Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Monday, 15 March 2010

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 9.36 a.m.

 5             JUDGE PARKER:  Good morning.

 6             If would you call the case for hearing.

 7             THE REGISTRAR:  Good morning, Your Honours.

 8             This is case IT-98-32/1-R77.1, The Prosecutor versus

 9     Zuhdija Tabakovic.

10             JUDGE PARKER:  Thank you very much.

11             Mr. Rogers.

12             MR. ROGERS: [Microphone not activated]

13             THE INTERPRETER:  Microphone, please, for the counsel.

14             MR. ROGERS:  Good morning, Your Honours.  Paul Rogers appearing

15     for the Prosecution together with Mr. Kyle Wood and our Case Manager

16     Jasmina Bosnjakovic.

17             JUDGE PARKER:  Thank you, Mr. Rogers.

18             Mr. Powles.

19             MR. POWLES:  Good morning, Your Honours.  I appear on behalf of

20     Mr. Tabakovic, Steven Powles.

21             JUDGE PARKER:  Thank you.  Now, you wish to deal with some

22     matter, I understand, Mr. Powles.

23             MR. POWLES:  Your Honours, yes, it's perhaps safer to go into

24     closed session, of course.  I've got Your Honours' ruling or indication

25     on the matter that was raised on Friday, but there was one other very

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 1     brief matter to raise and perhaps best dealt with in closed session.

 2             JUDGE PARKER:  What we will do is briefly go then into private

 3     session and we can deal with that matter before going back into public.

 4             MR. POWLES:  Thank you, Your Honour.

 5                           [Private session]

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11 Pages 15-20 redacted. Private session.















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18                           [Open session]

19             THE REGISTRAR:  We're in open session, Your Honours.

20             JUDGE PARKER:  The Chamber sits today to try Zuhdija Tabakovic on

21     an indictment which alleges six counts of contempt arising from the trial

22     of Milan Lukic and Sredoje Lukic, who were convicted and sentenced for

23     war crimes by this Tribunal last year.  The indictment against

24     Mr. Tabakovic was filed in October of last year.  At an earlier stage of

25     these proceedings, the accused had entered pleas of not guilty to all six

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 1     counts.

 2             On Friday last, a motion for this Chamber to consider a plea

 3     agreement was jointly filed by the Prosecutor and the Defence of

 4     Mr. Tabakovic.  The Chamber will now turn its attention to that motion.

 5             And for that purpose, the Chamber should indicate there was also

 6     filed a motion which sought to protect the identity of two persons,

 7     neither being the present accused, in respect of conduct.  They are named

 8     in the indictment.  In view of other potential proceedings in this

 9     Tribunal, the Chamber is of the view that it would be appropriate for

10     them to be granted protective measures, in that they should each be

11     assigned a pseudonym for the purpose of this hearing, respectively being

12     X and Y as proposed in the motion.

13             Mr. Rogers, is it convenient for you now?

14             MR. ROGERS:  Your Honour, yes.  Thank you.

15             Your Honours, you have the plea agreement, and clearly it

16     currently remains confidential.  And we would ask jointly that the

17     confidentiality of that document be lifted, subject to the redactions

18     Your Honour has indicated.  And we will file today a public redacted

19     version of the plea agreement and that can then be on the record for the

20     public.

21             Your Honours, the plea agreement sets out a summary of the

22     intended pleas, and Mr. Tabakovic agrees to plead guilty to a total of 3

23     counts of contempt as charged in the indictment dated the

24     30th October, 2009, and agrees that those pleas fully encompass his

25     criminal responsibility for contempt as a result of the acts and

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 1     omissions alleged in the indictment.

 2             Your Honour, he proposes to plead guilt to Counts 1, 3, and 4 of

 3     the indictment, all counts of contempt.  And as a result of that plea, we

 4     will move to dismiss the remaining alternative charges should

 5     Your Honours accept his plea, which are Count 2, attempt to commit

 6     contempt; and Counts 5 and 6, incitement to commit contempt, as we have

 7     always said that those were alternative allegations to Counts 1, 3 and 4.

 8             And, Your Honour, we draw your attention to the fact that as a

 9     result of his indication of this plea, the Prosecution is prepared to

10     recommend to the Trial Chamber the imposition of a term of imprisonment

11     within the range of four to six months and no fine.

12             Your Honours, we point out specifically that the recommendation

13     has taken into account from the Prosecutor's perspective the assessment

14     of the available mitigation, including his cooperation to the date of

15     plea and the pleas of guilty themselves.  And we understand that the

16     accused is entitled to submit that he should receive a sentence of less

17     than four to six months and the accused understands that the

18     Trial Chamber is not bound to accept any recommendation and may impose a

19     sentence above or below the range indicated.  And we recognise that such

20     recommendation that the Prosecution have made is without prejudice to any

21     application for commutation or pardon in due course that he may seek to

22     make pursuant to Rules 123 and 1 -- to 125.

23             JUDGE PARKER:  Just one matter before we pass on, Mr. Rogers.

24             MR. ROGERS:  Yes, Your Honour.

25             JUDGE PARKER:  My reading of the indictment would suggest that,

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 1     within Count 1, there is an alternative to the charge of contempt but

 2     that Count 2 is itself a separate charge of contempt.

 3             I think as you were dealing with it you may have suggested that

 4     Count 2 itself was a count of attempt.

 5             MR. ROGERS:  Your Honour, we -- we have always conceived Count 2

 6     to be an attempt.  That's why the -- the line coming between Count 1 and

 7     Count 2 on the indictment says:  "Alternatively, he attempted to commit

 8     Count 2, Contempt of the Tribunal."

 9             I think the problem, if it's a problem, arises from the wording

10     of the rule which says that there shall be -- any incitement or attempt

11     to commit any of the acts punishable under paragraph A - this

12     is 77(B) - is punishable as a contempt.

13             JUDGE PARKER:  As a contempt.  Yes.

14             MR. ROGERS:  So, I mean, we could debate perhaps whether it is

15     truly an attempt or incitements are truly incitements because they are

16     all considered to be contempt anyway.

17             Your Honours will probably know that there have been no

18     indictments here for attempt to commit contempt, so it's unchartered

19     water.  And to some extent, so is incitement.  But that is the way we

20     envisaged it.

21             JUDGE PARKER:  Well, perhaps you would be at ease referring to it

22     as a contempt within the meaning of the rules.

23             MR. ROGERS:  Your Honour, I would, yes.

24             So far as the nature of the charges is concerned, Mr. Tabakovic

25     understands that the Prosecution would be required to prove beyond

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 1     reasonable doubt all the elements of contempt, that is, that he knowingly

 2     and wilfully interfered with the administration of justice.  And he and

 3     the Prosecution have agreed the facts and matters set forth in the

 4     Factual Basis which I will turn to in due course as being correct and not

 5     disputed and established beyond a reasonable doubt.  And he accepts full

 6     responsibility for the actions described both in that Factual Basis and,

 7     of course, in the indictment as he pleads to it.

 8             And the parties agree the matters contained within the basis

 9     support appropriate findings of guilt as to his individual criminal

10     responsibility for the commission of contempt under Counts 1, 3, and 4.

11             Then there are the formal parts, Your Honour, relating to what

12     the maximum possible sentences are, that is, a sentence of seven years'

13     imprisonment and a fine not exceeding 100.000 euros or both in relation

14     to each count.  And Mr. Tabakovic, at paragraph 9, understands that he is

15     not bound by any agreement -- sorry that the Chamber is not bound by any

16     agreement between the Prosecutor and the Defence.  But importantly, he

17     agrees that regardless of the sentence imposed, he will not seek to

18     withdraw his guilty plea or appeal his conviction pursuant to such guilty

19     plea, should such a conviction be entered by Your Honours.

20             He then recognises that the Chamber will, when considering the

21     appropriate sentence, have regard to the gravity of the offence and the

22     individual circumstances of the convicted person and take account of any

23     aggravating or mitigating circumstances including any substantial

24     cooperation with the Prosecutor and have regard to the general sentences

25     in the former Yugoslavia, should it be appropriate.

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 1             And he understands that the Prosecution and the Defence will

 2     provide to Your Honours any and all information that Your Honours

 3     consider to be relevant to sentence.  By his plea of guilty, he

 4     understands that he will be giving up certain rights, rights to have the

 5     charge proved by the Prosecution during the course of a trial.  And in

 6     that regard, he gives up the right to plead not guilty and require that

 7     proof to a beyond a reasonable doubt standard to put forward a Defence to

 8     these charges during a trial, et cetera.  And the right to be tried, et

 9     cetera.

10             Your Honours have them there.

11             Of course, it doesn't mean he waives his right to be represented

12     by counsel in these proceedings or in any subsequent proceedings.  And he

13     enters the plea voluntarily, agrees that no threats were made to induce

14     him to enter this plea, and that the only promises made to him is set

15     forth in the agreement, namely that the Prosecutor will make the

16     recommendation that it has said it would.  There are no additional

17     promises, understandings, or agreements between the Office of

18     the Prosecutor, Mr. Tabakovic, or his counsel.

19             And Your Honours will see the declaration by Mr. Tabakovic that

20     he has read the plea in a language that he understands and reviewed it

21     carefully and closely with his counsel Mr. Powles, and Mr. Powles has

22     advised him of his rights and possible Defences and the consequences of

23     entering into the plea agreement, and he is satisfied with his

24     representation to date.

25             No other promises or inducements had been made to him, he agrees.

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 1     And no one has threatened him or forced him to enter into the plea

 2     agreement in any way.  The plea is voluntarily, and he is of sound mind

 3     and agrees to each of the terms.  And then there is the declaration by

 4     Mr. Powles that he fully advised his client, et cetera.  Your Honours may

 5     wish to go through that or not, but it is there and the declaration is

 6     plain for all to see and substantially mirrors the declaration of

 7     Mr. Tabakovic, albeit it from counsel's perspective.

 8             Your Honours, I don't propose at this stage to go through the

 9     Factual Basis.  It is perhaps now for Your Honours to go through the

10     formal parts with Mr. Tabakovic to ensure he does understand what he is

11     doing and then to reach any appropriate conclusions on the materials

12     available to you regarding the counts as they are set out.

13             Can I assist Your Honours any further at this point of time?

14             JUDGE PARKER:  Thank you, Mr. Rogers, no.

15             Is there anything, Mr. Powles, you would want to say at this

16     stage?

17             MR. POWLES:  No.  Thank you very much, Your Honour.

18             JUDGE PARKER:  Thank you.

19             Mr. Tabakovic, you're able to follow the proceedings so far in

20     a -- translated into the language you understand?

21             THE ACCUSED: [Interpretation] Yes, I have, Your Honour.

22             JUDGE PARKER:  Thank you very much.

23             Now, the proceedings this morning are primarily looking at an

24     agreement under which you have proposed to enter a plea to three of the

25     six charges of contempt that are set out in the indictment.

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 1             Do you understand that this is the nature of what we are dealing

 2     with?  A proposal by you that we should receive from you a plea of guilty

 3     to three of the charges, and that we are not to deal with you in respect

 4     of the other three charges which will be withdrawn; you understand that's

 5     what we're dealing with?

 6             THE ACCUSED: [Interpretation] Yes, I do.  I understand.

 7             JUDGE PARKER:  Thank you.

 8             Now, before the Chamber, there is an agreement which is dated

 9     last Friday, the 11th of March, in which you have both signed the

10     agreement and signed a declaration, which is paragraph 17 of the

11     agreement.

12             Are you familiar with that, the signed agreement?

13             THE ACCUSED: [Interpretation] Yes, I am, Your Honour.

14             JUDGE PARKER:  You signed the agreement and the declaration, did

15     you?

16             THE ACCUSED: [Interpretation] Yes, I did.

17             JUDGE PARKER:  Attached to the agreement there is also a -- an

18     outline of facts, the fact -- which form the Factual Basis for the

19     agreement, and at the end of that what appears to be your signature

20     appears again.  You signed -- is it correct that you signed that

21     Factual Basis to form part of this plea agreement?

22             THE ACCUSED: [Interpretation] Yes, it is correct, Your Honour.

23             JUDGE PARKER:  Your counsel here, Mr. Powles, has discussed the

24     nature and effect of this agreement with you, has he?

25             THE ACCUSED: [Interpretation] Yes, he has.

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 1             JUDGE PARKER:  He has explained to you, I believe, that it is

 2     open to you to maintain your pleas of not guilty to all of these charges,

 3     in which event it would be for the Prosecution to prove its case against

 4     you in respect of each one of the six counts.

 5             That's been explained to you by Mr. Powles, has it?

 6             THE ACCUSED: [Interpretation] Yes.  We've gone through that

 7     together.

 8             JUDGE PARKER:  Did Mr. Powles discuss with you possible lines of

 9     Defence that you might take, if you were to plead not guilty and proceed

10     to trial?

11             THE ACCUSED: [Interpretation] Well, yes, we did discuss several

12     possible lines of Defence.  Yes, we did discuss the matter.

13             JUDGE PARKER:  Are you confident in your own mind that you should

14     act according to this agreement and enter pleas on just three of the six

15     counts?  Pleas of guilty.

16             THE ACCUSED: [Interpretation] Well, that's how my counsel and I

17     agreed, although, in essence, Counts 2, 4, and 5, basically boil down to

18     the -- to Counts 1, 3, and 5, or the other ones.

19             Counts 1, 3, 5, and 2, 4, and 6, actually, not that different,

20     really.

21             JUDGE PARKER:  The -- your client, Mr. Powles, seems to be

22     displaying quite a careful knowledge of the indictment.

23             MR. POWLES:  Your Honour, yes.  My only concern and why I rise,

24     of course, I appreciate why Your Honour is going through these matters

25     with Mr. Tabakovic.  My only concern is the question of legal

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 1     professional privilege and -- and whether we might be getting close to

 2     that line.  I don't think we've crossed it just yet, but I'm not sure

 3     Mr. Tabakovic necessarily fully appreciates the nature of that rule.  I'm

 4     not sure whether Your Honour has any more in relation to these sorts of

 5     matters that you wish to explore with Mr. Tabakovic.  I just raise that

 6     as a precautionary matter.

 7             JUDGE PARKER:  The issue, Mr. Powles, was to be confident that

 8     there had been a discussion of potential possibilities of Defence.

 9             MR. POWLES:  Your Honour, yes.

10             JUDGE PARKER:  Not sought particulars.

11             MR. POWLES:  Your Honour, yes.  I'm not sure Mr. Tabakovic

12     necessarily appreciates that though.

13             JUDGE PARKER:  I think, though, that his answer was very

14     informative on a number of bases.

15             MR. POWLES:  Your Honour, yes.

16             JUDGE PARKER:  Thank you, Mr. Powles.

17             MR. POWLES:  Thank you.

18             JUDGE PARKER:  You realise that a consequence of entering pleas

19     of guilty to three counts would be that the Chamber would proceed to

20     consider the question of penalty and to sentence you, in respect of those

21     three counts, to which you would plead guilty and that there would be no

22     trial of the facts about those three counts.

23             THE ACCUSED: [Interpretation] I understand that, Your Honour.

24             JUDGE PARKER:  Thank you very much, Mr. Tabakovic.

25             The Chamber has to consider at this stage the force of

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 1     Rule 62 bis, which requires that any plea be voluntary, informed, not

 2     equivocal, and is supported by a sufficient Factual Basis.  In this

 3     regard, this Chamber has been assisted by the written agreement which

 4     sets out, carefully and fully, matters which provide a basis upon which

 5     the Chamber could be satisfied of those matters.

 6             The accused has confirmed today that this is agreement -- an

 7     agreement into which his has entered.  And by his signature to that

 8     agreement and to the declaration it contains, he has confirmed that he

 9     has been advised about and has considered matters, which indicate that

10     the plea is informed, and that his conduct is not equivocal in proposing

11     to make them.  And it is apparent from what he has said orally and from

12     the terms of that agreement that he acts voluntarily in this regard.

13             The Factual Basis upon which those pleas are to be offered is set

14     out, again fully, in the annexure to the plea agreement, which the --

15     Mr. Tabakovic also confirms he has signed.  The Chamber has had occasion

16     to consider that Factual Basis and the legal question whether it provides

17     a sufficient basis for the pleas which the accused proposes to offer.

18     The Chamber is satisfied that on the Factual Basis set out in the

19     annexure there is a proper and sufficient Factual Basis for the proposed

20     pleas to the three counts.

21             The Chamber has also had a declaration from Mr. Powles, who is

22     present and represents the accused this morning, as to his conduct in

23     fully setting out and explaining to the accused the options open to him,

24     the consequences of the plea, and the rights which would be foregone by

25     the accused if he enters a plea.

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 1             Having regard to these matters, the Chamber is persuaded that it

 2     may properly allow and receive the pleas of guilty, in respect of the

 3     three counts, as are proposed in the plea agreement.

 4             Now, Mr. Powles, are you content that the Chamber proceeds simply

 5     to -- on the motion or would you prefer that the three counts again be

 6     put to the accused?

 7             MR. POWLES:  Your Honour, I think it would be easier if we

 8     proceed on the motion.  It is all set out in the motion, and it would

 9     seem to me that that would be the most practical way to proceed, if

10     Your Honours were minded to agree with that.

11             JUDGE PARKER:  Thank you, Mr. Powles.  In those circumstances,

12     the Chamber would allow, as moved in the motion, the accused,

13     Mr. Tabakovic, to change his plea to one of guilty in respect of each of

14     Counts 1, 3, and 4 of the indictment.  And the Chamber, accordingly,

15     enters a finding of guilt in respect of each of those three counts.

16             The Chamber is also persuaded that the three convictions which it

17     has now recorded adequately reflect, for the purposes of punishment, the

18     conduct of the accused in the knowing making of a false statement by

19     himself and a false statement by each of two other men, for use by the

20     Defence in the trial of Milan Lukic and Sredoje Lukic.  The Chamber is

21     satisfied, therefore, that it should dismiss the remaining counts - 2, 5,

22     and 6 - in the indictment.

23             We now come to the question of sentence.

24             Mr. Rogers.

25             MR. ROGERS:  Your Honours, I propose to go through the

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 1     Factual Basis for the plea agreement which is annexed at tab 2.  The --

 2     there will be a public redacted version that we will file today, but for

 3     now I will simply read it into the record as we take the view it fully

 4     sets out the relevant facts for your determination in relation to

 5     sentence.

 6             Your Honours, Zuhdija Tabakovic was approached by the former

 7     Case Manager of the Milan Lukic Defence team sometime in October 2008.

 8     They arranged to meet at a cafe in the Robot shopping mall in Sarajevo

 9     and during this meeting he was offered a -- and this is how he put it:

10             "Good job in which good money can be made."

11             Case Manager produced to him a blank statement.  And Your Honours

12     have a bundle of documents set out in a blue bundle, I hope, and you will

13     see the blank statement in tab 3.  It's already complete in the terms of

14     what it's to say.  And you will see the only thing that is missing from

15     it are the names and various dates in the formal parts at the top.

16             Mr. Tabakovic read the statement and asked what he was to do

17     next.  It was explained to him that the person worked for the

18     Milan Lukic Defence team in The Hague and that she had been asked to find

19     persons who, for financial compensation, would confirm this statement or

20     similar ones.  Those statements were to be used by the Milan Lukic

21     Defence team.

22             Mr. Tabakovic asked what the financial compensation would be and

23     was told 2.500 euros.  The money was to include all travelling expenses

24     to The Hague, to buy clothes, shoes, and accommodation, and all expenses

25     for preparation.  He was to be paid a thousand euros after signing the

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 1     statement and having his signature verified by a municipality official.

 2     He was then told that there would be a second payment of 1.500 euros and

 3     new clothes which he would receive before leaving for The Hague to

 4     testify in the Milan Lukic case or just after arriving there.

 5             He said he was told that the money was coming from Mr. Lukic

 6     himself.

 7             At some point prior to the signing of the statement,

 8     Mr. Tabakovic was told -- or the Case Manager describes to him the

 9     purpose of the statement as being for him to say that he was on the other

10     side of the Drina River when people were shot and that some of those

11     persons survived and that he was to describe some of the killers and

12     their vehicles.  Whilst it's not suggested that Mr. Tabakovic knew the

13     precise purpose for which the statement would be used nor the impact the

14     statement was intended to have on the Lukic and Lukic trial, it was in

15     fact relevant to Milan Lukic's Defence of alibi in relation to one of the

16     counts.

17             Mr. Tabakovic said that he needed money desperately and that he

18     agreed to provide the statement and sign it before a municipality

19     official.  He knew that the statement was not true and that it was for

20     use by the Milan Lukic Defence in The Hague.

21             On the 20th of October, 2008, at the Novi Grad municipality

22     building in Sarajevo, Tabakovic met with the Case Manager and there read,

23     signed, and verified the statement in five copies.  That included a

24     section concerning protective measures for him at this Tribunal.  He kept

25     one copy of that statement which is Exhibit 5, which he voluntarily

Page 35

 1     handed over to the Prosecution investigator, Don King, in the

 2     30th of December, 2008, in the Sarajevo field office when he came to tell

 3     what he had done.  The statement is signed by him.

 4             And Your Honours will see, if you turn to tab 3 in the bundle,

 5     the form of the statement is in substantially the same form as that of

 6     the blank with the details filled in at the top.  And then there is, on

 7     the page 4, a declaration, and it's obviously in B/C/S, this particular

 8     version, and then his signature appears dated the 20th of October, 2008.

 9             And if Your Honours look to page 2 of what is the translation,

10     you will see the witness acknowledgment.

11             "I've read the statement of four pages, and it contains

12     everything I said to be the best of my knowledge and memory and made the

13     statement of my own accord, and I am aware it can be used in judicial

14     proceedings before the International Criminal Tribunal for the former

15     Yugoslavia and that I can be summoned to give public testimony before the

16     Tribunal."

17             And then there is a request for protective measures.

18             Your Honours will note that the name is wrong.  That's a

19     translation difficulty with this particular translation, but the

20     declaration is accurate.

21             On the 11th of September, 2009, the Milan Lukic Defence disclosed

22     to the Prosecution another identical copy of that statement that bears

23     Mr. Tabakovic's original signature, and that's found at Exhibit 4.  And,

24     again, you have that.  It's the same copy.

25             Both of the statements bear the stamp of the Novi Grad Sarajevo

Page 36

 1     municipality and other data confirming that he signed them at the

 2     municipality in the presence of a municipality official who first checked

 3     his identity with his identification documents.  And documents and

 4     witnesses from the Sarajevo municipality confirm that to be true.

 5             Your Honours, the -- specifically relating to the certification,

 6     the relevant law in Bosnia-Herzegovina on the certification of signature,

 7     handwriting, and copies require that before a stamp of certification can

 8     be placed on the document, the person submitting the document must sign

 9     the document with his own hand in the presence of an authorised official.

10     That is, to put a signature identical to that on the submit the document

11     in the field designated for that in the register.  So there is a

12     certification and the registration.  The certifying official must also

13     establish identity by checking the identification of the individual or

14     their passport before any such stamp can be placed on the document.  And

15     the stamp contains a number of pieces of information relating to date and

16     persons signing.

17             The stamps on the copy of the statement Mr. Tabakovic provided to

18     Don King on the 30th of December, 2008, and on the copy he -- the Defence

19     provided on the 11th of September, 2009, include his name, the date of

20     certification of the 20th October, 2008, the Novi Grad Sarajevo

21     municipality stamp, and a certification number corresponding to the

22     municipality's register.  This entry in the register includes a signature

23     identical to the signatures on the two statements and Mr. Tabakovic

24     confirming that one of the signatures on the statements was his.  And

25     then there was a confirmation of the certification of the statements by a

Page 37

 1     Sarajevo municipality clerk.

 2             After the signing the statement, Mr. Tabakovic and the

 3     Case Manager went to the entrance of the municipality building where the

 4     Case Manager handed to Mr. Tabakovic a folded piece of white paper

 5     containing 1.000 euros in 50 euro notes taken from within a green notepad

 6     or agenda.  Mr. Tabakovic agrees that the statement he signed at Exhibits

 7     4 and 5 was not in his own words, accept for his signature.  He not seen

 8     or been involved in any of the events referred to in the statement and

 9     indeed at the relevant time to the statement, that is the 7th of June,

10     1992, he had been in Sarajevo.

11             He said that before signing his statement he had waited for about

12     40 minutes in the municipality building talking with the Case Manager.

13     He was told that when the time came for him to go to The Hague to

14     testify, he would be provided with food and accommodation.  In addition,

15     he would probably be contacted prior to testifying in the courtroom in

16     order to be proofed.  However, he was told the main lawyer in the case,

17     an American, was not to be told that the statements were fake and that

18     they had been paid for.  Whilst in the municipality building, he was

19     given by the Case Manager a hand drawn map.  Your Honours will see that

20     at Exhibit 1.  This was, she told him, was from -- she said, Milan Lukic,

21     and was to enable Mr. Tabakovic to better understand the events described

22     in the statement at Exhibits 4 and 5.

23             She told him that it was with a map to explain how people were

24     killed or executed in Visegrad on the 7th of June, 1992, and was to

25     indicate what he was supposed to say and where he was standing.

Page 38

 1             And Your Honours can see that is quite obvious from the face of

 2     the map itself.  And if you turn to the translation, you will see some

 3     words that have been translated from it, and they all refer to a Muslim

 4     soldier across the river and various other things to help you understand

 5     what this document was meant to mean.

 6             In addition, he was given a photograph of a victim in the case,

 7     Jasmina Vila, and was asked if for 10.000 euros he would be able to find

 8     the address of this woman as Milan Lukic believed that she was still

 9     alive.

10             At around the same time that Mr. Tabakovic first met with the

11     Case Manager and signed his false statement, she asked him whether he

12     knew of others who would agree to sign false statements for money.  She

13     provided to him a blank pro forma which is found at divider 3 -- similar

14     to the one in divider 3, and asked Mr. Tabakovic she wanted a witness to

15     sign a statement similar to it and another to sign a statement about the

16     SDS in Visegrad in 1992.  She told him that these witnesses were to be

17     former soldiers who had been born in Visegrad.

18             Sometime shortly after Mr. Tabakovic signed his statement at the

19     municipality, he contacted two men, Y and X.  And asked them to come for

20     coffee because he had a job for them.  He asked X if he wanted to make a

21     thousand euros and told him to go to the Novi Grad Sarajevo municipality

22     with his identity card.  The three of them met at a restaurant near the

23     Novi Grad Sarajevo municipality building, and Mr. Tabakovic showed Y and

24     X the statements the Case Manager wanted them to sign.  He told them they

25     would reach receive a thousand euros for signing the statement.

Page 39

 1     Tabakovic told X that he and X would testify regarding some execution.

 2     Y and X agreed to sign the statements.  Tabakovic telephoned the

 3     Case Manager and told her, I finished this job for you; I've got the

 4     people.  And arranged for X and Y to meet her at the Novi Grad Sarajevo

 5     municipality.

 6   (redacted)

 7   (redacted)

 8   On the same day, Y signed a statement regarding the SDS in Visegrad.  That

 9     morning, Tabakovic accompanied each man in turn from the restaurant to

10     the Novi Grad Sarajevo municipality building and back and introduced each

11     of them to the Case Manager who was inside the building.

12             Tabakovic said Y was drunk as hell.  Each man signed his

13     statement - and you'll find those at Exhibits 6 and 7 - before a

14     municipality official who verified it and made copies of it.  On their

15     way out, a man approached X and Y.  Tabakovic was present as X and Y were

16     paid in the same way that he had been from a green agenda or in a form of

17     envelope with 20, 50 euro notes by a man the Case Manager had pointed out

18     to X and Y.  Case Manager told Tabakovic that the man who made the

19     payment was "our man."

20             After X and Y had finished certifying their statements, she told

21     Tabakovic she would speak with him by phone later.  She then left with a

22     man in a taxi.  Tabakovic returned to the restaurant with Y, and Y's

23     1.000 euros was divided equally, between Tabakovic, Y, and X with 100

24     euros left over to pay for the bill of the drinks that the three men had

25     consumed.

Page 40

 1             X agreed that he had signed a false or forged statement; he said

 2     it, he did it, just take the money.  Y had been told by Tabakovic and X

 3     that if he signed something he would be given 1.000 or 2.000 euros.

 4     Tabakovic had contacted the two men and asked them if they wanted to make

 5     money by signing false statements.  Both Y and X made their statements

 6     knowing that their statements were untrue.  Tabakovic said both knew that

 7     they were signing and providing a false statement in the Milan Lukic

 8     case.  Tabakovic knew that their statements had been signed, verified,

 9     and given to the Case Manager.  Initially, he was reluctant to tell

10     investigators the names of these men.  But on the 28th of January, 2009,

11     he identified them as Y and X.

12             Subsequent to the signing of the first statements in

13     October 2008, Tabakovic was contacted again by the Case Manager as there

14     was an error in the statements signed by him, X, and Y.  That error

15     related to a date on the statements and -- and the Case Manager new --

16     needed new statements to be signed.  Tabakovic contacted Y and X again,

17     and he said the next day they signed the changed statements.  He gave

18     those statement to the Case Manager, and they're dated

19     5th of December, 2008.  And they are found as Exhibits 8, 9, and 10.

20             And, Your Honours, the only significance to them is a date

21     change.  But the date is significant to the alibi.

22             After this meeting, he met the Case Manager when she asked for

23     clothes sizes.  Tabakovic asked when he was to be paid.  After his

24     meetings with the Case Manager, she took the statements with her and left

25     for Belgrade.  The 5th December statements were provided to the

Page 41

 1     Prosecution by the Defence during the trial on the 20th of January, 2009.

 2     And, again, whilst it is not suggested that Mr. Tabakovic knew the

 3     precise purpose for which the statements would be used nor the impact the

 4     statements were intended to have on the Lukic trial, they were in fact

 5     relevant to Milan Lukic's alibis.

 6             Your Honours, I'm not suggesting that Mr. Tabakovic knew the

 7     significance of the date change.  It's just that -- the fact is that's

 8     what happened and that's what its significance was.

 9             On the 29th of December, 2008, Mr. Tabakovic presented himself to

10     the gate at UN house, Sarajevo.  When he first spoke to investigators, he

11     requested some form of compensation for providing information about the

12     payment of witnesses and in particular he asked for 2.500 euros.  He was

13     told that no such payment would be made for information and he left

14     without leaving any identification.  Nevertheless, he did return to the

15     Sarajevo field office the next day, leaving his identification

16     information and the false statement that he had signed.

17             Mr. Tabakovic gave the Prosecution investigator Don King an

18     outline of what he could say.  He explained that he did it for the money.

19     He had a wife and two children.  There wasn't much thinking into it, and

20     he was not involved for patriotic reasons.  A meeting was arranged on the

21     31st December, 2008, for Mr. Tabakovic to come to the Sarajevo field

22     office to provide his account.  In a video recorded interview,

23     Mr. Tabakovic explained what had happened in detail and volunteered

24     documents to corroborate his statement.  He also said he was expecting a

25     further payment of 1.500 euros around the 5th or 6th of January from the

Page 42

 1     Case Manager.  Tabakovic explained that he had contacted the Office of

 2     the Prosecutor because it was "the proper thing to do actually."  He said

 3     the purpose of his visit to the OTP was that -- was that did he not

 4     consider what he was involved in was okay.  He said he felt relieved and

 5     much better as a result of bring matters to the attention of the

 6     Prosecution.  And during his further interviews with the office

 7     investigators, he raised concerns he had about his security and his

 8     financial situation.

 9             On the 10th of January, 2009, Mr. Tabakovic met with members of

10     the Milan Lukic Defence and others at a Mercator store.  Prior to this

11     contact with the Defence, Tabakovic contacted Mr. King, the OTP

12     investigator, for advice but was given no advice as to whether he should

13     attend or not.  During this meeting, Tabakovic was told that the

14     Case Manager had been removed from the Defence team because she had

15     messed up something to do with the second instalment of money to be paid

16     to the witnesses and that payment would now happen as these people came

17     to testify and that a man named Dragan was to be Tabakovic's contact from

18     then onwards.

19             The following day, at the request of Dragan, Tabakovic met with a

20     lawyer at the Mercator.  The lawyer asked whether Tabakovic had been in

21     trouble with the law, said he could provide passage for Tabakovic to

22     The Hague, and that there would be protective measures there.  The lawyer

23     and Tabakovic then went through his false statement line by line and

24     discussed what he could say about how he remembered the date about which

25     he was to testify and how he knew Milan Lukic.

Page 43

 1             Tabakovic made clear to the lawyer that he did not know

 2     Milan Lukic.

 3             After this meeting, Tabakovic said he was going to take steps to

 4     get a passport.  At the lawyer's request, Tabakovic also gathered

 5     personal information from X and Y, including what they did during the

 6     war, whether they had criminal records, and anything else "that could

 7     compromise" them in court.  And he delivered this information to Dragan.

 8     On or about the 15th of January, 2009, Dragan phoned Tabakovic and told

 9     him to arrange a passport for travel to The Hague to testify.

10             Your Honours, there's a short paragraph I would wish to deal

11     with, please, in closed session.

12             JUDGE PARKER:  Private.

13                           [Private session]

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 44

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11                           [Open session]

12             THE REGISTRAR:  We're in open session, Your Honours.

13             MR. ROGERS:  In all, Mr. Tabakovic participated in eight

14     videotaped interviews with the Office of the Prosecutor between the

15     31st of December, 2008, and the 24th of September, 2009.

16             And Your Honours, I should make it clear that that last interview

17     was an interview, as I would say, under caution as a suspect.  The other

18     interviews he came as a witness.

19             Some contact was initiated by him; others by the Office of the

20     Prosecutor.  And each time he was asked to come in, he appeared willingly

21     and voluntarily.  He provided the names and details of others involved

22     and took part in identification procedures in order to help identify

23     them.

24             He was asked why he came to the ICTY.  He said he had made a big

25     mistake and wanted to correct it, and that he realised that he made that

Page 45

 1     mistake "sometime in December" 2008.

 2             Your Honours, those are the facts.  Unless I can help you any

 3     further, that's all I would propose to say at this stage.

 4             JUDGE PARKER:  Thank you, Mr. Rogers.

 5             I notice the time.  I think in fairness to you, Mr. Powles, we

 6     might have the necessary break now to enable you then to speak with

 7     continuity after the break.

 8             MR. POWLES:  I'm very grateful.  May I indicate, there are two

 9     documents that I would seek to hand up to Your Honours, mitigation --

10     written mitigation submission and a short chronology of some of the key

11     dates and events in relation to this case.

12             Now might be a useful time to provide those to Your Honours so

13     you can perhaps reflect on them before I mitigate on Mr. Tabakovic's

14     behalf.

15             JUDGE PARKER:  We would be grateful.

16             MR. POWLES:  Thank you very much, Your Honours.

17                           [Trial Chamber confers]

18             JUDGE PARKER:  Thank you, Mr. Powles.

19             We'll adjourn now and resume at a quarter past 11.00.

20             MR. POWLES:  Thank you, Your Honours.

21                           --- Recess taken at 10.48 a.m.

22                           --- On resuming at 11.17 a.m.

23             JUDGE PARKER:  Yes, Mr. Powles.

24             MR. POWLES:  I believe Mr. Rogers wants to address you briefly

25     first, although can I deal with it, if --

Page 46

 1             There was -- Your Honour there are two points:  First of all, in

 2     the document that have I provided to you at paragraph 29, I think it's

 3     right to say that -- we can go -- sorry, Your Honours, if we may go into

 4     closed session.

 5                           [Private session]

 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   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 47

 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                           [Open session]

16             THE REGISTRAR:  We're in open session, Your Honours.

17             JUDGE PARKER:  You just indicated, Mr. Rogers, that there -- it

18     has come to your attention the accused has within previous conviction in

19     2003 in Sarajevo in the municipal court, where he was convicted on a

20     count of fraud in respect of a case in which it was -- he had indicated

21     that he could obtain a German visa.  And on that pretense, he had

22     obtained some 1570 of the local currency.

23             MR. ROGERS:  Convertible marks, Your Honour, that's right.

24             JUDGE PARKER:  Convertible marks, yes.  And for that he was

25     sentenced -- what was the sentence again?

Page 48

 1             MR. ROGERS:  Five months' imprisonment, Your Honours, and ordered

 2     to repay the sum of 1.570 convertible marks to the victim in that case.

 3     The maximum sentence was three years' imprisonment.  And prior to that

 4     offence, he had no previous criminal convictions.  The judgement was

 5     confirmed on appeal on the 9th of September, 2004.

 6             I'm sorry I omitted that at the end of my remarks earlier.

 7             JUDGE PARKER:  Thank you very much, Mr. Rogers.

 8             Yes, Mr. Powles.

 9             MR. POWLES:  May it please Your Honours, on behalf of

10     Mr. Tabakovic, he's, of course, accepted that contempt of this Tribunal

11     as with any court and the interference with the administration of justice

12     is obviously a serious matter.  This case, however, we would submit falls

13     at the very bottom end of the scale of seriousness.  In contacting the

14     Prosecution at the end of December 2008, Mr. Tabakovic effectively put

15     right his wrong and ensured that no actual damage could be done to the

16     trial process.

17             Mr. Tabakovic's action in contacting the Prosecution at the end

18     of December 2008 ensured that no false evidence was actually presented to

19     the Trial Chamber for its consideration in determining the guilt or

20     innocence of the Lukic accused.  The content of the Tabakovic, X, and Y

21     false statements was not presented to the Trial Chamber in evidence and

22     was not ultimately taken into account by the Trial Chamber.  This, we

23     submit, was entirely due to the decisive action taken by Mr. Tabakovic in

24     contacting the Prosecution.

25             Ultimately, Milan Lukic was convicted and sentenced to life

Page 49

 1     imprisonment.  The statements had no effective whatsoever.

 2             The extent of Mr. Tabakovic's interference with the

 3     administration of justice we would submit is limited to two matters:

 4     First of all, the inclusion of his name, that of X, and that of Y on the

 5     Milan Lukic Rule 65 ter witness list with a summary of the issues that

 6     they would cover.  That was presented to the Tribunal on the

 7     19th of November, 2008.  And the second matter was the provision of the

 8     false statements of X and Y to the Prosecution by the Lukic Defence on

 9     the 20th of January, 2009.

10             If I may expand on that by drawing Your Honours' attention to the

11     schedule of Mr. Tabakovic's contact and put alongside his cooperation

12     with the Office of the Prosecutor, what's attempted to be done in this

13     document is to clearly set out when and what Mr. Tabakovic did by way of

14     inference with the administration of justice and put it alongside the

15     steps he was taking in cooperating with the Prosecutor at the time.  The

16     matters in italics are the conduct that amounts to an interfere -- or

17     that amounts to an interference with the administration of justice.  And,

18     of course, in bold, is his contact in dealing with the Office of the

19     Prosecutor.  The shaded boxes set out quite clearly, we would submit,

20     those points in which there was an interaction between the Lukic Defence

21     and the Tribunal/Office of the Prosecutor and the extent to which those

22     documents and information made its way into the official proceedings.

23             Starting then in October 2008, Mr. Tabakovic was approached and

24     asked to provide a false statement for money.  Something which he agreed

25     to do and did on the 20th of October, 2008.  That was really phase one of

Page 50

 1     his conduct.

 2             The second thing he did was to, at the request of Rasic, find two

 3     others who would be interested in signing statements for money.  X and Y

 4     were found and both signed statements and were given 1.000 euros each,

 5     although X shared his with both Mr. Tabakovic and Y.  That really is

 6     phase two.

 7             The third matter is the amendment of the statements or the

 8     amended statements being signed on the 5th of December, 2008.  Those are

 9     Exhibits 8, and 9 and 10.  Those are the statements which were eventually

10     provided to the Office of the Prosecutor on the 20th of January of 2009.

11     But I'll come to that if I may.

12             So that -- those are the three stages of Mr. Tabakovic's action

13     or conduct, as it were.  On the 19th of November, Mr. Tabakovic, X, and Y

14     were included on the Milan Lukic 65 ter witness list and a summary of the

15     issues that they would -- that their statements went to were provided.

16     Those are the three stages, and Mr. Tabakovic put a stop to that

17     decisively we would say by going to the Office of the Prosecutor at the

18     end of December 2008.

19             On 29th of December, he went to the ICTY field office, didn't

20     leave his name.  Went back the next day, identified himself, and provided

21     a copy of his false statement to the Office of the Prosecutor.  We would

22     submit at that point there was no prospect thereafter of Mr. Tabakovic

23     ever coming to this Tribunal and giving false evidence.  It could just

24     never ever work.  He put a stop to it decisively.

25             The minute he walked through that door of the court to give

Page 51

 1     substance to that false statement, the Prosecution will be able to say,

 2     Well aren't you the man that came to see us on 29th December and gave us

 3     a copy of your false statement and said it was a false statement?

 4             It could not happen from there on in.  He put a stop to

 5     everything.

 6             On the 31st of December, Mr. Tabakovic gave a full recorded

 7     interview, the first of eight recorded interviews to the Office of the

 8     Prosecutor.  He explained what had happened in detail and said he felt

 9     relieved and much better as a result of telling the Prosecution

10     everything that had happened.

11             Moving on, then, to 2009.  On the 9th of January, 2009,

12     Mr. Tabakovic again met with an OTP investigator and was told that he was

13     "free to speak with anyone you wish to and that you must decide for

14     yourself how you proceed with this matter."

15             Mr. Tabakovic explained that he was concerned that the

16     information he had provided does not come into the wrong hands because if

17     they do this may be the end for me.

18             The next -- that was on Friday, the 9th of January.  The next

19     day, the 10th of January, Saturday, at 10.45 in the morning,

20     Mr. Tabakovic himself contacted the Office of the Prosecutor, an

21     investigator, and explained that he been contacted by the Milan Lukic

22     Defence to attend a meeting.  He asked for direction on how he should

23     react to the call and was again told that his response was entirely a

24     matter for him.

25             He met with members of the Milan Lukic Defence at the Mercator

Page 52

 1     hotel and was told that Rasic had been removed from the team and Dragan

 2     was to be the contact.  He was asked to meet someone the following day on

 3     the 11th January, which he did.  He met them at the Mercator and the

 4     false statement was discussed.  That was the Sunday.

 5             The day after, on Monday, Mr. Tabakovic dutifully reported to the

 6     Office of the Prosecutor and told them everything that had happened that

 7     weekend.  He provided the details of the Mercator meeting and all his

 8     contact with the Milan Lukic Defence team over that weekend.

 9             Just as an aside, he mentioned that he was thinking of getting a

10     lawyer and he was told, You have to consider the fact that it might

11     also -- there might be cost involved in doing that.  Mr. Tabakovic said,

12     I don't know what to do anymore; I don't know how to behave.

13             On the Tuesday, the 13th of January, on the basis of the

14     information that Mr. Tabakovic had provided to the Office of the

15     Prosecutor, an investigator went to the Mercator hotel and obtained the

16     CCTV images.  On the 15th of January, Mr. Tabakovic phoned -- was phoned

17     by Mr. -- by Dragan and told to arrange a passport for travel.

18     Immediately after, immediately after that call, Mr. Tabakovic went to the

19     Office of the Prosecutor and reported that contact to the Office of the

20     Prosecutor.  He stated he had been contacted by Dragan regarding his

21     passport.

22             Again, in relation to getting a lawyer, he was told it was

23     entirely a matter for him.  Mr. Tabakovic confirmed that he felt that

24     there was no need to engage a lawyer.

25             Then moving again to the shaded areas, the interaction between

Page 53

 1     the Lukic Defence and the provision of any materials to the Office of the

 2     Prosecutor.  On the 20th January, 2009, the 5th of December statements

 3     were provided to the OTP by the Milan Lukic Defence.  That was on the

 4     20th of January.  Three days later, three days later, Mr. Tabakovic, X,

 5     and Y were removed from the Milan Lukic Rule 65 witness list.  So there

 6     was only a period of three days when the statements were provided and

 7     thereafter they were removed from the witness list.

 8             It is also worth pointing out that on 28th January, Mr. Tabakovic

 9     was again interviewed by the Office of the Prosecutor and identified both

10     X and Y.  So much the same way as once he identified himself at the end

11     of December 2008, there was no prospect of him ever giving life to the

12     contents of his statement.  On the 28th of January, 2009, once

13     Mr. Tabakovic identified both X and Y to the Office of the Prosecutor,

14     there was no prospect that similarly they could ever come and give life

15     to the contents of their statements.

16             In any event, they had already been removed from the Milan Lukic

17     witness list.

18             It's probably worth noting that on the 28th of January an OTP

19     investigator told Mr. Tabakovic, We are grateful for the help and the

20     information that you have given and we hope that this relationship

21     between us continues.

22             Moving on then to 15th January, 2009, Mr. Tabakovic interviewed

23     by Mr. Rogers, Mr. Wood, and a investigator, Mr. Schweiger.  He was told

24     at that stage that if any charges are brought against any person, you are

25     likely to be a witness.  He was shown the CCTV images from the Mercator

Page 54

 1     hotel that were obtained on 13th of January.  He was shown those, and he

 2     helpfully identified those present at the meetings that he had at the

 3     Mercator hotel by identifying them on the CCTV image.

 4             He made clear at that stage that if he were asked by the Defence

 5     to go to the ICTY to testify, he would not go.  On the 2nd of March, he

 6     helped identify -- take part in identification procedure in relation to

 7     Rasic and interviewed again on the 11th of March by the Office of the

 8     Prosecutor.

 9             The 3rd of April, he travelled to the ICTY to give -- well,

10     Your Honours will see that the matters contained in the box relating to

11     the 3rd of April.  And, of course, it is covered in the plea agreement as

12     well.

13             On 21st of August, some months later, he was told he -- contacted

14     the OTP to inquire about his status and was told that he is still a

15     witness.  If the OTP will need to speak to him again, he will be notified

16     accordingly.  That was in August of 2009.

17             Finally, on the 24th of September, he was interviewed as a

18     suspect, again by the same team that had interviewed him earlier, and he

19     took part in a further identification procedure to help identify Dragan.

20             Your Honours, we would hope that that really puts into context

21     and identifies quite clearly the very limited scope of Mr. Tabakovic's

22     wrong-doing and the very narrow and limited impact that his actions had

23     on the proceedings of the Lukic and Lukic trial.

24             That said, Mr. Tabakovic accepts that he did wrong.  His decision

25     to bring his actions to the attention of the Prosecution at the end of

Page 55

 1     2008 we would submit establishes as much.  He knew it was wrong; he drew

 2     it to their attention.  He was anxious for the matter to be resolved and

 3     to prevent any serious harm to the trial process.

 4             We would also seek to draw Your Honours' attention that

 5     Mr. Tabakovic's decision to sign a false statement was motivated out of a

 6     desperation for money.  It was not motivated out of any political or

 7     ethnic motive to frustrate the trial process.  It was not a well thought

 8     out plan.  As he said himself, There was not much thinking into it, and

 9     it was not for patriotic reasons.

10             Moreover, as acknowledged by the Office of the Prosecutor,

11     Tabakovic did not know the precise purpose for which the statements were

12     to be used nor the impact that the statements were intended to have on

13     the Lukic trial.

14             Your Honours, Mr. Tabakovic, unprompted, has specifically asked

15     me to convey to the Trial Chamber that he has the utmost respect for the

16     ICTY as an institution and the utmost respect for the role it plays in

17     bringing to justice those responsible for the crimes committed in the

18     former Yugoslavia.  He has asked that his sincere apologies for his

19     conduct be expressed to both the Trial Chamber and to the victims of the

20     crimes identified in the Lukic and Lukic case.  His desire to cause no

21     further injustice to those victims prompted him to report to the

22     Prosecution at the end of 2008.  It was, in his words, the proper thing

23     to do.

24             This is a case, we would submit, in which maximum credit should

25     be given for his guilty pleas.  Mr. Tabakovic has consistently

Page 56

 1     acknowledged that what he did was wrong.  He, appropriately and of his

 2     own accord, reported matters to the Prosecution.  Without him, there

 3     would have been no case against him or anyone else.  It was his actions

 4     alone that led him to being in this courtroom today.

 5             Your Honours will see the matters set out in paragraphs 12 to 16

 6     of the Defence mitigation note, matters dealing with Mr. Tabakovic's

 7     personal circumstances.  I don't propose to go into those matters in

 8     detail in open session save to say that Your Honours have those details

 9     before you, and we would submit and hope that Your Honours take those

10     matters into consideration when passing sentence on Mr. Tabakovic.

11             All I will draw to Your Honours' attention is, of course, he is a

12     man of limited means.  It is worth, perhaps, drawing to your attention

13     that five -- that one convertible mark is 50 cents, so one euros is two

14     convertible marks.  So Your Honours will see from the matter set out that

15     he is a man of very limited means.  Moreover, in 2008, due to his health

16     problems, he spent some time in hospital, some three months, obviously

17     preventing him from being able to work.  And that was in the period

18     immediately before he entered into this -- this matter and obtained the

19     money as a result of signing a false statement.

20             So he was unable to work for three months.  He is a man of

21     limited means, in any event, prior to that.  And, of course, his

22     detention in relation to this matter is having a impact on his family and

23     who are at present living only off his wife's income in -- in Bosnia.

24     And Your Honours will, of course, see the matters set out in paragraph 16

25     in relation to that.

Page 57

 1             The third portion of my address to Your Honours deals with the

 2     circumstances of his arrest and the time that he has spent in custody.

 3     Your Honour will note that in November 2009 Mr. Tabakovic was in Croatia.

 4     He had just thankfully found a job.  While in Croatia, he heard through

 5     friends that he was wanted in relation to proceedings at the ICTY.  He

 6     immediately, immediately tried to make contact with the field office in

 7     Sarajevo.  He then, of his own accord, returned to Sarajevo to meet

 8     investigators and face the allegations.  He was arrested on the

 9     23rd of November, 2009.  Prior to his arrest, he spoke to police officers

10     by phone and arranged a place to meet for his arrest by mutual agreement.

11     He did not resist arrest and no coercion was used nor necessary.

12             He was held in custody until his release on bail by the court of

13     Bosnia and Herzegovina on the 26th of November, 2009.  So he spent that

14     period in custody from arrest on the 23rd of November to the 26th of

15     November, 2009.  He was then placed on fairly stringent bail conditions.

16     He was prohibited from leaving his place of residence.  I understand that

17     to mean that he was prohibited from leaving the environs of the city that

18     he lived in, and was to sleep -- live and sleep each night at his home

19     address.  He had to surrender various identification documents, and he

20     had to report daily at his local police station.  And that was for a

21     period of some 21 days until his transfer to The Hague on the

22     18th of December, 2009.  He has remained in custody since.

23             May I just deal with one in relation to the time that he has

24     spent in custody.  He spent, obviously, 90 days in custody here in

25     The Hague at the UN Detention Unit.

Page 58

 1             But may I go into private session to deal with one discrete

 2     matter in relation to that.

 3             JUDGE PARKER:  Did you mean 90 or 87 in custody in The Hague?

 4             MR. POWLES:  Sorry, 87 in custody in The Hague plus the time he

 5     spent in custody in Bosnia.  My apologies, Your Honour.  But a total of

 6     90 days in custody altogether, including both those periods.

 7             JUDGE PARKER:  Private please.

 8                           [Private session]

 9   (redacted)

10   (redacted)

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12   (redacted)

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Page 59

 1   (redacted)

 2                           [Open session]

 3             THE REGISTRAR:  We're in open session, Your Honours.

 4             MR. POWLES:  Moving on, then, Your Honours, to the Prosecution's

 5     sentence recommendation.  I'm obviously extremely grateful to the

 6     Office of the Prosecutor for the very helpful digest of all the cases in

 7     relation to contempt and the various sentences that were imposed here at

 8     the ICTY.  It is a helpful digest.

 9             May I draw to Your Honours two mistakes in relation to some of

10     the sentences that were imposed.  In relation to Haraqija, the

11     17th of December 2008 case, disposition guilty, imprisonment for five

12     months, it's worth noting that he was acquitted on appeal.  So that

13     sentence did not stand.

14             And the only other error is on the Bulatovic case, a case

15     involving refusal to testify in which in the note it said that four

16     months' imprisonment was imposed.  It is right to observe that those four

17     months were suspended.  It was a suspended sentence for two years by

18     virtue of the health concerns of Mr. Bulatovic.

19             So those are the matters in relation to that.  Obviously there is

20     a wide range of sentences for contempt here at the ICTY.  In relation to

21     contempt cases at this Tribunal for interference with or intimidating

22     witnesses in which imprisonment has been imposed, the range is from

23     3 to 5 months in the cases of Beqaj, Morina, and Haraqija, which of

24     course, was quashed on appeal.

25             It's worth drawing to Your Honours' attention that all of those

Page 60

 1     sentences, of those 3 to 5 month sentences, all of those sentences

 2     followed contested trials at which the accused protested their innocence.

 3     In all those cases, the accused's contact was designed to specifically

 4     have a direct impact and a serious impact and consequences on the

 5     administration of justice.  Moreover, in none of those cases, did the

 6     accused bring their own conduct to the attention of the ICTY for it to be

 7     dealt with accordingly.

 8             The other case relating to interference with witnesses or dealing

 9     with false evidence and witnesses is, of course, the Milan Vujin case.

10     The Appeals Chamber find Milan Vujin, who was counsel for Mr. Dusko

11     Tadic, 15.000 Dutch guilders.  He received that sentence in circumstances

12     where he had obtained false evidence to present to the Appeals Chamber

13     and which was presented to the Appeals Chamber against the interests of

14     his own client.  That gross breach of trust and corruption of justice did

15     not even warrant a custodial sentence.  I'm all for treating lawyers

16     leniently, but we would submit that Mr. Tabakovic's conduct falls well

17     below of that Milan Vujin.

18             We would submit, therefore, that the Prosecution's recommendation

19     of four to six months is far, far too high, especially in light of the

20     very limited scope of Mr. Tabakovic's interference with justice and the

21     very positive steps he took to cooperate with the Prosecution and these

22     proceedings.  Again, it was Tabakovic himself who sought to ensure that

23     no harm was done to the outcome of the Lukic trial.

24             Your Honours will see the matters dealt with at paragraph 26 of

25     the Defence mitigation note.  It arose during the context of closed

Page 61

 1     proceedings in another trial, so I don't seek to go into it any detail.

 2     But I would highlight the final line of the quoted paragraph in

 3     paragraph 26, the line from the proceedings that were held in closed

 4     sessions.

 5             Mr. Tabakovic's conduct clearly falls on the other side of the

 6     line of whether it is contempt or not.  It clearly is, and that is

 7     attested to by virtue of his pleas.  However, we would submit that that

 8     statement by the Prosecution at that earlier stage on the record in those

 9     proceedings really does highlight very starkly how his conduct falls at

10     the very bottom end of the level of seriousness with regards to contempt.

11             In light of that stated previous position, we would submit that

12     the Prosecution's recommendation of four to six months is clearly

13     untenable.

14             So we move on, then, to the Defence recommendation for sentence.

15             Mr. Tabakovic's interference with the administration of justice

16     is limited to the matters set out in paragraph 6 of the mitigation note

17     and the schedule of conduct which Your Honours have.  In addition to his

18     very limited -- the very limited scope of his activity, we would submit

19     that it is appropriate to consider his conduct in light of the

20     involvement of others perhaps more serious and senior protagonists in

21     relation to this affair.  His initial involvement was obtained and

22     marshalled by the Case Manager in the Milan Lukic Defence.  Thereafter,

23     he was handled by another individual.  Your Honours will see that on the

24     11th January he had discussion with a member of that team and that member

25     of the team was aware that -- of various matters in relation to the --

Page 62

 1     Mr. Tabakovic's position in relation to his knowledge of Milan Lukic.

 2             The significant factor, we would submit, that none of those

 3     properly behind this contempt are before this Tribunal.  Mr. Tabakovic's

 4     role should perhaps also be compared to that of Mr. X and Mr. Y, neither

 5     of whom have been prosecuted for contempt.  Both X and Y knew their

 6     statements were false and for use in the Milan Lukic case.  That could

 7     not be clearer than by looking at the statements that they signed, behind

 8     tab -- behind tab 6 in relation to Mr. Y.  Your Honours will see the

 9     signature on 23rd of October, 2008.  Above it is the declaration,

10     obviously I won't try and read the B/C/S version, but at the end of tab 6

11     is the declaration that appeared above the signature.  It states:

12             "I have read the statement consisting of four pages containing

13     everything I said, and it -- I have given the statement voluntarily, and

14     I'm aware that it may be used in legal proceedings before the

15     International Criminal Tribunal for the former Yugoslavia, and I may be

16     called to give evidence in public before that Tribunal."

17             A similar statement appears at the end of X's statement which is

18     at tab 7.  There can be no doubt, we submit, that both knew that the

19     statements they were signing were for use in these -- for the proceedings

20     at the ICTY.  Moreover, X, like Tabakovic, told Y that he would be given

21     money if he signed something.  Again, neither X nor Y have been

22     prosecuted for contempt in stark contrast to Mr. Tabakovic.

23             Not only have X and Y not been prosecuted, but both have had

24     their involvement in this matter kept out of the public domain.

25     Mr. Tabakovic by contrast has been publicly indicted, and his involvement

Page 63

 1     with the Lukic Defence and his preparedness to sign a false statement

 2     widely known.  Your Honours will see the matter set out at the -- the two

 3     concluded sentences to paragraph 31.  And, additionally, I don't seek to

 4     go into any detail in relation to the matters set out in paragraph 32,

 5     obviously because they arose in private session.

 6             Mr. Tabakovic's time in custody has caused him real anxiety and

 7     concern over the last three months or so.  However, he perhaps faces even

 8     greater hardship upon his return home.  At present, the real impact of

 9     his detention did being felt by his family.

10             Finally, by way of highlighting the cooperation that

11     Mr. Tabakovic has given to the Office of the Prosecutor, may I highlight

12     the following points.

13             He initiated this case by bringing matters to the attention of

14     the Prosecution.  Secondly, he himself provided his statement and

15     Milan Lukic's hand-drawn map to the Prosecution at the very outset of his

16     contact with them.  Thirdly, he was initially informed that he was a

17     "witness" in this case and cooperated fully with the Prosecution in that

18     regard.  Fourthly, after making initial contact with the Prosecution, he

19     was quick to inform them of any further contact with the Lukic Defence.

20     Fifthly, over nine months, he dutifully attended eight interviews with

21     the Prosecution.  He was -- or felt certainly at one point discouraged

22     from seeking the assistance of a lawyer who would perhaps have offered

23     him independent advice on how to conduct himself.  Notwithstanding that,

24     he did dutifully attend nine interviews.  And in his suspect interview on

25     24th of December last year, he didn't even invite the assistance of a

Page 64

 1     lawyer at that stage.  Sixthly, he provided details of all others

 2     involved in this case to the Prosecution.  Seven, he took part in

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7             Your Honours will see the matters set out at point 9.  I don't

 8     seek to deal with that at this stage, but Your Honours will no doubt have

 9     the point.

10             In all the circumstances, Your Honours, we would submit that in

11     light of his very substantial cooperation with the Office of the

12     Prosecutor, in light of the fact that he brought his conduct to the

13     attention of the Office of the Prosecutor, and in light of the fact that

14     there could have been no case without his bringing it to the attention of

15     the Office of the Prosecutor, we would submit that in the very unusual

16     circumstances of this case, a reprimand or perhaps modest fine would have

17     been the appropriate way of dealing with Mr. Tabakovic.

18             He has now spent three months in custody.  On his behalf, this

19     Court is urged to impose a sentence that will ensure his immediate

20     release.

21             Your Honours, those are our submissions, unless I can assist you

22     further.

23             JUDGE PARKER:  Thank you, indeed, Mr. Powles.

24             Mr. Rogers.

25             MR. ROGERS:  Your Honours, yes, there are just a couple of

Page 65

 1     matters I'd like to address, if I may, arising from what my learned

 2     friend has said.  Just a few factual points, really.

 3             The first is at paragraph 6, Roman (ii), where he refers to the

 4     provision of false statements of X and Y, on the 20th of January, in fact

 5     all three statements were provided on the 20th of January from all three

 6     individuals, so Mr. Tabakovic and the other two.  It wasn't just those

 7     two that were provided on the 20th of January at court.

 8             And Your Honours, there are two matters I'd like to address, if I

 9     may, please, in private session.

10             JUDGE PARKER:  Private, please.

11                           [Private session]

12   (redacted)

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Page 66

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20                           [Open session]

21             THE REGISTRAR:  We're in open session, Your Honours.

22             MR. ROGERS:  Your Honours, I can confirm that Mr. Tabakovic did

23     contact the Office of the Prosecutor prior to his surrender.  It is not a

24     matter that was covered within the plea agreement, but it's only fair and

25     proper that the Court should know that that did in fact happen.  He

Page 67

 1     inquired, once he became aware of the proceedings himself, and to what he

 2     should do and what steps he should take.

 3             Your Honours, the expression of view that my learned friend

 4     refers to, Your Honour, we submit that whatever expressions of view may

 5     have been prior to this accused's prosecution, those expressions of view

 6     should not and cannot in any way bind the Chamber once it has concluded

 7     that a crime has in fact been committed.  We all have differences of view

 8     from time to time, but once the conclusion has ban been made that a crime

 9     has been committed, it is irrelevant.  What matters is the sentence that

10     should be passed in respect of the contact.

11             And likewise the fact that others may have not yet been or should

12     have been or might have been prosecuted for other roles in whatever went

13     on is also not a relevant sentencing consideration, in our submission, in

14     relation to this accused's conduct.  Your Honours are not concerned with

15     why others are or may not be before the Court.  Your Honours are simply

16     concerned with this accused's conduct and whether it warrants a sentence

17     of X or Y length.

18             Finally, in relation to the two points my learned friend makes in

19     relation to previous sentences, in relation to the Haraqija case, of

20     course, the relevance is the sentence that was passed by the

21     Trial Chamber.  The fact that it was quashed on appeal, the conviction

22     was quashed on appeal, is really neither here nor there.  The question

23     is:  If the contact had been criminal, what was the relevant sentence.

24             And so far as the Vujin case is concerned, there are two aspects

25     to that.  Firstly, I would invite Your Honours to read it.  Secondly, it

Page 68

 1     was a case that was dealt with under the old regime when the maximum

 2     sentence available was six months' imprisonment.  And thirdly, the Court

 3     pondered long and hard over whether or not the accused should go to

 4     prison in this case, but because he was a Serbian lawyer and was likely

 5     to be disbarred, the Court took that into account in deciding that they

 6     would opt for a fine rather than imprisonment.  So in our submission,

 7     Your Honours may find limited assistance from that case.  But, of course,

 8     it's a matter for you, and you have the list and can use it as you wish,

 9     in relation to sentence.

10             Your Honours, that is -- there is one other matter, in fact, I

11     need to raise just briefly in private session.

12             JUDGE PARKER:  Private, please.

13                           [Private session]

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Page 69

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23                           [Open session]

24             THE REGISTRAR:  We're in open session, Your Honours.

25             MR. POWLES:  Your Honours, in relation to paragraph 6,

Page 70

 1     Roman (ii), of the Defence submissions in the provision of the false

 2     statements of X and Y to the Prosecution by the Lukic Defence on

 3     20th of January, 2009, it is, of course, right that Mr. Tabakovic's

 4     statement was also given at that stage, and that is clearly set out and

 5     acknowledged in the chronology or schedule of conduct.  The reason why it

 6     is not mentioned there is, of course, at that stage he had already

 7     identified himself to the Office of the Prosecutor, which would have

 8     meant that notwithstanding his provision of his statement to the Office

 9     of the Prosecutor, they knew who he was and they would have immediately

10     been able to identify him, which is why in Roman (ii) of 6 he is not

11     included in there.  But it is, of course, right that his statement was

12     also provided with those two statements.

13             Finally, in relation to others who may or may not before this

14     Court, we would submit that is a relevant factor.  Of course, this Court

15     will want to take into account how others have been treated in relation

16     to this case to ensure that there is a parity of treatment between

17     Mr. Tabakovic and others.  And the fact that two others who have

18     committed if not identical certainly very similar conduct to him, the

19     fact that they have not even been prosecuted or even identified, we would

20     submit that that is a factor that is relevant for this Court to take into

21     consideration when determining how best to deal with Mr. Tabakovic.

22             And those would be my submissions, Your Honours.

23             JUDGE PARKER:  Thank you, Mr. Powles.

24                           [Trial Chamber confers]

25             JUDGE PARKER:  The Chamber has received very considerable

Page 71

 1     assistance in this matter from both counsel, and this is reflected not

 2     only in the care in which the motion and the proposed plea agreement has

 3     been prepared and framed but is also reflected in the very careful and

 4     thorough submissions in mitigation and the supporting papers that have

 5     been put before us by Mr. Powles.  We acknowledge those.

 6             Because of those, and having regard to the circumstances, we have

 7     been able to reach a decision today as to the sentence that should be

 8     imposed.  It is the Chamber's view, though, that it would be helpful in

 9     the longer term for its reasons for reaching that decision to be

10     published, and that will be done in the next few days.  But, in view of

11     the circumstances, it is the view of the Chamber that it should announce

12     its decision with respect to sentence today so that appropriate

13     consequential actions can be taken and so that Mr. Tabakovic is not left

14     in further anxiety.

15             Mr. Tabakovic, if you would stand.

16             The Chamber has given consideration to the very careful

17     submissions that have been put on your behalf, in which the issues have

18     been covered most thoroughly, and your role in this matter and the

19     consequences for you have been put before us very carefully.

20             We will impose a sentence on you and we will publish in a few

21     days full written reasons for that sentence, but out of concern for your

22     situation, we will take the unusual step of announcing the penalty now.

23             In the view of the Chamber, in respect of the three convictions

24     that have been imposed today, you will be sentenced to one term of

25     imprisonment of three months.  Credit will be given under the Rule, in

Page 72

 1     respect of the time spent in custody, and the effect, therefore, of that

 2     sentence is that, later this week, you will be eligible for release.  And

 3     the Chamber would expect that the formalities necessary to enable that

 4     release will be made with expedition that you can be released at the

 5     earliest opportunity.

 6             You may be seated.

 7             The Chamber would thank both counsel for their assistance in this

 8     matter.

 9             We will now adjourn.

10                            --- Whereupon the hearing adjourned at 12.12 p.m.