itself is the right, the legal right, of a State. I think
21 that the item in the indictment which speaks about unlawful
22 detention is wrong and unjustified. I would like to suggest
23 that this should be resolved and shown in the pretrial
24 procedure. There are the UN resolutions which say that Bosnia
25 was under attack. There are reports, and we all know how the
26 situation developed. In other words, if the Bosnian Republic
27 had not been fighting, the question is whether anybody would be
28 here to represent Bosnia. We would have cases like Kozarac or
1 some other cases if it had not been for the action of the armed
2 forces of Bosnia-Herzegovina.
3 JUDGE STEPHEN: Can I interrupt you to ask, you are really directing
4 that in respect of count 48, which is the unlawful confinement
5 of civilians, and also in relation to the statement in the
6 beginning of the indictment where the so-called background is
7 set out. Am I correct in understanding you?
8 MR. KARABDIC: I think you understood me very well. I am speaking
9 about the introduction to the indictment, the background, and
10 the particular point in the indictment -- I do not know the
11 number -- which speaks about the unlawful detention of
12 civilians. This is contrary to the generally known facts. It
13 is contrary to the decisions of the appropriate authorities of
14 the United Nations, and so on. This introduction and this point
15 is actually establishing a sign of coalition between bandits, on
16 one side, and the legal government and authority, on the other
17 hand, which is inadmissible.
18 JUDGE STEPHEN: I suppose one response to that might be: "Well, that
19 is material that will emerge at the trial and you will be able
20 then to deal with it". Because you are really asking us to find
21 facts now and to rule accordingly on the facts that you put
22 forward which, I must say, I have read about elsewhere as being
23 necessarily so.
24 MR. KARABDIC: I think this is not a matter for trial, for the trial
25 proceedings. These are well known, generally known facts,
26 decisions of the Security Council, decisions of the General
27 Assembly, the findings of the various international committees.
28 Bosnia Herzegovina had been attacked, its people had been
1 attacked and they were entitled to defend themselves. I think
2 this is something which is a notoriously known fact which need
3 not be proved as the Prosecution would like us to do.
4 I also think that it is the duty of the Court and of
5 this Trial Chamber in this pretrial proceedings that they should
6 examine the relation between what he says, what the Prosecutor
7 says, the Prosecution witnesses say: "We were fighting. We
8 attacked them. We did not allow them to pass. We did not allow
9 them to cross". That is what the Prosecution witnesses say and
10 this is all in the supporting material. But we all know that
11 the State had at that time been recognised, that it existed,
12 that it was recognised by the United Nations. Therefore, to ask
13 us to prove that there was a state and that that state was
14 entitled to defend itself, I think, this is absurd.
15 THE PRESIDING JUDGE: Is there anything else, Mr. Ostberg?
16 MR. OSTBERG: Yes. I just want to stress once more that there are,
17 of course, different ways to describe and different ways to
18 interpret what happened in the underlying conflict, but we will
19 not lose the focus of the indictment, that is, what happened in
20 this conflict or after this conflict with people who are
21 protected by international conventions and the crimes that are
22 described in our Statute.
23 So we cannot go back and establish as a fact that this
24 happened in this way or in that way. We have to look at what
25 happened and see if we can establish that there was an ongoing
26 international or internal conflict, and then go on from that and
27 focus on what happened to these protected people.
28 THE PRESIDING JUDGE: Thank you. If there is nothing else with
1 respect to this motion, then we will begin to hear -- yes?
2 MR. KARABDIC: Could I say -- I do not know how many times I need to
3 repeat to the Prosecutor -- that these were not protected
4 persons. They were people who stopped other people on the road
5 and said: "You cannot pass". They carried weapons and they
6 attacked other people with these weapons. They are not
7 protected persons. Any authority, any government, is entitled
8 to remove them. People who shoot upon a city, who prevent the
9 supplies reaching the city, cannot be protected persons in terms
10 of any international convention. Once they are detained, then
11 we can speak about the extent of their protection and how they
12 should be protected. But they are not protected at the moment
13 when they still need to be removed and prevented from committing
14 various acts of violence.
15 THE PRESIDING JUDGE: Mr. Ostberg, do you have a position regarding
16 the out of time filing by counsel for Mr. Delic? It is styled:
17 "Reply to Prosecutor response to Delic's motion on the form of
18 the indictment". That was ----
19 MR. OSTBERG: No, your Honour, we do not. We accept this filing and
20 I think I can note that many of the things said in that motion
21 have already been debated here today.
22 THE PRESIDING JUDGE: Yes, that is for sure, but to the extent that
23 it is a challenge to the jurisdiction, as I indicated, it would
24 be out of time, unless good cause were shown. I have not heard
25 and I have not really reviewed the reply closely enough to see
26 whether it is even alleged good cause in terms of why was it not
27 filed earlier. But you have not filed a response to this?
28 MR. OSTBERG: No, we have not.
1 THE PRESIDING JUDGE: It was filed on September 26th. You have 14
2 days, pursuant to our standing order, to file a response to that
4 MR. OSTBERG: Your Honour, I think our position is that we have
5 already responded to it. We had seen this motion beforehand and
6 what happens now in the hindsight is, was it filed properly?
7 THE PRESIDING JUDGE: I see.
8 MR. OSTBERG: So I think we have taken care of all the facts in it
9 already. It is already done and it is incorporated in our
10 written response.
11 THE PRESIDING JUDGE: Mr. Karabdic, why did you not file or why did
12 you not include in the earlier motion that you filed on the form
13 of the indictment these positions, or why did you not file a
14 motion challenging the subject matter jurisdiction of the
15 Tribunal earlier than when you filed it in the reply?
16 MR. KARABDIC: To be very frank, in studying the response of the
17 Prosecutor, it was at that point that I decided that my motion,
18 actually as submitted, was in itself not only the form of the
19 indictment but also an objection to the jurisdiction of the
20 Court, issued proceedings according to such an indictment. The
21 Court cannot have the jurisdiction to work on the basis of the
22 kind of indictment submitted by the Prosecutor.
23 We have presented all the defects of that indictment.
24 From these defects it follows that the Court has no jurisdiction
25 to work according to this indictment. I think I filed my
26 response on 2nd or 1st September. I did not know about your May
27 14th ruling. I did not know about that. So I simply submitted
28 my response after studying the Prosecution's claim. Later,
1 I learned that I needed approval for that. As soon as I learned
2 about that, I actually filed a request for approval which
3 actually should refer backwards to the motion filed earlier.
4 THE PRESIDING JUDGE: The Trial Chamber will act on your request for
5 leave to file this reply as soon as we can, as soon as I can
6 look at it more carefully. We will enter an order with respect
7 to that.
8 Mr. Brackovic, are you ready to proceed with the
9 motion on the form of the indictment on behalf of Mr. Landzo?
10 MR. BRACKOVIC: Yes, I am quite ready to begin my argumentation and
11 the verbal support to the motions that I submitted in writing.
12 The motion contesting the form of the indictment, or rather
13 pointing out the defects in the form of the indictment, under
14 item 1 it says that the indictment is too general, it lacks
15 precision, lacks definition and it is quite vague, both with
16 regard to the nature of the offences with which my client is
17 charged and general things such as factual description and other
18 relevant elements which need to be indicated in the statement of
19 facts such as time, place of the crime and all the other
21 I said there that the statement of facts regarding the
22 commission of the crime and individual points contains wording
23 such as, "Esad Landzo and others" or a group including Esad
24 Landzo and others beat for a long time cruelly a person. Then
25 there is also an objection regarding the wording "Esad Landzo
26 and others".
27 The substance of all these objection is that in view
28 of this phraseology and description of perpetrated crimes,
1 allegedly perpetrated by Esad Landzo, do not allow really to
2 establish the degree of his criminal responsibility or its
3 form. I should like to indicate a principle, that is that every
4 person is individually responsible for acts which he or she has
5 undertaken personally, and that such a person may not be
6 responsible for crimes committed by other persons or for the
7 excesses of another.
8 In his response the Prosecutor refers to a universal
9 legal principle, and that is that several persons may
10 participate in the commission of a crime and each one of them
11 may be individually charged for the crime committed. I go along
12 with this principle. I agree that such a principle does exist.
13 I should, nevertheless, like to supplement it by saying that
14 every person may be responsible for offences, for crimes he or
15 she has committed and may be held responsible only within the
16 boundaries of his or her intent and may not be responsible for
17 the acts perpetrated by accomplices or other participants in the
19 In response the Prosecutor refers to Article 7 of the
20 Statute of this Tribunal which says that: "A person who planned,
21 instigated, ordered, committed or otherwise aided and abetted in
22 the planning, preparation or execution of a crime referred to in
23 Articles 2 to 5 of the present Statute shall be individually
24 responsible for the crime."
25 With regard to this provision, I should like to lay
26 special emphasis on this part of Article 7 which says "or
27 otherwise". The Prosecutor makes it a general provision. The
28 Defence deems that this part of this sentence which says "or
1 otherwise" should be interpreted in a different, in a relevant
2 way, which means in a way which will indicate the causal
3 relationship in an act committed by the accused when
4 perpetrating a specific crime.
5 May I just quote an abstract situation. For instance,
6 if you have several persons, several individuals, participating
7 in a crime and then, for instance, an individual perhaps slaps
8 the person in the face, the second one pulls him by the hair,
9 the third one hits him with a stick on the head, the fourth one
10 uses some other instrument to beat him on the genitals and so on
11 and so forth, and from the affects of such several attacks this
12 person dies.
13 The question arises whether all persons who
14 participated in the physical ill-treatment may be held equally
15 criminally responsible for the killing of that person, that is,
16 whether his contribution to the commission of the crime, whether
17 the person I indicated as the first or the second may be held
18 responsible for the acts committed by the third or fourth person
19 which have a direct causal relationship with the effect or
20 rather with the death of the person subjected to this
21 treatment. I think that there is no such causal relationship,
22 such cause and effect, which could charge the first two
23 individuals in this example.
24 For instance, take another example. If several
25 individuals participate in the battery of a person and each one
26 of them seriously contributed to this felony. However, one of
27 those individuals who also is participating in the beating up of
28 that person, for instance, draws a knife and then kills that
1 person, the question then arises whether all the persons
2 participating in the battery of that person may be held
3 responsible for the crime of murder.
4 Under our criminal law theory and practice it is quite
5 evident that not all those persons may be responsible, because
6 the causal relationship which resulted in the death of the
7 victim is related merely to the act of the person who drew the
8 knife. Under our law the person who used the knife to kill the
9 person would be charged with murder, whereas the other persons
10 would be charged as participants in the battery which is
11 socially unacceptable behaviour and would be tried for that, but
12 they could not be held responsible for the killing of the
14 Therefore, I said that there must be an objective
15 causal relationship between the act which an accused is being
16 charged with and the effect which then follows. However, as the
17 indictment says in the description of facts, I am afraid we
18 cannot find the questions and find answers to them, and we
19 cannot establish the relationship between the conduct, between
20 the behaviour of the accused and the effect mentioned there. So
21 the responsibility of the accused is levelled off, is equalised
22 with the contribution or with what all the other persons who
23 took part in these acts did.
24 I should like also to refer to Article 47(B). Some of
25 the counts of the indictment do not contain some of the
26 fundamental elements relative to the place and time of
27 commission and other circumstances which may be of relevance in
28 this specific case. I shall also point to the evident
1 inconsistency of the Prosecution when moving from one count to
2 the other, as indicated by the Prosecution in their response and
3 especially in the conclusion. The Prosecution says that all
4 counts of the indictment contain a description of the criminal
5 acts, time and place and probably conduct of the accused.
6 However, I shall now go count by count and indicate. For
7 instance, in counts 1 and 2 of the indictment which refer to the
8 killing of Scepo Gotovac, we do not find the place of the
9 crime. We do not know. Will your Honours read carefully this
10 count and this count does not mention the site of the crime,
11 whereas under other counts we find the site of the crime
12 described. But they perhaps have the site of the crime and they
13 lack something else which is again of relevance to a description
14 of that particular crime. For instance, when it talks about the
15 killing of Simo Jovanovic or Slavko Susic, these counts do not
16 indicate the manner of commission or, sorry, Slavko Susic the
17 site of the crime is also lacking, but on counts 7 and 8
18 relative to the killing of Bosko Samoukovic we do not have how
19 the crime was committed.
20 Counts 7 and 8 are interesting, that is again killing
21 of Bosko Samoukovic, because the commission or rather what the
22 accused has done is described. I am going to quote: "On that
23 occasion Esad Landzo repeatedly struck Bosko Samoukovic aged
24 approximately 60 years." That is the description of the manner
25 of commission of the crime, and then it says he died soon after
26 from his injuries. This description is inadequate, especially
27 when such grave crimes are committed which are classified as war
28 crimes before this International Tribunal.
1 JUDGE STEPHEN: I am sorry, may I interrupt you? What is the
2 inadequacy in counts 7 and 8?
3 MR. BRACKOVIC: We do not see how the crime was committed. There are
4 no details. There are no particulars regarding the manner. It
5 only says that the accused repeatedly struck Bosko Samoukovic
6 who died soon after from his injuries. "Several times" may mean
7 three times.
8 JUDGE STEPHEN: What more would you want than that, the number of
9 times he was struck or what?
10 MR. BRACKOVIC: No. In its response to our motion the Prosecution
11 made it sound like a very banal motion and said that the
12 Prosecution need not supply the exact number of blows dealt by
13 the accused. I agree with that, that is impossible, but
14 nevertheless there should be a description such, as for
15 instance, we find under counts 11 and 12 relative to the killing
16 of Slavko Susic. I think that this statement of facts meets
17 minimal requests, the minimal standards of Rule 47(B) when it
18 refers to a concise statement of the facts of the case. Such a
19 statement of facts under counts 11 and 12 perhaps might be
20 meeting the criteria standards of Tribunal. However, under
21 counts 7 and 8 which say that the accused repeatedly struck the
22 victim who soon after died, it makes the crime impossible
23 because we cannot establish the causal relationship between the
24 crime and the effect which ensued from it. It might transpire
25 from this that the accused was a superman and that it would
26 suffice to hit somebody several times for him to drop dead, and
27 "several times" may be three times, not more than that.
28 Then I said that this also relates to counts 5 and 6,
1 that we do not see how the crime was perpetrated, how Simo
2 Jovanovic was killed, but it is not as drastic as it appears
3 when it comes to the case of Bosko Samoukovic.
4 As for counts 11 and 12, I have already said that the
5 site of the crime is not indicated. If you look carefully at
6 this, I do not see where the crime was committed. We may make
7 guesses about where it was, whether it was happening somewhere
8 in outerspace or some unknown country.
9 MR. OSTBERG: May I immediately, so we do not forget it, may
10 I interrupt just to tell ----
11 THE PRESIDING JUDGE: I do not want you to reply right now. Let
12 Mr. Brackovic finish his argument. Go ahead, Mr. Brackovic.
13 MR. BRACKOVIC: In this manner I wish to point out an inconsistency
14 of the Prosecution. In individual counts of the indictment some
15 principles are sometimes met, I mean the ones indicated by Rule
16 47(B), whereas in some other instances that particular principle
17 is not quite met. In some counts of the indictment we have the
18 time and the place of the crime, and then the description of the
19 particular crime is not indicated. Sometimes we have the facts
20 described but then not the time or the place. I think these are
21 some of the fundamental elements which must be included in any
22 statement of facts, especially in view of the crimes and the
23 legal classification of these crimes.
24 I am not familiar with the legal system of the
25 countries from which the representatives of Prosecution come
26 from, whether it suffices to write it like this and to charge
27 somebody with murder. What I can say quite openly is that in my
28 country and in other countries which emerged from the collapse
1 of the former Yugoslavia, such statement of facts is quite
2 inadequate and would have been returned to the Prosecution as
3 such. This statement of facts would be inadequate even for the
4 most ordinary crimes with plaintiffs such as light bodily
5 injuries or verbal abuse and things like that, because they
6 would not be meeting the principle criteria, the principle
7 standards requested by our law and criminal proceedings.
8 I expect that after my argumentation I will hear the response of
9 the Prosecution to my objections and to explain these
10 inconsistencies. I mean again that in some counts we have the
11 site and place of the indictment. In others these are lacking.
12 Somebody else, however, is in.
13 Furthermore, the Defence is not asking for
14 particulars, and the Prosecutor has not interpreted properly the
15 substance of our motion. The Defence is asking for elementary,
16 for basic particulars, on the basis of which one can conduct it
17 in proper manner. That is, we are requesting a minimum and we
18 deem that the Prosecution simply were not even up to that
20 Furthermore, I should like to say regarding paragraph
21 2 of the motion that in this part I might accept the
22 Prosecution's objection, and that the motion relevant to the
23 form of the indictment cannot include the discussion which goes
24 to the particular case. For this reason, I submitted no
25 supplementary motions, or rather I did not try to supplement my
26 motion as I had announced at a status conference on 24th July,
27 because I realised that I would be going into the discussion of
28 the facts and that would be the wrong way to indicate the
1 defects in the form of the indictment. That would not be the
2 right way to go about this. I realised that these things could
3 be successfully discussed only in the course of the trial
5 However, one of the problems of the Defence is that
6 after the confirmation of an indictment the Defence cannot apply
7 for any legal procedural remedies, such as, for instance, to
8 contest the decision of the relevant Judge or in this specific
9 case Judge Jorda who confirmed the indictment. That is for the
10 simple reason that there is an inaccuracy, that there is
11 something stated inaccurately in the response to my indictment,
12 that the killing of a certain Miljanic -- there are several
13 witnesses talking about the killing of a certain Miljanic.
14 I claim, however, there are not several witnesses. When
15 I say "several" I mean at least two or more persons. The only
16 reservation I have concerns the statements of witnesses which
17 were redacted and which we received yesterday. They are numbers
18 27 to 40. For the lack of time I could not go through them.
19 However, let this question be resolved during the
20 trial and the Defence will endeavour to prove that there is no
21 relevant evidence indicating the killing of a person called here
22 a certain Miljanic.
23 The Prosecution, however, states in its response that
24 they have indicated the identity of each and every person.
25 However, the identity of that person is not indicated. That
26 person named Miljanic has both his first and last name and that
27 is a verifiable fact. If one goes through the indictment one
28 can see that.
1 I should like to continue now but to pass to item 3
2 which is more or less of a legal nature. It says that one may
3 be held responsible for one crime only, and that nobody can be
4 held responsible for one crime twice as stated in the
5 Prosecution's response. In the response it is said that there
6 are cumulative charges, or rather that the accused is properly
7 charged with both crimes and he may be found guilty of both
8 crimes. I see no two crimes here. There is only one crime. If
9 a particular person was deprived of his life and if thus only
10 one effect took place, then we can talk about the crime of the
11 depriving of life or murder which, however, can take place in
12 different forms and which may be legally classified in different
13 ways. In this specific case for the killing of one specific
14 person or for depriving one person of life, the accused is
15 charged twice, once for killing that person and the second time
16 for wilful murder. In this specific case I think, without going
17 into particulars, without discussing the facts of that
18 particular case at issue, can we talk about the wilful killing
19 which is a more grave offence and I think that it covers a
20 lighter crime, that is another form of that crime which is
21 classified as a less serious crime.
22 This is the fundamental legal principle that nobody
23 can be tried twice for the same criminal act. This is a
24 universal legal principle. I would like to point out that the
25 objections that I have raised will, of course, appear in the
26 motions of other lawyers coming from the former Yugoslavia
27 because our criminal law and criminal code are different. The
28 criminal system is different from the criminal system upon which
1 the proceedings of this Court are based. This, I think, will
2 give rise to numerous objections and motions because we have two
3 different legal schools at work here, and our school finds it
4 very difficult to accept such a kind of an indictment. We as
5 Defence lawyers would, of course, favour alternative treatment,
6 but not cumulative treatment of crimes. This kind of
7 description and this kind of legal qualification can be given as
8 an alternative qualification. That would be acceptable, more
9 acceptable than the cumulative treatment, but in view of the
10 technology of implementation of our criminal law, even this
11 would be difficult. It might affect the actual sentencing, the
12 severity of the sentence, but we could never actually tolerate
13 two crimes committed at the same time adding up, so to speak,
14 because there is only one consequence.
15 THE PRESIDING JUDGE: You know the indictment was confirmed by Judge
16 Jorda. You mentioned that in your argument. You know that he
17 is from the civil law system. He has his long background in
18 France. But that should not, I suppose, make a difference
19 because the Tribunal is not bound by national systems. So it
20 should not change because of the Judge who confirms the
21 indictment or the Judges who are sitting at a particular Trial
22 Chamber. I think I understand your position, but I just wanted
23 to mention that.
24 We need to stand in recess for lunch now. We still
25 have not heard the motion for provisional release for
26 Mr. Landzo. So when we return at 2.30 we will continue in open
27 session and complete the oral arguments on this motion, hear
28 from the Prosecutor and you can complete yours, Mr. Brackovic.
1 Then we will go into closed session for both the hearing on the
2 motion for provisional release and then we had a status
3 conference too that we wanted to continue. So we will probably
4 have a long afternoon, but I want you to have as much time as
6 We will stand in recess until 2.30.
7 (1.00 p.m.)
8 (Luncheon Adjournment)
9 (2.44 p.m.)
10 THE PRESIDING JUDGE: Mr. Brackovic, had you completed your
12 MR. BRACKOVIC: I would need, your Honour, a few more minutes,
13 perhaps to complete.
14 THE PRESIDING JUDGE: That is fine.
15 MR. BRACKOVIC: I will be referring to point 4. In point 4 of the
16 motion on the form of the indictment, the Defence states that
17 the acts described individually and individual cases of murder
18 or killing, since they happened in continuity and since they
19 happened in a short period of time and that they happened in one
20 place, that they actually represent one extended crime which is
21 known in our legal practice.
22 This, I think, is a universal legal institute which
23 can apply also to this specific case, so that all these acts
24 which are individually described and classified as individual
25 cases of killing could, indeed, have been construed as a single
26 act of an extended kind in view of the natural, logical and
27 legal linkage of the acts making up this one extended act.
28 So I think that the Prosecution is wrong when they
1 deny the existence of an extended crime, a criminal act, but,
2 rather, the Prosecution treats each of these acts separately as
3 noted in the indictment. Each of them is qualified individually
4 and would then have to be tried as individual cases.
5 In connection with my previous objections, these
6 objections stand also in relation to the other parts of the
7 indictment dealing not with murder but with physical
8 maltreatment and so on. I will note that other Defence counsel
9 in this case did the same. Defence counsel for Mr. Mucic, for
10 instance, Mr. Rhodes, actually asked for greater details, for
11 more details, in the description of the acts listed in the
12 indictment, especially focusing on the time, place and manner of
13 the perpetration of the crime.
14 The Prosecution says that all these details are in the
15 accompanying supporting material with the statements of
16 witnesses and so on which accompany the indictment, but I would
17 like to note that this kind of terminology is unknown,
18 especially with respect to the Rules of Procedure and Evidence
19 and with respect to the Statute. Such details would have to be
20 in the facts of the case, and not that the Defence should go and
21 leaf through the piles of supporting material and statements by
23 The Defence does not ask for unnecessary details, as
24 the Prosecution states in their response, but, rather, we ask
25 for a minimum. We ask for the elementary information which is
26 the normal part and parcel of any indictment, namely, the manner
27 of perpetration of the crime, place and time. So my objections
28 which are listed in points 5 and 6 actually relate to the rest
1 of the indictment dealing with torture, inflicting of physical
2 pain and so on.
3 In view of all this, the Defence would like to ask the
4 Trial Chamber to accept our objections, to send the indictment
5 back to the Prosecution for improvement for the removal of the
6 defects or, alternatively, to reject the indictment as unordered
7 and inapplicable in these proceedings. Thank you.
8 THE PRESIDING JUDGE: Mr. Ostberg?
9 MR. OSTBERG: Thank you. Mr. Brackovic is also touching on the
10 question of individual responsibility. I would like to
11 reiterate that if a defendant is charged with criminal acts
12 committed with others, it is never the question of
13 responsibility for what others did; only his own acts in
14 participation in the crime. When it comes to decide if a person
15 taking part in a beating, for instance, leading up to the death
16 of the victim, whether he is responsible for murder or only for
17 the beatings, is of course a question of his intent, which in
18 every case and in every count has to be proven by the
20 Again we have heard the indictment being criticised as
21 vague and the facts given without exhaustive precision. When
22 Mr. Brackovic gave examples, I could not quite follow him. It
23 seems to me that he has overlooked what is stated in the
24 indictment under the general allegations.
25 For instance, the crime in count 1 and count 2 did not
26 take place in outer space; it took place in the Celebici camp
27 which is stated in paragraph 14 in the indictment under the
28 heading "General Allegation" where it says: "All acts described
1 in the paragraphs below occurred in the Celebici camp in the
2 Konjic municipality". So the place is given for the overall
3 indictment. No other crimes than crimes committed in the
4 Celebici camp is in question in this indictment.
5 The examples given, for instance, counts 7 and 8,
6 I look at paragraph 19, and I find that the place is already
7 given in the general allegations, the time is given, the way of
8 mistreating the victim is given, beating him with a wooden
9 plank. It is said that it was repeatedly done by Mr. Landzo.
10 It says he lost consciousness from the blows and that he was
11 taken to facilities where he died and he died from his
12 injuries. To me, I think we by stating all these facts have
13 given enough facts for the Defence to prepare to defend this
14 case. I do not think we need to state more specific details
15 than we have done just now.
16 The Defence also again took up the question of
17 cumulative charges which I already made some remarks about, but
18 I just want to stress again that it is never the question of
19 punishing a person for more than committing one criminal act in
20 each count. This way of charging is just to show that the act
21 in question falls under different Articles in the Statute,
22 not ----
23 JUDGE STEPHEN: You do not mean in each count, do you? You said not
24 more than one act in each count -- in each paragraph?
25 MR. OSTBERG: In each paragraph. I mean in each paragraph. So it
26 would never be the question for the Court, when coming to just
27 judge that act, to find a person guilty or not guilty for this
28 act in question. There was something more .....
1 THE PRESIDING JUDGE: So Mr. Brackovic has said that, the way it has
2 been charged in the indictment, this violates the accused's
3 right not to be tried twice for the same act. It is your
4 position that he would not be tried twice for the same act
5 but ----
6 MR. OSTBERG: He would never be tried twice for the same act. He is
7 tried for one act.
8 THE PRESIDING JUDGE: Murder, for example.
9 MR. OSTBERG: Then we are going to discuss under which paragraph it
10 pleases the Court to quote when sentencing.
11 THE PRESIDING JUDGE: So you would not expect the Trial Chamber then
12 to find -- if the Trial Chamber found that the accused was
13 guilty beyond a reasonable doubt of murder, for example, and it
14 is then alleged in count 1 in violation of the Geneva
15 Conventions or Article 2 and count 3 -- in the next count,
16 Article 3 etc. ----
17 MR. OSTBERG: Yes.
18 THE PRESIDING JUDGE: --- you would not expect the Trial Chamber then
19 to find that the accused has violated both laws, but only one of
20 them, is that what you are saying?
21 MR. OSTBERG: I could just fancy the Court saying: "He committed
22 this act" and then, as it is done in my jurisdiction in Sweden,
23 for instance, it happens that the Court quotes all these
24 different laws or paragraphs under which this behaviour falls,
25 but always keeping in mind that he is not convicted for having
26 committed more than this one crime. Then they give it a name,
27 for instance, murder and can say then it falls also under this
28 and that prohibition, but gives sentencing just for committing
1 one thing, namely, murder.
2 THE PRESIDING JUDGE: Mr. Brackovic says that this would affect,
3 though, the severity of the sentence if the Trial Chamber were
4 to find that he violated both Article 2 of our Statute as well
5 as Article 3, for example -- no, Article 5, that might be a
6 better choice.
7 MR. OSTBERG: It could be for the Prosecutor to argue the graveness,
8 pointing out that he has been violating more than one of the
9 Articles in the Statute, but I think the Prosecutor has to
10 decide whether he, in the first hand, proposes that he is going
11 to be sentenced.
12 I will go on with only one more thing ----
13 THE PRESIDING JUDGE: Why are they not charged alternatively then?
14 Why not? Mr. Brackovic said that it would be less egregious if
15 it was alternative, not that that would please him, but it would
16 be better than cumulative. Why not then charge alternatively,
17 since you do not expect the Trial Chamber to sentence except on
18 one count?
19 MR. OSTBERG: When I first arrived at this Tribunal, I was very
20 surprised by the way of charging. In my jurisdiction, the
21 Prosecutor would choose for what crime to charge and not do this
22 cumulatively, as I know they do in, for instance, the American
23 jurisdiction. I would in Sweden have decided to say he
24 committed this crime. Then I can point out to the Court that he
25 has by doing so also violated other prohibitions in the legal
26 system or in the penal code. But he would never, to my
27 experience, be sentenced for more than one thing, the main
28 thing, that the Court chooses that this is, and then they could
1 quote even in their judgment the other prohibitions which have
2 been violated. I do not think, to come back to your first
3 question, that there is this one act to be judged and ----
4 THE PRESIDING JUDGE: You say you do not think or you do?
5 MR. OSTBERG: My argument was that I just -- I did not quite follow
6 your last question.
7 THE PRESIDING JUDGE: I am sorry. There is one act to be judged,
8 murder, for example ----
9 MR. OSTBERG: Yes.
10 THE PRESIDING JUDGE: --- and you say that it could violate a number
11 of Articles ----
12 MR. OSTBERG: Yes.
13 THE PRESIDING JUDGE: --- and that it should be taken into
14 consideration only at sentencing. But then you also say that
15 the Trial Chamber could find that he had violated the other
16 Articles as well, but in any case you do agree, though, that
17 there would be one act?
18 MR. OSTBERG: Never more than one act. Then I just have one other
19 thing to take up what the Defence lawyer said in his final
20 arguments. I understand he would like to see many of the crimes
21 in counts 1 and 2 -- they are enumerated in his written motion
22 -- to be charged as one extended criminal act. My answer to
23 that is: maybe that it could have been possible to charge in such a
24 fashion. However, the Prosecutor has chosen to charge them as
25 separate acts against individual victims which, in my opinion,
26 it also is. To do so, to choose in what way to charge, lies, in
27 my opinion, in the Prosecutor's discretion and all the counts
28 have been so confirmed. Yes, I think that is what I deem
1 necessary to say in answer to the Defence motion.
2 THE PRESIDING JUDGE: Mr. Brackovic? Do you have anything to add?
3 MR. BRACKOVIC: Yes, I would like to say something in connection with
4 what we heard by the Prosecution. By saying what he said, the
5 Prosecutor actually has recognised the justification of my
6 objection with regard to the cumulative charges. I read in the
7 Bosnian version -- I can read the English version as well, if
8 you like, which refers to what the Prosecutor said.
9 The Prosecutor says on page 5 in section (C) in the
10 second paragraph: "The accused is properly charged with both
11 crimes, and he may be found guilty on both charges". What the
12 Prosecutor has just said goes counter to what he says in the
13 response to the Defence motion in connection with the cumulation
14 of charges, because I think the Defence is just claiming that
15 nobody can be charged twice or accused twice for the same
16 criminal act. In the answer, in fact, in the response, the
17 Prosecution says that the accused can be found guilty of both
18 charges, although this is only one crime, one criminal act,
19 which can be qualified legally in different ways. This is a
20 matter of nuance very often. Once we have an act of killing
21 which can be treated as the basic form of crime, depriving a
22 victim of his or her life, but at the same time the accused is
23 charged also with wilful killing or wilful murder.
24 The Prosecutor will have to decide which of these two
25 qualifications he would endorse. I said earlier that the reason
26 why we have this disagreement is the different technology of the
27 presentation of the indictment. This probably comes due to the
28 different legal systems of the Defence and of the Prosecution.
1 If we relied on alternative statements, that might be better
2 perhaps. But, obviously, the Trial Chamber is not bound by the
3 qualification of the case, legal qualification of the case, but
4 by the facts, description of the facts. So the important thing
5 is that we have the facts right and the legal qualification is
6 only secondary, at least in our system of law.
7 Let me also say in connection with what the Prosecutor
8 has said, referring to the place of the criminal act, the place
9 is not described, although in point 14, paragraph 14, it says
10 that all of these acts took place in Celebici camp in the Konjic
11 municipality. But earlier I made a digression. My intention
12 was not to try to belittle the Prosecutor's work. I respect the
13 Prosecution and also the Prosecutors and Prosecution counsel is
14 present here. But I was referring to Rule 47(B) which says that
15 the indictment will specify the "name and particulars of the
16 suspect, and a concise statement of the facts of the case and of
17 the crime with which the suspect is charged". The place is
18 described in general terms. The action did, indeed, take place
19 in the Celebici camp, but when it comes to describing the actual
20 place of crime, this is not given.
21 I would like to show some other parts of the
22 indictment where the place is, indeed, described. For instance,
23 in counts 5 and 6, dealing with Simo Jovanovic's killing, it
24 says it was in front of the building. Then in Nos. 9 and 10
25 they say that he entered into a detention building. So that
26 means sometimes it is a detention facility, sometimes outside
27 the detention facilities, so we do have a description of place.
28 But in counts 7 and 8, having to do with the killing of Bosko
1 Samoukovic -- sorry, I apologise, this is wrong. I am speaking
2 about counts 11 and 12 and the killing of Slavko Susic, there we
3 do not know which was the place of the crime.
4 So I was, in fact, comparing different treatment and
5 different counts so that I am trying to show the inconsistency
6 of the Prosecution. We cannot understand why in some counts the
7 place of the crime is very clearly described, while in some
8 other counts this has been left out or not given. In fact,
9 I think what we need is a kind of universal principle. The
10 universal principle that the Court should uphold is that there
11 must be always present the basic element, the place, time and
12 concise description of the actions performed in the criminal
14 This had to do, particularly, with the description of
15 the act of crime. In my earlier statement and argument, I said
16 that in some of the counts we do find that the action is
17 described. In counts numbered 9 and 10 it says he used a
18 baseball bat to beat the detainee to death. This is the minimum
19 requirement on the part of the Defence, as far as the manner of
20 the perpetration of the act is concerned.
21 In 11 and 12, for instance, having to do with the
22 killing of Slavko Susic, where it is said that the accused
23 together with others tortured him using pliers, lit fuses and
24 nails; and after being subjected to this treatment for several
25 days, Slavko Susic died from his injuries. If we took this as a
26 paragon, as a model, for the description of the manner of action
27 and the manner of performance of the criminal act, we will find
28 that in some other counts such description is lacking.
1 In counts 7 and 8, having to do with the killing of
2 Bosko Samoukovic, it is simply not enough under any criteria to
3 simply state that the accused repeatedly struck Bosko Samoukovic
4 and then Bosko Samoukovic died as a result of this. This kind
5 of description, describing just several blows, makes us
6 suspicious. The question is whether we can say that there is a
7 causal relationship between such actions and such outcome.
8 Therefore, the Defence asks for a more specific
9 description without going into unnecessary details. I would say
10 we do not ask for the exact number of blows and so on -- of
11 course, this is impossible -- but when it comes to the means
12 with which the action is performed, the Prosecutor had to state
13 in what way, with what means, a particular person was killed.
14 For this reason, the Defence suggests that the Prosecution
15 should be asked to order, revise the indictment in such a way as
16 to satisfy the elementary requirements for such a document. We
17 do not ask for any special details, but we do ask a minimum
18 below which we cannot accept the indictment.
19 Also, we do not accept the Prosecution explanation
20 that the Defence should be sent to go to the supporting
21 materials. Thank you very much, your Honour.
22 THE PRESIDING JUDGE: Mr. Ostberg? Do you have anything else?
23 MR. OSTBERG: Just maybe one thing: where lies the balance between
24 necessary details and a concise statement of the facts, we must
25 find somewhere to do this. We can go on when you prepare an
26 indictment to state all details and facts in a description of an
27 act; you can also find some middle way of doing it. I think
28 this middle way found by the Prosecutor's Office in this respect
1 meets the requirements of Article 18 and Rule 47.
2 So, I think we feel ourselves on firm ground when we
3 give facts like these I took as examples from the indictment.
4 I think we have given concise facts and then we could, of
5 course, have put in more details, but these details can easily
6 be found in the supporting material. Thank you very much.
7 THE PRESIDING JUDGE: Mr. Brackovic, do you have a last word, a final
8 last word?
9 MR. BRACKOVIC: There is always something that the Defence can add -
10 you are right -- but I had something in mind and I forgot it, so
11 let me use this opportunity to say this. The Prosecution in an
12 earlier response said that there should be intent, the intent in
13 the act of killing and so on. I share the Prosecution's view.
14 However, that intent must be mentioned, must be demonstrated and
15 must stem or derive from the facts. From the description of the
16 facts, the intention to kill somebody. From the facts and from
17 the manner of execution, we must be able to deduce that that was
18 present, that the intent was indeed present.
19 In this way, we would avoid the principle of
20 collective responsibility or the collective accountability or
21 the responsibility by the objective situation, so that the
22 accused might have just found himself in a group of people
23 performing such an act. So the intention needs to be stated,
24 needs to be described, and it must logically derive from the
25 actions made and taken by the accused. Thank you.
26 THE PRESIDING JUDGE: Let me ask you, Mr. Brackovic, just one
27 question, and that is what is the relationship of Article
28 21.4(A) to this issue? Article 21 in the Statute of the
1 Tribunal is entitled "Rights of the accused", and 4 says: "In
2 the determination of any charge against the accused, pursuant to
3 the present Statute, the accused shall be entitled to the
4 following minimum guarantees in full equality: (A) to be
5 informed promptly and in detail in a language which he
6 understands of the nature and cause of the charge against him".
7 In your opinion, does that relate to the indictment, nature and
8 cause of the charge against him?
9 Then, of course, 18.4 deals with the responsibility of
10 the Prosecutor and what must be done by the Office to prepare an
11 indictment. Does the indictment, this present indictment,
12 inform the accused of the nature and cause of the charge against
13 him or do you think that Article, Article 21.4(A), does not
14 apply to the indictment?
15 MR. BRACKOVIC: I think that this Article is, in fact, involved and
16 it has to be linked with Article 21(A) and 18.4. Article 21,
17 para. 4(A), the indictment must meet the requirements of Article
18 18.4, to have the facts and the description of the crime and so
19 on. So that once this is done properly, then the accused can,
20 in fact, be informed about the detail, the nature and cause of
21 the charge against him, because this does not derive from the
22 legal qualifications but from the facts and the description of
23 the actions taken, performed, by the accused.
24 The accused is not a lawyer but, as a person who is
25 legally ignorant, will of course understand the facts of the
26 case, but he need not necessarily understand the legal
27 qualification of the charges. So that the accused can
28 understand the nature and cause of the charge against him, it is
1 very necessary that this description, the facts, should be
2 presented and described in such a way that the accused can
3 unambiguously understand the nature and cause of the charges
4 against him.
5 Your question, I think, is very relevant because in
6 this case and in this way, the way the indictment stands now,
7 the accused cannot be considered, informed, about the nature and
8 cause of the charge to the extent that the description of the
9 facts of the case does not have all the details about the place,
10 time and manner of the criminal act.
11 When it comes to the place of the criminal act, the
12 place ought to be described in such a way that it can be
13 specifically identified in a micro-locality. Are we talking
14 about in front of a hangar? In front of the detention
15 facility? In the tunnel? Outside the tunnel? These are the
16 kinds of requirements pertaining to the place of the criminal
17 act. The place must be described in such a way that it can be
18 unmistakably determined, not simply say that it is the Celebici
19 camp. The Celebici camp is too large. The exact place and
20 location of the crime is very relevant also for the Defence
21 before this Tribunal. Thank you.
22 THE PRESIDING JUDGE: Thank you. Mr. Ostberg, do you have a
23 burning -- I do not know how many times we have gone back and
24 forth now, I have forgotten, but in any case we will now go into
25 closed session and hear the motion that will be submitted by
26 Mr. Brackovic. Then we will continue to be in closed session
27 for the status conference. So we will stand in recess for 10
28 minutes in order to convert this to a closed session.
1 (3.20 p.m.)
2 (The Court adjourned for a short time)
3 (3.30 p.m.)