Tribunal Criminal Tribunal for the Former Yugoslavia

Page 337

1 Tuesday, 23rd February, 1999

2 (Open session)

3 (The accused entered court)

4 --- Upon commencing at 10.17 a.m.

5 JUDGE BENNOUNA: (Interpretation)

6 Mr. Registrar, can you call the case, please?

7 THE REGISTRAR: Good morning, Your Honours.

8 Case number IT-95-9-PT, the Prosecutor versus Milan

9 Simic, Miroslav Tadic, Steven Todorovic and Simo

10 Zaric.

11 JUDGE BENNOUNA: (Interpretation) First of

12 all, for the benefit of the two parties, I should like

13 to say that Judge Richard May is very sick today. He

14 has gone down with flu and he apologises for his

15 absence. I am, therefore, going to ask the parties,

16 that is the Prosecution and the Defence, first of all

17 to introduce themselves, and then I would like to hear

18 their view, that is whether they agree that the Chamber

19 sit in this composition, that is Judge Patrick Robinson

20 and myself, but first let me ask you to introduce

21 yourselves, please.

22 MS. HASLUND: Thank you, Your Honour. The

23 Prosecution --

24 JUDGE BENNOUNA: (Interpretation) Can the

25 accused follow in a language they understand?

Page 338

1 MR. PANTELIC: No, Your Honour.

2 JUDGE BENNOUNA: (Interpretation) No? There

3 appears to be a translation problem. Let us check with

4 the booth, please. Can you hear us now? Can the

5 accused understand and follow in a language that they

6 understand? There's the English translation for the

7 parties. Are you able to follow the English

8 translation?

9 Legal officer, can someone assist Judge

10 Robinson, please?

11 MS. FEATHERSTONE: One, two, three. One,

12 two, three. English booth? One, two, three?

13 JUDGE BENNOUNA: (Interpretation) Is it all

14 right now?

15 JUDGE ROBINSON: Yes.

16 JUDGE BENNOUNA: (Interpretation) The

17 Prosecutor, please. Will you please -- let's hear the

18 appearances for the Prosecution, please.

19 MS. HASLUND: Thank you, Your Honour. I am

20 Anne Haslund. I appear on behalf of the Prosecutor,

21 and on my right side is Ms. Nancy Paterson, and on my

22 left side is Ms. Mary MacFadyen, and there is Carmela

23 Annik-Janvier, our case manager. We do not object that

24 only two Judges participate in this hearing. Thank

25 you.

Page 339

1 THE INTERPRETER: Microphone, please.

2 Microphone, Defence counsel. Microphone, please. It's

3 not switched on.

4 MR. BRASHICH: I always seem to have a

5 problem with this microphone. With regard to the

6 inquiry by the Court as to the composition of the

7 panel, I would like to consult with other Defence

8 counsel before expressing a position, and, therefore,

9 after the parties and their counsel introduce

10 themselves, I would like to caucus with Defence counsel

11 if that request would be granted by the Court. Thank

12 you.

13 JUDGE BENNOUNA: (Interpretation) That's

14 perfect. Let me ask the other Defence counsel to

15 introduce themselves and then we will give you a few

16 minutes to consult amongst each other before we ask for

17 your answer. Will the other Defence counsel introduce

18 themselves, please?

19 MR. AVRAMOVIC: (Interpretation) Your

20 Honours, my name is Branislav Avramovic, Defence

21 counsel for Milan Simic.

22 JUDGE BENNOUNA: (Interpretation) Thank you.

23 MR. PISAREVIC: (Interpretation) Your

24 Honours, my name is Borislav Pisarevic, Defence counsel

25 for the accused Mr. Simo Zaric.

Page 340

1 MR. PANTELIC: Your Honour, I'm Igor

2 Pantelic, Defence counsel for Miroslav Tadic. Although

3 I'm not so in good shape these days because of the flu

4 but still I'm here. Thank you.

5 JUDGE BENNOUNA: (Interpretation) Thank you,

6 Mr. Pantelic.

7 MR. DE SAINT JUST: (Interpretation)

8 Mr. President, I'm Saint Just from the Paris bar, and

9 I'm co-counsel of Mr. Pantelic for Miroslav Tadic, and

10 this is the first time that I appear in your court,

11 Your Honour.

12 JUDGE BENNOUNA: (Interpretation) Thank you

13 and welcome.

14 At the request of Mr. Brashich, you wish to

15 consult with the other Defence counsel?

16 MR. BRASHICH: I would request only two or

17 three minutes, and rather than having the Court be

18 disturbed, perhaps I and co-counsel could just go to

19 the robing room for one minute and exchange views and

20 come right back in without disturbing the Court.

21 JUDGE BENNOUNA: (Interpretation) Yes, please

22 do that. We have -- we shall have a two-minute break

23 to give Defence counsel time to consult.

24 (Short break)

25 JUDGE BENNOUNA: (Interpretation) Mr.

Page 341

1 Brashich?

2 MR. BRASHICH: I have consulted with

3 co-counsel -- Defence counsel, and the position that I

4 take on behalf of the defendant Todorovic, is that all

5 motions now pending before the Court I will agree as to

6 the composure of the panel, except for two motions I

7 have made with regard to the defendant Todorovic, and

8 that is the motion to sever and the motion for an

9 evidentiary hearing on the arrest and detection of my

10 client. I would like to have a full bench with regard

11 to those two motions.

12 JUDGE BENNOUNA: (Interpretation) Thank you,

13 Mr. Brashich. I'm going to consult with my colleague.

14 The Chamber accepts your request. Therefore,

15 we're going to deal with all the pending motions that

16 I'm going to refer to in a moment, with the exception

17 of two motions, the motion for a severance and the

18 motion on evidentiary hearing on the arrest, regarding

19 which we will have another hearing later on with the

20 full composition of the Chamber to -- in response to

21 your request.

22 The motions -- the total number of pending

23 motions are 15. We have four motions submitted by the

24 Prosecution, the Office of the Prosecution, and eleven

25 motions submitted by the Defence, basically by the

Page 342

1 Defence of Mr. Todorovic. I would suggest -- of

2 course, we received the motions and virtually all the

3 responses to those motions yesterday evening. I would,

4 therefore, suggest that we first hear the motions of

5 the Prosecution in the following order: The two

6 motions on judicial notice on the character of the

7 conflict, that is judicial notice regarding the

8 character of the conflict --

9 THE INTERPRETER: The Judge is repeating in

10 French.

11 JUDGE BENNOUNA: (Interpretation) -- and

12 judicial notice of adjudicated facts, which, in my

13 view, could be heard together.

14 I shall first give the floor to the Office of

15 the Prosecution regarding these two motions before

16 hearing the defence. After that we will proceed in the

17 following order: We will address the motion on the

18 admission of evidence, followed by the motion on the

19 conflict of interest, which was also submitted by the

20 Prosecution, and then I will give the floor to Defence

21 counsel and we will proceed with the motion submitted

22 by the Defence. Mr. Brashich?

23 MR. BRASHICH: The way the Court has

24 suggested -- or ordered, could I possibly suggest that

25 the first order of business would be the conflict of

Page 343

1 interest of one of the Defence counsel? If that is

2 decided subsequently, then we would have a defendant

3 without counsel present in these proceedings. So if I

4 could respectfully suggest that we clear up that matter

5 first, as to whether or not there is a conflict with

6 one of the Defence counsel. And assuming that the

7 Court rules that there is no conflict, then we could

8 proceed with the other motions. This is only a

9 suggestion, Your Honour.

10 JUDGE BENNOUNA: (Interpretation) The view of

11 the Prosecution, please?

12 MS. HASLUND: The Prosecution will leave it

13 to the Court to decide in what order the motions should

14 be orally argued.

15 JUDGE BENNOUNA: (Interpretation) Let us begin

16 then with the motion on the conflict of interest

17 submitted by Madam Haslund, and you have the floor.

18 MS. HASLUND: As the Prosecution is

19 represented by three lawyers. I shall inform the Court

20 and my learned colleagues on the defence bar that we

21 have divided the tasks among us, and Ms. Nancy Paterson

22 will represent -- will represent the Prosecutor in the

23 oral argument on the international conflict and the

24 adjudicated facts. Thank you.

25 If Your Honour decides that the motion

Page 344

1 submitted by the Prosecution on the conflict of

2 interest should be dealt with first, it will be

3 Ms. Mary MacFadyen who will represent the Prosecutor.

4 Thank you.

5 JUDGE BENNOUNA: (Interpretation) Ms. Mary

6 MacFadyen, you have the floor.

7 MS. MacFADYEN: (Interpretation) I'm Canadian

8 but English speaking, so I'm going to speak in English

9 if you don't mind.

10 (In English) The Prosecution motion asking

11 for the Court to determine if there is indeed a

12 conflict of interest regarding Mr. Pisarevic's --

13 Mr. Pisarevic's representation of Mr. Zaric was filed

14 on December 16th. There was only one response from the

15 Defence counsel, and that was on January 21st, 1999

16 from Mr. Pisarevic.

17 Some recent developments since the Defence

18 motion was filed should be brought to the notice of the

19 court, and that is with respect to the footnote number

20 23 in the Prosecution's motion, which indicates that

21 Mr. Pisarevic is aided by Mr. Nenad Borcilovic. I

22 understand that he was registered with the Registry as

23 a legal assistant until January 29th of this year, at

24 which time he was replaced by a Mr. Lasarevic, I

25 believe, or Jaravic. I'm not exactly sure what his

Page 345

1 first name is, the Registry didn't give me that. It

2 appears that he was replaced as a legal assistant for

3 Mr. Pisarevic very shortly after the Status Conference

4 on January 21st, 1999.

5 It is the Prosecution's contention that

6 Mr. Pisarevic, even if all of the parties present do

7 not intend to call him as a witness at this time, is

8 likely to be a witness because of his position and

9 knowledge of the facts. Those are set out in the

10 Prosecution's motion, and I will just summarise them.

11 There are four matters that Mr. Pisarevic

12 would have personal knowledge of and which he might be

13 called as a witness, most likely in rebuttal if not in

14 cross-examination or in direct, but if, in fact, all

15 the parties agree that he wouldn't be called as a

16 witness, then it would be most likely in rebuttal, and

17 that is with respect to his relationship with the

18 victim-witness Mr. Sulejman Tihic.

19 According to Mr. Tihic, a statement which has

20 been presented to the Defence and the court in the

21 confirmation materials, Mr. Tihic, on the night of the

22 invasion of Bosanski Samac on April the 17th, 1992,

23 stayed at the house of Mr. Pisarevic, and, in fact,

24 talked to him about whether or not he should

25 surrender.

Page 346

1 Mr. Pisarevic apparently phoned Simo Zaric

2 and Blagoje Simic both of whom are co-accused in this

3 matter, and according to the witness Mr. Tihic, Blagoje

4 Simic demanded that Mr. Tihic surrender, but Mr. Zaric

5 told him not to. However, Mr. Pisarevic later on

6 accompanied Mr. Tihic to the police station where, in

7 fact, he was arrested by Mr. Todorovic -- well, he was

8 presented to Mr. Todorovic, and he was taken there at

9 gun point.

10 So, in fact, Mr. Pisarevic is witness to a

11 conversation that was, as far as the Prosecution is

12 aware, between himself and two co-accused. Mr. Tihic

13 can only testify as to what he heard on one side of the

14 conversation. It has been indicated in the response by

15 Mr. Pisarevic to the motion that, in fact, everything

16 that Mr. Tihic says is in dispute.

17 I suggest, therefore, that the only evidence

18 of what really occurred in that conversation either

19 comes from either of the accused or Mr. Pisarevic. If

20 neither of the accused wish to testify for any other

21 reasons, they would be forced to testify in order to

22 give the Court full knowledge of this conversation,

23 which I suggest goes to the credibility of Mr. Tihic,

24 the witness. One of the important witnesses in the

25 Prosecution's case.

Page 347

1 The second point that would indicate

2 Mr. Pisarevic is -- his knowledge is of importance with

3 respect to his position on conflict is that prior to

4 the invasion on April 17th, 1992, he was the president

5 of the Party of Democratic Changes, which the

6 Prosecution hopes to show was connected with the

7 Serbian party. He apparently had advance knowledge,

8 according to the Prosecution's witnesses, of the

9 invasion. And since in some of the counts in the

10 indictment that is before the court today it's

11 indicated that the planning and instigation, the

12 commission of persecutions and deportations as a result

13 of much of the planning that occurred through party

14 before the invasion, I would suggest that

15 Mr. Pisarevic's personal knowledge of what went on

16 would be of great value to the Prosecution, if not the

17 Defence.

18 Thirdly, there is a witness, Omar Nalic,

19 whose name was disclosed to the Defence on January 21st

20 at the Status Conference and also in this motion,

21 December the 16th, who claims to have had a forced

22 confession extracted from him by Simo Zaric. It was

23 later used, it was later indicated to him that it would

24 be used, in a Serbian military Court in Jelina, at

25 which Mr. Pisarevic was also present. The victim

Page 348

1 statement is a little vague on this point, it's quite

2 true. Mr. Pisarevic at that time indicated that he

3 would either represent Mr. Nalic or find someone to

4 represent him. He then disappeared from the scene. As

5 a consequence of this military Court in Jelina,

6 Mr. Nalic was convicted of armed insurrection.

7 Fourthly, Mr. Pisarevic was a witness himself

8 to an important event in the Prosecution's case, and

9 that is with respect to the counts charging the beating

10 of Hasan Bisic, Muhamed Bisic, and Perica Misic.

11 According to the witness statements, they were beaten

12 by Mr. Milan Simic, and following that beating,

13 Mr. Simic took Hasan Bisic and Perica Mesic out of

14 detainment for an evening of entertainment at his

15 office. On the way back from his office, Mr. Hasan

16 Bisic and Perica Misic saw Mr. Pisarevic, whom they

17 knew before, because he was a prominent citizen of

18 Bosanski Samac, on the street.

19 It is the Prosecution's contention, and

20 certainly would be that that is conclusory of the

21 witness statements, that Mr. Pisarevic may have been

22 able to see what condition these two witnesses were in

23 at the time, or even who they were with, in some way

24 corroborating their testimony. I would suggest that in

25 this particular case, Mr. Pisarevic's evidence, unless

Page 349

1 there is another witness who can testify as to the same

2 thing, is essential.

3 With respect to this Court being asked to

4 decide if there is a conflict of interest, it is not

5 the usual course of events that a Court is asked to

6 determine whether counsel in a matter before it suffers

7 from a conflict of interest; but in this case there is

8 no international bar association which can sanction any

9 participant in this particular Court. In fact, there

10 is a code of professional ethics set out by the

11 Tribunal, and it indicates that in fact, no conflicts

12 of interest will be tolerated.

13 According to -- according to page 10 of the

14 Defence motion on conflicts, Article 9 (ii) of the

15 Professional Ethics Code indicates that when conflicts

16 arise -- sorry; in the course of representing a client,

17 counsel must exercise all care to ensure that no

18 conflict of interest arises. And under 9(v), where a

19 conflict of interest arises Article 9(v) provides that

20 the counsel must promptly and fully each potentially

21 affected client of the and nature and extent of the

22 conflict and either take all steps necessary to remove

23 the conflict or obtain the full and informed consent of

24 all potentially affected clients to--

25 THE INTERPRETER: Counsel, slow down, please.

Page 350

1 MS. MacFADYEN: -- So long as counsel is able

2 to fulfil all other obligations under this code.

3 Under 9(i) of the Code of Professional

4 Conduct, which appears on page 13 of the Prosecution's

5 motion, counsel owes a duty of loyalty to his or her

6 client. Counsel must at all times act in the best

7 interests of the client and must put those interests

8 before their own interests or those of any other

9 person.

10 In article 9(iii)(C) also on page 13 of the

11 Prosecution's motion, it indicates that the counsel's

12 professional judgement on behalf of the client will be

13 or may be reasonably expected to be adversely affected

14 by the counsel's responsibilities to or interests in a

15 third party.

16 Therefore I would suggest that

17 Mr. Pisarevic's personal knowledge and dealings with

18 certain of the coaccused, and of the victim/witnesses

19 and his knowledge of the party which is personal to

20 him, would affect his judgement with respect to his

21 client and also with respect to his cross-examination

22 of the victim/witnesses.

23 JUDGE BENNOUNA: (Interpretation)

24 Ms. McFadyen, I forgot to specify, and I'm doing it

25 now, perhaps -- I hope it is not too late, to the

Page 351

1 extent to which we have the documents, either of the

2 Prosecution or the Defence, as you know, the rule is

3 that during the hearing, we refer to the substance;

4 that is, the points that have not already been made in

5 the motions. I'm drawing your attention to this to say

6 that the chamber would like the arguments to be limited

7 to five or to ten minutes on each side.

8 I will finish very soon. I'm not trying to

9 prevent you from admitting any of your arguments, but

10 I'm just asking you to focus on the essential. Thank

11 you.

12 MS. MacFADYEN: The last point that I would

13 like to make, then, in fact, is that Mr. Pisarevic may

14 argue that in fact the accused has the right to a

15 counsel of his choice. I would only signal Your

16 Honour's attention to the European Human Rights

17 Commission convention which indicates, at page 17 of

18 the Prosecution's motion, the right to defend one's

19 self through assistance of one's own choosing is not an

20 absolute right, but limited by the right of the state

21 to make regulations concerning the appearance of

22 lawyers before courts. The state has full discretion

23 to exclude lawyers from appearing before courts.

24 Those were all the points that the

25 Prosecution wants to bring to your attention; thank

Page 352

1 you.

2 JUDGE BENNOUNA: (Interpretation)

3 Ms. McFadyen, you quoted Article 9 that we have in

4 front of us, and that you used in your motion to which

5 you have referred, which speaks about the duty of

6 counsel. That is Article 9(i), is as follows.

7 Just a moment; I still haven't put my

8 question to you.

9 You spoke about the absence of an

10 international bar association. In your opinion, does

11 this Tribunal, our Tribunal, have the jurisdiction,

12 according to its statute and its Rules of Procedure and

13 the code of ethics, to take a decision and eliminate or

14 prevent an attorney from defending an accused?

15 MS. MacFADYEN: This matter, namely conflict

16 of interest, presented to the Tribunal by a Defence

17 counsel, is before the Tribunal as we speak in the

18 Jelisic case. It is another type of conflict of

19 interest but in fact the Tribunal is being asked at the

20 same time to rule on a conflict of interest, because of

21 the fact that they have to be the final arbiter of the

22 code of professional ethics in the Tribunal, and their

23 own law.

24 JUDGE BENNOUNA: (Interpretation) Thank you,

25 Ms. MacFadyen.

Page 353

1 Judge Patrick Robinson has a question for

2 you.

3 JUDGE ROBINSON: Ms. MacFadyen.

4 MS. MacFADYEN: Yes.

5 JUDGE ROBINSON: If the chamber is to

6 determine this question of a conflict, might it not be

7 the case that in view of the submissions that have been

8 made by the attorney you may have a conflict as to

9 facts, and would that not require a determination by

10 the chamber as to those facts, where there is a dispute

11 as to the facts? Would that not require an evidentiary

12 hearing? Is this going to require a hearing? Would

13 you like to address the question whether it would not

14 be more appropriate for the chamber to deal with this

15 question if and when it arises during the trial?

16 MS. MacFADYEN: Your Honour, I believe that

17 the Rules actually deal with this question, and that is

18 that they indicate that where there is no dispute in

19 matters of facts then it makes no difference that the

20 counsel representing an accused before the Tribunal has

21 a conflict of interests. But where there is dispute of

22 facts, then that causes a conflict of interest; that is

23 not possible before the Tribunal. I would suggest

24 because of Mr. Pisarevic's response, he indicates in a

25 couple of points at least, if not all four, that those

Page 354

1 facts are in dispute. Therefore, I would suggest that,

2 in fact, the very fact that there's a dispute is

3 enough, without going into the actual facts themselves

4 and what is in dispute.

5 JUDGE BENNOUNA: (No interpretation).

6 THE INTERPRETER: Could we ask your honour to

7 turn his microphone on, please.

8 JUDGE BENNOUNA: (Interpretation)

9 Mr. Pisarevic, my microphone was not on. I'm giving

10 you the floor now.

11 Excuse me; the same rule applies. Please

12 limit yourself to the amount of time which is given to

13 you; that is about ten minutes.

14 MR. PISAREVIC: (Interpretation) Your Honour,

15 I do appreciate your remark, and I fully understand it

16 and I will do my best to adapt my intervention to that

17 time limit. However, in view of the fact that we are

18 dealing here with a very serious issue, I'm convinced

19 that you will understand me if I do overstep that time

20 limit.

21 First of all, let me express my deepest

22 gratitude to this Tribunal for providing me with an

23 opportunity to address this issue, to express my

24 position regarding the Prosecutor's motion about the

25 conflict of interest involving myself personally and

Page 355

1 the interests of my client, Mr. Simo Zaric, and also

2 possible conflict of interest with other co-accused

3 Mr. Miroslav Tadic, and Mr. Milan Simic and Todorovic.

4 Your Honours, I have already submitted my

5 written response to remove me as Defence counsel of

6 Mr. Simo Zaric. However, I feel the need to, further

7 on, express my position regarding the potential

8 conflict of interest.

9 In view of the protection of interests and

10 rights of Mr. Zaric, his right to have a fair trial, my

11 conscience and my professional ethics demand that I

12 express my position regarding all relevant issues

13 mentioned in the motion of the Prosecution.

14 I do appreciate the concern of the Prosecutor

15 and I do appreciate the wish to have -- to secure a

16 fair trial to the accused Mr. Simo Zaric. I also

17 appreciate the wish of the Prosecution to point to the

18 possible consequences of the Trial Chamber which may

19 arise during the proceedings.

20 I'm placing a lot of effort -- I've been

21 doing this for this past four years, to make sure that

22 my client, Mr. Simo Zaric, receives a fair trial, and

23 with that objective in mind, as early as April 1996, a

24 long time ago, therefore, I, together with the approval

25 of Mr. Zaric and Mr. Tadic, made direct contact with

Page 356

1 the investigators of the OTP and with the legal advisor

2 Ms. Nancy Paterson in person. We met in the town of

3 Orasje which is within the federation of Bosnia and

4 Herzegovina.

5 Therefore, we've been in contact for the past

6 four years, and I believe that we've had a very good

7 co-operation throughout that time, and I also think

8 that the results of that co-operation can be seen from

9 the voluntary surrender of Mr. Tadic, Mr. Zaric and

10 Mr. Simic. They are surrendered to the competence of

11 the International Tribunal.

12 Our co-operation was emphasised by the

13 Prosecutor throughout the preliminary proceedings, and

14 we are still endeavouring to promote that co-operation

15 so much as it is, of course, in the interests of our

16 clients and in the interest of the Defence.

17 The Prosecutor has mentioned a number of

18 facts. In their view these facts are in dispute, but

19 I'm afraid that they have been erroneously presented.

20 The allegations of the Prosecution that I am

21 a citizen of the town of Samac are true. I was born in

22 Samac, I completed my education there. I went to the

23 university in Sarajevo, and in 1972 I was an intern

24 Judge in Samac and the president of the Municipal Court

25 in Samac, and I've been working as attorney at law

Page 357

1 since 1980. I'm still doing the same job in the town

2 of Samac.

3 It is also true that I am very well-known

4 person both as a lawyer and as a politician. It is

5 true that I was president of the Social Democratic

6 Party in the municipality of Samac. I was a member of

7 the parliament which was established after the first

8 multi-party elections in 1990.

9 At that time, as an MP, and together with

10 other members of my party, we were representing the

11 only opposition party in the then parliament which was

12 dominated by the HDZ, SDS and SDA in coalition.

13 My participation in the government was

14 inexistent at that time, both de jure and de facto,

15 except for my political activities within the Social

16 Democratic Party, which were most of all in favour of

17 peace and fighting against war.

18 It is true that certain witnesses which have

19 been mentioned have been my clients. I represented

20 them before state and judiciary organs in various

21 proceedings. It is also true that many witnesses were

22 my colleagues -- are still my colleagues,

23 professionally speaking, and they're also my friends.

24 It's also true that during the relevant times

25 during the conflict I was in Samac all the time, and it

Page 358

1 is true that I was a member of the army of the

2 Republika Srpska until I was wounded on the 20th of

3 September, 1992. After treatment I went back to the

4 army and I was fulfilling various duties and tasks

5 until 1996.

6 As regards my assistance to Mr. Tihic, I can

7 say the following: It is not true that Mr. Tihic came

8 to see me at my house. If one reads very carefully the

9 statement given by Mr. Tihic, it follows -- it will

10 become apparent that I myself went to see Mr. Tihic, in

11 my car, I went to get him and his wife, and it is not

12 true that he spent night at my place. That occurred

13 later on, on the next day. The idea was simply to

14 provide assistance to Mr. Tihic. I didn't want him to

15 experience any troubles.

16 It is also erroneous that I talked to

17 Mr. Zaric and Mr. Blagoje Simic as the Prosecutor has

18 indicated. It was Mr. Tihic first who established

19 contact with them. It is true that I myself, I also

20 talked to them, but it was with the purpose of

21 preventing a sort of major -- more serious conflict in

22 the town of Samac. However, that conflict was already

23 looming in the town.

24 It is not true that I escorted Mr. Tihic to

25 the police station. Mr. Tihic and myself were taken,

Page 359

1 both of us, to the police station.

2 All this, if the Prosecution made any effort

3 to read it more carefully, can be found in the

4 statement of Mr. Tihic and in the recollections of

5 Mr. Tihic that have been provided to us as discovery

6 material.

7 It is also true that I talked to Mr. Tihic

8 when he came to see me the next night, but we were

9 discussing the possibility of what can be done so that

10 we can prevent a conflict.

11 Further, it is not true that I was the only

12 witness of the arrest of myself and Mr. Tihic.

13 Witnesses will be called before this Tribunal,

14 witnesses that have been proposed and who were also

15 eyewitnesses to the incident, and they will be given an

16 opportunity to discuss this issue.

17 As regards Mr. Tihic's claim that I had sided

18 with Serbs, well, I believe this is just his personal

19 opinion. However, the fact is not true, because I was

20 fiercely opposed to any nationalism, regardless of the

21 ethnic community it was coming from, because

22 nationalism could be seen in all three ethnic

23 communities and generated by all three nationalistic

24 parties. I did not participate in the government, and

25 later on it was obvious that we had no influence in the

Page 360

1 conflict, and we didn't have any influence in the

2 Republika Srpska and in Bosnia-Herzegovina in general.

3 Everything that happened happened through the

4 participation of the parties in power.

5 And I want to make one thing clear before

6 this Trial Chamber. I am a Serb and I am a Serb

7 patriot. However, I'm not a nationalist. I'm not a

8 chauvinist as the Prosecutor has attempted to describe

9 me.

10 I didn't know about the attack on Bosanski

11 Samac. If I had known about the impending attack I

12 would have taken my family away. This was done by a

13 number of Serbs and Muslims. You can see for

14 yourself -- you can see about that from the statement

15 of Mr. Tihic. I didn't have any contacts with the

16 offices of the JNA, except one contact which I had to

17 establish under the orders of my party, and it was for

18 the purpose of protecting the population of Bosanski

19 Samac.

20 As regards Article 9, when Prosecution is

21 talking about my contacts with Omer Nalic, I have to

22 say the following: Only certain segments have been

23 picked up from the statement of Omer Nalic which do not

24 paint the right picture of our conflict. It is true

25 that I was at the military court. It is true that I

Page 361

1 was in contact with Mr. Nalic, but I had come there

2 upon his request. He wanted to see me and I wanted to

3 assist him both morally and in very concrete terms.

4 He did sign a power of attorney for me so

5 that I could come there, so that I could appear, but I

6 did not take part in the proceedings. Nalic himself

7 said that it was a farce.

8 It is true I was at Batkovic on one occasion

9 but the purpose of my visit was to take medicine to

10 Mr. Nalic. I can only say how I managed to get there.

11 I was seen by some people from Samac and I may have

12 said that I would like them to go back to Samac, but

13 not as prisoners but as free citizens. I didn't see

14 any statement given by Mr. Omer Nalic in Bjeljina

15 either to Simo Zaric, or to the Court in Bjeljina in

16 general. I just want to say that it is not true that

17 Mr. Omer Nalic was convicted by the Court in Bjeljina

18 for the charge of armed insurrection.

19 It is true I was not a disinterested observer

20 of the war, because I advocated a cessation of the war

21 and I placed all my intellectual and moral abilities to

22 that interest and I was one of the founding members,

23 together with Mr. Simo Zaric together with the

24 Republika Srpska presided by Zivko Radicic and he is a

25 member of the presidency of Bosnia-Herzegovina and a

Page 362

1 member of the executive council of the government of

2 Republika Srpska.

3 It is true that I said hello to Misic and

4 Bisic. It was dark, it was during the night. It is

5 not true that I was wearing a uniform. Even if I had

6 been wearing a uniform, I don't think that that by

7 itself is something wrong. At that time an army of

8 Republika Srpska was in existence, and the claim that

9 that army had occupied the town is erroneous because

10 the army was established on the 20th of May, 1992 and

11 the takeover occurred on the 18th of April, 1992.

12 Why does the Prosecution claim that after the

13 beating up I saw Mr. Perica Misic and Hasan Bicic.

14 That is absolutely not true. They needed to read a

15 little more carefully the documents and their

16 statements. I saw them several days later. It was

17 night when I saw them, I greeted the people, I asked

18 them how are you, they said fine. I didn't examine

19 them to see whether they had any injuries or -- that

20 could be seen.

21 However, in a certain place in the motion --

22 JUDGE BENNOUNA: (Interpretation) Just a

23 moment, please. The Chamber is prepared to hear you,

24 but within the limits that I have indicated, and that

25 is that we are discussing a conflict of interest and

Page 363

1 not pleading your own case, so please bear this in

2 mind.

3 MR. PISAREVIC: (Interpretation) Thank you,

4 Your Honour, I shall do my best.

5 However, if Mr. Zaric trusts me as his

6 Defence counsel, the Defence counsel of his choice,

7 allow me to say that it is Zaric who is more concerned

8 than the Prosecution. Wherever I was and whatever I

9 saw, I had to see and do because I was living there,

10 and there is no need for me to testify about those

11 facts. All this points to the conclusion that not one

12 of the accused will call me as a Defence witness.

13 As for the Prosecution and its intimation

14 that it might call me as a witness, I think it will not

15 be useful, bearing in mind that I have 90 per cent of

16 the documents of the Prosecution and I'm deeply

17 involved in the defence of Mr. Zaric.

18 If the Prosecution were, however, to call me

19 as a witness, I will ask the Court to relieve me of

20 that obligation because of my duty to keep silent about

21 all the facts I have learnt in the course of the

22 Defence. I have nothing to defend myself against. My

23 conscience is clear. If the Prosecution feels that

24 there is anything envisaged by the Statute of the

25 Tribunal on the basis which it can charge me, let it do

Page 364

1 so. If the Prosecution is concerned about Mr. Zaric's

2 defence, whether it will be of an appropriate quality,

3 I suggest that it leave that decision to Mr. Zaric

4 himself, who is certainly more interested in having a

5 fair and just trial in order to be acquitted of the

6 charges than the Prosecution is concerned.

7 If there were any indication of a conflict of

8 interest between me and my counsel, rest assured that I

9 myself would withdraw from this duty and I would not

10 need any warning on the part of the Court or the

11 Prosecution. I would do the same if I saw any conflict

12 of interest with any one of the accused. My duty as

13 counsel is to assist my client in the preparation of

14 his defence in accord a witness the rules and

15 regulations and in the interests of justice. I must

16 underline that I am the elected counsel of Mr. Zaric

17 and I think it is his basic right to choose his

18 counsel. No one has the right to deprive the defendant

19 of that right.

20 JUDGE BENNOUNA: (Interpretation) Excuse me.

21 We know that. You've already put that into writing,

22 that it was the right of the accused to choose his

23 counsel.

24 Would I like to ask you whether you are

25 familiar with Rule 16 of the Code of Conduct for

Page 365

1 counsel before the International Tribunal. That is on

2 the 10th of June, 1997, in Article 12 it says counsel

3 does not plead in a room which he would be called to

4 appear as a witness unless his testimony deals with a

5 point which is not being challenged or whether his

6 disqualification would cause for substantial prejudice

7 to his client.

8 The counsel, I repeat, does not argue in a

9 trial where he would probably be called to appear as a

10 witness.

11 The conflict, as Judge Robinson has recalled,

12 there was an answer given to this. There may be

13 a differentiation made about the interpretation of the

14 facts, that is different between you and the

15 Prosecutor. According to your writing, we saw that and

16 you don't have to repeat it to us, we are being

17 assure. But there are facts that you do recognise,

18 that you acknowledge, even though you analyse them

19 differently. It happens. That has been clearly

20 established before this Trial Chamber. And I said

21 clearly established that there may be a potential

22 conflict of interest insofar -- and the Prosecutor

23 developed this point in her request, that -- and in

24 detail, where at one point you may be called to trial

25 in order to testify, because as you acknowledge

Page 366

1 yourself, you were involved in the facts and in the

2 events in question in this case.

3 It is understood that if you are called to

4 testify, you will find yourself in a situation which

5 you yourself either under review, or re-examination, or

6 cross-examination, or direct-examination you may put

7 yourself into a very uncomfortable position since you

8 will have to speak and answer questions about events

9 that you were a part of yourself.

10 This is what the Tribunal would hope to

11 avoid. Therefore, we would like to avoid this type of

12 situation, and it would be better for it to be settled

13 right now in the interests of the accused. Of course,

14 it would be better that it be settled now than later,

15 once we have begun the trial. It would be better than

16 the question of a conflict of interest, and you

17 understand what I'm saying, be settled before the trial

18 begins, and that is at the time of the trial.

19 Therefore, I hope that you are aware of

20 this. You do know also that the Code which I have just

21 cited, the Code of professional ethics, which is a

22 basic document for us, states that the counsel, in

23 paragraph 4 of the preamble, may be the subject of

24 disciplinary measures provided in Article 47 of the

25 Rules of Procedure and Evidence, of Rule 47, rather.

Page 367

1 This Rule 46, we don't want to get to that point

2 either, and states that a Trial Chamber may, after a

3 warning, refuse audience to counsel if in its opinion

4 the conduct of that counsel is offensive, abusive or

5 otherwise obstructs the proper conduct of the

6 proceedings.

7 This is the status of the question. There is

8 not an immediate conflict, because as Judge Robinson

9 said, we have yet gotten into the facts. But there is

10 a potential conflict which is for sure -- even this is

11 being challenged because it is none the less true that

12 you were a participating party in some of the events.

13 Therefore, I would like to ask whether you are aware of

14 this, aware of the interests of the accused, and if you

15 do not believe that it would be time to take the

16 initiative yourself to disqualify yourself in order to

17 avoid a real conflict of interest and this, of course,

18 is in the interests of the proper conduct of the

19 proceedings and the interests of justice. Thank very

20 much.

21 I would like you to answer my questions

22 please and to my proposal as well, because I am making

23 a proposal to you. I'm asking you to take the

24 initiative yourself.

25 MR. PISAREVIC: (Interpretation) Thank you

Page 368

1 Your Honour, and for your remarks and warnings which I

2 have understood fully. However, I cannot accept the

3 position that I am a participant in certain events in

4 which I happened to participate, by chance so to

5 speak. I would accept that if that fact was disputed.

6 However, that fact is not disputed, nor has the

7 truthfulness of that fact been called in question by

8 the statement of the accused or the statements of

9 witnesses already heard.

10 I'm fully conscious of the fact, and that is

11 something that I have already said, that if I were to

12 realise that there was a conflict of interest and that

13 my participation could harm the interests of my client,

14 I would withdraw myself, but bearing in mind the

15 reasons the Prosecution is referring to, Mr. Tihic,

16 Mr. Nalic, Mr. Bicic and Misic, I see absolutely no

17 disputed fact. I have studied the motions carefully, I

18 have studied the statements of the accused, I have

19 studied the statements of other witnesses and victims

20 and the other documents that have been disclosed to me,

21 and nowhere have I seen any reason why I should appear

22 as a witness. That is my position, and that is the

23 reason why I will not take any more of your time. I

24 will bear this in mind all the time. Should such a

25 case occur, such a situation occur, I will reconsider,

Page 369

1 but for the moment I propose that this motion be

2 rejected. Thank you.

3 JUDGE BENNOUNA: (Interpretation)

4 Mr. Pisarevic [no interpretation]. Do you think that

5 you could be called as a witness at some point in this

6 trial either by the Prosecutor or by the accused, of

7 course.

8 MR. PISAREVIC: (Interpretation) By Defence

9 counsel I will not be called. I see no reason why the

10 Prosecution would call me either.

11 JUDGE BENNOUNA: (Interpretation) Could you be

12 called by -- called as a witness by other accused?

13 MR. PISAREVIC: (Interpretation) You mean in

14 this case?

15 JUDGE BENNOUNA: (Interpretation) Yes.

16 MR. PISAREVIC: (Interpretation) No, I don't

17 think they will call me.

18 JUDGE BENNOUNA: (Interpretation) Thank you,

19 Mr. Pisarevic.

20 MR. PISAREVIC: (Interpretation) Thank you,

21 Your Honour.

22 JUDGE BENNOUNA: (Interpretation) Could we

23 have the representative for the Prosecutor again,

24 please, Ms. MacFadyen. You heard the question that I

25 asked in respect of Article 16. Do you think that

Page 370

1 Mr. Pisarevic might be called as a witness in this

2 trial?

3 MS. MacFADYEN: Your Honour, I believe in

4 fact as I have indicated before my previous arguments

5 that in fact at this point no one can indicate that

6 they intend to call Mr. Pisarevic as a witness.

7 However, I can see a likelihood, especially from what

8 Mr. Pisarevic has described regarding his knowledge of

9 these events, that he will be a necessary witness with

10 respect to some events. For instance, the Omer Nalic

11 event, where indeed he signed a power of attorney with

12 respect to Omer Nalic, who will testify, and this goes

13 to his credibility, that he was forced to sign a

14 confession by Mr. Zaric. Mr. Pisarevic has indicated

15 that he did not appear for Mr. Nalic, and yet there is

16 a power of attorney signed. So there is an issue

17 before the Court as to what he saw, whether he ever saw

18 this confession or whether he didn't.

19 I would suggest that that issue goes to the

20 credibility of Mr. Nalic and everything that he will

21 say as a witness.

22 Also the fact that Mr. Pisarevic has

23 indicated that he does not recognise any possibility

24 for him being called as a witness either direct, or

25 cross-examination, or as a rebuttal witness indicates

Page 371

1 that he does not understand the conflict. The conflict

2 is simply that he has personal knowledge of disputed

3 facts.

4 JUDGE BENNOUNA: (Interpretation)

5 Mr. Pisarevic, have you got anything you'd like to

6 add?

7 MR. PISAREVIC: (Interpretation) All I can

8 say additionally is that all the points made by the

9 Prosecution have no bearing on these proceedings,

10 whether and why I went to see Mr. Nalic, this is not a

11 subject of trial. This matter can be investigated when

12 I'm brought to trial, but this fact has nothing to do

13 with the case that I am participating in as Defence

14 counsel. All these allegations are mere insinuations,

15 and the aim is to eliminate me from the Defence because

16 I'm a person who lived there, who, it is true, is quite

17 familiar with those people there, the people know him,

18 I am aware of the conditions under which the people are

19 living there, which is quite normal. I spend the whole

20 period there.

21 Maybe the aim of the Prosecution is to

22 eliminate all the attorneys who were in that area in

23 Republika Srpska and who participated in a sense in

24 that armed conflict, but I think that better assistance

25 and more qualified defence cannot be provided to these

Page 372

1 accused than by the people who were there present, of

2 course, with the assistance of other colleagues.

3 I really think that there is no conflict of

4 interest, but I suggest that you hear perhaps my client

5 and the other accused on the matter, and if you

6 consider it proper then you make the decision to

7 eliminate me.

8 JUDGE BENNOUNA: (Interpretation) We have

9 heard in detail full this whole question of the

10 conflict of interest through the submissions and

11 through the presentations this morning. I have told

12 you of the Trial Chamber's concerns. I have given you

13 an oral warning.

14 The Trial Chamber will take the time to

15 deliberate the issue. You will do so in writing, and

16 if necessary, you will also ask that the accused take a

17 position himself, or themselves. It is now 11.30,

18 almost 11.30. We're going to suspend the hearing to

19 allow the interpreters, whom I would like to thank, by

20 the way, for their co-operation. We're going to take a

21 half hour break as we ordinarily do, and the Trial

22 Chamber will resume at noon, in the order that I've

23 already announced, that is the motion on judicial

24 notice of the character of the conflict and then

25 judicial notice of adjudicated facts. This will be

Page 373

1 done after the break, that is at noon. The Court

2 stands adjourned.

3 --- Recess taken at 11.30 a.m.

4 --- Upon resuming at 12:00 p.m.

5 JUDGE BENNOUNA: (Interpretation) As I said at

6 the end of the first part of the morning's work, we're

7 resuming the hearing, and I will give the floor

8 immediately to the representative of the Office of the

9 Prosecutor to speak to us about their position on

10 judicial notice of the international character of the

11 conflict in Bosnia and Herzegovina and on established

12 facts.

13 The floor is yours.

14 MS. PATERSON: Thank you, Mr. President.

15 If I could just make one brief statement

16 before I begin my argument, as you will notice, I have

17 switched places with my colleague because the physical

18 arrangement of this courtroom makes it extremely

19 difficult for the person sitting in this chair to see

20 both Judge Robinson and to see Mr. Zaric, one of the

21 defendants, because the view is blocked by the column.

22 I asked the Court officers if they could move Mr. Zaric

23 to the other seat there so that he and I could see each

24 other, and I was informed that they could not, for

25 security reasons.

Page 374

1 So that I could see Your Honours and

2 Mr. Zaric, I have moved to this location. And if there

3 is any possibility in the future to setting up the

4 courtroom in a somewhat different physical manner, it

5 would be of great assistance to the Prosecution. Thank

6 you.

7 JUDGE BENNOUNA: (Interpretation) Thank you

8 very much. Please proceed.

9 MS. PATERSON: Mr. President, taking in mind

10 your admonitions to keep our comments brief and to

11 attempt not to repeat anything in our written

12 submissions, I will attempt as best as possible to do

13 that. And as you noted, it is possible to essentially

14 argue both of our motions concerning adjudicated facts

15 together, so I will attempt as much as possible to

16 combine my two arguments.

17 In our motion concerning the judicial notice

18 of the international nature of the armed conflict, what

19 we have asked to court to do is take judicial notice of

20 the fact that between the 6th of March 1992 and the

21 19th of May, 1992, it has been determined by this Court

22 and it is a historical fact of common knowledge that

23 the nature of the conflict during that period was one

24 of an international nature. There was an international

25 conflict at least until the 19th of May. It is the

Page 375

1 position of the prosecutors's office that there was an

2 international conflict throughout the entire war in

3 Bosnia and the rest of the former Yugoslavia.

4 However, we concede that the period after the

5 19th of May is more complicated and is in dispute in

6 other cases before this Tribunal. Therefore we have

7 tried to be reasonable and ask the Court to simply

8 focus on that period between the 6th of March and the

9 19th of May, when we contend it is not in dispute that

10 it was an international armed conflict.

11 As Your Honours know, under Rule 94 of the

12 Rules of Procedure and Evidence, the Court has the

13 authority to take judicial notice. There are two

14 provisions, two subrules to that: There is subrule

15 "A", which deals with facts of common knowledge, and

16 there's subrule "B", which deals with adjudicated facts

17 from other proceedings before the Tribunal.

18 It's our contention that Your Honours can

19 find this to be an adjudicated fact -- that you can

20 take judicial notice of this under either of those

21 provisions. You can either find that this is a

22 historical fact of common knowledge, or in the

23 alternative, you could rule that this is an adjudicated

24 fact that has already been determined in other

25 proceedings before the Tribunal.

Page 376

1 We would note that the theory behind judicial

2 notice is that of judicial economy as a way to --

3 THE INTERPRETER: Counsel, slow down,

4 please.

5 MS. PATERSON: We would note that the theory

6 behind judicial notice is one of judicial economy; that

7 one of the purposes for the rule is to expedite the

8 proceedings so that the Court does not have to hear

9 evidence of facts of common knowledge or facts that

10 have already been determined by another court of law.

11 We would note that if we are forced to produce evidence

12 concerning the international nature of the conflict, it

13 would require calling a large number of witnesses, a

14 number of experts and that in essence this Court would

15 hear evidence which it has already heard in previous

16 cases, and may hear multiple times during to course of

17 the Tribunal.

18 We would note that the Defence itself

19 concedes in their response to our motion that the

20 concept of judicial notice is useful to expedite the

21 hearing of a case and to produce uniformity of

22 decisions in certain matters. There can perhaps be no

23 more important matter before this Tribunal than

24 determining the nature of the conflict, since this is

25 an international Tribunal created by an international

Page 377

1 agency the United Nations, which was designed to deal

2 with an international conflict. Therefore we think

3 that this is a particularly significant fact that must

4 be determined once and for all by this Court. We would

5 also note that part of the reason we have brought this

6 notion at that time is in response to encouragement

7 that was given to us --

8 THE INTERPRETER: Could the counsel please

9 slow down for the benefits of the interpreters. Thank

10 you.

11 MS. PATERSON: I would attempt to slow down

12 Your Honour as I have been instructed, I would ask the

13 interpreters to appreciate that I need to make my

14 arguments in my own fashion. So, I will do the best I

15 can.

16 I would note that in an earlier Status

17 Conference Judge Rodrigues encouraged us to take

18 advantage of all the different provisions in the Rules

19 of Procedure and Evidence as a means of expediting the

20 trial. I think we are all in agreement that the trials

21 before this Tribunal have taken a long period of time.

22 We are all of the opinion that it would be in the best

23 interests of all the parties to try and expedite these

24 cases and we feel that this is a means for doing so.

25 Getting down to our arguments concerning

Page 378

1 whether this is a fact of common knowledge or an

2 adjudicated fact, we would contend that the

3 international nature of the conflicts is clearly a

4 historical fact that is no longer open to dispute. As

5 I stated earlier we must remember the special mandate

6 of the Tribunal. We are an international Tribunal

7 established by an international organisation to resolve

8 an international conflicts. The limited jurisdiction

9 that this Tribunal has means that by necessity, all of

10 the cases coming before it will deal exclusively with

11 the facts related to the war in the former Yugoslavia.

12 And in every single case facts and evidence will have

13 to be presented about the nature of the conflict,

14 unless the Court takes judicial notice.

15 We believe that the fact that this was an

16 international conflict is a historical fact, much as it

17 can be stated that, for example, there was a war fought

18 by the United States in Vietnam in the 1960s and 70s.

19 That's a fact that's no longer in historical dispute,

20 everyone agrees that that happened and we would contend

21 that that is the type of fact that could be seen as a

22 fact of common knowledge. We could say that thousands

23 of people unfortunately died here in Holland during

24 World War II. I think that is a fact that would be

25 agreed as a fact of common knowledge, requires no

Page 379

1 further proof. Like those historical facts we contend

2 that the fact that Bosnia and Herzegovina declared its

3 independence on the 6th of March, 1992, is a fact that

4 is no longer in dispute, that's a historical fact. And

5 we also condenied that the fact that there was an armed

6 conflict going on in Bosnia in which the JNA, the

7 Yugoslav National Army, which was the army of the

8 socialist Federal Republic of Yugoslavia, another

9 country, was involved in that war. We believe those

10 facts together show that this was an international

11 conflict.

12 If Your Honours are not willing to see this

13 as a historical fact that you can take notice of as a

14 fact of common knowledge, we would argue that you can

15 take notice of this because it's an adjudicated fact

16 that has already been adjudicated before other

17 proceedings of the Tribunal. As Your Honours are

18 aware, the Tadic case and the Celebici case have

19 beenconcluded; they have rendered their verdicts. And

20 while we acknowledge that both of those cases are on

21 appeal, it is our contention that this fact is one that

22 is not being appealed, and therefore any decisions that

23 have been made by those courts are final decisions as

24 to this particular fact, making it an adjudicated

25 fact.

Page 380

1 I would just remind you that the both the

2 Tadic and Celebici cases in their written decisions

3 have found that at least from the period of the 6th of

4 March, 1992, until the 19th of May, 1992, this was an

5 international conflict. In the decision on the Defence

6 motion for interlocutory appeal in the Tadic case, the

7 Appeals Chamber of this Tribunal has also found that

8 that was an international conflict, citing both the

9 date of independence of Bosnia and Herzegovina as well

10 as the involvement of the Yugoslav National Army. In

11 both the final opinions and judgements in the Tadic case

12 and the Celebici cases, they too stated that they had

13 found that at least from the 6th of March 1992 until

14 the 19th of May, there was an international conflict

15 ongoing in Bosnia.

16 And finally, the Appeals Chamber in the

17 Defence motion for interlocutory appeal in the Tadic

18 case also found that the conflict was international in

19 nature, at least until the 19th of May, 1992. We have

20 also noted that similar decisions were reached in the

21 Rule 61 hearings before this Tribunal. Now, we

22 acknowledge that Rule 61 proceedings are not full-blown

23 trials and that an argument could be made that those

24 facts are not adjudicated facts.

25 That being said, however, we do think that

Page 381

1 the decisions of those Rule 61 courts can nonetheless

2 be looked at as corroborating evidence, as further

3 evidence that there is a unanimous consensus among the

4 Trial Chambers of this Tribunal that this fact is in

5 fact a determined, undisputable fact. I would note, in

6 the decision of the Karadzic/Mladic Rule 61 hearing, it

7 was stated that the Trial Chamber considers that at the

8 time it began in Bosnia and Herzegovina, the present

9 conflict was international in character insofar as it

10 involved two distinct states, the Republic of Bosnia

11 and Herzegovina and the SFRY, later the FRY.

12 As we noted in our written motion, three

13 different foreign courts have also come to the same

14 conclusion, that this was an international conflict.

15 Two courts in Germany and a military tribunal in

16 Switzerland have found that during the period of time

17 we are asking, from March until May, that it was an

18 international conflict.

19 And finally I would note that Judge May, who

20 unfortunately is not present today himself, has taken

21 judicial notice of the fact that Bosnia and Herzegovina

22 declared its independence from the Socialist Federated

23 Republic of Yugoslavia on the 3rd of March, 1992, and

24 that was in the Kovacevic decision of 12 May, 1998.

25 And further, Judge May took judicial notice of the fact

Page 382

1 that the independence of Bosnia and Herzegovina as a

2 state was recognised by the European commission on

3 6 April 1992, and by the United States on 7 April

4 1992. Having recognised the independence of Bosnia and

5 Herzegovina, that was one of the most important points

6 in establishing the international nature of the

7 conflict.

8 As I said, the Defence has made several

9 arguments against the Court finding this to be an

10 adjudicated fact. But I would simply note that we take

11 some exception to the argument made by the Defence

12 citing that we should be using rule 73 bis instead of

13 Rule 94, adjudicated facts, to deal with issues of this

14 sort. Rule 73 bis deals with the Pre-Trial conference

15 in which the parties are asked to submit agreed-upon

16 facts and facts in matters that are not in dispute.

17 While we certainly intend to fully use that option, and

18 will submit to the Court many facts that we hope the

19 Defence will stipulate to, I must note that

20 Mr. Pantelic stated to us on an earlier occasion that

21 the only thing he would stipulate to was his client's

22 date of birth. And it was partly because of that

23 statement that we did not have much confidence that we

24 could approach the Defence and work out an agreement

25 ahead of time concerning this matter.

Page 383

1 I would just note that as has been ruled in

2 the previous decisions I've cited to, it's important to

3 look to the definition of an international conflict,

4 the Geneva Conventions. The Geneva Conventions in

5 Article 2 explains what they consider to be the

6 definition of international conflict, and I will not

7 repeat that for you; I'm sure you've read that in our

8 motion.

9 The ICRC commentary also takes a very broad

10 view of the definition of international armed conflict,

11 and I would note that that ICRC commentary has been

12 cited by both the Tadic and Celebici chambers in their

13 decisions on the matter.

14 I would also like to note that the Swiss

15 government has also back-dated the accession of Bosnia

16 and Herzegovina to the Geneva Conventions to 6 March

17 1992: Again, more evidence that that is a significant

18 date at the point at which an international conflict

19 can be concluded.

20 It's our contention that the character of the

21 conflict being that it was international between March

22 and May 1992 is indisputable. We contend that the

23 Defence would not be able to come before this Court and

24 present any evidence to the contrary. We believe that

25 it is in the interests of judicial economy to find this

Page 384

1 fact now, so that we do not have to present a large

2 number of witnesses and an extraordinary amount of

3 documentary evidence, evidence that this chamber may

4 not have itself heard but certainly other chambers have

5 heard, and would have to be repeated over and over and

6 over again in the future in all trials before the

7 Tribunal if it is not decided at this point in time.

8 So it's our contention that fact of the

9 international nature of the conflict is indisputable

10 and should be judicially noticed either as a fact of

11 common knowledge or as an adjudicated fact.

12 As to our second motion, concerning the list

13 of 170 facts which we have asked the Court to take

14 judicial notice of, we believe that the same arguments

15 can be made: That the Court can take judicial notice

16 under either 94(A), that these are facts of common

17 knowledge, we would contend that all of them can be

18 classified as historical facts, or we would argue that

19 you can also find that these are adjudicated facts that

20 have been previously determined by other chambers in

21 the Tribunal. Every one of the facts that we have

22 listed in that list of 170 facts we have taken from the

23 written decisions of the Tadic and the Celebici cases.

24 Both of those cases have come to verdict, and final

25 decisions have been issued. Again I would acknowledge

Page 385

1 that both of those cases are on appeal, but it's our

2 contention that the facts that we are asking you to

3 notice are not being appealed; they are not the source

4 of the appeal. Therefore, as to them, the decision is

5 final, and they can be seen as adjudicated facts.

6 I will not again repeat the arguments I have

7 just made concerning the powers to take judicial

8 notice. I would just like to, in addressing those

9 particular facts, move the Court's attention

10 specifically to facts 159 to 170 in our motion. Those

11 are the ones that deal with an armed conflict.

12 As I have just argued, we believe that there

13 is irrefutable evidence that there was an international

14 armed conflict ongoing in Bosnia and Herzegovina from

15 at least March to May 1992, and therefore it follows

16 that we also contend that there was an armed conflict,

17 whether or not it was international or internal in

18 character. Again I would note that not only the Tadic

19 and Celebici chambers have found that to be true, but

20 in the Furundzija case, which has also gone to verdict,

21 they have found that there was an armed conflict

22 ongoing in Bosnia and Herzegovina during the time

23 periods that we are asking the Court to take judicial

24 notice.

25 As with the nature of the international

Page 386

1 conflict, we contend that this fact is irrefutable,

2 that the Defence cannot bring any evidence before this

3 Court that will change that determination. And we

4 would ask the Court specifically to take judicial

5 notice of those facts of armed conflict. We would go

6 on, however, to point out that all of the rest of the

7 facts, numbers 1 to 158 listed in our annex, we

8 contend, are also either facts of common knowledge --

9 by that I would mean historical facts which courts can

10 ordinarily take notice of -- or we would contend that

11 they are adjudicated facts, since every one of them has

12 been addressed in written decisions and findings of at

13 least two, if not three, of the chambers before this

14 Tribunal. We believe that that constitutes adjudicated

15 facts.

16 So it's for those reasons, Your Honours, that

17 we have brought these motions before the Court today.

18 We feel that it is clearly in the interests of judicial

19 economy to resolve these matters now, not only to save

20 the time of the Court, but so that we can make a

21 determination of what witnesses we need to call and

22 what evidence we need to present. If the Court were to

23 judicially notice these facts, it would greatly shorten

24 the length of the trial, and we believe would serve not

25 only the interests of the Prosecution by the interests

Page 387

1 of the Defence as well.

2 We would ask that Your Honours take

3 acknowledgement of the fact that has been already

4 mentioned by me on a couple of occasions, that being it

5 is indisputable that on the 6th of March, 1992, the

6 government of Bosnia and Herzegovina declared its

7 independence; it was internationally recognised in

8 April of 1992. There is no dispute before the chambers

9 of this Tribunal that the JNA, the military army of

10 another country, was involved in the conflict in Bosnia

11 and Herzegovina, and if this Court looks to the

12 definition under the Geneva Conventions, it will see

13 that that meets the definition of international armed

14 conflict. And we would respectfully ask this Court to

15 take notice of that fact, as well as the 170 other

16 facts that we have presented in our motion. Thank

17 you.

18 JUDGE BENNOUNA: (Interpretation) Thank you,

19 Ms. Paterson. I note that for the Defence, there was a

20 response which I have before me, which was presented by

21 Defence counsel, Mr. Abramovic for Mr. Simic,

22 Mr. Pantelic and Mr. Saint Just for Mr. Tadic,

23 Mr. Brashic for Mr. Todorvic, and Mr. Pisarevic for

24 Mr. Zaric.

25 Who is going to speak on behalf of the

Page 388

1 Defence in this hearing?

2 MR. BRASHICH: (No interpretation).

3 THE INTERPRETER: Microphone, please.

4 JUDGE BENNOUNA: (Interpretation)

5 Mr. Brashich.

6 MR. BRASHICH: Very briefly, with regard to

7 general issues, I will, and I believe that my brother,

8 Mr. Pantelic, will address specific issues. The Court

9 is being asked to interpret certain decisions of other

10 Trial Chambers that between the period of March 6,

11 1992, and May 19, 1992, there existed an international

12 conflict on the territory of Bosnia and Herzegovina.

13 The concept of an adjudicated fact is one where the

14 Court has rendered a decision, and it can be broken

15 down, at least in Anglo-Saxon jurisprudence, as one of

16 either collateral estoppel or res judicata. We have

17 the Tadic and we have the Celebici decisions. They

18 were made by other Trial Chambers. These defendants

19 were not party to those proceedings. These defence

20 attorneys did not proffer witnesses, documents, or most

21 importantly, interpretations of certain facts.

22 The Prosecutor, as an example, states that

23 there was a Vietnamese war. Well, being somewhat of a

24 historian, there was a conflict in Viet Nam. People

25 got killed. Napalm was used. Bombing of Laos and

Page 389

1 Cambodia took place. Was it a war as defined by the

2 United States constitution? No.

3 So it is this specific issue of how you

4 interpret historical facts, that people were shooting

5 in Bosnia and Herzegovina; that the JNA, until March,

6 was on its own territory, and poof, by a piece of

7 paper, a purely local civil conflict, strife, is

8 changed into a different animal, with different

9 repercussions, different penalties, different rules.

10 Now, I was not counsel in the Celebici case.

11 I was not counsel in the Tadic case. I do not know

12 what was in the mind of Defence counsel there. I do

13 not know what was in the mind of the Trial Chamber.

14 You are an independent body, and you are an independent

15 finder of fact. I have a situation in the United

16 States District Court for the Southern District where

17 across one hallway, Judge Kaplan found a fact to be

18 totally different and have different applications than

19 Judge Koeltl across the hall, again dealing with the

20 disintegration of Yugoslavia. Judge Koeltl has found

21 that it was not a political issue that was before him.

22 Judge Kaplan found that it was a political issue before

23 him, and dismissed the case for lack of jurisdiction.

24 I think that the Defence has the right and

25 the obligation to independently have its own witnesses,

Page 390

1 its own experts, interpret historical occurrences. I

2 must concur with Ms. Paterson with regard to the other

3 issue: The 168 -- at least that was in my motion

4 papers -- 168 facts. A lot of them are nondisputable.

5 However, the further we come to the present, the

6 further interpretations are necessary.

7 That the kingdom of the Serbs, Croats and

8 Slovenes was established in 1919, granted. That in

9 1929 that Kingdom changed its name to Yugoslavia,

10 granted.

11 When we get to the tail-end, the 158 to 168,

12 at least in the copy that I received by telefax, that

13 is subject to interpretation, and that is not a matter

14 that Defence can concede, as the earlier determinations

15 by other Chambers in which we were not parties cannot

16 be collateral estoppel to us or res judicata.

17 Final sentence: The concept of judicial

18 notice is that 1 pound one equals 2.2 kilograms, that

19 speed of light is, if memory serves me, some 360 odd

20 thousand miles per either second or minute. Those are

21 facts that the Court can take. The minute you have

22 interpretation, you need live witnesses, experts to

23 guide the Court and to make an independent determined

24 decision.

25 JUDGE BENNOUNA: (Interpretation) Judge

Page 391

1 Robinson.

2 JUDGE ROBINSON: Mr. Brashich --

3 MR. BRASHICH: Yes, Your Honour.

4 JUDGE ROBINSON: -- I understand you to be

5 saying that judicial notice, certainly in the Anglo

6 Saxon system, is built on collateral estoppel and the

7 concept of res judicata, and you seem to be saying for

8 that reason your client has a right to an independent

9 determination of all issues of fact, but have you

10 addressed specifically Rule 94(B), which deals with a

11 particular species of judicial notice, and in that

12 provision judicial notice is, it seems to me, a term of

13 art. It is setting up its own peculiar system as to

14 what it is that the Trial Chamber may take judicial

15 notice of, and it says that the Chamber may take

16 judicial notice of adjudicated facts from other

17 proceedings of the Tribunal relating to matters at

18 issue in the current proceedings.

19 Is it your contention that in a situation

20 where that would ordinarily be applicable, that there

21 is still this right to an independent determination of

22 the facts at issue?

23 MR. BRASHICH: Your Honour, I am still

24 wrestling with the Rules. I used to teach trial

25 practice and procedure, but these Rules are new to me.

Page 392

1 I think the only way I can answer, Your

2 Honour, is that both the Prosecutor and I view this as

3 a duality of issue. We have the issue of adjudicated

4 facts, and then we have the issue of common knowledge.

5 The common knowledge is what I described in

6 the later part of my argument as being judicial notice

7 of the fact that a pound is 2.2 kilograms.

8 With regard to Your Honour's question as to

9 adjudicated fact, Rule 94(B) speaks about the ability

10 of the Court to extract from other decisions certain

11 facts which are not in question and to make them and

12 adopt them.

13 My argument to Your Honour is that both the

14 Celebici case and the Tadic case, if this Trial Chamber

15 was sitting as a District Court in New York, the

16 decision in the Tadic case and the Celebici case by

17 some Judge across the hall or downstairs would not be

18 binding on the United States District Court Judge. It

19 would be advisory only, and no further deference should

20 be given to a decision of a Trial Chamber of equal

21 stature as this Chamber. That is why I brought up the

22 concept that Judge Kaplan on floor 12 in the District

23 Court, and Judge Koeltl across the hall on floor 12 of

24 the District Court have two different opinions.

25 I think that this Court, as an independent

Page 393

1 body, is charged with making its own independent

2 determinations as to interpretations of fact,

3 especially in the light of the -- I'm now being

4 redundant in using "fact" too many times, especially

5 due to the fact, again, that we were not party to those

6 proceedings. We did not have any input as to who the

7 Defence called, what theories they advanced or who the

8 Prosecution might have called in that case and who they

9 may call in this case.

10 So as an independent attorney in this case, I

11 urge the Court that it has to make, as to the crucial

12 issues with regard to the international nature of the

13 conflict of that period, its own independent

14 determination should it want to grant and afford the

15 Defence a proper hearing.

16 JUDGE ROBINSON: Mr. Brashich, just one or

17 two other matters.

18 MR. BRASHICH: Yes, Your Honour.

19 JUDGE ROBINSON: I understand your analysis

20 to be applicable to the situation where the facts of

21 which judicial notice is being taken, derived from a

22 decision of a court or a Chamber of coordinate

23 jurisdiction. I think you said the Trial Chamber.

24 MR. BRASHICH: Yes, Your Honour.

25 JUDGE ROBINSON: Would you have the same view

Page 394

1 if the facts of which judicial notice are being taken

2 come from a decision of the Appeals Chamber?

3 MR. BRASHICH: In the United States, Your

4 Honour, totally different position with regard to a

5 decision in the -- in this International Criminal

6 Tribunal, I do not know that answer, Your Honour.

7 I would, if I had to argue, I would -- based

8 on my concept of law and jurisprudence, I think if the

9 Appeals Chamber had resolved the issue, I think it

10 would be binding upon you, sitting as a Trial Chamber

11 Judge, but that is an opinion, that is my wish that the

12 concept of law in which I work would be applicable to

13 this Tribunal.

14 JUDGE BENNOUNA: (Interpretation) Thank you,

15 Mr. Brashich. Thank you. Having reminded us this is

16 an International Tribunal, in fact, and that,

17 therefore, we take into account what takes place in

18 this or that legal system, but we only take notice of

19 that. We are an International Tribunal.

20 Thank you for having recalled the practice in

21 the United States, but not -- there is not only the

22 United States, there are other countries. This is an

23 International Tribunal. We take note of what takes

24 place in various places and the general principles of

25 International Law which guide us in the last analysis,

Page 395

1 of course.

2 I will now give the floor, as you suggested,

3 to Mr. Pantelic to speak on behalf of the Defence about

4 the two motions, that is the international character of

5 the conflict and adjudicated facts, that is the two

6 motions that are being discussed right now.

7 Mr. Pantelic, you may proceed. Please

8 co-operate with us in respect of the time, thank you

9 very much.

10 MR. PANTELIC: Absolutely, Your Honour.

11 Thank you very much.

12 Our idea, three Defence counsels in this

13 case, is to submit some very general issues from two

14 major legal systems, Common Law and Civil Law. In our

15 internal agreements, we came to the conclusion that it

16 would be fully in accordance with the judicial economy,

17 and with the principles of submissions of the parties

18 in this case that my learned colleague, Mr. Brashich,

19 as he already gave his very good and fundamental

20 overview of Common Law system, then I would suggest

21 that my learned colleague from France, lawyer Saint

22 Just, will have the floor for maximum few minutes, five

23 minutes or ten minutes, with regard to the Civil Law

24 issues, general issues in general terms which may be

25 applicable to the practice of ICTY. And then with your

Page 396

1 permission, I would make a few short and precise

2 references to some of the issues raised by the OTP, the

3 Prosecutor, and of course, related to our motions.

4 So in total, I think that we shall spend not

5 more than 15 or 20 minutes, having in mind that very

6 important issue which we are discussing now, various

7 angle of view. I kindly ask for your attention at this

8 time. Thank you.

9 JUDGE BENNOUNA: (Interpretation) If I've

10 understood you correctly, Mr. Pantelic, you are

11 suggesting that, first, Mr. Saint Just take the floor

12 for a maximum of five minutes and then who would speak

13 directly afterwards, you yourself--

14 MR. PANTELIC: Yes.

15 JUDGE BENNOUNA: (Interpretation) -- for about

16 ten minutes. All right. Mr. Saint Just is going to

17 speak for five minutes and then you will follow for ten

18 minutes. Is that it? Yes.

19 MR. PANTELIC: Your Honour, you can

20 understand that --

21 JUDGE BENNOUNA: (Interpretation) No, please

22 understand. Well, it's true the question is important,

23 but we also have to take into account the needs of

24 time, and remember that we have the written submissions

25 before us. Let me remind you that we have these

Page 397

1 submissions in writing and that we've read them

2 carefully, and, therefore, for judicial economy I ask

3 that you not repeat what is already presented in

4 writing. Mr. Saint Just, you may proceed.

5 MR. DE SAINT JUST: (Interpretation) Thank

6 you, Your Honour, I will be brief, but you know the

7 beneficial virtues of a public hearing with both

8 parties present. Of course, this is an extremely

9 important case, extremely important question, and we

10 have to look at the efforts made by the Prosecutor in

11 order to come to a favourable decision.

12 There are two or three points that struck me

13 in the Prosecutor's comments. First of all, it was her

14 will to achieve expeditiousness and judicial economy,

15 and I agree that justice may be expeditious but we must

16 not confuse haste and speed, and in all cases the

17 parties must be allowed to prepare a full defence.

18 The Prosecutor almost threw a challenge at us

19 by saying that she was sure that were the Defence to

20 have the chance to have the opportunity to plead as to

21 the international character the Defence could not prove

22 anything further. This was a kind of challenge which

23 you've thrown at us, and you want to tie our hands and

24 our feet by saying that I'm sure you will be able to

25 prove anything and that you would not have the right to

Page 398

1 prove anything because we're going to refer this to

2 judicial notice.

3 But I, Your Honour, do not at all consider

4 that. According to the Rules of Procedure and

5 Evidence, you have the right to make that judicial

6 notice pursuant to Rules 94(A) and (B), but I don't

7 think you can do it in this case. Why do I say that?

8 What you are being asked --

9 JUDGE BENNOUNA: (Interpretation) You're

10 talking about the international character of the

11 conflict, of the first motion.

12 MR. SAINT JUST: (Interpretation) Yes, the

13 first motion.

14 JUDGE BENNOUNA: (Interpretation) Not the

15 second.

16 MR. DE SAINT JUST: (Interpretation) Not the

17 second what we're asking is to accept the international

18 character of the conflict. That it's doing so is not

19 only accepting certain facts but to accepting the legal

20 conclusion drawn from those facts. You can very well

21 have -- make judicial notice of certain facts in

22 respect of judicial economy and speed. You can refer

23 to testimonies of witnesses or to documents that were

24 given in other cases, that would be possible, but in

25 respect of the legal consequences of the interpretation

Page 399

1 and review of all the testimony, and all the arguments

2 and all the documents in respect of the international

3 character, you cannot make a judicial -- take judicial

4 notice.

5 What would that mean? It would mean that you

6 are prohibiting the Defence today, the defence of these

7 accused and these counsel who are here today,

8 prohibiting them from bringing in new testimony, new

9 arguments, new facts and new evaluations, and I believe

10 that this is completely unacceptable.

11 You can apply the Rule, but when it deals

12 with facts in the way we've just described and the

13 facts that the Prosecutor has raised, that's possible.

14 It's certainly not in respect of the international

15 character of the conflict itself. In that respect you

16 must give your opinion, your own opinion, you, a Trial

17 Chamber of this Tribunal, in respect of the

18 international character, after having allowed, of

19 course, the Defence to discuss and to make -- and to

20 bring in all of these elements in respect to its own

21 interpretation.

22 I believe that acting in that way would be

23 taking into account -- I'm not asking that you make --

24 take judicial notice of Roman Law or Civil Law, but to

25 take into account all these Rules, because you have

Page 400

1 certainly, Your Honour, seen that in the response from

2 Mr. Pantelic, which was -- includes the work in things

3 that I did, having to do with judicial notice in my

4 country of France. I'm not going to repeat it today.

5 This was presented in writing.

6 But of course, you saw that in France this is

7 an extremely significant issue, a very exciting one

8 which goes back to the quarrels of the Acien regime,

9 which is still relevant today, and that case law and

10 authors have always expressed themselves extremely

11 firmly on this subject, and have said that in France,

12 judging through judicial notice, which was called the

13 reference method, that -- which is prohibited by the

14 Civil Code, and was also prohibited by the

15 constitutions of the French Revolution because these

16 were violations of the fundamental principles of law,

17 and violations of the principle of having both parties

18 present, and violations of an equitable trial which is

19 recognising that all international documents, including

20 the New York covenant, et cetera, et cetera, but, in

21 fact, it would be a -- it would be a miscarriage of

22 justice. This is what I believe.

23 There are certain facts, very simple ones,

24 which cannot be challenged, and of those you can take

25 judicial notice, but in respect of other facts

Page 401

1 having -- coming to -- having to do with coming to the

2 conclusion as to the existence of an international

3 character in this conflict, you can only allow the

4 defence to have the right to discuss this issue.

5 The Defence will not delay the trial, will

6 not be obstructionist, it will do its work, and you

7 cannot prevent it from carrying out its rights and to

8 obtaining its rights and, I think, doing the --

9 anything else, and this, in fact, is where we reach a

10 very crucial question in this case. This is something

11 which you must really allow us to do, that is to

12 discuss this question of law.

13 Lastly, I will conclude by saying, Your

14 Honour, briefly, that in respect of the second motion

15 of the Prosecution having to do with this case and with

16 the question which you asked my colleague, I personally

17 believe that even if the Appeals Chamber were to take a

18 position in respect of the facts or legal consequences

19 requested by the Prosecutor, you, as an independent

20 Trial Chamber, would not be obligated to take that into

21 account, that in your judgement you could not say that

22 considering that the Appeals Court in other case ruled

23 that we, the Trial Chamber, must, therefore, rule in

24 that way. You could refer to it, of course, because

25 this would be an Appeals Chamber, but you would have no

Page 402

1 obligation, in fact, to follow what they have said, and

2 that's what I believe firmly.

3 What the Prosecutor is asking you, and I'm

4 almost finished, since we are talking about ruling

5 about the international conflict -- character of the

6 conflict, in fact, this is taking away your freedom as

7 a Trial Chamber and in a sense not respecting your own

8 functioning, the grandeur and august nature of your

9 function. Remember that you are an International

10 Tribunal, something which has not been seen very

11 frequently before. In fact, the entire world is

12 watching you and your responsibility is very great.

13 And to say in your judgement that this issue of law was

14 already adjudicated, therefore we're not going to

15 re-judge it, I think that would be asking you to limit

16 your freedom completely and not to consider yourself as

17 a real court. Thank you.

18 JUDGE BENNOUNA: (Interpretation) Mr. Saint

19 Just, I would like to note something that you referred

20 to Rule 94, which has to do with the jurisdiction of

21 the Trial Chamber and say that you have to make a

22 distinction between the existence of a fact and the

23 legal conclusion to be drawn from that fact. I note

24 that there are facts and, in fact, we will see -- we

25 will consider this issue very seriously in our -- from

Page 403

1 the depths of our conscience, and there is the

2 interpretation and the legal conclusion that should be

3 drawn from these facts. I will note this distinction

4 you have made.

5 Judge Robinson?

6 JUDGE ROBINSON: Mr. Saint Just, in your

7 submissions, I understood you to be saying that this

8 Trial Chamber would not necessarily be bound to take

9 judicial notice of a fact that has been adjudicated by

10 the Appeals Chamber. If that is so, are you then

11 saying that Rule 94(B) has no scope of application,

12 because what would be the scope of application for Rule

13 94(B) if the Trial Chamber cannot exercise the

14 discretion which is given to it under 94(B) to take

15 judicial notice of adjudicated facts not from another

16 Trial Chamber but from the Appeals Chamber.

17 I can understand the argument in relation to

18 another Trial Chamber which is a Chamber of coordinate

19 jurisdiction, but what then would be the scope of

20 application for 94(B) if the Trial Chamber is not

21 allowed to take judicial notice of adjudicated facts

22 from other proceedings of the Appeals Chamber?

23 Do you understand the question?

24 MR. DE SAINT JUST: Your Honour --

25 THE INTERPRETER: Microphone, please.

Page 404

1 MR. DE SAINT JUST: Regarding the Appeals

2 Chamber judgement, today we know that the two decisions

3 referred to have still not been resolved by the Appeals

4 Chamber, therefore your argument doesn't hold. As for

5 the effect of a decision of an Appeals Chamber, it is

6 quite certain that if an Appeals Chamber, there is no

7 cassation Court here but the Appeals Chamber being the

8 final chamber, I think that you have to bear it in

9 mind, but I still consider that regarding the

10 interpretation and the legal consequences, it is still

11 up to you, that is the Trial Chamber, you still have

12 complete freedom to judge in one way or another. In

13 other words, Your Honours, I do not think that in your

14 decision, you can be satisfied by saying that the

15 Appeals Chamber has ruled in such-and-such a way. Of

16 course you can refer to it as one of your arguments,

17 but I think you're obliged to motivate yourself any

18 legal decision that you take yourself, and to provide

19 the motivation for it.

20 JUDGE BENNOUNA: (Interpretation) Thank you.

21 We are not here to judge relationships between the

22 Chamber and the Appeals Chamber. We have the statute,

23 and if an Appeals Chamber decides to revise a decision

24 or to send it back to the Trial Chamber, they have to

25 do accordingly. An Appeals Chamber is obliged to

Page 405

1 harmonise the jurisprudence, and it goes without saying

2 that we have to take into account, but we are not

3 obliged textually to be bound by its decisions.

4 And this is something specific to this

5 International Tribunal. I now give the floor to

6 Mr. Pantelic, who is going to intervene as the last

7 speaker this morning on behalf of the Defence,

8 therefore for about ten minutes, to conclude the

9 response of the Defence regarding judicial notice and

10 regarding the international conflict and the

11 established facts.

12 MR. PANTELIC: After the very profound and

13 professional submissions of my learned colleague, I

14 could just take this possibility to have a short

15 overview of the mutual motions and response to the

16 motions and some other theoretical questions about the

17 judicial notice, collateral estoppel, res judicata, and

18 general terms which should be our guideline here in the

19 Tribunal; that's fairness of trial.

20 First of all, I have to note that the former

21 members of the Prosecutor bench, namely Justice Richard

22 Goldstone, former Prosecutor of ICTY, in his

23 submissions, the interlocutory appeal hearings for the

24 Tadic case a few years before, made some references to

25 very distinguished and learned colleague, His Honour

Page 406

1 Judge Shahabuddeen, who at the same time made other

2 references to words of Sir -- I think it's Judge

3 Patrick Fitzmorris. So all persons in question stated

4 unanimously that use of doctrine of judicial notice, in

5 no matter which legal system, but especially in the

6 proceedings before international courts -- and this

7 Court is without a doubt, it's a fact of common

8 knowledge, is an international Court -- so the use of

9 this doctrine should be very conservative. Because in

10 proceedings before International Court of Justice where

11 the parties are governments, states, that's another

12 problem. But here, where the person is -- individual

13 is in question, there is no government, there is nobody

14 to cover him, to help him. And the role of the Court

15 is, according to the Rules, is to respect his right for

16 defence.

17 So in conclusion, use of judicial notice,

18 especially before ICTY and during our proceedings,

19 should be absolutely restrictive and conservative. In

20 our written motion -- I mean response to motion, to

21 these motions, we attached hundreds of pages of various

22 theoretical issues, more than 400 pages, about the

23 practice in the United States, Canada, Malaysia, Hong

24 Kong, Australia -- I mean, mainly in common law systems

25 as well as civil law. I don't want to make any

Page 407

1 particular reference to that; everything is there.

2 His Honour Judge Robinson made, from my point

3 of view, very important reference to one issue on which

4 I would like to give some comments. The fact is that

5 if, for example, in Tadic or Celebici judgement, Appeals

6 Chamber will practically serve the same in general

7 terms, judgement in relation to the nature of conflict,

8 the question is: Is this decision or particular Trial

9 Chamber should be bound by this decision? My personal

10 position is in favour of this approach, but I have some

11 reserves to that, very factual.

12 Speaking about the Tadic proceedings, his

13 Defence counsel, a Dutchman, distinguished colleague,

14 Mr. Vladimirov, was not interested at all about these

15 general issues and questions. He stated that many

16 times. I know because I have some personal relations.

17 In Tadic case, furthermore --in Celebici case; sorry --

18 the Defence for the accused person consisted of Croat

19 and Muslim lawyers, including some other colleagues

20 from Canada, the States, et cetera. But the very issue

21 about the nature of conflict was also not so important

22 for this particular case. This case, Samac case, in

23 chronology of proceedings before ICTY, is the first

24 case where the Defence is in position to serve and to

25 submit some documents which were not at all

Page 408

1 hypothetically even possible to be in possession of

2 either Defence counsels in other cases about this very

3 precise and very important issue, the nature of

4 conflict. Namely, about the involvement -- alleged

5 involvement -- of JNA, Yugoslav army, in operations in

6 Bosnia.

7 Now, we are facing one procedural situation

8 here. I think that -- and my interpretation of Rule

9 94, subrule B, the words which I would like to refer

10 are "after hearing the parties, may decide to take

11 judicial notice." What does it mean, "after hearing

12 the parties"? It's not a simple situation that we

13 shall submit our arguments, the other party will hear

14 it, Trial Chamber will decide; no. In this -- well,

15 that's my interpretation; that's my approach. In this

16 particular situation, we have to have special hearing

17 about the fundamental issues, if one party will ask for

18 it. And I will tell you why we should hear, in terms

19 of judicial economy, have this special hearing.

20 Personally that would be injustice for me, and my

21 colleagues in this case, to be bound by the conclusions

22 of Appeal Chamber about the nature of conflicts,

23 because how someone can speak about the nature of

24 conflict without the presence of very important

25 evidence, documentation, at least one party in

Page 409

1 question, and one party in question is former

2 Yugoslavia People's Army, JNA, do you think that

3 learned colleague from Holland and learned colleagues

4 from Bosnia and from Croatia could even think about the

5 possibility to take some other very, very confidential

6 documents from the archives of the headquarters of JNA,

7 and then put it before one Trial Chamber and discuss

8 about the possible nature of the conflict?

9 So we have to be very, very conservative

10 about this very nature, this moment. Because we didn't

11 see that before in other cases. Theoretically, you can

12 say "well, we have now a final decision in Tadic and

13 Celebici cases; we have to be bound by this general

14 issue." But Your Honour, just a second, please, I just

15 come to my point, please.

16 So we could say theoretically yes -- my

17 suggestion in terms of judicial economy, Your Honour,

18 that's my conclusion, is -- and this is a short

19 reference to some submissions of my learned colleague,

20 Ms. Paterson, I firmly believe that if you are speaking

21 about the Pre-Trial conferences in terms of rule 73

22 bis, it is not the means that we have to have one date

23 and one special hearing for all these things.

24 Pre-Trial period is a large period, I mean that's not

25 the question of day, that's a period. And I strongly

Page 410

1 suggest this Trial Chamber to grant our proposal to

2 have special hearing with not more than two or three

3 expert witnesses.

4 JUDGE BENNOUNA: (Interpretation)

5 Mr. Pantelic, allow me to interrupt you. I'm

6 interrupting you to tell you the following: This is an

7 approach that I do not share, because you are referring

8 to another problem. The question that we are

9 addressing is the following: Judicial notice. We are

10 not going to redo the Tadic or the Celebici trials. We

11 are proceeding on the basis of a motion submitted by

12 the Office of the Prosecutor regarding the

13 international character of the conflict from

14 such-and-such a date until such-and-such a date. You

15 have expressed your standpoint in writing; if you have

16 additional elements to contribute, this is the occasion

17 to do so.

18 Secondly, regarding a certain number of facts

19 mentioned in another motion with appropriate numbers

20 that have been discussed a moment ago, clearly they go

21 up to 168. To hear the parties, that is not to present

22 evidence all over again. It is only to see whether we

23 can take judicial notice or not, and for what reasons.

24 That is all.

25 Therefore I disagree with you. We are not

Page 411

1 going to have another hearing on these questions with

2 expert witnesses; that is not the problem. That is not

3 the question we are addressing; I'm sorry to tell you

4 that. You're outside the scope of the issue. The

5 issue is there is a motion, there is response of the

6 Defence that we have read, I have taken note of the

7 comments by Mr. Saint Just regarding the facts and the

8 interpretation of facts and the legal consequences of

9 those facts; I have taken note of his position. If you

10 have supplementary elements to contribute to that

11 question, the Trial Chamber is ready to give you a few

12 more minutes, after which we will adjourn.

13 MR. PANTELIC: Thank you, Your Honour.

14 Everything is in connection with this issue. I would

15 say, as I stated in my written submissions, I said that

16 there is no legal possibility to take judicial notice

17 about the term which is not a fact. Speaking about the

18 fact of independence of Bosnia, we cannot say that

19 that's a fact, because for one state to be independent

20 in the international public law terms, there are some

21 preconditions, and very easily we could challenge

22 that.

23 I will now just bring your attention on

24 another fact which is very important, and finally we

25 will see why these facts are important for the

Page 412

1 interests of the individual, my client. Because after

2 that, if we take without any critical approach this

3 fact, we could say well that's a fact, 6th of

4 March,'92, Bosnia was recognised as an independent

5 state. Ergo, JNA was there, ergo international

6 conflicts, ergo my client is in a problem because

7 application of Geneva Conventions under this factual

8 situation is completely different than if you are

9 speaking about civil war, and speaking about the

10 nature. So therefore I think it's premature to open

11 all these questions and to speak about all this. And

12 just give my opinion that we should need at least to

13 hear, I would say theoretically third party, all these

14 proceedings. We heard Croats, Muslims, finally lets

15 hear Serbs. Why not? About this very important

16 issue. I just stated why.

17 So by nature, judicial notice in this

18 particular case cannot be taken about the nature of

19 conflict, because it's a theoretical -- it's not fact;

20 it's a theoretical question, requesting very profound

21 expertise, which we don't see at the moment. In spite

22 of some findings in Tadic and Celebici case,

23 controversial, absolutely unfounded, a big error in

24 law. So if you need, Your Honour, some other

25 submission about the second motion, I can proceed, or

Page 413

1 maybe I can do that after, about the second motion

2 40(P), concerning the list of facts and the nature of

3 these facts, et cetera.

4 JUDGE BENNOUNA: (Interpretation) I am going

5 to adjourn, because of the good cooperation of the

6 interpreters, whom I thank in passing. We will resume

7 at 2.30 sharp. We have heard you on the nature of the

8 conflict as well as your co-counsel, Mr. Saint Just; we

9 also heard Mr. Brassic. I think that the arguments of

10 the Defence have been amply developed regarding the

11 international character of the conflicts. I will give

12 the floor again when we resume work regarding the

13 second motion, that is taking judicial notice on

14 adjudicated facts. Mr. Brassic, you have something to

15 add?

16 MR. BRASHICH: Your Honour I am under order

17 by Judge Turner of the United States District Court for

18 the Western District of Tennessee to be available by

19 telephone at 3.00 for approximately five minutes. I

20 was wondering if I could at 3.00, if I could ask for a

21 recess to take the call as to scheduling of a case in

22 Tennessee where I represent the defendant.

23 JUDGE BENNOUNA: (Interpretation) It is very

24 difficult for me to adjourn the hearing for -- you said

25 five minutes? Five minutes? I won't adjourn the

Page 414

1 hearing, because you have a telephone appointment.

2 However, if you wish to leave the hall for five

3 minutes, you will ask permission of the Court. Thank

4 you.

5 The hearing is adjourned.

6 --- Luncheon recess taken at 1.12 p.m.

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18

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Page 415

1 --- On resuming at 2.30 p.m.

2 JUDGE BENNOUNA: (Interpretation) We can now

3 resume the hearing at the point where we left off this

4 morning. I give the floor to Mr. Pantelic, who should

5 speak about the issue of adjudicated facts and judicial

6 notice. That is our motion -- or another motion,

7 rather, because the Defence had already spoken about

8 the first motion having to do with the international

9 character of the conflict.

10 Mr. Pantelic, you may proceed. I request,

11 given the -- the magnitude of our work today, to keep

12 the time in mind when you present your arguments,

13 because many of the arguments have already been

14 submitted in written form.

15 MR. PANTELIC: I will follow your

16 instructions.

17 First of all, before I start with my

18 submissions in regard to the second motion, officially

19 on behalf of all Defence counsels I would like to

20 officially ask from the Court to take my oral motion,

21 which is as follows: Defence respectfully ask for a

22 special hearing about the issue of -- nature of the

23 conflict, or if it's not granted, Defence would like to

24 offer and propose an offer of proof as following -- the

25 evidence as following, Defence would like to introduce

Page 416

1 in these particular proceedings the following

2 evidences, an agreement by warring parties in BHA on

3 May 22nd, '92 with the presence of ICRC members. Then

4 strictly confidential internal documents from JNA

5 headquarters in Belgrade relating to the retreat

6 process in Bosnia in May '92, and other expert witness

7 opinions related to the International Public Law

8 issues, meaning of control of territory of Bosnia and

9 then all other relations between March and 19 May,

10 '92.

11 MR. BRASHICH: If I may, Your Honour.

12 THE INTERPRETER: Microphone, please.

13 JUDGE BENNOUNA: (Interpretation) Mr.

14 Brashich.

15 MR. BRASHICH: Just to clarify Mr. Pantelic's

16 statement, what the Defence offers at this present

17 time, should a request for an evidentiary hearing not

18 be granted as to the issue in motion number one, for

19 the record, we are making a formal offer of proof that

20 should such a hearing have been held, we would have

21 offered into evidence at that time an agreement between

22 the parties in conflict under the auspices and

23 sanctions of the International Committee for the Red

24 Cross in May 1992, which specifically found as to the

25 nature of the conflict at that time.

Page 417

1 We are further prepared to offer in evidence

2 at such a hearing internal documents, beginning at

3 least March 1992, showing that the JNA was an army in

4 retreat, and that any actions taken by it were as a

5 defensive measure and not as measures taken as acts of

6 war.

7 We would further offer at such a hearing,

8 should it be granted, expert testimony as to the nature

9 of the conflict. Should we have such a hearing, the

10 Defence is prepared to offer into evidence facts which

11 would show that the territory of Bosnia and

12 Herzegovina, at that time, was not controlled by a

13 central authority and that 70 to 73 per cent of the --

14 JUDGE BENNOUNA: (Interpretation) Mr.

15 Brashich, I regret having to interrupt you. I've

16 understood the motion, and I don't need any additional

17 arguments. We are not now getting into the very

18 essence of the subject, I've already said that this

19 morning. I am sorry that you're insisting on that

20 point.

21 I believe that having told you that we must

22 remain within the scope of the subject. This is not

23 the trial. We are not now proving facts, nor are we

24 producing evidence in respect of any facts. This is

25 simply a Pre-Trial motion, and this motion requires

Page 418

1 judicial notice.

2 I've understood the oral submission by

3 Mr. Pantelic. I've just heard it. I'm going to

4 consult with my colleague Judge Robinson for a few

5 moments. Thank you.

6 I will give the floor to the Office of the

7 Prosecutor, its representative, in order to express her

8 point of view on this oral motion which was just

9 presented by the Defence.

10 MS. PATERSON: Thank you, Mr. President. We

11 would oppose the request of the Defence, primarily

12 because they have made this request not in a timely

13 manner. They had sufficient opportunity up until the

14 end of the day yesterday to file any motions or

15 responses to our motions.

16 I believe that in essence this is essentially

17 what Mr. Brashich said in his response to our motion,

18 that if he was requesting an order for a hearing on the

19 facts, the motions submitted by the other three Defence

20 focused more on the issue of judicial notice than the

21 issue of such a hearing. Certainly they have been free

22 to make these documents available to the Court.

23 Obviously, it's up to the Court's discretion

24 if, under the circumstances, you want to accept the

25 documents. We have not seen the documents, I don't

Page 419

1 know what the documents are that they're referring to,

2 so I'm not in a position to comment on their

3 relevance.

4 Our position is simply that it's not timely,

5 and, as you point out, that's not really the issue

6 here. The issue is whether or not you can take

7 judicial notice. If you rule that you cannot or will

8 not take judicial notice, then we proceed to trial and

9 prove our case accordingly, and they will have

10 sufficient opportunity at that time to introduce this

11 evidence.

12 MR. BRASHICH: Your Honour, this was just an

13 offer of proof.

14 JUDGE BENNOUNA: (Interpretation) Just a

15 moment, please, Mr. Brashich. I had not given you the

16 floor.

17 All right. Proceed, please. Tell us quickly

18 what it is that you want to say.

19 MR. BRASHICH: This is just an offer of

20 proof. It was not meaning that I was trying to argue

21 the case. I was just offering that should an event

22 have taken place, this is what we would have submitted

23 for the Court.

24 JUDGE BENNOUNA: (Interpretation) Yes, very

25 well. Very well. We have understood. We've

Page 420

1 understood that if there is a hearing, you will bring

2 in documentary evidence, and I would also say that

3 you're speaking about a document dated 22 May, which is

4 well-known. It's known, and it does not fall within

5 the period that we're talking about because that period

6 stops on the 19th of May, but that doesn't matter.

7 Let me repeat to you, and this is something

8 which is agreed to in all legal systems, that it's not

9 a question of opening the trial now. This is the

10 Pre-Trial phase, and there is no question of opening

11 the door to proofs and counter-proofs in order to

12 establish evidence. This is not the right time. You

13 are in a position where you would know that, because

14 you are high-level counsel.

15 But the question is one of judicial notice.

16 That means either there are facts that are common

17 knowledge and the Trial Chamber will have to then so

18 state, or there are facts which were adjudicated and of

19 which we are taking notice for purposes of judicial

20 economy.

21 Once again, there is no need to go back to

22 the proof of this or that fact. You referred to, for

23 example, the independence which was proclaimed by

24 Bosnia and Herzegovina on the 6th of March. You said

25 that the independence was-- was that independence

Page 421

1 proclaimed on the legal basis or not? That's not

2 judicial notice. Judicial notice is simply to know

3 whether there was a declaration proclamation. Was

4 there a proclamation or was there not? Do we have to

5 open up that question again? That is in respect of the

6 notion of the proclamation, not an evaluation of the

7 proclamation. I believe that your colleague said that

8 a little while back. You followed it and you said that

9 you would be able to save us some time in this

10 discussion. There is the fact, and there is the

11 conclusion and the evaluation, the interpretation of

12 the fact.

13 If the fact is established under legally

14 judiciously proper conditions in all legal systems, we

15 will take note of that. If it has not been

16 established, we will not take note of that. We cannot

17 decide that it was established, especially if what is

18 involved are controversial evidence as regards the

19 international character of the conflict.

20 There is a problem of classification of the

21 conflict. The Trial Chamber is aware of the importance

22 and the complexity of this issue, and it will

23 deliberate about that knowing fully what it is doing.

24 The last question on this point and then we

25 will end that part of the discussion, one of you, and a

Page 422

1 representative of the Office of the Prosecutor, we

2 would like to know what you mean by "international

3 conflict." It's having been understood if you have a

4 rapid answer that you can give us. It's been

5 understood that we accept as an established fact that

6 there was an armed conflict in Bosnia and Herzegovina

7 in the period in question. Nobody would challenge

8 that. There was a conflict.

9 Now we have to know what you mean by

10 "international conflict." I would like to know, first

11 of all, what the position of the Prosecutor is and then

12 that of the Defence, and then we will put an end to our

13 discussion of that question. Ms. Paterson?

14 MS. PATERSON: Yes, Mr. President. The

15 definition of international armed conflict can be

16 determined from looking at Article 2 of the Geneva

17 Conventions. In that Article it states, "In addition

18 to the provisions which shall be implemented in

19 peacetime, the present convention shall apply to all

20 cases of declared war or of any other armed conflict

21 which may arise between two or more of the

22 hight-contracting parties even if the state of war is

23 not recognised by one of them. The conventions shall

24 also apply to all cases of partial or total occupation

25 of the territory of a high-contracting party even if

Page 423

1 the said occupation meets with no armed resistance."

2 The ICRC commentary to that provision goes on

3 it state that, "Any difference arising between two

4 states and leading to the intervention of members of

5 the armed forces is an armed conflict within the

6 meaning of Article 2."

7 Obviously under the rules of the Geneva

8 Conventions for Article 2 to apply there must be an

9 international armed conflict. So it's our contention

10 that if you have an armed conflict between two or more

11 of the high-contracting parties, and Bosnia and

12 Herzegovina and the SFRY were both high-contracting

13 parties, then you have an international armed

14 conflict.

15 JUDGE BENNOUNA: (Interpretation) Thank you,

16 Ms. Paterson. Defence counsel, who would like to speak

17 on that subject? Mr. Brashich?

18 MR. BRASHICH: I would point to the Court

19 that the United States had a war in 1860. It's still

20 called the Civil War.

21 MR. PANTELIC: Your Honour --

22 JUDGE BENNOUNA: (Interpretation)

23 Mr. Pantelic?

24 MR. PANTELIC: Your Honour, speaking in terms

25 of the high contracting parties in accordance with

Page 424

1 Geneva Conventions means States. What are the

2 preconditions and prerequisites for one State to be

3 recognised as a State in international terms? To

4 control a territory, the 6th of March and 6th of April

5 and all other further months, around 70 per cent of

6 territory of Bosnia and Herzegovina was not under the

7 control of Muslim-dominated government in Sarajevo.

8 Without this condition, we cannot speak about the

9 state, ergo there are no high contracting parties, and

10 finally there is no application of Article 2 of Geneva

11 Conventions.

12 To find all this, to make a finding of all

13 this and finding the nexus between the armed forces of

14 one State involved in conflict and military operation

15 on the territory of another State, is the key issue;

16 whether JNA was a power in retreat or it was a power of

17 one State in act of aggression or occupation. All

18 these questions cannot be done between simple

19 discussion and simplification like this. We have to

20 hear well-known experts; we have to hear and to see,

21 more important, highly confidential documents from at

22 least one part in alleged conflict, which was not the

23 case before, here before, all proceedings. We have to

24 hear very shortly some experts on international public

25 law.

Page 425

1 Just for your reference, in Celebici case, we

2 heard expert Marie-Janine Calic speaking about

3 international character of conflict, only of 20 minutes

4 or half an hour. So in terms of judicial economy, we

5 could provide three experts speaking at least for 45

6 minutes specifically focused on these issues, and then

7 we could speak --

8 JUDGE BENNOUNA: (No interpretation).

9 THE INTERPRETER: Could we have the Judge put

10 the microphone on, please.

11 JUDGE BENNOUNA: (Interpretation)

12 Mr. Pantelic, you've gone back into expert testimony.

13 I'm asking for a specific answer you gave, an answer in

14 respect of what you consider to be an armed conflict.

15 Thank you very much.

16 As regards your oral motion relating to a

17 hearing in order to present evidence about the

18 international nature of the conflict, the Trial Chamber

19 cannot accept it, which means that we will deliberate

20 further to these oral submissions and exchanges between

21 the parties and we will take our decisions.

22 I will now ask you to speak about the second

23 motion, dealing with the establishment of facts; that

24 is, the judicial notice for establishing facts.

25 Mr. Pantelic, you may proceed.

Page 426

1 MR. PANTELIC: As we stated in our response

2 filed yesterday, on Prosecutor's motion for judicial

3 notice or facts of common knowledge, firstly we have

4 to -- well, I have some questions for the Prosecutor

5 bench to explain: How we can consider initial motion

6 for facts of common knowledge? And then is this

7 another motion? The second motion is just an annex to

8 first motion introducing a new term called "adjudicated

9 facts," or we could speak in general about these two

10 motions with regard to one issue.

11 So I would kindly ask my colleagues from

12 Prosecutor bench to give me an answer so that I can

13 focus my discussion or my submission on this very

14 issue.

15 JUDGE BENNOUNA: (Interpretation)

16 Ms. Paterson?

17 MS. PATERSON: If you can just give me a

18 moment, Your Honour, to reread the transcript so I can

19 understand Mr. Pantelic's question.

20 MR. PANTELIC: Simply, Ms. Paterson, are we

21 speaking about two separate motions, or one, about one

22 issue, about facts of common knowledge?

23 MS. PATERSON: Well, as we -- as we explained

24 to the Court in our oral argument on this issue, we are

25 of the opinion that the Court can find either/or, that

Page 427

1 both 94(A) or 94(B) can be applied to these facts.

2 It's our contention that they are all historical facts

3 which are widely accepted by scholars and historians

4 around the world. If the Court does not accept that

5 definition of the facts, then the Court can find them

6 adjudicated facts, because all of the facts listed are

7 facts that have been taken from the decisions of other

8 Trial Chambers before this Tribunal. All of these

9 facts were decided by the Tadic Court and by the

10 Celebici Court, and we would contend that as such, they

11 are adjudicated facts.

12 So that decision, basically, has to be made

13 by the Court, which way they want to classify the

14 fact. We believe they can be classified both ways. It

15 is up to the Court to decide which they think is more

16 appropriate.

17 JUDGE BENNOUNA: (Interpretation) Thank you,

18 Ms. Paterson.

19 Mr. Pantelic, I hope that you are going to

20 take up the subject, because this has been almost 45

21 minutes that you are turning around and around the

22 subject, and I will not allow that any further. You

23 have ten minutes to develop the question; ten minutes

24 to tell us what you think about it. Because you are

25 going around and around the subject.

Page 428

1 MR. PANTELIC: My time is running; okay.

2 So first of all, we did not receive 170

3 paragraphs of OTP submissions. We only have, in total,

4 168. So discussion about this very important issue

5 might be very, very delicate, not knowing what is in

6 paragraph 169 and 170. Where the problem is, I don't

7 know --

8 JUDGE BENNOUNA: (Interpretation) Excuse me,

9 I'm asking you to speak of the 168 paragraphs, please.

10 MR. PANTELIC: But still, it's very important

11 to see in total -- maybe some other important relations

12 between the last two paragraphs might have influence,

13 you know, to maybe discussions about all other. But

14 Your Honour, I will proceed; that's probably a

15 technical question that can be easily resolved with

16 contacts with the registry.

17 So the Defence considers this list of -- I

18 would say hypothetically facts of common knowledge or

19 adjudicated facts -- as a proposal from the

20 Prosecutor's side, fully in accordance with Rule 73

21 bis, and we consider this annex as an admission or a

22 statement addressed from Prosecutor to the Defence. In

23 light of this, what I said, we are prepared, and we

24 finally state it in our response, that Defence

25 considers non-contested matters of fact as follows, and

Page 429

1 there are in total I think 60 paragraphs.

2 In our annex 2, we consider the following

3 facts as disputed but non-negotiable; in total, around

4 12. And finally, in our third annex, this is a

5 statement of Defence, I should be very precise; it's

6 the statement only of counsels for Mr. Milan Simic and

7 Mr. Miroslav Tadic, because unfortunately Mr. Pisarevic

8 was provided by this material only yesterday evening.

9 And finally, we should hear our distinguished

10 colleague Brashich about these issues.

11 In third annex Defence states that we

12 recognise some disputed but negotiable matters of

13 fact. Speaking about these three annexes, and in light

14 and in spirit of cooperation, especially in the

15 interest of justice, and judicial economy, and our

16 clients, Defence is ready to, according to our relief

17 requested in our Defence, in our response, we are ready

18 in a further period to speak and to negotiate with the

19 OTP in order to maybe enlarge this number of facts

20 which could be undisputed between parties, and then we

21 shall have quite precise frame for our further

22 proceedings.

23 In conclusion, Defence considers all these

24 annexes and facts specifically addressed pursuant to

25 Rule 73 bis, and therefore our -- I would like to

Page 430

1 underline this issue -- our, I would say, statement

2 that we consider some of the facts non-disputed, means

3 that I need another answer from the OTP bench: If, for

4 example, paragraph 56 or the other paragraphs in Tadic

5 judgement or Celebici judgement means that by admission

6 from the Defence side, for example, first paragraph,

7 about the historical issues, means automatically that

8 the Defence is admitted or ready to admit a paragraph

9 from Tadic judgement 56, because Your Honours, if we

10 are reading these paragraphs from Tadic and Celebici

11 judgements, these paragraphs are absolutely

12 controversial. There are many errors, factual

13 misfindings, and all these things. So I would like to

14 stress again, Defence, by admitting these 60 and 4

15 paragraphs, does not automatically admit that paragraphs

16 from initial judgement. I would like to make it very

17 clear. We admit only formulation from the annex to the

18 Prosecutor motion for adjudicated facts and facts of

19 common knowledge dated February 10th.

20 Thank you very much.

21 JUDGE BENNOUNA: (Interpretation) Thank you,

22 Mr. Pantelic. I will summarise, if you agree.

23 Ultimately you have gone back to what is

24 found in the written response. You make a distinction

25 between three categories, which are in the annexes,

Page 431

1 that the list of facts which you considered as

2 undisputed. I have the text in English here. The

3 second part. You consider those to be disputed, but

4 non-negotiable, and the Trial Chamber will have to make

5 a ruling on that subject. And annex 3, which contains

6 a list of facts which the Defence considers to be

7 disputed but could be the subject of an agreement

8 between the parties.

9 Could I then conclude that you are going to

10 contact the Office of the Prosecutor to discuss the

11 third part, and that you will report back to us on the

12 conclusions that will have led to an agreement between

13 you and the Office of the Prosecutor.

14 MR. PANTELIC: Yes, Your Honour, that was our

15 idea, very precisely.

16 JUDGE BENNOUNA: (Interpretation) Thank you

17 very much.

18 That concludes our discussion of the second

19 motion dealing with the facts of taking judicial notice

20 on adjudicated facts.

21 Would somebody else like to speak to this

22 issue?

23 I will then move to the third motion and ask

24 the Office of the Prosecutor to speak about the fourth

25 motion for admission of evidence.

Page 432

1 Ms. Paterson, are you going to speak?

2 MS. PATERSON: Yes, Mr. President. Today

3 seems to be my day to speak.

4 JUDGE BENNOUNA: (Interpretation) Please

5 proceed.

6 MS. PATERSON: Yes. As to the motion

7 requesting admission of documentary evidence, we have

8 brought this to the Court's attention pursuant to

9 Rule 73 and 73 bis, 73 bis dealing with the Pre-Trial

10 conference. Now we acknowledge that in some ways this

11 could be seen as premature, but we have filed this

12 motion in the spirit of the request made to us by Judge

13 Rodrigues to try and resolve as many issues Pre-Trial

14 as possible. The annex of documents constitutes, quite

15 frankly, a majority of the documentary evidence that we

16 intend to introduce at trial although by no means all.

17 There are some additional documents that we may decide

18 to attempt to admit and obviously want to reserve the

19 right to do so at the appropriate time. However, in

20 the spirit of judicial economy, it was our hope that

21 these motions could be accepted into evidence

22 provisionally, with the understanding that we would

23 still be required at trial to authenticate the

24 documents and to establish their relevance, and the

25 Court obviously would rule at that time as to their

Page 433

1 admissibility and the weight that the Court wants to

2 give the documents. But rather than taking the time

3 during the course of the trial to introduce such a

4 large number of documents one by one, we thought that

5 this was a way to expedite the proceedings.

6 While it would obviously take some time to

7 analyse all the documents, we acknowledge that there is

8 a large number of them; it's our contention that these

9 documents are all relevant to proving motive, intent,

10 knowledge, preparation and planning; that the documents

11 are certainly evidence that goes to support the charges

12 in the indictment, specifically the charges of

13 persecutions and deportations, that they are evidence

14 of the campaign of ethnic cleansing that we allege in

15 the indictment took place in Bosanski Samac and Odzak

16 municipalities as we have noted in our written motion

17 the vast majority of the documents were given to us by

18 officials of government agencies, including officials

19 of the government of Republika Srpska. Almost all of

20 the crisis staff documents that we are asking be

21 admitted were given to us by Mr. Mirko Lukic who is the

22 current mare of Bosanski Samac and was himself a member

23 of the crisis staff during the war. These documents

24 were given to us voluntarily; we did not have to

25 utilise search warrants or subpoenas. In addition the

Page 434

1 documents relating to the Banja Luka military Court

2 were given to us voluntarily by those government

3 authorities, and in fact many of the documents were

4 also provided by the Defence counsel in this case, by

5 Mr. Pisarevic in particular. So while we realise this

6 may be a somewhat novel approach to this issue, we have

7 decided to at least put it before the Court in an

8 attempt to expedite the proceedings.

9 We are aware that our colleagues in the

10 Omarska case that is also before this Chamber have

11 filed a similar motion, and if Your Honours are willing

12 to accept this approach we think it's a way to expedite

13 the proceedings and move the case along to a trial.

14 Thank you.

15 JUDGE BENNOUNA: (Interpretation) Thank you,

16 Ms. Paterson, and thank you for being so concise, which

17 also refers to the written submission that we have

18 before us regarding the admission of documentary

19 evidence and which contains a table listing all those

20 documents, most of which, as you have said, have been

21 conveyed and disclosed to the Defence.

22 Who would like to speak on behalf of the

23 Defence regarding this motion? Mr. Pantelic?

24 MR. PANTELIC: Your Honour, we don't have any

25 particular objections to this motion, so you may

Page 435

1 consider that we are absolutely agreed upon this way of

2 proceeding. Thank you.

3 JUDGE BENNOUNA: (Interpretation) Thank you.

4 Ms. Paterson?

5 MS. PATERSON: Just to make the record clear

6 Your Honour, the only documents on that list that had

7 not yet been disclosed to the Defence are the so-called

8 Banja Luka Military Court documents. I have them in

9 court today and we intend to provide them to Defence

10 before we leave the court today. So at the conclusion

11 of today's proceedings they will have copies of every

12 document on that list.

13 JUDGE BENNOUNA: (Interpretation) Thank you,

14 Ms. Paterson. The Chamber takes note of the fact that

15 all the documents will, at least by the end of the day,

16 all the documents listed will be disclosed to the

17 Defence.

18 We have heard the parties on the four motions

19 submitted by the Prosecutor, the Office of the

20 Prosecutor, and I'm now going to pass on to the second

21 group of motions. Mr. Saint Just?

22 MR. DE SAINT JUST: (Interpretation) Mr.

23 President, excuse me, regarding the documents that are

24 going to be disclosed by the Prosecution, may I hope

25 that we will have them translated into French in a

Page 436

1 relatively short delay.

2 JUDGE BENNOUNA: (Interpretation) Madam

3 Paterson.

4 MS. PATERSON: Mr. President, it's my

5 understanding that we are under no obligation to

6 translate these documents into French. They are all in

7 English and have also been translated into

8 Serbo-Croatian, but according to my reading of the

9 Rules we are not obligated to also translate them all

10 these documents into French, unless I'm misreading the

11 Rules of the Tribunal.

12 JUDGE BENNOUNA: (Interpretation) Thank you.

13 THE INTERPRETER: Microphone, Your Honour.

14 JUDGE BENNOUNA: (Interpretation)

15 Mr. Saint Just, after having studied this question at

16 some depth, it seems that there is a Rule for this type

17 of document in this stage, would have to be provided in

18 only one of the working languages. However, if there's

19 a document, a particular document that you would like

20 to have translated for particular reasons or because of

21 its importance, let the Registrar know and -- or,

22 rather, let the Chamber know and we will let the

23 Registrar know to have it translated.

24 This also applies to us, because we often

25 have to work in English even though our language is

Page 437

1 French, and sometimes we need to request further

2 clarification. So that is the approach. Thank you,

3 Mr. De Saint Just.

4 I'm now going to -- the Chamber wishes now to

5 proceed with the motion submitted by the Defence, and

6 as I announced this morning, among all these motions,

7 most of them concern the accused Todorovic. There are

8 about 15 of them -- or 15 precisely, and I would

9 suggest in this case too that we group them according

10 to what they have in common. So we will begin with the

11 motion regarding evidence, and then we will go on to

12 hear the parties regarding the form of the indictment.

13 Then the first regarding evidence, we have

14 grouped five such motions, the motion for discovery --

15 I apologise for using the English words because I have

16 the text in English -- the production of material,

17 motion for production of witness statements, the motion

18 to exclude testimony from the accused, motion to

19 suppress identification, and the fifth, the motion to

20 strike and exclude testimony.

21 These are five motions which have to do with

22 evidence, and that is why we have put them in one

23 category. Therefore, if the Defence agrees, Mr.

24 Brashich, will you be so kind as to argue them in that

25 order?

Page 438

1 MR. BRASHICH: As to the characterisation,

2 and at least I think with regard to my end, this will

3 be a briefer exercise than before. Your Honour --

4 JUDGE BENNOUNA: (Interpretation) Thank you.

5 MR. BRASHICH: Initially one of the defences

6 to these motions, which I would like to lay to rest,

7 was the issue of untimeliness. The way I read the

8 scheduling order is that it had a particular date. My

9 understanding as to dates, it's not close of business,

10 it is 12.00.

11 My motions were timely filed before the end

12 of my working day. In any event, before 12.00 midnight

13 Hague time. And I will note that with regard to

14 responses, when I left at 5.00, which I believe is the

15 close of the working day of the court, there was

16 nothing in my locker, but when I arrived this morning

17 at 9.00 I had the responses from the Prosecutor.

18 My inquiry of the Registrar was that

19 apparently 8.00 was when they were received from the

20 Prosecutor.

21 Your Honour, these are very pro forma motions

22 which seek to flush out anything which might have been

23 omitted either by error or by omission by the

24 Prosecutor in fulfilling her responsibility under the

25 Rules.

Page 439

1 With regard to the motion for production of

2 discovery and exculpatory information, this is the

3 standard request made upon a Prosecutor that any

4 information contained in the Prosecutor's files should

5 be made available to the Defence.

6 I'm used to something which is called an open

7 file Prosecution where I can walk into the Prosecutor's

8 office and physically go through the Prosecutor's

9 file. I do not have that situation here, and,

10 therefore, I have requested with specificity documents

11 which I do not say exist, which I state might exist,

12 and if they do exist I wish to have them made available

13 to me.

14 I have read the Defence -- the Prosecution's

15 opposition to my omnibus application, and I have noted

16 that certain categories of information which I had

17 requested do not exist. They are withdrawn, Your

18 Honour.

19 With regard to the ones that are not -- there

20 are some which are not applicable. I withdraw those

21 also.

22 With regard to the compliance to certain

23 requests, there has been some compliance and the

24 answers note that there will be further compliance.

25 With regard to those, Your Honour, I would simply,

Page 440

1 since there are no time limitations under the Rules,

2 reserve the right to move again in a timely fashion

3 prior to trial if compliance has not been had.

4 JUDGE BENNOUNA: (Interpretation) Thank you,

5 Mr. Brashich. If I understood you well, you have

6 already taken note of the fact that some of the

7 documents that you are asking for do not exist.

8 MR. BRASHICH: Well, in one example, in the

9 answer of the Prosecutor for a document which I had

10 requested, which is a statement of the defendant, the

11 Prosecution makes and warrants to the Court that no

12 statements were made by my client.

13 Now, I do know that when my client was

14 arrested that there were certain statements made, but

15 if the Prosecution states that there are no statements,

16 so be it. That is the kind of a situation which I was

17 referring to, Your Honour.

18 JUDGE BENNOUNA: (Interpretation) Mr.

19 Brashich, are there any specific documents outside the

20 fact that you reserve the right to intervene later on,

21 any specific document that you're requesting from the

22 Office of the Prosecutor?

23 MR. BRASHICH: I believe that some of the

24 documents which I had requested would fall within the

25 motion as to the arrest and detention of my client, and

Page 441

1 I suppose with regard to those specific documents that

2 can be deferred to another day.

3 JUDGE BENNOUNA: (Interpretation) Very well.

4 Very well. That goes without saying, because you have

5 asked that these motions be discussed in the presence

6 of the whole Chamber. Perhaps we will be able to do

7 that tomorrow if Judge May is better. Therefore, for

8 the moment, as far as I understand, you have nothing to

9 request.

10 Ms. Paterson, would you wish to comment on

11 this issue?

12 MS. PATERSON: Yes, Mr. President, if I could

13 first just clarify the record. The Prosecutor's office

14 filed all of its motions at 5.20 yesterday afternoon,

15 which is before the close of business which we have

16 been instructed is 5.30 Hague time. So I don't know

17 where Mr. Brashich got the information that we filed

18 them at 8.00 p.m., but they were filed at 5.20, which

19 we realise was at the end of the day but, nonetheless,

20 was within the necessary time.

21 As to this statement that Mr. Todorovic may

22 or may not have made at the time of his arrest, if such

23 a statement was made, it apparently was some sort of an

24 oral statement either to representatives of SFOR or

25 perhaps to an investigator of the Tribunal. No such

Page 442

1 statement has ever been brought to our attention. I

2 certainly am not aware of any written statement made by

3 Mr. Todorovic.

4 As we've pointed out in our responses, on the

5 10th of February I had a discussion with Mr. Brashich

6 in which I expressed an interest on the part of our

7 office in speaking with Mr. Todorovic, and he said that

8 he would get back to me. So clearly we have not,

9 ourselves, taken a statement yet from Mr. Todorovic

10 that we have to disclose.

11 If Your Honours would like us to respond

12 orally to these basically what I see are nine motions,

13 if we do not count the severance and arrest motions --

14 JUDGE BENNOUNA: (Interpretation) No.

15 MS. PATERSON: -- we are prepared to do so,

16 but, frankly, I think that we can pretty much stand by

17 our written responses. We really have nothing of any

18 substance to add beyond what we've put in our written

19 responses.

20 JUDGE BENNOUNA: (Interpretation) Thank you.

21 For the moment we're dealing with the motion to compel

22 production of discovery and exculpatory information. I

23 think we have clarified the situation for the moment as

24 far as that is concerned, with the right of

25 Mr. Brashich to request documents when we come to the

Page 443

1 motion on the arrest.

2 Therefore, Mr. Brashich, you have the floor

3 if you wish now to comment on the other motions that I

4 have cited a moment ago regarding evidence, the motion

5 that you submitted, motion for the production of

6 statements, motion to exclude testimony from the

7 accused, motion to suppress identification, and motion

8 to strike and exclude testimony.

9 MR. BRASHICH: Your Honour, with regard to

10 most of these motions, I agree with Ms. Paterson that

11 the written submissions are more than adequate, and I

12 think that the Court, in due course, can take care of

13 it.

14 The two motions which I would like to address

15 orally is we have, during discovery, been given a great

16 number of witness statements. Now, the way that these

17 witness statements were prepared was with an

18 interpreter, an investigator and transcribed.

19 With regard to witness statements, what I had

20 asked was for an order directing the Prosecutor to give

21 us any written notes made by the investigator or the

22 person conducting the interview which were

23 contemporaneous with such interview.

24 I think that that is a fair subject for

25 exploration by the Defence during any

Page 444

1 cross-examination, and that would flush out any

2 discrepancies between any written witness statements

3 and what actually was taking place during the

4 interviews.

5 The only other motion that I would propose to

6 address the Court orally would be the motion to strike

7 the aliases from the indictment. I recognise that this

8 court and this Trial Chamber is a highly sophisticated,

9 and erudite and experienced Trial Chamber, and that it

10 can disregard --

11 JUDGE BENNOUNA: (Interpretation) Just a

12 moment, please, Mr. Brashich. I should like us to

13 finish first with the question of the motions

14 concerning evidence. Have you finished with that

15 issue?

16 MR. BRASHICH: -- any contemporaneous notes

17 taken by investigators or the persons interviewed of

18 the individuals with regard to the disclosed witness

19 statements.

20 JUDGE BENNOUNA: (Interpretation) Thank you,

21 Mr. Brashich. Ms. Paterson, do you wish to intervene

22 on this the matter?

23 MS. PATERSON: Just for the sake of

24 clarifying the record while we're all present,

25 Mr. Brashich has a misunderstanding of how we conduct

Page 445

1 our interviews in the field.

2 As Your Honours can understand particularly

3 when we are interviewing witnesses in the former

4 Yugoslavia, and when we were interviewing witnesses

5 while the war was going on we were working under

6 difficult circumstances. Generally what we do is an

7 investigator sits down with a laptop computer, as best

8 they can they type the statement simultaneously while

9 it is being taken. They discuss it with the witness to

10 make sure that it's accurate. A final version is then

11 produced and read to the witness and signed and

12 confirmed by the witness.

13 For the most part of the investigators do not

14 take contemporaneous notes. They do not sit and take

15 handwritten notes and then type them. Usually they are

16 typing at the same time they are conducting the

17 interview. There are some exceptions to that, as to

18 investigators who are not fluent in English who take it

19 in their own language and then transfer it into English

20 for purposes of the statement, but it is the policy of

21 the OTP that all such notes, for confidentiality and

22 security reasons, since we are operating in the field,

23 all such notes and all notes that any interpreters may

24 take are shredded and destroyed and are not saved by

25 the Office of the Prosecutor. So to my knowledge,

Page 446

1 there are no such contemporaneous notes to be

2 disclosed.

3 JUDGE BENNOUNA: (Interpretation) Thank you

4 for this clarification.

5 Mr. Brashich, do you wish to give us

6 additional information about the rest of the motions?

7 After all, you submitted 11. There are five concerning

8 evidence, then the two following ones on which I should

9 like to hear you, if you have anything to add having to

10 do with the form of the indictment. That is a motion

11 for a bill of particulars, and the motion that we have

12 already started discussing, to strike aliases attached

13 to the name, to strike the nicknames. These are two

14 motions regarding the indictment.

15 MR. BRASHICH: In regard to the bill of

16 particulars, Your Honour, as I alluded this morning, I

17 am still a novice with the Rules of this Court, even

18 though I have read them and keep rereading them.

19 Perhaps Ms. Paterson is correct that my motion for a

20 bill of particulars is premature, inasmuch as I had not

21 made a formal demand for the information sought by that

22 motion. If that be so, then I apologise to the Court,

23 and with regard to the bill of particulars, I will

24 withdraw it. I will make the appropriate demand upon

25 Ms. Paterson, and should she fail to comply, we'll be

Page 447

1 back in front of you. For that taking up of the time

2 and with regard to my noncompliance with the Rules, I

3 apologise.

4 With regard to the motion for aliases, I had

5 spoken that this chamber is experienced, sophisticated,

6 and may easily overlook the opprobrium which is

7 contained in the aliases. But just to seem -- not to

8 have the Chamber have what I think is an improper

9 reference to the defendant, who still is only the

10 accused, I would request that my application be

11 granted.

12 JUDGE BENNOUNA: (Interpretation) Thank you,

13 Mr. Brashich.

14 Ms. Paterson?

15 MS. PATERSON: Mr. President, the reason that

16 the aliases were put in the indictment at the outset of

17 the case was because those are the names by which the

18 defendant is referred to by many of our witnesses.

19 Some of them refer to him as Mr. Todorovic; some only

20 knew him by the nicknames that are listed there: Stiv,

21 Stevo, or Monstrum. Whether Mr. Brashich or

22 Mr. Todorovic like it or not, he was known by the

23 nickname of Monstrum, and many of our witnesses will

24 testify to that, that that is how they knew him.

25 Because under the circumstances that was the only, in

Page 448

1 some cases, name that they could provide to us, it was

2 a name that we thought was appropriate to put in the

3 indictment.

4 As we said in our motion, we have confidence

5 in this Court that they will not be swayed by any such

6 names in your determination of the facts of the case,

7 and we will be certainly glad to abide by the ruling of

8 the Court on this matter.

9 JUDGE BENNOUNA: (Interpretation) Thank you,

10 Ms. Paterson.

11 Judge Robinson?

12 I consulted with my colleague. As regards

13 firstly the clarifications that were made in the

14 indictment, that is, the motion for a bill of

15 particulars, I note what Mr. Brashich said; that is,

16 that the motion for the time being is not current, and

17 that we are waiting for clarifications from the Office

18 of the Prosecutor in due course. And therefore the

19 Trial Chamber requests that the Prosecutor, after

20 having contacted the Defence, see what clarification

21 should be added to the Pre-Trial stage.

22 As regards the nicknames, we do not think

23 that it is really necessary to put them into an

24 indictment. If the witnesses come and use nicknames,

25 they can always state that during testimony. Having

Page 449

1 said that, obviously in no case can these nicknames

2 influence our judgement or our choices.

3 That is what we have to say about the two

4 motions dealing with the form of the indictment and the

5 issue of the nicknames. We now have remaining to us

6 the remaining motions, which you filed, Mr. Brashich.

7 There is a motion which you called "Motion for the OTP

8 to elect the theory of prosecution"; another which you

9 have called "Motion for an evidentiary hearing

10 regarding the nature of the conflict."

11 MR. BRASHICH: I believe --

12 JUDGE BENNOUNA: (Interpretation) I think that

13 that is no longer on our agenda for this afternoon,

14 since we settled that issue a while back. And another

15 motion, which you requested be left until a full bench

16 of Judges can deal with it: That is the severance of

17 the accused. And you were speaking for Mr. Todorovic.

18 Mr. Brashich.

19 THE INTERPRETER: Microphone, please.

20 MR. BRASHICH: I apologise, Your Honour.

21 With regard to the motion for an evidentiary

22 hearing as to the nature of the conflict, we've done

23 that. With regard to the motion to elect a theory, I

24 have read the response of the Prosecution; I now see

25 their theory, and in that -- as being "a continuing

Page 450

1 course of conduct," and I'm putting that in quotes.

2 And I think that with regard to that issue, the papers

3 as submitted are more than adequate, and the Court will

4 decide whether or not the position taken by the

5 Prosecutor as to alternate theories is one which should

6 be allowed or denied.

7 And I believe I'm missing one of the motions

8 that the Court mentioned, and then -- after a while

9 they all seem to look alike, Your Honour.

10 The last one, Your Honour, I believe that the

11 Court mentioned --

12 JUDGE BENNOUNA: (Interpretation) Are you

13 looking for the motion to elect theory of prosecution?

14 MR. BRASHICH: Yes, I believe both of those

15 are different -- or the other side of the face with

16 regards to elect. So those two motions really should

17 be submitted as one.

18 MS. MacFADYEN: Your Honour, with respect to

19 the only issue that I believe my friend has indicated

20 is still outstanding, and that is the ability or not of

21 the Prosecutor to lay in the indictment alternative

22 charges, I would direct Your Honours to paragraph 14 in

23 the Prosecution's response to the elect theory or

24 dismiss motion, where it indicates that the Court --

25 Tribunal, sorry, and Prosecutor group in Blaskic found

Page 451

1 that nothing prevents the Prosecutor from pleading an

2 alternative responsibility, Article 7 sub (1), or

3 Article 7 sub (3) of the statute, but the factual

4 allegations supporting either alternative must be

5 sufficiently precise so as to permit the accused to

6 prepare his defence on either or both alternatives.

7 The citation was from April 1997 in the

8 decision on the Defence motion to dismiss the

9 indictment based on defects in the form thereof. This

10 was in the Blaskic case.

11 I believe my friend has indicated that in

12 fact as a result of the -- possibly paragraph 7, 8, and

13 9 in the response to his motion, he is now able to tell

14 by reading the indictment, because it relates to how

15 the law is set out here, what actions Mr. Todorovic is

16 liable for individually, as a superior, or because he

17 participated in a group event.

18 JUDGE BENNOUNA: (Interpretation)

19 Mr. Brashich.

20 MR. BRASHICH: Since I've only received the

21 answers this morning, I am not familiar with the

22 Celebici decision on the motion, and I would stand on

23 my written request.

24 JUDGE BENNOUNA: (Interpretation) Thank you.

25 I think, Mr. Brashich, that we have heard a discussion

Page 452

1 about all of the motions that you have filed.

2 MR. BRASHICH: Yes, Your Honour.

3 JUDGE BENNOUNA: (Interpretation) Thank you.

4 Does somebody else have anything to say about

5 the Defence motions?

6 MR. BRASHICH: With regard to the motions,

7 Your Honour? Or any --

8 JUDGE BENNOUNA: (Interpretation) Yes. No,

9 I'm talking about the motions.

10 MR. BRASHICH: No, Your Honour.

11 JUDGE BENNOUNA: (Interpretation) Very well.

12 I therefore consider that our Trial Chamber has heard

13 the pleadings about these motions except for two, and

14 that was at your request, and they will be reviewed,

15 hopefully, tomorrow afternoon. There is a session

16 which is scheduled in this Trial Chamber tomorrow at

17 2.00. And we hope that Judge May will be with us. If

18 not, we will meet anyway in order to reach a decision

19 on the agenda, the schedule for the remaining period.

20 And now I ask whether anyone has anything

21 else to add in general.

22 Mr. Brashich.

23 MR. BRASHICH: Yes, Your Honour, with regard

24 to the motion as to the conflict, Defence counsel

25 requested from the Registrar a joint conference where

Page 453

1 all counsel would be present together with the

2 defendants so that the conflict could be discussed and

3 the conflict could also be made known to the accused.

4 When we got to the detention facilities, I

5 was apprised that the Registrar's Office was going to

6 tape the Defence conference, and that it was the -- the

7 Registrar was going to have an individual sit in to the

8 Defence conference. I'm well aware that by having a

9 joint Defence meeting waivers of attorney-client

10 privileges occur. However, I was appalled that the

11 Registrar had the temerity, or the affront, to tape a

12 conference amongst Defence attorneys and their counsel

13 on an issue that is joint. My request, Your Honour,

14 with regard to that, and this is a speaking motion,

15 that in the future, that there be any joint meetings of

16 Defence counsel and their clients, that the Registrar

17 be directed not to tape such a meeting, and not to have

18 an individual present.

19 My second request is that any tape and copies

20 of the meeting had Monday morning be destroyed, and

21 number three, an order to the Registrar asking whether

22 or not the tape of the Defence counsel was disclosed to

23 any third parties.

24 JUDGE BENNOUNA: (Interpretation) Thank you,

25 Mr. Brashich.

Page 454

1 Mr. Pisarevic? Are you going to speak about

2 the same subject?

3 MR. PISAREVIC: (Interpretation) Your Honour,

4 I agree with what Mr. Brashich has said. I have one,

5 however, suggestion to make. Mr. Brashich mentioned

6 this meeting that we had, and we discussed the

7 conflicts of interest at that meeting. The conflicts

8 of interest which is being addressed here upon the

9 motion of the Prosecutor. I wish to suggest to the

10 Honourable Chamber that in view of the complexity of

11 the issue and the position of my client and the

12 situation he has found himself as a result of this,

13 that here before your Chamber all of the accused state

14 their position for the record, and state whether in

15 their opinion there is a potential conflict of

16 interest. And I think that we should use this

17 opportunity now. Thank you.

18 JUDGE BENNOUNA: (Interpretation) I'm going to

19 consult the Legal Officer and the representative of the

20 Registrar.

21 As regards Point 1, Mr. Brashich, having to

22 do with that meeting, I am learning from you about what

23 happened on during that joint meeting. Believe me,

24 I've just learned this as well. Therefore we are going

25 to stop for a few moments and going to take a 20-minute

Page 455

1 break. The time necessary in order to hear the

2 representative of the Registry on that issue, because

3 you are informing us of a type of behaviour that we

4 must be aware of, and we will resume the session, shall

5 we say, at ten after 4.00; it's now about ten to 4.00,

6 we'll starts again in 20 minutes, at ten after 4.00.

7 As regards the seconds question that was

8 asked by Mr. Pisarevic, having to do with the conflict

9 of interest, you say that -- you ask whether these

10 accused cannot be asked whether they feel that there's

11 a conflict of interest. Listen, speak about that among

12 yourselves, Defence counsel with their accused, and

13 we'll go back to that issue tomorrow.

14 The Trial Chamber is prepared to hear the

15 accuseds' feeling on the question of a conflict of

16 interest. We might have a meeting tomorrow; that would

17 leave you the time to explain the question to the

18 accused -- and detail because the question is not a

19 simple one, so that they be well aware of the issue

20 before you come to speak before the Trial Chamber.

21 Therefore at 2.00 tomorrow, we will hear what they have

22 to say, and we will speak about the schedule, and I

23 hope that if Judge May's health permits us to do so, we

24 will deal with the pending motions. We will take a

25 20-minute break now -- just one moment, please.

Page 456

1 There's no change. All right. It will be a

2 closed session and the minutes will be the same.

3 --- Recess taken at 3.42 p.m.

4 --- On resuming at 4.20 p.m.

5 (Closed session)

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18 --- Whereupon proceedings adjourned at

19 4:45 p.m., to be reconvened on

20 Thursday, the 4th day of March,

21 1999, at 2.30 p.m.

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