Tribunal Criminal Tribunal for the Former Yugoslavia

Page 77

1 Tuesday, 4 April 2006

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.18 p.m.

6 JUDGE AGIUS: Madam Registrar, good afternoon to you. Could you

7 call the case, please?

8 THE REGISTRAR: Good afternoon, Your Honour. This is case number

9 IT-05-88-PT, the Prosecutor versus Vujadin Popovic and others.

10 JUDGE AGIUS: I thank you, Madam.

11 All right. So let's proceed. I take it that Miletic and Gvero

12 are still on provisional release, so I will address the others.

13 Mr. Popovic, Vujadin, can you follow the proceedings in our own language?

14 THE ACCUSED POPOVIC: [Interpretation] Yes.

15 JUDGE AGIUS: I thank you.

16 Mr. Ljubisa Beara, can you follow the proceedings in your own

17 language?

18 THE INTERPRETER: The microphones of the accused are not switched

19 on. We actually cannot hear the accused.

20 JUDGE AGIUS: Thank you for pointing that out to me. Please make

21 sure that when you answer, when you reply, that you have your microphone

22 switched on. Thank you. However, just for the record, I did hear the

23 witness confirm that he can follow the proceedings in his own language.

24 Drago Nikolic, can you follow the proceedings in your own

25 language?

Page 78

1 THE ACCUSED NIKOLIC: [Interpretation] Yes, Your Honour.

2 JUDGE AGIUS: Ljubomir Borovcanin, can you follow the proceedings

3 in your own language?

4 THE ACCUSED BOROVCANIN: [Interpretation] Yes, I can follow it in

5 my own language, Your Honour.

6 JUDGE AGIUS: Thank you. Mr. Pandurevic, can you follow the

7 proceedings in your own language?

8 THE ACCUSED PANDUREVIC: [Interpretation] Yes, I can, Your Honour.

9 JUDGE AGIUS: And Mr. Trbic?

10 THE ACCUSED TRBIC: [Interpretation] Yes, I can. Your Honour.

11 JUDGE AGIUS: Thank you. So let's go to the presentation. For

12 the Prosecution?

13 MR. McCLOSKEY: Good afternoon, Your Honour. Peter McCloskey for

14 the Prosecutor, and with me are, well, faces that are familiar and will

15 become more familiar, Janet Stewart, our case manager; Antoinette Issa;

16 and Nelson Thayer; and also with us today are Melina de la Garza and Sara

17 Murphy with our legal staff.

18 JUDGE AGIUS: I see that you're striving towards achieving

19 equality of arms.

20 MR. ZIVANOVIC: [Interpretation] Good afternoon, Your Honour. For

21 Vujadin Popovic, Zoran Zivanovic.

22 JUDGE AGIUS: I thank you, Mr. Zivanovic, and good afternoon to

23 you.

24 For accused Beara.

25 MR. MEEK: May it please Your Honour. Christopher Meek,

Page 79

1 co-counsel Nebojsa Mrkic for the accused Beara.

2 JUDGE AGIUS: What's the position of Mr. -- you have been

3 appointed in the position.

4 MR. MEEK: Your Honour--

5 JUDGE AGIUS: You have been -- you have been very simply approved

6 or appointed as co-counsel.

7 MR. MEEK: That's correct, Your Honour.

8 JUDGE AGIUS: And what is Mr. Mrkic's position?

9 MR. MEEK: Mr. Mrkic is a legal assistant from Belgrade, and lead

10 counsel, Mr. Ostojic, could not make it, and he requested that Mr. Mrkic

11 sit in on this hearing. I asked before the hearing if it would be

12 appropriate, and to ask Your Honour, and I'd happily fill out any forms to

13 allow Mr. Mrkic to sit in this Status Conference today.

14 JUDGE AGIUS: Yes, but has he been appointed as legal assistant?

15 MR. MEEK: Legal assistant, yes, Your Honour.

16 JUDGE AGIUS: By the Registrar?

17 MR. MEEK: That's my understanding, Your Honour.

18 JUDGE AGIUS: All right. If that is the case, I won't question it

19 any further.

20 MR. MEEK: Thank you very much.

21 JUDGE AGIUS: I thank you, Mr. Meek.

22 And appearances for Drago Nikolic.

23 MS. NIKOLIC: [Interpretation] Good afternoon, Your Honour. My

24 name is Jelena Nikolic. Together with my colleague, Mr. Stephane Bourgon,

25 we are representing Mr. Drago Nikolic in this case. Thank you.

Page 80

1 JUDGE AGIUS: Thank you, Madam, and good afternoon to you.

2 Appearances for Ljubomir Borovcanin.

3 MR. LAZAREVIC: Good afternoon, Your Honour. My name is

4 Aleksandar Lazarevic, and here by my side is Mr. Miodrag Stojanovic. We

5 will represent Mr. Borovcanin's Defence.

6 JUDGE AGIUS: I thank you, Mr. Lazarevic, and good afternoon to

7 you and to your colleague.

8 Appearances for Miletic, Radivoje.

9 MS. FAUVEAU-IVANOVIC: [Interpretation] Natacha Ivanovic, and I

10 represent Radivoje Miletic.

11 JUDGE AGIUS: I thank you, Madam. Appearances for -- and good

12 afternoon to you.

13 Appearances for Milan Gvero.

14 MR. KRGOVIC: [Interpretation] [No interpretation].

15 JUDGE AGIUS: I thank you, Mr. Krgovic, and good afternoon to you.

16 Appearances for Vinko Pandurevic.

17 MR. HAYNES: Peter Haynes, Your Honour, and Djordje Sarapa. Good

18 afternoon.

19 JUDGE AGIUS: I thank you, Mr. Haynes, and good afternoon to you,

20 too, and to your colleague.

21 Appearances for Milorad Trbic.

22 MS. ROHAN: Good afternoon, Your Honour. Colleen Rohan for

23 Mr. Trbic, and with me is my legal assistant Marina Akinova [phoen].

24 Thank you.

25 JUDGE AGIUS: I thank you, Madam Rohan. Good afternoon to you and

Page 81

1 your colleague.

2 So I appeal for the cooperation of everyone. It's not going to be

3 an easy Status Conference. There are many of us and everyone will have a

4 little bit to say. So if we cooperate, we'll try to bring this Status

5 Conference to an end successfully and within the shortest time possible.

6 The last Status Conference, as you will all recall, those of you

7 who were here, took place on the 10th of November of last year. I, as

8 Pre-Trial Judge, had originally scheduled another Status Conference, the

9 next Status conference, to be held on Tuesday, the 7th of March of this

10 year. However, there were some developments, as a result of which I felt

11 duty-bound not to hold that Status Conference on the scheduled day and

12 appointed today as an alternative. The rescheduling was announced by

13 means of an order that I signed on the 2nd of March, and the reason given,

14 and I can assure you, consisted of unforeseen, very valid and justified

15 reasons.

16 For the sake of the public that follow these proceedings, may I

17 just point out that Status Conferences are held pursuant to Rule 65 bis,

18 and the main purpose of the Status Conference is to organise exchanges

19 between the parties with a view to ensuring an expeditious preparation for

20 trial and, in addition, to give the opportunity to every Accused to come

21 and face-to-face with the Pre-Trial Judge, where issues relating to their

22 mental and/or physical conditions as well as to their state of detention

23 may be freely discussed.

24 In preparation for this Status Conference, I asked my Senior Legal

25 Officer to hold two 65 ter meetings. One was held just prior, the 3rd

Page 82

1 March date, although both Mr. Von Hebel and myself knew at the time that

2 the Status Conference will not follow the day after.

3 And the other one -- the first one took place on the 6th of March,

4 to be precise, and the second one took place yesterday, on the 3rd of

5 April. Mr. Von Hebel has duly informed me of everything that was

6 discussed during these two 65 ter meetings, made notes of same, and I will

7 be referring to some of these matters as we go along today.

8 I will start first with what appears to be outstanding motions,

9 and although in number they seem to be -- they appear to be quite a

10 number, in reality there is much in common with plenty of them, with a lot

11 of them, and I will explain to you how I propose to be dealing, with the

12 utmost of judicial economy.

13 You will recall that on the 11th of November of last year, the

14 Prosecution filed a notice of filing a consolidated amended indictment

15 which contained the text of the joint amended indictment against all

16 accused in the present case. I then issued an order called -- on the 7th

17 of December, 2005, and further to it, all accused were called upon to file

18 preliminary motions in relation to or against the form of the consolidated

19 amended indictment before the 9th of January of this year. All accused

20 except you, Mr. Beara, did so. The Prosecution then filed a consolidated

21 response on the 23rd of January of this year, and in the wake of this

22 consolidated response, we had a number of accused filing a reply in return

23 shortly afterwards.

24 Then came the 22nd of March of this year. We are talking of very

25 recently. And on the 22nd of March, the Prosecution filed a proposed

Page 83

1 amendment to the indictment in relation to one of the accused only, that

2 is you, Mr. Borovcanin. On then the 29th of March, 2006, that's just

3 barely over a week ago, the Prosecution then filed a motion to amend the

4 indictment relating to the 22nd March 2006 Appeals Chamber decision or

5 judgement in the case of Stakic. This motion aims at deleting from the

6 consolidated amended indictment all references to the concept of direct

7 and/or indirect co-perpetration, and to insert instead references to two

8 forms of joint criminal enterprise; namely, the joint criminal enterprise

9 with agreement and joint criminal enterprise with common purpose.

10 Then I will just mention them, I have not had time to go through

11 them because they arrived on my desk today while I was presiding over

12 another case, but I have received today confirmation from the Registry of

13 your appointment as co-counsel, Mr. Meek. I have Prosecution consolidated

14 response to General Miletic's motion for access to confidential materials

15 in the Perisic case and to rejoin the motions of Milan Gvero, Ljubomir

16 Borovcanain, Drago Nikolic, and Vinko Pandurevic. These are tied already

17 to some of the motions that we have.

18 I also received today Vinko Pandurevic's Defence notification on

19 joining the motion of General Gvero for access, confidential information

20 in the Milosevic case. Again, that is connected to an existing -- another

21 motion from General Gvero for access, confidential information in the

22 Milosevic case. That goes with the other. And, of course, these matters

23 will need to be addressed as I prepare the decisions on the outstanding

24 motions.

25 However, I wish to make it clear that I don't think it is the

Page 84

1 right moment now to enter into any debate on all the motions relating to

2 the form of the indictment. There are several, as you all know. It is my

3 intention, instead, to issue later on today in the course of this Status

4 Conference a further oral order for the filing of responses and replies in

5 order to allow me and the Trial Chamber seized with this case to take --

6 to come out with one consolidated decision on all pending motions on the

7 indictment. We have been working very hard on this, but, of course, until

8 the Appeals Chamber decision in the Stakic case we had even a particular

9 motion dealing with co-perpetratorship, so we have done a lot of work, I

10 won't say for nothing, but which kept us from concluding on other issues

11 which now have to be concluded, but I can assure you that the matters, all

12 outstanding matters are being attended to.

13 This oral order that I will give within a couple of minutes will

14 provide also a decision on the response filed by counsel for accused Gvero

15 in relation to the amendment of the indictment on the 30th of March, 2006,

16 which I have here with me in case we need to refer to it, and the motion

17 filed by accused Borovcanin on the 31st of March just a few days ago for

18 an extension of time.

19 I emphasise that this oral order that I'm going to give shortly

20 aims at getting the responses in from the parties, from all the parties,

21 at the same time, on the same -- on both the issue under Rule 50, that is

22 as to whether the Prosecution will be granted leave to amend the

23 indictment, and also the substantive comments pursuant to Rule 72 on any

24 alleged shortcomings in the formulation of the proposed amended

25 indictment. So I'm trying to kill as many birds as possible with one

Page 85

1 stone, and I count on the cooperation of everyone.

2 Having said this, I'm now going to proceed with my oral order. I,

3 Carmel Agius, as Presiding Judge in this case, and in these pre-trial

4 proceedings, having noted all the filings up until now on the form of the

5 consolidated amended indictment filed by the Prosecution on the 11th of

6 November, 2005, considering that judicial economy, amongst other

7 considerations, dictates that the Trial Chamber takes one consolidated

8 decision, not only in relation to all filings relating to the consolidated

9 amended indictment itself but also to all additional and further

10 submissions that I am hereby ordering and referring to in relation to the

11 proposed amendments to -- the Prosecution's proposed amendments in their

12 filings of the 22nd and 29th March, pursuant to Rules 50, 72, 126 bis

13 and 127, I hereby order that, first, all accused will each file a

14 consolidated response to the Prosecution's motion to amend the indictment

15 relating to the 22nd March 2006 Appeals Chamber judgement in the case of

16 Stakic filed on the 29th of March and the accused Borovcanin will also

17 file a response to the Prosecution motion to amend the indictment relating

18 to Ljubomir Borovcanin filed on the 22nd of March before or by Wednesday,

19 the 12th of April, 2006, relating to the issue of amendment pursuant to

20 Rule 50(A)(i)(c) and relating to any alleged defects in the form of the

21 proposed amendments pursuant to Rule 72.

22 Second, the Prosecution will file, if it so wishes, one

23 consolidated reply to the Defence responses by Wednesday, 19th of April

24 2006. It is hoped that after that, the Chamber will then be in a position

25 to issue one consolidated decision which will cover all previous issues

Page 86

1 and submissions that I referred to, plus the new ones following the motion

2 by accused Borovcanin and also the motion by the Prosecution.

3 There is a motion pending from accused Pandurevic relating to a

4 renewed request for provisional release filed on the 30th of January,

5 2006. Now, on this, I am in discussions with the other two Judges in my

6 Chamber, and we will be able to take a decision on this motion in due

7 course.

8 The same applies to similar almost identical motion filed by

9 accused Borovcanin. We are discussing this, and we should be able to take

10 a decision quite soon.

11 Then accused Miletic, on the 21st of March 2006, requested a --

12 filed a motion requesting a translation of the pre-trial brief of the

13 Prosecution into Serbo-Croat, and the time for the accused after the

14 translation -- after translation has been provided to submit the pre-trial

15 brief.

16 There are several other co-accused that have joined in with this

17 motion. I don't need to repeat every single one of them. This is being

18 considered. It has reached a very advanced stage of elaboration. It's

19 being drafted actually, and I assume that we should be in a position to

20 decide it pretty soon.

21 Finally, there is another motion by accused Miletic filed very

22 recently, on the 28th of March of, 2005 [sic], requesting first a

23 translation into B/C/S of two other motions that the Prosecution has

24 announced to file; namely, one being or relating to adjudicated facts, and

25 the other relating to the admission of witness statements pursuant to Rule

Page 87

1 92 bis, and secondly, Mr. Miletic is also asking for time for the accused

2 after the translation has been provided to submit their responses.

3 Again, even if relation to this motion of Miletic, of the 28th of

4 March, several other co-accused have joined in. I don't need to repeat

5 the names. Again, this is also being dealt with and more or less it has

6 reached the same stage as the previous one. It was more or less the same

7 principle is more or less involved, and we hope that when we hand down the

8 decision on the 21st March motion we will be able to hand down our

9 decision on the 28th March motion too, unless I decide to combine them

10 together in one decision, which is very likely what I will opt for. But I

11 still am in the process of thinking about it, because there are some

12 slight differences.

13 All right. Before I move on to the next section, are there any

14 comments from any of you on what I have stated so far before I move on to

15 disclosure matters?

16 I see none. So I come to disclosure matters. I am fully aware of

17 the debate or exchange of discussions that took place during the two

18 65 ter meetings that I referred to earlier, which Mr. Von Hebel provided,

19 and I am only going to dwell on those issues relating to disclosure where

20 I think I either need some updating or some kind of information from you.

21 First relates to disclosure under Rule 66(A)(ii). I am informed

22 that roughly there are about 20 to 25 additional witness statements that

23 are being prepared, and this is further to the forensic experts and 92 bis

24 witnesses, and Mr. Von Hebel was more or less assured or given an

25 indication by you, Mr. McCloskey that disclosure in this category will be

Page 88

1 completed by mid-April. I would like to have a formal confirmation from

2 you that this is so.

3 MR. McCLOSKEY: Yes. We fully intend to try, and it's just a

4 matter of transcriptions and reports. We are very close to meeting that.

5 We keep struggling and trying to take resources from the Krajisnik team,

6 so if you have any pull with the Krajisnik judges that would be helpful.

7 But it's a matter of resources and we are getting close, so I think we

8 will be able to meet that.

9 JUDGE AGIUS: I'll try to give a hand, Mr. McCloskey, but of

10 course it doesn't depend much on me. I know how that Trial Chamber is

11 working at full speed, and I know how limited our resources are but I will

12 try to give a hand.

13 All right. Are there any comments from the Defence side on

14 Rule 66(A)(ii) disclosure, only on that category of disclosure or type of

15 disclosure? I see none.

16 I feel a little bit handicapped by this column here that hides

17 Mr. Lazarevic, his colleague. Ms. Rohan and her legal assistant, I can

18 barely see you. So if you need to attract my attention, please keep that

19 in mind because it's not easy. I mean, I can't see you.

20 So Rule 68 disclosure. Again, I'll be very specific here. I am

21 informed that during the 65 ter meetings or conference of the 6th of March

22 there were discussions between the parties on the issue of the use of the

23 EDS system and the possibility of providing material to the Defence by

24 CD-ROM because of the well known deficiencies in the EDS system. I am now

25 informed, and please I would be happy to have a confirmation of this, that

Page 89

1 during yesterday's 65 ter conference, the parties informed my Senior Legal

2 Officer that the Prosecution will be in a position to provide all 66

3 and 68 -- Rule 66 and 68 material on an external hard disk to the Defence

4 so that they can have easy access to all core documentations for the

5 trial.

6 Do you confirm that, Mr. McCloskey? And do you confirm -- are you

7 happy with that, members of the Defence teams?

8 MR. McCLOSKEY: Yes. There has been a recent agreement to be able

9 to provide a large amount of material directly on a hard disk, which I

10 think is close to happening. It's not absolutely everything. There are

11 still some collections that are in the EDS, but I think a good part of the

12 collections are able to be just put on a hard drive and that's something

13 that I'm confident will happen.

14 JUDGE AGIUS: I thank you.

15 Any differing or -- opinions or remarks or comments? None? From

16 the Defence?

17 MS. ROHAN: Excuse me, behind the pole.

18 JUDGE AGIUS: Yes, Ms. Rohan.

19 MS. ROHAN: The Office of the Prosecutor has been extremely

20 cooperative in working this out with the Defence. Still I think it might

21 be useful if we would have some sense of the date when this might happen.

22 If that's some information that you have.

23 JUDGE AGIUS: I thank you, Ms. Rohan.

24 Mr. McCloskey?

25 MR. McCLOSKEY: Internally we are striving for 5 May, but

Page 90

1 Ms. Stewart tells me hopefully individual laptops by the end of the week.

2 So everyone has been working hard on all this, Your Honour, and

3 just to let you know, the Defence and the Prosecution, when up eight

4 Defence counsels and a Prosecution that aren't saying anything in response

5 to these questions, that's a reflection that everyone has been working

6 very hard on these issues, just to let you know that, that there is a --

7 that the value of that silence is hard to put a price on.

8 JUDGE AGIUS: I thank you. And I am -- enjoin you -- don't take

9 this by any way of criticism, I am not criticising, but I enjoin you to

10 chase this matter up to the best of your ability. Otherwise you have the

11 complete trust of the Trial Chamber. I would like you to keep in mind

12 also the need to bring the pre-trial proceedings to an end as quickly as

13 we can, so that we can then start the trial at the first opportunity.

14 So let's go into private session for a while because I need to

15 discuss something in private session with you.

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13 [Open session]

14 JUDGE AGIUS: Okay. We are in open session.

15 I am going to get very soon to the crucial part of today's Status

16 Conference, and that's the entering of pleas. But before I do that, I am

17 just going to try and briefly recapitulate the salient points that has

18 brought us to this. I stated earlier that on the 11th of November of last

19 year the Prosecution filed its consolidated amended indictment against all

20 accused in the present joint case. This was in the wake of the decision

21 given by Trial Chamber III of which I formed part, joining all the present

22 accused together in one case.

23 The indictment has been translated into B/C/S, and according to

24 the information that I have available, made -- given to the accused, who

25 very soon will be asked to enter their plea.

Page 94

1 In the meantime, as I stated earlier on, and I'm stating it again

2 because I want to make one thing clear. In the meantime, as recently as

3 the 22nd of this month, that is, the same day the appeals trial chamber

4 handed down their appeal judgement in the Stakic case, the Prosecution

5 filed a motion that -- relating only to accused Borovcanin seeking to

6 further amend the consolidated amended indictment. And then exactly a

7 week later, again once more in the wake of the Stakic appeal decision,

8 judgement, Prosecution filed another motion to which I have referred

9 already, again seeking to further amend the consolidated amended

10 indictment, removing the concept of co-perpetratorship, co-perpetration

11 and substituting therefore the question of joint criminal enterprise in

12 its two forms.

13 However, these amendments are at the moment still subject to

14 Rule 50 -- to the Rule 50 procedure, and parties will need to be heard on

15 this first as has been indicated above. In other words, it's premature to

16 take into consideration these two motions or the contents of, substance of

17 these two motions for the purpose of the exercise that we have today. So

18 for all clarity, the pleadings that I am going to seek to obtain from the

19 accused today, or from some of the accused today, will be against the

20 indictment that was contained and as is contained in the OTP motion of the

21 11th November 2005, to which I have been referring as the consolidated

22 amended indictment.

23 Of course, if the litigation about these motions and further

24 proposed amendment lead to further new charges against the accused, a

25 further new pleading will, of course, become necessary once a decision is

Page 95

1 made and it becomes final.

2 So that's the position. Because of this, I will be explaining,

3 because I want to go to bed tonight with my conscience as quiet and as

4 serene as possible, I will be explaining to each one of the accused the

5 difference that there is between the original indictment and the

6 consolidated amended indictment. And then each one will be asked to plead

7 guilty or not guilty to the count, to the full count.

8 I will be approaching the accuseds one by one to -- and ask them

9 how they wish to plead, and I also wish to make sure of the following

10 before I proceed. You would have noticed earlier on I said, "I am

11 informed that not only has the consolidated amended indictment been

12 translated into B/C/S but that you have each received a copy of it in your

13 own language." If any one of you has not received the consolidated

14 amended indictment in your own language, please stand up and speak up.

15 So I take it that you have all.

16 I also wish to know whether you have read this indictment. Is

17 there anyone of you who has not read this indictment, the consolidated

18 amended indictment? If there is, please speak up.

19 Also it is my duty -- yes, I see Madam -- I'm sorry, I didn't see

20 you before.

21 MS. FAUVEAU-IVANOVIC: [Interpretation] I'm very sorry,

22 Mr. President. Excuse me for interrupting you.

23 I wanted to say there was a third proposed amendment of the

24 indictment attached to the response by the Prosecutor of the 23rd of

25 January. I would like to say a few words about this, but you might wish

Page 96

1 to finish the pleadings first and then I could have the floor.

2 JUDGE AGIUS: I thank you. I know about that. Thank you, Madam

3 Fauveau. Let me finish with this exercise and then of course you will--

4 MS. FAVEAU-IVANOVIC: [Interpretation] Thank you very much.

5 JUDGE AGIUS: So the Rules and the Statute also impose on me the

6 responsibility to make sure that you fully understand the indictment and

7 the nature of the charges that are brought against you in it.

8 Is there any one of you that does not understand the indictment or

9 the nature of the charges that have been brought against you and to which

10 you will be pleading very soon?

11 I see no reaction from the six co-accused.

12 Next thing I would like to know, I know that this matter was more

13 or less dealt with yesterday during the 65 ter meeting, but for reasons of

14 my own, I want a confirmation from each one of you as to whether you would

15 like the consolidated amended indictment to be read out in full here or

16 whether you are waiving this right that you have. The right exists. If

17 any one of you asks that we read out the consolidated amended indictment

18 in full, we are duty-bound to do it, but this is a right that you can

19 renounce to. Is there any one of you who would like me to read out the

20 entire consolidated amended indictment?

21 All right. Registrar, please enter into the records that none of

22 the accused has expressed -- so I take it that you are waiving this right.

23 The only conclusion I can draw is that one, and if you don't agree that

24 this is the conclusion, please speak up now.

25 So the consolidated amended indictment will not be read out or

Page 97

1 will be taken as read.

2 Yes, Madam Fauveau?

3 MS. FAUVEAU-IVANOVIC: [Interpretation] Thank you very much, Mr.

4 President.

5 The Prosecutor filed three proposed amendments: One on the 23rd

6 of January, 2006; the other one on the 22nd of March; and the last one in

7 date was on the 29th of March. They are cumulative in nature, I believe.

8 The problem the Defence now face, they have to provide a

9 consolidated response, and they have to know exactly what are the

10 amendments. I'm asking hereby the Prosecutor to file a consolidated

11 proposal for the amendments. I'm not asking for postponement of the time

12 or the dates, but I'd like to have this proposal by the end of the working

13 day on Friday.

14 JUDGE AGIUS: What's your reaction to that, Mr. McCloskey? Given

15 that we will be proceeding today with what we have, that's based on the

16 consolidated, 11th November consolidated amended indictment, the last two

17 motions, 22nd and 29th of March, particularly the 29th of March one, will

18 have to be dealt with subsequently.

19 MR. McCLOSKEY: Your Honour, I believe our motions speak for

20 themselves. They are relatively clear, and if there is some confusion or

21 some help I can -- we can speak with Ms. Fauveau outside of court, but I

22 don't see the point in reshuffling everything to send it out again. It's

23 there as we meant to file it, and I think it's clear.

24 JUDGE AGIUS: All right, point taken.

25 And if you need the Trial Chamber to deal with this specifically,

Page 98

1 Ms. Fauveau, please come forward with an ad hoc motion and we will decide

2 accordingly. The problem that will arise definitely is substituting

3 co-perpetratorship with joint criminal enterprise, are we talking of new

4 charges, what are we talking about? Will there be the need for further

5 plea and so on and so forth? Same applies to the Borovcanin measure.

6 Anyway, I don't want to prejudice the Trial Chamber's position on

7 this because this is a decision if asked -- if I am asked to take this

8 decision, it will be in consultation with the other two Judges, so I

9 cannot make a pronouncement myself on this.

10 But in any case, we are going to proceed -- yes, Madam Fauveau?

11 MS. FAUVEAU-IVANOVIC: [Interpretation] Mr. President, the first

12 proposed amendment filed on the 23rd of January had to do with Counts 4

13 and 5, and it had to do with the language of the two counts. Of course,

14 General Miletic's Defence is not against the amendments. But the problem

15 is that in the latest proposed amendment, that of the 29th of March, you

16 don't have the new Counts 4 and 5. Therefore, we find it rather hard to

17 meet this new mode of liability, or new mode of JCE, if the language of

18 Counts 4 and 5 is not clearly defined.

19 So I understood yesterday that the Prosecutor is of the view that

20 all these changes add up, but I don't think it's up to the Defence to try

21 and find in one proposal, one specific paragraph, and another paragraph

22 and another. We should have a clear language for the indictment and we

23 should also have it in the language of the accused if we want to be able

24 to answer. We should at least have one clear proposal in one single text

25 in order to provide a proper answer.

Page 99

1 Thank you.

2 JUDGE AGIUS: I thank you, Madam Faveau. My position doesn't

3 change on this because it's not fit and proper for me to give an

4 indication as to what I think, since this is obviously a matter that has

5 to be dealt with by the Trial Chamber in its collegial format.

6 So I'm going to deal with you one by one.

7 Mr. Popovic, could you please stand up?

8 Mr. Popovic, before I ask you to enter your plea, I wish to point

9 out that if you prefer not to enter a plea of guilty or not guilty, in

10 other words, if you remain passive and do nothing, I am bound by the

11 Statute and the Rules to enter a plea of not guilty on your behalf.

12 That's the position. So there is no way you can prejudice yourself by not

13 entering a plea.

14 I will point out first and foremost to you the difference between

15 the initial indictment against you and the consolidated amended

16 indictment. When I say the initial indictment, I mean that indictment

17 which -- with which you were confronted when you first appeared before

18 this Tribunal. You know that after that there was the joinder and then

19 the consolidated amended indictment.

20 Now in the first indictment, in the initial indictment, you were

21 charged under Counts 1(a) and (b) with genocide or, in the alternative,

22 complicity to commit genocide. The charge of complicity of genocide has

23 now been removed from the indictment in order to avoid redundancy with the

24 mode of liability of aiding and abetting under Article 7(1) of the

25 Statute. There is, however, now a new Count 2 in the consolidated amended

Page 100

1 indictment that charges you with something akin but different and charges

2 you with conspiracy to commit genocide.

3 Also, in the initial indictment, you were charged with inhumane

4 acts, consisting in the forcible transfer of the Bosnian Muslim population

5 from the Srebrenica enclave and persecutions, including the forcible

6 transfer of Bosnian Muslims from the Srebrenica enclave. You see the

7 similarity or the common denominator in these two charges in the initial

8 indictment.

9 In the consolidated indictment, the charge of forcible transfer of

10 Bosnian Muslims from the Srebrenica enclave, the charge of forceable

11 transfer, not only applies to women and children but has been extended to

12 include the forced bussing of men who were separated allegedly --

13 allegedly separated at Potocari or captured or having surrendered from the

14 column of peoples fleeing the Srebrenica enclave up to the Zvornik area

15 where they, according to the Prosecution, were ultimately captured and

16 executed. In addition, the consolidated amended indictment charges the

17 forcible transfer of the Bosnian Muslim population from the Zepa enclave,

18 which wasn't before, including the deportation of men from Zepa. The

19 charge of persecutions has also been extended in the consolidated amended

20 indictment accordingly and the charge of deportation has been added.

21 You see I've tried to explain to you how the indictment has

22 changed from what it was to what it is now.

23 What I'm going to do now, Mr. Popovic, and I invite the other

24 co-accused to follow exactly what I'm doing, because this is what I'm

25 going to do with each one of you later on, is I'm going to go through the

Page 101

1 charges one by one, as they are now in the consolidated amended

2 indictment, and then I will ask you whether you wish to plead, and if you

3 wish to plead, whether you wish to plead guilty or not guilty to each of

4 these counts separately. Your answer should be either guilty or not

5 guilty.

6 I start with Count 1. Count 1 charges you with genocide

7 punishable under Articles 4(3)(a) and 7(1) of the Statute of the Tribunal.

8 That is you are being charged with individual criminal responsibility for

9 genocide.

10 How do you wish to plead to this first count of genocide? Guilty

11 or not guilty?

12 THE ACCUSED POPOVIC: [Interpretation] Not guilty.

13 JUDGE AGIUS: The accused pleads not guilty.

14 Count 2 charges you with conspiracy to commit genocide punishable

15 under Articles 4(3)(b) and Article 7(1) of the Statute of the Tribunal.

16 Again you're charged with individual criminal responsibility here.

17 How do you wish to plead to this second count; namely of

18 conspiracy to commit genocide? Guilty or not guilty?

19 THE ACCUSED POPOVIC: [Interpretation] Not guilty.

20 JUDGE AGIUS: The accused pleads not guilty. Count 3 charges you

21 with extermination, this being a crime against humanity punishable under

22 Articles 5(b) and 7(1) of the Statute, again individual

23 criminal responsibility.

24 How do you wish to plead to this third count of extermination?

25 Guilty or not guilty?

Page 102

1 THE ACCUSED POPOVIC: [Interpretation] Not guilty.

2 JUDGE AGIUS: The accused pleads -- enters a plea of not guilty to

3 the third count.

4 Mr. Lazarevic?

5 MR. LAZAREVIC: Yes, I apologise, Your Honour, for this, but the

6 transcript shows that the accused Borovcanin is entering his plea instead

7 of accused Popovic.

8 JUDGE AGIUS: Yes, I thank you for pointing that out. I think

9 that needs to be taken care of in the transcript.

10 Mr. Borovcanin, you will still have a chance to enter your plea

11 freely, and Mr. Popovic will not have the right to represent you. I can

12 assure you of that.

13 So we come -- so for the record, I just make it clear that what

14 has been pointed out by Mr. Lazarevic is absolutely correct. The

15 transcript should show accused Popovic and not Borovcanin.

16 Count 4 charges you with murder, a crime against humanity,

17 punishable under Articles 5(a) and Article 7(1) of the Statute of the

18 Tribunal.

19 How do you wish to plead to this Count 4, murder and -- count of

20 murder?

21 THE ACCUSED POPOVIC: [Interpretation] Not guilty.

22 JUDGE AGIUS: Not guilty.

23 Count 5 charges you with murder, this time being a violation of

24 the laws or customs of war. Again, you're being charged under Article 3

25 and Article 7(1) of the Statute.

Page 103

1 How do you wish to plead? Guilty or not guilty?

2 THE ACCUSED POPOVIC: [Interpretation] Not guilty.

3 JUDGE AGIUS: Count 6 charges you with persecutions on political,

4 racial and religious grounds, a crime against humanity. And these

5 persecutions include murder, cruel and inhumane treatment, terrorising the

6 civilian population, destruction of personal property and forcible

7 transfer, all punishable under Articles 5(h) and 7(1) of the Statute of

8 this Tribunal.

9 How do you wish to plead to this sixth count consisting of

10 persecutions?

11 THE ACCUSED POPOVIC: [Interpretation] Not guilty.

12 JUDGE AGIUS: Not guilty.

13 Count 7 charges you with inhumane acts consisting in forcible

14 transfer, a crime against humanity, punishable under 5 -- Articles 5(1)

15 and 7(l) [sic] of the Statute of the Tribunal.

16 How do you wish to plead to this seventh count? Guilty or not

17 guilty?

18 THE ACCUSED POPOVIC: [Interpretation] Not guilty.

19 JUDGE AGIUS: I thank you, Mr. Popovic.

20 We come to Count 8, which charges you with deportation. I've

21 already explained how this has come in, a crime against humanity,

22 punishable under Articles 5(d) and 7(1) of the Statute of the Tribunal.

23 How do you wish to plead? Guilty or not guilty?

24 THE ACCUSED POPOVIC: [Interpretation] Not guilty.

25 JUDGE AGIUS: All right. I ask the Registrar to put on record

Page 104

1 therefore that accused Mr. Popovic has pleaded not guilty to all the eight

2 counts brought against him in the consolidated amended indictment.

3 Mr. Popovic, I thank you so much. Please take a seat.

4 And I now ask Mr. Beara to -- you can remain seated for the time

5 being. I will ask you to stand up later.

6 You are in a somewhat slightly different position. Following the

7 consolidated amended indictment. Before I ask you to enter your plea, I

8 will explain the difference that exists between the previous -- what I

9 call the previous indictments.

10 What I need to tell you is that in the amended indictment, you

11 were charged with inhumane acts, namely forcible transfer and

12 persecutions, including the forcible transfer of the Bosnian Muslim

13 population from Srebrenica by means of the forced bussing of the women and

14 children -- of women and children, to Bosnian Muslim-controlled territory,

15 and the forced bussing of men separated at Potocari or captured or having

16 surrendered from the column of people fleeing the Srebrenica enclave up to

17 Zvornik area where, according to the Prosecution, they were captured and

18 ultimately executed.

19 In the consolidated amended indictment, the charge of forcible

20 transfer has been extended to include also the forcible transfer of the

21 Bosnian Muslim population from the Zepa enclave, which also includes the

22 deportation of the men from Zepa. The charge of persecutions has also

23 been extended in your case, in the consolidated amended indictment

24 accordingly, and the charge of deportation has been added.

25 So I now ask you to stand up and we'll go through the same

Page 105

1 procedure.

2 Have you understood how your situation has changed?

3 THE ACCUSED BEARA: [No interpretation].

4 JUDGE AGIUS: I thank you so much again I will be asking you

5 whether you plead guilty or not guilty, and please restrict your answer to

6 guilty or not guilty.

7 THE INTERPRETER: Your Honour, we have problems hearing the

8 accused. He is simply too far from the microphone.

9 JUDGE AGIUS: Mr. Beara, the interpreters are telling me that you

10 are too tall, and they can't -- and we can't -- no, it's okay. I mean, I

11 will -- just raise your voice, the volume of your voice and they should

12 be able to hear you.

13 Are you hearing him now? Can you say something, please?

14 THE ACCUSED BEARA: [Interpretation] Can you hear me now?

15 THE INTERPRETER: Yes, we can, but it is not as loud as it should

16 be. This is better now.

17 JUDGE AGIUS: So Count 1, Mr. Beara, charges you with genocide

18 which is punishable under Articles 4(3)(a) and 7(1) of the Statute of the

19 Tribunal. When I say 7(1), it means that you've been charged

20 individually, in your own individual capacity, individual criminal

21 responsibility.

22 How do you wish it plead to this first count of genocide? Guilty

23 or not guilty?

24 THE ACCUSED BEARA: [Interpretation] Not guilty.

25 JUDGE AGIUS: And Count 2 charges you with conspiracy to commit

Page 106

1 genocide punishable under Articles 4(3)(b) and 7(1) of the Statute.

2 How do you wish to plead to there second count? Guilty or not

3 guilty?

4 THE ACCUSED BEARA: [Interpretation] Not guilty.

5 JUDGE AGIUS: And Count 3 charges you with extermination, a charge

6 that you had already, punishable under Article 5(b) and Article 7(1) of

7 the Statute.

8 How do you wish to plead to this third count of extermination?

9 Guilty or not guilty?

10 THE ACCUSED BEARA: [Interpretation] Not guilty.

11 JUDGE AGIUS: And Count 4 charges you with murder, a crime against

12 humanity, punishable under Article 5(a) and Article 7(1) of the Statute of

13 the Tribunal.

14 How do you wish to plead to this fourth count of murder as a crime

15 against humanity? Guilty or not guilty?

16 THE ACCUSED BEARA: [Interpretation] Not guilty.

17 JUDGE AGIUS: And Count 5 charges you again with murder but this

18 time being a violation of the laws or customs of war, which is punishable

19 under Article 3 and 7(1) of the Statute of the Tribunal.

20 How do you wish to plead to this fifth count of murder?

21 THE ACCUSED BEARA: [Interpretation] Not guilty.

22 JUDGE AGIUS: And Count 6 charges you with persecutions on

23 political, racial and religious grounds, that is being a crime against

24 humanity, and which includes murder, cruel and inhumane treatment,

25 terrorising the civilian population, destruction of personal property and

Page 107

1 forcible transfer punishable under Articles 5(h) and 7(1) of the Statute.

2 How do you wish to plead? Guilty or not guilty?

3 THE ACCUSED BEARA: [Interpretation] Not guilty.

4 JUDGE AGIUS: And Count 7 charges you with inhumane acts, forcible

5 transfer being a crime against humanity punishable under Articles 5(i)

6 and 7(1) of the Statute of the Tribunal.

7 How do you wish to plead? Guilty or not guilty?

8 THE ACCUSED BEARA: [Interpretation] Not guilty.

9 JUDGE AGIUS: And finally Count 8 charges you with deportation,

10 being a crime against humanity, punishable under Articles 5(d) and 7(1) of

11 the Statute.

12 How do you wish to plead? Guilty or not guilty?

13 THE ACCUSED BEARA: [Interpretation] Not guilty.

14 JUDGE AGIUS: I thank you, Mr. Beara. You may sit down.

15 And, Madam Registrar, could you please enter in the records of

16 this case that accused Beara entered a plea of not guilty to all eight

17 counts brought against him in the consolidated amended indictment.

18 I now call on Drago Nikolic to pay attention. You may remain

19 seated for the time being. I'll explain to you the differences between

20 the initial indictment and the consolidated amended indictment.

21 In the initial indictment, you were charged under Counts 1(a) and

22 (b) with genocide or, in the alternative, with complicity to commit

23 genocide, very similar to what your colleague Popovic was charged with.

24 The charge of complicity of -- in genocide has now been removed from the

25 indictment in order to avoid redundancy with the mode of liability of

Page 108

1 aiding and abetting under Article 7(1) of the Statute, but there is now a

2 new Count 2 which charges you with conspiracy to commit genocide, and this

3 is what you will be asked to enter a plea on.

4 Also in the initial indictment you were charged with persecutions,

5 not explicitly including forcible transfer, and you were not charged with

6 forcible transfer as a separate count. The consolidated amended

7 indictment, however, charges you with persecutions which include the

8 forcible transfer of Bosnian Muslim population from Srebrenica and Zepa,

9 which also includes the deportation of men from Zepa. It charges you

10 accordingly with forcible transfer and deportation. More or less the same

11 as I explained in the case of co-accused Popovic.

12 So please stand up now, and we'll go through the eight counts, and

13 I will be asking you how you wish to plead to each one of these eight

14 counts.

15 Count 1 charges you with genocide punishable under

16 Article 5, 4(3)(a) and 7(1) of the Statute of the Tribunal. When I

17 say 7(1), I mean individual criminal responsibility.

18 How do you wish to plead to this Count 1 of genocide? Guilty or

19 not guilty?

20 THE ACCUSED NIKOLIC: [Interpretation] Not guilty.

21 JUDGE AGIUS: And Count 2 charges you with conspiracy to commit

22 genocide, punishable under Articles 4(3)(b) and 7(1) of the Statute.

23 How do you wish to plead? Guilty or not guilty?

24 THE ACCUSED NIKOLIC: [Interpretation] Not guilty.

25 JUDGE AGIUS: Count 3 charges you with extermination, this being a

Page 109

1 crime against humanity, punishable under Articles 5(b) and 7(1) of the

2 Statute of the Tribunal.

3 How do you wish to plead? Guilty or not guilty?

4 THE ACCUSED NIKOLIC: [Interpretation] Not guilty.

5 JUDGE AGIUS: And Count 4 charges you with murder, a crime against

6 humanity, punishable under Articles 5(a) and 7(1) of the Statute.

7 What's your plea? Guilty or not guilty?

8 THE ACCUSED NIKOLIC: [Interpretation] Not guilty.

9 JUDGE AGIUS: And Count 5 also charges you with murder, however

10 this being a violation of the laws or customs of war punishable under

11 Article 3 and 7(1) of the Statute of the Tribunal.

12 How do you wish to plead to this Count 5 of murder? Guilty or not

13 guilty?

14 THE ACCUSED NIKOLIC: [Interpretation] Not guilty.

15 JUDGE AGIUS: Count 6 charges you with persecutions on political,

16 racial and religious grounds, a crime against humanity, which includes

17 murder, cruel and inhumane treatment, terrorising the civilian population,

18 destruction of personal property and forcible transfer punishable under

19 Articles 5(h) and 7(1) of the Statute of this Tribunal.

20 How do you wish to plead to this sixth count of persecutions?

21 Guilty or not guilty?

22 THE ACCUSED NIKOLIC: [Interpretation] Not guilty.

23 JUDGE AGIUS: Yes, not guilty.

24 And Count 7 charges you with inhumane acts, being forcible

25 transfer, a crime against humanity, punishable under Articles 5(i)

Page 110

1 and 7(1) of the Statute of this Tribunal.

2 How do you wish to plead to this seventh count? Guilty or not

3 guilty?

4 THE ACCUSED NIKOLIC: [Interpretation] Not guilty.

5 JUDGE AGIUS: And Count 8 charges you with deportation, a crime

6 against humanity, punishable under Articles 5(d) and 7(1) of the Statute

7 of the Tribunal.

8 How do you wish to plead to this eighth and final count of

9 deportation? Guilty or not guilty?

10 THE ACCUSED NIKOLIC: [Interpretation] Not guilty.

11 JUDGE AGIUS: All right. I thank you, Mr. Nikolic. You may sit

12 down.

13 And, Madam Registrar, could you kindly put on record that accused

14 Nikolic entered a plea of not guilty to each of the eight counts brought

15 against him in the consolidated amended indictment. Thank you.

16 Ljubomir Borovcanin, please follow what I am going to inform you

17 now. Yours is a little bit more extensive than that of the others. And

18 then we will go through the usual procedure.

19 In the initial indictment you were charged with complicity to

20 commit genocide under Articles 4(3)(e), 7(1) and 7(3) of the Statute.

21 When I say 7(3), it's command and control, superior command

22 responsibility. Whether I say 7(1), it's individual criminal

23 responsibility.

24 The charge of complicity of genocide, and genocide, has now been

25 removed from the consolidated amended indictment for the same reasons as

Page 111

1 those of your colleagues. The initial indictment did not charge you with

2 genocide under Article 4(3)(a).

3 Count 1 of the consolidated amended indictment, however, charges

4 you with genocide, punishable under Articles 4(3)(a) and 7(1) but limited

5 to aiding and abetting genocide. And also under Article 7(3) of the

6 Statute of the Tribunal; that is, in your capacity as a superior.

7 In regard to Count 2, conspiracy to commit genocide, as is -- it

8 appears in the consolidated amended indictment, while your name and

9 this -- please, Prosecution, also please note. While your name does not

10 appear above paragraph 34 and in paragraphs 34 and 35 that relate to

11 Count 2, your name does appear on the first page of the consolidated

12 amended indictment as one of the accused charged with genocide and

13 conspiracy to commit genocide.

14 The Prosecution has requested, in its response to the Defence

15 motions under Rule 72 to add your name where it is missing in the

16 paragraphs that relate to Count 2, in order to clarify that you are

17 charged with conspiracy to commit genocide. Accordingly, you are going to

18 be asked to plead to the charge in Count 2, that is conspiracy to commit

19 genocide.

20 In the initial indictment, you were also charged with

21 persecutions, which included the forcible transfer of Bosnian Muslims from

22 the Srebrenica enclave. In the consolidated amended indictment, the

23 charge of forcible transfer not only applies to women and children but

24 also to the forced bussing of the men separated at Potocari or captured or

25 having surrendered from the column of people fleeing in the Srebrenica

Page 112

1 enclave up to the Zvornik area where they were ultimately captured and

2 executed. This is not according to me; it's according to the Prosecution.

3 It stands to be proven.

4 In addition, the consolidated amended indictment charges the

5 forcible transfer of the Bosnian Muslim population from the Zepa enclave,

6 including the deportation of the men from Zepa. Accordingly, the charges

7 of persecution have been extended and a charge of deportation has been

8 added.

9 Have I been clear to you, Mr. Borovcanin? Have you been able to

10 follow?

11 THE ACCUSED BOROVCANIN: [Interpretation] Yes.

12 JUDGE AGIUS: I thank you. You may remain standing now.

13 I am now going through the various counts one by one, and the

14 first count charges you with genocide punishable under 4(3)(a) and 7(1),

15 it's Articles of the Statute, limited to aiding and abetting genocide, and

16 Article 7(3) of the Statute of the Tribunal.

17 How do you wish to plead to --

18 THE ACCUSED BOROVCANIN: [Interpretation], Your Honour, I plead not

19 guilty.

20 JUDGE AGIUS: Count 2 charges you with conspiracy to commit

21 genocide, punishable under Articles 4(3)(b) and 7(1) of the Statute of the

22 Tribunal.

23 How do you wish to plead to this Article 2 -- Count 2?

24 THE ACCUSED BOROVCANIN: [Interpretation] Your Honour, before I

25 enter my plea, may I say something in relation to that?

Page 113

1 JUDGE AGIUS: Yes, certainly.

2 THE ACCUSED BOROVCANIN: [Interpretation] The indictment that I

3 received, the last indictment that I received does not mention my name in

4 Count 2. In the contents of Count 2 my name does not appear. My name

5 figures in the title of the indictment together with others as charged

6 with Count 2. Later it was explained to me that it was a technical

7 mistake, a clerical error, so it appears to me that it is more likely that

8 the clerical error would be with respect to the title. I find it hard to

9 see why I do not appear later on. I would like to ask my counsel to

10 explain what the situation is.

11 JUDGE AGIUS: Yes. By all means. I thank you for expressing your

12 concerns, Mr. Borovcanin. In the meantime, while this is being discussed,

13 you may remain seated.

14 Yes, Mr. Lazarevic.

15 MR. LAZAREVIC: Yes. Your Honour, the first mention of adding new

16 charges against Mr. Borovcanin, Count 2, and I speak about Count 2 of the

17 indictment, was on Prosecutor's submission dated January 21st. So it

18 wasn't in the indictment that my client received dating from November 11.

19 And in its submission, it's a reply that the Prosecution filed of

20 January 21st. The Prosecution asked for leave to amend the indictment by

21 adding the name of Mr. Borovcanin in Count 2 of the indictment, and there

22 is no ruling on this request of the Prosecution.

23 JUDGE AGIUS: Yes. I think I -- do you want to respond to that,

24 Mr. McCloskey? Because it's not exactly how you put it.

25 The submission is that your client is there from the 11th -- is

Page 114

1 there. He is mentioned but he's not mentioned specifically everywhere

2 that he should have been mentioned. This is the position. But that is

3 the mistake. The mistake does not consist from what I could understand

4 that he has been erroneously mentioned somewhere when he shouldn't have

5 been mentioned. The submission is that he should have been mentioned more

6 and was not mentioned but there should be no doubt left in the minds of

7 whoever that he is included in the charge of conspiracy to commit

8 genocide.

9 Yes, Mr. McCloskey.

10 MR. McCLOSKEY: Yes, Your Honour. I think you've got it correct.

11 JUDGE AGIUS: So this is the position. I mean --

12 Yes, Mr. Lazarevic.

13 MR. LAZAREVIC: Yes, Your Honour, I can understand your position.

14 However, the motion seeking for leave to amend the indictment filed by the

15 Prosecution before the amended indictment was filed in November does not

16 contain the name of Mr. Borovcanin for Count 2. There is absolutely no

17 explanation regarding Mr. Borovcanin's involvement in complicity to commit

18 genocide.

19 JUDGE AGIUS: Mr. Lazarevic, the amended indictment, in its very

20 first page, starts with a declaration that the Prosecution, pursuant to

21 her authority -- the Prosecutor, pursuant to her authority, et cetera,

22 charges, amongst others, your client with genocide, conspiracy to commit

23 genocide. So this does not leave any doubt in the minds of anyone that

24 that is what the consolidated amended indictment seeks to -- seeks to

25 confirm.

Page 115

1 As happens in many instances, mistakes result in all indictments.

2 It seems that in Count 2, when it comes to paragraph 34, his name is

3 missing, as you said. But the Prosecution is not giving an explanation to

4 the effect that there was a mistake in the first page his name should have

5 never appeared together with the others as being charged with conspiracy

6 to commit genocide. What they are explaining is that the mistake happened

7 in the description or in the listing of names in paragraphs 34 and 35;

8 namely, that his name should have appeared there as -- there as well.

9 It's true that that has not been decided. I mean, I am not in any

10 way suggesting that it has been decided, but I think the safest way of

11 going about it is to ask him to enter the plea today because I think it

12 will be harbouring a little bit of -- bring a little bit of an illusion to

13 think that it's exactly the opposite way around. And especially if you

14 look at some of the paragraphs preceding 34, particularly 33, it is

15 indicative that destruction of women, children, et cetera, it was never

16 apparent from the indictment that it was the intention of the Prosecution

17 to leave your client out from -- especially considering the way he was

18 accused under the initial indictment in the first place.

19 So I don't think I should say more than that.

20 I am going to proceed with asking you whether you wish to plead

21 guilty or not guilty to Count 2. I explained to you what the

22 circumstances are. If you want the opportunity to consult with your

23 lawyer --

24 MR. LAZAREVIC: This is precisely what I wanted to ask, Your

25 Honour.

Page 116

1 JUDGE AGIUS: So what I suggest, I don't know what instructions,

2 security officers, what instructions you may have on this. I would like

3 him to grant him a moment to consult with his counsel. Do you prefer to

4 have the consultation in the courtroom, here, somewhere in the corner or

5 outside?

6 MR. LAZAREVIC: I think it would be fine with us to consult in the

7 courtroom. We don't need any extra space.

8 JUDGE AGIUS: All right. I tell you what to do because we are

9 soon over in any case. We'll have a short break during which you will

10 have an opportunity to consult with your client on this. And then we will

11 proceed with the entering of pleas later.

12 We'll have -- if I have the indulgence of the staff, how much time

13 do you wish to have? I reckon that we only have about 20 minutes more of

14 sitting, or half an hour at the moment -- at best.

15 I can't see -- I can't see anyone behind the dark glasses. 15

16 minutes? Yeah, 15 minutes break.

17 Thank you.

18 --- Recess taken at 3.50 p.m.

19 --- On resuming at 4.14 p.m.

20 JUDGE AGIUS: Mr. Lazarevic, have you conferred with your client?

21 MR. LAZAREVIC: Yes, Your Honour, I can confirm that I consulted

22 with my client.

23 What I have to say is that earlier this morning when I met

24 Mr. Borovcanin in the detention unit and when we discussed the issue of

25 his plea, it seems that he was -- that the indictment that we are

Page 117

1 discussing about didn't contain his name in count -- is in these counts.

2 So it is our position, I have to say it's my position, Mr. Stojanovic

3 position, and also Mr. Borovcanin's position, that it would be better for

4 him not to plead on this count of the indictment.

5 JUDGE AGIUS: All right.

6 Do you confirm, Mr. Borovcanin, please stand up, on Count 2, do

7 you confirm the position as explained by your lawyer now; in other words,

8 that you are not entering a plea on Count 2?

9 THE ACCUSED BOROVCANIN: [Interpretation] Yes, Your Honour.

10 JUDGE AGIUS: Okay. My reaction to that is that there is a 30-day

11 grace period which becomes applicable. If at the end of 30 days you do

12 not enter a plea, then I will enter a plea of not guilty on your behalf.

13 For that purpose, Mr. Von Hebel, there will be a further

14 Status Conference for accused Borovcanin alone, 30 days from now, unless

15 he signifies his intention to enter a plea earlier.

16 Count 3 charges you with extermination. This is a crime against

17 humanity, punishable under Articles 3(b), 7(1) and 7(3) of the Statute.

18 How do you wish to plead? Guilty or not guilty?

19 THE ACCUSED BOROVCANIN: [Interpretation] Not guilty, Your Honour.

20 JUDGE AGIUS: And Count 4 charges you with murder, as a crime

21 against humanity, punishable under Articles 5(a), 7(1) and also 7(3) of

22 the Statute of the Tribunal.

23 How do you wish to plead? Guilty or not guilty?

24 THE ACCUSED BOROVCANIN: [Interpretation] Not guilty, Your Honour.

25 JUDGE AGIUS: Count 4 charges you with the same crime, murder, but

Page 118

1 this time being a violation of the laws or customs of war, punishable

2 under Articles 3, 7(1) and 7(3) of the Statute of the Tribunal.

3 How do you wish to plead? Guilty or not guilty?

4 THE ACCUSED BOROVCANIN: [Interpretation] Not guilty, Your Honour.

5 JUDGE AGIUS: And Count 6 charges you with persecutions on

6 political, racial and religious grounds, a crime against humanity, which

7 includes murder, cruel and inhumane treatment, terrorising the civilian

8 population, destruction of personal property and forcible transfer,

9 punishable under Articles 5(h), 7(1) and 7(3) of the Statute of the

10 Tribunal.

11 How do you wish to plead? Guilty or not guilty?

12 THE ACCUSED BOROVCANIN: [Interpretation] Not guilty.

13 JUDGE AGIUS: Count 7 charges you with inhumane acts, being

14 forcible transfer. This is a crime against humanity, punishable under

15 Articles 5(i), 7(1) and 7(3) of the Statute of this Tribunal.

16 How do you wish to plead? Guilty or not guilty?

17 THE ACCUSED BOROVCANIN: [Interpretation] Not guilty, Your Honour.

18 JUDGE AGIUS: Mr. Borovcanin, Count 8, finally, charges you with

19 deportation, being a crime against humanity, punishable under

20 Articles 5(d), 7(1) and 7(3) of the Statute of this Tribunal.

21 How do you wish to plead? Guilty or not guilty?

22 THE ACCUSED BOROVCANIN: [Interpretation] Not guilty.

23 JUDGE AGIUS: I thank you so much, Mr. Borovcanin. You may sit

24 down.

25 And, Madam Registrar, please enter that Mr. Borovcanin has entered

Page 119

1 a plea of not guilty on all counts except Count 2, to which he has not

2 entered a plea.

3 I now come to you, Mr. Pandurevic. You may remain seated for the

4 time being. I will tell you when to rise.

5 Yours is less complicated. In the initial indictment, you were

6 charged with conspiracy to commit genocide, contrary to or in violation of

7 Articles 4(3)(b) and 7(1) of the Statute. In other words, you are charged

8 with individual criminal responsibility in relation to this crime.

9 The situation has now changed. The consolidated amended

10 indictment also charges you with -- under 7(3), Article 7(3) of the

11 Statute, that is with command responsibility for conspiracy to commit

12 genocide.

13 Second point is the following: In the initial indictment you were

14 charged with persecutions and which included forcible -- the forcible

15 transfer of Bosnian Muslims from the Srebrenica enclave.

16 The situation has changed somewhat. In the consolidated amended

17 indictment, the charge of forcible transfer does not -- not only

18 applies -- not only applies to the women and children but it extends also

19 to the bussing, forced bussing, of men who, according to the Prosecution,

20 were separated at Potocari or captured or having surrendered from the

21 column of people fleeing the Srebrenica enclave up to the Zvornik area,

22 where they were, according to the Prosecution, ultimately executed.

23 In addition, the consolidated amended indictment charges the

24 forceable transfer of Bosnian Muslim population from the Zepa enclave,

25 including the deportation of the men from Zepa. Accordingly, you will

Page 120

1 find that in the consolidated amended indictment, the charge of

2 persecutions has been extended and a charge of deportation has been added.

3 Lastly, by contrast to the initial indictment, the consolidated

4 amended indictment also explicitly charges you as one of the participants

5 in a joint criminal enterprise to forcibly transfer the Bosnian Muslim

6 population and to commit the mass killings.

7 These are basically the main differences that there are.

8 Now I ask you to stand up, please. I will go through the counts

9 one by one and we'll ask you to enter a plea.

10 Please stand up.

11 Mr. Pandurevic, the first Count against you is one of genocide,

12 punishable under Articles 4(3)(a), 7(1), and 7(3) of the Statute of this

13 Tribunal.

14 How do you wish to plead? Guilty or not guilty?

15 THE ACCUSED PANDUREVIC: [Interpretation] Not guilty, Your Honour.

16 JUDGE AGIUS: I thank you. Count 2 charges you with conspiracy to

17 commit genocide, punishable under Articles 4(3)(b), 7(1), and 7(3) of the

18 Statute.

19 How do you wish to plead? Guilty or not guilty?

20 THE ACCUSED PANDUREVIC: [Interpretation] Not guilty.

21 JUDGE AGIUS: And Count 3 charges with you extermination as being

22 a crime against humanity, punishable under Articles 5(b), 7(1), and 7(3)

23 of the Statute.

24 How do you wish to plead? Guilty or not guilty?

25 THE ACCUSED PANDUREVIC: [Interpretation] Not guilty, Your Honour.

Page 121

1 JUDGE AGIUS: And Count 4 charges you with murder being a crime

2 against humanity punishable under Articles 5(a), 7(1), and 7(3) of the

3 Statute.

4 How do you wish to plead? Guilty or not guilty?

5 THE ACCUSED PANDUREVIC: [Interpretation] Not guilty.

6 JUDGE AGIUS: And Count five charges you with murder a violation

7 of the laws or customs of war punishable under Articles 3, 7(1), 7(3) of

8 the Statute.

9 How do you wish to plead? Guilty or not guilty?

10 THE ACCUSED PANDUREVIC: [Interpretation] Not guilty.

11 JUDGE AGIUS: And Count 6 charges you with persecutions on

12 political, racial, and religious grounds, a crime against humanity

13 including murder, cruel and inhumane treatment, terrorising a civilian

14 population, destruction of personal property and forcible transfer,

15 punishable under Articles 5(h), 7(1), and 7(3) of the Statute.

16 How do you wish to plead? Guilty or not guilty?

17 THE ACCUSED PANDUREVIC: [Interpretation] Not guilty, Your Honour.

18 JUDGE AGIUS: And Count 7 charges you with inhumane acts being

19 forcible transfer, against -- a crime against humanity punishable under

20 Articles 5(i) 7(1), 7(3) of the Statute.

21 How do you wish to plead? Guilty or not guilty?

22 THE ACCUSED PANDUREVIC: [Interpretation] Not guilty.

23 JUDGE AGIUS: And finally Count 8 charges you with deportation.

24 As I have explained already, this is a crime against humanity, punishable

25 under Articles 5(d), 7(1), 7(3).

Page 122

1 How do you wish to plead? Guilty or not guilty?

2 THE ACCUSED PANDUREVIC: [Interpretation] Not guilty, Your Honour.

3 JUDGE AGIUS: I thank you, Mr. Pandurevic. You may sit down.

4 And for the record, Ms. Fabian, please enter that Mr. Pandurevic

5 has pleaded not guilty to all eight counts.

6 And I finally come to you, Mr. Trbic. Yours is even more simple

7 than that of the others. In the initial indictment, you were charged with

8 one count, that is murder, a crime against humanity, punishable under

9 Articles 5(a) and 7(1) of the Statute. This charge remains now in the

10 consolidated amended indictment as Count 4. In addition, however, the

11 consolidated indictment now charges you with genocide, conspiracy to

12 commit genocide, extermination, murder, a violation of the laws or customs

13 of war, persecutions, inhumane acts, and deportation. By contrast to the

14 initial indictment, the consolidated indictment -- amended indictment also

15 explicitly charges you as one of the participants in a joint criminal

16 enterprise to forcibly transfer the Bosnian Muslim population and to

17 commit the mass killings.

18 Mr. Trbic, could you stand up, please?

19 I'm going to ask you whether you wish to enter a plea in which

20 case you tell me either guilty or not guilty.

21 Count 1 charges you with genocide, punishable under

22 Articles 4(3)(a) and 7(1) of the Statute of the Tribunal.

23 How do you wish to plead? Guilty or not guilty?

24 THE ACCUSED TRBIC: [Interpretation] Not guilty, Your Honour.

25 JUDGE AGIUS: Count 2 charges you with conspiracy to commit

Page 123

1 genocide, punishable Articles 4(3)(b) and 7(1) of the Statute.

2 How do you wish to plead? Guilty or not guilty?

3 THE ACCUSED TRBIC: [Interpretation] Not guilty, Your Honour.

4 JUDGE AGIUS: Thank you. Count 3 charges you with extermination,

5 a crime against humanity, punishable under Articles 5(b) and 7(1) of the

6 Statute.

7 How do you wish to plead? Guilty or not guilty?

8 THE ACCUSED TRBIC: [Interpretation] Not guilty, Your Honour.

9 JUDGE AGIUS: I thank you. Count 4 charges you with murder a

10 crime against humanity punishable under Articles 5(a) and 7(1) of the

11 statute.

12 How do you wish to plead? Guilty or not guilty?

13 THE ACCUSED TRBIC: [Interpretation] Not guilty, Your Honour.

14 JUDGE AGIUS: Count 5 charges you also with murder, this time

15 being a violations of the laws or customs of war, punishable under

16 Articles 3 and 7(1) of the Statute.

17 How do you wish to plead? Guilty or not guilty?

18 THE ACCUSED TRBIC: [Interpretation] Not guilty, Your Honour.

19 JUDGE AGIUS: Count 6 charges you with persecutions on political,

20 racial and religious grounds, a crime against humanity, including murder,

21 cruel and inhumane treatment, terrorising the civilian population,

22 destruction of personal property and forcible transfer, punishable under

23 Articles 5(h) and 7(1) of the Statute.

24 How do you plead? Guilty or not guilty?

25 THE ACCUSED TRBIC: [Interpretation] Not guilty, Your Honour.

Page 124

1 JUDGE AGIUS: Count 7 charges you with inhumane acts forcible

2 transfer, a crime against humanity, punishable under Articles 5(i)

3 and 7(1) of the Statute.

4 How do you wish to plead? Guilty or not guilty?

5 THE ACCUSED TRBIC: [Interpretation] Not guilty, Your Honour.

6 JUDGE AGIUS: And finally Count 8 charges you with deportation, a

7 crime against humanity, punishable under Articles 5(d) and 7(1) of the

8 Statute.

9 How do you plead? Guilty or not guilty?

10 THE ACCUSED TRBIC: [Interpretation] Not guilty, Your Honour.

11 JUDGE AGIUS: I thank you, Mr. Trbic. You may sit down and

12 Madam Registrar, could you please enter a record to the effect that

13 Mr. Trbic has entered a plea of not guilty to all eight counts.

14 I thank you all. And I now come to work plan for this trial.

15 And I'm doing this because I am, of course, required to do so by

16 Rule 65 ter(D)(ii). I have been informed by Mr. Von Hebel that what will

17 happen between now and when we start the trial and when the trial will

18 start has been subject of some debate during the 65 ter Conferences of

19 the 6th of March and of yesterday.

20 And Mr. Von Hebel has more or less provided me with a revised plan

21 which will, of course, be revised as -- and if necessary, because in these

22 cases obviously things happen and dates have to shift.

23 I have actually taken note of all the submissions that you have

24 both made to Mr. Von Hebel, and as I said, although in my mind I do have a

25 plan, the work plan may shift as a result of developments. But this

Page 125

1 should not in any way keep us from trying to plan as accurately as we can,

2 and establish a target date for the conclusion of the pre-trial stage and

3 commencement of the trial.

4 In my calculations, and again I say this subject, of course, to

5 possible revisions, even in my mind, of my calculations, I think that we

6 should be in the position, and I can expect all parties to be ready for

7 trial practically immediately after the summer recess.

8 That's my opinion. But I also advised that it will be probably

9 wiser to make an allowance for an extra week or two at the most, to cover

10 any possible contingencies that we may encounter in the meantime and also

11 to make sure that every one of you is given all the opportunities

12 necessary to present the pre-trial Chamber with all the documentation that

13 we require from you.

14 There are some things to which I give priority. Obviously, the

15 first thing that must be done, and which depends on me rather than on you,

16 is to come forward with a final decision on all the motions that relate to

17 the indictment. I'm fully aware that until and unless that becomes final,

18 there is no point in asking you particularly to come forward with a

19 response in relation to agreed facts, to any possible motion on

20 adjudicated facts, Rule 92 bis motions, and so on and so forth. I fully

21 concur, agree, and I say it openly, that what must happen first is our

22 decision. But from the moment our decision becomes public, is handed

23 down, in other words, we need to start working. So what I am suggesting

24 is that while I, together with the other two judges and our staff, work on

25 the decision that I have just mentioned, the Prosecution tries to work on

Page 126

1 the following.

2 We have agreed that we need to address the pre-trial Prosecution

3 brief. Do you have a definitive date in mind where you will certainly be

4 in a position to give us that, Mr. McCloskey?

5 MR. McCLOSKEY: Yes, Your Honour. We were -- had obligated

6 ourselves to the 21st of April. As we get closer and actually looking at

7 our draft and being slightly delayed by the Stakic judgement, if we could

8 get one more week, I think we would give you a better product so we would

9 be asking for a one week extension to our own initial deadline of April

10 21, to 28 April.

11 JUDGE AGIUS: I had in mind -- I will grant you that,

12 Mr. McCloskey, without much further discussion.

13 I had in mind, then, that within a week from the filing of the

14 pre-trial Prosecution brief, you file an adjudicated facts proposal, a

15 proper motion. That would have been the 28 April, we now have to shift it

16 by one week. Can anyone tell me the -- 5th May? 5th May. That would be

17 the 5th May.

18 MR. McCLOSKEY: That looks good for us.

19 JUDGE AGIUS: And I had in mind the 12th of May for Rule 92 bis

20 motion.

21 MR. McCLOSKEY: That looks good as well.

22 JUDGE AGIUS: We'll leave it at 12th?

23 And you indicated that by the 9th of June you should be in a

24 position to submit Mr. Butler's, the military expert, report.

25 MR. McCLOSKEY: Yes, Your Honour.

Page 127

1 JUDGE AGIUS: You are aware, Mr. McCloskey, of Mr. Miletic's

2 motions, two motions, in relation to the translation of the proposed

3 adjudicated facts and Rule 92 bis motion. Do you think that you would

4 spare the Trial Chamber the trouble of having to decide that by having

5 recourse to your translation resources in the OTP and have those two

6 motions translated into B/C/S. For that, I would be prepared to extend

7 the dates of the 5th of May and the 12th of May by another week.

8 MR. McCLOSKEY: The 92 bis statements of the witnesses are in

9 B/C/S. Many of them, as you know, were from prior testimony and the

10 Defence should have had the audio of that in B/C/S and hopefully now the

11 capability to listen to the audio, which is actually I think the best way

12 for them to have it given the enormous resources it would be to do it

13 otherwise.

14 JUDGE AGIUS: And the adjudicated facts?

15 MR. McCLOSKEY: The adjudicated facts --

16 JUDGE AGIUS: This is included too in Madam Fauveau's motion.

17 I've seen others in other cases and also in my case, so we are not -- I

18 think we are talking of a document which may be translated in two or three

19 days.

20 MR. McCLOSKEY: Something that simple, I will endeavour to talk to

21 CLSS about. They always try to be cooperative but as you know they are

22 very honest about their abilities.

23 JUDGE AGIUS: Yes. And I know what burden they carry as well.

24 MR. McCLOSKEY: So we'll check with them on that. On the

25 adjudicated facts we had sent out a potential agreed facts to the Accused

Page 128

1 and we were hoping to get some response on that to perhaps reduce the

2 burden of the adjudicated facts. Unfortunately we haven't heard much on

3 that so our burden has not been reduced and so we will be able to go

4 forward without any help from the Accused.

5 JUDGE AGIUS: But agreed facts and adjudicated facts are not the

6 same thing. It should never be put in the same basket. I mean there are

7 definitely adjudicated facts to which the Defence can agree, but the

8 two -- the two are not the same.

9 MR. McCLOSKEY: No. My only point is, as you said, if the Defence

10 agreed to some fact that had already been adjudicated, the motion would be

11 a little lighter on that but -- and some facts have been, as you know so

12 adjudicated here that we were hoping to get some response but there are

13 eight accused and we are being realistic. That would be a hard thing to

14 imagine getting too many people agree, so we are ready to go forward with

15 the adjudicated facts motion as we said and we will try to get that deal

16 with CLSS about how to do that.

17 JUDGE AGIUS: All right. So the position is as follows: If in

18 relation to adjudicated facts and Rule 92 bis motion, you are in a

19 position or you agree -- I mean, I'm no way forcing you or asking to do

20 this I'm just inviting you to consider this possibility, if you are

21 prepared to have B/C/S version accompany the original motion, then you can

22 take the two dates that I indicated to you, the 5th of May and 12th of May

23 respectively extended by another week in each case. If not, they will

24 remain firm. In other words, adjudicated facts, 5th of May, and

25 Rule 92 bis motion, 12th of May.

Page 129

1 MR. McCLOSKEY: Yes. We'll have that in B/C/S and we have some in

2 French if anyone cares to see them in French.

3 JUDGE AGIUS: Okay.

4 Starting now, from the date when we will hand down the decision on

5 the form of the indictment, the Defence -- when I say the Defence, it

6 means each and every team will have three weeks within which to come

7 forward with any notification of alibi or any special defence in terms of

8 Rule 67(A). You will recall that this -- there have already been some

9 orders and I agreed that it makes much more sense to wait until the

10 decision on the form of the indictment, which is not really the right

11 medicine but I agree that it's wiser to wait until that matter is decided

12 and then we will deal with the rest.

13 So Defence notification of alibi or any special defence under

14 Rule 67 not later than three weeks from the date of the Trial Chamber's

15 decision on the form of the indictment.

16 Any motion or remarks or official position that you would desire

17 to take in relation to agreed facts, proposed adjudicated facts, and

18 Rule 92 bis motion, you will need to address by not later than one month

19 from the date of the decision of the Trial Chamber on the form of the

20 indictment.

21 As it is, and as the situation would be or is expected to be, at

22 that point in time, but depending, of course, on how things work out, my

23 idea is that each one of the Defence teams should have their pre-trial

24 brief filed by not later than the 14th of July. That's when we go

25 basically on recess, more or less on recess. So it's important that we

Page 130

1 have all these before we go on recess.

2 Then I plan either during the recess or immediately after the

3 recess, or towards the end of the recess, I plan to have the full Trial

4 Chamber here in The Hague. We would require some refreshing training on

5 the e-system which we will be using for the trial. Maybe if anyone of you

6 also needs some coaching, some training, you will let me know and I will

7 attend to that. And I plan to start the case round about, if not exactly,

8 on the 21st of August. That's my plan. We can shift by one week or two

9 weeks, as I explained earlier but, please, let's all try to get started.

10 Basically what I'm saying is this that would be almost naive on my part to

11 expect that the road ahead will be full of roses and no problems and no

12 thorns, no appeals, and no this and no that. So with that in mind, with

13 that in mind, and with the responsibility also in mind, the responsibility

14 that I have, I am going to try to start at the earliest opportunity.

15 According to me, the earliest ideally would be the 21st of August. But I

16 may be too optimistic and I'm fully aware that we may need another week or

17 two before we could actually start.

18 We would start with the -- my intention would be that towards the

19 end of August or between the 21st at any time before the end of August we

20 will have the Pre-Trial Conference, to be followed a week after by the

21 opening statements and the start of the trial, so basically, as I envisage

22 it, if there is a one-week delay, the Pre-Trial Conference will take place

23 on the 28th of August, with the trial starting a week after. If there is

24 a two-week delay, the Pre-Trial Conference will be on the -- seven days

25 after the 28th of August, and then we start the week after with the

Page 131

1 opening statements, to be followed by what we discussed in private

2 session. Do you read me? To be followed then by that.

3 So basically there will be that also breathing space, further

4 breathing space, for you to -- there is a possibility, at least I have

5 that indication, that some of the time between now and when we start the

6 trial may be made use of, profitably made use of for receiving testimony

7 in the forms provided for under the Rules. I have to -- still to think

8 about that. If that matter comes up, if and when, but if it is at all

9 possible then, of course, after hearing what you have to say we will

10 decide accordingly but that's the position for the time being.

11 I have said what I have said to give you an indication of what my

12 intentions are. We all have lived pre-trials and trials before in our

13 lives. Some more than others. And you would agree with me and I would

14 agree with you that you can never -- at this stage you can never be that

15 sure as to the exact date when we will start the trial but more or less

16 that's what I am aiming at, all right?

17 There are a few final things that I would like to address. In

18 anticipation of all this, and also to be able to plan ahead better, I

19 would like the Defence teams to discuss amongst themselves the way they

20 wish to proceed in relation to the opening -- Defence opening statements.

21 There may be some who may wish to make an opening statement. There may be

22 others who may not wish to make opening statements. There may be

23 controversies amongst you as to who should go first, who should go second,

24 and who should go after and last. I will, of course, not interfere in all

25 this. But please don't allow a situation to obtain where we come to the

Page 132

1 day when we are supposed to hear the first of the Defence opening

2 statements, if there will be any, and Trial Chamber would not be in a

3 position even to know if there is going to be one, who is going to go

4 first, who is going to go second, et cetera. This is a big trial. There

5 are eight defence teams. I appeal to your cooperation. And I will

6 accommodate you accordingly, but you need to discuss this amongst

7 yourselves because there may be conflicting interests, or there may be

8 some who would not wish to make any opening statement.

9 Also, although, of course, the situation -- I realise that the

10 situation may change between now and when we start the trial, I suppose

11 you ought to start consulting with your clients whether they too would

12 like to make any statements at the beginning of the trial. In which case,

13 please do let us know because we will need to plan accordingly. All

14 right?

15 Now, I am going to ask each one of you the usual questions about

16 your state of detention, your state of health, be it mental or physical.

17 I'll start with you, Mr. Popovic. I will keep the same order,

18 Mr. Popovic, Mr. Beara; we'll go in that order.

19 Mr. Popovic, and if there is any one of you who would like to

20 address me on any of these matters, particularly health matters, in

21 private session, closed session, in other words, keep it away from the

22 public, please do let me know straight away.

23 Mr. Popovic, I would like to know if you have anything to tell me

24 in relation to the conditions of your detention or in relation to your

25 health or anything else that, in your opinion, I should be made aware of.

Page 133

1 THE ACCUSED POPOVIC: [Interpretation] For the time being, Your

2 Honour, I don't have any complaints. I think everything is in order.

3 JUDGE AGIUS: I thank you so much, Mr. Popovic. Please be seated.

4 Mr. Beara. The same question to you. If there is anything that

5 you would like to bring to my notice in public or in private.

6 THE ACCUSED BEARA: [Interpretation] No. I don't have anything in

7 particular. The detention -- the conditions of my detention are excellent

8 and my health is also very good. Thank you.

9 JUDGE AGIUS: I'm happy to hear that, Mr. Beara. I thank you so

10 much.

11 Mr. Drago Nikolic. The same question to you, your feedback on

12 your conditions of detention and on the state of your health or any other

13 matter that you would like to address me upon in public or in private.

14 THE ACCUSED NIKOLIC: [Interpretation] [Microphone not activated].

15 THE INTERPRETER: Microphone, please. Microphone for the accused.

16 JUDGE AGIUS: Yes, please start again.

17 THE ACCUSED NIKOLIC: [Interpretation] Mr. President, I do not have

18 any complaints as to the conditions of my detention, and my health is

19 equally good. Thank you.

20 JUDGE AGIUS: I thank you, Mr. Nikolic.

21 Mr. Borovcanin. The same question to you.

22 THE ACCUSED BOROVCANIN: [Interpretation] Mr. President, as far as

23 my health is concerned, I do not have any problems whatsoever.

24 As for the conditions of my detention, I don't think I have

25 anything to add in relation to what you already know. Thank you.

Page 134

1 JUDGE AGIUS: I thank you, Mr. Borovcanin.

2 Mr. Miletic is not here.

3 Mr. Gvero is not here.

4 Mr. Pandurevic.

5 THE ACCUSED PANDUREVIC: [Interpretation] Mr. President, thank you

6 for your concern. My health is good, and the conditions of my detention

7 are also good.

8 JUDGE AGIUS: Okay. I thank you, Mr. Pandurevic.

9 Mr. Trbic.

10 THE ACCUSED TRBIC: [Interpretation] No complaints whatsoever, Your

11 Honour. Thank you for asking.

12 JUDGE AGIUS: I thank you, Mr. Trbic. You may sit down.

13 So, now, any other matter that the parties would like to address?

14 I see Mr. Bourgon anxiously waiting to be heard. Go ahead.

15 MR. BOURGON: Thank you very much, Your Honour. Good afternoon,

16 Your Honour.

17 I rise at this point to address the -- on behalf of my colleagues

18 representing the eight accused in this courtroom, or at least eight

19 co-accused in these proceedings, regarding our ability to be ready for

20 trial at a certain date, and in this respect I would like to make

21 five observations.

22 My first observation as a preliminary matter is I would like to

23 express on behalf of my colleagues our appreciation for your involvement

24 leading to this case being ranked at level 3 by the Registry. We believe

25 that this is directly related to the issue of setting an appropriate date

Page 135

1 for beginning this trial.

2 My second observation is that on the 6th of March, when we had the

3 Rule 65 ter meeting with the Senior Legal Officer, I indicated that as a

4 consequence of having this trial ranked at level 3, all Defence teams had

5 increased their rate of preparation, and we all agree that we can be ready

6 to begin this trial by 1 November of this year.

7 Follows my third observation. Of course, if the Trial Chamber

8 decides, or should the Trial Chamber decide on an earlier date, it goes

9 without saying that all Defence teams will be present and will be there

10 for trial. However, we are collectively of the view that this is likely

11 to cause longer delays than the time which we could save by starting

12 earlier considering a number of issues, such as, for example, potential

13 requests for short term adjournments at a time when witnesses are present

14 in The Hague, which could be counterproductive, and also this will impact

15 on the ability of Defence to work with, to work on, and meet with the

16 Prosecution with the aim of possibly agreeing on stipulations which could

17 shorten the trial.

18 My fourth and last observation is that there is another related

19 issue that goes with starting the trial on 1 November. And this is an

20 issue which is of significant importance to all Defence teams, and this is

21 also an issue which I raised yesterday during the Rule 65 ter meeting with

22 the Senior Legal Officer. And this issue is that of the possibility of a

23 long-term postponement in the beginning of this trial in the event the

24 Prosecution requests that a further accused be joined to the proceedings

25 between now and the beginning of the trial.

Page 136

1 The consequences of such an event must be mentioned, and we

2 believe it is necessary to bring these consequences to your attention,

3 Your Honour.

4 First, in order to be ready for November, we have, of course,

5 increased the rate of our preparations, but the consequence will be that

6 when we reach the beginning of the trial, with a view to being ready, and

7 working along with the Trial Chamber, we will have exhausted all resources

8 at our disposal between now and the day which will be decided upon by the

9 Trial Chamber.

10 Accordingly, taking, for example, for the sake of this submission,

11 that a further accused was joined to this -- to these, the present

12 proceedings, by the Prosecution, by way of motion, of course, requesting

13 that this is what the Prosecution would like, it means that from that

14 point on, the Defence will have no more resources, whereas significant

15 resources would be required to allow the Defence to do a number of things,

16 such as, one, to keep up with the Prosecution during that postponement or

17 adjournment, in order to simply keep up with the work taking place within

18 the Office of the Prosecutor. Two, to work, investigate and adjust the

19 case for the Defence for each of the respective accused.

20 MR. McCLOSKEY: Excuse me one second. I'm sorry to interrupt. If

21 we are going to get into any subjects of a speculative nature like this,

22 could we go into private session?

23 JUDGE AGIUS: I don't see the need, but if it puts your mind at

24 rest, let's go into private session. I mean, this is all speculation for

25 the time being. I understand exactly what he means. Some people might

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1 not understand. Let's go into private session.

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1 (redacted)

2 [Open session]

3 JUDGE AGIUS: All right.

4 MR. BOURGON: Thank you, Your Honour.

5 In conclusion, all Defence teams in this case, and I speak here

6 this behalf of all my colleagues are more than willing to work with

7 yourself as the Pre-Trial Judge and with the Trial Chamber to which this

8 case will be assigned for trial to ensure that this trial can begin at the

9 earliest possibility and without delay.

10 That being said, given the work that we still have to do to be

11 ready for trial, we are of the view that a realistic date to which we

12 agree to be bound by would be 1 November.

13 Just to name one further example of the things that are happening

14 for which additional time is required is what is happening today in the

15 war crimes chamber in Sarajevo. The war crimes chamber is increasing its

16 pace of work. Many people are being either brought for investigation,

17 trials are about to take place, and there will be a lot of evidence which

18 will be generated by the war crimes chamber in Sarajevo which the Defence

19 needs to be aware of, needs to review, before we can proceed soundly with

20 this trial.

21 This is just to name one example.

22 That being said, Your Honour, we all want to begin at the earliest

23 possibility but there is some level of uncertainty here, and all Defence

24 counsel believe it was necessary at least to bring these issues to your

25 attention so that we know what we are getting into and also to

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1 understand -- to underline the need for a firm date. You are not giving

2 us a firm date. We believe this firm date should be adjusted to

3 1 November but we will be -- we will respect, of course, any date set by

4 the Trial Chamber, but we will work accordingly and spend our resources

5 according with the date that you give us with, of course, the consequences

6 that might arise.

7 Thank you, Your Honour.

8 JUDGE AGIUS: I thank you. Are there any matters that the

9 Prosecution would like to address?

10 MR. McCLOSKEY: No, Your Honour.

11 JUDGE AGIUS: All right. So I think we can safely adjourn now.

12 As to the matters that you raised, Mr. Bourgon, of course, they will

13 receive my full attention as well as that of my two colleagues, present

14 and future. As to the rest, if the situation changes, as you tried to

15 speculate, then obviously I will not speculate now but obviously you will

16 hear from me and I will need to hear from you and any problems that you

17 indeed will face will be addressed and where needed you will find my

18 support.

19 But let's plan according to what we have here and not what could

20 possibly happen which might not happen. If that happens, we are obviously

21 not starting in August and not starting in November.

22 The case is adjourned.

23 --- Whereupon the Status Conference adjourned at

24 5.08 p.m.

25