Tribunal Criminal Tribunal for the Former Yugoslavia

Page 44



3 Monday, 25th March 1996 Before: CLAUDE JORDA (The Presiding Judge)



6 MR. MIKE BLAXILL appeared on behalf of the Prosecution MR. MILAN

7 VUJIN, MR. TOMA FILA and MISS JELENA LOPICIC appeared on behalf of

8 the Defendant PRELIMINARY MOTION HEARING Monday, 25th March 1996.

9 THE PRESIDING JUDGE [Original in French]: I hope that you can

10 understand me now. I will just give you the preliminary comments once

11 again. Can the Defence hear what I am saying?

12 MR. VUJIN [Original in Serbo-Croat]: Yes.

13 THE PRESIDING JUDGE: Registrar, also my colleagues, can you hear what

14 I am saying? The officers of the Prosecutor, can you hear me, also

15 the assistants? Thank you very much to the interpreters. The

16 Registrar, would you please introduce the hearing for this afternoon?

17 THE REGISTRAR [Original in French]: This is No. IT-96-20, the

18 Prosecutor of this Tribunal against General Dorde Dukic. Thank you

19 very much.

20 THE PRESIDING JUDGE: Thank you. Let me remind you that we have come

21 to this hearing for one part of the preliminary motions concerning

22 the indictment of the Prosecutor against General Dukic. Firstly,

23 could you please tell me who will be speaking on behalf of the

24 Defence? Mr. Vujin, you with your colleague Mr. Fila?

25 MR. VUJIN: I am Mr. Vujin with my assistants Mr. Fila and Miss

Page 45

1 Lopicic.

2 THE PRESIDING JUDGE: Has your colleague given to the Registrar his

3 number of inscription on the Bar at Belgrade? Registrar, have you

4 received that number?

5 THE REGISTRAR: Mr. President, we did receive the documents earlier in

6 Serbian. I am afraid I cannot answer your question, therefore.

7 THE PRESIDING JUDGE: In that situation then, could you please, sir,

8 tell us what the documents - Madam Lopicic, what the documents are of

9 the documents which were submitted in Serbian as regards your

10 personal circumstances?

11 MISS JELENA LOPICIC [Original in Serbo-Croat]: I am Mr. Vujin's

12 assistant and I can say that in the documents I have these Belgrade

13 Bar Association documents stating that I am a Member of the Serbian

14 Bar Association and the Yugoslav Bar Association. I have a card valid

15 since 1994 until 2004.

16 THE PRESIDING JUDGE: Thank you. Is there any particular official

17 dress or robe which is worn by the barristers at the Bar in Serbia?

18 Maybe your colleague could answer for you because I know that he

19 understands French, but I would like to ask you directly: Why do you

20 have no official robe? It is a very simple question. You are member

21 of the Bar in Belgrade. Is it because you an apprentice, a trainee,

22 at the Bar in Belgrade? I would like to know about your dress, Madam

23 Lopicic.

24 MISS LOPICIC: I am on internship and I am not a fully fledged

25 barrister. That is why I am in civilian clothes.

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1 THE PRESIDING JUDGE: Thank you. As a trainee, have you taken a solemn

2 oath on the professional ethics of the Bar and confidentiality? Mr.

3 Vujin, I am sure you know about this particular question because you

4 have great experience, but I would like Madam Lopicic to answer the

5 question for us directly to the Tribunal. So, Madam Lopicic, have you

6 taken an oath before receiving a robe as a trainee? If you have taken

7 a solemn oath, what did it say, what was the contents?

8 MISS LOPICIC: Yes, I do have to take an oath and official secrets

9 preservation.

10 THE PRESIDING JUDGE: Yes, I would like to say to you, on behalf of

11 the Tribunal, that we will very, very conscientiously look at the

12 documents which have been provided to the Registry, but we are aware

13 of the rights of Defence in the way that the Defence's rights should

14 be fully protected in order to benefit Dorde Dukic, as we will do on

15 the very first occasion we would give very close attention to the

16 situation, accept it as it is - you can sit down, madam - but,

17 please, Registrar, give close attention to this question regarding

18 Miss Lopicic. The prosecuting side, who will be representing the

19 prosecution, Mr. Prosecutor?

20 MR. OSTBERG: Eric Ostberg is my name and I appear today with my

21 Co-counsel, Mr. Michael Blaxill.

22 THE PRESIDING JUDGE: Thank you very much. Is there a representative

23 of the amicus curiae? Mr. Registrar, could you answer that question?

24 THE REGISTRAR: No, there is not for this case, No. 20. There was one

25 for No. 19.

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1 THE PRESIDING JUDGE: Thank you very much. Then, Mr. Registrar, we can

2 begin our hearing. Firstly, regarding this request, I would like to

3 turn to General Dukic to ask him to stand up and to give myself and

4 my colleagues some news as to your health. We have heard some

5 information about your health, General Dukic. The Tribunal would like

6 to ask you, sir, how your conditions of detention are. Tell us,

7 please, if they are in conformity with the standards of civilised

8 countries and then also, of course, taking into account medical

9 confidentiality, I and my colleagues would like also to ask you to

10 tell us generally about your health, General Dukic?

11 THE ACCUSED [Original in Serbo-Croat]: I would like to say that when

12 it comes to various conditions of accommodation and so on, I have no

13 objection whatsoever to make, but my health condition is not very

14 good. I am losing weight for some time now. At the moment I have a

15 disease. I suffer from a disease and I have now sciatica and my

16 muscles are almost deafened. I hardly sleep during the night. I have

17 some trouble with eating, not that food is not available, but the

18 food is relatively monotonous. The food is not very tasty and there

19 is not enough liquid in it which I would need for my health, and this

20 might be one of the reasons, among others, for me beginning to lose

21 weight significantly. I am becoming feeble, so to say.

22 THE PRESIDING JUDGE: Thank you very much, General Dukic. Registrar,

23 do you have any comments to make regarding General Dukic's state of

24 health? The Tribunal is wondering whether it would be a good idea to

25 carry out additional examinations of General Dukic to see how his

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1 health is, and to review the question of whether the present

2 conditions of the detention of General Dukic are compatible with his

3 state of health. General Dukic, would you like to sit down? You may

4 sit down. So, Registrar, the floor is yours.

5 THE REGISTRAR: Mr. President, in a letter dated 18th March the

6 Council for the Defence, Mr. Vujin, made a number of requests

7 regarding the diet as well as examinations for General Dukic which

8 Mr. Vujin felt were important in a letter of 19th, the next day. We

9 contacted immediately the relevant doctor, one of the doctors who

10 works in the prison who is allocated to the prison. I can now tell

11 you that we received an answer this morning. In that answer it was

12 said that all the examinations and tests have been carried out to

13 ensure proper treatment of the patient in accordance or in agreement

14 with the hospital of Bronovo and on the basis of agreement from these

15 particular doctors. There would be no particular basis for taking

16 General Dukic to hospital, detaining the General in hospital. There

17 is a particular diet for General Dukic being provided for medical

18 reasons. We have told the prison that the prison should inform us

19 regarding any other points, and that the doctor should also inform us

20 of any further points regarding need for further medical examination.

21 THE PRESIDING JUDGE: Mr. Registrar, I would like to ask you, does the

22 doctor regularly visit General Dukic in the prison?

23 THE REGISTRAR: The doctor visits General Dukic as well as all the

24 detainees on request. Furthermore, since the General arrived in the

25 prison, and he was by the way examined immediately, the doctor has

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1 returned to carry out several examinations. We have also received the

2 medical file of the General which was transmitted to us. We passed it

3 on to the doctor, of course, straightaway; it being covered by

4 medical confidentiality.

5 THE PRESIDING JUDGE: General Dukic, would you like to take the floor

6 to say anything? THE ACCUSED: At no point would I like to contradict

7 the Secretary in his reporting on the overall situation, but there

8 are details that make all the difference. For instance, I was under

9 medical control for some 15 days, more than 15 days, and I have been

10 - I had a temperature at one point and then my lungs were examined.

11 Also, there was the ultrasonic examination and I was told that my

12 lungs were in order, but that the ultrasound showed certain anomalies

13 and that most probably some additional testing and examination,

14 deeper examination, would have to be made. This I was told in the

15 hospital. In the meantime, over the last 15 or 20 days, I expected

16 that I would be taken to hospital or to be called back to go to

17 hospital for examination. Nobody asked me that but, as I have said

18 already, I have been losing weight steadily and also I must say that

19 I have been here since 12th February, and over the last six or seven

20 days, or maybe 10 days, whenever it comes to food, they tell me that

21 the medical profession is taking steps that they will make an

22 arrangement for me to get better food. Today, we are on 25th March. I

23 do not say that nothing has been done; something has been done, but

24 nothing has been done to change the quality in such a way as to meet

25 my needs as a patient for my condition. At the suggestion of the

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1 house doctor, I even wrote something, although I have no knowledge

2 about culinary recipes, but I wrote two or three recipes of dishes

3 which would be good for me and if this food could be found according

4 to my recipe, I would be quite happy. Now, I apologise to the court

5 for going through the details, but the doctor said that I needed food

6 that is easily digestible and the food that I get is such that it is

7 made into mash. They give me chicken meat in a mashed form which is

8 difficult. I cannot accept this; even a healthy man, I think, would

9 not find it very appetizing. The taste disappears in this

10 preparation. Finally, I do not understand why they cannot allow me to

11 get the food that one eats with a spoon, because this is the kind of

12 food which would be most acceptable, most suitable, for my organism,

13 for my body. Let me say also that I received one raw meal which is

14 something uncooked, but the other meals are made up of elements of

15 fat and greasy stuff and sweet, and I told the doctor that this is no

16 good, that I was afraid that there is too much sugar in my food, but

17 I was told that they will follow my condition, take my blood tests

18 and so on. They took my blood tests, but they took the blood test -

19 made the blood test only once and never before and never after that.

20 But I think that what we need to prevent, if I develop sugar, if I

21 develop diabetes, potentially I am prone to that, that might be too

22 late then and it is possible for me to get diabetes, that why cure it

23 then later if it can be prevented before that?

24 THE PRESIDING JUDGE: Thank you, General, you may sit down.

25 MR. VUJIN: Your Honour, if you will accept our motion for the medical

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1 examination of General Dukic, because on the basis of the data

2 obtained from the Serbian Medical Association which is the highest

3 body in Serbia that had access to the documentation about General

4 Dukic while he was in hospital for post operative treatment, they ask

5 that General Dukic should be submitted to the specialist examination

6 by ultrascaners and other instruments that might detect with any

7 degree of certainty the deterioration of his health conditions. We

8 would insist on such an examination, and that would go together with

9 our motions, preliminary motions. But what is most important is try

10 to prevent the development of disease which might develop, having in

11 mind that General Dukic is seriously ill in terms of all the evidence

12 that we have submitted to you. We consider that the investigations or

13 the examinations in the prison cannot be sufficient to give good

14 results of the cause of the disease that Mr. General Dukic has.

15 THE PRESIDING JUDGE: Thank you very much, Mr. Vujin. Prosecuting

16 Counsel, would you like to say anything about this particular

17 question? It is not really directly a problem for the Prosecution,

18 but I would like all sides to be heard. Mr. Prosecutor?

19 MR. OSTBERG: Thank you, your Honour. Of course, the Prosecution

20 supports a motion on examination by a specialist of General Dukic.

21 THE PRESIDING JUDGE: The Tribunal will now think about this question.

22 (The Tribunal conferred)

23 THE PRESIDING JUDGE: The Tribunal has now discussed this. The

24 Tribunal has decided to apply for a medical expert report to be

25 carried out far as possible in a hospital. Now I turn to the

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1 Registrar to request that you ensure that approved doctors from the

2 Appeal Court in The Hague, professors of medicine with a

3 specialisation in the relevant area. However, the Tribunal requests

4 that General Dukic's medical file, his file from Belgrade, which

5 describes particularly his medical situation prior to his detention

6 in Sarajevo, be submitted to the medical experts concerned. That is

7 the first request of this Tribunal. Secondly, this Tribunal requests

8 that the doctor or doctors - perhaps there should be two doctors or

9 two professors involved in this - should carry out an expert report

10 on the health condition of General Dukic and at the conclusion, which

11 is the second request of the Tribunal, that the conclusions of the

12 doctor or doctors concerned should give specific information as to

13 the diet, in particular the food diet, the diet which should be

14 granted to General Dukic on the basis of these examinations. The

15 Tribunal wishes full information to be provided on the medical

16 situation, medical circumstances, of the detainee, and that the only

17 question to be decided here is that the Tribunal in the form of the

18 relevant chamber should deal with the only question which is

19 important here, which is that the conditions for detention be

20 compatible with the health situation of General Dukic. So on that

21 basis, Mr. Registrar, can I turn to you because we would like within

22 a few weeks at the very most to have some results from this work from

23 the medical experts.

24 THE REGISTRAR: Mr. President, we will look at this immediately

25 starting today. However, let me point out to you that on the basis of

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1 our investigations it is by no means certain that The Hague Appeal

2 Court has such medical experts. The system here would seem to be

3 different. Therefore, I may have to find external experts if I am

4 unable to meet the specific terms of this request, but I can assure

5 that we will act without any delay.

6 THE PRESIDING JUDGE: The Tribunal would not object in any way and

7 would confide this mission to the Registrar in order to make sure

8 that the objectives of the Tribunal's request be fulfilled as soon as

9 possible. That brings us on to the central point of this particular

10 hearing which is a discussion of the preliminary motions raised by

11 the Defence in a motion of 4th March 1996. Mr. Vujin, the floor is

12 yours. This request, this motion, dealt with several different

13 points. Please introduce them. The Prosecutor will then answer, and

14 then the Tribunal will see what deadline it can give you, what time

15 schedule it can give you, for the answer which you wish. The floor is

16 yours, sir. MR. VUJIN: The Defence submitted three preliminary

17 motions on three occasions; the first was on 4th March 1996

18 requesting that this Tribunal should ask the High Court in Sarajevo

19 to give up its competence in the case of General Dukic in accordance

20 with Rule 13.10 of the Rules of Procedure. The second request was

21 that the Tribunal should ask the court in Sarajevo to deliver all the

22 objects taken away from General Dukic on the day of kidnapping on

23 30th June 1995. The third motion was that General Dukic, as a person

24 who is considered innocent until found guilty, can be given the

25 freedom of a free man to sit with the Defence counsel and to talk.

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1 This motion of 4th March will now connect with the motions of 14th

2 March, that was motion No. 2. We still would like to ask that the

3 Defence and the family of General Dukic should be returned, should

4 receive all the personal belongings of General Dukic which are not

5 necessary for this trial. As for point No. 3, we think that this, in

6 fact, is fulfilled because General Dukic now today is following the

7 proceedings as we requested, and if we can continue in this way we

8 will consider our request fulfilled.As for point No. 4 or point No. 1

9 of 4th March, I would like to remind you also of our motion of 14th

10 March when I said that we have not yet received all the evidence that

11 the Prosecutor had at his disposal. Now, on that day we got the

12 Prosecutor has at his disposal. In our contact with Mr. Ostberg

13 today, we were told, we were assured, that the Prosecution has no

14 other evidence than that we have already received. In connection with

15 the evidence that we have received, we made our third preliminary

16 motion on 18th March, but that I mention later. So our motion as for

17 the continuation of the proceedings before this Tribunal is not to

18 say that we question the jurisdiction of this court. We have accepted

19 the jurisdiction of this court, but we would like to ask the panel of

20 judges that they should decide whether the proceedings by the

21 Prosecution had been conducted in accordance with Articles No. 9 and

22 10 because we think that General Dukic was brought before this

23 Tribunal as a witness, and at that time the higher court in Sarajevo

24 had already been conducting investigation and criminal proceedings

25 against General Dukic. So, if the proceedings had started before a

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1 national court, the court of a national Tribunal, then the Prosecutor

2 was obliged in accordance with Article No. 9 of the Rules of

3 Procedure, should have asked that the whole file of General Dukic

4 should be put under the jurisdiction of this court. This had not been

5 done, because you know that the procedure in Article No. 10 says that

6 the Tribunal must consider the proposal by the Prosecution, that they

7 should request that the case be transferred to this Tribunal and so

8 on. Therefore, we think that our objection, our motion was correct

9 because we claim that at the same time in connection with Article No.

10 13, which is applicable to the cases where the sentence has already

11 been passed, we should apply No. 13 to this case as well, because it

12 is impossible that at the same time two parallel proceedings,

13 criminal proceedings, should proceed before two different tribunals.

14 In this connection, we pleaded that the proceedings before the High

15 Court in Sarajevo should be discontinued, because once this court

16 here confirmed the indictment and accepted the indictment and started

17 the proceedings, then we believe and think that the proceedings

18 before the High Court in Sarajevo should not proceed. So General

19 Dukic can be tried only in one place, and this, in accordance with

20 Rules of Procedure about the primacy of the International Tribunal

21 over the national Tribunal, and this is very clear to us. We,

22 therefore, would like to reiterate our motion, saying that this

23 Tribunal should say very clearly: "The case of General Dukic is in

24 our jurisdiction", in the jurisdiction of this Tribunal, "and all the

25 jurisdictions in the High Court in Sarajevo should be discontinued".

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1 The second motion contained in our submission of 14th March has to do

2 with the form of the indictment. We consider that the indictment

3 THE PRESIDING JUDGE: Excuse me for interrupting you. For today's

4 hearing, I my colleagues were very clear about the fact that this

5 only concerns your observations on the motions of 4th March. You will

6 recall that during our previous hearing you yourself on that

7 particular day had submitted additional motions which, it is true, on

8 certain points did, in fact, cover your submission from 4th March. At

9 that particular point the Prosecutor pointed out that as regards your

10 motions of 14th and 19th March he was not yet, at that point, able to

11 answer those points. During the in amera conference which was held,

12 we decided that today you would plead and the Prosecutor would answer

13 only on the basis of your motion of 4th March. Excuse me. Mr. Vujin,

14 I would like things in terms of the procedures to be very, very clear

15 in terms of the contents of our discussions. I cannot remember the

16 exact date, but during our previous in camera meeting we decided that

17 today we would just plead on the basis of the motion of 4th March

18 which, in particular, dealt with the question of restitution of

19 personal objects and the request for deferral. At this point the

20 Prosecutor said that he was not ready to answer the motion which you

21 submitted on that particular day which concerned the question of 14th

22 and 19th March. In order to clarify things, we decided that we today,

23 25th March, would maintain the pleadings and develop the pleadings in

24 a public manner on the basis of what happened on 4th March and the

25 answer from the Prosecution. That is a very, very clear, unequivocal

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1 point. Now, the point which the Registrar has just pointed out to me

2 is that, apparently, the Prosecutor, in fact, today was able to

3 answer the motions from 14th and 18th March. So now, in these

4 conditions, Mr. Vujin, in order to avoid any unnecessary journeys in

5 the future, would you be ready to deal with the totality of the

6 questions, all the questions, which were covered by your requests,

7 your motions, of 14th and 19th March? The Prosecutor, are you ready

8 as well? Asking my colleagues, are we prepared to deal with the

9 pleadings on the motions of 4th and 14th and the motion of 19th?

10 Asking my colleagues, are we ready in the Tribunal to hear these

11 points? I need to be sure that everybody agrees. The Tribunal only

12 requests one thing, which is that we work quickly but effectively

13 and, of course, everybody needs to concede these points, needs to

14 agree to these points. Firstly, the Prosecution and then the Defence

15 counsel. Mr. Prosecutor, you have submitted, I believe, answers to

16 the motions of 14th and 19th March. Prosecutor, the floor is yours.

17 MR. OSTBERG: Yes, we have submitted these answers to the court and we

18 are prepared today, your Honour, to discuss all the three motions,

19 but I would like to do it by starting with the one of the 4th and

20 then go on to the other ones, to keep some kind of order in doing it.

21 So I would like to answer what Mr. Vujin has said so far.

22 THE PRESIDING JUDGE: Mr. Vujin, so you have received the answer of

23 the Prosecutor to your motions of 14th and 19th March. Would you,

24 therefore, today be prepared to argue also to the answer given by the

25 Prosecution to your motions of 14th and 19th March?

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1 MR. VUJIN: Your Honour, the Defence is prepared to plead and to

2 answer all the questions today.

3 THE PRESIDING JUDGE: Good. In terms of methods, I would agree fully

4 with what the Prosecutor suggested, which is that we on a successive

5 basis deal with the motions of 4th, 14th and 19th March. The last

6 question for you, Mr. Vujin: Do you intend finishing with the

7 preliminary - excuse me, Mr. Vujin, Mr. Vujin, do you intend, does

8 the Defence feel that it will - have you finished with the

9 preliminary motions? You have 60 days from 4th March to submit

10 preliminary motions, that is, to the benefit of the Defence. Do you

11 feel that the request of 19th March, that the date of 60 days has

12 been used or would you like to submit further preliminary motions?

13 MR. VUJIN: For these questions, we have actually exhausted our

14 preliminary motions, and we will today only at the end ask orally,

15 because we are asked by our client, General Dukic, that we should

16 make a motion which has to do with the technical issue which may not

17 be quite technical only, namely, the use of handcuffs. We will also

18 lodge a motion orally so that there is no need to handcuff General

19 Dukic when he is being brought here, because there is no danger that

20 he will try to escape. In accordance with the Rules, we will point

21 this out. Everything else we have said. We have no further motions

22 and we will think that with today we have fulfilled our term of 60

23 days and that this has been exhausted. Let me add, I talked to the

24 Prosecutor before this session about their attitude towards our

25 request for the ending of the detention, and there will be a special

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1 hearing on that.

2 MR. OSTBERG: Yes, your Honour, may I -

3 THE PRESIDING JUDGE: Yes, Mr. Prosecutor.

4 MR. OSTBERG: - say something to what I said beforehand? We are ready

5 to deal with every question and motion except what is said under

6 paragraph (B) in the motion of the 18th March from the Defence, where

7 the question of release and medical checking is discussed. We have

8 already discussed the medical examination of the defendant. My

9 submission is that this motion on his release or others, related

10 questions, needs a separate hearing and, therefore, if I understand

11 the matter of regime correctly, it is also his submission to the

12 court. But all other issues raised today or in the motion so far, we

13 are prepared to discuss today.

14 MR. OSTBERG: I have no translation in English.

15 THE PRESIDING JUDGE: You can hear the English interpreting?

16 MR. OSTBERG: Yes, I can hear now.

17 THE PRESIDING JUDGE: Mr. Vujin, can you now hear what I am saying?

18 MR. VUJIN: Yes.

19 THE PRESIDING JUDGE: Good. I would like to summarise then. We are

20 ready to argue on the totality on both sides at this point, 5

21 o'clock, 25th March - Registrar, please note that - all the

22 preliminary motions raised by the Defence. The Tribunal also notes

23 that there are no other preliminary motions, that there be no other

24 preliminary motions. Mr. Vujin, with your agreement, you have no

25 other preliminary motions? You have, therefore, exhausted your right

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1 to the 60 days?

2 MR. VUJIN: Your Honour, yes.

3 THE PRESIDING JUDGE: Prosecutor, have you noted this?

4 MR. OSTBERG: I have noted -

5 THE PRESIDING JUDGE: Prosecutor, would you kindly tell us very, very

6 clearly what the point is which you could not argue on today?

7 MR. OSTBERG: This point raised under paragraph (B) in the motion of

8 18th March, concerning that paragraph (B), which is a motion on the

9 checking of the health of the defendant and the motion of his being

10 released. We are not prepared to discuss this question. It needs, in

11 my opinion, a separate hearing.

12 THE PRESIDING JUDGE: On this point, point (B) which the Prosecutor

13 has just raised, can we then agree that there would be a hearing

14 after the results of the medical evaluation? Mr. Prosecutor,

15 afterwards?

16 MR. OSTBERG: Yes, your Honour.

17 THE PRESIDING JUDGE: The date which the Tribunal, obviously, cannot

18 set today. Privately had to sit with the Prosecutor, he says that it

19 is very difficult in the next few days if we want the medical

20 examinations of the General to be done properly, and that the accused

21 want them to take place here in Holland. I think it would be

22 difficult today to say what date since we have just decided that his

23 examination takes place. It is hard to know what date we can really

24 have it. Therefore, we will speak about the various things that we

25 have to discuss. First of all, I am happy to deal with the request of

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1 4th. Mr. Vujin you will argue on the question of 4th. The Prosecutor

2 will answer on the request of the 4th. Then Mr. Vujin you will speak

3 on your application of 14th and the conclusions about that. The

4 Prosecutor will answer what was asked on the 14th and what you have

5 to say about the 18th, and the Prosecutor will also the answer the

6 application of 19th. Do we agree? So, Mr. Vujin, without going back

7 into everything you said since I did interrupt you, you were just

8 beginning to make comments on the request of 14th. I would like to

9 ask you when you have finished discussing the 4th, that is, the

10 deferral and the personal objects that you raised - have you

11 finished with that subject?

12 MR. VUJIN: Your Honour, I had simply completed my plea on behalf of

13 the Defence in connection with our motion of 4th March and I have

14 nothing to add to that.

15 THE PRESIDING JUDGE: You have the floor, Mr. Prosecutor. We are happy

16 to deal with the application of 4th March.

17 MR. OSTBERG: Thank you, your Honour. The first thing I will deal with

18 is No. 3 in the points made in the application in the motion of the

19 4th March, and that is the question of how to treat the defendant in

20 the courtroom to respect the rights of the accused and let him sit

21 behind, etc. We are in agreement that has has without any special

22 ruling from the Trial Chamber already been settled, so I will say no

23 more about that. On the other two points, we have filed an answer to

24 the motion -

25 THE PRESIDING JUDGE: Excuse e, when you say that you agree about the

Page 62

1 treatment outside of the room, the courtroom, what do you mean by

2 that?

3 MR. OSTBERG: No, in the courtroom, to respect his rights and to sit

4 where he sits, etc. There are no motion under point 3, as far as I

5 can understand. I am not dealing with other motions about handcuffs

6 and things, your Honour.

7 THE PRESIDING JUDGE: I understand, thank you. Mr. Vujin, you saw

8 where the General has been kept. Please sit down, General Dukic. You

9 know that he is now accused, that is his status, and you notice that

10 the glass that was around the bench where the accused is sitting is

11 no longer there. He is now accused. He is no longer a witness. The

12 Tribunal considers that the Statute assumes a certain number of

13 guarantees. Let me remind you, Mr. Vujin, that these guarantees are

14 also guarantees for ensuring protection, to have him surrounded by

15 guards. They are here to protect him as well as to guard him and the

16 Tribunal. If this were to be desirable for you, it enables you to

17 speak with him. This is why we have taken down the glass in order for

18 you to be able to speak more easily. We have strengthened the guards,

19 so even the glass is no longer there, we do not want there to be any

20 danger for the General. So, does the General now understand? Does the

21 Defence understand? Does the Prosecutor understand? Prosecutor, do

22 you agree? I give you the floor, Mr. Prosecutor, about the other

23 points.

24 MR. VUJIN: Your Honour, that is exactly what we asked for and we are

25 grateful for this arrangement, thank you.

Page 63

1 MR. OSTBERG: Thank you, your Honour. I will now deal with the first

2 point in the motion of 4th March. We filed a response to that on 14th

3 March and I am not going to take up your time, your Honours, with

4 reading it all again. I just highlight some of the arguments which I

5 will give an answer to. The first paragraph petitions the Trial

6 Chamber to formally suspend, in accordance with Rule 13 of the Rules

7 of the Procedure and Evidence of the Tribunal, the proceedings

8 instituted by the Higher court in Sarajevo. As a legal foundation for

9 this request, the Defence also cites Article 10(1) and Article 9(2)

10 of the Statute. Article 10(1) and Rule 13 of the Procedure and

11 Evidence of this Tribunal is only applicable in cases where a person

12 has already been tried by the International Tribunal. The defendant

13 has obviously not been tried by this Tribunal, and consequently the

14 cited Articles and the Rule do not apply. The Defence also cites

15 Article 9(2) of the Statute which deals with the question of the

16 Tribunal's primacy over national courts. This Article has to be read

17 in conjunction with Rule 9 where you find that the Prosecutor may,

18 under certain circumstances, propose to the Trial Chamber that a

19 formal request be made that a national court defer to the competence

20 of the Tribunal. The Prosecutor has considered this matter, and

21 determined that it is not appropriate for the time being to propose a

22 deferral. The request by the Defence under paragraph 1 in the motion

23 can consequently not be granted. We have elaborated a bit on this in

24 our written answer, and I just repeat these cited articles and

25 paragraphs do not apply. I now turn to point 2 in the motion of 4th

Page 64

1 March concerning the possessions of the defendant. The documents and

2 property of the defendant referred to in this paragraph are now in

3 the possession and custody of this Tribunal. They are no longer in

4 Bosnia. They are currently being reviewed in the Office of the

5 Prosecutor from the point of view of their evidentiary value. After

6 completion of that review, they will be turned over to the detention

7 facility for safe-keeping. The request in this paragraph is thus no

8 longer relevant. The things are by us in our custody. We look upon

9 them as long as we find need to do so, and then we turn them over to

10 the detention where the defendant now resides. This, your Honour, is

11 what I think necessary to say to the two points of the motion of 4th

12 March. Thank you.

13 THE PRESIDING JUDGE: Thank you, Mr. Prosecutor. Mrs. Odio-Benito,

14 have you anything to say? Mr. Riad? Perhaps the Presiding Judge would

15 have one or two questions which would be supplementary. Dealing with

16 point one, it was your initiative, the text would say so - is the

17 question being studied as to the proper timeliness of this, that is,

18 the issue of non-bis-in-idem? Has this issue been studied? No-one can

19 be prosecuted in two places at the same time.

20 MR. OSTBERG: Of course.

21 THE PRESIDING JUDGE: Is this being taken up as an issue with the

22 Office of the Prosecutor.

23 MR. OSTBERG: Yes, indeed. It is an on-going investigation in another

24 place than in the Tribunal. It is no obstacle to an indictment. There

25 is no obligation for the Prosecutor to have a case deferred to the

Page 65

1 Tribunal just by the case that another investigation is ongoing. It

2 can be fruitful, both of them. When it comes to try the case, then,

3 of course, we have to decide whether to ask for a deferral or to give

4 back the case to the place where another investigation is going on.

5 So, there is no danger of an non-bis-in-idem trial in this case.

6 THE PRESIDING JUDGE: Thank you. The second question I would like to

7 ask you: the Tribunal received the list of possessions. As is often

8 the case in these situations, there are objects which are personal,

9 others which are directly linked with the investigation, others which

10 are both personal and could also be used in the investigation. This

11 is the problem in the Office of the Prosecutor and also, perhaps, the

12 problem of the Tribunal itself. Nonetheless, and now I am turning to

13 the Registrar, at a given point do you think that some of the

14 personal objects might be returned to the Registry - personal

15 objects? I turn to you, Mr. Prosecutor: at a given time do you not

16 think that some of the objects which are personal - I do understand

17 that you intend to give all of those objects back to the General that

18 were taken from him when he was placed into detention in Sarajevo and

19 then transferred to The Hague. The list has things for which the

20 Tribunal has nothing to say, and is up to the Prosecutor to decide.

21 The first question, at a given point do you intend to return all of

22 the objects to the detention unit, and the time period for this, does

23 it appear to be something that you can do soon? I think this is

24 important for somebody to know, at what point he can have his objects

25 back. If you say six months, a week, a year, it is important;

Page 66

1 sometimes people need these things. These are things that I would

2 like to ask. Also, I turn to the Registrar and ask, whether once the

3 objects have been given back to the Registry, is the Registrar fully

4 able to do what he wants or does he have to consult with the

5 Prosecutor about what to do with them? First, I give you the floor,

6 Mr. Prosecutor, and then the Registrar.

7 MR. OSTBERG: From the point of view of the Prosecutor's office, we

8 are ready to give it back in a couple of days. We can also, as soon

9 as we have seen what we may need in evidence, and in a way copy or

10 take care of documents or things like that, but other things as soon

11 as possible, by that I mean in a couple of days, we would return it

12 to the detention certain centre and then it is for the detention

13 centre, in co-operation with the Registrar, to decide what to give

14 back to the defendant personally.

15 THE PRESIDING JUDGE: This has now been noted in the records of this

16 hearing. Registrar?

17 THE REGISTRAR: Yes, your Honour. We have the brief of 13th February

18 which is telling the Prosecutor that we would like to receive a

19 certain number of objects. I am thinking about some of the

20 deutschemark that was in the General's possession which do not seem

21 to be linked to this investigation. I said to the Prosecutor at the

22 time that this money could be returned as the easiest thing that

23 could be done. It could be used for making telephone calls, for

24 example. When the Prosecutor has returned these objects to us, or a

25 weapon, of course, this would not be given back to the accused, but

Page 67












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Page 82

1 anything else of course would be.

2 THE PRESIDING JUDGE: Thank you. All explanations now have been given

3 having to do with the request of 4th March. Are there no other

4 additional observations? Can we move to the next request which, I

5 think, is the one dated 14th March? The request of 14th March. Mr.

6 Vujin, Mr. Fila, the floor is yours, Mr. Vujin.

7 MR. VUJIN: Thank you, your Honour, but before I start let me say a

8 few words about the Prosecutor's attitude towards our motion of 4th

9 March. Articles No. 9 and 10 of the Rules of Procedure, in our

10 opinion and understanding, do not refer to the case that has been

11 already tried, but, rather, the cases where an investigation has been

12 opened. The first sentence in Article No. 5 says that, and we think

13 that the Prosecutor's attitude is not justified. As for our motion to

14 return personal belongings, I think we can agree with the view of the

15 Prosecutor and the Registrar, but I must say that General Dukic had

16 no weapons. He only had a key. He had German Marks and he had permits

17 for weapons, weapon licences, but not weapons themselves, but the

18 court will decide. Our next motion contained in our motion of 14th

19 March had to do with the content of the bill of indictment in which

20 there were a number of incorrect statements. Mr. Dorde Dukic was not

21 a member of the Yugoslav Army, of the Yugoslav Federal Republic of

22 Yugoslavia and his title is not Major General. Mr. Dukic is

23 Lieutenant General of the Army of Republika Srpske and not as the

24 indictment says in the Army of the Bosnian Serbs because, in

25 accordance with the Dayton Agreement, Republika Srpske is recognised

Page 83

1 as such and it is the duty of the Prosecutor's office to state the

2 official name and title of this entity which has been recognised by

3 the Dayton Agreement.

4 THE PRESIDING JUDGE: Is he a General? Is he a Colonel? What exactly

5 is he in the hierarchy?

6 MR. VUJIN: Lieutenant General. He is a Lieutenant General. THE

7 PRESIDING JUDGE: So, Lieutenant colonel, Lieutenant General, exactly

8 what is he?

9 MR. VUJIN: Lieutenant General.

10 THE PRESIDING JUDGE: Lieutenant Colonel General. It is a bit long.

11 Sometimes I may just call him Mr. Dukic if it does not bother him.

12 MR. VUJIN: You can call him General because this is an abbreviated

13 form of address. Also the indictment says that Mr. Dorde Dukic was

14 the Assistant Commander for Logistics, so Assistant Commander of

15 Ratko Mladic Logistics. This is not a true statement of fact. General

16 Dukic was Assistant for Logistics in the General Staff. The fact that

17 Ratko Mladic was the Chief of the General Staff does not bring

18 General Dorde Dukic in connection with Mladic. The indictment speaks

19 very generally about the scope of activity and responsibility of

20 General Dorde Dukic who allegedly was responsible for the planning,

21 preparation and execution of the operation of the Bosnian Serbs which

22 is not correct. The duties of General Dukic are stated incorrectly

23 when he is said to be the Assistant Commander for Logistics. His

24 duties and responsibilities cannot have any connection with any guilt

25 without first stating in the indictment what is the decision that

Page 84

1 General Dukic ever made or that he participated in the making, such

2 that such a decision would describe the criminal act with which he is

3 charged by the indictment. Therefore, we consider that the bill of

4 indictment is generalised with many loopholes, including the

5 statement which says that in the territory of the former

6 Bosnia-Herzegovina there was war, conflict and partial occupation. In

7 the territory of the Bosnia-Herzegovina there was no partial or any

8 other kind of occupation. In the territory of the former Bosnia-

9 Herzegovina there broke out civil and religious war without any

10 intervention of foreign troops to occupy different parts of the

11 country. When the indictment says that there was occupation or

12 partial occupation, then the Prosecutor had to specify who occupied,

13 when they occupied, what they occupied and why this was an act of

14 occupation. The statements under No. 7 in the bill of indictment and

15 No. 6 are both also incorrect and are not supported with any

16 evidence, because General Dukic, according to his own scope of

17 responsibility, had no part to play in the planning and preparation

18 of operations and military and tactical tasks. Under No. 7 the

19 indictment says that there was deliberate and indiscriminate firing

20 on civilian targets to terrorize citizens and the civilian population

21 of Sarajevo from May 1992 until roughly the end of 1995. Such

22 statements, again, have no foundation in fact. If the indictment says

23 this, then it is necessary that the indictment should also state very

24 clearly when the firing or shelling of civilian targets in Sarajevo

25 took place, and this cannot be simply given as an annex where we find

Page 85

1 in tabular form we have the bombardment of civilian targets. Also,

2 evidence should be provided to support this statement when we say

3 that there were shellings and bombings, bombardment of the civilian

4 targets by the Army of Republica Srpska. Also, the indictment should

5 provide evidence that General Dukic took any part in such actions.

6 There is no such support in the bill of indictment. Therefore, the

7 bill of indictments such as it has been presented, has been submitted

8 against the Rules and the Statute of this Tribunal because it speaks

9 about objective responsibility without individualization, while both

10 the Statute and the Rules of Procedure are very clear in one thing:

11 the Tribunal can only try people for their individual crimes, in

12 which case we need sufficient evidence which is lacking in this bill

13 of indictment which is generalised and which makes it impossible for

14 the Defence to try to decide how to defend and how to plead; whether

15 to establish an alibi or not. Therefore we would ask the Tribunal to

16 order the Prosecutor to make the bill of indictment more specific,

17 more concrete, to specify the acts committed by the indicted person

18 Dukic, showing that the civilian targets were hit in Sarajevo. They

19 should also give the exact dates and time of such shellings. Only

20 then can we sit down as Defence counsel and try to present our

21 evidence to this Tribunal in the interests of fair justice. So much

22 about our motion of 14th March.

23 MR. FILA: Your Honour, I think can I only join Mr. Vujin in what he

24 says, but I would like to point out three drawings, drawings that the

25 Prosecution has given as an enclosure and, supposedly, as evidence.

Page 86

1 From these drawings we do not know who made the drawings, because I

2 can tell you that they are, apart from anything else, incorrect. You

3 will easily find out because look, it says here -

4 THE PRESIDING JUDGE: Let me take a look. I would like to see them on

5 a video or closer up. To look at those drawings from here it is

6 difficult to see.

7 MR. FILA: On the first page we talk about the organisation of the

8 Republica Srpska. This is page No. 1 which I think you have - no

9 they do not have it. This is the organisation of authority and the

10 Army of the Republica Srpska. Even this is not very clear and not

11 correct. There it is added. Then paramilitary forces are listed as

12 part of the organisation of the Army of Republica Srpska, which the

13 Prosecutor knows very well is not true because they are outside the

14 regular forces and they are separate. Therefore, we would like to ask

15 to have such documents submitted next time with the signature of

16 somebody who has made such a document, and also what they submit

17 should be correct and true.

18 THE PRESIDING JUDGE: The comments of the Defence which I could

19 summarise deal with some of the form which appears in the indictment

20 and which the Defence considers important, that is the proper

21 position of the Lieutenant Colonel General Dukic and also his

22 situation within the Chief of Staff. In addition to that, the Defence

23 at least states that there are a certain number of points in the

24 indictment which are not complete, specifically points 6 and 7. If I

25 did understand what he said, the Defence is requesting that the

Page 87

1 indictment be more specific or at least be supplemented. Have I

2 summarised the Defence's points correctly?

3 MR. VUJIN: Yes, your Honour.

4 THE PRESIDING JUDGE: I now turn to the Prosecution. Would you like to

5 respond to the different points that have been raised in the

6 Defence's motion of 14th March? I give you the floor, Mr. Prosecutor.

7 MR. OSTBERG: Thank you, your Honour. Mr. Blaxill will deal with the

8 motion of 14th March 1996.

9 MR. BLAXILL: With your Honour's permission, regarding this particular

10 motion filed by the Defence, I would suggest that the first three

11 paragraphs of that motion of 14th March 1996 do not really require

12 specific reply by the Prosecution, save in so far as there is a

13 reference to Rule 66 (A) of the Rules of Procedure and Evidence. That

14 requires the compliance by the Prosecution with a duty to supply

15 supporting materials with an indictment for that indictment to be

16 confirmed. That also has to be effected as soon as practical after

17 the first appearance of the accused. The Prosecution contends that,

18 in fact, it has discharged that obligation both in terms of supplying

19 the required materials and, secondly, by doing so in a timely basis,

20 the materials being in fact submitted at the first status conference

21 that was held in camera some 10 days from the first appearance of the

22 Defendant in this court. The next element that is contained in the

23 motion of 14th March, your Honour, is relating again to the question

24 of deferral, and the proceedings that are being undertaken by way of

25 investigation under the authority of the Higher Court in Sarajevo.

Page 88

1 The Prosecution contend that this does not in any way effect the

2 primacy of the Tribunal, or indeed place any present obligation on

3 the Prosecutor or upon the Tribunal to seek a deferral before or

4 after the issue of an indictment. Your Honours, I submit that if you

5 regard Rule 9 of the Rules of Procedure and Evidence there are three

6 specified points within that rule which should alert the Prosecutor

7 to take the step of a proposal to the Tribunal to request a deferral.

8 The first is where the act being investigated or is the subject of

9 those proceedings is characterised as an ordinary crime. The second,

10 where there appears to the Prosecutor that there is a lack of

11 impartiality or independence or the investigations or proceedings are

12 designed to shield the accused from international criminal

13 responsibility, or the case is not diligently prosecuted. Then the

14 third element being that what is in issue is closely related to or

15 otherwise involves significantly factual or legal questions which may

16 have implications for investigations or prosecutions before the

17 Tribunal. Your Honours, I would suggest that in this particular case

18 the first of those limbs would be inapplicable, as the Higher Court

19 in Sarajevo is believed to be investigating war crimes and not

20 "ordinary crimes". With regard to the other two limbs, I would

21 respectively suggest, your Honours, that is a matter that is largely

22 in the discretion of the Prosecutor and judging the situation as it

23 is found. The Rule does grant by its language the option, in the

24 discretion of the Prosecutor, as I say, then to make such a proposal

25 to the Trial Chamber. But I submit to your Honours that this does not

Page 89

1 actually affect the Prosecutor's powers or, indeed, duty in relation

2 to the issue of an indictment. I have three grounds upon which I make

3 this submission, your Honours. Firstly, the Rules are silent as to

4 any link between deferral and indictment, either in terms of time or

5 in terms of procedure. A request for a deferral is not, as I can see

6 from the Rules, your Honours, in any way a condition precedent upon

7 the issue of an indictment in any case. The second argument I put to

8 you, is that the provisions of Rule 9 are indeed discretionary, and

9 whereas in relation to the issue of an indictment, the provisions of

10 Rule 47(A) are in fact mandatory upon the conditions stated in that

11 Rule becoming fulfilled. As a result also, Article 9(2) of the

12 Statute of the Tribunal states that the discretion to request

13 deferral is available to the Tribunal "at any stage of the

14 procedure." The third element of argument I put forward, your

15 Honours, is that there is nothing in the Rules that precludes the

16 Tribunal from conducting proceedings simultaneously alongside those

17 of a national court (I cite Rules 12 and 13 of the Rules of Procedure

18 here). Indeed under Article 9 of the Statute of the Tribunal, it is

19 stated that there is a concurrent jurisdiction but with primacy to

20 the Tribunal. As a result, it is not, as I say, a condition precedent

21 that deferral is involved in the actions of the Prosecutor at the

22 time of the issue of an indictment or, indeed, the first appearance

23 of an accused or during the pretrial motion stage. As a result, your

24 Honours, I would respectfully submit that the Prosecutor has acted

25 properly in accordance with the Rules of Procedure, and that a

Page 90

1 proposal by the Prosecutor for deferral under Rule 9 is

2 discretionary, not a prerequisite, as I have said, for the issue of

3 an indictment and, therefore, that the subsequent issue and

4 confirmation of the indictment was valid. Regarding the issues

5 raised, your Honours, as to the contents of the indictment which are

6 referred to in the 7th and then subsequent paragraphs of the Defence

7 motion of 14th March, it is the Prosecution's contention that we have

8 set out sufficient fact and description to fulfil the requirements of

9 Rule 47(B) of the Rules of Procedure and Evidence. The first thing we

10 are obliged to do is sufficiently to identify a defendant so that,

11 essentially, obviously the correct person is arrested, is brought to

12 the court and answers to the indictment. The second element is that

13 the crime itself is sufficiently and concisely stated in order that

14 the defendant is under no illusion as to what it is that is alleged

15 in brief terms. It is not, I respectfully submit, the purpose of an

16 indictment for the Prosecution to lay out its evidence in fine

17 detail. Of course, it is encompassed in our rules for discover that

18 additional evidence and full detail will and must be provided to the

19 Defence after the commencement of proceedings. As a result, I will

20 cover some of the relevant points that have been raised by the

21 Defence. That is, firstly, regarding the descriptions that are given

22 complaining as to matters of detail being inaccurate as regards the

23 rank, the duties, the titles of the defendant. It is the

24 Prosecution's submission, your Honours, that the description of a

25 "main staff" is a sufficiently proximate one and that "Assistant

Page 91

1 Commander for Logistics", these are essentially semantic complaints

2 as to wording. I think possibly we can also allow for the problems of

3 interpretation and translation between the official languages of the

4 Tribunal and the natural languages of the defendant and of his

5 military organisation. I would suggest, with respect, your Honours,

6 that it is a matter of evidence to be proved in the course of trial,

7 these various details relating to the defendant, his role, his

8 command and his areas of operation. At this stage we submit that the

9 descriptions given in the indictment relating both to him and to the

10 alleged offence, are sufficiently accurate to know of whom we speak

11 and what we are alleging, i.e. the shelling of the civilians in

12 Sarajevo. Subsequently, there are statements made regarding the

13 duties to be performed by General Dukic and so forth, but these are

14 again, I suggest, matters of detail and matters of proof and dispute

15 in the course of the trial. There is a section where the Defence

16 motion regards the statements made in the indictment under item 4,

17 and this is the area commenting upon the matter of the armed conflict

18 and the allegation of partial occupation. The Prosecution submits

19 that really these again are elements to be proven as intrinsic to the

20 background to the allegations and part of the matters to be dealt

21 with and proved fully at trial. As a result, the Prosecution's

22 contention today, your Honours, is that frankly the Defence motion

23 does not show any fact at this stage which offers a valid challenge

24 to the jurisdiction of the Tribunal in terms of the nature of the

25 armed conflict. Likewise, there is nothing of a factual basis that

Page 92

1 challenges the validity of the issue and the confirmation of the

2 indictment. That is the stage that we are essentially considering.

3 Have all the things that should be done been done in relation to a

4 proper indictment coming before your Chamber? As a result, the

5 Prosecution essentially relies upon this argument for all those items

6 referred to in the Defence motion, and referred to under the

7 paragraphs indictment under item 5, under item 6, under item 7. It is

8 again, I reiterate, the duty of the Prosecution to prove these facts

9 in the course of trial. I suggest it is not something that is within

10 the scope of pretrial motion to have the indictment voided or an

11 allegation of failure to comply with the Rules of Procedure. There is

12 then reference made in the course of this motion, your Honours, to

13 Article 17 of the Statute of Tribunal. In fact, I am sure the

14 intention and by its wording that means Article 7 of the Statute. I

15 would suggest even that the Defence's own factual admissions as to

16 the rank, the role and the duties of the defendant make it somewhat

17 clear that the Prosecution has indeed put forward sufficient to have

18 the general basic requirements of Article 7 responsibility indicated.

19 At this stage, it is a matter of indication as opposed to proof which

20 again is a matter for trial. It is my submission, therefore, your

21 Honours, that the Prosecution has acted in compliance with Rule 47(A)

22 in terms of the issue of an indictment at the appropriate time. We

23 have complied with Rule 66(A) serving upon the Defence supporting

24 materials, the materials upon which the indictment was confirmed, and

25 that is the duty at this stage. I also contend that the indictment is

Page 93

1 in a form which complies with the basic requirements of Rule 47(B) of

2 the Rules of Procedure and evidence, namely the concise but adequate

3 description of defendant and allegation against him. It is on that

4 basic, your Honours, that I would invite you, therefore, to dismiss

5 the motion alleging defects in the indictment and noncompliance with

6 the Rules of Procedure and Evidence under the motion that was filed

7 on 14th March 1996.

8 THE PRESIDING JUDGE: Thank you very much, Mr. Prosecutor. Perhaps at

9 this point a question from my side just to make things as clear as

10 possible. You are saying with regard to Rule 47 that in the present

11 circumstances the indictment is complete, that there is nothing else

12 which needs to be added to the indictment as regards its present form

13 and as regards the criticisms we have heard in terms of content as

14 well as form from the Defence.

15 MR. BLAXILL: Your Honour, I am suggesting that it meets the basic

16 requirements. I think the Prosecution are under no illusions that

17 this is a fully expanded and pleaded case at this time. It is the

18 anticipation of the Prosecution that we may seek appropriate

19 amendment. We will most certainly be filing very much more accurate

20 particulars and further evidence to amplify the allegations. So, I am

21 suggesting that what we have reached at this stage is a basic level,

22 the basic level that satisfies the Rules of Procedure.

23 THE PRESIDING JUDGE: Thank you. I would like to go into further

24 detail on my questions, Mr. Prosecutor. Regarding the additional

25 elements of the indictment will you, if you feel it relevant, add to

Page 94

1 these particular details, and it is your responsibility to do that if

2 you feel it is right, or will you, if necessary, amend the

3 indictment? So there is a difference between these two. Let me remind

4 you that the indictment which you have submitted which was confirmed

5 by a Judge in this Tribunal, has been submitted and it is not at this

6 point for it to be debated. It is being criticised, as is right,

7 publicly as we have just heard from the Defence counsel for General Dukic.

8 In its present terms it is a fundamental indictment and you

9 are proposing that at a later stage you will be adding further

10 elements to it perhaps. So, is the Tribunal, have we fully understood

11 what you have said to us? For you in the Prosecuting office are you

12 saying that the indictment is that which has been submitted on 4th

13 March and that anything which comes along later which could be

14 elements of evidence, which could be part of exchange of arguments

15 between Prosecution and Defence; or the second possibility, are you

16 reserving the right, perhaps, to amend and complete the indictment

17 which would introduce new accusations - new, for example, elements of

18 evidence would be a quite normal procedure of exchange - or would you

19 be adding further elements to the indictment? You do not have to

20 answer this. It can remain confidential to the Office of the

21 Prosecutor. I just wish to raise that question at this point.

22 MR. BLAXILL: I am quite content to answer it, your Honour, on the

23 basis of saying quite possibly both. We realise, obviously, the

24 evidence has to be served. In the course of discovery, obviously, a

25 lot of more detail will be supplied. That is point No. 1. But we also

Page 95

1 believe that when our investigations are fully completed, there is

2 every prospect we would seek the leave of the court to make

3 amendments to the indictment itself.

4 THE PRESIDING JUDGE: Defence, in this debate which clarifies things

5 as is necessary, the Prosecutor is answering you that on the one hand

6 a number of the objections which you presently make regarding the

7 fact that, in your opinion, there is a lack of consistency in the

8 indictment are liable to be completed, but this will be part of the

9 elements of evidence, the details of proof which the Prosecution will

10 supply and which you can argue together in court. We have also noted

11 that, possibly, if the Prosecutor wishes, as proceedings go forward,

12 the indictment can also be added to in conformity with the Rules of

13 Procedure which allow for specific procedures in this circumstance,

14 i.e. other elements being added to the indictment but not elements of

15 proof. So, Mr. Vujin, would you like to take the floor?

16 MR. VUJIN: Thank you, your Honour. We continue to hold the view that

17 the Bill of Indictment such as presented with all the errors which

18 are evident, and this might change, the rank of the General might be

19 corrected of course, and certain things can be proved in evidence.

20 However, at this moment the Bill of Indictment has been served

21 against the Rule 47 of the Rules of Procedure. The Tribunal never

22 conducted any investigation against General Dorde Dukic. General

23 Dorde Dukic had the status of a witness on 1st March. Until 4th March

24 his status was that of a witness. Until 4th March the Prosecutor's

25 Office never said they were conducting any investigation against

Page 96

1 General Dorde Dukic. On 4th March, rather, on 1st March, sorry - no,

2 on 1st March. On 1st March, we said that the status, we were told

3 that the status of General Dukic was changed and that he became an

4 indicted person, he became an accused person. So, with the Bill of

5 Indictment we received the material 10 days later, which the material

6 only had the statements made by General Dorde Dukic given to the

7 Police authorities in Sarajevo which is another piece of evidence

8 that this Prosecutor's Office has not conducted any investigation of

9 its own and could not actually serve a Bill of Indictment, because

10 the Rules of Procedure did not foresee the Bill of Indictment without

11 investigation. Therefore, now since the Bill of Indictment contains

12 the data now, it only refers to objective responsibility, because any

13 Assistant Logistics Commander is responsible, of course, objectively,

14 but we would like to ask the Prosecutor's Office at this moment to

15 state very clearly what were the acts, at what time and against whom?

16 THE PRESIDING JUDGE: I understand your position, but actually you are

17 beginning to argue. It is OK. You do not have to say sorry. It is

18 just that the Tribunal wishes to point out to you that you are, in

19 fact, arguing, you are now putting arguments on your fundamental

20 objections here. We are, in fact, dealing here with the preliminary

21 motion, and I wanted specifically to point out to you that there were

22 some summary points from your intervention and you agreed with my

23 summary points. There were two fundamental objections to the

24 indictment. You developed your points. The Prosecutor answered you.

25 Now you are answering, and I wanted to make sure that the Prosecutor

Page 97

1 could clarify his position. That has now been done. At this point you

2 are now, I think, in terms of your arguments, developing points which

3 would be of interest to the Tribunal once the hearing, once the

4 trial, actually starts, but we have not got to that point in the

5 proceedings yet. So, with your agreements, yes, Mr. Vujin?

6 MR. VUJIN: Please allow me to say this. This is not something we can

7 do during the trial. The Defence ought to know how to defend General

8 Dukic. This way now, when we have no dates, when we have no causal

9 relationship there is no causality between his acts and the

10 consequences the Defence is simply in no position to prepare for the

11 Defence. We do not know in which direction to work; whether to defend

12 him by means of providing alibis or whatever or in some other way.

13 For that reason, it is very important to specify the time, place and

14 manner of crime with which he is charged.

15 THE PRESIDING JUDGE: Mr. Vujin, before we conclude the debate at this

16 point, I will ask my colleagues whether they have any questions, of

17 course. You said it is very important for you. I would like to say

18 this is a very important question for the Tribunal as a whole. We

19 agree there. Thank you. The Tribunal has no further questions. Then

20 could we, please, go on to the third? Let me call to you the last

21 preliminary motion which you have the right to present within the 60

22 days because you have now renounced the rights to exhaust this 60-day

23 period. Mr. Vujin, the floor is yours. The motion of 18th or 19th

24 March.

25 MR. VUJIN: Thank you, your Honour. As my colleague, Mr. Fila, has

Page 98

1 already said, we think that we are actually referring to Rule 73(3)

2 73 (A)(iii) of the Rules of Procedure and we think that the evidence

3 supplied with the Bill of Indictment should be removed in view of the

4 provisions of point 3 of Rule 73(3) 73, because the exclusion of

5 evidence is mandatory when we have the statements of evidence

6 obtained from the accused person. We believe that the evidence given

7 to us, presented to us, contains opinions and views - we do not know

8 whose views and opinions - about data, about Mr. Radovan Karadzic and

9 General Ratko Mladic, describing their duties, activities. We think

10 that such data, such information, has no place in the document

11 relating to General Dukic. In this way, there is some artificial

12 linkage established between General Dukic and the activities of Mr.

13 Radovan Karadzic and General Mladic. As evidence, we have here

14 statements made by General Dukic or given by General Dukic on 5th

15 February at the time when he was under Police investigation. We

16 showed and said that in accordance with the provisions of the law on

17 criminal procedure such evidence cannot be used before the court in

18 Sarajevo, because this was against the law which the former

19 Bosnia-Herzegovina took over as its own penal code. Obviously, this

20 present Tribunal is not bound in any way by the Rules of national

21 courts, but it is bound by the general Rules of international

22 criminal law. This includes provisions which actually forbid the use

23 of statements made to Police authorities. Because they are dated from

24 5th February, this was done in Sarajevo, and General Dukic was

25 brought before the court on 7th February, which means that the

Page 99

1 statements were made to the police. Given the statement by General

2 Dukic to defend himself with silence, not to testify, then we say

3 that these statements made to the Police authorities actually fall

4 under Rule 73(3) paragraph 1, because these were the pieces of

5 evidence obtained from the accused and he is entitled to ask for the

6 exclusion of such evidence before this Tribunal. So this was our

7 motion. On 18th March we also asked for the detention to be lifted,

8 but we agreed not to discuss it today.

9 THE PRESIDING JUDGE: Mrs. Lopicic, no further comments. Mr.

10 Prosecutor, would you like to answer the observations, firstly, under

11 the preliminary motions presented on 18th and 19th March by the

12 Defence? Prosecutor, the floor is yours.

13 MR. OSTBERG: Thank you, your Honour. The Defence pleads Rule 73(3) of

14 the Rules of Procedure and Evidence, which I refer to as "the Rules",

15 which states that there can be applications for exclusion of evidence

16 obtained from the accused of having belonged to him. No other issue

17 of admissibility of evidence is contained in that Rule. Under Rule 47

18 (A) of the Rules, the Prosecutor must provide supporting material

19 with the indictment for review by the confirming judge under Rule 47

20 (D) of the Rules. The judge shall hear the Prosecutor who may present

21 additional material. This material may include documents prepared

22 from evidence in the possession of the Prosecutor sufficient to

23 satisfy the evidential test under Rule 47, namely, that the

24 Prosecutor is satisfied that there is sufficient evidence to provide

25 reasonable grounds for believing that the suspect has committed a

Page 100

1 crime within the jurisdiction of the Tribunal. The Prosecutor has the

2 duty to supply evidence in discovery and to present admissible

3 evidence to the Trial Chamber to prove allegations beyond reasonable

4 doubt; a different burden of proof than that to be discharged for

5 confirmation of indictment. The Prosecution submits that it has

6 discharged its duty under Rule 47 and has supplied relevant material

7 to justify the confirmation of the indictment. Paragraph (A)(a)1 and

8 (a)2 of the Defence motion in these subparagraphs, to these

9 paragraphs the Prosecution submits that the evidence referred to is

10 relevant material and a matter to be proved at trial. Further, this

11 material is outside the scope of Rule 73(3) of the Rules, not having

12 been obtained from or having belonged to the defendant. The Defence

13 raised the question of why we did mention Radovan Karadzic who was

14 the Commander-in-chief and Ratko Mladic who was the chief of staff.

15 We did that because we wanted to put General Dukic in the context

16 where he really worked, in reality, during the time that this

17 indictment deals with. The Prosecution submits that matters referred

18 to in these subparagraphs are also outside the scope of Rule 73(3) of

19 the Rules and, accordingly, none of the above are excludable by

20 pretrial motions. They are all matters to be proved by the

21 Prosecution at trial. I turn now to paragraph (A)(d). Under the Rule

22 73(3) of the Rules, there is no automatic exclusion of evidence

23 obtained from a defendant. The Prosecution submits that the Defence

24 must show the evidence to be prejudicial so as to outweigh probative

25 value and/or obtain in a way that is inconsistent with the

Page 101

1 international human rights of the accused. The Prosecution submits

2 that the statements of the defendant are taken in accordance with the

3 laws of a national criminal code. Had they been taken by agents of

4 the Tribunal, its provisions, the Tribunal's provisions, would have

5 been followed. The fact that the provisions differ does not make the

6 taking of the statements illegal. The evidence referred to has

7 probative value outweighing any prejudice of the defendant, and

8 nothing in the Defence motion shows ground for ruling the statement

9 as having been improperly taken. The Prosecution, therefore, submits

10 that the Defence motions to exclude evidence should be rejected. We

11 had already decided not to argue paragraph B in today's discussion.

12 Thank you, your Honour.

13 MR. VUJIN: If you will allow me, your Honour, I think very briefly

14 that the view of the Prosecutor's Office that the evidence had been

15 obtained by a court, this was wrong. This evidence had not been

16 obtained by a court, but by the Police, but we plead for the clarity

17 of Rule 73(3) (A) and, on the basis of this, we say we would like to

18 exclude this evidence because it has been obtained from the accused.

19 If the evidence was obtained (as it was obtained) from the accused,

20 that is the point, and the statement is very clear, the provision is

21 very clear, and that is why we would like this evidence to be

22 excluded. Thank you.

23 THE PRESIDING JUDGE: Good. I think that completes the debates.

24 Outstanding now only is the question of wearing handcuffs. Mr. Vujin,

25 would you like to take the floor?

Page 102

1 MR. VUJIN: Yes, your Honour. There is just one objection and that is

2 the use of handcuffs.

3 THE PRESIDING JUDGE: The Tribunal has just reviewed matters and

4 concludes that it could hear the Defence and the Prosecutor on

5 Wednesday, 24th April at 10 a.m. on the question of handcuffs. Why

6 Wednesday 24th April - because on that date it would make it possible

7 for the Tribunal, having heard the arguments on this latter question

8 to - would you like me to repeat this point? Shall I repeat this

9 point for you?

10 MR. VUJIN: Yes, please, the date and time, 24th April?

11 THE PRESIDING JUDGE: I would like to explain to you the details

12 again. I will give you the full details. The three judges of this

13 Tribunal have discussed the question and will answer all points

14 raised. They will give their answer on Friday, 26th April but, with

15 your agreement, we can set aside for a hearing Wednesday, 24th April

16 at 10 a.m. just to deal with the question of the problem of the

17 handcuffs. That would make it possible for the Tribunal - yes,

18 handcuffs, Wednesday, 24th April, 10 a.m. - and at that particular

19 point - I will give you the floor in just a moment; I am just telling

20 you the suggestions that we have to make - if we can hear some

21 arguments on Wednesday, 24th April on handcuffs, then at that

22 particular point we, the judges, will have heard all comments on the

23 motions of 4th, 14th, 19th March and regarding handcuffs. In that

24 particular situation, we can then two days later - I will give you

25 the floor - on Friday, 26th April at 11 o'clock, a decision on all

Page 103

1 the preliminary motions. So that on Friday, 26th April, in one month,

2 you will have an answer from the Tribunal on all the preliminary

3 motions. That is the suggestion. This is why my colleagues and myself

4 feel that it would be good to argue these latter points on the

5 problem of handcuffs on 24th April at 10 o'clock regarding handcuffs,

6 then we will give you an answer on all the preliminary motions on

7 Friday, 26th April at 11 o'clock. At this particular point, the

8 Tribunal is feeling that this is a reasonable suggestion, although

9 this is not normal, would like to put the points to you for your

10 opinion. Mr. Vujin? MR. VUJIN: The Defence fully agrees with your

11 proposal, but we would like to make one more proposal. If the

12 Registrar's Office could also make sure that the medical examination

13 of General Dukic is completed, we can then discuss also the

14 detention, raising the detention Rule as well, if there is enough

15 time.

16 THE PRESIDING JUDGE: The Registrar, first of all, on this particular

17 point.

18 THE REGISTRAR: Mr. President, this is quite reasonable. We will do

19 our very best indeed to ensure that you receive the report a few days

20 before that date as well as the different parties.


22 MR. OSTBERG: I was just about to say I am quite prepared to discuss

23 the handcuffs immediately, but if we now put in something else to

24 discuss on 24th, I have no objection, your Honour.

25 THE PRESIDING JUDGE: This is a new point. We have said that the

Page 104

1 problem of handcuffs and all these questions regarding the problems

2 of health of General Dukic could be dealt with. This is a very

3 important question. I think we should stick with 24th April and then

4 we will see for the handcuffs. You, Prosecutor, can argue on that.

5 You said yourself, Prosecutor, you are not ready, but since then we

6 have moved on to the question of the health condition and the

7 question of the medical examination. Since everybody now agrees, I

8 would like, therefore, to repeat, Wednesday 10 a.m., 24th April,

9 arguments on the problem of handcuffs and the health condition of

10 General Dukic on the basis of the medical examinations which the

11 Registrar, hopefully, will have obtained and, hopefully and

12 imperatively, that the examinations take place in terms of the

13 conditions which I described at the beginning of the hearing and

14 that, in principle, therefore, on Friday, 26th April at 11 a.m. there

15 will be a decision given by the court on all the preliminary motions

16 submitted. At that particular point, perhaps, we will then be able to

17 organise an in camera meeting following the giving of the public

18 decision in order to agree on a date for the trial. Is that crystal

19 clear for everybody? Registrar, have you noted all those points?

20 MR. VUJIN: It is clear, your Honour, but could you also give the

21 floor to General Dukic because he would like to say a few sentences

22 with your permission.

23 THE PRESIDING JUDGE: It is not you who gives the floor, but the

24 President does that quite willingly. General Dukic, would you like to

25 make several comments? General Dukic, the floor is yours.

Page 105

1 THE ACCUSED: Thank you, your Honour. I understood my counsel is

2 asking your permission for me to speak. I wanted to say the following

3 to the court, to the Tribunal: I will be very sorry not to be able to quote

4 the Articles and paragraphs of the Rules and so on, but if I

5 remember the Geneva Conventions having to do with prisoners of war,

6 military prisoners of war, the high ranking officers, like mine, have

7 certain privileges in treatment as detainees. That was the first

8 statement I wanted to make. The second Article 83 of the Rules of

9 Procedure says that the handcuffs will be applied and used if it is

10 decided that there is a danger that the detainee might try to escape

11 or, if I interpret the Rule well, that he might threaten somebody's

12 person or life. I would like to say, first of all, that I have no

13 reason to escape because from the very beginning, from the first

14 moment of the proceedings, I said I have pleaded not guilty and any

15 kind of trying to escape would actually put such a statement to a

16 lie. The second question is where can I escape? The third question,

17 the third point, is that my officer's honour and honour as a person

18 in my age would not permit me to act like this. Fourth, I would like

19 to ask you to bear in mind my age and try to think, try to imagine,

20 how, if at all, I could escape. Fifth, in all movements, whenever I

21 move, there are three to five guards surrounding me, and when I am

22 transported in a car, I am in a closed car, closed vehicle, with

23 three guards. Now, putting it all together, the question is, what are

24 the chances of me to try to escape and what would be the reasons why

25 I would want to escape? What were the reasons behind the decision for

Page 106

1 me to be handcuffed in view of all the facts which I have presented

2 to you? I consider myself deeply injured. I am trying to say that my

3 guilt has not been shown or demonstrated in any particle of truth or

4 any shred and, as for the use of handcuffs, I am put in the class of

5 ordinary criminals. For this reason I would like to issue my protest

6 to this Tribunal. Thank you, your Honour.

7 THE PRESIDING JUDGE: Lieutenant Colonel Dukic, the Tribunal has noted

8 what you have said. I would, however, like to recall two points to

9 you. Firstly, we will not be dealing with this question today. Quite

10 clearly, the Tribunal has listened to what you have to say. This is

11 not the hearing, but we have listened to what you have said. In any

12 case, we have decided that this question will be dealt with on

13 Wednesday, 24th April as well as these questions of health, because

14 at that point we will then have some further information regarding

15 the expert medical reports which will have been carried out. However,

16 since this is a context of international law, let me point out to you

17 that you are not in a situation of an Officer or General obeying

18 Rules on a battlefield. At the present time, you are in an

19 international criminal Tribunal as an accused. However, all these

20 points will be argued on Wednesday, 24th April at 10 a.m.. The

21 hearing is adjourned. The hearing was adjourned at 6 pm.