1 Tuesday, 20 July 2004

2 [Motion Hearing]

3 [Open session]

4 [The accused Prlic entered court]

5 --- Upon commencing at 2.22 p.m.

6 JUDGE ORIE: Mr. Registrar, would you please call the case.

7 THE REGISTRAR: Your Honour, case number IT-04-74-PT, the

8 Prosecutor against Jadranko Prlic, Bruno Stojic, Slobodan Praljak, Milivoj

9 Petkovic, Valentin Coric, and Berislav Pusic.

10 JUDGE ORIE: Yes. Thank you, Mr. Registrar.

11 First, for the record, I'd like to explain that we're here only

12 with one accused present and his counsel. That's Mr. Prlic. Counsel,

13 Mr. Par, who is mainly here to answer a few questions since he's also

14 participating in the Defence of Mr. Martinovic.

15 This hearing is a continued hearing from yesterday where the

16 Chamber seeks additional information in order to determine whether

17 representation by counsel of three accused in this case can be accepted or

18 not.

19 I see that for the Prosecution, Mr. Scott, you are present at this

20 moment. You were not present yesterday. I take it that you understand

21 the limited role of the Prosecution in this hearing. Mainly, I would say,

22 not in any way to interfere with choice of counsel by an accused but only

23 to make observations which could be useful to determine whether it could

24 lead to any disruption of the trial at later stages, which would certainly

25 have its effect on the Office of the Prosecutor as well. That's

1 understood?

2 MR. SCOTT: Yes, Your Honour. Thank you very much. Kenneth Scott

3 for the record. Your Honour, we do understand the role that you've

4 indicated. We appreciate the opportunity to be here. Of course, when we

5 learned that it was a public hearing, I guess my initial instinct was if

6 it was a public hearing that there's a -- that the Prosecutor should, out

7 of honour and responsibility as much as anything else, should be present

8 and play whatever role or not that the Chamber would ask us to play. So

9 we understand and we appreciate the Chamber having us here. Thank you.

10 JUDGE ORIE: Thank you very much.

11 Mr. Par, we did not finish yet yesterday on a few issues. What

12 would be your position if Mr. Martinovic in a later stage would be called

13 as a witness either by the Chamber or by the Prosecution, or would you

14 consider it even possible to call Mr. Martinovic as a witness for the

15 Defence?

16 MR. PAR: [Interpretation] Your Honour, I did not consider the

17 possibility of calling him as a Defence witness since I believe that these

18 two case are not connected in any way. How I would -- what my position

19 towards Martinovic would depend on the specific circumstances. As his

20 Defence counsel, I would know all the circumstances of that testimony, so

21 I would consider that as if he -- as if the Prlic case were some third

22 case. So I cannot really answer this hypothetical question, but I know

23 that I would take my position in accordance with the consequences and the

24 circumstances which would lead possibly to such testimony.

25 JUDGE ORIE: Yes. Do you think that if Mr. Martinovic would be

1 called either by the Prosecution or by the Trial Chamber that you could

2 ask him questions based upon your knowledge that you gained during your

3 defence of Mr. Martinovic if they would be in favour of Mr. Prlic?

4 MR. PAR: [Interpretation] Your Honour, I don't see myself in the

5 courtroom in such a situation. I don't see myself in the courtroom in

6 such a situation at all. Far from it that I should ask him questions

7 or -- I cannot be with Martinovic in the position of being his Defence

8 counsel and to ask him questions from the point of view of another case.

9 This is something that cannot happen.

10 JUDGE ORIE: Yes. But if he's called as a witness.

11 MR. PAR: [Interpretation] If Martinovic is called to testify, if

12 Martinovic decides to testify, then I would find a way out of that

13 situation by leaving it in the hands of the lead counsel, because I am,

14 after all, a co-counsel in this case.

15 JUDGE ORIE: You think you couldn't examine him as a witness?

16 MR. PAR: [Interpretation] I would never wish to do that.

17 JUDGE ORIE: No. Whether you wish to do it is not the question.

18 The question is whether you're allowed to do it according to your own

19 standards.

20 MR. PAR: [Interpretation] I would not do that.

21 JUDGE ORIE: Yes. That is clear. And let me ask you the

22 following question: In respect of the position of Mr. Prlic as a

23 civilian, do you consider it possible that a civilian authority exercises

24 any power or any control over military men?

25 MR. PAR: [Interpretation] Theoretically, yes, but in the specific

1 case I believe that that would not be the case.

2 JUDGE ORIE: Yes. You say you do not believe that although this

3 is theoretically possible that it happened in this case.

4 MR. PAR: [Interpretation] Correct, Your Honour.

5 JUDGE ORIE: Do you consider -- in view of this question, do you

6 consider Mr. Martinovic a real military man who would not be subject to a

7 civilian authority?

8 MR. PAR: [Interpretation] Well, I'm glad that Mr. Scott is also

9 here. From the beginning to the end of the Martinovic defence, his

10 position regarding his position and the position of his superiors was

11 always the same. It did not change from the beginning to the end, and

12 that position was that he was the commander of the lowest-ranking military

13 formation and that the commander of the town of Mostar was the commander

14 for the units which were on the line of separation. That was the end and

15 the beginning of Martinovic's connection with the superiors, and that is

16 what -- what has stayed unchanged from the beginning to the end in the

17 Martinovic Defence. This can be also expressed by the Prosecution.

18 Throughout his defence, he denied any connections with any form of

19 civilian power, with politicians. He continually stressed in his

20 defence - this is what his defence was based on - that he did not have

21 anything to do with any structures of authority in any possible way. He

22 was not receiving instructions from them, and he did not participate in

23 any other circumstances together with them. So based on that defence, he

24 said, "I entered that war defending my home as a regular soldier,

25 defending it first of all in the war against the Croats, then in the war

1 against the Muslims," and he ruled out decisively any connection with any

2 kind of military or civilian authority.

3 JUDGE ORIE: Could one say that Mr. Martinovic would be involved

4 in a quasi-military, quasi-civil defence structure?

5 MR. PAR: [Interpretation] Throughout these proceedings he was not

6 treated in that way by the Prosecution either.

7 JUDGE ORIE: No. I'm asking you as Defence counsel.

8 MR. PAR: [Interpretation] As a Defence counsel, I was on that case

9 from the stand position -- from the position that he was a member of a

10 self-organised unit which later joined the organisation under the command

11 of the city of Mostar which shaped them in that particular way.

12 JUDGE ORIE: Yes. Command -- civil command or military command?

13 MR. PAR: [Interpretation] It was under the military command.

14 JUDGE ORIE: If I read to you from the final brief in the

15 Martinovic case: "The accused is not a military commander in the sense

16 envisaged in terms of traditional motions of command responsibility. He

17 was a civilian who through the circumstances pertaining in Bosnia and

18 Herzegovina in the early 1990s voluntarily participated in a form of Civil

19 Defence."

20 And in paragraph 84, the Defence has argued that the extent to

21 which the command responsibility theory could be applied is narrower in

22 the case of an informal quasi-military, quasi-civil defence structure.

23 MR. PAR: [Interpretation] As I stated before, the position of the

24 Defence is that Vinko Martinovic first joined the conflict against the

25 Serbs in a way that the group of people he was with self-organised in the

1 fight against the Serbs. At the beginning of the conflict against the

2 Muslims, the Bosniaks, that same group of people which up to that time was

3 self-organised, after they set up the line of separation became a unit.

4 So from a voluntarily based civilian status, it crossed over by the nature

5 of things into a military status because there was a need for those

6 people, the civilians who were defending a part of the town, to be

7 organised in some shape or form. So therefore, he was forced by

8 circumstances to become a soldier.

9 JUDGE ORIE: Yes.

10 MR. PAR: [Interpretation] Not as a member of any paramilitary

11 structure, but it was just a unit which was formed in accordance with the

12 nature of that war, that conflict.

13 JUDGE ORIE: Yes. May I ask you another question? You have

14 mentioned in one of the submissions that one Judge may sit on both cases,

15 Martinovic and Mr. Prlic. Could you please explain to me how the

16 composition of a Trial Chamber could impact on the existence or the

17 non-existence of a conflict of interest?

18 MR. PAR: [Interpretation] Yes. I said, Your Honour, that

19 His Honour Judge Liu was following my work, the defence in that case, and

20 I also said that my learned friend Mr. Scott also followed the development

21 of that case, and I thought that in that way there was some kind of

22 control over my work. This is what I thought, that I simply could not,

23 even if I wanted to, exceed the boundaries that have been established

24 here. I thought that that was a well-known argument that will go to my

25 favour, that there was absolutely some way to monitor my work. That's all

1 I thought.

2 In any case, the Prosecution is in the position to know all the

3 information that is available to me from one case and to the information

4 that they have provided me from a different case. They're in a position

5 to know that better than the Trial Chamber which has not received that

6 material so far. So the Prosecution can always react if they saw that I

7 was in any way abusing my position by using information that I'm not

8 supposed to use.

9 This is something that I thought would work in my favour in that

10 away that there's an overview and a clear picture of my position, nothing

11 more than that.

12 JUDGE ORIE: As far as the Prosecution is concerned, they have

13 expressed an opinion which is not very much in favour of you to continue

14 working in the case of Mr. Prlic. I mean, if you say that's something

15 that would be of guidance to me, then I'm a bit surprised to hear this,

16 because the Prosecution was firmly opposing against your representation of

17 Mr. Prlic.

18 MR. PAR: [Interpretation] Your Honour, I would like to resolve

19 this question immediately by asking, if it's possible, Mr. Scott. The

20 Prosecution was against my appointment. I understood that. This was

21 because of a theoretical or a hypothetical grounds, because a possible

22 conflict of interest in my case is being brought to a sort of theoretical

23 or abstract level, and I'm struggling with it before you today and

24 yesterday, because these are all hypothetical questions, and I do not see

25 any true answer that I could give to you.

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1 However, along with that we have a real situation. These two

2 cases, these two defendants and myself, and these people here who took

3 part in these cases are all here. I thought that we were all reasonable

4 people, that -- I simply thought that we had a real feeling for this

5 realistic or actual situation here.

6 If we're talking about the position of the Prosecution towards me,

7 then in that case I would like to hear that from them here today. I would

8 like to have an answer to this.

9 In any case, Your Honour, I believe that the real situation, as we

10 have before us, does not place me into any conflict of interest.

11 JUDGE ORIE: Do I understand that you say there is no conflict of

12 interest at this moment?

13 MR. PAR: [Interpretation] I cannot see it either in -- at this

14 moment or in future moments. I would like to have my other client here

15 and then you would be able to see both clients hearing what you asked me,

16 what I answered, and then they could say, "We think it is or isn't." So I

17 don't think this is a conflict of interest now, nor that I will be in

18 future, and I went into this point at several levels.

19 JUDGE ORIE: Yes. Is the position your present clients take most

20 important for you for your assessment on whether there would be a risk of

21 a conflict of interest?

22 MR. PAR: [Interpretation] When I decide whether there is a

23 conflict of interest, I myself looked into my own conscience and decided

24 this, looking at the two cases, and the decisive factor for me was whether

25 I see the possibility of finding myself in a position of conflict of

1 interest. That's a position I do not wish to find myself in.

2 Once I've done that, the next thing that's important for me is,

3 from the point of view of both clients, to look at all the aspects that

4 we're discussing here today, and the important thing for me is whether

5 they place their trust in me and give me the go-ahead. And it is, of

6 course, my obligation to be loyal to the confidence and trust they place

7 in me. But I don't doubt that either -- that my clients trust me fully

8 and have confidence in me. I don't think they are afraid that I will

9 inflict any damage. But of course it would be best for you to ask them,

10 to ask then whether they fear that there could be a conflict of interest

11 in view of their defence case and the kind of person I am. You could ask

12 them whether they are afraid of having any detrimental effects, this

13 having any detrimental effects on them.

14 JUDGE ORIE: Yes. You invited me to ask Mr. Scott.

15 Mr. Scott, did I understand the position of the Prosecution well

16 that they strongly oppose of representation of Mr. Prlic by Mr. Par

17 because of the risk of a conflict of interest to arise?

18 MR. SCOTT: In a word, Your Honour, yes, that's the Prosecution's

19 position. I've taken with great reluctance. It has nothing to do with

20 Mr. Par personally but the situation as it exists.

21 JUDGE ORIE: Thank you very much. I think I've got no further

22 questions for you, Mr. Par.

23 Therefore, I'd like to ask -- I don't know whether you've

24 scheduled any order among counsel, which one to be next asked questions

25 about this issue. Mr. Olujic, if I have the accent right.

1 MR. OLUJIC: [Interpretation] Yes, Your Honour.

2 JUDGE ORIE: Of course, Mr. Salahovic and Mr. Par, you are free to

3 stay. This is a public hearing. I'd rather discuss the matter of

4 Mr. Stojic, not necessarily in the presence of Mr. Prlic. So I'd like to

5 ask the security to lead Mr. Prlic out of the courtroom and to escort

6 Mr. Stojic into the courtroom.

7 JUDGE ORIE: Mr. Salahovic, you'd like to address me?

8 MR. SALAHOVIC: [Interpretation] Your Honour, I just wish to remind

9 you, myself and Mr. Par, we looked into a technical matter yesterday. We

10 are leaving The Hague at 1800 hours this evening, so if you intended to

11 discuss Mr. Prlic, we would like to be present and hear the issues and

12 decisions.

13 JUDGE ORIE: Yes. The submissions to the Chamber are there. The

14 Chamber felt it necessary to seek further clarification, clarification

15 mainly given by Mr. Par. I did understand that Mr. Prlic, of course

16 unless he changed his mind, want to be assist by, apart from you, also by

17 Mr. Par, but I could seek confirmation of that. But in the absence of any

18 other message, Mr. Prlic, I take it that you have not changed your mind.

19 THE ACCUSED PRLIC: [Interpretation] With your permission, just a

20 few words, Your Honour. May I?

21 JUDGE ORIE: Yes, please.

22 THE ACCUSED PRLIC: [Interpretation] I'll take up three minutes

23 today. I took up two minutes yesterday, three today.

24 There is a rule in diplomacy which says you never answer

25 hypothetical questions. Now, if that is true for diplomacy, is it true

1 for law? And your -- I don't think so. And your questions have today

2 helped me understand the situation better.

3 The logic of your question emanates from the constructions upon

4 which the indictments are based. I personally consider that this conflict

5 of interest does not exist because there are no interests, no interests

6 that can in any way be linked up. I have nothing to do, no links with

7 Mr. Martinovic at all. I have no contacts with Mr. Martinovic at all. He

8 was a soldier or whatever you like to call him, a quasi-soldier. I was a

9 civilian myself. So I never could have, nor did I wish to have any

10 relationships with the gentleman in question.

11 Now, as I have been informed, my name was never brought up during

12 that entire case. I would like to thank you for intervening, which above

13 all is to my advantage. You wish to assist me as somebody who stands

14 accused here, and that is why I wish to say that I am taking it possible

15 myself, taking the risk upon myself of this possible hypothetical conflict

16 of interest because I consider that quite simply there is no conflict of

17 interest because there is nothing linking me and Mr. Martinovic. So your

18 positive decision, your positive ruling, has indeed helped me to have the

19 team, the complete Defence team stay intact and that I could avail myself

20 of my right to choose, that I receive probative material so that I can

21 outline the general lines of my defence case.

22 Thank you, Your Honour.

23 JUDGE ORIE: Thank you, Mr. Prlic. Thank you for your words.

24 Because of course it will certainly help the Chamber to assess to what

25 extent your consent is of importance because of the level of understanding

1 of the issue.

2 Could then Mr. Prlic be escorted out of the courtroom.

3 [The accused Prlic withdrew]

4 JUDGE ORIE: Yes, you're free to leave. I hope you have a good

5 flight home. Yes, you both. If you want to leave, yes.

6 MR. SALAHOVIC: [Interpretation] Thank you.

7 [Defence counsel for the accused Prlic withdrew]

8 JUDGE ORIE: Then Mr. Olujic.

9 [The accused Stojic entered court]

10 JUDGE ORIE: Please be seated, Mr. Stojic. As you are aware of --

11 we are discussing at this moment -- not discussing, but the Chamber is

12 seeking further clarification on the question on whether you could be

13 represented by Mr. Olujic, Mr. Olujic defending another accused in this

14 Tribunal as well.

15 First of all, just to set the context, Mr. Olujic, would you agree

16 that Mr. Stojic and Mr. Rajic are charged with the same crimes allegedly

17 committed in Stupni Do, in Vares, on and around 23rd of October, 1993, one

18 of them, Mr. Stojic, being presented as the superior of the other?

19 MR. OLUJIC: [Interpretation] Thank you, Your Honour. You're quite

20 right when you say that with the indictment and the Prosecution thesis

21 expressed therein is moving in that direction. However, I have to say

22 before this august Trial Chamber that I am defending two clients. I'm

23 Defence counsel for Mr. Rajic, and I'm also Defence counsel for

24 Mr. Stojic. Both Mr. Rajic and Mr. Stojic are in the pre-trial stage.

25 Both Mr. Rajic and Mr. Stojic, at their initial appearance, when they

1 appeared before you, Your Honour, declared themselves not guilty on any

2 counts of the indictment. That is to say that they are innocent.

3 However, from your question, I can discern something else, and

4 allow me to explain. I should like to claim that neither subordination

5 nor the other position does not exculpate the subordinated person. That

6 was from Versailles, Nuremberg, to this present Tribunal. That was always

7 the case. But non-discipline, if I can use that word, does not exculpate

8 the superior.

9 So if we were to pose a hypothetical, look at it hypothetically

10 and shift the blame from one to the other, then we wouldn't be able to

11 arrive there because that would mean that both were guilty. So once

12 again, there would be no conflict of interest, and that is something that

13 we are discussing here today.

14 In my opposition -- or, rather, in my response to His Honour --

15 or, rather, the Prosecutor, that my client Bruno Stojic was a civilian,

16 that is to say that he was a political figure, a top-level political

17 figure. For a short period of time, he was the defence minister of

18 Herceg-Bosna, and on the other side we have Mr. Rajic, and Mr. Rajic was

19 the top military man. That is not challenged. And the Prosecution tried

20 to put forward arguments and say, "No, we have proof and evidence that

21 Stojic was in one -- in a certain way superior to Mr. Rajic." That, first

22 and foremost, is just not correct. But let's take that position as a

23 hypothetical. Let's take it as being that way. And the Prosecutor would

24 have to go to great lengths to prove something like that. But if we were

25 to take a hypothesis like that, I would once again repeat the same thing,

1 that once again there would be no conflict of interests, because

2 Mr. Stojic could not be defended -- have a defence by saying, "I knew

3 about Rajic's crimes," because once again he would be held accountable.

4 And Rajic, as his defence, could not say, "Stojic ordered me to do

5 such-and-such, to commit the crimes," because he would once again be in

6 the same position. He would be responsible and accountable.

7 JUDGE ORIE: Yes. I asked you a relatively short question, and

8 you engaged in a far wider argument. But if I do understand you where you

9 say there could never be a conflict of interest between the two. Is that

10 a correct understanding?

11 MR. OLUJIC: [Interpretation] Precisely so, Your Honour.

12 JUDGE ORIE: Let me then perhaps put it to you that if Mr. Rajic

13 would, for example, claim in his defence that things he did were done

14 under the orders of a higher level authority, would that be imaginable for

15 you?

16 MR. OLUJIC: [Interpretation] Your Honour, in view of the fact that

17 in the Rajic -- I've been working on the Rajic defence case for one year

18 and that I have studied during that time very voluminous material and

19 archives with the complete documents of the Croatian Defence Council in

20 it, I can simply say that that is impossible because, without a doubt,

21 Rajic functioned exclusively in the chain of command with all its

22 subordination level.

23 JUDGE ORIE: Yes. I'm not --

24 THE INTERPRETER: -- "Military," interpreter's correction.

25 JUDGE ORIE: -- full detail why you think it's impossible but you

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1 consider it impossible for Mr. Rajic for matters for which he's held

2 responsible that the Prosecution would point at higher levels and say,

3 "Well, I did it upon higher instructions."?

4 MR. OLUJIC: [Interpretation] Yes, that's right.

5 JUDGE ORIE: That would also include -- you know Mr. Rajic is

6 indicted not only on the basis of Article 7(1) but also on the basis of

7 Article 7(3), which means that he is also to be blamed for not

8 investigating once he became aware of matters that happened, and that's

9 part of the charges brought against him. Is that a correct understanding?

10 MR. OLUJIC: [Interpretation] Your Honour, I'm not sure whether I

11 understood your question correctly, whether the interpreters interpreted

12 what you have just said to me. So could you be more specific perhaps?

13 JUDGE ORIE: Well, Mr. Rajic -- part of the indictment against

14 Mr. Rajic is that he did not prevent subordinates from committing crimes

15 and that he did not all necessary measures to investigate and to punish

16 them for those crimes if he was aware of them. I ask your specific

17 attention for this aspect of the charges against Mr. Rajic. Would even

18 considering this part of the indictment -- would be your position that he

19 could never point at higher levels to say, "Well, it's not me, but it's

20 others who instructed me to act this way"?

21 MR. OLUJIC: [Interpretation] When I took on the defence of

22 Mr. Rajic, I did, of course, explain to him within the code of Defence

23 counsel ethics --

24 JUDGE ORIE: Mr. Olujic, I'm not asking what you explained to

25 Mr. Rajic. You gave an answer to me saying that it could never be part of

1 the defence of Mr. Rajic to point at higher levels and say, "Not I'm

2 responsible but they," and then after having drawn your specific attention

3 to an element of the charges against Mr. Rajic, I asked you whether the

4 answer would, even for those part of the charges, be the same. That's

5 what I asked you.

6 MR. OLUJIC: [Interpretation] Yes, Your Honour. Within the

7 frameworks of tactics and strategy, yes.

8 JUDGE ORIE: Yes. Then let me ask you the following: When the

9 Defence in Rajic case claimed that Mr. Rajic conducted investigations but

10 that he was ordered from higher -- one higher official to stop that

11 investigations, do you not consider that to point at higher levels and to

12 say, "I was instructed in this case to stop these investigations," and

13 he's charged with not investigating? Isn't this blaming the higher-up

14 authorities for the conduct of Mr. Rajic?

15 MR. OLUJIC: [Interpretation] Mr. Rajic -- actually, of course this

16 all went on within the frameworks of his subordination of military

17 organisation to which he belonged, the military establishment. So that it

18 is a question, as you have rightly put it and raised, but at all events,

19 it cannot be a conflict of interest between Mr. Rajic on the one hand and

20 Mr. Stojic on the other. In other words, what you just said, pointing the

21 finger upwards to his superiors, that could only refer to his immediate

22 superior commanding officer, not further up the chain than that.

23 JUDGE ORIE: And that would be?

24 MR. OLUJIC: [Interpretation] That would be the level of the

25 accused before this Tribunal, that is to say General Blaskic.

1 JUDGE ORIE: Yes. Not any higher-up authority, military or

2 civilian?

3 MR. OLUJIC: [Interpretation] Certainly not civilian.

4 JUDGE ORIE: Yes. Could I then read to you what you -- what the

5 Defence in the Rajic case wrote down in the motion on the form of the

6 indictment. It reads, and it's about paragraph 22 of the indictment:

7 "This paragraph of the amended indictment conceals the fact that during

8 this time, Mr. Ivica Rajic conducted an investigation against some Croats

9 from the area and that the investigation was subsequently stopped by Mate

10 Boban, President of the Croatian Republic of Bosnia and Herzegovina."

11 Let me first ask you, do you consider the president of the

12 Croatian Republic of Bosnia and Herzegovina a civilian authority or a

13 military authority?

14 MR. OLUJIC: [Interpretation] According to the way in which power

15 and authority was established, the late Mr. Boban was a civilian person

16 with certain leadership principles. He was a civilian authority at all

17 events.

18 JUDGE ORIE: Is this pointing up at higher-up civilian authorities

19 to blame them for your own conduct or not? I'm just reading your own

20 text.

21 MR. OLUJIC: [Interpretation] No, Your Honour. That was in the

22 context of something else that this was presented. It wasn't in the

23 context -- stated in the context of the appearance or any dual line of

24 command; that is to say that orders came from the civilian authorities in

25 any way.

1 JUDGE ORIE: What I'm drawing your attention to is the following:

2 That in the early stage of the Rajic case you respond to part of the

3 charges by pointing at higher-up civilian authorities in order to explain

4 the conduct of Mr. Rajic. He did conduct an investigation but by

5 higher-up civilian authorities he was stopped to do so. That's what you

6 say.

7 Would you consider there is a conflict of interest to say, "Well,

8 I didn't continue my investigations because I was ordered by higher-up

9 civilian authorities not to do so"?

10 MR. OLUJIC: [Interpretation] I think -- I don't think there's a

11 problem there either for the simple reason that both Mr. Stojic and

12 Mr. Rajic were informed in detail about this when they engaged me, and I

13 expressed their will and desire for me -- they expressed the will and

14 desire for me to represent them before this Tribunal.

15 So this hypothetical possibility that the defence of Mr. Rajic

16 would be to the detriment of Mr. Bruno Stojic is not possible. I exclude

17 it as a possibility.

18 JUDGE ORIE: Yes. On the basis of the consent given by your

19 clients. Is that a correct understanding?

20 MR. OLUJIC: [Interpretation] Yes, because that is my starting

21 position, the desire and wish of my clients. And I determine the tactics

22 and strategy of defence, and their word is law as far as I'm concern. So

23 if I were to put a step -- a foot wrong there and if I was to lose their

24 confidence, then I consider that I would have taken a step into matters

25 that were not allowed, were I to forfeit the interests of either one.

1 JUDGE ORIE: Yes. And the strategy and tactics of Mr. Rajic until

2 now have been to blame higher-up authorities for him not continuing his

3 investigation as we find it in paragraph 22 of the indictment; is that

4 correct?

5 MR. OLUJIC: [Interpretation] That is correct, Your Honour.

6 However, that was a period of time which could not be relevant to

7 Mr. Stojic, for example.

8 JUDGE ORIE: And why not? Could you please explain that? It was

9 about Stupni Do, wasn't it?

10 MR. OLUJIC: [Interpretation] As I said by way of an introduction,

11 Your Honour, it is absolutely impossible, and that for a number of

12 reasons.

13 JUDGE ORIE: I would like you to first answer my last question.

14 You said it was a period of time which could not be relevant for

15 Mr. Stojic, and then I have drawn your attention to, but please corrected

16 me if I'm wrong, that it was about Stupni Do, and it was a couple of days

17 after that, and that's -- isn't that the time covered by both indictments?

18 MR. OLUJIC: [Interpretation] Yes, judging by the facts in the

19 indictment, how they are described. But I consider and claim that that

20 does not mean that a conflict of interest is automatic there between

21 Mr. Stojic and Mr. Rajic.

22 JUDGE ORIE: No. It's not automatic there. Okay. Thank you for

23 that answer.

24 Could I ask you the following: In your submissions, you said that

25 the lawyer is here to advise his clients and instruct them on how to

1 minimise all potential conflict of interests. Could you explain whether

2 you -- why and whether you really consider this to be your role as

3 counsel.

4 MR. OLUJIC: [Interpretation] My role as Defence counsel is, first

5 and foremost, of course -- and there is no conflict of interest to see to

6 that. That's my first role. And that's what I always look at, and that's

7 what I'm guided by when I take on a client in the first place. I make

8 sure of that.

9 So what I say in response in the motion, let me say that I was

10 brought into a position where I was attacked by the Prosecution, and I had

11 to respond to that attack, and my response was within the frameworks of

12 logics and within the frameworks of the situations that we see in life,

13 and all parties -- or both parties in the proceedings, both the accused

14 and his Defence counsel on the one side and on the other the Prosecution.

15 That's what the reality of the situation was. So in that response, I used

16 the -- this formulation, and I stand by it fully.

17 JUDGE ORIE: What did you mean by "coordinating two defences in

18 order to make the punishment less severe?" Let's say the Defence is

19 uncoordinated and one client could be in a fairly better position than the

20 other? What do you consider then your role to be?

21 Let me just give you an example. Let's just say Mr. Rajic, for

22 not continuing his investigation by stressing that point very much and

23 that he was instructed to do so, can get a lower sentence - well, let's

24 say on the assumption that he would have -- that he would be convicted,

25 whereas the higher-up authorities might incur a more heavier sentence.

1 What would be your role to do?

2 MR. OLUJIC: [Interpretation] Your Honour, my role is always such

3 that I defend to the maximum the interests of in this case of both my

4 clients.

5 JUDGE ORIE: Yes, but Mr. -- Mr. Rajic is very much helped, that's

6 just meant for argument's sake, is very much helped by blaming everyone on

7 the top level. On the other hand, Mr. Stojic might be very much helped

8 by -- well, let's say denying that he gave such instructions or that I

9 left -- that he left it to the discretion of the subordinate, whatever.

10 But what would you do? First of all, for Mr. Rajic. Would you

11 nevertheless insist on the higher-level responsibility?

12 MR. OLUJIC: [Interpretation] Your Honour, in this specific case we

13 cannot view this hypothetically. Rajic has pleaded not guilty on all

14 counts of the indictment, and he will prove this before this Tribunal.

15 Likewise, Mr. Stojic will do the same. Therefore, this possibility does

16 not exist for the simple reason that they are both innocent, that they

17 both deny the charges and are preparing to prove before this Tribunal that

18 they are innocent. They hope they will be successful in this.

19 JUDGE ORIE: Why do you do -- write down then, and that

20 investigation, the investigation conducted by Mr. Rajic, was subsequently

21 stopped by the president of the Croatian Republic of Bosnia-Herzegovina?

22 That's what you write down. It's not invented by me. It's not

23 hypothetical. It's part of your submissions in the Rajic case.

24 MR. OLUJIC: [Interpretation] Because it is what he wants, and I am

25 duty-bound to follow the instructions given to me by my client.

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1 JUDGE ORIE: Yes. Let's just assume that Mr. Stojic would want

2 you to contradict that.

3 MR. OLUJIC: [Interpretation] We can put that forward as a

4 hypothesis, but it's not possible because Mr. Stojic cannot do so in view

5 of the defence we have been constructing for a full five months now.

6 JUDGE ORIE: Yes. Well, thank you for those answers.

7 When you say having one counsel is the best way of ensuring that

8 the two clients are not asked to be witnesses against each other, what's

9 the -- what do I have to understand by that if it would turn out to be

10 favourable for one of your clients that the other would testify?

11 MR. OLUJIC: [Interpretation] By this I mean, first of all, what

12 the opposing side wants in every trial, and that is to prove their case by

13 entering into an agreement, adding a number of arguments that the

14 Prosecution wishes to put forward in the judgement of the Court. That's

15 what I meant. And with the knowledge gained in both cases, I will be able

16 to help both clients to select what is best for them and what will give

17 them the best possible position in the trial that lies ahead of them.

18 That's what prompted me to write this.

19 JUDGE ORIE: So I do understand that by the best way of ensuring

20 that the two clients are not asked to be witnesses against each other,

21 that is that you consider being counsel of two accused the best way of

22 preventing them from entering into any agreement that would lead to

23 testimony to be given by your clients.

24 MR. OLUJIC: [Interpretation] The aim of both my clients is the

25 truth, not trade. Establishing the truth, not finding a way of strewing

1 themselves with ashes and being punished but to prove the truth. We will

2 prove that both indictments do not hold water, and we will do so only with

3 the truth and nothing but the truth.

4 JUDGE ORIE: Thank you for that answer. You also use the argument

5 that one Judge in two cases would be a relevant issue. At least a

6 relevant element to consider. Could you explain to me why you think that

7 could have an impact on the existence or non-existence of a conflict of

8 interest?

9 MR. OLUJIC: [Interpretation] Your Honour, I of course respect all

10 the Trial Chambers of this Tribunal, but as it so happens, both my cases

11 are before Trial Chamber I. When I wrote this, I felt that the Court

12 would be able to observe my professional work, and this also in view of

13 any possible conflict of interest, which is, of course, the duty of the

14 Trial Chamber. The Trial Chamber must watch over the way the case is

15 conducted, and should anything arise and should my professional dignity

16 ever be put into question, which I'm sure is not possible in view of my 30

17 years of experience, but to err is human. The Court, however, does not

18 err, and the Court would then be able to observe that I was doing

19 something to the detriment of one or the other of my clients because the

20 same Trial Chamber would be dealing with both cases. This is why I

21 mentioned this in my brief.

22 JUDGE ORIE: Yes. That might be too high a level of expectation

23 to think that a Trial Chamber could have a thorough knowledge of every

24 aspect and of every element of the confidential relationship between

25 client and counsel, but let me move to my next question to you.

1 You said you obtained the consent of your client, and you called

2 that an "unconditional consent." What does this actually mean? What is

3 an unconditional consent? Would that be mean that, for example, if later

4 on they -- a possibility of at least some conflict of interest could

5 become clear they should say, "No, you -- you consented now and we'll

6 continue"? Or how do we have to understand the unconditional consent?

7 MR. OLUJIC: Your Honour, the way I interpret it is that I

8 consider it the will of my client at that point in time. When he said

9 that, that was for me the law. However, should a client change his mind,

10 I would withdraw from the case voluntarily. I am bound to do so by my

11 code of honour and by the code of both the bars I belong to, the one of

12 this Tribunal as well. So it is the client who decides the manner in

13 which I will defend him and the extent to which I will defend him. It is

14 the client's will that is decisive, and the client, of course, may always

15 change his mind.

16 This, however, is not connected to one Defence counsel having two

17 cases. It refers to any Defence counsel in any case. Many counsel have

18 had the experience of withdrawing from a case because the client changed

19 his mind. It is the client's will that is of paramount importance.

20 Should either Stojic or Rajic say to me tomorrow, "I don't want

21 you to defend me any more," I would respect that.

22 JUDGE ORIE: Yes. Although the Chamber could instruct you to

23 continue the defence in order to prevent the disruption of the trial. But

24 my question was whether you could explain what "unconditional" means in

25 this context. I do understand now that you say if they give their consent

1 but if they withdraw that -- well, if they tomorrow say that they do not

2 want to be represented by you any more you would follow that instruction,

3 but what is now the unconditional consent? What's the difference between

4 a consent and an unconditional consent? What conditions could we have had

5 in mind saying that this is an unconditional one?

6 MR. OLUJIC: [Interpretation] Their wish and will at that point in

7 time was to engage me as their Defence counsel. I think there is no

8 difference. It is certainly not something that is absolute.

9 Of course, in real life the situation Your Honour has mentioned

10 could arise; that is, that the Chamber requests that I continue a defence.

11 Then I would be bound by the decision of the Trial Chamber, which I would

12 be duty-bound to respect. It would be binding on me.

13 JUDGE ORIE: Yes. Let's say at a later stage there would be a

14 matter which keeps your two clients apart but they both would agree to

15 be -- to be represented by you, to continue your representation of both.

16 Let's just take the example again, which is not a hypothetical example but

17 an example I read in your submissions.

18 Mr. Rajic says, "Well, I will stop the investigating, so don't

19 blame me for not further investigating and punishing people because I was

20 ordered to do so." Whether or not that would totally excuse him is a

21 different matter, but at least it explained why -- it could explain why he

22 didn't follow what he started to do. And then, if the -- at the higher

23 level including circles Mr. Stojic is charged to be in a joint criminal

24 enterprise with, if there was no -- no it's -- of course it's not our

25 interest then to -- we are blamed for stopping Rajic rather than the other

1 way, is that how -- but both clients would then say, "Well, let's

2 continue." What would you do? So a conflict of interest has become

3 apparent.

4 MR. OLUJIC: [Interpretation] Not their interest if they feel that

5 the situation is such that their best strategy and line of defence is the

6 one they have chosen.

7 JUDGE ORIE: So Mr. Rajic chooses to blame the higher up, and

8 Mr. Stojic would choose not to take responsibility for that, for ever

9 giving or joint criminal enterprise giving any instructions to stop

10 investigations. You'd continue the two lines of defence, contradicting

11 each other considerably.

12 MR. OLUJIC: [Interpretation] No. If their cases were

13 contradictory or if there was any sort of conflict between them, I would

14 not continue. I would continue, however, if I could do so by helping both

15 clients. I am watching out for the interests of both clients equally.

16 JUDGE ORIE: Yes. Another question: In the Rajic case, reference

17 is made -- no, let me stay out -- would you withdraw from both clients or

18 from -- would you choose from one of them under the circumstances you just

19 described?

20 MR. OLUJIC: [Interpretation] If it were not contrary to my own

21 moral principles, the work I have done and the success I have achieved in

22 the defence, then I would defend the other one.

23 JUDGE ORIE: Yes, but -- no. My question was: If a conflict of

24 interest has arisen, I asked you what you would do, whether you would

25 continue, yes or no. You said, "No, I would not continue." But from

1 which case would you withdraw in the -- well, would you withdraw from

2 Mr. Rajic? Would you withdraw from Mr. Stojic? Or would you say, "First

3 in, last out"? Or what would be your position?

4 MR. OLUJIC: [Interpretation] Both my clients are equally important

5 to me. To me, it is immaterial which one came -- was first in. I am

6 equally responsible to both of them for everything I do.

7 JUDGE ORIE: Yes. That's no answer to my question. My question

8 is on the basis of what would you choose either to withdraw? Would you

9 withdraw from both cases? Would you withdraw from one case? And if you

10 would withdraw from one case, on the basis of what criteria?

11 MR. OLUJIC: [Interpretation] This is too hypothetical for me to

12 answer, Your Honour. I would have to find myself in such a situation

13 first.

14 JUDGE ORIE: If you are thinking about risks of conflict of

15 interests, then you're always talking about a situation that does not yet

16 exist but nevertheless have to be calculated before taking any decisions.

17 Mr. Stojic, you have heard the whole of my questions. Are you

18 fully informed about all the submissions made by your counsel in respect

19 of this conflict of interest? Have you seen all his arguments presented?

20 Has he discussed them with you?

21 THE ACCUSED STOJIC: [Interpretation] Your Honour, I have seen

22 everything that Mr. Olujic told you. I have to tell you I am an economist

23 by profession, not a lawyer. It is only for the past four or five months

24 that I have worked with Mr. Olujic, so I cannot at this point give you a

25 proper reply. I'm sure, however, that there is no conflict of interest

1 between Rajic and me. I was not his superior. The Main Staff was his

2 superior. And I had nothing to do with the Main Staff. It was

3 responsible to the Supreme Command, directly.

4 JUDGE ORIE: Let me stop you for a moment. As I read out to you,

5 whether it's true or not is a different matter. Mr. Rajic -- part of the

6 defence of Mr. Rajic is that when he was allegedly under a duty to

7 investigate certain crimes that he was stopped by Mate Boban at that time,

8 at least according to your counsel, the president of the -- the president

9 of the Croatian Republic of Bosnia-Herzegovina.

10 The indictment states that you, together with others, among who

11 Mr. Boban were engaged in a joint criminal enterprise. That means that if

12 there would be a shared intent and if certain conditions would be

13 fulfilled, that you're held to some extent responsible for also what the

14 others in the joint criminal enterprise did.

15 Now, Mr. Rajic is pointing at one of the members of the joint

16 criminal enterprise and saying, "He stopped me from doing what I,

17 according to the indictment, should have done." That makes him pointing

18 at, well, a group of persons, in the view of the Prosecution, including

19 you, who is blamed by Mr. Rajic for instructing him to do certain matters.

20 So if you say it's all hypothetical, it's not hypothetical at this

21 moment. It's -- I would say what -- I point it as a risk by further

22 verification seems not only to be a risk but seems to materialise already.

23 So I want you to be aware of that. But of course you're free to express

24 your point of view, but if you say it's all just hypothetical, it's -- but

25 please continue. I interrupted you.

1 THE ACCUSED STOJIC: [Interpretation] Your Honour, when Stupni Do

2 happened, at that point in time, a few days later, I left the position of

3 minister of defence. I did not take part in the subsequent events. I'm

4 sure if Rajic said that, he wasn't referring to me. I haven't read what

5 he submitted, but I'm sure he couldn't have meant me. He couldn't have

6 meant me, because I was just about to leave.

7 JUDGE ORIE: Yes. The period of the indictment, however, still

8 continues.

9 May I take it that you're still -- you have not changed your mind?

10 You still want to be represented by Mr. Olujic? Is that correct?

11 THE ACCUSED STOJIC: [Interpretation] Your Honour, may I say

12 something? I chose Zeljko Olujic of my own free will because I know him

13 before. I know his moral character. I know his professional abilities.

14 Many friends of mine have told me about him, what sort of person he is and

15 what kind of lawyer he is. This was my will and my choice. I have been

16 working with Mr. Olujic for four or five months, and we have come a long

17 way towards preparing my defence.

18 I wish to point out that I want to defend myself only with the

19 truth. I don't want anyone to construct a defence for me other than that.

20 I'm sure that no one can impose on me any kind of defence I do not want.

21 Mr. Olujic is an honourable man. When I read the indictment, I

22 was shocked, and so was my family. At that point, what mattered most to

23 me was the welfare of my family.

24 Ten days ago, my family came to visit me, and they talked more

25 about Zeljko Olujic than they did about me. I came to understand that he

1 was helping them live a normal life, and if at all possible, I wish to

2 continue working with Mr. Olujic. Thank you.

3 JUDGE ORIE: Thank you. The Chamber will deliberate on whether

4 that would be possible as you requested.

5 Mr. Olujic, I have no further questions to you, nor do I have any

6 further questions for Mr. Stojic.

7 Then Mr. Jonjic, you're the last one, and I think as a matter of

8 fact that we would not need much time, as a matter of fact.

9 But I would like to ask the security to escort Mr. Stojic out of

10 the courtroom and to ask Mr. -- ask them to escort Mr. Coric into the

11 courtroom.

12 [The accused Stojic withdrew]

13 [The accused Coric entered court]

14 JUDGE ORIE: Good afternoon, Mr. Coric. Please be seated. We are

15 discussing at this moment the possible conflicts of interest by counsel

16 that are representing more than one accused before this Tribunal.

17 I -- since you have not made any request, Mr. -- I do understand

18 there are some problems with the earphones. Can you now hear me,

19 Mr. Coric?

20 THE ACCUSED CORIC: [Interpretation] Yes, I can hear you,

21 Your Honour.

22 JUDGE ORIE: I just explained that we are discussing at this

23 moment the possible conflicts of interest of counsel representing more

24 than one accused before this Tribunal, which is of some concern to the

25 Chamber.

1 Mr. Jonjic, we have carefully read also the observations by the

2 Registry, the Registry which is less concerned about the conflict of

3 interest in the case of Mr. Coric and Mr. Ljubicic.

4 The -- do I well understand that the main point of where same

5 events are covered by both indictments is the Ahmici 1993 issue?

6 MR. JONJIC: [Interpretation] Your Honour, the indictment, the

7 amended indictment against Mr. Pasko Ljubicic includes some other events

8 which occurred in the first half of 1993 in the area of the Busovaca and

9 Vitez municipality in Central Bosnia, in the Lasva River Valley. But, of

10 course, Ahmici is the most important event, and it's the greatest crime

11 that happened in that area. There is no doubt about the fact that that is

12 the central point or the mainstay of the indictment against Mr. Ljubicic.

13 JUDGE ORIE: Yes. May I put a question to you? When I yesterday

14 heard you expressing your confidence in the cooperation of the Croatian

15 government, it came into my mind that in the Ljubicic case you were far

16 less convinced, it seemed, of the cooperation of the Croatian government.

17 I remember that it took approximately one year to figure out they are not

18 cooperative in whatever way.

19 Is there any problem, as far as you're concerned, on the one hand

20 in the one case having to defend that the Croatian government is the most

21 reliable government and which gives all assistance including documents, as

22 was specifically mentioned yesterday, whereas I know that in the Ljubicic

23 case, especially getting documents was quite a problem. Could I have your

24 comment on that.

25 MR. JONJIC: [Interpretation] Of course, Your Honour. Yesterday

1 when I was expressing confidence in the readiness of the Croatian

2 government to extend the guarantees that it has extended in this case,

3 then that confidence was limited exclusively to the validity of those

4 guarantees. Perhaps you know that as far as those guarantees or similar

5 guarantees in the case of -- in the Ljubicic case we had serious problems

6 with the Croatian government. At first the Croatian government extended

7 these guarantees after which it then withdrew them. In the meantime, of

8 course, there was some political changes in the Republic of Croatia so

9 that I think that after those changes I can, without any reserves, believe

10 in the readiness of the Croatian government to respect the guarantees it

11 has extended to the six accused in this case.

12 This, of course, does not mean that I have no reservations

13 regarding the readiness of some parts of the Croatian state

14 administration. It wouldn't be quite precise to say that we are talking

15 about the failings of the present government because the problems that Mr.

16 Ljubicic and I as his Defence counsel had with the Republic of Croatia

17 date back to the behaviour of the previous government, the government

18 which at last year's elections was defeated, last elections of November.

19 The engagement of that government or parts of that earlier

20 government regarding archived documents amounted to what, according to my

21 and Mr. Ljubicic's deep conviction, was not something that was in

22 accordance with the Croatian laws and the constitution and the laws

23 covering the republic's cooperation with this Tribunal.

24 After the present government came to power, the conditions have

25 normalised and now we have unlimited access to all the materials which

1 were earlier located in the ministry of defence and which were given to

2 the Croatian State Archive on December -- in December 2003. We don't know

3 whether a part of the documentation was physically destroyed or not during

4 the rule of the previous government. This is something that is still to

5 be established.

6 However, my --

7 JUDGE ORIE: Mr. Jonjic, I'm going to stop you. You'll understand

8 not the details of these matters are that relevant at the moment but the

9 dilemma it could create.

10 May I ask you, did you discuss with your client the possibility

11 that the two cases you're involved in, that is the Ljubicic case and the

12 case against Mr. Coric, for example, could be heard at the same time? And

13 would you consider it possible for yourself to do two trials at the same

14 time? Many counsel have already difficulties in managing one at the same

15 time.

16 MR. JONJIC: [Interpretation] Your Honour, I did discuss this with

17 Mr. Ljubicic and Mr. Coric, that is the possibility that both cases would

18 be tried at the same time. And of course we discussed the possibility or

19 the risk of a theoretical conflict of interest appearing. We discussed

20 this at the theoretical level.

21 I don't believe that this is a real danger in view of the fact

22 that the Ljubicic case is in its final stages. The pre-trial motions have

23 been submitted a year ago, and we believe that the trial should start

24 quite soon.

25 However, it is quite clear to me that if this theoretical

1 situation should really come to be, for these two cases to be tried at the

2 same time, it would not be serious to say that both of the cases could be

3 conducted with the same quality if they were -- if these two trials were

4 held at the same time.

5 JUDGE ORIE: What would you do?

6 MR. JONJIC: [Interpretation] In such a case, of course, we are

7 speaking from the position that this will not happen. I said to Mr. Coric

8 quite openly, without any hesitation, that with all my regret, I would

9 have to stay loyal to Mr. Ljubicic regardless of the difficulties that

10 that would pose for me and Mr. Coric, because Mr. Ljubicic's case began

11 first. The pre-trial phase has been under way for 33 months now, and it

12 would be quite unfair for me to abandon him and to hand over my role as

13 Defence counsel to someone else. Of course, Mr. Ljubicic is aware of this

14 situation.

15 JUDGE ORIE: Yes. Mr. Coric, may I ask you the following

16 question: Could you explain to me exactly to what extent and where the

17 links are between the case against Mr. Ljubicic and your own case.

18 THE ACCUSED CORIC: [Interpretation] Your Honour, I am aware of

19 both indictments, of my own and the one for Mr. Ljubicic. The events that

20 overlap in both indictments are very small, minor. I am aware of a

21 possible conflict of interest. A theoretical risk of that does exist in

22 these two cases, but I am convinced that the further developments of this

23 case here and, based on my overview of the two cases, I believe that there

24 will be no conflict.

25 I would like to ask you to believe in my personal choice of my

1 Defence counsel. I believe in his professional qualifications, and I

2 believe that this will not be prejudicial to either myself or to

3 Mr. Ljubicic, if he represents both of us.

4 JUDGE ORIE: You say a theoretical risk does exist. Where would

5 that risk be?

6 THE ACCUSED CORIC: [Interpretation] I would not dare to go into

7 specific events from the period for which both of us are indicted, but I

8 know that this overlap is minor, practically negligible. I know that

9 Mr. Ljubicic's indictment is based on events that took place in Central

10 Bosnia, and as far as I could see in my indictment, this area is not part

11 of the indictment against me.

12 JUDGE ORIE: Yes. Well, you explained where there would be no

13 conflict of interest possible instead of explaining to me where you saw

14 that risk, but I'd rather leave it to it for the time being.

15 Let me just -- one second.

16 [Trial Chamber and legal officer confer]

17 JUDGE ORIE: I've got no further questions for you. The -- you've

18 answered the questions, the -- you've certainly assisted the Chamber in

19 clarifying the issue so that we can make our decisions.

20 Just for completeness' sake, is there anything else you would like

21 to raise at this moment? I didn't ask other counsel, so I would like to

22 ask you, Mr. Jonjic, to keep it to a minimum.

23 Mr. Scott, I take it that taking into account your specific

24 position here, that there is no need to further address me.

25 MR. SCOTT: No, Your Honour. Thank you.

1 JUDGE ORIE: Then this concludes this hearing. The Chamber will

2 give a decision on the issue to the extent necessary. We will adjourn.

3 --- Whereupon the Motion Hearing adjourn

4 at 3.56 p.m.

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