Case No. IT-96-21-T

Tuesday, 1st October 1996

Before:

JUDGE GABRIELLE McDONALD
(The Presiding Judge)
JUDGE STEPHEN
JUDGE VOHRAH

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)

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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

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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

6   proceedings.

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

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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

22   Court.

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

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1   entitled to trial within a reasonable time or to release pending

2   trial. Release may be conditioned by guarantee to appear for

3   trial".

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

7   circumstances.

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

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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

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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

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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

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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

23   elections.

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

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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

17   circumstances.

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

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1   amnesty.

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

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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.

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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

27   grateful.

28   JUDGE STEPHEN: Perhaps before you do that, if you could clearly

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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

4   correct?

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

21   interpreted:

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

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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

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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

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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.

Page 18

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

Page 19

1   detention.

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

Page 20

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

Page 21

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

Page 22

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?

Page 23

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

20   like.

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

Page 24

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

Page 25

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

4   modifications.

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

Page 26

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

Page 27

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,

Page 28

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

Page 29

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

11   importance.

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.

Page 30

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

28   rejected.

Page 31

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

14   material.

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

Page 32

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

9   15.

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,

Page 33

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

9   moment.

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

Page 34

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

Page 35

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

23   indictment.

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

Page 36

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

5   against.

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

14   charged.

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

Page 37

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

14   you.

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

Page 38

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

Page 39

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.

Page 40

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

15   others."

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

Page 41

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

Page 42

1   common law system of pleading be adopted. What do you say to

2   that?

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

21   difference?

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

Page 43

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

6   Article.

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

22   you.

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

Page 44

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

Page 45

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

5   government.

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

Page 46

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

Page 47

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

Page 48

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.

Page 49

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

3   reply.

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,

Page 50

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

20   circumstances.

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,

Page 51

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

18   crime.

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

Page 52

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

Page 53

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

13   victim.

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

Page 54

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.

Page 55

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,

Page 56

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

Page 57

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

19   minimum.

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

Page 58

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

4   itself.

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.

Page 59

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

Page 60

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.

Page 61

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

5   necessary.

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

11   argument?

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

Page 62

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

22   witnesses.

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

Page 63

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

19   Prosecutor.

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

Page 64

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 .....

Page 65

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

Page 66

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

Page 67

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

Page 68

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.

Page 69

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

Page 70

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

13   act.

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.

Page 71

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

Page 72

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

Page 73

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

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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.

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1   (3.20 p.m.)

2   (The Court adjourned for a short time)

3   (3.30 p.m.)