1 Wednesday, 19 February 2003
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.06 a.m.
5 JUDGE SCHOMBURG: Good morning and please be seated.
6 Can you please call the case.
7 THE REGISTRAR: Good morning. This is Case Number IT-97-24-T, the
8 Prosecutor versus Milomir Stakic.
9 JUDGE SCHOMBURG: The appearances for the Prosecution, please.
10 MR. KOUMJIAN: Good morning, Your Honours. Nicholas Koumjian, Ann
11 Sutherland, with Ruth Karper for the Prosecution.
12 JUDGE SCHOMBURG: Thank you. And for the Defence.
13 MR. LUKIC: Good morning, Your Honours. Branko Lukic and John
14 Ostojic for the Defence.
15 JUDGE SCHOMBURG: Thank you. Before we start, I know that as
16 promised, you gave me a call last -- yesterday, a little bit later in the
17 evening. What about the next witness to come? What is the latest
19 MR. OSTOJIC: Good morning, Your Honour. As I conveyed to the
20 Court last night, we are still in the process of trying to obtain the
21 witness. There is no possibility the witness can testify tomorrow because
22 we are even not sure the witness will be able to travel until Friday. We
23 have not been able to contact the Victim and Witness Unit to arrange for
24 travel because yesterday after hours, obviously they were unavailable, and
25 we just arrived a few moments before 9.00 this morning.
1 We will endeavour to call them at the next break and see to it
2 that they make some arrangements if at all possible with this one
3 witness. To the extent for the Court to know we will, of course, have and
4 are scheduled to bring two witnesses for the following week as the Court
5 ordered with the additional five videolink witnesses who will be
7 JUDGE SCHOMBURG: Thank you for this. And I only can encourage
8 you to take the necessary action that maybe we have this witness on
9 Friday. But in the event no later than Monday.
10 MR. KOUMJIAN: Your Honour, can I just request the number of the
11 witness so we can begin preparations in case the witness does come.
12 MR. OSTOJIC: Of course. I thought we mentioned that yesterday.
13 My apologies to the OTP. We believe it's Witness 001 on our 65 ter
15 JUDGE SCHOMBURG: Anything else before we start with the witness?
16 It still remains from the side of the Prosecution that Ms. Korner only
17 wants to address the Chamber after the witness has concluded?
18 MR. KOUMJIAN: Yes, Your Honour.
19 JUDGE SCHOMBURG: Thank you. Then may I ask the witness to be
20 brought in.
21 In the meantime, yesterday we had the map of Prijedor. This was
22 S3-1. The witness marked some points on this map. Any objections to the
23 admission into evidence of this map as S3-1?
24 [The witness entered court]
25 MR. OSTOJIC: No objections, Your Honour.
1 MR. KOUMJIAN: No objections.
2 JUDGE SCHOMBURG: Okay. Admitted into evidence as S3-1.
3 Good morning, Mr. Zoran Prastalo. I hope that we --
4 THE WITNESS: [Interpretation] Good morning.
5 JUDGE SCHOMBURG: I hope that we finally can conclude your
6 testimony today. I hope you had a good rest.
7 WITNESS: ZORAN PRASTALO [Resumed]
8 [Witness answered through interpreter]
9 Questioned by the Court: [Continued]
10 JUDGE SCHOMBURG: And maybe because it's your testimony, you want
11 to come back to the one or other issue you mentioned yesterday and maybe
12 you want to add something to your testimony.
13 A. No.
14 JUDGE SCHOMBURG: From my side, only two points: When reviewing
15 yesterday's transcript, once again I stopped reading on page 85, line 20,
16 when you told us that you had been invited to Dr. Stakic's father's house
17 because there was a celebration of the patron saints, and then people are
18 invited. And you mentioned spontaneously the family members being present
19 and added the names. But unfortunately, you told us "and I know him well,
20 but I can't remember his name." Is it by chance that you can now remember
21 his name?
22 A. I didn't think about that. I know well his nickname, but I just
23 didn't think about his name.
24 JUDGE SCHOMBURG: But when reading -- I have to confront you with
25 the questions Judges have when reading the transcript. It's a little bit
1 surprising that spontaneously you mentioned his -- quote: "Present was
2 his father, his mother, his brother, his sister-in-law, Mr. Stakic." And
3 then you continued: "His father's name is Milan, his wife's name is
4 Bozana, and the children, neighbours were there." So spontaneously you
5 added the name of the others. Why is it that you in the same spontaneous
6 way added the name of the brother?
7 A. Honestly, I really still don't know what his name is. I know the
8 nickname which I told you, but it simply doesn't matter to me. I don't
9 even know what his mother is called because there was no need for me -- I
10 mean, perhaps I knew it and then I forgot it. It was a long time ago.
11 And it's really not important.
12 JUDGE SCHOMBURG: We have to accept this, no doubt.
13 You mentioned children, and you mentioned that several times you
14 met Dr. Stakic when shooting billiards, and you mentioned that his son was
15 present. How old was his son at that time approximately? Of course, you
16 don't ask immediately how old are you, but approximately, 10, 20?
17 A. 5, maybe 6. 5, 6, 7 -- 5 or 6.
18 JUDGE SCHOMBURG: How often it was that you were shooting
19 billiards together with Dr. Stakic and his son approximately? Ten years
20 ago, 11 years ago, of course we understand that you can't give an exact
22 A. Two, maybe three times in the son's presence.
23 JUDGE SCHOMBURG: A final area, I rechecked what from the point of
24 view of the Defence would have been expected as your testimony, and there
25 it reads - I don't know the practice that the parties have to inform the
1 other party what is expected, and also the Judges that they can prepare.
2 So in this what we call proffer, it reads: "The witness will testify as
3 to Dr. Stakic's personality and character based on the fact that the
4 witness has known Dr. Stakic professionally for several years." And then
5 I revisited the two days' transcript and found out that for the period of
6 time which is important for us, that is, beginning of May until September
7 1992, you mentioned that you visited two or three times Dr. Stakic in the
8 building of the Municipal Assembly. But we don't really know yet what was
9 the professional reason why you visited Dr. Stakic following an
10 appointment via the secretary in his office in the municipal building.
11 What did you discuss with him professionally during these meetings?
12 A. Well, I discussed about my company, its development, sought
13 advice. Naturally, meetings, direct meetings, I've already said it, I had
14 with the Executive Board either at their invitation or at my request. I
15 said that Mr. Stakic, as the mayor of the municipality or the president of
16 the assembly, could not resolve anything, but he could advise me, support
17 me personally, or some other businessmen. And concrete matters, as I
18 said, I solved through the Executive Board of the Municipal Assembly of
20 I used to go -- during those two days of my testimony, I have told
21 you that I went to -- I had been visiting Dr. Stakic because I could see
22 that he was the one who was supporting private initiative in -- against
23 others who wanted to spoil, destroy, ruin, whether out of jealousy or
24 because we were so small, we could have overcome that. People are strange
25 animals, and Dr. Stakic was for private initiative. Now that I'm telling
1 you about it, perhaps it was dearer to me to meet him than when I had to
2 argue with people from other branches of power.
3 So he was a man of integrity. He supported the private
4 initiative. He thought that private property was sacrosanct, and that is
5 why I went to the doctor. And you say it was two or three. Perhaps I
6 went three or four times. It was a long time ago because I was in the
7 municipal hall more times, perhaps 20 or 30 times. But I'm now referring
8 to the Executive Board to avoid any misunderstandings. When I say when I
9 went to the municipal hall, I was in the building where there are
10 different departments, different offices so that I would sometimes
11 announce myself, and at times visit also the president of the assembly of
12 the municipality.
13 JUDGE SCHOMBURG: But please try to understand what we can read
14 from your testimony. Initially, you started that you had a serious
15 problem, and you discussed it in all detail. You wanted to address the
16 president of the Municipal Assembly, at that time, Professor Cehajic. You
17 didn't succeed to get an appointment, but it was then the deputy on the
18 other side of the secretary's office who made such an appointment. And
19 you got the assistance of Dr. Stakic.
20 So my question would be: Were there similar problems where you
21 felt necessary to address Dr. Stakic and nobody else because you believed,
22 as you did beforehand with Professor Cehajic that the one who could assist
23 you would be the president of the Municipal Assembly?
24 A. Well, I didn't go to the municipal hall to seek assistance only.
25 There were also different meetings. I would be invited to discuss a point
1 or other. I told you at the time when we were discussing the distribution
2 of oil, I didn't go there to complain only. That wasn't the only reason I
3 went there, to complain. I went because of some of my obligations. I
4 mean, I want you to understand me. I wasn't seeking protection from
5 Mr. Stakic. I had discussions with him because I thought that we were two
6 individuals following the same line, sharing ideas. I hope you understand
7 me that.
8 At that time, I was a private entrepreneur. At that time, it was
9 very, very tall order, very hard to be a businessman because you can be a
10 profiteer, you can be called this or that, a speculator. You can be
11 slapped a label on at any time. So at times I went there to see what the
12 situation was as regards companies, work. I didn't have any particular
13 problems, as I told you about, and had I had a major problem, perhaps I
14 would have only asked him for advice. But it doesn't mean that I would
15 have accepted that advice.
16 I was glad to be able to talk with him because I thought that he
17 understood me as opposed to some other people. He was a man -- he was a
18 man obsessed with economy. He wanted it to really work well. Well, at
19 times it went better, at times worse. But he fought for it. And I have
20 it in high regard, because I did that, too, and during these two days you
21 could see what kind of problems I had to grapple with. Perhaps I didn't
22 explain them well enough. Perhaps they were not presented eloquently
23 enough, but that was the truth.
24 JUDGE SCHOMBURG: You mentioned on today's testimony, page 6, line
25 21, 22, quote: "I told you at the time when we were discussing the
1 distribution of oil, I didn't go there to complain only." Could you
2 please go in some more details. What did you discuss about the
3 distribution of oil together with Dr. Stakic?
4 A. Well, I'm saying he wanted to know how things were, and I was one
5 of the executives that he could learn it from. I was saying that vouchers
6 were being issued, that people from neighbourhood communities were coming
7 as had been agreed by a different decision of the Executive Board to get
8 that oil with those vouchers or coupons or certificates or whatever you
9 care to call them. So he wanted to know whether people were coming,
10 whether they were taking that oil, what quantities had been supplied
11 because that was during the Executive Board. I mean, that was a
12 conversation in which he simply wanted to obtain accurate information
13 about this. So it was a strictly business conversation.
14 And I've already said that it would be -- that such discussions
15 didn't last more than 10 minutes or something. I wouldn't even call them
16 conferences. Those were working meetings.
17 JUDGE SCHOMBURG: Mr. Prastalo, isn't it true that you discussed
18 with Dr. Stakic the entire problem of the necessary -- necessity to have
19 additional oil derivatives from other countries, as you told us yesterday
20 how difficult it was to bring -- taking into account the embargo, first to
21 bring oil to the municipality of Prijedor, and then to distribute it in a
22 way as regarded necessary, as it would be always in wartimes? Did you
23 discuss these issues with Dr. Stakic?
24 A. Let me tell you, Mr. Stakic, as far as I know - and we all know -
25 was a physician. About oil, I put it to you, and I do it to this day, he
1 doesn't know where I procured oil from. That is, he knew that if I had
2 some permit to go to Serbia, then I suppose he would realise that it came
3 from Serbia or Bulgaria. I repeat, I don't know if he knew that. But
4 insofar as all is concerned, we never discussed oil or petrol that I was
5 getting for the free market.
6 So the conversation between Dr. Stakic and me was reduced to
7 the -- to diesel needed for agriculture, just as he did not tell me
8 whether he had any problems at his workplace which I perhaps could be
9 aware of. And I, and let me repeat that, he never interfered with my
10 work, and my province of work was specific. I was working
11 professionally. But I repeat, I only discussed the supply of citizenry
12 which was provided through the republican commodity reserves. It was a
13 process that I explained yesterday. Everything had to be organised. And
14 Dr. Stakic wasn't directly in charge of this. I repeat, it was the
15 Executive Board which did that.
16 But I say that everybody here would say -- ask whether all the
17 people in the municipality who had been issued certificates and vouchers
18 on the basis of cadastres of land registers, whether they were coming to
19 get that oil, whether they were getting that oil, that is they simply was
20 interested in agriculture, that is, the survival of people in that
21 municipality. And my work was my work. I repeat it once again.
22 Mr. Stakic is a man who fought - how successful he was, I do not know.
23 But I know that he fought, and he found it difficult. I repeat it for the
24 umpteenth time, that man had his ideas in life at that time, at that hard
25 time, he appreciated businessmen, and I will say that it was dangerous to
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 do that in those times.
2 Unfortunately, we didn't have many such individuals. There were
3 some others who didn't have anything to do with the Municipal Assembly.
4 There were also people in the economy from the socially-owned sector who
5 also appreciated efforts that we were making. We were not able to help
6 out more at that particular point in time to live, to make some money, to
7 help those enterprises to survive. Because we always, at all times,
8 employed 10, 15 people, they were getting their regular salaries. And
9 that one salary could support a seven- or eight-member family which was
10 not a mean feat. And at times, we also helped others out. So that is it.
11 JUDGE SCHOMBURG: You emphasised the role of Dr. Stakic supporting
12 private enterprises. Wasn't it then a big surprise that only some months
13 later, you had to complain in writing on behalf of Hidraflex Prijedor
14 about a decision signed by Dr. Stakic, a decision taken the 27th of
15 August, 1992, a decision to declare property that has been abandoned state
16 property, Official Gazette, 31st August 1992, number 3 of 1992 mentioned
17 in your letter we provisionally marked S399B on page 2, the second
18 paragraph? I can't understand this in the context.
19 A. I'll try to explain this. I have nothing against the Official
20 Gazette or the signing of whoever had signed it. The article states that
21 property or abandoned property rather is being expropriated or whatever it
22 says. I have against the Official Gazette itself. But I do have a number
23 of things against people who are trying to classify that enterprise as
24 abandoned property. Something that is operating cannot be classified as
25 abandoned property. If the company has a manager, then it can't be
1 classified as abandoned.
2 I have nothing against the Official Gazette, but probably there
3 was property that needed to be protected in case there was property that
4 had been abandoned by Serbian or non-Serbian population alike. I have
5 nothing in particular against this decision that was signed, but I think I
6 could prove that this was not abandoned property. I didn't complain about
7 the decision. I didn't appeal the decision. I appealed the
8 classification of our own premises, the Hidraflex premises, as abandoned
9 property because it was never abandoned. So on the one hand, you have the
10 Official Gazette. On the other hand, you have the Hidraflex.
11 The Official Gazette, my struggle was to plead with someone in the
12 municipality not to put that article there. But no, the article, the
13 Official Gazette, I wasn't interested in those things. I considered that
14 as normal for property to be protected, not to allow plundering, looting,
15 and destruction of property. But our property was never abandoned. So I
16 had this duel with Moma Vratija [phoen] who was in charge of implementing
17 this. Someone took advantage of the situation to take over the company,
18 but you can't take over companies which are operating and which are paying
19 regular salaries to their employees. I think I was clear about both the
20 Official Gazette and the Hidraflex enterprise.
21 The Official Gazette does not only apply to the Hidraflex company,
22 it applies to the whole of the municipal area and abandoned property
24 JUDGE SCHOMBURG: I think you can understand that I have to put
25 the question to you. When complaining about, in this letter, about a
1 decision published in the Official Gazette, and then there it reads, in
2 any event, a decision signed by Dr. Stakic in August 1992. Wouldn't this
3 be one of the occasions, as you did previously -- as you've said,
4 vis-a-vis Professor Cehajic, that you would go immediately to Dr. Stakic
5 and find out how come that you are signing this and giving on the other
6 hand the impression to be the protector of the private-owned companies?
7 And there is nothing with expropriation, and please take care that our
8 company, Hidraflex, is not affected in a negative way by this decision.
9 Did you contact Dr. Stakic on this issue?
10 A. I think there is a slight misunderstanding about the time frame
11 we're talking, the time period. When the Official Gazette was published,
12 this didn't only apply to my enterprise. I must say this again. It
13 didn't apply only to my enterprise. But after Dr. Stakic's removal, the
14 people who came to power and became members of the Executive Board, they
15 signed my -- the decision for me. Mr. Indzic, again, I must point this
16 out, Mr. Indzic, he may have been the president or the vice-president of
17 the Executive Board, but he was the one who signed the decision when the
18 decision was adopted. There was no need for me to appeal it. It was in
19 November or in October, if I remember right.
20 Now just for us to get this straight, when the decision was
21 adopted, there was no need for me to talk to anyone from the municipality
22 because I believe that it didn't apply only to our enterprise. But the
23 whole operation began after the takeover in Prijedor. The Official
24 Gazette was activated against our company. Whether against other
25 companies, too, I don't know, because I had no time to think about that.
1 I told you, all my efforts went towards the preservation of my own
3 So let me make this clear: There was no need for me to talk to
4 any representatives of the Municipal Assembly because the decision was
5 adopted then but at least it was not actually implemented then, at least
6 not as concerns our company. That's all.
7 JUDGE SCHOMBURG: The decision is published as a decision as of 27
8 August 1992. No doubt, within the period of time of the indictment we
9 have before us. But later, when making reference that this could have an
10 impact on Hidraflex, it was a letter dated the 4th of December, 1992,
11 making reference to concrete decision of 26 November 1992.
12 Wasn't it at that time that Dr. Stakic was still in office as
13 president of the Municipal Assembly?
14 A. I don't remember the exact date when the removal occurred. I
15 wasn't interested in remembering the exact date. I must say this again:
16 I did not address Dr. Stakic. I didn't go to Dr. Stakic because I --
17 well, the whole thing began in winter. And then as I said, I
18 realised there was another struggle for me to lead, and that was through
19 the media. So I didn't address anyone. I didn't seek anything because I
20 had problems with people whom I have referred to already in closed
21 session, so I made my own decision to wage my struggle through the media.
22 And I had a number of people, a number of journalists involved. But there
23 was obstruction against us, too, and all sorts of things, and that wasn't
24 very pleasant.
25 It may seem a bit strange, but I saw that things were getting
1 serious, and I decided to adopt a different strategy for my struggle, and
2 my choice was proven right in the end.
3 JUDGE SCHOMBURG: Mr. Prastalo, do you regard yourself as the
4 person being primarily responsible for providing the municipality of
5 Prijedor with oil from third countries and involved in the distribution of
6 this oil?
7 A. No. In Prijedor, the municipality of the assembly is in charge of
8 those operations. The Energopetrol state-owned company was in charge of
9 that. In Prijedor, they had their own petrol stations. In Kozarac, in
10 Prijedor, in Novi Grad, in the Prijedor municipal territory, there were
11 about four or five stations. In Ljubija, also, I was in charge of that
12 station for a while. So Energopetrol, the Energopetrol company was in
13 charge of all such operations, of all oil-related business. We only did
14 our own work, I'm talking about my company, which concerned us. And we
15 tried to understand other people, too.
16 The Autotransport Company I referred to yesterday, sometimes we
17 would wait for 10 or 15 days for them to pay, but we were no bearers of
18 power, and we were not the key player in business either. The Hidraflex
19 company, we were a private enterprise purely, so I do not consider myself,
20 in answer to your question, to have been a crucial person for the supply
21 and distribution of oil. I could have gone on without it. I could have
22 just stayed in Prijedor. I could have just walked about the town. I
23 could have gone to the front. I could have gone on without actually doing
24 that job.
25 JUDGE SCHOMBURG: Thank you. I don't have any more questions.
1 Judge Vassylenko, please.
2 JUDGE VASSYLENKO: Mr. Prastalo, yesterday you have read out parts
3 of the document printed on the letterhead of Hidraflex enterprise. This
4 document was signed by yourself on the 4th of December, 1992. In what
5 capacity have you signed this document?
6 A. The deputy of the owner of a privately-owned enterprise.
7 JUDGE VASSYLENKO: Who and since what time was the owner of the
9 A. I can explain this if you like in terms of documents. As far as
10 the documents are concerned, Mrs. Marija Popovic was officially the
11 owner. She was the wife of Dragan Popovic. That's -- I'm talking about
12 the documents. Formally, she was the owner but the actual owner was
13 Mr. Dragan Popovic. I dealt with him the whole time. We made plans and
14 we ran the company. But formally, Mrs. Marija Popovic was the owner of
15 the company. But the actual owner, the man who ran the company, was
16 Dragan Popovic.
17 JUDGE VASSYLENKO: What was the ethnicity of Marija Popovic and
18 Dragan Popovic?
19 A. Marija and Dragan Popovic were both Croats. Marija was born in
20 Stara Rijeka, near Ljubija, that's my town. And Dragan Popovic was born
21 in Kreka. He was born there. He lived in Ljubija. After that, he had a
22 family house in Ljubija. He had been born in Kreka because his father was
23 a railroad worker, so they would travel around a lot just like military
24 personnel did.
25 JUDGE VASSYLENKO: And who decided that Hidraflex enterprise is
1 abandoned property? What official body decided?
2 A. Well, as I said, the people who same to usurp, to take away, to
3 waste what we had preserved. The Executive Board which came into being,
4 the one that I talked about in closed session, so you should have it in
5 the transcript. The Executive Board of the Municipal Assembly of
6 Prijedor, or perhaps I should put it this way: Those people hid behind
7 the Executive Board actually. The Executive Board was a body for them to
8 actually hide behind. And those people who actually operated in the wings
9 were not even members of the Executive Board, but I can give you the names
10 of these people, the people who were behind the whole process.
11 Mr. Simo Miskovic, the president of the SDS, who got his nephew
12 involved and appointed as a consultant to the president of the Municipal
13 Assembly, Dusan Kurnoga. I'm only telling you the truth so we don't need
14 to speak about this in closed session as far as I'm concerned.
15 I think I have made myself perfectly clear.
16 JUDGE VASSYLENKO: You mentioned that the decision to declare
17 property that has been abandoned state property was implemented and lots
18 of other moveable and immoveable properties were expropriated. Correct?
19 A. As I said, the decision was implemented. You know the dates.
20 There was a lot of such property. We put together a factory, we built up
21 a factory which was small but which was European in every sense of the
22 word. It had all the new equipment, all the new machines, everything --
23 JUDGE VASSYLENKO: I'm not talking about equipment and machines.
24 The next question: What was by and large the ethnicity of the
25 people whose property was declared abandoned?
1 A. Well, what I'm talking about is the Hidraflex company. Are you
2 asking me about the Hidraflex company? Because that's all I can talk
3 about. People there, I said, according to their ethnic backgrounds were
4 Croats, but that's not what some people refer to it as. They grabbed at
5 the opportunity to seize this from those people. So they didn't think
6 about the people who were actually working there, who were running
8 As I've said before, those were extremely difficult times. Our
9 lives, the lives of people who were working, who were still working there,
10 were in danger because the owner and the formal owner, his wife, were in
11 Rijeka. They were elsewhere. But our lives, the lives of the people who
12 actually stayed behind were very much in danger.
13 JUDGE VASSYLENKO: I put my question in another way. Do you know
14 examples when property that has been abandoned by the Serbs was declared
15 state property?
16 A. Personally, I don't know.
17 JUDGE VASSYLENKO: The last question: You mentioned that
18 Dr. Stakic was a member of Nikola Pasic people's radical party. Who is
19 Nikola Pasic?
20 A. A Serbian writer, a politician, a writer.
21 JUDGE VASSYLENKO: Contemporary writer or historic personality?
22 A. Well, we can say both contemporary and an historic person. It
23 depends very much on your point of view and how you understand these
25 JUDGE VASSYLENKO: He's still alive?
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 A. Sorry?
2 JUDGE VASSYLENKO: He's still alive?
3 A. Physically, no, he's not.
4 JUDGE VASSYLENKO: When did he die?
5 A. I don't know.
6 JUDGE VASSYLENKO: I have no more questions.
7 JUDGE SCHOMBURG: Thank you. Judge Argibay, please.
8 JUDGE ARGIBAY: Good morning, Mr. Prastalo. I have some different
10 A. Good morning.
11 JUDGE ARGIBAY: Were you ever mobilised between 1991 and 1995, for
13 A. 1995, 1996, I went for about ten days. I was mobilised. People
14 who had a work obligation, we went towards Gradacac. I think I spent
15 there not even ten days, but not in Prijedor.
16 JUDGE ARGIBAY: Had you a work obligation during the months of May
17 to September 1992?
18 A. Yes, yes. Yes.
19 JUDGE ARGIBAY: Which work?
20 A. The work that I have already described. That means, the Hidraflex
21 company, the fuel, those were my tasks. I must say this again, I was
22 quite --
23 JUDGE ARGIBAY: Okay, okay. I'm quite clear about that. Another
24 question: Where were you on April the 30th, 1992?
25 A. In Prijedor, as I said.
1 JUDGE ARGIBAY: And you were living in Cirkin Polje?
2 A. Yes.
3 JUDGE ARGIBAY: Were you given a new identity card on or around
4 that date?
5 A. I can't remember. You mean the personal identification document,
6 the regular one, the regular ID?
7 JUDGE ARGIBAY: Exactly.
8 A. I can't remember. Every citizen should be in possession of an
9 ID. Now, when mine was issued, I'm afraid I really can't remember. I
10 don't know.
11 JUDGE ARGIBAY: And you don't remember if there was a change of
12 IDs around that time?
13 A. There was no need for me to know anything like that. I myself
14 didn't need a new ID, so it just didn't matter. The only thing that -- my
15 passport really was important for me.
16 JUDGE ARGIBAY: I know. I'm not asking about that. I want to
17 know if you were issued with a new identity card even if you don't need
18 it, but if there was a change of identity cards by the -- around that
20 A. I really can't remember. I didn't have to get a new ID for
21 myself, so that may be the reason why I don't know, the reason why it
22 didn't matter to me. The only thing that mattered was that I had a valid
24 JUDGE ARGIBAY: Okay. Another question. You told us yesterday
25 that talking about -- what you called the interrogation centres and
1 collection centres, and I think it was page 70, line around 17, that in
2 the interrogation centres, the persons there were questioned about
3 weapons, arms, et cetera, or military activities or something. How do you
4 know that?
5 A. Well, as I've told you, I would go about the town. I would go to
6 restaurants. I would go to the petrol station. Our people, you know what
7 they're like. If you want to learn what's new, you go to the hairdresser
8 or the shoe maker and you learn everything you need to know from them. Now
9 whether the information is true, that's a different story all together. I
10 hear a lot of things.
11 So I simply heard about these things, people who had attacked the
12 army and the police had been brought in for questioning. I know people
13 were being questioned. I never went to any centre, to any interrogation
14 centre or any of the collection centres. So I myself certainly never was
15 there. So people were even asking me how they could reach a collection
16 centre so that from there, they could travel somewhere else. I didn't
17 know the procedure. I know that some people were returning home and then
18 going back to the collection centre. But it was very confusing, and I
19 wasn't really interested. I helped whoever I could, as I've said before.
20 I helped a great number of people. But I never thought there was any need
21 for me to boast about these things.
22 JUDGE ARGIBAY: Okay. One last question, if you can answer that:
23 As you heard about the interrogation centres and the collection centres,
24 did you hear about people being beaten or killed in those interrogation
1 A. No. Again, I never heard about anyone being killed or beaten,
2 escaping or returning of their own free will. But again, I wasn't
3 interested in these things. I am a man from a different area of life. We
4 all had a very difficult time, but I think I already answered your
5 question yesterday when I told you where I lived, who I lived with, and
6 who I still live with to this very day, or the people I still socialise
7 with. Those times, the whole thing was just unimaginable for me. I
8 couldn't believe it.
9 I was never involved in politics myself, as I told you. I look at
10 my questions and I think to myself, probably you think that I was some
11 sort of an important person there but that wasn't actually the case. I
12 waged my own struggle, and everything I achieved in life is because of my
13 own effort. I tried to help whoever I could. All I can tell you now is I
14 wish the whole thing never happened to begin with. Now who's fault is it,
15 who's to blame, only time will show.
16 In our municipality, everyone knows who caused the whole disorder
17 or who committed the killings. So much for that.
18 JUDGE ARGIBAY: Can I ask you who caused the whole disorder or
19 committed the killings? You say "everyone knows..."
20 A. Yes. Prijedor -- I will just say a few words about Prijedor. It
21 used to be a really peaceful town. Maybe in other parts of the republic,
22 there was something happening. But in Prijedor, we always talked. We
23 always talked our way through things, and we lived together. But you know
24 what happened on the 22nd of May in Prijedor. Innocent people were killed
25 at a checkpoint. There was an appeal for the people who had committed
1 those atrocities to surrender. A deadline was set. 1, 3, 5 days, I can
2 no longer remember what the deadline was. As far as I understand, and
3 again, I was quite well travelled, and any country you come to you must
4 stick to the rules, the internal rules of that country. Those people had
5 actually killed soldiers and the army took several days before they
7 That's also what happened on the Kozaracka Road I think. A young
8 man was killed, I think, Djapo. We all know what happened in Kozarac. But
9 who from the other nationalities, Serbs or Croats in Prijedor municipality
10 killed anyone at a checkpoint when the situation was still peaceful, who
11 was waiting for someone to come along and kill them, I know some of these
12 people personally and that makes it even harder for me. One of the people
13 who took part in the whole thing was a successful businessman, and the
14 other person was an active-duty policeman. So he was watching over my
15 family for 15 years. He had been on active-duty in Ljubija for 15 years,
16 and I didn't even know who the man was, and he was providing security also
17 for my family in a manner of speaking.
18 I was a believer in justice. I may not be a very eloquent man.
19 Perhaps what I'm saying seems overemotional, but I'm telling you what I
20 feel and what actually happened. When someone attacks a soldier, you
21 can't avoid the sort of reaction that then ensued. Those were soldiers
22 coming back from other fronts, from eastern Slavonia and those soldiers
23 were killed. They were ambushed and killed.
24 The local commune Hambarine, the people who knew regardless of
25 whether they were actually from that local commune, were requested for
1 those -- those people surrender, and everyone promised that those people
2 would not be touched. I'll give you the example of Gornja Ravska,
3 predominantly a Croatian village. Why wasn't a single house attacked?
4 Because nobody attacked the army or the police there. Donja Ljubija, take
5 another example. All houses were in tact. All the people who had lived
6 there prior to the event remained there to live. And in 1995, people left
7 to head for a better life somewhere else. Eventually people returned.
8 But everything has been preserved. So if we talk about Kozarac, I simply
9 didn't go there because my road didn't pass through Kozarac. I passed
10 through Banja Luka. I didn't go into Hambarine myself to have a look.
11 But judging by what I could see from the road itself, wherever the
12 army had been attacked, the army reacted. But this is only my opinion I'm
13 giving you. I'm not an expert on these matters, but it is still my belief
14 that wherever a soldier is attacked, the army will have to fight back. So
15 much for that.
16 JUDGE ARGIBAY: Thank you. I have no more questions.
17 JUDGE SCHOMBURG: It would be now for the Defence to put
18 additional questions emanating from the cross-examination and from the
19 line of questions put to the witness by the Judges.
20 Please, Mr. Lukic.
21 MR. LUKIC: Thank you, Your Honour. I wouldn't have too long for
22 redirect. I'll just try to clarify a few points.
23 Re-examined by Mr. Lukic:
24 Q. [Interpretation] Mr. Prastalo, good morning once again.
25 A. Good morning.
1 Q. I will mention the numbers of some pages and lines, but that need
2 not worry you. It is merely for the record. Yesterday, page 41, line 9,
3 you started telling us about what influence the president of the Municipal
4 Assembly had on the Executive Board at the time when Mr. Cehajic was the
5 mayor of the municipality. You said that the Executive Board was made of
6 two, and then the Prosecutor interrupted you.
7 Will you please tell us, what was it that the Executive Board was
8 made of, of what two things, and why did Mr. Cehajic have influence there?
9 A. Well, yesterday I tried to explain it because I was very
10 interested in that. I said for purely economic business reasons. So the
11 Executive Board was made of eight members, I believe, four Serbs and four
12 Muslims. So every time they would vote on matters, and there was a worry
13 how could the Executive Board meet if somebody was not there because then
14 a decision could be taken. And that is why I said that following
15 Municipal Assembly sessions, they had major confusion in their party. And
16 I think some were dismissed because some people voted without knowing what
17 they were voting for. And I said that there were 41 to 45 items on the
18 agenda, and we did not win it. And here yesterday it was very important
19 and I tried to explain that we did not win it because Mr. Cehajic could
20 not sign the decision to do that for seven or ten days.
21 So the Executive Board of the Municipal Assembly worked, if I may
22 say that, by voting it, that is, they did not serve the people. And the
23 Executive Board should be the body which leads a municipality, but they
24 were only pursuing their only interests.
25 Q. In your view, did Mr. Cehajic, was Mr. Cehajic able to affect the
1 voting officially or was his influence, the weight he pulled with four SDA
2 members, of a more personal nature?
3 A. Well, I can tell you that he could control it, he could control,
4 shall I say, his -- that is the members of his party in the Executive
5 Board. So they pursued this policy which was fatal for the municipality,
6 I mean because we know how companies worked at that time and what went
7 on. But he had a direct say in the way his members reacted. And they
8 enforced what they had adopted at some other meetings in some other
9 offices that they had. I repeat once again -- I repeat once again, I will
10 reiterate this, they were against it because they were a hundred per cent
11 certain, a hundred per cent positive that Mr. Popovic was a Serb. And I
12 claim this under full responsibility before this Court. However, later
13 on, when they found out, it was laughable and it was sad.
14 Q. Thank you.
15 Page 64, line 4, 64, line 18, and so on and so forth of our
16 yesterday's record, you spoke about the participation of the police who
17 had come to evict, that is, to remove you from the Hidraflex company.
18 A. That's right.
19 Q. I will now ask you something, because it is important to explain
20 to this Court how the evictions in our case take place. If somebody is
21 allotted a flat by his company, in his company, that is a flat, an
22 apartment which belongs to the company that has allotted him a flat. Is
23 that correct?
24 A. It is.
25 Q. However, it has been known that another employee of the company
1 moves into that flat although he hadn't been allotted that flat.
2 Will you please repeat the answer because it isn't in the record.
3 A. Yes.
4 Q. So the company first asks the employee who had moved in unlawfully
5 to leave the flat?
6 A. Correct.
7 Q. If the employee who had moved in -- who has moved into the flat
8 unlawfully does not move out, then the company asks the police for its
9 assistance to have that employee moved out from the flat. Is that
11 A. It is.
12 Q. Are you aware or do you know whether the police took part in the
13 forcible evictions in all the cases, that is, when an administrative
14 agency decides that somebody should be evicted from a place?
15 A. Yes, and I can give you some examples over the last years. Say,
16 for instance, the Serb population, too, who had moved into apartments for
17 instance in my town, and the police now go with people who reported that,
18 that is, police is there to evict people from, say, those houses because
19 returnees are getting back, and then these houses belong to them. It is
20 only natural.
21 Q. So in such instances, the police is helping the ministry for
22 refugees and displaced persons. Is that correct?
23 A. It is.
24 Q. So in our legal system, it is one of the regular police tasks to
25 assist in all cases of forcible eviction, and that is what happened in
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 your case when they requested that you be evicted?
2 A. Yes, but our problem that that property had not been abandoned.
3 Q. Page 69, line 11, the Prosecutor asks you if it is correct that
4 the policemen of Croat or Muslim ethnicity were taken to the camp
5 immediately after the takeover of power.
6 A. No, and I gave an example. Policeman so and so, if need be I can
7 give his name, stopped me on the 10th of May, and he was wearing a police
8 uniform. When the incident in Hambarine happened, the man was an active
9 policeman. So it is not true that certain policemen -- well, now, I don't
10 know what happened in the woods, and whether all the policemen had
11 exchanged their uniforms for guerrilla uniforms in the woods, that I do
12 not know. But in my place, in my locality, the policemen worked
14 THE INTERPRETER: Could the witness please repeat the end of his
15 answer speaking into the microphone.
16 A. Let me repeat it once again. Let me give you another thing. The
17 chief of police in my place was Croat, Branko Bijekic.
18 MR. LUKIC: [Interpretation]
19 Q. Do you know until when Mr. Bijekic was?
20 A. I can't remember. But he was a chief there for a long time.
21 Q. Throughout 1992?
22 A. I can't remember. I can't really say. I don't know. I don't
23 know the date. And I'd rather not go wrong there.
24 Q. Do you know that a group of policemen took over the police station
25 in Ljubija?
1 MR. KOUMJIAN: I'm sorry, I didn't mean to interrupt after the
2 last answer, but in counsel's question where he quoted my question, it was
3 misquoted, and I just wanted to note that for the record. Counsel said
4 that I had said that the policemen were arrested immediately after the
5 takeover and taken to the camps. And that was not part of the question.
6 JUDGE SCHOMBURG: Could Defence counsel please make reference to
7 the concrete page and line of yesterday's LiveNote.
8 MR. LUKIC: I quoted page 69, line 11. And it was part of the
9 question about the police officers. But let the transcript speak for
10 itself. So I'll move on, Your Honour.
11 JUDGE SCHOMBURG: But please be so kind, as we did it in the past,
12 or at least tried it always, to quite directly from the transcript. That
13 facilitates our work. Thank you.
14 MR. LUKIC: Thank you, Your Honour.
15 JUDGE SCHOMBURG: And we have to be aware that apparently you have
16 another pagination. As for example, we have on our LiveNote, because on
17 page 69, line 11, I can only read the answer of the witness, not the
19 MR. LUKIC: Always the same problem, I guess, with the pagination,
20 not with quoting.
21 MR. KOUMJIAN: Just to be clear, I think my pagination is off
22 also, is the question that counsel is quoting where I asked the witness
23 and you talked about -- excuse me, "that the policemen you talked about of
24 non-Serbian Croatian and Bosnian ethnicity in Ljubija were separated after
25 a while in the territory in Prijedor are arrested and taken to camps"?
1 JUDGE SCHOMBURG: This is line 3, 4, following, and it was at
2 14:17:56 to 14:18:24, that there is no doubt remaining. Thank you.
3 MR. LUKIC: Thank you for your help, Your Honour.
4 Q. [Interpretation] Mr. Prastalo, on page 99, there was talk about
5 Autotransport Prijedor. Do you know if Autotransport Prijedor had its own
6 petrol stations for their internal use?
7 A. Autotransport had in their depot, that is, in their compound, they
8 had their petrol station. I explained it yesterday.
9 Q. In other words, they don't always come to you for fuel, but only
10 when they would run out of supply at their petrol pump?
11 A. That's right. And I explained it yesterday. They took fuel from
12 us only when they didn't have any, that is, when there would be a
13 shortage. But they had their petrol pump, and they tanked it in at their
14 own station, in their own compound.
15 Q. And the Ljubija iron ore mine, did they also have their petrol
16 pump within their compound?
17 A. Yes. I believe that they were in Omarska, in Tomasica, in
18 Ljubija, and they had their own petrol stations. But they also sometimes
19 used our services, and that was why we existed as a company so that in
20 case of a shortage or something, we would be there to help them out.
21 Whether they would pay straight away or 10 or 15 days later, didn't really
22 matter. The important thing was that we would be paid.
23 Q. You were shown yesterday -- I think it was Exhibit S180, and you
24 were asked about 28.
25 MR. LUKIC: If the usher could show the witness this exhibit,
2 Q. [Interpretation] I said that in case 28, we have an acronym, AP
3 Krajina. Do you know what does that mean?
4 A. No. I explained yesterday that all those were very curious. I
5 don't know what it means. It could be the autonomous province or it could
6 be the auto company, that is, the secretary of the secretariat for the
7 economy is hereby tasked for discussing at the AP Krajina level. And
8 yesterday I explained I didn't know what it was. You asked me yesterday
9 whether I had seen this, but I never seen it.
10 Q. At that time, AR stood for Autonomous Region of Krajina, isn't it,
11 and that was the acronym that was in use at the time. Wouldn't you agree
12 with that?
13 A. Yes.
14 Q. However, in relation to this, did you have a set fuel price? For
15 instance, did you --
16 A. Yes, yes, we did have a set price. We -- our price was always
17 lower by 15 or 10 pfennigs than at Jugopetrol pumps, that is, your prices
18 could be set to lower level but not exceed. But we had better fuel.
19 Q. And who set the prices and at what level? Do you know that?
20 A. At the republican level. And there were regular market controls
21 of the fiscal inspectors. One could not go above the price, but one could
22 go below the price, and it was better for competition. If one was -- if
23 one had some rate of return, then of course one could lower his prices.
24 MR. LUKIC: [Interpretation] Thank you, Mr. Prastalo. I have no
25 further questions for you.
1 THE WITNESS: [Interpretation] Thank you.
2 JUDGE SCHOMBURG: May I ask the Prosecution how long will it take
3 for your questions? Is it better to have the break now?
4 MR. KOUMJIAN: I would prefer the break now. I only very few
5 questions, but there are one or two documents I'd like to double check.
6 JUDGE SCHOMBURG: The trial stays adjourned until 11.00.
7 --- Recess taken at 10.26 a.m.
8 --- On resuming at 11.11 a.m.
9 JUDGE SCHOMBURG: Please be seated.
10 Mr. Koumjian, please.
11 Further cross-examination by Mr. Koumjian:
12 MR. KOUMJIAN: Thank you.
13 Q. Mr. Prastalo, just a few clarifications, when you talked about
14 Autotransport and the Ljubija iron ore mines having their own fuel, would
15 it be correct to say that nowhere in the municipality of Prijedor was
16 there oil being pumped out of the ground or being refined, that all of the
17 petroleum products came from outside of Prijedor, in fact, outside of the
18 Republika Srpska and outside of the former Yugoslavia? Correct?
19 A. Yes.
20 Q. You talked about -- you said that you went to see Professor
21 Cehajic in the hope that he would have influence on the four members of
22 the Executive Board who were of Bosniak ethnicity. When Dr. Stakic was
23 president of the Crisis Staff and president of the Municipal Assembly of
24 the Serbian Municipality of Prijedor, isn't it correct that all eight
25 members of the Executive Board were of Serbian ethnicity and chosen by the
1 SDS party?
2 A. I would like to explain one thing. I can't answer yes or no. I
3 think this takes a further explanation. I never begged anyone for
4 anything. I was only asking for something that I was entitled to get. I'd
5 file an official request, and that was the usual procedure. However --
6 Q. I'm going to stop you because my question dealt with the makeup of
7 the Executive Board when Dr. Stakic was president of the Municipal
8 Assembly and president of the Crisis Staff. I'll break it down. Isn't it
9 correct that there were eight members of the Executive Board? Yes or no,
10 or you don't know.
11 A. During Dr. Stakic's time as the president of the assembly; is that
12 your question?
13 Q. Exactly, yes.
14 A. They had seven or eight members. I can't remember exactly. I
15 know how many there were when I waged my own struggle for my case. I know
16 that then they had seven or eight members. I know that they had to vote
17 and that they were outvoting each other at a certain point and that's what
18 the whole problem was about.
19 Q. And is it correct that when Dr. Stakic was president of the
20 Municipal Assembly and Crisis Staff, all of those members were chosen by
21 the SDS? Do you know the answer to that? Can you answer yes or no?
22 A. I don't know if they had been appointed by the SDS. There were
23 other Serb, in a manner of speaking, parties in parliament. I'm not sure
24 they were all SDS members if that's what you're asking me. I don't know
1 Q. Thank you. That's a fair answer. Were all of them Serbs?
2 A. I don't know. I think so, though, but I'm not sure.
3 Q. Okay. Thank you. You talked about -- in answer to Mr. Lukic's
4 questions this morning, you talked about evictions from apartments that
5 belonged to the company. Is it correct that in 1992, many people's
6 apartments, their residences, were tied to their job? They had the right
7 to live in that place because of the job that they held?
8 A. Yes. Most people got their flats from their companies, got the
9 right to use those flats. As far as I know, there was no privatisation at
10 that point. You couldn't purchase your flat from your company. So the
11 company owned the flats, and then these flats would be placed at the
12 disposal of the company's employees. So they were entitled to live
13 there. They had a tenancy right to those flats.
14 Q. That was tied to their employment with that company. Correct?
15 A. Yes. There were people also who got the socially-owned flats. So
16 not only people who worked in a certain company, but there were many
17 people working in a certain company who didn't get their flats from the
18 company but rather from a socially-owned flat, from the state.
19 Q. Thank you. You mentioned today the name of a policeman from
20 Ljubija, Branko Bjekic. Sir, are you aware that Mr. Bjekic was arrested
21 and taken to the Omarska camp in July and transferred to the Manjaca camp
22 on the 6th of August, 1992?
23 A. No. I do know that he was in my town. I've explained before, he
24 was a police commander, something like that. He was a chief, some sort of
25 chief in the police. I knew him well. We socialised a lot, and we played
1 football together very often. On several occasions, I'd go home early --
2 THE INTERPRETER: Can the witness please be asked to repeat the
3 last part of the answer.
4 MR. KOUMJIAN:
5 Q. Sir, I'm sorry, but the interpreter missed the last part of your
6 answer. I'll allow you to repeat it, but just for your information I'm
7 not asking all about your relationship with Mr. Bjekic. But if you could
8 finish your answer but please keep in mind that we're not interested in
9 all of your relationship with Mr. Bjekic and how you know him. But
10 please, complete your answer.
11 A. As I said, he was a police commander. I didn't know that he had
12 been taken away. I didn't hear either that he had taken part in the
13 incident with the army. I never heard anything like that. So if he was
14 arrested, I don't know why he was arrested. I have no personal knowledge
15 of that, and I didn't hear anything to that effect.
16 Q. You told us that your information about these investigation
17 centres and other events in Prijedor came because Prijedor was a small
18 town where people talked and you could even learn from the hairdresser
19 what was going on. Did you ever ask the president of the municipality,
20 the president of the Municipal Assembly, what was going on in Prijedor
21 when you talked to Dr. Stakic in 1992 and subsequently? Did you ask him
22 about the so-called investigation centres?
23 A. No, I didn't talk to him about that. There was no need simply.
24 He -- I believe that he knew as much about the investigation centres as I
25 did, because that was within the purview, within the area of work of the
1 army and the police. It was not up the government because they had not
2 been the ones to set up the investigation centres or collection centres to
3 begin with. It was the army and the police, that's as far as I understood
4 the situation.
5 Q. And Dr. Stakic would know better than you what role he had or did
6 not have in setting up those collection centres. Correct?
7 A. I don't know. As I said, I know that these collection centres and
8 interrogation centres were held by the army. As far as I know, the
9 government in Prijedor, at least the way I understood the situation -
10 don't get me wrong, it's my understanding. The government in Prijedor had
11 no influence over the army or the police, especially the president of the
12 Municipal Assembly would have carried no clout with the police or the
13 army, especially not in times of war.
14 Q. Thank you.
15 A. That's what the situation was like. The police and the army were
17 MR. KOUMJIAN: Thank you. I have no further questions of the
18 witness, but before he's excused, I did refer in the cross-examination,
19 and Your Honour referred in one of your questions, to the United Nations
20 embargo or resolution. To the make the record of the case complete, I
21 would ask that that be admitted into evidence, that and the European
22 Community's resolution referring to it.
23 JUDGE SCHOMBURG: Let's first start before we conclude with this
24 witness, we have before us a provisional exhibit, Number S399B in B/C/S
25 only. Any objections?
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 MR. OSTOJIC: No, Your Honour, but we would just ask that the
2 Court facilitate that the translation be done in full as soon as
4 MR. KOUMJIAN: We'll request that. Thank you.
5 JUDGE SCHOMBURG: Then this document dated the 4th of December,
6 1992, a letter from Hidraflex Prijedor signed by Prastalo Zoran is
7 admitted into evidence as S399B, and we expect the translation which would
8 then have S399A as the exhibit number.
9 Then let's continue with Security Council resolution 757 in the
10 book of Yugoslavia through Documents Number 200, page 593 through 599.
11 Any objections?
12 MR. OSTOJIC: No objections, Your Honour.
13 JUDGE SCHOMBURG: Admitted into evidence, S400A.
14 Further questions by the Court:
15 JUDGE SCHOMBURG: But finally, I have to come back to one
16 question, which I, in fact, did not understand. I can follow today's
17 transcript, page 28, where you were asked by Defence counsel: "Do you
18 know if Autotransport Prijedor had its own petrol stations for their
19 internal use?" Answer: "Autotransport had in their depot, that is, in
20 their compound, they had their petrol station. I explained it yesterday."
21 This is absolutely in line with your testimony yesterday, but you
22 provided, page 99, line 10, yesterday's LiveNote: "Sometimes two or three
23 tankerfuls." And then you added that already previously, buses came to
24 your station and were refuelled. Today you added, page 28, line 11: "And
25 I explained it yesterday. They took fuel from us only when they didn't
1 have any, that is, when there would be a shortage."
2 Was there such a shortage and was -- what was the reason why
3 Autotransport Prijedor had at that time a shortage of fuel, and how was it
4 possible that you had additional fuel for them?
5 A. Well, there were different situations. Sometimes their internal
6 petrol station, which was within their compound, would run out of fuel or
7 they simply didn't have the money to purchase more fuel. So they would
8 come to me for fuel. When there was a shortage or when they didn't have
9 enough money to buy new fuel, then they would somehow collect the money in
10 a matter of 10 or 15 days. We would usually wait for them to pay back,
11 and there wasn't any problem with that. But those were only two or three
12 cases, the two cases that I've referred to. Those were the main reasons
13 why they came to us for fuel, because they would run out of money
14 sometimes, or they would run out of fuel, at least concerning the petrol
15 station within their own compound which again happened whenever they
16 didn't have the money to buy new fuel.
17 30.000 litres of fuel is not much, because they had many vehicles.
18 JUDGE SCHOMBURG: My question was: Do you know the reasons why
19 they were short of fuel at that concrete period of time?
20 A. I've just tried to explain that. The Energopetrol company also
21 had fuel, but perhaps at that time they didn't have the money to purchase
22 it. The petrol station was open to all companies, as I've said before.
23 JUDGE SCHOMBURG: So your testimony is you provided better and
24 better conditions for Autotransport Prijedor than others would have done,
25 and you granted a credit line for Autotransport Prijedor. Correct?
1 A. Yes, that's correct. And as I've already mentioned in my
2 testimony, sometimes we had lower prices for fuel in comparison to the
3 prices that the Energopetrol petrol stations had. They had high prices
4 sometimes. So people who ran the Autotransport company had to be sparing
5 with their money, and that's why they would come to us, to get petrol at
6 lower prices. And even when they didn't have money to pay, they would
7 usually pay in 15 or 20 days. We would wait for them until they got the
8 money to pay back. This didn't happen all the time, but on two occasions.
9 JUDGE SCHOMBURG: This morning's transcript, page 28, line 15, you
10 were asked: "And the Ljubija iron ore mine, did they also have their
11 petrol pump within their compound?" You answered: "Yes, I believe they
12 were in Omarska, in Tomasica, in Ljubija, and they had their own petrol
14 How did you know? Have you been there? Have you seen this?
15 A. Yes, yes, I was there. My father worked for 40 years at the
16 mines. Prior to 1990, I worked with the mines when I was working in the
17 public sector. I was into export, and I did go around all these places.
18 I did visit not far from my house in Ljubija, at the iron ore mines,
19 Tomerci is the name of that area, they have another internal petrol
20 station belonging to the mines. In Omarska, they also have an internal
21 petrol station. And in Tomasica, I think also, but towards the end it was
22 closed I think. But I think that there is one in Tomasica, too. I can't
23 know for certain about Tomasica, but I think, yes, yes, there was one.
24 The Tomasica mines had ceased to operate quite a while back. And
25 they had problems extracting the ore, so I'm not sure about their petrol
1 station. I think it had been closed down a long time ago. But the one in
2 Omarska, I'm sure about that. However --
3 JUDGE SCHOMBURG: Thank you for this explanation.
4 You continued this morning, line 18: "But they also sometimes
5 used our services, and that was why we existed as a company, so that in
6 case of a shortage or something, we would be there to help them out." Did
7 you help them out in 1992?
8 A. I did. I did, yes. They also needed oil to maintain their
9 machinery. They had lots of machinery, and to maintain them -- they had
10 vehicles, and they needed to switch on the engines. If the mine did not
11 work, one still had to check the machinery, and they needed oil for that.
12 They didn't have money to buy large quantities of oil, that is, a tank or
13 two or three, so they would take from us a thousand litres now, now 1500
14 litres. And we would also wait for them to pay because we would give it
15 to them on tick. Those were small amounts of money after all. And as
16 they got some money, they would pay it to us.
17 So we were not talking about large quantities of money, but we
18 cooperated. And I cooperated, too, because I trusted those people,
19 especially the men who ran the iron ore mine so that there were no
20 problems with that, with giving the oil to them on tick.
21 JUDGE SCHOMBURG: So, in fact, you knew that the mine didn't work
22 as such, especially Omarska, correct, in 1992, starting the end of May
24 A. Well, no, I didn't know which part wasn't working. I simply knew
25 that the mine was not working particularly well. And we had all grown up
1 and lived off that mine, especially the Ljubija iron ore mine where I was
2 born. And it was close to full -- to full operation, to full extraction.
3 They were about to open a new pit called Vukulja [phoen]. But because of
4 the developments in our municipality, it all came to a dead end.
5 JUDGE SCHOMBURG: Sorry to interrupt. The question was focussed
6 on Omarska.
7 A. Why, nothing worked. Not Omarska alone, and Omarska didn't work
8 either. People who work -- I've just explained why they took fuel from
9 me, that is to switch the -- their engines and machinery on to check
10 them. So all they did was maintain the machinery, and people responsible
11 for maintaining went to work. Miners, those who extracted the ore, they
12 didn't go to work.
13 JUDGE SCHOMBURG: When answering one of the questions put to you
14 by Judge Argibay this morning, you explained that from your point of view
15 there were reasons enough to arrest and investigate about Hambarine,
16 Kozarac, the attempt to re-takeover of Prijedor, that this would be reason
17 enough to take the initiative to do the necessary investigations. This
18 was your point of view. We discussed already Keraterm. You were aware
19 that Omarska at that time, when not being operational any longer as such,
20 was used as an investigation centre. Correct?
21 A. Yes, I heard about it. I was never there. But I heard that
22 Omarska and Keraterm were investigation centres and that Trnopolje was the
23 collection centre. Now, I'm still not clear what that word means, the
24 "collection" centre. But it is said that people came and left of their
25 own volition there and it was easier to go -- to get out from that
1 centre -- to get out into the world from that centre. And what you asked
2 me about the mine, whether I was aware that it was not operational, yes,
3 of course, I knew because my father worked there and he didn't go to work.
4 JUDGE SCHOMBURG: Yesterday, LiveNote page 102, line 18 to 19, I
5 asked you: "Did you ever sell fuel for the Omarska investigation centre?"
6 And your answer was "no."
7 A. That's right. I never sold it to the investigation centre.
8 JUDGE SCHOMBURG: To who?
9 A. Why, I've just said it. I listed companies, enterprises. There
10 were a number of other private enterprises, and there were citizens,
11 individuals. The petrol station is a public petrol station and it's in
12 the town. So whoever came to the petrol pump of whatever ethnic origin,
13 nobody can say that he couldn't buy the fuel he needed. On a couple of
14 occasions, I also had to step in and if need be, I can also quote such
15 examples when somebody was ill and...
16 JUDGE SCHOMBURG: I think the transcript speaks for itself. I
17 have no further questions. Any other questions by the parties? This is
18 not the case.
19 This concludes your testimony. May I ask the usher to escort the
20 witness out of the courtroom.
21 THE WITNESS: [Interpretation] Thank you.
22 [The witness withdrew]
23 JUDGE SCHOMBURG: Before we proceed with other issues, may I ask
24 the Defence related to Witness 001, when did you for the first time
25 contact the victim and witness section in order to give you any kind of
1 assistance that this witness would be able to testify during this week?
2 MR. OSTOJIC: Just so the record is clear, I personally did not,
3 but we work through our case manager in that regard. And it was last week
4 that we contacted them in connection with this particular witness, 001.
5 And I would like to add -- I'd like to add that the -- with respect to
6 obtaining their passports which is one of the prerequisites for them to
7 obviously have travel arrangements made, in addition we would like to
8 advise the Court and the OTP that we have contacted the Victim and Witness
9 Unit, and we're in the process of securing that Witness Number 006, also
10 be brought, so just so that the OTP has adequate notice of that.
11 And my understanding from what they said, that they cannot come
12 before Friday afternoon based upon what the Victim and Witness Unit has
13 advised us. But we're still checking on that to make sure that we're
14 clear on all the issues, Your Honour, but that's the most updated.
15 JUDGE SCHOMBURG: I'm awfully sorry, but I have to go in some more
16 details. And I ask the -- I have to ask the Defence to tell us the name
17 of the person you contacted last week in order to have this witness as a
18 witness for this week as ordered orally and in writing in due time once
19 again last week.
20 MR. OSTOJIC: I'll have to get back to the Court on that and ask
21 our case manager. I don't know off the top of my head who specifically he
22 talks to. I know some of the individuals by their first name, but for
23 purposes of accuracy I'll, if the Court permits, get back to the Court
24 after the lunch break with that information.
25 JUDGE SCHOMBURG: Yes, no doubt we need this before we can discuss
1 the question of sanctions for not following the orders of this Trial
3 Then for the transcript, it has to be added that the Prosecution
4 is now and was since the break represented as well by senior counsel,
5 Ms. Joanna Korner. If you so want, you have the floor.
6 MS. KORNER: Your Honour, I was going to say so-called leading
7 counsel. However. Your Honour, the reason that I asked to appear before
8 Your Honour, and indeed as Your Honour was given the message, the chief of
9 Prosecutions was going to appear. But I should tell Your Honour, in fact,
10 it would have been the Prosecutor who was going to appear because of the
11 remarks that Your Honour made on Wednesday, the 5th of February of this
13 Your Honour, I should add that in the light of what Your Honour
14 said on Monday, it may be that the impression that we got which was why it
15 was so seriously regarded that the Prosecutor herself wished to appear may
16 have been perhaps a little misleading. But because what Your Honour
17 actually suggested, and this -- I'm referring now to the uncorrected
18 transcript at page 11.751, Your Honour began by saying: "In the direction
19 of the Prosecution, we deeply deplore the approach taken by the
20 Prosecution. From our position, it is not possible to proceed in the same
21 way as was done in the past. And I know that the addressee of my words is
22 not present in the courtroom."
23 Now, can I pause there for a moment, Your Honour. It may well be
24 that Your Honour's words at that stage were directed towards me. But it
25 wasn't clear, and even if they were, what follows is something that the
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 Office of the Prosecutor took very seriously at the time.
2 "I think no Prosecutor in the entire world has the right to
3 proceed to continue the Prosecution knowing that a person presumed
4 innocent will, that there will be no evidence enough or that in part,
5 incidents never will be proven and even charges can no longer be
6 continued. To continue proceedings against a person whom the Prosecution
7 knows that they are no longer able to proceed under the rules and not able
8 to establish the case could amount to unfair treatment."
9 Now, Your Honour, we read those words all of us in the office and
10 all of us in the trial team as a suggestion that either I or the Office of
11 the Prosecutor were deliberately and knowingly proceeding to prosecute a
12 man that we knew to be innocent. In other words, that we could not prove
13 the charges against him. Your Honour, that would be a slur on the
14 professional reputation not only of myself, but also of the whole office,
15 because it would suggest that we are not only behaving prosecutorially
16 improperly but also immorally.
17 Your Honour, we have taken the view having heard or read what Your
18 Honour said on Monday that in fact that is not what Your Honour intended
19 to suggest. But, Your Honour, if I am wrong, if we are all wrong in that,
20 then we would be grateful to be corrected before I go any further.
21 Because if the suggestion is that we are deliberately and improperly
22 pursuing a Prosecution or charges that we know we cannot prove, Your
23 Honour, that is the most serious allegation, and I know that the
24 Prosecution would wish to deal with it. But we have taken the view that
25 what Your Honour means, having looked at Monday, is that Your Honour is
1 coming to a conclusion that there are, on the facts, matters that we
2 cannot prove. But Your Honour, as I say, before I proceed, I would be
3 grateful to be told if it is Your Honour's intention to allege the
4 prosecutorial misconduct.
5 JUDGE SCHOMBURG: I have to refer to the same transcript you are
6 referring to. Page 11.749. Here I said: "And a clear statement should
7 be given in the direction of both parties. The Judges of this Trial
8 Chamber will no longer accept a policy of obstruction as shown by both
9 parties from the outset of this case." And these were my words, and this
10 is my approach.
11 Then, you should read extremely carefully, knowing better the
12 English terms than me, that I did never say that you deliberately
13 proceeded with a case which would lead to an obstruction of justice.
14 Obstruction of justice, I think, is a term with a separate meaning which
15 can amount to a crime. I just said it amounted to an unfair treatment
16 when one -- when a Prosecution and a Prosecutor proceeds even though the
17 Prosecution knows that in part, the one or other charge cannot be
18 continued. And as you correctly stated, I gave one example last week. I
19 gave it not only last week, I gave these examples from the beginning of
20 this case.
21 And I said that it is a fundamental problem for this Tribunal that
22 the Prosecution charges persons from the outset in a way one could call in
23 a cut and paste way from the Statute. All possible charges and especially
24 the problem is all means of committing such a crime. For example, means
25 that excluding -- that are excluding each other, you can't at the same
1 time be the one preparing, inciting, planning a crime and at the same time
2 being the aider and abettor of this crime. This makes the life extremely
3 difficult for all participants in this courtroom. It makes the life
4 extremely difficult for the Defence because they have to cover all these
5 points, and all these means of the alleged criminal conduct.
6 Our duty is to hear the case in a fair way and in the most
7 expeditious way. We are mandated to do so by the Security Council and the
8 Statute. One impediment is, no doubt, that the Prosecution never takes
9 into account that it is one fundamental principle and obligation - and I
10 know what I am speaking about - for all prosecutors to concentrate their
11 case on the most important issues and charges.
12 Granting jurisdiction is an extremely valuable good, and we have
13 make use of this good in the most appropriate way. We have to be
14 expeditious. It was from the outset, and I won't - if you invite me, I
15 could immediately - it was from the outset that the Prosecution did not
16 want to start hearing the case. The first reaction you can find in our
17 decision of 22nd of March, 2002. And this approach continued and
19 And admittedly, being aware that a number of persons are waiting
20 for their fair trial, it's the obligation for the Prosecution to
21 concentrate on that what can be established in the most expeditious way;
22 and in addition, to avoid a situation where the Defence has to cover an
23 area which is unnecessarily broad and which does not allow the Trial
24 Chamber to state, as we did on a very, very small issue, the one of
25 whether or not it was the right of Dr. Stakic to go wherever he wanted.
1 It is the obligation to concentrate that we are in the situation to say
2 "these questions are no longer relevant. This witness statement is no
3 longer relevant, and therefore, we need not hear this witness."
4 It is impossible that a case like the case before us takes us more
5 than one year. This would not happen in any jurisdiction of the world.
6 Therefore, in order to protect the integrity of this Tribunal and to
7 protect the integrity of international criminal jurisdiction, we have to
8 take care that we speed up our cases, not to the detriment of the
9 accused. The accused has a right to a fair trial. But this goes hand in
10 hand with the duty of the Prosecution to streamline the case.
11 We did this appeal several times, and I recall that we were
12 extremely close to such a solution already in June last year. I still
13 have the document I received from the Prosecutor herself. And she agreed
14 that it would be correct to streamline the case and to try to come to a
15 common solution, and it was prepared for signature for both parties. And
16 it was the Prosecution who then withdrew that what they told us previously
17 that they would prepare to go in some deliberations how to streamline or
18 even to come to a common consensual solution in this case.
19 I could give a lot of other examples. What we intend to do now
20 is, through deliberations, to give some guidelines for the Prosecution
21 because we are aware that the Prosecution is not prepared to act in their
22 own initiative what they should do and what in my opinion - this is my
23 personal opinion - they were obliged to do, taking the workload of this
24 Tribunal as a whole, and as I mentioned before, to concentrate on the
25 remaining issues, withdraw those points where there might be factual
1 problems we can't overcome, and to avoid any academic exercises not
2 necessary. It's an ordinary criminal court, and I'm acquainted that
3 whenever there is a legal or factual problem to be solved that has no
4 impact at all on the outcome of the case, then it's for the Chamber and
5 for -- first of all for the Prosecution to avoid these problems.
6 May I conclude my remarks that these remarks are based on that
7 what I experienced when I campaigned for becoming elected judge through
8 the General Assembly of the United Nations. I was always confronted with
9 the question: "What can you do to shorten the case? What can you do in
10 order to refrain from all these academic exercises in this Tribunal?" And
11 I gave answers, and I promised that whatever will be in my hands I will do
12 to avoid such academic exercises and to speed up the cases. And I feel
13 committed to the promises I gave to those 118 nations voting for me and
14 electing me as a Judge.
15 MS. KORNER: Your Honour, may I deal with a number of the points
16 that Your Honour has made, perhaps not in the same order. But first, it
17 is absolutely clear that what Your Honour is saying, and of course Your
18 Honour has said certainly from very early in the case that we should elect
19 the mode of liability, is that the Prosecution should effectively drop
20 charges even though there may be evidence. Am I correct in what you call
21 streamlining the case?
22 JUDGE SCHOMBURG: There are, no doubt, different approaches. On
23 the first level, no doubt it is where during the case, there is no longer
24 evidence or evidence becomes doubtful based on that what we have heard
25 during the Defence case. And please also take into account the special
1 problems of this case emanating from the mere fact that the Judges,
2 unfortunately, had to change during the case.
3 But in these cases where there may be a lack of evidence, the
4 counts or the mentioned incidents should be dropped. No doubt that also
5 in addition, and this was what I learned 30 years ago as a Prosecutor,
6 even if there might be sufficient evidence but for legal reasons it's
7 difficult and additionally time-consuming, that it's appropriate to drop
8 the one or other charge in order to come as soon as possible to the
9 result, to a fair result, giving the expression of the may be guilt of the
10 accused. And therefore, in fact, it's true, we can only appeal to try to
11 convince the Prosecution that it can be appropriate and would be
12 appropriate to drop some charges as is what is done - I know in a totally
13 different context.
14 But if a charge is not necessary for the outcome of the case, for
15 the result of the case, in terms of a criminal-law case, then it's
16 appropriate to drop these cases. And when I said we will immediately
17 start with these deliberations, it's envisaging this goal and that we all
18 try together to find -- to concentrate on the core questions of this case.
19 MS. KORNER: Your Honour, if Your Honour will let me address those
20 various aspects. Then first, Your Honour, there is a difference between
21 asking the Prosecution to drop charges which Your Honour feels are not
22 necessary for the outcome of the case and the Prosecution proceeding on
23 charges which they know there is no evidence to support.
24 Your Honour, in this case, Your Honour heard full legal argument,
25 both through the deliberations before the Rule 98 decision and in written
1 briefs from the Defence and from the Prosecution. And Your Honours, as
2 then constituted, the Bench as then constituted, made a ruling that there
3 was sufficient evidence for there to be -- for the charges to proceed as
5 Now, Your Honour, the Rule 98 is very specific. It states, if I
6 can just remind Your Honour - I'm sure Your Honour is aware of the
7 wording - Rule 98 bis: "An accused may file a motion for the entry of
8 judgement of acquittal on one or more offences charged in the indictment
9 within seven days after the close of the Prosecutor's case and, in any
10 event, prior to the presentation of the evidence by the Defence pursuant
11 to Rule 85(A)(ii).
12 "(B) The Trial Chamber shall order the entry of judgement of
13 acquittal on motion of an accused or proprio motu if it finds that the
14 evidence is insufficient to sustain a conviction on that or those
16 But Your Honours, the time for these motions and for Your Honours
17 to make that sort of a ruling is at the close of the Prosecution case and
18 before the Defence start calling its evidence. We are at present in the
19 middle of the Defence evidence. For Your Honours to make findings of fact
20 at this stage, which is what Your Honours would be doing, if Your Honours
21 decide to dismiss at this stage one or more charges, Your Honours would be
22 to do exactly what Your Honour didn't want to do before, before you've
23 heard the evidence, all the evidence, for the Defence.
24 So, Your Honour, our submission would be that the time is not
25 right for any discussions of whether Your Honours find that there is at
1 this stage of the proceedings such a doubt that Your Honours would never
2 convict. Your Honours, that would be pre-empting completely the evidence
3 that the Defence may call or indeed that the Prosecution may call in
4 rebuttal. Your Honour, the stage has been passed when Your Honours, in
5 our respectful submission, should start making findings of fact until all
6 the -- the end of all the evidence in the case.
7 Your Honours, the second point: Should the Prosecution, as Your
8 Honours put it, streamline the case? In other words, drop charges on
9 which there is evidence because Your Honours don't feel that the outcome
10 or those -- a conviction on those charges will materially affect the
11 case. Your Honours, the difficulty with that is it's a two-fold thing.
12 It's a fair trial for the defendant, but it's also fairness to the persons
13 whom the Prosecution say were victims of the actions carried out by the
15 And, Your Honours, what may seem just streamlining to the outside
16 world may seem as though the Prosecution and Your Honours are taking the
17 view that, for example, because Your Honour has raised it, it doesn't add
18 anything to this case that persons were persecuted by dismissal from their
19 jobs purely as a result of their ethnicity, which carried with it a lack
20 of livelihood, a lack of housing. And, Your Honours, it would be, we
21 would submit, inappropriate to the suggest watching what is happening that
22 that is an irrelevant matter. Your Honours, it is simply a question of
23 the evidence being there. It doesn't add or detract from the length of
24 this case.
25 Your Honour, you took, as I understand it, you gave an undertaking
1 to your electors that you would shorten trials here. Your Honour, let me
2 assure Your Honour that although this case has been running now for
3 something like 117 days; in actual time, it doesn't even amount to some
4 six months. Your Honour, there are many cases in our own national
5 jurisdictions which run for that length of time. This has been a case
6 which has wasted no time at all and has made remarkable progress. So Your
7 Honour is, in fact, carrying out Your Honour's promise to those who voted
8 for you.
9 Your Honours, in respect of the mode of liability which Your
10 Honour is quite right, Your Honour has raised from the beginning, but
11 Mr. Koumjian addressed when he spoke the other day, and we addressed this
12 earlier on and throughout, it is for Your Honours to decide, having heard
13 the evidence, we merely put the evidence before Your Honours when we
14 called our evidence, and we cross-examined the witnesses as to effectively
15 what we say the case is. But the mode of liability is something that Your
16 Honours and Your Honours alone have the right to choose.
17 So as I said to Your Honours I think some time ago, if we say our
18 case is planning, and that is all that the Defence have to meet, having
19 heard the evidence, you may decide, not a planner, but an aider and
20 abettor. And we would have removed the possibility that Your Honours
21 could find that mode of liability. Your Honour, in our submission, it
22 doesn't add at all to the length of the case or what the Defence have to
23 meet. We have made factual allegations against Dr. Stakic. Those are the
24 allegations which the Defence have to meet.
25 So Your Honours, we would submit that this is really not the time
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 for Your Honours to hold these deliberations that you apparently envision
2 at the moment.
3 Your Honours, in respect of the difficulty which I think Your
4 Honour is referring to of whether there are legal difficulties which may
5 delay matters, I think Your Honour is referring to counts 7 and 8, which
6 are the deportation and forcible transfer, if I am right.
7 JUDGE SCHOMBURG: Not only. There are a number of other issues,
8 for example, related to Article 5 and the deprivation of fundamental
9 rights which causes numerous problems and doesn't allow to take the view
10 that additional questions are not relevant. But this would really -- it
11 would really be necessary to go into the details charge by charge.
12 MS. KORNER: Well, Your Honour, all I was going to say, and Your
13 Honour, I've touched on what I think was Your Honour's concerns on the
14 deprivation of human rights because I think Your Honour has dealt or
15 mentioned it before. But, Your Honour, what I was going to say on counts
16 7 and 8 is this: Your Honours, there are two conflicting lines of
17 authority at present in this Tribunal. The case of Blaskic stated that
18 deportation encompassed effectively what we now call forced transfer. In
19 other words, there did not have to be a crossing of a national line.
20 However, in the cases of Krstic and Krnojelac, the opposite view was taken
21 by the Trial Chamber or the Trial Chambers. Your Honours, there is an
22 appeal pending at the moment in Krnojelac in which the Office of the
23 Prosecutor has taken the position that Your Honour has; namely, that it is
24 unnecessary to have both charges, that deportation in effect encompasses
25 both the charges.
1 I imagine that's a note saying I'm going too fast.
2 But, Your Honour, the difficulty is at the moment is we cannot say
3 which line of authority the Appeals Chamber will follow, which is why we
4 need at this stage to leave both charges. And as Mr. Koumjian pointed out
5 I think it was on Monday, Your Honour has heard considerable body of
6 evidence about the transfer of persons in the most dreadful circumstances
7 but not out of the state.
8 Your Honour, I hope -- and may I -- this is a small point, but may
9 I in defence of Mr. Koumjian deal with -- of all of us. Your Honour took
10 grave exception to questions in respect of where Dr. Stakic -- why
11 Dr. Stakic went to Belgrade. Your Honour, may I say this is standard,
12 standard cross-examination, not only, I understand, in the common-law
13 system but in other civil-law systems because we've discussed it in the
14 office, that if a man knows that he is charged with a criminal offence and
15 goes elsewhere, then it is perfectly proper for the Prosecution to inquire
16 why at that stage he disappeared. But, Your Honour, we're abiding by Your
17 Honours' ruling, but this would be, as I say ordinary - I was going to use
18 the slightly unparliamentary expression "bog standard" - cross-examination
19 in many jurisdictions, and as I say, in civil jurisdictions as I
20 understand the matter.
21 Your Honour, those are the points that we wish to make. But the
22 main point I think is this: If Your Honour now starts to make findings of
23 fact before the end of the case, Your Honour is, in fact, really going -
24 we would respectfully submit - beyond what you the Judges as finders of
25 fact should be doing at this stage and maybe pre-empting a considerable
1 body of evidence that, as Your Honour said before, that one of the
2 difficulties of Rule 98 is you didn't know what was to come, even less do
3 Your Honours know now. And having seen the witnesses, Your Honours, our
4 position would very much be that the Prosecution case has not lost a jot
5 of its forcefulness. Indeed, we would submit having heard the Defence
6 evidence that the persuasive nature of the Prosecution's case has become
7 even more apparent.
8 Your Honour, those are the submissions we make. Your Honours, if
9 there is anything that you specifically wish us to address at this stage,
10 then of course Your Honours, we will be happy to do that. But those are
11 the submission that we, on behalf of the office, wish to make.
12 JUDGE SCHOMBURG: I think it's necessary to go in some of the
13 details because I, in fact, I find some of your comments not in line and
14 not in agreement with our decision on Rule 98 bis handed down the 31st of
15 October, 2002. We would have to go into some more details. And it is, of
16 course, the right for the Defence to give their submissions. Would it be
17 appropriate for you to continue this, I think, very important discussion
18 today, 1.30?
19 Then, the trial stays adjourned until 1.30.
20 --- Recess taken at 12.17 p.m.
21 --- On resuming at 1.37 p.m.
22 JUDGE SCHOMBURG: Please be seated.
23 Before giving the floor to the Defence for response, let me add
24 the following remarks: A minor but important point only serving as an
25 example for the question of relevance or not relevance is the question
1 whether or not we can regard the question why and if Dr. Stakic took the
2 decision to move to Belgrade is relevant for this case. First, it's
3 undisputed that there is no crime to flee. It's no crime to flee at all.
4 It could only be, if we would arrive at the sentencing stage, a mitigating
5 or aggravating factor. But there is a basic principle of law that the
6 absence of a mitigating factor can never be regarded as an aggravating
7 factor. Mitigating factor could and would be the voluntary surrender of
8 Dr. Stakic to The Hague. We have no evidence or any intent of this. This
9 would be for the Defence.
10 From the perspective of Dr. Stakic, worst-case thinking would be
11 that he knew about the indictment and, in fact, tried to hide himself.
12 But even if so, no inference could and can be drawn from this against
13 Dr. Stakic. He has no duty at all to cooperate or even to surrender.
14 Article 29 of the Statute only provides for the duty to cooperate with
15 states. That's individual, no legal system of the world has an obligation
16 or a duty to surrender voluntarily.
17 Therefore, in the absence of such a duty, no negative, aggravating
18 conclusions could be drawn from his own decision wherever he wanted to go
19 in case we would come to the sentencing stage. Therefore, to that end, it
20 is absolutely irrelevant which decision Dr. Stakic took outside the time
21 frame set by the fourth amended indictment. If not conclusions can be
22 drawn related to one of the concrete charges.
23 It is difficult enough for this Trial Chamber to find out whether
24 the OTP has chosen this time frame when it turns out more and more clearly
25 that it's the Prosecutor's -- the Prosecution's case that Dr. Stakic
1 allegedly started with the preparations of the alleged crimes already in
2 January 1992 and continued after this time window set by the OTP in the
3 indictment. But as promised, I do not want to reopen this debate why and
4 to what extent the OTP delayed or tried to delay this case.
5 We are still confronted with a motion on three documents not
6 65 terred and proprio motu, we asked the question why a certain document
7 was not tendered in time, was not 65 terred, was not included when we
8 asked for all documents to be given to the handwriting expert,
9 Mr. ten Camp, the document of 22nd of January. We are still suffering
10 from the absolute belated disclosure of six important statements. But let
11 me no longer deplore the problems of the past.
12 Let me come to the core issue: How is it possible to streamline
13 the case? It doesn't help from my point of view, better from our point of
14 view, we discussed this during the break, to play the ball back to the
15 Chamber because the Prosecution is absolutely right; there is no second
16 98 bis decision possible. The Chamber cannot proprio motu under the
17 current rules close the case in part. Therefore, my words, better, the
18 words of this Trial Chamber, can only have an appellate function.
19 Under the rules, only the OTP has the possibility to streamline a
20 concrete case. This is why, as mentioned, since January last year, this
21 Trial Chamber tried to convince the parties that it would be helpful to
22 have additional deliberations how to come to the consensual end of this,
23 and if not a consensual end of the case, at least a more expeditious end
24 of this case as foreseen mandatorily under our Statute.
25 Coming to our 98 bis decision, we did not - for reasons emanating
1 from the special circumstances of the composition of this Bench - adopt or
2 apply the standard as described by Judge Pocar in a dissenting opinion.
3 Because from our point of view, and our -- in this case means the point of
4 view of the Judges seized with the case before the 31st of October, we
5 were in fact of the opinion that this rule makes only sense when the test
6 is not to which conclusion a reasonable trier of fact could come, but for
7 reasons of judicial economy, to which conclusions this concrete Trial
8 Chamber could come. And no doubt, everybody could read from the 98 bis
9 decision what would have been the outcome under this other standard.
10 It is the submission of the Prosecution now that it wouldn't help
11 to have deliberations on how to streamline the case at this concrete point
12 in time. I do not agree. I do not agree because it is possible if only
13 the parties so want to discuss legal issues and to find out where the
14 problems are, and this would facilitate the work, if not the obligation,
15 to exercise the obligation, by the OTP to streamline the case and to
16 finally allow also in this Tribunal that in nearly all jurisdictions of
17 the world is the central problem, to make use of judicial economy and not
18 to waste time with academic exercises and to go into factual, very
19 difficult problems which would take us months and months longer than
20 estimated. Because one thing should be quite clear: One point is whether
21 Defence counsel try or not try to create obstacles.
22 The other question is the right of Dr. Stakic to have a fair
23 trial. And this has nothing to do with concrete actions conducted by
24 Defence counsel. And we would have to proceed even though Defence counsel
25 believe that the case could be closed and then be later -- maybe later
1 come and readdress the question and state maybe by other Defence counsel
2 that the pace of the case would render the case unfair.
3 I think we should all be aware, this is not a common-law Tribunal;
4 this is not a civil-law Tribunal. We have a hybrid character. And it is
5 for this that we have all -- we are all under the obligation not to find
6 the lowest common denominator of the two legal systems, but we have to
7 find out ways how to speed up the case. And it is for this reason that I
8 want to distribute only as one example -- I know that the same rules more
9 or less are applicable in most of the codes of criminal procedure in the
10 45 member states of the council of Europe to give you only one example.
11 Sections 154 and 154(a) of the German code of criminal procedure,
12 there, these are rules on insignificant secondary parities and there it
13 reads that, "The public Prosecution office may dispense with prosecuting
14 an offence under the following prerequisites," and then it reads, and
15 that's the state where we are now, "If public charges have already been
16 preferred, the Court, upon the public Prosecution Office application, may
17 provisionally terminate the proceedings at any stage." No doubt, this
18 can't be translated one to one in our rules on procedure and evidence.
19 But it gives a hint.
20 And in addition, Section 154 (a), limitation of Prosecution. It
21 reads: "If individual separable parts of an offence or sum of several
22 violations of law committed as a result of the same offence of not
23 particular significance, one, for the penalty or measure or reform on
24 prevention to be expected; or two, in addition to pertinent or measure of
25 reform or prevention which has been imposed with binding effect upon the
1 accused for another offence which he has to expect for another offence."
2 Here it would be only alternative one.
3 In those cases, Prosecution may be limited to the other parts of
4 the offence or the other violations of law. And this, I think, is a clear
5 hint how, in fact, we could proceed only if the Prosecution so wants.
6 Under our Rules of Procedure and Evidence, the role of the Prosecution is,
7 no doubt, a more dominant one, and therefore, we can only invite and can't
8 do anything else than inviting, in fact, the Prosecution to participate in
9 these deliberations in which framework soever in order to have a more
10 streamlined case as it is called here "Limitation of the Prosecution."
11 May I ask that these sections of the German Code of Criminal Procedure be
12 distributed to the parties and one, please, for the registry, as the next
13 following J exhibit.
14 THE REGISTRAR: J28A, Your Honour.
15 JUDGE SCHOMBURG: Thank you. I hope that Dr. Stakic, due to the
16 kind assistance of the booth, was able to follow this what can be read in
17 this German Code of Criminal Procedure. But I have to emphasise, only as
18 one example how one can proceed, and maybe one is obliged to proceed. But
19 these are my preliminary remarks. It's now for the Defence to give their
20 submission to this question.
21 MR. OSTOJIC: Good afternoon, Your Honours. The Defence has
22 several comments if we are permitted to make and to address some of the
23 statements, if you will, of the OTP. Regretfully, we only agree with the
24 OTP in part, but disagree in many of the other aspects to it. Similarly,
25 with all due respect to the Court, we disagree that the time or the stage
1 for reconsideration of the evidence has passed because we're in the middle
2 of the Defence case. Counsel for the OTP stated, and read for us Rule
3 98 bis again, and clearly we believe that it gives this Court the right,
4 proprio motu to revisit those issues and make those decisions at any time.
5 There's no rule that prohibits or no decisional authority that
6 I've reviewed that prohibits a Chamber from dismissing counts proprio motu
7 or allegations within a count at any time it deems that the evidence is
8 insufficient. We would like nothing more than during the deliberation
9 phase of this case prior to the submissions in writing and orally last
10 year that the Court revisit those issues. We thought, much to our
11 disappointment, that some of the issues would be resolved. All the
12 remaining counts have stood. All the allegations both factual and legal
13 have stood with the exception of those referenced by the Court, the
14 instigation, and the issues where there was no evidence which the OTP has
15 admitted with respect to any attack, destruction, or killings.
16 We do, respectfully, invite the Court to once again look at those
17 issues and to once again examine that which we discussed last year before
18 the submission of our 98 bis motions, and we believe when you apply it to
19 the rules, specifically where the Court is given the right, using the word
20 "mandatorily shall" proprio motu make a decision on those issues. Nowhere
21 in that section or subparagraph does it say the Trial Chamber is
22 prohibited from addressing that or is even given a time frame when the
23 Trial Chamber shall reach its decision on that point.
24 To move to the next issue, if I may, the Court has touched today
25 on page 44 of the transcript citing page 11.749 of the previous transcript
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 I believe of the 5th of February, a "policy of obstruction." The Defence
2 certainly is of the position, respectfully, Your Honour, that there has
3 never been a policy of obstruction by the Defence attorneys, by
4 Dr. Stakic, or any members of our team at any time. Our intent has never
5 been to obstruct the process or to delay the process from reaching the
6 final decision in obtaining a fair trial for Dr. Stakic.
7 Similarly, I may add, although we have disagreed on many, many
8 points with the OTP, we have never alleged that there was a deliberate or
9 intentional obstruction or frustration of the case as it relates to
10 Dr. Stakic. We do continue to insist on previously filed written and oral
11 submissions, although denied, that the OTP has in possession and has had
12 in possession documents which we continue to maintain are exculpatory. By
13 my comments, we are not waiving our position on those prior pleadings,
14 motions, and oral submissions. Nevertheless, we are troubled
15 professionally and personally that there's at least -- at the very least a
16 thought of this "policy of obstruction."
17 We would like to visit with the Court at any time and at your
18 convenience the history of the efforts by the OTP and would like that
19 opportunity to submit it in writing if necessary.
20 If I may turn to the next issue. The Court is correct when you
21 mention the word "cut and paste" of an indictment. Interestingly enough,
22 the OTP's, in my view, policy and practice has been just that, to cut and
23 paste. Doesn't matter who the defendant is; who the accused is; or where
24 in the former Yugoslavia that accused was located, or what the actions or
25 conduct against that accused have been. Although I have not read every
1 closing argument that the OTP has given in this Tribunal, I dare say that
2 the same argument offered today by Ms. Joanna Korner that in fact as a
3 result of the Defence witnesses, their case is enhanced or it somehow has
4 been strengthened. That's the same cut and paste argument that they use
5 in every single case that they ever present in this Tribunal.
6 We would like to think that these cases are individual, that these
7 cases are separate, that these cases are distinct from one another. The
8 OTP, however, maintains their policy of cut and paste. If we only look at
9 Mrs. Biljana Plavsic's indictment, simply transfer the name, and we'll
10 find the same eight counts with the same factual allegations, planning,
11 ordering, instigating, and/or otherwise aiding and abetting, for every
12 defendant, for every accused, they make those allegations.
13 I agree with the Court and I agree with the OTP that the Court has
14 requested of them at the outset of this case, if not prior, to select and
15 elect their mode of liability that they wish to charge our client. They
16 have not done it at the outset of the case. They have not done it during
17 the 98 bis stage of the case. And they won't do it at the end of the case
18 for one simple reason, in our view. And I recognise this is not an oral
19 agreement on our final submissions, but the reasons they cannot select the
20 mode of liability or culpability is because they don't know themselves and
21 have no confidence in which mode may or may not convince three
22 professional Judges. And the reason they don't know and don't have that
23 confidence, we submit, is because there is a lack of evidence.
24 So instead of standing strong and steadfast on the rules and the
25 facts that they have, they have chosen instead to throw everything and
1 anything at their disposal in front of us and have someone else make that
2 decision if at all possible.
3 We think the deliberations and that stage of the proceedings would
4 be effective and be most helpful, as we thought during the 98 bis stage.
5 However, having read the decision on 98 bis, with all due respect to the
6 Court, we do have some difficulty in understanding perhaps some of the
7 representations or arguments that were made at that time.
8 Now, let me address an issue that the Court raised, although a
9 minor point and now seemingly so irrelevant. The Defence would not
10 necessarily object to the issue of whether Dr. Stakic fled or didn't
11 flee. But when the OTP asked the question, they are asking it for
12 aggravation. But the fair question, because they are, as we are, officers
13 of the Court, and they are the protectors of the people, the fair question
14 would be -- instead of asking whether Dr. Stakic, being such an honourable
15 and noble man, would he have run away from an indictment? They should set
16 the proper question, and we can all look on our computers today and find
17 that the indictment for Dr. Stakic was secret, confidential, not disclosed
18 to anyone including Dr. Stakic, and only was issued public days before his
19 arrest and his incarceration. That's a fair question.
20 Who would run if he didn't know he was under indictment? I
21 understand it's an irrelevant point. For the Defence, it's not. And the
22 reason it's not irrelevant is because it's the truth. And it's our
23 obligation to bring forth that truthful evidence. We recognise the
24 Court's ruling. We will abide by it. However, we're still troubled that
25 although a minor point and only used as an example, it seems to raise its
1 head time and time again.
2 Similarly, the OTP has made other minor allegations such as
3 whether someone gave a eulogy at a funeral. The evidence they produce is
4 inconsistent clearly with the documents they submit although a secondary
5 and tertiary level hearsay of the document. It's not in the indictment.
6 It's not a crime to eulogise someone. However, the case has taken a turn,
7 and the OTP has decided instead of bringing forth their strongest case, to
8 try to muddy the waters, if you will, with evidence that is irrelevant and
9 immaterial and has no basis in fact or in law.
10 The next issue we would like to address, and that is the OTP's
11 view of why they purportedly cannot select a mode of liability or
12 culpability and why they cannot elect to drop charges. I submit to the
13 OTP respectfully that the honourable and respectful people of Bosnia and
14 specifically of Prijedor would only need to listen to the testimony given
15 by the witnesses such as the most respectful Dr. Minka Cehajic and how she
16 described Dr. Stakic and how their witnesses described his personality,
17 his reputation, and his characteristics.
18 It is those witnesses, as well as the witnesses brought forth by
19 the Defence, that can shape the thinking of not only what Dr. Stakic's
20 intent was for all eight of the counts in the fourth amended indictment,
21 but it is also necessary, we submit, that the OTP revisit both in their
22 conscience and in their heart that those statements given by individuals
23 who were also party leaders of the SDA, whether they themselves have ever
24 utilised or used the word that Dr. Stakic was discriminatory in his intent
25 at any time. Instead, we submit, and the record is clear, we have
1 highlighted in our 98 bis motion, the Court has in part, we believe,
2 necessitated by the rules, and also including it in a footnote in their
3 98 bis order highlighted some of those specific actions and conducts
4 relating to intent of Dr. Stakic.
5 The good news for the OTP is that I agree with their comment that
6 they gave on page 50 where they submit, on line 23: "This has been a case
7 which has wasted no time at all and has made remarkable progress." I
8 submit to the Court, despite the past practices of other trials and other
9 Chambers, this case has not been unduly delayed or unnecessarily stalled
10 by virtue of either party. There have been hiccups, and there have been
11 bumps on the road for both sides. Our defence is not to suggest that our
12 recent issues and problems with witnesses, the fact that the OTP
13 experienced similar problems or issues. We only submit that to the Court
14 so that the Court, when viewing the totality of the circumstances in this
15 case, we believe that it will find that the Defence, indeed, has acted
16 expeditiously and in good faith at all times.
17 We regret, as does the Court, and I'm sure the staff that's
18 present here today and otherwise assisting the Chamber, that there have
19 been these delays. It is unfortunate, and we regret that not only for the
20 Trial Chamber, the OTP, the staff, but also for Dr. Stakic. It has been
21 difficult at times for him to sit long periods of time here in the
22 courtroom. As he shared with me recently this week, he was brought to the
23 courthouse, I believe, on Monday at 20 to 8.00, and then he left at
24 approximately 5.30, arriving in the Detention Unit somewhere between 6.00
25 and 6.15. He continues to maintain and continues to insist upon us, as
1 the Court does, to reach a conclusion in this case as soon as possible and
2 as soon as practicable. However, we will not, and we cannot, under our
3 duties as officers of the Court rush a case and present evidence unless
4 first the Defence and its attorneys are fully satisfied that we will bring
5 forth this witness, and until the Defence is satisfied that it is a
6 witness that is not only relevant but necessary for the allegations in the
8 We are endeavouring to meet those needs on a daily and regular
9 basis. We believe in good faith we are accomplishing that goal. We
10 believe, as we've stated on numerous occasions, this case will end as the
11 Court has ordered on the 21st of March. We recognise that's the Court's
12 order. But we also believe and insist that the case ends at that time.
13 To address another point that the OTP has raised, on page 51 of
14 today's transcript, this morning's transcript, they state commencing on
15 line 14: "We have made factual allegations against Dr. Stakic. Those are
16 the allegations which the Defence have to meet." Those factual
17 allegations is exactly what the Court has discussed with us, I dare say ad
18 nauseum, but on numerous occasions. Can we indict and charge a person, an
19 individual, whether they take this issue hypothetically, theoretically, or
20 specifically in any case, with alternative theories or inconsistent
21 theories such as planning, ordering, instigating, influencing, and then
22 claiming he was otherwise aiding and abetting? Make the decision. The
23 Defence would curb their witnesses based on that decision. We would curb
24 the remaining witnesses based upon that decision. But it's our obligation
25 to fulfill each and every one of those factual allegations, not legal, but
1 factual allegations that they have asserted which in our view are baseless
2 and without merit.
3 I dare say that we can anticipate the arguments of the OTP in
4 their final closing argument, and I would suggest to them that they merely
5 submit that argument so that we can streamline the case pursuant to Rule
6 92 bis of other cases, and merely just have the Court transform the name
7 of the defendant or the accused. They have not come up with a novel idea
8 in our view. They have not come up with a specific factual allegation
9 other than hearsay, double and triple hearsay, to attempt to have any
10 charges against Dr. Stakic stand.
11 The Court has now, for I believe at least the second time, cited
12 the German Statute and German decisional authority. We likewise invite
13 the Court to examine the decisional authority of other nations as well as
14 the German decisional authority on the weight and character of hearsay
15 evidence in criminal proceedings. It is unique to this Tribunal. The
16 Court has specifically made reference of hearsay when a Defence witness
17 was on the stand and asked him respectfully to share with us his personal
18 knowledge and not that which he has heard from others. We applaud that
19 view. We incorporate that view. We wish that principle would be applied
20 not only for the Defence case, but for the OTP case and other cases as
22 In closing, when we address issues which are our duty, such as
23 mitigation or aggravation, the Defence without specific guidance from the
24 Court cannot and, I dare say, will not speculate on what evidence we
25 shall, should, or could have produced. We will with all the powers that
1 we have present all the evidence which may give any inclination to
2 alleviate both the issues of liability and culpability as well as
3 sentencing. That is our duty, and that is what we will continue to
4 fulfill. Thank you very much, Your Honours.
5 JUDGE SCHOMBURG: Thank you. Before I expect final remarks
6 whether or not -- or remarks in response and then remarks to the question
7 whether or not it is from the point of view of the OTP helpful to start a
8 phase of deliberation, I only want to express my disagreement with the
9 view taken by the OTP to that end. It was the Prosecution stating in the
10 98 bis motion that the Trial Chamber can only proceed with concrete
11 charges on the basis of the evidence introduced to date. We endorsed this
13 We said in conclusion, the case can only worsen for the accused,
14 that the degree of the responsibility within a concrete maintained charge
15 or in relation to a factual allegation as well as with regard to
16 mitigating or aggravating factors may change on the basis of additional
17 evidence under Rule 85 and 98. Once again, a problem with this hybrid
18 character of our Rules of Procedure and Evidence. But I think there is no
19 point waiting maybe for additional witnesses called by the Defence and
20 giving by chance, not deliberately, additional evidence in favour of the
22 I think when we respect the decision that we have to work in
23 principle under these rules providing for a separate Prosecution case, a
24 separate Defence case, and then maybe even a separate Judges' case. But
25 when we have agreed on this, then we can't wait. And I think it's
1 important in all cases and under all legal systems that had you on a
2 day-by-day basis decide what can be done in order to be more expeditious,
3 and we shouldn't give up our hope that is possible, and we are under the
4 daily obligation to find out whether, in fact - in the moment, this is not
5 a concrete question - whether or not the deprivation of liberty is still
7 But to be quite concrete, in the moment, the question before us
8 is: What can we do in order, as I said, not to come to the lowest common
9 denominator, but to bring together the advantageous parts of both legal
10 systems in order to come to better solutions not only for this case but
11 also for cases in the future. But no doubt, it's the right now for the
12 Prosecution to respond.
13 MS. KORNER: Your Honour, can I respond to that last aspect
14 first. This is neither a common-law nor a civil system, as Your Honour
15 has remarked on a number of occasions. This is a system that is bound by
16 its own Statute and its own rules. And, Your Honour, with the greatest of
17 respect to Mr. Ostojic, that rule makes it absolutely clear in respect of
18 submissions of no case to answer to be made within seven days of the
19 conclusion of the Prosecution case. And as Your Honour has rightly said,
20 it isn't a matter for Your Honour reopening it.
21 It's a matter -- Your Honour, effectively, it comes down to this:
22 Your Honour would like us to drop charges. When all is said and done,
23 that's what it has to be because as Your Honour has also pointed out, the
24 Statute makes it absolutely clear it's the Prosecutor who decides what
25 charges to bring and what shall go on the indictment as obviously overseen
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 by the confirming Judge who has a look at the charges that are on the
3 Your Honour, there are really two things. Your Honour has said or
4 the Bench said there was sufficient evidence at the Rule 98 bis stage.
5 Your Honours now would either have to be saying by these form of
6 deliberations, we made an error, and we wish to correct the error that we
7 made, in which case, Your Honours, we would be certainly asking for time
8 to make further submissions on the matter. Or alternatively, Your Honours
9 could indicate where academically speaking it is the view of the Trial
10 Chamber that the Prosecution might consider withdrawing some of the
11 present charges or factual allegations within the charge. Because with
12 the greatest of respect, if it's not academic, then Your Honours are
13 saying "you have reached a decision at this incomplete stage of the
14 evidence that there is insufficient evidence for you to convict."
15 Your Honours, to do that would show that - and I say this
16 respectfully - Your Honours weren't prepared to listen to the rest of the
17 evidence with an open mind. And, Your Honour, that would be most
19 JUDGE SCHOMBURG: Sorry, this can't stay on the transcript without
20 immediate answer. What I said was only the case can't worsen during the
21 Defence case. During the Defence case, it only can turn to the better and
22 be of advantage for Dr. Stakic. Therefore --
23 MS. KORNER: Your Honour, with the greatest of respect, I'm sorry,
24 that's simply not right. The case very often gets worse for the Defence
25 during the Defence case. The Defence put on what they hope will assist
1 their case. Your Honour, in reality, I mean, I would say in 80 per cent
2 of the cases, it's a truism, the high point of the Defence case is
3 sometimes said to be at the Prosecution -- at the end of the Prosecution
4 evidence. Very often with the Defence case, it gets worse for the
5 Defence. It's not what they intend, but that's what happens.
6 JUDGE SCHOMBURG: I think I addressed this point quite clearly. I
7 made reference to maybe even in a cut and paste way, we did it from your
8 arguments under 98 bis, that the Trial Chamber can only proceed with
9 concrete charges on the base of evidence introduced to date. And what
10 about the worsening of the case? It's quite clear, and it has been ruled
11 and we are no longer seized with the 98 bis decision. Please accept our
12 decision. You can read it on page 4, the last sentence of our 98 bis
13 decision. And this is a decision of our Chamber, and this is endorsed
14 also by the Judges sitting now here in this Chamber.
15 MS. KORNER: Your Honour, I think there's a misunderstanding. I'm
16 sorry. Your Honours, we made it absolutely clear because we wanted to
17 ensure that at that stage, Your Honours took into account only the
18 evidence that had been led by the Prosecution. You could not take into
19 account, we submitted and you agreed, any evidence that might come, that
20 might affect the decision. But we're looking, Your Honours, now, at a
21 completely different scenario, which is having got through that stage,
22 come the end of the evidence, you look at the evidence as a whole. You
23 don't divide it in our submission into Prosecution evidence and what the
24 Defence led; you say: "What is the evidence in this case? Either we are
25 satisfied so that we are sure that the defendant is guilty of the
1 particular offence, taking all the evidence including that led by the
2 Defence, or alternatively, we are not satisfied at the end of the day
3 having heard all the evidence that the test has been established," which
4 is a different test from that at half time. You the Judges have to be
6 So, Your Honour, our concern is this: And I repeat again, Your
7 Honour, that this is not, we submit, the stage at which Your Honours can
8 do anything other than perhaps academically as I say suggest to the Office
9 of the Prosecutor that there are certain matters which perhaps they might
10 like to reconsider. But Your Honours, anything other than that, and we
11 will be -- the problem is it will have the opposite effect, I think of
12 what Your Honour intends. It's not going to shorten matters because we
13 will be seeking time to look through the evidence to readdress Your Honour
14 again on those matters.
15 Your Honour, if Your Honours want to do that without suggesting in
16 any way that you've come to any sort of decision on any of the legal
17 charges and the facts relating to them, then, of course, Your Honours are
18 perfectly entitled as you call to give a judicial hint. And we will, of
19 course, consider the matter. But anything other than that, Your Honours,
20 we would submit is inappropriate at this stage.
21 JUDGE SCHOMBURG: Do you want to respond?
22 MR. OSTOJIC: Yes, very briefly, Your Honour, if I may. I think,
23 respectfully, to my learned friend that the OTP's obligation is set forth
24 rather clearly and the rules are rather clear. The OTP knows and does not
25 believe in the principle, fundamental as it may be, of the presumption of
1 innocence. They state to the Court on page 71, line 1 just moments ago:
2 "What is the evidence in this case? Either we - and I won't dare
3 speculate as to who they are referring to as to the we - either we are
4 satisfied so that we are sure that the defendant is guilty of the
5 particular offence..."
6 I submit to the Court that that is not the standard of review
7 either at the beginning of the case, at the stage of the 98 bis pleadings,
8 or at the conclusion of the case. This Trial Chamber has not, and it is
9 not their mandate, I say most respectfully, to determine or to be sure
10 that an accused or a defendant is guilty. Although hesitant and confident
11 that this Trial Chamber knows its duties and what the burden of proof is
12 and whose responsibility that burden of proof falls upon, it is not this
13 Trial Chamber's duty to make sure that there is enough evidence so that an
14 accused is found guilty or to be certain.
15 Your evidence or your task, I should say, is to examine the
16 evidence in an objective manner and to weigh the testimony of the
17 witnesses, to weigh the testimony of the documents, to weigh each and
18 every one of those individually and collectively on each and every
19 allegation, both factual and legal, on each and every count. The OTP may
20 be right in the respect, although I'm not sure why they fear it, but they
21 may be right that decisions have been made or there's some
22 predetermination. But as we know, all of us in this courtroom and in this
23 Tribunal as professionals, we most certainly have predetermined views, and
24 we certainly have our views shaped and changed at times by the ongoing
25 process of a trial.
1 We are confident the Court, each and every one of you, has not
2 made a decision on any of the counts in the fourth amended indictment. A
3 decision of guilt at this time would most certainly not only be premature,
4 but it would be, in our view, a violation of the very mandate and rules
5 prescribed in this Tribunal. However, the Trial Chamber has received in
6 total the evidence of the OTP, and it can, we submit, at any time by the
7 powers given to you by the rules, not only through judicial hints but
8 specifically through orders to try to streamline a particular charge, to
9 dismiss a specific count or counts, and to streamline the case in its
10 entirety. We invite the Court to do that. We urge the Court to do that.
11 One last point, if I may, I was in the response by the OTP hoping
12 we would get a breath of freshness instead of the same cut and paste that
13 it's a truism. The reality, not the truism, is that the OTP respectfully
14 in their narrow view of the facts and narrow view of the evidence would
15 never dig deep in their conscience and in their heart and say that any
16 charge or any fact should be dismissed. The truism or reality is that
17 this Court gave specific, concrete, elaborate judicial hints.
18 If we take those comments by the Court and apply them to what it
19 is specifically that the OTP decided to drop or discharge, we cannot
20 accept their comments now or at any time that they will examine the
21 Court's view, duly consider it, and possibly, always giving that little
22 shed of hope, possibly decide to drop or dismiss factual allegations,
23 counts, or legal arguments. It will never happen. It has never
24 happened. Because their truism is and their mandate is to throw
25 everything against the defendant and hope through the masses of documents
1 and testimony something or anything would stick. We ask this Court to
2 reject that prior, current, and apparently futuristic position of the OTP.
3 Thank you, Your Honour.
4 JUDGE SCHOMBURG: I can I can't see any request for taking the
6 MR. KOUMJIAN: If I could take a few minutes of the Court's time,
7 just one response briefly on the matter of dropping incidents. We did try
8 to streamline the case. It's not that we threw everything against the
9 wall. There was, for example, a minor -- well, it wasn't minor to the
10 people involved, a massacre in the village of Jaskici that was found in
11 the Tadic decision. The witnesses who testified taking the judicial hint
12 that enough crimes had been proven, we dropped that rather than attempting
13 to 92 bis that or litigate the adjudicated facts from the Tadic decision.
14 And also, I would just like to briefly address this issue of why
15 we put on evidence or asked witnesses about Dr. Stakic's going to
16 Belgrade. We accept the Court's ruling, and we have since the Court
17 indicated its feelings, have not pursued that. But because the allegation
18 seems to be that it was misconduct on the part of Prosecution, we would
19 just like to talk about it because it's perhaps a difference in legal
20 systems. Mr. Ostojic is familiar with it from sharing the same
21 jurisdiction that I do.
22 It is not offered as evidence of aggravation. No one's saying
23 that flight is a crime. It is offered, and I present the jury
24 instructions that we have in my jurisdiction, as indirect evidence of
25 consciousness of guilt. The fact that a person doesn't know about a
1 formal indictment only increases the relevance of a person fleeing a
2 jurisdiction in order to -- showing that they are conscious of the crime
3 and their own responsibility.
4 I think the most memorable case I did before here was the rape and
5 murder of a 3-year-old girl. The principal evidence we had was that the
6 accused person had fled Los Angeles in the United States the day that
7 girl's body was found in his apartment. That's just common sense that a
8 person who suddenly leaves, in this case the position of president of the
9 municipality, to go to a country where there is no chance of him being
11 It was our view not -- we thought it was certainly ethical to put
12 on that evidence. In my system and Mr. Ostojic's system, I understand
13 from talking to another lawyer who's from a continental country, in that
14 particular country that that evidence would be allowed. But we accept --
15 don't think we need it. We accept Your Honours' ruling, and we will no
16 longer pursue. But I just wanted to explain why we presented it.
17 JUDGE SCHOMBURG: I thank you for this additional comment. I
18 think it's helpful to that end that, in fact, we have to live with
19 different approaches and something -- maybe we feel that it's mandatory,
20 but to that end, as you mentioned right now, I think the continental
21 European approach, and I know what I'm saying having taught this in
22 several countries in transition, especially in middle and eastern Europe,
23 that you cannot draw any inferences from the fact that worse-case
24 thinking - Dr. Stakic, please don't misunderstand this - that in fact if a
25 person decided not to surrender or even to flee, there may be sound
1 reasons for doing so, and therefore, even from a human rights perspective,
2 it's not allowed to draw any inferences. But we have to live with these
3 different views, and we have to overcome these difficulties. We are
4 mandated to overcome these difficulties.
5 And therefore, we saw it as our obligation to openly address that
6 what we regard as obstacle for a more expeditious procedure. And it was
7 on purpose that at the same time, we addressed both parties because when
8 discussing, and we are discussing day by day the ongoing case, that we
9 came to the conclusion that there is, in fact, something wrong. And no
10 doubt, also the Trial Chamber, as such, has contributed when being not
11 rigid and not strict enough vis-a-vis one or other witness in the past and
12 allowing questions being not relevant in order to avoid long discussions
13 on the relevance, we have to come to some solutions. And I understand
14 that the Prosecution prefers not to have deliberations at this point in
15 time instead of this -- the method of giving judicial hints. But please
16 be assured that the necessary judicial self-restraint limits our
17 possibilities because the one or other party to whom it may concern may
18 draw wrong inferences from any judicial hints to that end that maybe we
19 have already found a decision against the Prosecution or against
20 Dr. Stakic. So therefore, for us, it's extremely difficult.
21 It's easier for the Prosecution, if the Prosecution is not
22 prepared to act proprio motu in this case, then there is no discretion for
23 the Trial Chamber. And here, I am in full agreement with that what has
24 been said by Ms. Joanna Korner. There is no second Rule 98 bis possible.
25 It's only within seven days after the close of the Prosecutor's case.
1 So for the moment, there is no additional possibility. I can tell
2 you that this is the most-discussed issue in the bureau, and we will
3 continue with this that we change as soon as possible the rules in order
4 to streamline the cases to that what is really necessary for the purpose
5 of a criminal law case. And let's try to proceed this way. And this is
6 true in both directions. We are not prepared to continue on a day-by-day
7 basis fighting for documents, fighting for proffers coming one hour
8 earlier or later.
9 We have set strict rules for the proffers, for the rules to apply
10 in preparation of a witness, and I hope that we shall overcome the next
11 weeks. And no doubt, this case will not end before Dr. Stakic has had the
12 opportunity to hear the witnesses that are relevant and important for his
13 case. We set the deadline, 21st of January -- of March, sorry. But in
14 case that there should be any delay caused by one of the parties, it would
15 be necessary to proceed with this case, and this would have an absolute
16 detrimental impact on other cases - and I don't want to discuss it any
17 longer. The parties know very well what I'm speaking about.
18 This brings me to the next question. I asked the Defence, in
19 order to try to find out how we can assist you, whom did you contact in
20 the victim and witnesses section, at what time for the first time that you
21 would need witness or you want to call Witness 001.
22 MR. OSTOJIC: Your Honour, thank you. The Defence has worked with
23 the liaison of the Victim and Witness Unit, and we have spoken and
24 corresponded through e-mail with their representatives whose name is
25 Isabel Skukan. I apologise to her. I just want to add one thing if I
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 may, it seems that - and the Defence would like to invite the Court to
2 visit this issue in detail with us - however the Victim and Witness Unit
3 has been enormously helpful and has been with each and every one of our
4 witnesses always there for them, and our witnesses have specifically
5 stated that they are kind, attentive, pleasant, and most helpful in
6 providing them with the needs that they require, both the accommodations,
7 the pickups, both here and abroad.
8 Our complications arise, Your Honours, from the limited time that
9 the witnesses have to get passports and visas issued. The governments
10 from my understanding do not give them open-ended travel and limit it by
11 days. The Victim and Witness Unit does not coordinate the passport and
12 visas for the witnesses. That's done at the place of residence of the
13 individuals. That process last week was, unfortunately, frustrated
14 because there was a holiday on both Thursday and Friday where it's our
15 understanding that the governmental and administrative offices were closed
17 We have for Witness Number 65 ter 006 the visa and we have made
18 the application for him to be present. The Victim and Witness Unit has
19 been most cooperative in trying to secure that that be brought on Friday.
20 That does present a problem for the Defence because we would like to meet
21 with this witness. It also presents a problem -- he just has a passport.
22 We're still waiting for him to get the visa. It's a process that is time
23 consuming. It's also presents a problem for the OTP and the Court because
24 we can't give you the proffers in advance because we still don't
25 specifically, other than what was submitted previously to the Court I
1 believe on the 18th of November of 2002, what it is that they are going to
2 testify so that we could share it all the parties.
3 We would request that those two witnesses, as ordered yesterday,
4 and we're giving the Court the number, 001 and 006, be the two additional
5 witnesses for next week with the five videolink witness that we have.
6 Also, if I may, with all due respect, although we asked this on a
7 couple of occasions, and we were granted this by the Court, we need and
8 would like an opportunity since the case is coming to a close, or nearing
9 a close, the opportunity to meet with our client, Dr. Stakic, more than we
10 have in the past. For two reasons: One, we would like his evaluation and
11 his assessment of the evidence so that it can be incorporated both in our
12 oral and written submissions, but also, two critical witnesses among
13 others, namely the experts, will be called in the last ten days of the
14 trial. We most definitely believe we would need his participation, and we
15 would like to inform him at the very least of what the documents and the
16 reports state.
17 Once again, we apologise to the Court very sincerely, to the OTP,
18 to the staff, the interpreters, and all those involved because of this
19 unpredicted delay in bringing witnesses this week. We were misguided, and
20 our interpretation of the Court's order or notice for two judicial
21 witnesses, we misread it. We're not suggesting the Court was not clear in
22 that order. We were under the opinion and impression, since the Court has
23 the power to have witnesses come when it calls them, and probably can
24 expedite visas and passports to witnesses, we felt that this week, in
25 addition to the witnesses and witness that we had, those two judicial
1 witnesses would be called.
2 Again, we assessed the situation, Your Honours, that if a
3 layperson or a character witness would take somewhere in the neighbourhood
4 of a day to a half a day to conclude his testimony, certainly the two
5 witnesses that the Court has called because of their involvement in all
6 the aspects of the fourth amended complaint would take no less than a day
7 and a half each. In fact, I dare say that we can conclude each of them
8 within three days. That was our mistake. We apologise for that mistake.
9 We can reassure the Trial Chamber that if there are any other
10 speculative reasonings or rationale on the Defence part or uncertainty as
11 to what the orders are or were, we will contact the Court immediately and
12 ask for clarification. Thank you, Your Honours.
13 JUDGE SCHOMBURG: Also to be quite clear on this point, as you
14 already indicated, I think the order couldn't have been more clear. But
15 it was the Defence itself making the submission that it was not possible
16 for them to bring these two witnesses or call these witnesses to The
17 Hague, and no doubt, a court order alone, also taking into account at the
18 time necessary, does not say that the requested country and the persons
19 will, in fact, appear in the envisaged time frame. We discussed it, and
20 it's reflected on the transcript, that it might be necessary to subpoena
21 these witnesses. And until today, we really don't know whether, in fact,
22 they are prepared to come to this Tribunal. Therefore, we can't give you
23 any other hints. But no doubt, the Defence was all the time, and you
24 admitted this and you apologized and we accept this, under the ongoing
25 obligation to call witnesses for this week.
1 But I have to emphasise that it was already last week Wednesday
2 that we discussed it and we informed the Prosecution on this issue, that
3 we asked Defence counsel at least to take care that witnesses should be
4 present on Thursday and Friday and immediately to contact the Victim and
5 Witness Unit last week Wednesday. And there was no holiday here last week
6 Wednesday. Or the possibilities were for the Defence to try to do the
7 necessary related to the Victim and Witness Unit. And unfortunately, I
8 was informed by the Victim and Witness Unit that only this morning, for
9 the first time, the Defence contacted the Victim and Witness Unit on
10 Witness 001. And therefore, our request to have a clarification and that
11 we avoid all these rumours, that we have a clarification and that this
12 should not trouble the atmosphere additionally in the courtroom.
13 So please, make sure that you can - and here, I think the burden
14 of proof is with the Defence - that you in fact contacted already last
15 week the Victim and Witness Unit in order to have available these
16 witnesses. I need not emphasise once again that it's a question of some
17 thousands of dollars per day that have to be spent whether we hear a case
18 or the courtroom stays empty. And therefore, there's a huge
19 responsibility on all of our shoulders.
20 After the break, I have to ask the Prosecution to comment on the
21 question of the belated presentation of the one document of January 1992
22 before we can hand down our decision on the request of the motion of the
23 Defence related to three other documents where the Defence complains that
24 these documents have not been 65 terred. Then we expect an answer or a
25 response - I take it as the right to be heard - to the question whether or
1 not the acts conducted by the Defence during the last days, especially the
2 last motions are adequate or whether it seems from the point of view of
3 the Prosecution necessary to sanction this what we might see or assess as
4 a not adequate way of continuing with the case. You know about what
5 motions I'm speaking, especially the one we discussed yesterday in
7 Then we will proceed after the break with the reading out of the
8 documents tendered by the Defence last Friday. We had no time at that
9 point in time to have them read out by the witness. The Defence has
10 already submitted they do not want, and they do not feel it necessary,
11 that the witness comes a second time. We appreciate this. But we have to
12 assess what is included in these documents we have available in B/C/S only
13 now. I would kindly Madam Registrar to check during the break what is the
14 most appropriate way to have these documents read out in the courtroom,
15 that there are three options. First, that's it read out from the booth
16 extremely slowly; that it's read out in the courtroom in open session or,
17 in order to protect the members of the interpretation unit, that we read
18 it out in closed session. These three options are free. But we have to
19 do this today. And during the break, the Trial Chamber will decide based
20 on the submissions by the parties, which are not consensual ones, whether
21 we proceed with deliberations tomorrow or not.
22 MS. KORNER: Just before Your Honour breaks, there's just one
23 matter I need to raise after the break as well. But can I just ask, did
24 Your Honours see a copy of the Prosecution submission into Trial Chamber I
25 in respect of Mrs. Plavsic?
1 JUDGE SCHOMBURG: May I ask in return, did you receive the
2 document sent to our Trial Chamber that Defence counsel of Ms. Plavsic
3 said they would not be prepared that Ms. Plavsic will testify in this case
4 not before the sentencing judgement in the other Trial Chamber has been
5 handed down.
6 MS. KORNER: No, we didn't.
7 JUDGE SCHOMBURG: This is the last.
8 MS. KORNER: Apparently, we did. But, Your Honour, there is a
9 matter that arises out of this whole scenario, which -- if I could raise
10 after the break.
11 JUDGE SCHOMBURG: I think it's, no doubt, necessary because the
12 case, of course, does not end the 21st of March. We have rejoinder. We
13 have rebuttal. We have rejoinder. We have closing arguments. And there
14 is a likelihood that the judgement in the other case will be handed down
15 before we come to the closing arguments in this case in any event.
16 MS. KORNER: Your Honour, that's not quite the matter I want to
17 raise. But if I know that Your Honours have seen what was said by the
18 Office of the Prosecutor in her case, well that may assist because it does
19 affect some actions that we have to take. So I would like to raise that.
20 JUDGE SCHOMBURG: Absolutely. We all should be prepared to
21 discuss this issue as well after the break.
22 MR. OSTOJIC: If we could only be given a copy of that submission
23 in Courtroom Number I. We did not receive it. So we would be grateful if
24 we could get that copy.
25 JUDGE SCHOMBURG: It should be distributed --
1 MS. KORNER: Your Honour, we can provide the Defence with a copy.
2 JUDGE SCHOMBURG: The trial stays adjourned until half past 3.00.
3 --- Recess taken at 3.01 p.m.
4 --- On resuming at 3.38 p.m.
5 JUDGE SCHOMBURG: Before we start, I have the impression the
6 ventilation system doesn't function as usual today. It's extremely warm
7 in this room. Maybe there could be somebody of assistance. Thank you.
8 Following our deliberations during the break, the Trial Chamber
9 has decided that based on the submissions given by the Prosecution, it
10 makes no sense to enter into new deliberations or discussing legal
11 issues. This would only make sense if both parties would be prepared in
12 the same way really to discuss these legal questions in open court. For
13 the same reasons, the Trial Chamber will refrain from giving any judicial
14 hints in the future. I think there were not judicial but hints enough in
15 the submissions by the parties alerting this Trial Chamber that we have to
16 show even more self-restraint than in the past in order not to endanger
17 this case. We deplore this development, but we can't see any alternative.
18 Let us now turn to the next point. During the break, we learned
19 that it would take a longer period of time, and it would not be possible
20 until 4.30 to read out the documents, and it's easy to understand that the
21 interpreters need time for preparation, that these documents are read
22 out. Therefore, they will be read out only tomorrow morning starting
24 The next question is, once again, and finally: What about the
25 witnesses to come? We learned today that even today, both envisaged
1 witnesses do not have a visa. Therefore, it seems to be doubtful whether
2 they can arrive on Friday, on Monday. If you could give us some better
3 information, it would be helpful.
4 MR. OSTOJIC: This is the first, Your Honour, we hear that it's
5 doubtful whether they can arrive on Friday or Monday. We're under the
6 impression that at the very least, 006 is able to arrive late Friday or
7 Friday afternoon as the case may be. So we expect them if not to be here
8 Friday they will be here Saturday, and they will be, as ordered by the
9 Court, available to proceed next week. But we will double check that and
10 get back to the Court tomorrow morning on that issue.
11 JUDGE SCHOMBURG: And we took into consideration that your
12 submission was that to get a visa, it would take five working days. So
13 please, let us know no later than tomorrow morning what will happen on
14 Friday and on Monday next week.
15 MR. OSTOJIC: Yes, Your Honour.
16 JUDGE SCHOMBURG: Besides the videoconferences, and we appreciate
17 that Defence counsel and Madam Dahuron are prepared to work both next
18 following weekends and during the weeks in taking 92 bis statements in the
20 The final question is now how to react to that -- the Defence has
21 already apologised for not living up to their obligations in calling
22 witnesses this week. We had the problem with this not adequate filing of
23 a request for assigning a presiding officer for 92 bis statements. That
24 has nothing to do with that what is enshrined in the guidelines for taking
25 92 bis statements. And then, in addition, despite of our order how to
1 proceed, we did not even receive a motion requesting the admission of
2 additional witnesses under Rule 73 ter (D).
3 Once again, it took our time that we could -- that we were able to
4 proceed based on a perusal of the list of victims and appendix 1 to the
5 motion by the Defence. Confronted with the question whether or not the
6 time would be ripe for sanctions, I have to give the right or grant the
7 right to be heard to the Prosecution on this issue.
8 MS. KORNER: Your Honour, we have no comment at all to make on
9 that. We consider that that's a matter entirely for the Trial Chamber and
10 not for us.
11 JUDGE SCHOMBURG: Thank you. As I said, it's a right and not a
12 duty to comment on this. We discussed it during the break, and I think we
13 take the Defence by their words. And as we did in the other direction in
14 the past, we leave it at this point in time with a stern warning to live
15 up to all the obligations under the rules in the future, and we will not
16 accept any further delay, save you can justify the delay, and we all know
17 that things can happen that are not foreseeable. But in principle, we
18 have set already the deadlines for the proffers. We have ordered the
19 numbers of witnesses to be called during the next four weeks, and we
20 expect that you fulfill these orders. If not, then unfortunately it
21 will -- it would be necessary to reconsider this issue.
22 One additional point, and it was raised by the Prosecution. May I
23 please hear additional comments from your side when we start the
24 discussion on the hearing of Ms. Biljana Plavsic.
25 MS. KORNER: Your Honour, may I ask that we go into private
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 session, please.
2 JUDGE SCHOMBURG: Please, private session.
3 [Private session]
13 Pages 12401 to 12413 – redacted – private session
12 Page 12414 – redacted – private session
1 [Open session]
2 JUDGE SCHOMBURG: May I hear comments from the Defence on this
3 issue, that we can decide on all the four documents in one decision.
4 MR. OSTOJIC: We have -- the Defence has nothing to add in
5 connection with the document which purportedly bears the signature of
6 Dr. Stakic, other than that which we previously shared with the Court.
7 With the three remaining documents, we continue to stand on our position
8 and our motion that they should be excluded and stricken from the record
9 for the reasons given in our written submission.
10 In addition, as the Court very well knows, on paragraph, I
11 believe, 27 of the fourth amended indictment, the signator of one of the
12 documents is a person who is identified as a co-perpetrator,
13 co-conspirator in this alleged joint criminal enterprise. How that
14 document does not meet a manual or a computer search and is produced to
15 us, we still do not understand and cannot appreciate. We believe that the
16 document was in fact always present, and that they were aware of that
17 document, used that document in other proceedings before the Tribunal
18 against other defendants who are allegedly co-conspirators in this theory
19 of joint criminal enterprise and only were given this document during the
20 Defence case for strategic purposes.
21 We believe that that has caused extreme prejudice to the Defence.
22 And leaving the document and that testimony and references to those
23 documents would continue to be prejudicial to the Defence. So we would,
24 as we have in our written submission, orally, respectfully the request the
25 Court to strike that testimony and all reference to those documents and to
1 deny the documents from being admitted into evidence.
2 JUDGE SCHOMBURG: May I give the judicial hint, in this case
3 limited to this procedural question, of course, for you, it's not only a
4 procedural question, that under our Rules of Procedure and Evidence, it
5 might be that only Rule 95 gives the justification for the exclusion of
6 certain evidence. And we have seen nothing on Rule 95 in your motion.
7 The question of whether or not a document has been 65 terred or not is a
8 totally different question.
9 MR. OSTOJIC: Our application, Your Honour, with all due respect,
10 goes to the significant prejudice, and what we believe respectfully
11 nonetheless to the OTP of a practice of withholding documents that are
12 critical. If they are going to allege, as they do in all eight counts of
13 the indictment, that in fact there was this joint criminal enterprise, and
14 they are more specific than that, they identify co-conspirators by name,
15 by title, and they give us that. They have brought forth no evidence on
16 those alleged co-conspirators on this what I consider to be speculative
17 joint criminal enterprise theory, yet during the Defence case conveniently
18 enough their searches produce documents signed allegedly, authored
19 purportedly by one of the joint co-conspirators. That is extremely
20 significant. The Defence needed and requested those documents.
21 Under no argument or scenario would that document not be a
22 document that should have been produced. We continue to maintain those
23 documents should have been produced. They were not produced. They have
24 caused extreme prejudice to the Defence, and we dare say that we can't
25 wait for the opportunity when our experts appear and more documents will
1 somehow be found and presented to them during their cross-examination.
2 Do we have all the documents for the basis of their complaint and
3 indictment? Or do we only have some documents? We believe that if any
4 other documents are produced, in addition to these that we're discussing,
5 that they also be prevented and prohibited from being introduced as
7 We certainly understand the practice of producing a document which
8 would perhaps impeach a witness or attack his or her credibility. But to
9 produce a document by a third party on an issue that is clearly one that
10 we have debated in these proceedings for months is, in our submission,
11 something and a practice that should not be permitted. And therefore,
12 once again, and I recognise Rule 65 -- I mean Rule 95. Our request goes
13 beyond that. It goes to the spirit and letter of all the rules, and that
14 is to ensure a fair trial to make sure that there is no prejudice.
15 We truly, as we have set forth in our motion, believe that we are
16 proceeding under, by virtue of these documents, a trial by ambush.
17 Surprise tactics that have long ago been rejected, and we don't come into
18 Court and not share or tell your adversaries what the evidence is or is
19 not. We believe those documents fall within that framework. And
20 unfortunately, Rule 95, I believe, the intent of that is that if a party
21 would bring evidence that somehow the adversary would be able to argue it
22 was made not contemporaneous with the time the document states or
23 fraudulent documents or documents under similar such situations. In the
24 instant case, we have a document that has been produced in other cases on
25 theories that the OTP has advocated time and time again that they have
1 never produced a document until two months until the close of the case in
3 We think it is prejudicial. Despite Rule 95, we believe that
4 prejudice and a fair trial would be denied Dr. Stakic by the admission of
5 these documents.
6 MS. KORNER: Your Honour, although we've said everything that
7 was -- I think needs to be said in our written response, there are two
8 things I really need to raise. Your Honours, had we realised that we
9 still had in our possession a signed document by Dr. Stakic, clearly we
10 would have put that document in for handwriting analysis.
11 But second, there's this: Your Honour, Mr. Ostojic complains that
12 we have been withholding documents. Your Honour, we've offered
13 Mr. Ostojic and Mr. Lukic the opportunity to inspect every single
14 document, all hundreds and thousands, under provisions of Rule 66 (B).
15 They declined the opportunity. And may I say, I'm not surprised apart
16 from them having to give us the documents.
17 Your Honour, it is one of those things that with so many documents
18 relating to this particular area, the Prosecution had to make a selection
19 of the ones that they considered relevant to prove their case. If the
20 Defence then call a witness who raises something that wasn't foreseen, for
21 example, that they were going to be concentrating on the dismissals from
22 the military, well then I'm afraid, Your Honour, it would be failing in
23 our duty were we not to bring before Your Honours and the Court those
24 documents which show that that testimony can in some way be undermined.
25 It is not ambush. Ambush is when we deliberately withhold
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 documents that we know will implicate the defendant in the offences. We
2 didn't know what witnesses were going to be called. We didn't actually
3 know what most of them were going to say even just before they were going
4 to say it.
5 And so, Your Honour, this is under no circumstances an ambush.
6 JUDGE SCHOMBURG: Thank you. We will decide as soon as possible
7 and practical. Before closing today's session, one question: As to the
8 fact that we have lost now effectively two additional days, my question is
9 for both parties: Would there be any obstacle to have once again in
10 deviation from the scheduling order a hearing on Friday, the 7th of
11 March? Taking into account that we still have 15, 1-5, live witnesses
12 before us.
13 MS. KORNER: No objection, Your Honour.
14 MR. OSTOJIC: No objection, Your Honour.
15 JUDGE SCHOMBURG: May I then ask Madam Registrar to find out
16 whether there is a possibility to continue with the hearing on Friday, the
17 7th of March.
18 Then finally, it is -- I regard it as my duty, due to the
19 complaints made by Defence counsel, may I ask Dr. Stakic in person, are
20 there still any complaints in relation to the Detention Unit, in relation
21 to the problems bringing you to the Tribunal and bringing you back, and
22 especially the question, as I read out previously, that it was granted by
23 the United Nations Detention Unit that whenever you request, and coming
24 late back to the Detention Unit, that the mandatory hour of fresh air
25 would be granted to you, and a hot meal would be granted to you on
1 request? Are there any ongoing problems?
2 THE ACCUSED: [Interpretation] Your Honours, we did not work last
3 week, and it was a welcome decision because I could have a rest. So it
4 seems to confirm that I was simply too tired and that that was the
5 reason. After five or six days, a doctor came, a doctor of the Detention
6 Unit, came to pay me a visit. And also one of the officers in the prison
7 administration informed me that I was entitled to exercise that right.
8 That is, to have my fresh air outside the usual hours, so that at this
9 particular moment, I really have no other complaints.
10 I'm sorry. As for the transportation, I believe that it happened
11 only that day, and it is simply things like that can happen.
12 JUDGE SCHOMBURG: Thank you for these comments, Dr. Stakic. And
13 if there is no other issue to be dealt with today, then this concludes
14 today's hearing. And the trial stays adjourned until tomorrow, 9.00.
15 --- Whereupon the hearing adjourned
16 at 4.36 p.m., to be reconvened on Thursday,
17 the 20th day of February, 2003,
18 at 9.00 a.m.