Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Friday, 12 June 2009

 2                           [Status Conference]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 3.33 p.m.

 6             JUDGE HARHOFF:  Thank you.  And welcome again to everyone in and

 7     around the courtroom.  Welcome to the Prosecution, and welcome to the

 8     Stanisic Defence and to Mr. Stanisic himself.

 9             Mr. Registrar, would you be good enough to announce the case.

10             THE REGISTRAR:  Yes, Your Honour.  Good afternoon, Your Honour.

11     Good afternoon to everyone in and around the courtroom.  This is case

12     number IT-08-91-PT, the Prosecutor versus Mico Stanisic and

13     Stojan Zupljanin.

14             Thank you, Your Honour.

15             JUDGE HARHOFF:  Thank you, Mr. Registrar.

16             Can I have the appearances for the Prosecution.

17             MS. KORNER:  Good afternoon, Your Honour.  It's Joanna Korner,

18     Thomas Hannis, and Crispian Smith on behalf of the Prosecution.

19             JUDGE HARHOFF:  Thank you very much.

20             And for the Defence.

21             MR. ZECEVIC: [Interpretation] Good afternoon, Your Honour.

22     Slobodan Zecevic and Marlon Orozco for Stanisic Defence.  Thank you.

23             JUDGE HARHOFF:  And welcome to you.

24             And for the Zupljanin Defence.

25             MR. VISNJIC: [Interpretation] Your Honour, Tomislav Visnjic and

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 1     Brent Hicks legal advisor, still.

 2             JUDGE HARHOFF:  We have just concluded an Ex Parte session -- oh,

 3     sorry, yes.

 4             Mr. Pantelic, you're also on the line.  Could you identify

 5     yourself.

 6             MR. PANTELIC:  Yes, Your Honour.  Good afternoon to all

 7     colleagues which are just entered the court, and I can hear you clearly.

 8     Thank you.

 9             JUDGE HARHOFF:  Thank you, Mr. Pantelic.

10             As I was saying, we have just concluded an Ex Parte session, in

11     which we dealt with the issue of counsel and representation for

12     Mr. Zupljanin.  And the results of this Ex Parte hearing was that I shall

13     recommend to the Chamber that Mr. Pantelic assumes the role as lead

14     counsel for Mr. Zupljanin, and that Mr. Visnjic withdraws from the case;

15     and to replace Mr. Visnjic, as co-counsel the new Defence team for

16     Mr. Zupljanin, will identify as soon as possible a choice of new

17     co-counsel, so that the future Defence team for Mr. Zupljanin is then

18     constituted of Mr. Pantelic, as lead counsel, and new co-counsel, whom we

19     shall learn the identity of as soon as possible.

20             Also, the acceptance of Mr. Pantelic to assume the role as lead

21     counsel in the case and subsequently in the trial, was conditional upon

22     Mr. Pantelic ensuring that the pre-trial brief for the Defence is

23     submitted according to the Court's schedule, on 21st June --- 29th June,

24     sorry, and that the Pre-Trial Conference will then be held on Tuesday,

25     the 21st of July, and that the trial will begin as planned on Monday, the

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 1     31st of August, and that no delay of the beginning of the trial would be

 2     accepted because of this last-minute change of counsel.

 3             Having said this, I wish to use this opportunity to -- and I have

 4     to add, provided that the Trial Chamber agrees to all of this, and if the

 5     Trial Chamber so does, it remains for me to thank Mr. Visnjic for his

 6     assistance during this case, so far, and to remind him that he is to hand

 7     over all documents in his possession to Mr. Pantelic, and also to make

 8     all observations and internal memoranda and all other documents assembled

 9     by Mr. Visnjic during the preparation of the case to the new Defence

10     team.

11             That was the results of the Ex Parte session, so I hope that if

12     the Trial Chamber goes along with it, then the issue of Defence for

13     Mr. Zupljanin has now been resolved and the trial can move on, or the

14     preparing -- preparation of the trial can now move on.

15             This brings us to the second part of the Status Conference, which

16     is to deal with some of the substantive issues that were raised during

17     the last Status Conference, Tuesday, in which I posed some questions to

18     the Prosecution and also some questions to the Defence.  And I would like

19     now to give the floor to the Prosecution to respond to the questions that

20     I put to them last Tuesday, and, later on, I will give to the floor to

21     the two Defence teams, and I don't know which of the two counsels that

22     are on board for Mr. Zupljanin will reply, but let's cross that bridge

23     when we get there, either Mr. Visnjic or Mr. Mr. Pantelic from Belgrade.

24             Ms. Korner.

25             MS. KORNER:  Well, the question -- the first question that

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 1     Your Honour posed to the Prosecution, which is at pages, really, 26 but

 2     mainly 27 of the transcript, was that we should indicate to the Chamber

 3     and to the Defence which of the four crimes we allege were part of the

 4     original joint criminal enterprise and which crimes came later on in the

 5     development, and to tell the Defence and also the Chamber just how and

 6     when the two accused were brought on notice of the commission of those

 7     further crimes.

 8             Your Honour effectively indicated that you were basing these

 9     questions on the decision by the Appeals Chamber in the case of

10     Krajisnik.  Your Honour, I don't want to go through, at any length, the

11     decision in the Krajisnik case, but effectively, we would submit that

12     what it was saying was that when the Trial Chamber delivers its

13     Judgement, it has to indicate clearly how it came to make the findings

14     and the evidence on which those findings were based.

15             At this stage of the proceedings, subject to the indictment being

16     properly pleaded, and, as Your Honour may be aware, there has already

17     been a ruling on that from the Trial Chamber some time ago, the

18     Prosecution is required to indicate what its case is against both

19     accused, and set that out in the indictment.  And we would submit we have

20     done that, Your Honour, very clearly, in paragraphs 7, 13, and 14 of the

21     indictment.

22             Paragraph 7 sets out what the joint criminal enterprise is and

23     when the joint criminal enterprise, itself, came into existence.

24             Paragraph 13 clearly states, Your Honour, the position that in

25     respect of the crimes alleged, all of them were within the objective of

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 1     the joint criminal enterprise; what has become to be known as JCE 1.

 2             It is our position that will there be evidence which allows the

 3     Trial Chamber to make findings that all the crimes alleged were within

 4     the original objective of the joint criminal enterprise.  The problem in

 5     the Krajisnik case, as identified by the Appeals Chamber, was that they

 6     did not, in their Judgement, indicate what was the evidence which allowed

 7     them to make those findings.  And our case is this:  That the accused,

 8     because of their position, shared the intent with the other members of

 9     the joint criminal enterprise to commit those crimes, and that's all

10     those crimes that Your Honour identified.

11             If, however, having heard the evidence - I emphasise the word

12     "evidence" - the Trial Chamber is not satisfied that all the crimes were

13     within the original objective, then the Prosecutor's position is that the

14     remainder of the crimes were foreseeable consequences of the execution of

15     the joint criminal enterprise; in other words JCE 3.

16             JUDGE HARHOFF:  And that's what you have in paragraph 14?

17             MS. KORNER:  Yes, exactly.

18             Your Honour, obviously, if the Prosecutor does not satisfy the

19     Trial Chamber on either of the two limbs, then it is a question of

20     looking at the evidence under the liability under 7(1) of the Statute.

21     And if, on the evidence, the Trial Chamber decides that, although one or

22     more of the crimes was not within the original objective but that members

23     of the joint criminal enterprise, including either or both accused,

24     acquired knowledge of the crimes being committed and took no effective

25     measures to prevent the recurrence of such crimes, nonetheless persisted

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 1     with the execution of the plan from that point on, those crimes would

 2     come within the purview of the joint criminal enterprise in its first

 3     form.

 4             Your Honour, what we say, we emphasise it's all a matter of

 5     evidence, and it's not, we would submit, a matter for decision at this

 6     stage.  If the evidence, when it's heard, falls short of what is

 7     required, an action can be taken by the Trial Chamber at the stage of the

 8     Rule 98 bis submissions, that's the end of the Prosecution case or, of

 9     course, at the end of all the evidence.

10             Your Honours, the second part of the question:  How and when were

11     the accused brought to be on notice of the further commissions of the

12     crimes, again, that's a matter of evidence.  Your Honours, that would in

13     any event only arise, really, if the Trial Chamber were not satisfied

14     that, one or more of the crimes didn't fall within the original joint

15     criminal enterprise.

16             So we say, at this stage, our position is clearly as we indicted

17     them; otherwise, we wouldn't have indicted them, that all the crimes come

18     within the JCE 1.

19             Your Honour, I hope that makes the position clear.

20             JUDGE HARHOFF:  Thank you, Ms. Korner.  It certainly does.

21             But can I just put one clarifying question.  I understood if the

22     evidence adduced at trial does not support the existence of a joint

23     criminal enterprise, then the fallback position would be just ordinary

24     responsible under Article 7(1).

25             MS. KORNER:  Yes.

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 1             JUDGE HARHOFF:  And a subsequent alternative to that, 7(3).

 2             MS. KORNER:  7(3).  Yes, obviously.  I'm sorry, I meant that as

 3     an obvious sum.

 4             JUDGE HARHOFF:  This clarifies the issue - at least for me - and

 5     I was certainly not looking for any decision but just to have this

 6     clarified in the indictment because it wasn't clear to me at least.

 7             MS. KORNER:  Your Honour, would Your Honour wish me to go on to

 8     deal with the question as to the number of incidents which was the second

 9     question or --

10             JUDGE HARHOFF:  Let's wait until we have heard what the position

11     of the Defence teams is on this issue, because my question to the Defence

12     teams and to the accused was whether you would be ready to accept the

13     commission of the crimes without any implication about who committed the

14     crimes.  Because if you were able to accept the fact that these crimes

15     were, indeed, committed, then we could narrow down the scope of the trial

16     exclusively to looking at who committed the crimes and to -- thereby to

17     establish any possible link or lack of link between the crimes and your

18     functions in your positions during the conflict.

19             But let me first have a brief indication from the two Defence

20     teams, and I -- I'll address myself to you first, Mr. Zecevic.

21             MR. ZECEVIC:  Yes, Your Honour.  We have prepared a submission on

22     this matter, but if you want to shorten it, we can do that also.

23             JUDGE HARHOFF:  It depends on how long it is.

24             MR. ZECEVIC:  Well, it's one page.  It's not really --

25             JUDGE HARHOFF:  No, go ahead.

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 1             MR. ZECEVIC:  Okay.  For the purposes of my client, I will talk

 2     in Serbian, please.

 3             JUDGE HARHOFF:  Yes.

 4             MR. ZECEVIC: [Interpretation] Your Honour, Mr. Stanisic has again

 5     looked all aspects of the case in keeping with your instruction issued on

 6     the 8th of June at a Status Conference.  Before we present our position,

 7     I would like to present a couple of observations that I deem to be

 8     important for this issue.

 9             The Defence wants to express its concern with regard to the

10     position of our learned friends from the Prosecution, which is contrary

11     to the intention of this Trial Chamber, to expedite the proceedings.  We

12     are saying this because we don't have any other way to explain the fact

13     that in the pre-trial brief, the Prosecution proposes 39 completely new

14     witnesses, which amounts to one third of the total number of the

15     witnesses.  They also propose 689 new pieces of evidence, which

16     constitutes some 7 gigabytes or one fourth of all the evidence disclosed

17     so far according to Rule 66 and 68.

18             In its submissions, the Stanisic Defence assumes such

19     developments especially underlying the role and the obligation of the

20     Pre-Trial Chambers to protect the defence of such practices.  However,

21     besides trying to be convinced that the concerns are unfounded, there was

22     no understanding on the part of the Trial Chamber -- Chamber.

23             Now that we see that our concerns have, indeed, been justified,

24     this actually means that the months of our work in the pre-trial stage,

25     in the face of very modest funds, have been spent on the witnesses that

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 1     will not appear in court and on studying documents that will not be used

 2     because the Prosecutor's office, at the eleventh hour, changed its

 3     decision and the strategy of presenting its evidence.  I'm afraid that

 4     the conclusion is unilateral.  If this Trial Chamber, this

 5     Pre-Trial Chamber allows the Prosecution to proceed with these practices,

 6     then I'm afraid that the Defence will not be ready to start on the 31st

 7     of August this year, because we will physically not be able to study all

 8     the documents that has been submitted and to prepare for the new

 9     witnesses that have been announced.

10             As regards your request, Your Honour, Mr. Stanisic's Defence has

11     consulted the accused and concluded that we will adhere to the positions

12     from the Status Conference that was held on the 8th of June, according to

13     Rule 65 ter.  And the positions are as follows:

14             Under 1, all the Defence is aware of the specific situation of

15     the Tribunal due to the closing strategy, the integrity of the trials,

16     and the rights of the accused for a just trial should not be bypassed as

17     a result of that.  Article 19 of the statute guarantees every accused

18     right to just trial and the only relevant -- the deadline is the Defence

19     of the accused who has the right to expeditious trial and to have his

20     trial begin without any delays.

21             There are no limitations upon the duration of the trial.  The

22     principle of justice have to be above and beyond the principle of cost

23     effectiveness and expeditiousness of the trial.

24             Under 2, the length of the trial is determined by the scope of

25     the charges in the indictment and the proposed evidence that the

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 1     Prosecution intends to present in order to prove the guilt of the accused

 2     beyond any reasonable doubt.

 3             Under 3, the Defence completely agrees with your position

 4     presented at 65 ter conference and the Status Conference that ensued

 5     after that, and that is that the key issue here is the link between the

 6     events and the accused sitting in this courtroom.

 7             However, the allegations in the indictment are not nearly

 8     focussed on that key issue.  They go much beyond and much deeper than

 9     that.  Just to illustrate my point, let me say briefly, and let me just

10     list some of the allegations from paragraph 11 or Count 11 of the

11     indictment, in which the Prosecution lists the alleged ways in which my

12     client participated in the joint criminal enterprise and thus committed

13     the charges that are raised against him.

14             Under A, participating -- it is alleged here that Mico Stanisic

15     committed the following crimes in the following way:  Under A,

16     participating in the formation of the Bosnian Serb bodies and forces that

17     implemented the forcible takeovers of the municipalities.

18             Under B, participating in the development of Bosnian Serb policy

19     at the leadership level, in order to secure the takeovers of the

20     municipalities and forcible removal of the non-Serb population.

21             Under C, communicating and coordinating with Bosnian Serb

22     political figures at all levels - thank you very much - from the local

23     level, to the republican level, and all other Serb forces in order to

24     facilitate the implementation of the objectives of the JCE.  All the

25     things that I have just listed refers to a total of 20 municipalities in

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 1     the territory of Bosnia and Herzegovina in 1992.

 2             From this point of view and from this aspect, I'm sure that the

 3     Trial Chamber will agree with the Defence when we say that the possible

 4     acceptance and the agreement of the Defence to accept proof on the

 5     factual basis of crime is unacceptable; and, ultimately, it is not

 6     possible, because it would indirectly mean that we accept the

 7     responsibility of the accused, which is contrary to the position of the

 8     accused and his Defence, and that is that the accused is not guilty on

 9     any of the charges, and that's how he pleaded, not guilty.

10             The Defence would like to point out that it is also totally

11     unacceptable to accept and to agree the allegations on the crime basis

12     which, to a large extent, are largely incorrect, deliberate, and

13     arbitrary and identical.  Victims appear in several different locations.

14     Just to illustrate this point, I would like to mention that there are

15     many such examples in the confidential annex to the indictment, Annexes A

16     and B.  I'm not going to mention any names, of course, because it is all

17     confidential.  There are over 60 such names in those annexes.

18             And let me conclude by saying this:  For the aforementioned

19     reasons, the Defence believes that the only proper address that we can

20     approach in order to curtail and focus these proceedings and bringing

21     them down to the key issues as to -- as regards the responsible of the

22     accused and establishing beyond any reasonable doubt that there was such

23     guilt, are our learned friends from the Prosecutor's office.

24             The situation in it case as follows:  Before this Trial Chamber

25     there is a proceedings that is still pending upon the request of the

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 1     previous Pre-Trial Chamber.  That Pre-Trial Chamber requested from the

 2     Prosecutor's office to reduce the indictment.  This was done on the 24th

 3     of April, 2008, that's when these proceedings started, and for that

 4     reason our suggestion to the Trial Chamber would be as follows and we

 5     accept all the reasons that the Trial Chamber has proposed, and also we

 6     would like to offer our willingness to cooperate fully to the extent

 7     possible.

 8             Our suggestion, therefore, would be for the Trial Chamber to

 9     appeal to the Prosecutor's office once again and ask them to act upon the

10     request that was issued on the 24th of April, 2008, and reduce the

11     indictment; and should the Prosecutor's office deny that request and

12     suggestion, then the Trial Chamber has the possibility to use its

13     authorities pursuant to Article 73 bis (3) [as interpreted].

14             Thank you very much, Your Honour.

15             [In English] Intervention in the transcript.  I said 73 bis (D)

16     and (E); D like Devon and E like Europe.  Thank you.

17             JUDGE HARHOFF:  Thank you, Mr. Zecevic.

18             If I understand your intervention correctly, there are basically

19     two observations.  And I'm just putting it to you in order for you to

20     confirm -- you may sit down.  To confirm whether I have understood you

21     correctly, the first observation is that, in any case, so many new

22     witnesses and so many new documents have been offered to you that you

23     will have a difficulty in meeting the plans to commence trial in

24     September or August.  And the second observation is that it is your

25     position that you will be unable to accept the commission of the crimes

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 1     because that will entail, under the joint criminal enterprise, the

 2     responsible for your client of those crimes, so it would amount to,

 3     basically, a guilty plea, which, of course, are you not required to make.

 4             Is that correctly understood?

 5             MR. ZECEVIC:  That is correct Your Honour.

 6             JUDGE HARHOFF:  Thank you.

 7             MR. ZECEVIC:  The only thing I would add is that it doesn't

 8     necessarily limit itself to joint criminal enterprise because the wording

 9     is such that it would -- if we -- if we stipulate to the crime base, I

10     would assume that -- that in that case, we would be opening a clear path

11     for the Prosecutor for -- for a conviction of aiding and abetting.  I

12     mean, I would need to reassess that, but that is -- that is my -- my

13     position on reflection only, off the top of my head right now.

14             Thank you.

15             JUDGE HARHOFF:  Let me just be clear about this.  If -- if your

16     client were to accept that the crimes were committed, indeed, then your

17     position is that because of the way these crimes had been charged, that

18     is to say, because of the joint criminal enterprise, your client would

19     immediately be held responsible for them, by virtue of the joint criminal

20     enterprise.

21             Am I to understand you, that your position is that had the joint

22     criminal enterprise not been charged -- been charged, then your position

23     might be different, because, in that case, what you would have to -- to

24     prove during trial would only be that the crimes were committed by people

25     who were not under responsibility of your client; is that correct?

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 1             MR. ZECEVIC:  Let me consult once again, if I correctly

 2     understood.

 3             The first part is definitely correct.  That is our view that due

 4     to the wording of the indictment, it is -- it is -- it potentially

 5     creates a risk for us to stipulate to the crime base because it would

 6     amount almost to the change of the plea.  That is -- that is correct.

 7             As regarding the aiding and abetting, Your Honour, it is -- we

 8     have seen -- there has been a number of cases in this Tribunal.  There is

 9     Perisic case, which is -- there has been recently the Ojdanic case where,

10     although these generals were members and the leaders of the army units.

11     In Milutinovic, they have been found guilty for aiding and abetting the

12     police.  So this is the situation which would be contrary to our

13     situation in -- in this case.  Therefore -- therefore, I -- I'm not -- I

14     mean, at this point, if you give my some time, I might be able to -- to

15     clearly explain myself why I think that -- that the -- there is a certain

16     question mark on -- on the allegations and the charges of aiding and

17     abetting, and the connection between aiding and abetting and stipulation

18     to the crime base.  I might not be able to articulate myself properly

19     because I --

20             JUDGE HARHOFF:  No, no.  I fully accept that.

21             MR. ZECEVIC:  Thank you, Your Honour.

22             JUDGE HARHOFF:  And, indeed, I will give you more time.  I will

23     come back to there in just a while.

24             But the issue is, you see, that the commission of these crimes

25     has already been established in a number of other Judgements by this

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 1     Court.  And not only have they been established in Trial Chambers'

 2     Judgements, but those Judgements have been confirmed on appeal.  So it's

 3     very hard to -- to completely disregard the factual commission of the

 4     crimes.  Unless you're able to prove that these crimes were never

 5     committed, in that case, of course, I understand your position.  But the

 6     focal point of your attempt to have your client acquitted, in accordance

 7     with his plea, is that you're able to prove that the crimes were

 8     committed by others; that is to say, that the crimes were committed by

 9     persons not under his control, or, if they were committed by members of

10     MUP, that they were committed without his knowledge, that he knew nothing

11     about it, and, therefore, couldn't prevent it.  And perhaps that he took,

12     subsequently, measures to punish once he had learned about that.

13             In that case, your client will be acquitted, of course.  But it

14     is two different scenarios, and I'm just trying to understand what the

15     position of the Defence is, because it seems to me that it all hinges up

16     on the existence of the joint criminal enterprise.

17             Ms. Korner.

18             MS. KORNER:  Can I assist, and it may be of some assistance if we

19     look at it in the practical reality of what would happen.  Aside from

20     what Your Honours has already said, that all of these crimes have been

21     through other cases, and it's really what happened in cases that I know

22     Mr. Zecevic is familiar with.  You call the witness to give evidence of

23     the crime.  He is occasionally able to identify the names of the

24     perpetrators but more often says it was soldiers, people in uniform, or

25     police.  Mr. Zecevic, on his own instructions, would be unable to

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 1     challenge that evidence, because, clearly, it's not suggested that his

 2     client, Mr. Stanisic, took part or was there or was specifically ordering

 3     a particular killing; and, therefore, the witness would give the evidence

 4     and go away again.  So, to all intents and purposes, the fact that this

 5     crime happened would be established, and as Your Honour has rightly

 6     pointed out, that doesn't in any way implicate Mr. Stanisic, unless we

 7     can prove that he had knowledge in advance, specifically ordered, or

 8     having found out about it, failed to take any measures to investigate or

 9     punish.

10             And so, therefore, it's not accepting Mr. Stanisic's guilt.  He

11     is not changing his plea.  It is merely effectively accepting that what

12     the witness has said is correct and which has already been established.

13             And I'm not altogether sure that that is clear to Mr. Stanisic

14     and to Mr. Zupljanin.

15             JUDGE HARHOFF:  Well, that depends, because if the Defence is

16     able to provide evidence that the witness's observation about policemen

17     being present is incorrect, that -- that the -- the Defence may be able

18     to come up with other evidence to suggest that there were no MUP forces

19     present.

20             MS. KORNER:  Yes --

21             JUDGE HARHOFF:  In that case, of course --

22             MS. KORNER:  Absolutely.

23             JUDGE HARHOFF:  There you have it.  That's Mr. Zecevic's case.

24             MS. KORNER:  Absolutely, what we're saying, not so --  for the

25     people involved, clearly there may well be cross-examination if they have

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 1     evidence to -- for the actual crime itself, the actual killings, the

 2     detention camps being set up -- being set up, in fact, is likely to be a

 3     subject maybe of challenge in some cases.  But the actual fact of the

 4     offence is not the people who committed them - there may be challenge

 5     there - but the offences themselves, acceptance of that would not

 6     implicate Mr. Stanisic or Mr. Zupljanin.

 7             JUDGE HARHOFF:  I agree.

 8             MR. ZECEVIC:  Your Honour, the two -- there are two things which

 9     would like to stress out.  First of all, I don't think that it is for the

10     Defence to prove.  It is for the Prosecution to prove beyond a reasonable

11     doubt.  That's number one.

12             The second thing, it -- my client is completely informed about

13     what is the issue here, and I resent that if Ms. Korner thinks that we

14     didn't inform the clients properly or it was suggested, or maybe I

15     misunderstood.

16             JUDGE HARHOFF:  [Microphone not activated]

17             MR. ZECEVIC:  Okay, the third thing, Your Honour, the problem is

18     not -- it looks very nice when it's -- when it's a simple thing.  But

19     it's not simple.  If the Prosecution would stipulate with us who can be

20     considered as a member of MUP in 1992 or Ministry of Interior, in 1992,

21     according to the law and according to the regulations, and then we agree

22     that these people are those people that Mico Stanisic and the other

23     accused have effective control over, then we might be able to talk.

24             Because, Your Honour, with all due respect, if the witness comes

25     and says they were in blue uniforms, the suggestion is that they were

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 1     police.  The members of police.  But I'm -- I'm 100 per cent sure.  I

 2     mean, just theoretically, and I know for sure that there has been a

 3     number of people who dressed in different uniforms which were readily

 4     available for everybody.  It doesn't mean that if he is wearing a blue

 5     uniform that he is a member of police, and so on and so on.  It is much

 6     more complex question.  Now I say, we are ready to talk, if the

 7     Prosecutor is willing.  But that, again, comes to the narrowing in this

 8     case, focussing it.  We are ready to do that.

 9             JUDGE HARHOFF:  Thanks, Mr. Zecevic.  This is exactly why we are

10     having these conferences.

11             May I make two small observations.  The first is that, in respect

12     of your comments, that it is for the Prosecution to prove.  You see,

13     under Rule 94 (B), there is an possibility that the Chamber could take

14     judicial notice of adjudicated facts.  That is to say, that they could

15     take judicial notice of the fact that the crimes were committed because

16     it has already been established by a Trial Chamber and confirmed at the

17     Appeals Chamber.

18             This creates what we call a rebuttable presumption, so that,

19     unless you can tell us otherwise then we will go along with the fact that

20     the crime was committed.

21             So that was my comment in respect of -- of the burden of proof.

22             The other issue that I wanted to raise was that I would invite,

23     again, the Prosecution and the Defence teams to sit down and clarify

24     these -- these matters.  If there is any substantial disagreement about

25     who actually was comprised by the MUP forces, then please, to the

Page 54

 1     parties, unless you have already done that, then sit down and try and

 2     clarify this matter.  At least clarify what you can agree on and then we

 3     can see about the points in which you disagree.

 4             MR. ZECEVIC:  Well, Your Honour, I believe my colleagues from the

 5     Prosecutor will confirm that we have been talking, but due to the

 6     situation with the Zupljanin Defence, it didn't make much sense to talk

 7     between Stanisic and the Prosecutor and not with Zupljanin Defence,

 8     because it didn't change much.  From the perspective of the length of --

 9     length of trial and all that, if we have an agreement then we don't have

10     agreement [sic].  Now, hopefully, when the Zupljanin Defence is formed,

11     we are ready to -- to continue talking to Prosecutor on all questions.

12             MS. KORNER:  Your Honour, I can confirm that's right.  We haven't

13     been able to have any meaningful discussions because of the lack of --

14     no, lack.  Problems with the Zupljanin Defence.

15             JUDGE HARHOFF:  I understand.

16             And allow me to just bring up one issue which I should have drawn

17     your attention to at the beginning of this session; namely, to ask

18     Mr. Pantelic and Mr. Zupljanin if the conditions that I assumed at the

19     beginning of this session, if they are accepted by both Mr. Zupljanin and

20     Mr. Pantelic; namely, that Mr. Pantelic will assume the role as lead

21     counsel, on the condition that the pre-trial brief will be submitted

22     according to the schedule, and that the Pre-Trial Conference will take

23     place as scheduled in July, and that the trial will commence on the 31st

24     of August, and that no delays will be accepted because of the counsel

25     issue.

Page 55

 1             Have I understood correctly, Mr. Zupljanin, and Mr. Pantelic,

 2     that these are conditions that you have accepted?

 3             Mr. Pantelic.

 4             MR. PANTELIC:  Yes, I was just waiting.  I didn't know who will

 5     get the floor, Your Honour.  Well, that is correct understanding.  I can

 6     confirm all what you said.  Thank you.

 7             JUDGE HARHOFF:  Thank you very much.

 8             And is this acceptable to you as well, Mr. Zupljanin?

 9             THE ACCUSED ZUPLJANIN: [Interpretation] Yes, it is acceptable,

10     sir.

11             JUDGE HARHOFF:  Thank you very much.  Then this is clear then,

12     clarified.  And forgive me for forgetting to bring it up at the beginning

13     of this session, but now that matter has been settled.

14             So in light of this, I would invite, as soon as possible,

15     consultations between Mr. Zecevic and Mr. Pantelic and the Prosecution's

16     team to have these things sorted out, and what I expect from you is a

17     report at the next 65 ter conference or the next 65 ter conferences,

18     because there's going to be a whole series of them from now on, at least

19     on the points that you two agree on and the points that you disagree on.

20             MR. ZECEVIC:  I understand, Your Honour.

21             MS. KORNER:  Your Honour, certainly we will be.  I hope be able

22     to reach agreements on some points.  Can I just say, so that it's on the

23     record, we're a bit concerned about the suggestion that seems to be

24     happening at the moment that there is going to be challenge to the

25     adjudicated facts which have already been ruled on and which the

Page 56

 1     Trial Chamber has accepted.  And in light of the Lukic case, if there is

 2     to be such a challenge, perhaps that is something that ought to be

 3     indicated in the briefs submitted by the Defence so that we all know

 4     where we are.

 5             JUDGE HARHOFF:  I would assume that to be raised by the Defence

 6     teams.

 7             Mr. Pantelic, you have heard that what has been said, and now we

 8     have heard from the Stanisic Defence team what their position is on the

 9     question of whether agreement could be reached on the commission of the

10     crimes without taking any position about who did the crimes.

11             Can I have your observations on this?  Maybe you should, at

12     first, perhaps, indicate whether you have had a chance to speak to

13     Mr. Zupljanin about this, and if you have then what is your position on

14     this matter?

15             MR. PANTELIC:  Yes, Your Honour I was in position to discuss that

16     issue, in light of the discussions on, I think, it was Tuesday, this

17     Tuesday Status Conference, and for the record, I can confirm that I fully

18     concur with my learned colleague, Mr. Zecevic, with his submission, and

19     that basically our position is the same, the position of Mr. Zupljanin

20     Defence.

21             We are really catched by big surprise, knowing that only two

22     months before the start of the trial we have additional -- let's say one

23     third number of witnesses, and it's a matter for sure that should be

24     discussed between two parties.  Well, there are several ways how maybe we

25     could resolve it, but don't take me -- you know, at this stage, it's too

Page 57

 1     early to commit ourselves to some issues, so just take me very generally,

 2     that maybe the way out would be to start with the Prosecution case in

 3     certain order of witnesses, let's say experts and then to postpone these

 4     28 or 30 witnesses for the later stage of Prosecution case, so Defence

 5     will have enough time and resources to overcome this really embarrassing

 6     situation that also relates to the -- this huge number of documents.

 7             Acting in last more than 13 years before the ICTY, I must say

 8     with great regret that the so-called Prosecution darling case, meaning

 9     JCE, is still in existence, and that it's really a complicated situation

10     -- it is a complicated situation for the Defence and also for the

11     defendants.  It's a matter for judicial discussions, of course, and legal

12     discussions, but I think in light of what Mr. Zecevic just mentioned that

13     this Trial Chamber should instruct and have a precise direction to the

14     OTP to narrow the indictment, point number 1.

15             Point number 2, to instruct them, in light of the Krajisnik

16     appeal decision, and in light of the worldwide jurisprudence regarding

17     the JCE to plead, not JCE in this particular case, because it's too

18     large.  As I said, it's so large that it's almost impossible to -- to

19     defend our clients.  But, rather, to go to the, so to say, continental

20     legal jurisprudence and to maybe plead some theory of accessory or

21     co-perpetrators, and in that case maybe we could be more efficient in

22     terms of particular crimes or particular circumstances or perpetrators,

23     et cetera, et cetera.  In case that the Prosecution will proceed with its

24     darling case being JCE, then I'm afraid, but I can tell you, Your Honour,

25     that we cannot support any of this attempts to find a solution and to

Page 58

 1     narrow the crime base or to -- to find some -- some agreements on that.

 2     And, finally, according to the Rules and according to the rulings of this

 3     Trial Chamber, you always have possibility to rule on the issue of

 4     adjudicated facts and then Defence will respond accordingly.

 5             Thank you, Your Honour.

 6             JUDGE HARHOFF:  Thank you, Mr. Pantelic.

 7             It is true that the Trial Chamber can rule not only on taking

 8     judicial notice of adjudicated facts under Rule 94 (B), but also that I,

 9     as the Pre-Trial Judge, have a possibility of instructing the Prosecutor,

10     under Rule 73 bis to shorten the scope of the trial and the number of

11     witnesses.  I'm fully aware of this power, and I intend to use it, in

12     case we are not able to otherwise finding a way to focussing this trial

13     and narrowing it down.

14             But let me be perfectly clear about what you have just said,

15     Mr. Pantelic.  Are you suggesting -- and I'm asking, because this is the

16     way that I have understood what you have just said, are you suggesting

17     that if Prosecution were to drop the charges for -- under joint criminal

18     enterprise, then you would be in a position to accept the commission of

19     the crimes, which are raised in the indictment, or at least a substantial

20     number of these crimes?

21             Is that what you were suggesting.

22             MR. PANTELIC:  Generally, Your Honour, you understood me well.

23     The condition for considering the issue of crime base is, at this stage,

24     I'm just saying, it's an issue that we have to develop and to discuss.

25     But, at this stage, if the Prosecution will drop the charges of and the

Page 59

 1     theory of JCE to exclude any word from the indictment regarding JCE and

 2     this concept which is absolutely wide, large, and practically unavoidable

 3     for any of the -- of the accused persons or defendants, then if we have a

 4     new indictment with a new wording with a new theory of -- of Prosecution

 5     case, which is completely apart from concept of JCE, then we could

 6     proceed and to -- to, let's say, make the analysis and to confirm that in

 7     such -- in various regions and -- and, I don't know, circumstances, and

 8     time-frames, certain crimes committed.

 9             Just for the record, Your Honour, I was not able to discuss in

10     details that matter with my client, Mr. Zupljanin.  It is just my

11     analysis and my understanding of this particular issue, but, of course, I

12     will be able to give you more detailed submission after detailed

13     conference with my client, Mr. Zupljanin, of course.

14             JUDGE HARHOFF:  Thank you.

15             I think I should put the same question to Mr. Zecevic.  Are you

16     on board, Mr. Pantelic's -- Pantelic's view of things?

17             MR. ZECEVIC:  I'm not sure, Your Honour, that I understood

18     correctly what Mr. Pantelic -- because I couldn't hear in my earphones

19     the Serbian.  But in any case --

20             JUDGE HARHOFF:  But let me repeat then.  If I understood

21     Mr. Pantelic correctly, he is suggesting that if the Prosecution were to

22     amend the indictment so as to charge the crimes not under JCE, but under,

23     say, the ordinary form of Article 7(1) and perhaps 7(3) in the

24     alternative, then the Zupljanin Defence might go along with the

25     suggestion to accept the fact that the crimes were committed, without

Page 60

 1     thereby taking any position on who committed the crimes or under whose

 2     orders the crimes were committed, but just the mere factual acceptance

 3     that the crimes were committed.

 4             MR. ZECEVIC:  Your Honour, I -- I didn't have the time to consult

 5     with my client as you can imagine.  So it will take me some time to

 6     consult with him and respond to your question.

 7             JUDGE HARHOFF:  I understand.  I accept that.

 8             Now, can I ask both counsels, both you, Mr. Pantelic, and you,

 9     Mr. Zecevic, to -- to consult with your clients as soon as absolutely

10     possible to sort out of -- your position on those -- on this question.

11     And to, of course, raise it with the Prosecution.

12             MS. KORNER:  Your Honour, I think we do have to make our position

13     very clear.  I rarely listen to a more blatant - some people might use

14     the word outrageous - attempt to blackmail a Court into ordering the

15     Prosecution to dispense with a proper, lawful, already considered mode of

16     liability, in order, possibly, to get some agreement on admission of

17     facts that ought not to be in dispute and, moreover, which the Defence

18     knew ought not to be in dispute.

19             Your Honour, our position is certainly that the mode of

20     liability, and that's all it is, and may I say with the greatest respect,

21     that I don't think Mr. Pantelic has properly grasped the concept of joint

22     criminal enterprise as he described it, which is a proper mode of

23     liability for ceasing criminality of both of those defendants.  And,

24     Your Honour, I want to make it absolutely clear, we would not even

25     consider removing the mode of liability of joint criminal enterprise from

Page 61

 1     the indictment.

 2             JUDGE HARHOFF:  Ms. Korner, first of all, thanks for your

 3     position.  I think this is a highly clarifying to my functions as the

 4     Pre-Trial Judge to try and see wherever I can to focus this trial on the

 5     issues that are necessary.  I must say, Ms. Korner that I'm a bit taken

 6     by your suggestion that I'm applying outrageous methods to compel anyone

 7     to do anything.  This is not what I was, in any way, suggesting.  I was

 8     only try to understand the position of Defence, because in the interest

 9     of saving time and reducing this trial to the -- what I think should be

10     focused to the essential points of the trial and to thereby save the

11     resources, I was trying really, honestly to see -- to understand the

12     position of the Defence.

13             MS. KORNER:  Your Honour, I am so sorry.  I clearly didn't make

14     myself clear.  I wasn't for one moment suggesting what Your Honour was;

15     I'm suggesting the Defence are, by saying that if we drop JCE, they're

16     prepared to consider agreeing to crimes -- to the commission of crimes

17     being admitted to.

18             JUDGE HARHOFF:  Isn't that a perfectly acceptable approach for

19     any Defence to try and see if there was any room for negotiation with the

20     Prosecution?

21             MS. KORNER:  Yes.  Your Honour, I don't think that is, no, not in

22     the way it has been put.  Your Honour, in any event, all I was doing was

23     hopefully making it clear that this wasn't something that, as far as we

24     were concerned, would be the subject of negotiation with the Defence.

25             JUDGE HARHOFF:  And thank you very much.  I mean that's the

Page 62

 1     answer to the problem.

 2             MS. KORNER:  [Overlapping speakers] ...

 3             JUDGE HARHOFF:  But I really don't think that the attempt made by

 4     Mr. Pantelic or by Mr. Zecevic was out of order in any way.  I think it

 5     was a perfectly reasonable attempt to bring up a subject with the

 6     Prosecution, and you have given your position and that's the end of it.

 7     I am really surprised by the way you took this, Ms. Korner, I must say.

 8             MS. KORNER:  Well, Your Honour, it may well be that my

 9     sensitivities are a little too raised, in which case, I'm sorry about

10     that.  But it certainly sounded to me as though what was being suggested

11     was that this was a proper way of proceeding.

12             JUDGE HARHOFF:  Well, in any case, the positions are clear, at

13     least to me, where the parties stand in respect of these matters.

14             If you --

15             MR. PANTELIC:  Your Honour.

16             JUDGE HARHOFF:  Yes, Mr. Pantelic.

17             MR. PANTELIC:  I'm sorry to interrupt you, but please can I have

18     short reply to submission of Prosecution.

19             Maybe the intention or understanding of my learned colleague,

20     Ms. Korner, was caused by the close weekend which is coming and maybe she

21     is tired but, please, let me reiterate again my position.

22             The theory of JCE is absolutely unfounded in this particular case

23     of Mr. Zupljanin.

24             So I strongly suggest that if the Prosecution will completely

25     drop the charges of JCE, then we could maybe come to the table and to

Page 63

 1     discuss more -- more -- in more details, you know, the issues that you

 2     raise.

 3             And please I instruct, or I suggest, kindly suggest, to my

 4     learned friend, Ms. Korner, to read carefully the separate opinion of

 5     Honorable Judge Liu Daqun in Samac case and also some findings and

 6     conclusions of Mr. Schomburg regarding the JCE and regarding the theory

 7     of continental law.  Thank you so much, Your Honour.

 8             JUDGE HARHOFF:  Mr. Pantelic, thank you very much.  I think these

 9     are matters for discussion in negotiations between the Prosecution and

10     the Defence team.  I don't think we need to -- to argue the case at this

11     point.

12             MR. PANTELIC:  Thank you so much, Your Honour.

13             JUDGE HARHOFF:  I had just a few more observations.  Let me

14     consult with my staff for a minute.

15                           [Trial Chamber and legal officer confer]

16             JUDGE HARHOFF:  Ms. Korner.

17             MS. KORNER:  Really with the second part of the matters that Your

18     Honour raised with me, and also it comes back to the suggestion that's

19     been made that we haven't reduced the indictment.

20             Mr. Zecevic referred to the motion -- the order -- the request of

21     the Trial Chamber on 23rd of April, 2008, that we reduce the indictment.

22     Your Honour, he hasn't referred to -- what we actually did was on the

23     21st of May, we reduced the indictment quite -- quite substantially.

24     And, indeed, that was then -- the indictment was amended -- the

25     Trial Chamber, in fact, never expressed any opinion.  But the amended

Page 64

 1     indictment, which was put in against both accused, reflected the reduced

 2     element, and, Your Honour, I can, if necessary, go through the fact of

 3     the reduction of witnesses, approximately 40 per cent; 43 per cent

 4     reduction in the number of kill incidents; a 55 per cent in the number

 5     detention centres.

 6             Your Honour, this is a case involving one of the most high-level

 7     accused and somebody not much below it.  Your Honour, we have also -- I

 8     don't need to go into details now.  But, Your Honour, we have also in

 9     fact taken, as Your Honour asked us to do, taken another look at some of

10     the incidents, we are prepared, in fact, to remove a further three

11     incidents.

12             Can I finally say this, the incidents which are left, all to a

13     greater or lesser extent, we would submit, on the evidence, reflect the

14     involvement of the police, so that we're not trying to spread them, as it

15     were, to include military actions where there was no police involvement

16     under the theory of joint criminal enterprise.

17             So if I can just say that on that aspect, Your Honour.

18             JUDGE HARHOFF:  Thank you, Ms. Korner.  I was, in fact, going to

19     come to the second question that I put to you last Tuesday.  But I'm also

20     taking notice of your observation that what you have now in the

21     indictment is, or, I understand, is going to be reduced to cover only

22     incidents where the police involvement is clear.

23             Is that correctly understood?  Maybe we should -- let's just move

24     on to the second question and address it head on.

25             MS. KORNER:  Yes.  Your Honour -- the second question that

Page 65

 1     Your Honour asked us was a small group -- there seems to be a small group

 2     of incidents in which the degree of participation, if any, of the police

 3     forces under your command appears to be somewhat uncertain, and so here

 4     is an opportunity for the Prosecution to review its material, and if

 5     there is an incident or a couple of incidents in which, really, the

 6     participation of police forces seems to be utterly unclear, then we might

 7     just simply remove that.  Your Honour, we have done that, we've gone back

 8     and had another look at them.  We are going to remove, if Your Honour

 9     wants to know now.

10             JUDGE HARHOFF:  Yes, please.

11             MS. KORNER:  If you look at the indictment, Schedule B.

12             JUDGE HARHOFF:  Yes.

13             MS. KORNER:  Confidential Annex B.  Sorry, no.  I'm so sorry,

14     Your Honour, I'm looking at the decision.  It is ...

15             In Schedule B, we are going to remove item number 5.

16             JUDGE HARHOFF:  Yes.

17             MS. KORNER:  Item 14.6.

18             JUDGE HARHOFF:  In Schedule B --

19             MS. KORNER:  Schedule B, yeah.

20             JUDGE HARHOFF:  -- of the indictment?

21             MS. KORNER:  Yes.

22             JUDGE HARHOFF:  Ah, right.

23             MS. KORNER:  Did I say --

24             JUDGE HARHOFF:  Sorry, I have it.

25             MS. KORNER:  No, it is five, yes.  Yes, it is five, yes.  Sorry,

Page 66

 1     Your Honour, I'm just being asked -- I wrote something of my own note,

 2     and I'm just being --

 3             JUDGE HARHOFF:  You are proposing to remove the -- understand you

 4     correctly, the killing of a number of men taken from the Novi Izvor

 5     factory.  Is that it?

 6             MS. KORNER:  Yes.

 7             JUDGE HARHOFF:  14.6.

 8             MS. KORNER:  Yes, unless I get an e-mail telling me I've got the

 9     wrong incident, but that's the one I thought.  So that's two.  We're

10     going to reduce two of the killings by two further incidents, Your

11     Honour.

12             In Schedule C, the detention facilities, 5.5, which is Prijedor.

13             JUDGE HARHOFF:  The Miska Glava Dom.

14             MS. KORNER:  Exactly.

15             JUDGE HARHOFF:  Yes.

16             MS. KORNER:  And 8.3, which is in Bileca, the Mose Pijade

17     barracks.

18             And in Schedule D, 17.5, the Novi Izvor factory.

19             JUDGE HARHOFF:  Thank you very much, Ms. Korner.  And I ask the

20     Defence teams to take notice of these suggestions or proposals for

21     amendments of the indictment in their further considerations.

22             May I, now that you have raised these issues, Ms. Korner, put a

23     question to you in relation to the list of witnesses.

24             MS. KORNER:  Yes.  Your Honours, I was hoping to come on to that.

25             JUDGE HARHOFF:  Okay.  Because we see that in the -- in the

Page 67

 1     resumes that you have submitted, and in your list of witnesses, there

 2     seems to be a difference between some of the headings under which you are

 3     introducing the witnesses.  If you take your -- the confidential

 4     Appendix 3, your list of witnesses that was attached to your pre-trial

 5     brief, and look at page 1, we have noticed that, for instance, for the

 6     witness relating to Bileca ...

 7                           [Trial Chamber and legal officer confer]

 8             JUDGE HARHOFF:  Right.  Maybe we should move into private session

 9     for this.

10             MS. KORNER:  Yes.

11                           [Private session]

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 68











11 Page 68 redacted. Private session.















Page 69

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21                           [Open session]

22             THE REGISTRAR:  Your Honour, we're in open session.

23             JUDGE HARHOFF:  Thank you, Mr. Registrar.

24             Ms. Korner, what I was about to say was that when we went through

25     the summaries of the witnesses that you have suggested, it seemed to us

Page 70

 1     that there was still room to reconsider the provision under which these

 2     witnesses would be called and also to consider -- to reconsider the time

 3     available.

 4             I don't know if it is because of the time constraints, I realize

 5     that we have it take a break fairly shortly, whether it would be more

 6     convenient for -- to deal with this matter by asking my staff to simply

 7     contact you.  But for the benefit of the Defence, I would like to give

 8     you just a few suggestions.

 9             In your summary, there's a witness called (redacted).  His

10     number is --

11             MS. KORNER:  Your Honour, we're back in open session.

12             JUDGE HARHOFF:  Yes, should we go into closed session?

13             MS. KORNER:  Your Honour, I think it would be preferable if Your

14     Honour wants to name witnesses, simply the pseudonyms would --

15             JUDGE HARHOFF:  Okay, right.  I will stick to the pseudonyms but

16     I thought this was actually not confidential material.

17             Let's just use the pseudonyms.

18             ST-147, we could suggest, or we would have thought, that this

19     witness would not need to be called live, and if you wish to -- to call

20     him under 92 ter, as you have suggested, we would consider the shortening

21     of the time.  You have asked for two hours, and I think one hour should

22     be sufficient.

23             MS. KORNER:  Yes.

24             JUDGE HARHOFF:  Right.  I'm just going to go through my list for

25     the benefit of the Defence, so that they have an idea of what we have

Page 71

 1     done in order to narrow down the matter.

 2             If we move on to Witness ST-150, we would again ask why you

 3     wished to see this person viva voce, and if you were to see him viva

 4     voce, we would suggest one and a half hours.

 5             MS. KORNER:  [Microphone not activated] in relation to the

 6     witness that Your Honour.

 7             THE INTERPRETER:  Microphone for Ms. Korner, please.  Microphone.

 8             MS. KORNER:  Could we have a redaction before it goes out, if

 9     there is an application for protective measures.

10             JUDGE HARHOFF:  I'm very sorry.  I thought it was all public.

11             MS. KORNER:  No.

12             JUDGE HARHOFF:  And certainly we will have a redaction of that.

13             Witness ST-013.  If you want to have him come under Rule 92 ter,

14     which we would perhaps not think it was that necessary.  But if you want

15     to call him under 92 ter, we would suggest half an hour for this witness.

16             For Witness ST-052, we would suggest a reduction of the time to

17     two hours.

18             And I hope the Defence is following these suggestions closely.

19             For Witness ST-066, we would suggest a reduction to half an hour

20     if you wish it call -- call him under 92 ter.  It's a bit unclear whether

21     he is called under 92 bis or ter, but if you want to call him under

22     92 ter, we would suggest a reduction of the time.

23             MS. KORNER:  It's 92 ter, Your Honour.

24             JUDGE HARHOFF:  Right.  Then our suggestion would be half an

25     hour.

Page 72

 1             Witness ST-062.  It seems to us that the information provided by

 2     this witness is of very general nature.

 3             MS. KORNER:  [Microphone not activated] ... Your Honour, he is

 4     one of the --

 5             THE INTERPRETER:  Microphone for Ms. Korner, please.

 6             MS. KORNER:  He has testified on a number of occasions before.

 7             JUDGE HARHOFF:  Right.  So you -- you will call him viva voce, is

 8     that correct or 92 ter.

 9             MS. KORNER:  No.  No, 92 ter, Your Honour.  One hour we've got

10     down for him.

11             JUDGE HARHOFF:  The next --

12             MS. KORNER:  Can I say straightaway because of the number of

13     times he has testified, we can probably, maybe, reduce that.  But he is a

14     major witness.

15             JUDGE HARHOFF:  Right.  Our suggestion was to reduce it to half

16     an hour.

17             MS. KORNER:  Yes.  We'll certainly look at that, Your Honour.

18             JUDGE HARHOFF:  This is not in any way an attempt to compel or

19     order the Prosecution to do anything at all, just our frank observations

20     about what we would have thought.

21             The same with ST-063.  Also, here, we would have thought that

22     shorter time would be --

23             MS. KORNER:  Your Honour, that goes directly to the accused,

24     Mr. Zupljanin.

25             JUDGE HARHOFF:  Right.

Page 73

 1             MS. KORNER:  That's why he is being called.

 2             JUDGE HARHOFF:  Yes.  Witness ST-073 would seem to me -- or to us

 3     to be providing evidence of a somewhat repetitive nature.

 4             MS. KORNER:  Again, Your Honour, my recollection is that he is

 5     going to give direct evidence against Zupljanin.

 6                           [Trial Chamber and legal officer confer]

 7             JUDGE HARHOFF:  Right.  Our Senior Liaison Officer suggests

 8     wisely that we do this in a different way; namely, that I'll ask her to

 9     put this in writing to both the Prosecution and the two Defence parties

10     so that at least both parties, or all three parties are aware of what the

11     Chamber sort of thought on very initial observation about the suggestions

12     made by the Prosecution, so that we can move on to mother subjects.

13             Time is such that we have to have a break now.  So can I suggest

14     a 15-minute break.

15                           --- Recess taken at 5.05 p.m.

16                           --- On resuming at 5.24 p.m.

17             JUDGE HARHOFF:  Thank you.

18             Yes, I wanted to say before we concluded the first session that I

19     think the most reasonable way of going forward with this is to give our

20     views in writing to both parties so that both parties are understood.

21             Mr. Pantelic, are you still on the line?

22             MR. PANTELIC:  Yes, Your Honour, I'm still on the line, yes.

23             JUDGE HARHOFF:  That's good to hear.

24             Ms. Korner, before we move on, could I just make just two short

25     observations in light of what we went through in the first session;

Page 74

 1     namely, to, first of all, to ask you for amendment of your 92 ter and bis

 2     motions, in light of the information that you just gave us that we have

 3     it stick to the lists.  If we stick to the lists, I think that would

 4     require amendment of those two motions.

 5             MS. KORNER:  Yes.  Your Honour, I think at present, we've only

 6     had the one that we put in, in February of last year.  So there's been no

 7     rulings yet, so we can put in an amendment to that, and I see -- lots of

 8     nodding.

 9             JUDGE HARHOFF:  Please do.

10             The other observation I wanted to make was that when we reviewed

11     the statements, and on the basis of our review of those statements, made

12     the suggestions that I have given some examples of in the first session,

13     we did so on the basis that, in cases where we would suggest that the

14     time available for a witness would be shortened, we did so because it

15     wasn't clear, on the basis of the statements, that this witness was

16     actually going to speak directly on the participation and role of either

17     of the accused.  And, so, on the basis of what was in the statements

18     only, we thought, well, this witness could well be shortened in terms of

19     time.

20             Now, then you tell us that this would not be a good idea because

21     this witness actually is going to speak about the responsibility and

22     participation of either of the accused and, of course, this -- this is

23     difficult, because this was not clear in the statement.

24             So where you have witnesses who are going to speak directly to

25     the acts and conducts of the accused, I would invite you to make this

Page 75

 1     clear in the statements and in the summaries -- sorry, in the summaries

 2     that you are proposing to go us, please.

 3             MS. KORNER:  Your Honour, it may be that if Your Honour is

 4     talking about statements where we have put --

 5             JUDGE HARHOFF:  No, the summaries.

 6             MS. KORNER:  The summaries, I understand, yes.  Well, we will

 7     certainly look again at those and make them clear --

 8             JUDGE HARHOFF:  Right.  It is putting us on notice that this is

 9     it an important witness because is he going to testify to the acts and

10     conducts of the accused and more specifically, it's putting the Defence

11     and they needed as much --

12             MS. KORNER:  Yes, Your Honour, we understand that.  Can I just

13     make one observation in relation to that.

14             Your Honour is talking about direct accused, in the sense of acts

15     and conducts of the accused could perhaps not be directly, for example,

16     Zupljanin, but somebody immediately under his command, but Your Honour is

17     now talking about whether they will talk about either Stanisic or

18     Zupljanin personally.  Do you see what I mean?  There's a slight

19     difference.

20             JUDGE HARHOFF:  The issue I wanted to raise was that from your

21     summary alone, it was not clear how important this witness is to you,

22     and -- and I call on you to consider supplementing your summaries so as

23     to make it clear what the importance of each witness is.  And the

24     witnesses for whom we have proposed or suggested or invited you to

25     reconsider the time, we did so because it was not clear on the basis of

Page 76

 1     the summary what this witness could really bring.  So that's why we said,

 2     you know, why on Earth would the Prosecution need one full hour for this?

 3     Why couldn't we do with half an hour or 15 minutes.  And if your response

 4     is, Well, we need one hour because this witness is going to provide

 5     important information about the acts or conduct of either one of the

 6     accused or someone, you know, provide really important evidence, then it

 7     would be helpful if that was clear from the statements.  That's all I'm

 8     saying.  Thank you, I think this point has been dealt with.

 9             MS. KORNER:  Is Your Honour, leaving the topic of witnesses?

10             JUDGE HARHOFF:  I am.

11             MS. KORNER:  Can I just make one point then, which I started to

12     make, and then we realize we were open, closed session, or whatever.

13             In respect of the complaint that there are new witnesses, of

14     course, they're not new as far as Zupljanin is concerned, because he

15     hasn't had anything actually served on him before as part of the case.

16     So every witness to that extent is new.

17             The second matter is a lot of those witnesses, the new witnesses,

18     are because Zupljanin has now been joined; and, therefore, there are

19     witnesses that go to him in -- specifically him and not necessarily

20     directly to Stanisic.

21             Third thing is this, the -- the exhibits that I think Mr. Zecevic

22     mentioned, we've done the new ones.  We've done a break down of them.

23     There are 49 maps, 29 photographs, 96 minutes of the assemblies, I think

24     I said to Mr. Zecevic we had put in, at the moment, all of the assembly

25     minutes and 98 intercepts.  So if one breaks it down, it's not, as it

Page 77

 1     were, a whole raft of different types of documents from different places.

 2             JUDGE HARHOFF:  Thank you, Ms. Korner.  I haven't seen the

 3     material yet, so I'm unaware of what it looks likes.

 4             MS. KORNER:  Yeah.

 5             JUDGE HARHOFF:  But the only experience I have from other trials

 6     is that it is sometimes very difficult both for the Chamber and

 7     especially for the Defence teams to discover what is contained in these

 8     big chunks of documents, especially when the documents are submitted in

 9     electronic form.  So please take the effort to provide useable indexes,

10     so that the Defence is actually able to see, right from the beginning,

11     what is in this CD.  Maybe you have already done that.  I have no idea --

12             MS. KORNER:  As far as I'm aware, there's been very, very good

13     cooperation between Defence and Prosecution on this, and I don't think

14     there has been a problem with the indices.

15             JUDGE HARHOFF:  Thank you very much.  I want to move on to just

16     one little thing; namely, the continuation of these discussions, and I

17     will invite to you come to a 65 ter meeting at the end of this week --

18     next week.  That is to say, on Friday, if this is convenient to you.

19             But before I move on to that, I would like to give the floor to

20     both of the Defence teams to provide us with any information that they

21     will need on the basis of discussion on the witnesses that we've had.

22             Mr. Zecevic, do you have any anything you wish to raise in

23     relation to witnesses and exhibits.

24             MR. ZECEVIC:  Not that -- no, Your Honour because I didn't really

25     have time to read the witness's statement, summaries, or, for that

Page 78

 1     matter, the -- the exhibits.

 2             JUDGE HARHOFF:  Very well.  I hope you will --

 3             MR. ZECEVIC:  I'm sorry.  You understand?

 4             JUDGE HARHOFF:  Yes, I do and I just wanted to -- not to deprive

 5     you of the opportunity of giving us your observations if you had any.

 6             MR. ZECEVIC:  Thank you very much.

 7             JUDGE HARHOFF:  Mr. Pantelic, do you have anything to add on the

 8     basis of what we have said so far, before we close this subject?

 9             MR. PANTELIC:  No, Your Honour, I don't have anything to add.

10     Thank you.

11             JUDGE HARHOFF:  Great.  In that case, it is our proposal from the

12     Chamber that we meet up in a 65 ter setting next Friday, and I leave it

13     to the Defence counsels to give us an indication of what time it would be

14     convenient for you.  We could meet either at 10.00 in the morning or we

15     could meet at -- sometime in the earlier afternoon, at 1.00, depending on

16     what your flight schedules might be.

17             MR. ZECEVIC:  I don't know on the top of my head the flights for

18     the flights from Belgrade, but I assume there is one in the morning, at

19     8.00.  So maybe 11.00, after 11.00 it would give us enough time to reach

20     the Tribunal.

21             JUDGE HARHOFF:  Mr. Pantelic.

22             MR. PANTELIC:  Yes, I would maybe suggest that maybe around 1.00

23     would be better.  Because in these days you never know how the flights

24     will operate, so just to be more comfortable.  That's my suggestion.

25             JUDGE HARHOFF:  Thank you.

Page 79

 1             Mr. Zecevic.

 2             MR. ZECEVIC:  I was just informed by my colleague Mr. Visnjic

 3     that on Friday, the flight is in the afternoon, so, therefore, we will

 4     have to come the day before, on Thursday, so ...

 5             In that case -- I was just wondering, Your Honour, would it be

 6     possible to -- to schedule it for Monday, the 22nd?

 7             JUDGE HARHOFF:  Sure.

 8             MS. KORNER:  I'm sorry, Your Honour.  Either myself or

 9     Mr. Hannis -- I personally know I won't be here on the 22nd, but Mr.

10     Hannis will, so we're happy to fall in with whatever Your Honour wants.

11                           [Trial Chamber and legal officer confer]

12             JUDGE HARHOFF:  I just wish to ensure with both Defence teams

13     that you have adequate time to consult with your clients before we meet

14     again.  I'm perfectly open to say Monday afternoon, if that is convenient

15     to you, so that can you perhaps, I don't know, fly in Sunday evening, and

16     have meetings with your clients Monday morning and then we can meet

17     Monday afternoon or -- I'm not particularly keen on having the meeting

18     in -- on any particular day.  We could also meet on Tuesday if this is

19     more convenient to you.  But we should meet as soon as possible.

20             MR. ZECEVIC:  I understand, Your Honour.  It was our

21     understanding from what Your Honour said on Tuesday is that you will --

22     our client will be re- -- re-released provisionally and that he will go

23     to Belgrade.  And, therefore, I will have the opportunity already on

24     Monday, and I intend to use that to meet with him and discuss, as well as

25     the rest of the Defence team.

Page 80

 1             So, therefore, I will have the instructions from my client,

 2     definitely, for the next 65 ter meeting.  Thank you.

 3             JUDGE HARHOFF:  Of course.  How about you, Mr. Pantelic?  Will

 4     you able to consult with your client in the course of next week?

 5             MR. PANTELIC:  If the 65 ter conference would be scheduled for

 6     Monday, then I will come maybe at the end of this week to confer with him

 7     and then I will be available for Monday.  If you will schedule that for

 8     Friday, then, obviously I will come a few days before, yeah.

 9             JUDGE HARHOFF:  Okay.  Why don't we then say we aim at meeting on

10     Monday, the 22nd of June, and I am unable to indicate any particular time

11     at this moment because I don't know about the availability of the meeting

12     room.  But my staff would look into this and let you know as soon as

13     possible the exact time.  But we will met in Room 177 on Monday, the 22nd

14     of June, and resume the discussion here.  And I'm glad that we can do

15     this, and I'm glad that we can do it because the counsel issue has now

16     been resolved.  Otherwise, we would have had to have this next meeting in

17     the form of this Status Conference.  But now that the representation

18     issue has been resolved with Mr. Zupljanin, we can have these meetings as

19     65 ter meetings.

20             MR. ZECEVIC:  Thank you, Your Honour, and to all colleagues for

21     understanding.  Thank you very much.

22             MR. PANTELIC:  Thank you, Your Honour.

23             JUDGE HARHOFF:  Very well.  Is there any other subject that we

24     need to raise at this moment?

25             Ms. Korner.

Page 81

 1             MS. KORNER:  I hope that Your Honour was given a copy of what was

 2     draft a motion, which was e-mailed to Your Honour's legal officer and to

 3     Defence counsel.  I just wanted -- Your Honour may have had it.  It is

 4     simply our request to be done orally, so we don't give you more paper to

 5     withdraw protective measures from a witness.

 6             It was e-mailed to my learned friend -- counsel for the Defence,

 7     and there was no objection raised.  And if we can simply deal with it as

 8     an oral matter and get it out of the way.

 9             JUDGE HARHOFF:  Let me just consult with my staff.

10                           [Trial Chamber and legal officer confer]

11             JUDGE HARHOFF:  My response, Ms. Korner is that I am inclined to

12     grant the motion, but I need to consult with my two other Judges on the

13     matter.  I don't think this is something I can decide on my own, but I

14     will certainly --

15             MS. KORNER:  All right.  Fine.  Would Your Honour like us to file

16     it then?

17             JUDGE HARHOFF:  No, no.

18                           [Trial Chamber and legal officer confer]

19             JUDGE HARHOFF:  I am informed by my staff that I do have the

20     power, which is very good.

21             Your motion is granted.

22             MS. KORNER:  Thank you very much, Your Honour.

23             JUDGE HARHOFF:  Finally, I have one thing to make in relation to

24     Mr. Stanisic.  I have just signed the order for your re-release, so that

25     means that you are now free to go back to your residence.  I don't know

Page 82

 1     when you can go back.  I understand it is Sunday; is that correct?

 2             But in any case, after this session, you are back on provision

 3     release.

 4             This concludes --

 5             THE ACCUSED STANISIC: [Interpretation] Thank you.

 6                           [Trial Chamber and registrar confer]

 7             JUDGE HARHOFF:  I'm informed by the Registry that there are

 8     requirements in relation to the host country for your travel,

 9     Mr. Stanisic, requirements that, of course, we will have to respect.

10     This is to say that you will be able to travel home as soon as the

11     arrangements with the host country has been made.  But from the Chamber's

12     point of view, you are back on provision release.

13             Again, just to close this session, I wish to extend, on behalf of

14     the Chamber and the staff, the thanks to Counsel Visnjic for his

15     assistance and to wish Mr. Pantelic welcome as lead counsel, and we look

16     forward to working with an efficiently working Defence team for

17     Mr. Zupljanin.

18             MR. PANTELIC:  Thank you, Your Honour.  I appreciate it.

19             JUDGE HARHOFF:  Any other issues that need to be addressed?

20             This is not the case for the Prosecution and for the Defence?

21             In that case, I wish you a good weekend and announce that this

22     session is adjourned.

23             Thank you very much.

24                           --- Whereupon the Status Conference adjourned at

25                           5.47 p.m.