1 Tuesday, 28 November 2000
2 [Motion Hearing]
3 [Open session]
4 --- Upon commencing at 10.00 a.m.
5 [The accused entered court]
6 JUDGE RODRIGUES: [Interpretation] Please be seated while you're
8 Good morning, ladies and gentlemen; good morning to the
9 technicians, to the interpreters; good morning, counsel for the
10 Prosecution. I think that we will have to hear the appearances.
11 Madam Hollis, please.
12 MS. HOLLIS: Thank you, Your Honour. Good morning. Your Honour,
13 Brenda Hollis, Kapila Waidyaratne, and Daniel Saxon appear for the
14 Prosecution. In addition, I would like to introduce Susan Somers.
15 Ms. Somers is a very experienced litigator within the Office of the
16 Prosecutor who is replacing Michael Keegan, and in January or February,
17 Ms. Somers will take over carriage of this case as the acting senior trial
19 JUDGE RODRIGUES: [Interpretation] Mr. Saxon is here as well, as I
20 can see.
21 MS. HOLLIS: Yes.
22 JUDGE RODRIGUES: [Interpretation] For the Defence, please. Let us
23 begin with Mr. Krstan Simic.
24 MR. K. SIMIC: [Interpretation] Good morning, Your Honours. The
25 Defence is in the same composition. With me I have Mr. Branko Lukic, my
2 JUDGE RODRIGUES: [Interpretation] Mr. Nikolic.
3 MR. NIKOLIC: [Interpretation] Good morning, Your Honour. There
4 are no changes. Mrs. Jelena Nikolic and Mr. Eugene O'Sullivan and Zarko
5 Nikolic are on the Defence team.
6 MR. FILA: [Interpretation] Good morning, Your Honour. The Defence
7 of the accused Radic is in the same composition: Toma Fila and Zoran
8 Jovanovic, Your Honours.
9 JUDGE RODRIGUES: [Interpretation] I think that we have
10 Mr. Stojanovic, if I'm not mistaken.
11 MR. STOJANOVIC: [Interpretation] Good morning, Your Honour. There
12 have been certain changes. We have a new co-counsel, Mr. Miodrag
13 Deretic. He is a lawyer from Prijedor. I think that it will be
14 interesting for me to mention that this is the first lawyer from Prijedor,
15 and as we know very well, there are many cases tried before this Tribunal
16 which occurred on the territory of Prijedor, so that I think that this
17 innovation will assist the Trial Chamber. Thank you, Your Honours.
18 MR. J. SIMIC: [Interpretation] Good morning, Your Honours. The
19 Defence of the accused Dragoljub Prcac is in the same composition, myself,
20 Mr. Jovan Simic, and Mr. Dusan Masic.
21 JUDGE RODRIGUES: [Interpretation] Thank you very much. I should
22 like to bid welcome to all new persons who have joined us both as members
23 of the Defence team and the Prosecution team.
24 Madam Registrar, could you please call the case. This is
25 something that we should have done at the beginning but we can do it right
2 THE REGISTRAR: [Interpretation] Case IT-98-30/1-T, the Prosecutor
3 versus Miroslav Kvocka, Milojica Kos, Mladjo Radic, Zoran Zigic, and
4 Dragoljub Prcac.
5 JUDGE RODRIGUES: [Interpretation] Thank you very much. I think
6 that we are now ready to proceed with our work.
7 As you know, the parties were requested to prepare themselves for
8 a discussion of a number of issues which are contained in the Scheduling
9 Order, dated the 23rd of November, 2000. We are going to deal with these
10 issues in the order that is indicated in the Scheduling Order.
11 So we will first have a hearing for the arguments, since we have
12 already received written submissions from the Defence and the response
13 from the Prosecutor concerning the motion for a judgement of acquittal.
14 We will hear all of those arguments together in the first part of the
15 hearing, and then the second part of the hearing will be dedicated to a
16 Status Conference with a view to prepare for the Defence case.
17 I will first give the floor to the Defence counsel of Mr. Kos,
18 since the Defence of the accused Kvocka has not filed a motion for
19 judgement of acquittal. I will give the floor to the Defence counsel for
20 Milojica Kos.
21 MR. O'SULLIVAN: May it please the Court.
22 JUDGE RODRIGUES: [Interpretation] You may begin, Mr. O'Sullivan.
23 Please proceed.
24 MR. O'SULLIVAN: Thank you. Good morning.
25 For some reason, I'm getting the B/C/S.
1 JUDGE RODRIGUES: [Interpretation] I'm sure you have made a lot of
2 progress, Mr. O'Sullivan.
3 MR. O'SULLIVAN: I'm hearing it but I'm not sure I'm understanding
5 Good morning, Your Honours. As Your Honours know, on behalf of
6 the accused Kos, we filed a motion for judgement of acquittal on the 6th
7 of November. I will speak to that motion with two objectives: to clarify
8 certain aspects of our motion and to respond to the Prosecution's filing
9 of November 20, 2000.
10 Let me briefly address Rule 98 bis. In our submission, the regime
11 to be applied to a Rule 98 bis motion is determined by the Statute and
12 Rules of the Tribunal and the precedents of this Tribunal. In regards to
13 case law, we rely on two decisions which are referenced in our motion: the
14 Kordic case decision of 6 April 2000 and the Kunarac decision of 3 July
15 2000. Both decisions interpret and apply the current version of Rule 98
17 Can I briefly turn to the indictment. Your Honours will know that
18 on the 13th of October of this year, a consolidated indictment was filed
19 in this matter, which includes Schedules A to E. The schedules are part
20 of the indictment pursuant to a decision of the previous Trial Chamber
21 which had conduct of this matter, a decision of 12 April 1998. In that
22 decision, the Chamber ordered the Prosecution to provide further
23 particulars in regards to that indictment, and on May 31st, 1999, an
24 amended indictment was filed with Schedules A through D which are now
25 expanded to A through E. Those schedules specify charges against the
2 In our submission, where there is no evidence or insufficient
3 evidence to sustain a conviction on one or more of the offences charged in
4 the indictment, the Trial Chamber shall order the entry of judgement of
5 acquittal on that or those charges.
6 Let me briefly address the charges alleged against Kos where we
7 say there is no evidence.
8 We say there is no evidence that Kos has any connection with the
9 Keraterm or Trnopolje camps, or any individuals detained therein. There
10 is no evidence that the following nine individuals listed in Schedule B
11 were victims of persecution, inhumane acts, and outrages upon personal
12 dignity. The nine individuals are: Refik Begulic, Mehmed Hadzic, Husein
13 Hodzic, Senad Husic, Safet Ilic, Sakib Jakupovic, Besim Kodzic, Sakib
14 Islamovic, and Ferid Mujcic.
15 In addition, at paragraph 46 of the Prosecutor's response, the
16 Prosecutor writes that: "The Prosecution accepts that there has
17 apparently been no evidence admitted pertaining to these persons."
18 Finally, under Counts 1 to 3, and by reference to Schedule B,
19 there is no evidence linking Kos to alleged beatings and torture on
20 Petrovdan. As requested in our motion of 6 November, this Trial Chamber
21 should enter a judgement of acquittal in favour of Kos in relation to
22 these aspects of the indictment.
23 Let me briefly turn to where there is no evidence under Counts 4
24 and 5: murder.
25 There is no evidence that the following six individuals were
1 murdered by Kos. One individual in Schedule A is Izmet Hodzic. Four
2 individuals listed in Schedule B are Becir Medjunjanin, Hanki Ramic,
3 Mehmedalija Sarajlic, and Miroslav Soljaja. The one individual listed in
4 Schedules C and E is Durat Dautovic.
5 The Prosecution, in its response, made no response to our
6 submission concerning these six individuals. We submit that a judgement
7 of acquittal in favour of Kos should be entered in relation to these
8 alleged murders.
9 Those are the areas of the indictment where there is no evidence,
10 Your Honours. I now turn to what we submit is an insufficiency of
12 I'm referring to Witness AV, who testified before Your Honours.
13 We submit that this witness did not tell the truth when he implicated Kos
14 in alleged mistreatment. No other witness testified in relation to any
15 alleged mistreatment by Kos against Witness AV. In other words, AV is the
16 only person who gave evidence in relation to this matter.
17 Can I briefly remind the Chamber of the testimony given by AV.
18 The reference is page 5861 of the transcript. Witness AV was being
19 questioned by Judge Wald. She asked him:
20 JUDGE WALD: Did you ever see Krle present when a detainee was
21 being abused or beaten in any of those places?
22 A. I was there, standing in front of them. I was made to slap
23 other detainees, pursuant to his order.
24 JUDGE WALD: So you are telling us now that there was a time when
25 you saw when -- let me say, when he ordered you to slap
1 somebody else? Is that what you're telling us?
2 A. Yes.
3 Your Honours, on re-cross-examination, following Judges'
4 questions, Witness AV continued to insist on this version of events, which
5 I note he had not spoken about prior to Judge Wald's question. And
6 beginning on page 5863, Witness AV said that when Kos ordered him to slap
7 someone that he simply had to do it with without objections. He said it
8 was dramatic and traumatic for him. He said he would never forget it.
9 But when confronted, Witness AV changed his story, and in our submission,
10 he's been shown to be untruthful.
11 He was asked in relation to his statement to the Prosecution:
12 Q. But you never said that Krle ordered you to slap someone?
13 A. No.
14 Q. He never ordered you to slap anyone, did he?
15 A. No.
16 Witness AV is not worthy of belief, Your Honours. He lied to
17 Judge Wald. He continued to attempt to embellish his story. He finally
18 admitted Kos never ordered him to slap anyone. Witness AV was
19 untruthful. His is the only evidence given in relation to alleged
20 mistreatment by Kos of this individual. He can be given no credibility.
21 His testimony should be ignored.
22 Accordingly, we submit that a judgement of acquittal should be
23 entered in relation to Kos in relation to this aspect of Counts 1 to 3.
24 The final areas of insufficiency of evidence in our submission
25 deals with three murders alleged against Kos. We say the evidence is
1 insufficient to sustain the conviction of Kos for the alleged murder of
2 the individual Crnalic. The only witness who gave evidence alleging that
3 Kos shot and killed Crnalic was Witness AI. We say AI was unreliable and
4 was mistaken when he testified that Kos was responsible.
5 Can I remind Your Honours of this: AI testified that he believed
6 Kos was not from Prijedor, the man he believed was Kos was not from
7 Prijedor, based on his features and the way he spoke. Kos is from
8 Prijedor. As we've shown in our written submissions, because of his
9 physical state at the time, Witness AI's memory of events is unreliable.
10 It's no small matter that Witness AI did not identify a guard named
11 Drazenko Predojevic who he claims singled him out for this treatment.
12 Why do we say this? The Prosecution knows who Predojevic is. He
13 was indicted by the Prosecution. His photo was shown to the very next
14 Prosecution witness, Witness B, who identified him. That's Exhibit
15 3/69B. We say the ability of this Witness AI to recollect people and
16 events is quite unreliable.
17 In addition, however, there are other reasons why we say Witness
18 AI is unreliable. Two other Prosecution witnesses testified that someone
19 other than Kos allegedly shot and killed Crnalic. Nusret Sivac testified
20 that the guard who allegedly shot and killed Crnalic wore a hood and
21 always manned a guard position between the "white house" and the pista.
22 There's no proof that Kos ever held such a function.
23 Second, Kermin Mesanovic testified that Kos was present at the
24 time but Kos was sitting at a table, at the left corner near the "white
25 house." There's no evidence that Kos had a gun or fired any shots.
1 The second and third murders, and these are the final submissions
2 on the insufficiency of evidence, relate to two alleged murders: Those of
3 Abduhlah Puskar and Silvije Saric. Again, only one witness gave evidence
4 in relation to that fact: Witness J. We say she is not credible or worthy
5 of belief when she said that she heard Kos was present when these two men
6 were beaten. Your Honours, there's no proof that she can identify Kos'
7 voice; she did not identify Kos in court. We say that the evidence shows
8 that Kos was not present in the camp when the alleged beatings occurred.
9 And in her 1995 statement to the Prosecution, which she adopts as being
10 voluntary and truthful, Witness J never stated that Kos was involved or
11 present during the alleged beatings.
12 I've spent some time talking about the issue of identification
13 when we say the evidence is insufficient. We submit that the issue of
14 identification is of significant relevance and importance under a Rule 98
15 bis motion, especially where the evidence of a witness is the only
16 evidence given in relation to that fact. We rely on the Kordic and
17 Kunarac decision in this regard.
18 I've pointed out that in regard to Crnalic, Witness AI is the only
19 witness whom we say is mistaken and unreliable, and what is more, two
20 other witnesses testified that someone other than Kos allegedly shot
22 In regard to Puskar and Sarajlic, similarly, only one witness gave
23 evidence in relation to these events: Witness J. And as I've indicated,
24 in her statement given five years ago, which she said provided the best
25 recollection of all her experiences, which was made closer in time to the
1 relevant events, she did not implicate Kos.
2 Let me conclude by saying this, Your Honours: Rule 98 bis
3 mandates that the Chamber shall order the entry of judgement of acquittal
4 where the evidence is insufficient to sustain a conviction on one or more
5 offences charged. Each named individual and event we specify in our
6 motion is a charge where the evidence is insufficient to sustain a
7 conviction either because there's no evidence or the evidence is
8 insufficient and unreliable. Both the Kordic and Kunarac decisions have
9 held that where there is insufficient evidence, the accused is entitled to
10 a ruling of no case to answer at this stage of the proceedings.
11 We, therefore, respectfully request that you enter orders of
12 acquittal, pursuant to Rule 98 bis, in favour of Milojica Kos as requested
13 in the motion filed on his behalf on the 6th of November, 2000.
14 Those are my submissions, Your Honour.
15 JUDGE RODRIGUES: [Interpretation] Thank you very much,
16 Mr. O'Sullivan.
17 Mr. Fila -- oh.
18 MR. JOVANOVIC: [Interpretation] Your Honour, I shall be presenting
19 the viewpoints for the accused Radic.
20 The accused Radic has presented his views in the motion for
21 judgement of acquittal for the accused Radic, and I shall repeat some of
22 those elements contained in the motion in brief and will refer also
23 briefly to the Prosecution response.
24 I think that in this situation, and bearing in mind the response
25 by the Prosecution, what is relevant and what we must talk about here
1 is -- and we must look at Article 7(1) and 7(3) of the Statute, because
2 the counts in the indictment, if we take them in their order, 1 to 3 of
3 the indictment, Counts 1 to 3, followed by Counts 4 and 5 and Count 8 to
4 9, must be viewed in the light of Article 7(1) and 7(3) of the Statute.
5 At the outset, the role of the accused Mladjo Radic, his position
6 in the Omarska camp, that is what I should like to talk about. The
7 Defence is of the opinion and has presented evidence that the position --
8 as to the position of Mladjo Radic and the type of authority that he
9 enjoyed in the camp. The Defence considers that the Prosecution has
10 failed to present evidence which would indicate beyond all reasonable
11 doubt that the accused Radic performed and wielded any kind of authority
12 in Omarska camp.
13 The evidence presented by the Prosecution are of such a nature
14 that, in the best of cases, they can be evidence which is put forward
15 indirectly. And we agree that Rule 98 bis provides for the fact that the
16 Trial Chamber may, on the basis of presented evidence, bring in judgement
17 and not that it should. And the Defence considers that with a respect for
18 this standard which the Prosecution sets forth in his response by virtue
19 of the evidence presented is of such a nature that they do not provide
20 proof beyond all reasonable doubt as to the position and status of the
21 accused Radic, as is represented in the indictment. And that is the first
22 point, and we must start out from that assumption if his behaviour -- if
23 he wished to express his behaviour following Article 7(3) of the Statute.
24 From the evidence presented, we have not been able to ascertain
25 beyond reasonable doubt that Mladjo Radic, within Article 7(1), directly
1 performed criminal acts, and in the sense of Article 7(3), the evidence
2 does not show that there was any command responsibility involved in his
4 The Defence stressed that in his own testimony, the accused Radic
5 indicated a certain kind of authority; but on the other hand, the
6 Prosecution once again did not present evidence that it was the kind of
7 authority which could prevent or punish the conduct of others, if he had
8 knowledge of that kind of conduct and behaviour. There is no formal
9 appointment for the indictment for Radic, and the Prosecution did not
10 bring in any evidence to show formal appointment.
11 Let me repeat what I have already said: That it is only indirect
12 knowledge and the conclusions made by the individual detainees, or
13 conclusions made generally that the accused Radic was in a position as
14 guard -- head of the shift, but no formal evidence exists as we have seen
15 it; and that the accused Radic in 1994 became the head of the shift within
16 the frameworks of the Omarska police station.
17 The Defence would now like to refer to the conditions that
18 prevailed in the camp as a component part of the -- of persecution and
19 inhumane conduct. No evidence has been provided that Mladjo Radic could,
20 in general terms, with respect to the overall situation, change the
21 conditions of detention at all, and here we include the hygiene conditions
22 of the detainees, the food they received, and the water they were given to
23 drink, and we have heard testimony and evidence about that at length.
24 Sporadic attempts by the accused Radic to help and to see what
25 could be done and to offer help or refuse to give assistance cannot
1 indicate on sufficient grounds and evidence to indicate beyond any
2 reasonable doubt that Mladjo Radic was in a position of that kind, that is
3 to say, that he was able to change the conditions of detention for a large
4 number of detainees or all the detainees.
5 Let me repeat that it was only sporadic cases that we saw where
6 the accused Radic did, in fact, assist. But these allegations of the
7 witnesses of the Prosecution and Radic's own testimony do not indicate the
8 possibility that he himself was generally able to alter the prevailing
9 conditions in the camp. And I have already stated what conditions of
10 detention imply and what the categories were that should have been
11 changed, if that were possible.
12 The Defence furthermore considers that insufficient evidence has
13 been presented to show beyond reasonable doubt that Mladjo Radic could
14 have changed the regime, that is to say, the rules that were applicable
15 to detained persons in the sense of their freedom of movement, but also
16 with respect to the arrival of their families or contact with them; and
17 in that way, indirectly to have been able to change the conditions
18 prevailing in the camp.
19 Therefore, no evidence has been presented which would show beyond
20 reasonable doubt that Mladjo Radic could have enabled detained persons to
21 have contact with their families and in that way have changed the
22 conditions of their confinement.
23 The same applies to the application of the law of BH. Once again,
24 no evidence has been presented which would indicate the possibility of
25 somebody in the position as held by Mladjo Radic, the accused, could have
1 applied those laws during the duration of the armed conflict, whose
2 existence has been ascertained without a doubt. All the rules and
3 regulations of Bosnia-Herzegovina of the day were derided, and as a
4 policeman, that is to say, having the calling of a policeman - and there
5 is official evidence, formal evidence to prove that, and no evidence was
6 put forward to prove the contrary - Mladjo Radic was not in a position to
7 apply any law whatsoever, except to implement the orders he received from
8 his superiors. Briefly, those are the positions of the Defence of the
9 accused Mladjo Radic presented in the motion for judgement of acquittal.
10 Let me mention in this regard that as to Counts 14 to 17 of the
11 indictment, we shall discuss these at greater length at another time. I
12 have also touched upon the response by the Prosecution and should like to
13 repeat that the Defence did take into consideration all the standards
14 required by Rule 98 bis, and including the one that says that sufficient
15 evidence is required for the Trial Chamber to be able to enter a
16 judgement. And so in this phase of the proceedings, with respect to the
17 accused Radic, the trial could be continued only with respect to Counts 14
18 to 17 of the indictment and not the rest.
19 Thank you, Your Honours.
20 JUDGE RODRIGUES: [Interpretation] Thank you very much,
21 Mr. Jovanovic.
22 Let us now hear the Defence of Mr. Zigic. Mr. Stojanovic.
23 MR. STOJANOVIC: [Interpretation] Thank you, Your Honours. I shall
24 try and be brief. I usually do try. And in response to the Prosecution,
25 I do not wish to repeat what has already stated in our written motion for
1 judgement of acquittal. After the response by the Prosecution, we uphold
2 everything we stated in the motion.
3 It is our opinion that at this stage of the trial, the Prosecution
4 nonetheless needs a standard beyond reasonable doubt to be applied to the
5 case, because unless this standard -- if this standard is lacking at this
6 stage of the proceedings, then the Defence has no need to answer the
7 response, and it will not do so. And there will be no conditions for a
8 sentence to be passed with regard to the accused and his incrimination.
9 Having touched upon the question of standards, we are of the
10 opinion that the standards for presenting evidence and proving guilt with
11 this institution must not fall below the standards of the national laws
12 both for war crimes and for ordinary crimes. Regardless of the atrocities
13 that we have heard presented in this court, and I profoundly do believe
14 that they did take place, of course, without entering into the realm of
15 personal responsibility, I can never come to terms with the fact that, for
16 example, that verbal abuse of one's neighbour, we would have to present
17 far greater evidence than for a major war crime.
18 Many details have been brought forward with respect to our own
19 motion and the motion of the Prosecution. I should just like to highlight
20 some of the elements in the Prosecution motion. For example, in paragraph
21 66 of the Prosecution response, it says that for the murder of a certain
22 Spija Mesic, and this is something that Mr. Zigic is being accused of, it
23 is sufficient to present the fact that one of the witnesses mentioned that
24 that individual existed and that that individual was killed, was
25 murdered; and on the other hand, that there was a constant and notorious
1 presence of Zigic in Keraterm. That is not a sufficient standard. And
2 let me mention, having said that, that we profoundly contest this term,
3 the constant and notorious presence of Zigic in Keraterm. We contest that
5 In our motion, we state that there is not a single piece of
6 evidence to bear this -- to bear out the fact that Mr. Zigic killed Jasmin
7 Izeiri or that this person Izeiri was in Keraterm at all. The Prosecution
8 states that Witness Hase Icic says that Jasmin Izeiri died in Omarska. I
9 think that the Prosecution, therefore, provides an argument to the
10 advantage of the Defence, because the indictment states that Zigic killed
11 him in Keraterm, whereas we now see that this person has died in Omarska.
12 So the difference itself has overruled that charge.
13 As a characteristic of this confrontation between Defence counsel
14 and Prosecution, I should like to indicate paragraphs 78, 80, and 81 of
15 the Prosecution's response where they make mention of the fact that the
16 Defence of Mr. Zigic objected with regard to the form of the indictment.
17 We should like to point out that this was the result of a
18 misunderstanding, because we did not object to the form of the indictment
19 at all. No objections were made there.
20 Paragraph 78 relates to persecution. We do not claim that the
21 indictment is lacking in form in that respect. What we are saying is that
22 the evidence presented cannot lead us to conclude that Zigic can be
23 charged for what he is charged in the indictment in that respect.
24 Paragraph 80 of the Prosecution response relates to other inhumane
25 acts, crimes against humanity, Article 5 of the Statute, and so on. We
1 did not say that the indictment was lacking there. What we said was that
2 the Prosecution has not provided a single piece of evidence and proof
3 showing that those acts had been committed, or facts put forward which
4 could come under that heading.
5 Paragraph 81 of the Prosecution response refers to our standpoints
6 with the application of Article 3 of the Statute. We did not actually say
7 that there were any lackings in the form of the indictment, nor that there
8 was an international conflict. That is an acknowledged fact. There was
9 an international conflict and that is an adjudicated fact. But we
10 consider that if -- that a state of war must exist to sustain conviction,
11 and the Prosecution did not at any point state that a state of war
12 actually existed.
13 We cannot understand some other positions that have been taken,
14 some legal constructions used in the Prosecution's response. To quote an
15 example, I think it is paragraph 85 in that document, where it says that
16 the Prosecution should maintain the fact that Zigic ordered certain
17 detainees to perform fellatio although there is no evidence. So the
18 Prosecution does acknowledge that there is no evidence to bear that out
19 but that this should remain in the indictment. The same goes for the
20 beating of Cirkic. The Prosecution maintains that this should be
21 retained in the indictment, although not a single piece of evidence goes
22 to show that.
23 Now, we don't want to resort to the same kind of legal
24 constructions. Our approach is very simple: Were these acts committed,
25 and was there anything to prove -- any evidence to prove that they were
2 Another characteristic in the Prosecution's response has to do
3 with the fact that we say that there is no evidence to show that Zigic
4 beat up a certain Fikret Alic and Fahrudin Hrustic in Keraterm. In the
5 response, it is stated -- that is to say, there is a combination of those
6 names mentioned by two witnesses, that a certain Fikret Hrustic was beaten
7 up, but, of course, those witnesses did not state that Mr. Zigic
8 had any connection with that or that he was present when that occurred.
9 The greatest problem, however, lies in the answers provided by the
10 two witnesses that Fikret Hrustic was beaten up in Omarska, whereas in
11 the indictment it states that this occurred in Keraterm. And there are
12 many details of that kind. We don't want to enumerate them all at this
13 point, but I would like to have the Prosecution supply us with the annex
14 that is mentioned in paragraph 86. We did not receive the annex along
15 with their response, but that is no hinderance for the Trial Chamber to
16 continue working. I shall look at the annex later on, and I don't want to
17 dwell on that.
18 Having said that, I thank you for your attention, Your Honours.
19 JUDGE RODRIGUES: [Interpretation] Thank you very much,
20 Mr. Stojanovic.
21 Let us hear the Defence of the accused Prcac. Mr. Jovan Simic,
22 you have the floor.
23 MR. J. SIMIC: [Interpretation] Good morning, Your Honours.
24 The Defence of Mr. Dragoljub Prcac would like to point out, first
25 of all, that in its written brief it has moved for a judgement of
1 acquittal in respect of all charges against the accused and not in respect
2 of separate acts and events, as the Prosecution tried to interpret it.
3 I think that through the analysis of the evidence presented by the
4 Prosecution, the Defence has shown that there is not enough evidence; that
5 it has not been proved beyond a reasonable doubt that Dragoljub Prcac is
6 indeed guilty of the crimes with which he is charged in the indictment.
7 At the outset, we should like to discuss the issue of the
8 indictment itself. One has to ask oneself whether the indictment has to
9 be a formal act or a kind of framework within which the Prosecution will
10 move while presenting its evidence.
11 The accused Dragoljub Prcac was charged with being the deputy of
12 the commander of the Omarska camp during the period of time between the
13 24th of May and the 30th of August; was responsible for the acts with
14 which he was charged in Counts 1 to 3, 4 to 5, and 8 to 10. If we should
15 assume that the indictment is a formal act and that it is a basis for a
16 fair trial, and the Defence must be notified of the charges against the
17 accused, then in that case we should stick to this indictment during the
18 presentation of evidence; that we should accept the fact, the requirement
19 that the Prosecution had to present evidence to the effect that the
20 accused was, indeed, in that capacity during the relevant period of time.
21 I will support my submissions with a number of examples. But let
22 me just mention at the beginning what happened here in these proceedings.
23 We made an agreement at the beginning, after the arrest, that there would
24 be a number of adjudicated facts, and we said that we would not be filing
25 a motion on the form of the indictment but that we would try and agree on
1 the form of the indictment. However, that did not happen, and the
2 Prosecutor did not disclose to us all the necessary material in due time.
3 If I remember correctly, in case of Witness K, the Defence wanted the
4 testimony to be deleted because the witness in question never mentioned
5 Mr. Prcac. We were never in possession of the material relating to
6 Mr. Prcac, and we were not aware of the fact that the witness would
7 testify against Mr. Prcac. But then the Prosecutor explained to us that
8 it happened spontaneously.
9 During the cross-examination that I conducted, and this is stated
10 in the record, Witness K had spoken to the Prosecutor and had indeed
11 mentioned Mr. Prcac, that she had indicated that she would be testifying
12 against him; however, that piece of information was never supplied to us
13 by the Prosecutor.
14 At this point in time, the Prosecution is relying on the testimony
15 of Witness K and trying to establish the credibility of the witness. The
16 Defence does not wish to assess the credibility of the witness at this
17 point; however, in order to take stock of the situation, in order to
18 assess the facts, all of the witnesses must be properly assessed. The
19 Defence has not skipped any single witness in their motion. We discussed
20 every witness in our motion, but the Prosecutor failed to do the same.
21 And let me illustrate this with a few examples, because I believe
22 that by proceeding in this manner, one can end up with a completely false
23 image of the factual situation. For example, it is stated that the
24 accused Prcac was present during all shifts, and it is also stated that
25 that was testified to by Witness Nusret Sivac. However, the record does
1 not reflect that piece of evidence. I'm not going to enter into details
2 regarding the testimony of the witness, but this information, as it is
3 stated here, cannot be found in the record. He only mentioned that from
4 time to time he would give the guards a list with names to read out.
5 Further on it is stated that Mr. Prcac had a certain role in the
6 camp, and then they support that with a number of witnesses and what they
7 stated to that effect, and they claim that what the witnesses said was
8 sufficient in order to support the allegation that Dragoljub Prcac was the
9 deputy commander. Thirty-seven witnesses have been heard, and only two
10 mentioned that fact.
11 The Defence has offered an analysis of the command responsibility
12 of Mr. Prcac in their written motion. The Prosecution had an opportunity
13 to ask specific questions of all of its witnesses whether Mr. Prcac was
14 there, what he did, and so on and so forth. But 17 witnesses failed to
15 mention him, and the Defence maintains that those witnesses cannot be used
16 as witnesses who proved that Dragoljub Prcac was in the camp during the
17 relevant times. A number of witnesses didn't even recognise the accused,
18 and there are a number of witnesses that talk about Mr. Prcac only in an
19 indirect manner. There are 13 witnesses who have some -- who have
20 provided some kind of information. Out of the 13 witnesses, we have
21 shown, through our analysis, that seven witnesses had some kind of direct
22 knowledge; five of them were women. So one has to ask oneself: What was
23 the role of the accused, indeed? And was it possible for the Prosecutor
24 to establish beyond any reasonable doubt that Mr. Prcac was the deputy
25 commander. However, nobody saw him. He didn't walk around. And
1 there were only a couple of sightings of the accused on specific locations
2 within the camp.
3 In their reply, the Prosecution is trying to revise their
4 position. They say even if one should assume that Mr. Prcac was not the
5 deputy commander in the camp, his mere presence would indicate a certain
6 responsibility. We have had similar cases in this Tribunal, but in order
7 to state that, one should prove that he was deputy commander and that he
8 had certain authority. The Defence maintains that the Prosecutor has to
9 prove that he was, indeed, the deputy of the commander; otherwise, they
10 should indicate in the indictment that he had some other responsibility,
11 some other kind of duty which enabled him to exert a certain authority in
12 the camp.
13 The second issue I wish to address is the relevant times.
14 Mr. Prcac is charged with the offences for the period of time between the
15 24th of May and the 30th of August. Not a single witness for the
16 Prosecution has testified about that. Not a single piece of evidence can
17 be found to the effect that Mr. Prcac arrived in the camp before
18 mid-July. All witnesses of the Prosecution who testified about the time
19 when Mr. Prcac arrived in the camp claim that he arrived in late July, in
20 mid-July, sometime between mid- and late July, at the very end of the
21 existence of the camp. Not a single witness has claimed that he arrived
22 in the camp before that.
23 The Prosecutor is now saying that the time framework is not
24 important. I don't know how to respond to this claim. I cannot even
25 understand how one can have an indictment without the relevant times and
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 the relevant time framework. I don't know how we can discuss the
2 importance of relevant times at all while discussing criminal offences and
3 the presence of the accused in the camp. We believe that a person cannot
4 be held responsible for something that happened before he was involved in
5 the event. The Prosecution has not led evidence, either direct or
6 indirect, to show that Mr. Prcac had had anything to do with the camp
7 before or that he had had any functions, any duties, before, and that
8 perhaps on the basis on those duties, those prior duties, that he would
9 have exerted some kind of authority during the relevant times.
10 They tried -- they attempt to say that during the indictment he
11 had been an active policeman. Not a single witness has proved that fact.
12 All of the witnesses of the Prosecution who have testified or who were
13 cross-examined as to the issue whether Mr. Prcac was retired during the
14 relevant times, they said that, yes, he was; their assumption was that he
15 was retired. And there is not a single piece of evidence to the effect
16 that he was an active policeman.
17 If we adopt the criteria that the Prosecutor now wishes to
18 establish, and that is that the mere presence of Mr. Prcac is enough here
19 to sustain a conviction for what had happened in the Omarska camp and for
20 what he was charged with in respect of the time when he was not there, and
21 we know that we have an indictment which directly -- there had been an
22 indictment which directly accused guards as perpetrators, but that
23 indictment had been dropped. This Tribunal is supposed to try only the
24 individuals who can be held accountable as commanders or those who can be
25 held accountable as direct perpetrators.
1 At one point in time, the Prosecutor tried to interpret its
2 attachments to the indictment as only being of an illustrative nature.
3 However, in paragraph 39 of the indictment, the Prosecutor states:
4 "Miroslav Kvocka, Dragoljub Prcac, Milojica Kos, and Mladjo Radic
5 instigated, committed, or otherwise aided and abetted in the torture and
6 beatings of Muslim Croats and Muslim -- and Bosnian Croats, and they did
7 so in search cases by direct participation in the acts which were
8 described in the text and in annexes A and E."
9 So in this paragraph, the Prosecutor is directly stating that
10 there are charges for individual and for specific acts, and those specific
11 acts were indicated in their attachments, in their schedules. The Defence
12 has made an analysis of that material and claims with full responsibility
13 that not a single piece of evidence concerning these individual acts show
14 that those acts occurred during the time when Mr. Prcac was present in the
16 So these dates here, the dates that were indicated at the outset
17 by the Prosecutor, could not be contested. Not a single murder out of six
18 murders occurred during the period of time when Dragoljub Prcac was in the
19 Omarska camp. They had occurred before that. And that is why it is very
20 important for this Chamber to be informed of the fact that Dragoljub Prcac
21 was in the camp between mid-July until the 6th of August, unless the
22 Prosecutor can prove a higher hierarchial relationship.
23 Inhumane acts and torture did not occur during the period of time
24 when Mr. Prcac was in the camp. The analysis has been -- we have provided
25 our analysis in our written brief and you have that in our motion.
1 Can the Prosecutor then claim that Dragoljub Prcac, indeed, took
2 part in the establishment of the camp since they haven't led any evidence
3 to that effect? There is not, once again, a single piece of evidence to
4 that effect. He arrived later on. He arrived at the time when the system
5 was already functioning, when it was almost automatic. So we can perhaps
6 ask what he was able to do later on, but only on the condition that he had
7 certain authority. However, that authority, he didn't have it, according
8 to the Defence. He was, as we have already indicated, a person who was
9 involved in the administrative work. He was a kind of administrative
10 assistant. And the witnesses have shown that, and I'm referring to the
11 witnesses of the Prosecution. He never had the command responsibility nor
12 was it ever proved during the Prosecution case that he had some kind of
13 command responsibility. The Prosecutor is now trying to extend this
14 concept of command responsibility.
15 As regards the immediate perpetrators, the guards who were in the
16 camp, the charges against them were dropped. I don't know on what basis
17 one can retain the charges against Mr. Prcac if everybody who was -- if
18 the charges against all of those who were at the same level as him were
19 dropped. What do we have to prove that he was the deputy commander? Only
20 the fact that one man left and the other one came instead.
21 What the Defence would request of this Trial Chamber is that when
22 making a decision, it attempts to view the statements of all the witnesses
23 and not individual witnesses, as the Prosecution has done. A fair trial
24 in the sense of Article 98 bis implies that all the evidence that has been
25 presented be viewed and taken as a whole - taken as a whole. It is no
1 good if just one witness is put forward, as the Prosecution has done, and
2 to forget all the rest, to forget the 35 other witnesses, for example.
3 And what the Defence wishes to raise as a question, an issue, here
4 as well is whether, with evidence presented in the way that the
5 Prosecution has done in the case of Dragoljub Prcac, what would happen if
6 the Defence says that on the basis of this we don't want to present our
7 case at this point, as it stands?
8 Another fact that we should like to point out. The submission
9 made by the Prosecution dealt with an assessment of the credibility of the
10 witnesses. It is not the Defence that raised the question of
11 credibility. We do not raise credibility in our motion and say that one
12 witness ought to be believed and the other witness ought not. We just
13 presented the facts before the Trial Chamber for them to -- for you to be
14 able to ascertain whether anything definite can be determined and the
15 charges that are placed against our accused.
16 So of the seven witnesses, one witness said he was a deputy
17 commander; another said that he was the main commander; one person said
18 that he was a commander; one person said he was warden; the rest didn't
19 know, and the rest are 32 witnesses in all. But together, taking what is
20 in common to them all is that they saw him very rarely, that they don't
21 know what his job is and what he did, and that he just carried those lists
23 And the Prosecution is trying to manipulate those lists as well
24 and says the following: "Mr. Prcac did call out the detainees, after
25 which, according to the testimony of certain witnesses, those detainees
1 were not seen anymore. They disappeared." That same statement from the
2 same witness says in another portion: "Other guards called people out as
3 well." It is not contested that on the 6th of August, when the detainees
4 left for Trnopolje from Manjaca, it was not only Mr. Prcac who did the
5 roll-call. A number of guards did the roll-call. And the Prosecution
6 also wishes to manipulate the fact that he called out women when they went
7 to Trnopolje on the 3rd of August and some of them later on disappeared.
8 It is true that they disappeared and that we don't know of their
9 whereabouts to the present day, but we don't know when they disappeared
10 and we don't know whether Mr. Prcac was in the camp until the end; that is
11 to say, we know that he was in the camp until the 6th of August. From the
12 6th to the 20th of August he was not there.
13 These are the facts, the facts as they stand, the facts that must
14 be looked into in all their complexity and their entirety. We do not have
15 the right at this point to single out a fact, to single out a witness, and
16 to interpret them falsely at that.
17 JUDGE RODRIGUES: [Interpretation] Mr. Stojanovic [sic], I will
18 take the opportunity of this little break to tell you that you will have
19 to finish soon. You have four or five minutes, so that you can organise
20 your presentation.
21 MR. J. SIMIC: [Interpretation] Yes, Your Honour, thank you. My
22 name is Simic. And having said what I said, I shall end there. So it is
23 up to the Trial Chamber --
24 JUDGE RODRIGUES: [Interpretation] I think it was a
25 misunderstanding. I don't think I said Stojanovic. I said Jovan Simic.
1 I'm sorry. Please continue.
2 MR. J. SIMIC: [Interpretation] I am drawing to a close, Your
4 This Trial Chamber would have to look at the facts completely,
5 comprehensively, all-embracingly, and not individually, as best suits the
6 Prosecution. Thank you, Your Honour.
7 JUDGE RODRIGUES: [Interpretation] Thank you very much, Mr. Simic.
8 I think we will now have a half-hour break, and after the break we
9 will hear the response of the Prosecution. Our intention is to work until
10 approximately 1.00 and continue in the afternoon in necessary. So if
11 necessary, we will start in the afternoon at 2.00. So we will be working
12 until 1.00, then we will have a one-hour break for lunch, and then we will
13 resume at 2.00 if necessary.
14 --- Recess taken at 11.13 a.m.
15 --- On resuming at 11.47 a.m.
16 JUDGE RODRIGUES: [Interpretation] You may be seated.
17 Let us hear the Prosecution now. Madam Hollis, you have the floor
18 for the response.
19 MS. HOLLIS: Thank you, Your Honour.
20 The arguments that you have heard today from the Defence are a
21 summarisation of arguments that were made in their pleadings to which we
22 have responded. So my comments will also be very summary in form and, I
23 hope, very brief and very much to the point.
24 The Prosecution suggests to Your Honours that the first issue that
25 you must take on and you must determine is, first of all, what is the
1 scope of the Rule under which you are acting. We suggest that many of the
2 Defence arguments to you must fail because they are beyond the scope of
3 the Rule, and it is the Rule which defines what actions you are entitled
4 to take at this time.
5 The scope of the Rule itself is very clear: Judgements of
6 acquittal of offences charged, not material facts that are alleged in
7 support of offences charged, not legal characterisations of the acts or
8 omissions of the accused, and that is what you have under Article 7.
9 Because if you look at the punitive articles, Articles 2, 3, and 5, the
10 offence that is charged does not change based on the mode of liability or
11 the legal characterisation of the acts or omissions of the accused. In
12 Article 4, it appears that, indeed, the offence you would charge does
13 change based on the mode of liability, so that you have genocide and then
14 you have the possibility of conspiracy to commit genocide and then you
15 have the possibility of attempted genocide and complicity in genocide.
16 Those various charges, we suggest, in Article 4 reflect a real difference
17 in the crime you charge based on how you legally characterise the acts or
18 omissions of the accused.
19 But the articles we are concerned with, Articles 3 and 5, that is
20 not true. So Article 7(1) arguments do not follow within the scope of
21 Rule 98 bis acquittals because you don't acquit them of Article 7(1) or
22 Article 7(3), you acquit them of the offences that are charged.
23 For that same reason, if you look at Rule 98 bis, you do not
24 acquit someone of particular incidents that fall within the count, because
25 it speaks about the offences charged. And if you look at what the
1 offences are, they are the counts set out in the indictment, Counts 1 to
2 3. The counts are set out at page 10. And what are the counts?
3 Persecutions, inhumane acts, outrages upon personal dignity. Those are
4 the offences charged. And what is the general category of victims and the
5 general time frame that is alleged?
6 If you look at paragraph 24, it gives you the general parameters
7 of the offences charged, and in paragraph 24, it tells you that they are
8 charged, between the 24th of May and the 30th of August, with persecutions
9 of Bosnian Muslims, Bosnian Croats, and other non-Serbs in the Prijedor
10 area, based on political, racial, or religious grounds. So that is the
11 parameter of the charge.
12 And if you look at the other counts, you will find the same type
13 of procedure followed. You have the count itself, which is murder, and
14 then you have a paragraph that gives you the characterisation of the
15 victims and the time period, and it is a very broad one.
16 When we look at the schedules, the schedules are nothing more than
17 further particulars that fall within the broad counts. And the question
18 that you must answer is whether Rule 98 bis gives you the authority to
19 enter acquittals related to specific incidents within a count. Because
20 what offence will you acquit an accused of if you find that there is no
21 evidence relating to one aspect, one incident, that is subsumed in the
22 broader count. Is he then not guilty of Count 4, murder? Then you are
23 ignoring all the other murders.
24 So we suggest that you must first determine for yourself what is
25 the scope of Rule 98, and we suggest that the scope is the offences
1 charged and those are offences that allege cumulative acts, cumulative
2 crimes, cumulative victims over a long period of time. So that Rule 98
3 does not envision entering judgements of acquittal for specific incidents
4 within those counts.
5 There is contrary authority in this Tribunal to that, and we have
6 noted that, even as far back as Blaskic, which acted under the general
7 authority that the Trial Chamber had, but also, I believe, felt that its
8 actions were within the then new Rule 98 bis. They alluded to finding
9 someone guilty of a part of an offence. We suggest, very simply, that
10 that is beyond what is allowed by Rule 98 bis.
11 Once you determine what is the scope of the Rule, then you must
12 move to the remaining allegations made by the accused where you do have to
13 look at the Rule and that they are within the scope of the Rule. What is
14 the standard that you apply? We have set forth for you what we believe
15 the standard is to be applied. We believe that standard is not proof
16 beyond a reasonable doubt, that it is a lesser standard.
17 And if we look for one brief moment at what is meant under the law
18 by proof beyond reasonable doubt, of course what that means is that when
19 you look at all of the evidence and you weigh the evidence and you judge
20 credibility, that there can only be one explanation, one reasonable
21 explanation for the evidence, and that is guilt. When you are faced with
22 a Rule 98 bis motion, that is not the test you apply. Rather, it is: Is
23 there some evidence which, if believed, would tend to reasonably establish
24 each element of each offence. That is the test, and it is a lower test.
25 Could you find the person guilty, not is there only one reasonable
1 explanation which is proof beyond reasonable doubt.
2 In applying the Rule 98 bis standard, we suggest again, as we have
3 suggested in writing, that you do not look at the credibility issues, you
4 resolve those at the end of the case; that you do not look at issues such
5 as reliability unless you find that the only evidence that can support an
6 element is totally unreliable, is totally incredible. Only in such a very
7 limited circumstance at this part of the proceeding would you look at
8 credibility or reliability.
9 We also suggest that Rule 98 bis envisions some requirement on the
10 part of the moving party to specify where the evidence is insufficient and
11 to explain to you why, so that a general or broad assertion that the
12 evidence is insufficient, the Prosecution submits, is not adequate basis
13 for Rule 98 determinations and judgements of acquittal.
14 If we look at the arguments that you have heard today, we find
15 that many of the arguments go to the scope of Rule 98, and we suggest that
16 perhaps the most clear example of where you must define the scope and act
17 accordingly are those instances where we have admitted in writing that
18 there appears to be no evidence of record to support individual murders.
19 What do you do in that instance? If the scope of Rule 98 bis is such, as
20 we suggest it is, that you must look at the crimes charged, that is, the
21 broad murders, then you would not enter judgements of acquittal because
22 there is no count upon which to enter a judgement of acquittal. If you
23 determine otherwise, if you determine that you can enter acquittals for
24 portions of a count, then your action would be different. But that is
25 what clearly brings into focus -- that category of specific incidences --
1 what clearly brings into focus, perhaps your most difficult task, and that
2 is determining what is the scope of Rule 98 bis.
3 We suggest that when you have heard the Defence submissions this
4 morning, and also in their written submissions, that they have
5 mischaracterised the evidence. They suggest we have mischaracterised the
6 evidence. Ultimately what the evidence is is determined by what is in the
7 transcript or in a document, if that document is in question.
8 You have been given references to the transcript, and we suggest
9 that when you look at the language in those transcripts that it will
10 support our position on the evidence. But ultimately, final determination
11 must be made by Your Honours after you look at what is down in black and
12 white, in writing, in the transcripts of this case.
13 If you look at the arguments as well, and taking them now somewhat
14 more individually, if you look at the arguments set forth on behalf of the
15 accused Kos, it appears that one of their arguments is really an argument
16 that is aimed against the Prosecution and not against the witness, and
17 that is Witness AI, in regard to why we did not ask him to identify a
18 photograph of Drazenko Predojevic. If they have an issue with the
19 Prosecution, that doesn't impact this witness. Had this witness
20 misidentified such an important person, we would have disclosed that to
21 the Defence because it could have cast doubt on other identifications. No
22 such misidentification occurred. Their argument about our failure to show
23 him this photograph is, perhaps, an attack on us, but it says nothing of
24 the reliability or credibility of this witness should you believe that
25 that issue must be looked into.
1 Regarding paragraph 10 of the submissions by accused Kos, where he
2 talks about no evidence having been presented that Kos murdered Becir
3 Medjunjanin, Mehmedalija Sarajlic, Hanki Ramic, or Miroslav Soljaja, we
4 suggest that that is a general allegation that we do not have to address.
5 We further suggest that there is evidence in the record of the murder of
6 all of these victims, and we suggest that perhaps what is really being
7 addressed here is that mode of liability can be limited at this stage of
8 the proceedings, or a legal characterisation of the acts of the accused
9 can be limited at this stage of the proceedings.
10 Our position all along has been that we have charged the accused
11 with particular offences and we have said that any mode of liability may
12 apply, any legal characterisation of their acts may apply, under Article
13 7(1) or 7(3), and if any of those applies, their guilty. So that he does
14 not have to have pulled the trigger or beaten to death any of these
15 accused in order for you to ultimately, at the conclusion of these
16 proceedings, determine he is guilty.
17 There is some evidence of his position in the came; there is some
18 evidence of his continuing presence in the camp; there is ample evidence
19 of the conditions of the camp, of the open and notorious events that
20 occurred in the camp, including killings, beatings, torture. We suggest
21 that at least one mode of liability would support his being found guilty,
22 even at the end of this case, of this murder, based on those types of
23 evidence and that is the theory of common purpose which the Tadic
24 Appellant Chamber set forth as a mode of liability under Article 7(1).
25 In terms of whether a person testified to something or not, again,
1 we have addressed that in our written submissions. We submit once again,
2 very clearly, that at trial, Nusret Sivac testified to you that it was
3 Krle's shift on duty when Crnalic was killed, and that the "testimony"
4 that the accused Kos refers to is, in fact, questions about a prior
5 statement and that Nusret Sivac disavowed the accuracy of that prior
7 Turning to the submissions by the accused Kos -- excuse me,
8 accused Radic, we suggest again that a great deal of that submission goes
9 back to the idea that Article 7(1) and Article 7(3) are offences charged;
10 rather, they are modes of liability or legal characterisations. So that
11 you cannot acquit a person of Article 7(1). You cannot acquit a person of
12 Article 7(3). You can acquit a person of the counts that are set forth in
13 the indictment.
14 In regard to the distinction that the counsel made between
15 indirect knowledge and conclusions versus formal evidence, we suggest that
16 you can convict someone even if there is no paper anywhere which says that
17 a person held a certain position. Rather, you can look to testimony based
18 on observations and make that determination.
19 Certainly, at this point of the proceedings, however, you look to
20 see if there is some evidence which would support the accused's presence
21 in the camp. The accused would allow you to legally characterise the
22 accused's actions in any way under Article 7(1) or Article 7(3), and if
23 you can find one mode of liability that is supported by the evidence, then
24 we move forward and continue the case.
25 Regarding the accused Zigic's presentations, we look at the
1 comments regarding Izeiri. Again, we have noted that when there are
2 disputes about the evidence, we look to the testimony of the witness, and
3 in that regard, the Defence statement is correct in that in our written
4 argument we had indicated that Hase Icic said that this man died in
5 Omarska. Indeed, if you look at the transcript reference to which we have
6 cited you, you will find that Hase Icic testified that a young Albanian
7 man was taken out of Room 2 at Keraterm, so that the testimony of the
8 witness relates to Room 2 at Keraterm, not Omarska.
9 In regard to the comment that they did not receive the annex for
10 their accused, annex 3 of the consolidated response to the motions for
11 acquittal is the annex that relates to the accused Zigic. We filed that,
12 and if they have not received that, we suggest that they ask the Registry
13 for annex 3.
14 If we look at the submissions by the accused Prcac, we again
15 suggest that the test that is being applied is the incorrect test. It is
16 not proof beyond reasonable doubt. There were comments made by counsel
17 for accused Prcac that we were alleging mere presence was enough to
18 support a denial of their motion for acquittal. Mere presence is not
19 criminal liability. However, as was discussed in the Tadic case, there
20 can be presence which is not mere presence. And we suggest there is some
21 evidence of record to indicate that the presence of the accused Prcac was
22 not mere presence but, in fact, was presence as part of an ongoing
23 concentration camp regime of mistreatment of these victims, and that this
24 presence goes far beyond mere presence and is one legal characterisation
25 of his acts and omissions which could render him liable for the crimes in
1 that camp. So we agree that mere presence is not enough. We suggest,
2 however, in relation to Prcac, the evidence shows more than mere presence.
3 Counsel for accused Prcac indicates, as one example, that we have
4 stated that Nusret Sivac stated that Prcac was in the camp on all shifts
5 and that he gave orders, and counsel indicates that the record does not
6 show that. Again, we have given you references to Nusret Sivac's
7 testimony. We would simply point you to page 4132, beginning at line 19,
8 which is a question by Judge Riad who says:
9 JUDGE RIAD: Now, speaking of Prcac, you said that he would give
10 orders to the guards. But did you also watch or notice that he was
11 commanding one of the shifts?
12 And the response is, beginning at line 24 of that page:
13 A. He was not a shift commander. He would be in all of the
14 shifts. He would even come to the camp during the night very
15 often, and he would bring lists with names of detainees with
17 At page 4126 of the transcript, in response to a question by
18 counsel for Mr. Prcac, at line 9:
19 Q. Did you see Drago giving orders to someone?
20 At line 10:
21 A. Yes, I did.
22 At line 11:
23 Q. To whom?
24 At line 12:
25 A. To the guards.
1 Again, disputes about evidence in the record must be resolved by
2 looking at the record.
3 We have put our written submissions forward regarding the
4 discussion of relevant times, and we suggest again that the relevant time
5 is between the 24th of May and the 30th of August, and the crimes must
6 fall within that time period, at whatever point within that time period
7 they are covered by the offences.
8 There was also reference to paragraph 39 of the indictment. We
9 suggest that paragraph speaks to, again, legal characterisations or modes
10 of liability and not to offences charged.
11 In regard to this discussion of the schedules by many of these
12 accused, if you look at the introductory section for all of these counts
13 and all of these schedules, you will find it is a general reference; all
14 prisoners in Omarska between these dates, all prisoners in Omarska and
15 Keraterm for Zigic, all prisoners in Omarska, Keraterm, and Trnopolje for
16 Zigic. So that each of these schedules incorporates this broad category
17 of people and broad time in which these accused committed these crimes.
18 We suggest that when you apply the proper scope for Rule 98 bis,
19 when you apply the proper test, and when you look at how you apply that
20 test to the evidence, that all of these challenges must fail. And we
21 would ask you to proceed on all of the offences charged in the
23 Thank you, Your Honours.
24 JUDGE RODRIGUES: [Interpretation] Thank you very much, Ms. Hollis.
25 We will now give the floor to each of the counsel who wishes to
1 intervene in order for them to reply, and you will all have five minutes.
2 Mr. O'Sullivan.
3 MR. O'SULLIVAN: Thank you, Your Honour. I have two points to
5 The first is in regards to what my learned friend is describing as
6 the scope of Rule 98 bis, and in my submission, the way in which that is
7 tied to the indictment which includes the schedules.
8 The schedules list specific individuals and events and allege
9 liability of certain accused. Those lists, in our submission, are charges
10 against the individual accused. My friend is quite correct that if you
11 look, just as an example, to Schedule B for Kos - and I invite Your
12 Honours to do that when you retire - there is a broad allegation of all
13 prisoners, fixing a date, but that is followed by a list of seven names.
14 Now, clearly the order of the previous Trial Chamber to set particulars
15 must mean that the seven names which follow are made in allegation against
16 Kos, and that's the way to read those schedules, in my submission, and
17 that's the way to interpret and apply Rule 98 bis. And if there is no
18 evidence or insufficient evidence, Your Honours must acquit.
19 Can I also draw your attention to the Kunarac decision. Again,
20 when you retire, I invite you to look at paragraph 26 of that decision,
21 where, indeed, the Chamber entered a judgement of acquittal for a
22 particular individual within a count because of an insufficiency of
23 evidence. Your Honours will also see in that paragraph 26 that the
24 Kunarac Chamber was applying the same test and standard as the Kordic
25 Chamber. But I'll leave that with Your Honours to review.
1 My second point is rather more specific and it is just what my
2 learned friend said about the witness Nusret Sivac and the fact that his
3 statement, previous statement, was read to him. Now, the first thing is
4 that, as you know, only portions -- the relevant portions are read to a
5 witness and that forms part of the record. That's part of his testimony;
6 it is evidence. With all due respect to my learned friend, Nusret Sivac
7 did not disavow his previous statement, he adopted it. He said it was
8 truthful and voluntary and conducted over a considerable period. And what
9 he said in evidence is that the person who allegedly shot Crnalic was not
10 Milojica Kos.
11 Those are my submissions.
12 JUDGE RODRIGUES: [Interpretation] Thank you very much,
13 Mr. O'Sullivan, and thank you for being so concise.
14 Mr. Jovanovic, the floor is yours.
15 MR. JOVANOVIC: [Interpretation] Thank you, Your Honour. Article 1
16 of the Statute provides that the International Tribunal shall have the
17 power to prosecute persons responsible for serious violations of
18 international humanitarian law, committed in the territory of the former
19 Yugoslavia since 1991, in accordance with the provisions of the present
21 Therefore, the sense and position of Radic with respect to the
22 application of Article 7(1) and 7(3) of the Statute is to be found -- is
23 contained in persons responsible for serious violations, that is to say,
24 Articles 2, 3, 4, and 5 of the Statute must be linked up, that is to say,
25 they must be linked up with Articles 7(1) and 7(3), and the responsibility
1 for a certain individual to commit criminal acts of that kind, that person
2 must be in a position as stipulated by Article 7(1) or 7(3) of the Statute
3 for us to be able to apply the other articles linked up with Article 7(1)
4 and 7(3), which provide for criminal acts as quoted.
5 Therefore, criminal acts, the ones in the indictment and the
6 counts in the indictment and the crimes committed, cannot exist
7 independently of Articles 7(1) and 7(3) of the Statute, unless we
8 determine the position of the accused in the sense of these two articles
9 of the Statute. Then one element will be lacking in the criminal act or
10 criminal acts which the accused is being charged of on the basis of the
11 indictment. And it is along those lines that the Defence said that the
12 evidence presented does not indicate the position held by the accused
13 Radic. So one vital element is lacking in that chain.
14 The same is true with respect to the conditions that prevailed in
15 the camp. The status, once again, of the accused Radic has not been
16 determined or ascertained, and the possibilities he had to influence those
17 conditions and ultimately to change them.
18 So much from me, Your Honour. Thank you.
19 JUDGE RODRIGUES: [Interpretation] Thank you, Mr. Jovanovic.
20 Mr. Stojanovic.
21 MR. STOJANOVIC: [Interpretation] Thank you, Your Honours.
22 Just two or three very brief remarks. We do not see any basis for
23 this Trial Chamber to burden itself with certain events for which no
24 evidence has been presented. It is a very complex and very expensive
25 case, very expensive proceedings, indeed, and I think it would be of great
1 assistance to all of us to simply stop discussing the events for which no
2 single shred of evidence has been presented.
3 This remark concerns the allegation of the Prosecutor that the
4 partial acquittal of certain counts in this stage of the proceedings is
5 unacceptable, if I have correctly understood the position of the
6 Prosecutor in that respect. I think that that kind of argumentation would
7 lead to the conclusion that the Chamber would not be in a position to do
8 so at the very end; that is, it could not bring a judgement of that kind,
9 so the accused must be acquitted of certain individual counts. Therefore,
10 I believe that this argument cannot be accepted. Thank you.
11 JUDGE RODRIGUES: [Interpretation] Thank you, Mr. Stojanovic.
12 Mr. Jovan Simic is next. I think that I have pronounced your name
13 properly and stated it properly. Mr. Jovan Simic.
14 MR. J. SIMIC: [Interpretation] Yes. Thank you, Your Honour.
15 The Defence would, first of all, like to remind the Trial Chamber
16 of the fact that the Chamber, practically in the identical composition,
17 made a decision in the Jelisic case, and I do not think that the
18 criteria -- that that criteria is the criteria that has to be applied
19 here and now today.
20 With respect to Mr. Nusret Sivac, the Defence would like
21 to state that it is impermissible that we draw parts out of context,
22 because if you extract parts and portions out of context of the whole
23 testimony, you have a half-truth, and half-truths, in the respectful
24 submission of the Defence, is worse than a complete falsehood.
25 Nusret Sivac said that Mr. Prcac was present during all the
1 shifts. That means that he was present during all the shifts that took
2 their order one for another, and the Prosecution said that he attended the
3 shift change, which means that they are alluding to the fact that he was
4 present, that he was in charge of the takeover of shifts, and that on the
5 basis of that he had an authority of some kind. No. What the witness
6 said was that he was present during the shifts. The witness also said
7 that he does not know what he did. He saw him with some lists in his
8 hands, that sometimes he would give the guards those lists to read, and
9 that was the end of his testimony. The witness never said that he was
10 present and attended the actual changeover of the guards at their shifts.
11 So they are using a half-truth.
12 What the witness said was that he was there and present in the
13 space of 24 hours when the shifts were on duty, but no authority during
14 the actual changeover and takeover of the shifts.
15 That is what I wanted to point out.
16 JUDGE RODRIGUES: [Interpretation] Thank you very much, Mr. Jovan
18 I think that my colleagues have questions for you.
19 Judge Fouad Riad.
20 JUDGE RIAD: [Interpretation] Thank you, Mr. President.
21 [In English] Good morning, Ms. Hollis. I have a question of a
22 general character, without going into the merits of the motions, and
23 concerning exactly your view and concept concerning the scope, the scope
24 of the Rule 98 bis.
25 In essence, you consider that 98 bis only envisions a conviction
1 on a charge and not a portion of a charge, or an instant. Now, I just
2 want to be enlightened and to know more. I want you to develop this view
3 more in the light of several considerations.
4 The first is another, more or less, general rule which I know in
5 French, I don't know in English, which says, "Qui peut le plus peut le
6 moins." If you can do more, you can do less. So if we can acquit on a
7 charge, we can acquit on a portion of a charge. Now, in that case, is
8 this in the interests of the Defence or not? And is that -- does this put
9 the Prosecution into any disadvantage? And would this be in the interests
10 of the Court or not?
11 The first question: Would this put you into any disadvantage?
12 And then would it be of any benefit to the Defence? It would alleviate
13 their burden. And of course the accused is entitled to have any
14 alleviation of burden. It could be economical; it could be expedient.
15 So in light of these considerations, why would you consider that
16 Rule 98 bis only envisions charges and not a portion of a charge? Thank
17 you so much.
18 And I just want a small question for Mr. Simic, also without going
19 into any merits. You mentioned that Mr. Prcac would only be reading
20 lists, and I think I put this in connection with what you said that he had
21 an administrative role. Did I understand you rightly?
22 MR. J. SIMIC: [Interpretation] Yes, Your Honour.
23 JUDGE RIAD: So reading lists for people to be -- whatever done
24 with them is only administrative. It's not an order. He's a clerk, he's
25 just like a clerk.
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 MR. J. SIMIC: [Interpretation] Yes, Your Honour. He read out
2 lists not as he saw fit but pursuant to orders. He had the same status
3 and was at the same level as all the other guards. Nothing more. Someone
4 stood guard; other people dealt with the radio; and he was in -- he read
5 lists. From time to time he read these lists when he wasn't on duty by
6 the radio station, the radio transmitter. So this was ordered by Zeljko
7 Meakic and so forth, and there is sufficient evidence to bear that out in
8 the testimony of the witnesses.
9 In addition to that, Your Honours, there is evidence that other
10 guards read lists too. This occurred on the 6th of August. There is
11 testimony that it occurred on the 3rd of August as well when the women
12 were transferred to Trnopolje. And we heard testimony that other guards
13 called people out as well, not at the very end of the camp, when the camp
14 came to an end, but during its duration. This wasn't his exclusive duty,
15 it was just one of the jobs that he did as a guard in the camp or, rather,
16 as an administrative worker, clerk.
17 JUDGE RIAD: Reading the list, knowing what this would entail, do
18 you still consider that this is only an administrative, clerical
20 MR. J. SIMIC: [Interpretation] Your Honour, let me remind you, if
21 I may, of part of the testimony when my learned colleague, Mr. Saxon, was
22 examining Witness U, and he said the following: "Dragoljub Prcac
23 determined which women would stay on in the camp," of the names he read
24 out, "and which ones were to be transferred to Trnopolje." And the
25 witness said, no, he just read out the names. There is no evidence to
1 support that he had any authority in any way whatsoever. He was just
2 noted because one of his duties was, at one point, to read out a list. He
3 didn't know why he was doing this; he didn't know what was on the lists.
4 And then we have the testimony of Omer Mesan, and the Prosecution
5 erroneously interpreted what that witness said. They read out the lists
6 of witnesses, and on that occasion, Dragoljub Prcac and some unidentified
7 guards said that there were 50 detainees more than were on the list, which
8 indicates the fact that they didn't know how many detainees there were,
9 where they were supposed to go, and the kind of
10 behaviour exerted towards them. All they did was read out what they had.
11 And Omer Mesan said that. But the Prosecution made this appear as if he
12 determined where they were to go. All he did was to read. That was just
13 one of the jobs that he was assigned to do.
14 JUDGE RIAD: Thank you very much.
15 MR. J. SIMIC: [Interpretation] Thank you, Your Honour.
16 JUDGE RIAD: [Interpretation] Thank you, Mr. President.
17 JUDGE RODRIGUES: [Interpretation] Do you wish to reply,
18 Ms. Hollis?
19 JUDGE RIAD: Either now or when my colleagues have finished their
20 questions. It's up to you to decide.
21 MS. HOLLIS: If Your Honours would permit, it would be easier if I
22 would answer it now or answer them now.
23 Your Honour, in regard to the adage that if you can do more, you
24 can do less, we suggest that that depends upon the language or the intent
25 of the statutory provision or Rule that you were implementing. For
1 example, if you are looking at sentencing, and it says that the maximum
2 imposable punishment is imprisonment for the person's natural life, that
3 means you can do less. But if you are looking --
4 JUDGE RODRIGUES: [Interpretation] I apologise, Ms. Hollis. It is
5 difficult when counsel speaks amongst themselves because we can pick up
6 your voices via the microphone. Your voices are registered via the
7 microphone. So I apologise, but would you please pay attention to that
8 and please refrain from speaking amongst yourselves.
9 Ms. Hollis, please proceed.
10 MS. HOLLIS: Thank you, Your Honour.
11 So we suggest that no, you cannot always do less if you can do
12 more, and it depends upon the Rule or the statutory provision. When we
13 look at Rule 98 bis, we suggest that it is a Rule which is limited in its
14 scope because what it is doing is it is stopping mid-trial, before the
15 Defence puts on any evidence, and it is prematurely, if you will, entering
16 a judgement. So for that reason we suggest that it is limited in its
17 scope. And we further suggest that the plain language of the Rule limits
18 its scope. It could have said that you can acquit on all or part of a
19 count. It did not say so. It said an offence. And we suggest that
20 because it is a Rule which does not favour a broad definition but rather
21 favours a narrow definition, because in fact it is interposing a judgement
22 at the mid-point of a trial so that you narrow the scope of what you do
23 rather than enlarge it. That would be our response to the adage that you
25 In regard as to whether it is in the interest of the Defence, we
1 suggest that on a very broad and philosophical level it would be in the
2 interest of the Defence any time you would drop out a particular incident.
3 If you were to use that argument, then you could look at all the material
4 facts that are alleged in an indictment and you could at mid-trial sift
5 them out. Would that somehow benefit the Defence? In a very broad way we
6 say it would. Does it benefit the Defence in the sense that it gives them
7 an acquittal of the count that is actually charged? No it does not. So
8 it doesn't benefit them in that way. Does it benefit us or is it harmful
9 to us? That's hard to say, Your Honour.
10 What would happen if, during the Defence case, one of their own
11 witnesses would come out with proof of the killing of one of these
12 victims? In the normal course of events, if you went forward with the
13 charge and the offence, you could consider that evidence in your final
14 decision. If you acquit on that specific victim at mid-trial, then, of
15 course, we would suggest that you wouldn't be able to do that. So in that
16 sense, we think it's probably unlikely that it would happen, but in that
17 sense, it would be of some detriment to the Prosecution, and in broader
18 terms, a detriment to a final determination in accord with what actually
19 happened at these camps and what is charged as having happened.
20 Would it be economically expedient? Would it be judicial
21 economy? Well, Your Honours, we have closed our case in chief, so the
22 evidence is as the evidence is. I don't see the judicial economy of
23 entering judgements at this point on something that is already in the
24 record or not in the record. So I don't think it would speed up your
25 process; I don't think it would slow down your process. So those would be
1 my general submissions, Your Honour, to your questions.
2 JUDGE RIAD: Can I just add an explanation of my question, because
3 to take your test, your criterion, you said that there should be no
4 evidence reasonably established to sustain a conviction. This would be
5 the criterion to acquit. Now, the fact, as you said, that the Prosecution
6 has finished its part and its evidence which means they have no more
7 evidence to prove, and in the light of what the Prosecution -- this is
8 just for the sake of understanding -- and there is no chance to get more
9 proof of a certain incident or a part of a crime or one of the -- let's
10 say one of the instants, we don't expect any more proof. And in light of
11 what the Prosecution has offered, there is no reasonable chance of
13 Now, if we -- if the Chamber deals with this, wouldn't that
14 dispense, alleviate, the charge of the Defence in the sense that they do
15 not need to bring witnesses to disprove this fact which is already --
16 which is already out of the trial, because there is no reasonable -- there
17 is no reasonable evidence for it, and it is just making it clear that
18 there are certain things which don't require any more waste of time and
19 waste of money for all the Tribunal. That was the issue. Of course, if
20 you consider that this will disturb the totality of the trial, that's
21 another thing.
22 MS. HOLLIS: May I respond, Your Honour?
23 JUDGE RIAD: Please.
24 MS. HOLLIS: Your Honour, first of all, the accused have no burden
25 at all to disprove or prove anything. So that if there is no evidence now
1 about these specific incidents, they certainly have no burden to even deal
2 with these instances. So it doesn't impose a burden on the Defence, and,
3 in fact, the Defence has never had a burden and does not in a criminal
4 trial have a burden of any sort. They may choose to put on a case, not
5 because they have a burden but because they choose to. So no, it doesn't
6 alleviate a burden because no burden exists.
7 If we could perhaps just focus the real heart of the issue, if I
8 may be allowed to, the Prosecution's position is this: If we had charged
9 these accused with a specific count of murder for each named victim, if we
10 had done that, at this point in the proceeding, within the scope of Rule
11 98 bis, Your Honours would enter judgements of acquittal relating to those
12 specific victims that are individually charged and victims for which we
13 have no evidence. So if it were a count, you would at this point within
14 the scope of the Rule, we submit, enter a judgement of acquittal. So it
15 does come back to, again, the scope of the Rule, and we have discussed our
16 position on that. Our position is you -- there's nothing to enter a
17 judgement of acquittal on because the count is a cumulative count and
18 includes many victims. So you can't find them not guilty of the count.
19 And because we have not individually charged those individual murders,
20 there's no count to find them not guilty of. But that is what Your
21 Honours must decide in your determination of what the scope of the Rule
23 JUDGE RIAD: Thank you again, Ms. Hollis.
24 JUDGE RODRIGUES: [Interpretation] I can see that the court
25 reporter for English is having a problem. Have you got a replacement?
1 THE COURT REPORTER: No.
2 JUDGE RODRIGUES: [Interpretation] You may take a break, a short
3 break. May we continue?
4 THE COURT REPORTER: Yes.
5 JUDGE RODRIGUES: [Interpretation] Okay. Madam Judge Wald has the
7 JUDGE WALD: My questions are for Ms. Hollis. The first one is
8 somewhat of a follow-up to Judge Riad's, because I think it is a difficult
9 barrier that you're trying to surmount here, and the theory, I know, is --
10 I understand the charge is murder and there are some incidents which are
11 cited in the schedule; however, I'm always drawn back to the fact that the
12 original Chamber which had this said that you had to provide those
13 schedules in order to give the Defence some opportunity to prepare for the
14 trial. I mean, in other words, you couldn't have gone and just said:
15 "You're guilty of murder under Article 3 and under Article 5." It simply
16 wouldn't have -- it wouldn't have withstood any kind of, I think, of a
17 motion to dismiss unless you had these annexes. And now at the end of the
18 period where you have some of these incidents or specific instances which
19 you have no evidence, you say, "Just keep them in there until the end.
20 Maybe something will show up in the Defence's case which will make our
21 case for us." But if I were a Defence counsel, I wouldn't be too
22 comforted by that. I guess I would feel that as long as those incidents
23 were in the indictment and hadn't been dismissed by the Court after a
24 motion for acquittal, I'd better prepare for the defence to some degree.
25 Why doesn't it make sense to get rid of the brush -- the
1 underbrush, and as we move into the second part of the case, focus on
2 those incidents in which you did have enough evidence to withstand a
3 motion for acquittal? Why carry this dead weight just on the chance that
4 maybe something will show up in the second part of the case?
5 MS. HOLLIS: I think that it goes back to the fundamental issue
6 that Your Honours face, and that is, what is the scope of Rule 98 bis --
7 JUDGE WALD: I will give you time. My point is: Like Alice in
8 Wonderland, I think that, you know, there are words there and it's up to
9 us to interpret them. I don't happen to read 98 bis as saying under no
10 circumstances can you ever dismiss one of the incidents or -- and, indeed,
11 two other Trial Chambers, as you have suggested, have gone that way. So I
12 don't know that it's a clear statement. I think it's more a question of
13 our interpreting in a way that makes sense both for justice and for the
14 procedure of the trial. Go ahead. I'll let you finish now.
15 MS. HOLLIS: Thank you. I do think that since it is a Rule that
16 we suggest is a Rule that is limited because it is this decision at
17 mid-term in the trial, that it is a Rule which needs to be read by the
18 plain language of the Rule, and certainly as regards other Rules, this
19 Trial Chamber itself has made that determination, that you must strictly
20 interpret the Rules, such as the Rule for affidavits. So we suggest that
21 the Rule does say offence or offences charged, and that's what it means.
22 And when you come to the order of the Trial Chamber, it was basically in
23 the form, we suggest, of a bill of particulars, to give further specific
24 -- and we suggest they are material facts in support of the count which
25 is the cumulative charge of murder of many --
1 THE INTERPRETER: Could the counsel please slow down.
2 MS. HOLLIS: -- so we believe that it does not transform those
3 into individual counts of murders. If it does, we would very much like to
4 know that interpretation because it will influence how he approach
5 sentencing should we get to sentencing. But we believe that does not
6 transform that into individual counts, and if it does not, we believe that
7 the Rule, by its language, does constrain the entering of judgements of
9 We again suggest there's really no further work to be done in
10 regard to individual incidents, so that it is not a burden to either the
11 accused or the Chamber, because the accused have looked at these. We have
12 said there is no evidence on these specific incidents, so they have no
13 reason to delve into the incidents --
14 JUDGE WALD: So yours is a pure Rule interpretation argument,
15 because contrary-wise, there's no burden to you if we say -- I'm just
16 using this as an example here. If we say the seven or the six, whatever
17 it is, murders that Kos says that you admit there was no evidence on, and
18 we say, "Sorry, those go out," we haven't thrown away the murder count. I
19 mean, you still have your murder count, you still have your Article 3
20 count and Article 5 count. So you haven't suffered anything except the
21 possibility that something might come up later in the case. So, I mean,
22 it has to come down to your argument that we don't have the authority
23 under that Rule to do what two other Chambers have already done.
24 MS. HOLLIS: That's correct.
25 JUDGE WALD: Okay. So we understand each other.
1 MS. HOLLIS: Yes, we do. We do.
2 JUDGE WALD: Okay.
3 MS. HOLLIS: And we do suggest that it is very unlikely that
4 evidence would come out through the Defence case of these victims. But if
5 it does, these are very serious offences -- incidents within a very
6 serious offence, and then what would the Chamber do with that evidence?
7 And it would not necessarily be evidence that we would try to bring out.
8 So we again go back to what are the counts, what are the offences charged,
9 in the scope of Rule --
10 JUDGE WALD: So, then, how would you sustain your burden of proof
11 under that scenario? Because if you admit at this point -- in our case in
12 chief we put on nothing, and then a Defence witness gets on the stand and
13 blurts out something which does not -- not as your witnesses but as one of
14 the Defence witnesses, have you sustained your burden of proof?
15 MS. HOLLIS: If he gives you evidence that convinces you beyond a
16 reasonable doubt that this incident also should be included, then, yes, we
17 have. You are not limited in the Defence case to using it for the
18 Defence's benefit or using it purely to contradict Prosecution evidence.
19 Whatever comes out in the Defence case, you may use in making your final
20 decision in this case. So we believe, yes, indeed, it would depend on
21 what that person said in their testimony, but that could be the basis for
22 you to include another incident within the overall count.
23 JUDGE WALD: All right. I have a second line of questioning, and
24 that is that on several -- you have told us that you don't think we should
25 consider any particular theory of liability at this juncture, that that
1 would come later; that "any mode of liability that could conceivably
2 result in finding guilt, we have to consider." But I have to say that it
3 does seem to me that if we are considering whether or not there is a
4 sufficient amount of evidence that a reasonable Chamber could find the
5 person guilty or could not, that has to be tied to the theory of
6 liability. And let me tell you what I'm saying.
7 For instance, you've used reference both in your written materials
8 and here many times to the so-called common purpose theory. I have to
9 tell you, I'm not sure what you mean by the common purpose theory.
10 There's one paragraph or two paragraphs in Tadic which were not applied in
11 that case. Common purpose theory, to my knowledge, has never been
12 applied -- except for a few lines of Kupreskic, but that's a completely
13 different situation. It's never been applied, to my knowledge, in a
14 concentration camp case.
15 Therefore, it's not particularly helpful to me for you to say,
16 "Well, Mr. Prcac, he might be found liable under common purpose theory,"
17 and then you just tell us mere presence isn't enough, but presence plus
18 notoriety of the conditions plus status. I don't know what if any
19 authority you have to say that even if that were so, Mr. Prcac, you could
20 go backward and say that he was liable for things that happened before he
21 even got to the camp or maybe you don't say that but I don't know whether
22 you said that or not.
23 Or even more perplexing to me, that any of these people, with the
24 exception of Zigic, who is alleged specific instances which took place at
25 Keraterm and Trnopolje, the rest -- I looked over your own annex, I can't
1 find a word connecting them with the other two. So I don't have any
2 notion of what you think common purpose is. Does it cover the three
3 camps? Does it go backward on liability to May 24th before Prcac even
4 came to the camp? And I'm wondering how, therefore, I'm supposed to try
5 to assess whether or not there's sufficiency of evidence. I think at some
6 point this has got to be cleared up. I mean, I know the theory, I've read
7 the Nuremberg cases, but they don't explain it with any detail either. So
8 it's not like a magic wand you wave around and you say "common purpose,"
9 and you've invoked the Holy Grail. I don't know what you mean by common
11 I don't expect you to give me the full explanation, but I'm
12 pointing out to you a problem I'm having in making that determination.
13 MS. HOLLIS: Thank you for bringing that to my attention, Your
14 Honour. In this Tribunal, the Tadic Appellant Chamber dealt at length
15 with common purpose --
16 JUDGE WALD: A couple of pages of dicta basically.
17 MS. HOLLIS: No, Your Honour. If you would look at the Appellate
18 decision, beginning where they begin to talk about modes of liability,
19 really, under paragraph 185 --
20 JUDGE WALD: I have read that.
21 MS. HOLLIS: -- but when you begin with 195, where it says:
22 "Close scrutiny of the relevant case law shows that broadly --"
23 THE INTERPRETER: Could counsel please slow down.
24 MS. HOLLIS: I apologise. "... the notion of common purpose
25 encompasses three distinct categories of collective criminality," and that
1 goes all the way through paragraph 228.
2 JUDGE WALD: I have read the whole thing, but I don't think it
3 answers some of the questions I have.
4 MS. HOLLIS: It does talk about concentration camp --
5 JUDGE WALD: Yes, it does.
6 MS. HOLLIS: -- common purpose.
7 JUDGE WALD: Right, right. But it says that's one of the three
8 instances of common purpose --
9 MS. HOLLIS: That's right.
10 JUDGE WALD: -- but it really doesn't answer any of the questions
11 that we would have to answer here, or that I would have to answer, to know
12 whether or not if we use the common purpose theory, Mr. Prcac or maybe
13 some of the others too would be liable for what? What would be the scope
14 of their liability under --
15 MS. HOLLIS: It goes back to the --
16 JUDGE RODRIGUES: [Interpretation] I'm sorry. I'm sorry to
17 interrupt you, but both of you are speaking the same language, and I think
18 that our interpreters have problems following you because there were no
19 pauses between questions and answers. We've been telling this to the
20 Defence counsel, but please bear this in mind, the necessity of making a
22 JUDGE WALD: I apologise.
23 JUDGE RODRIGUES: [Interpretation] Thank you.
24 MS. HOLLIS: And I as well, Your Honour. You have certainly asked
25 me to keep that in mind before. I do apologise.
1 I would suggest, Your Honour, that the Appellate decision does
2 give you what you need because it gives you the elements, it gives you the
3 theory; and what we suggest to you is that when you're looking at what
4 happened in the other camps, that is the context in which these individual
5 acts of the accused must be considered, because it does give you the
6 broader common purpose, if you will, the common enterprise, of what was
7 happening in opstina Prijedor. It is related to the findings that this
8 Chamber has previously made, and that is that the mistreatment of persons
9 in these camps was connected to the widespread or systematic attack and
10 the armed conflict.
11 It is within that context and using that as evidence to show some
12 of the elements required for these offences that you will ultimately, as a
13 Trial Chamber and as individual Judges, have to legally characterise what
14 these accused have done. So, for example, Your Honour, if I may --
15 JUDGE WALD: Sure.
16 MS. HOLLIS: -- taking your example of what happened in Omarska
17 before the accused Prcac arrived, can you find him guilty under common
18 purpose of the actions that occurred before he acted at the camp? We
19 suggest you may very well find you cannot. However, what happened prior
20 to his arrival and happened during his stay is proof of the regime of the
21 camp which does go to common purpose. So we believe that would have
22 significance for you.
23 And our point about modes of liability --
24 JUDGE WALD: How about -- if you wouldn't mind addressing what is
25 really bothering me: Keraterm and Trnopolje. Are you really suggesting
1 the common purpose; that if they joined up, as it were, in Omarska, they
2 are going to be held responsible for what happened at Trnopolje and
3 Keraterm? Not defendant Zigic but the others.
4 MS. HOLLIS: What we are saying is that in showing the breadth of
5 this common purpose, we are using these other camps. It was connected in
6 this broader common purpose.
7 In legally characterising the import of the accused's conduct at
8 Omarska, we believe that the conduct of what was happening in the other
9 camps is relevant. As to whether you are going to say they are liable for
10 what happened in those other camps, we are not saying you may necessarily
11 do that. What we are saying is it is a relevant context in which to
12 ultimately determine what mode of liability, if any, you may apply to
13 their acts or omissions, because ultimately, of course, it is their acts
14 or omissions that you're looking at for liability. But in determining the
15 scope of that liability, and looking at the Common Purpose Doctrine, there
16 is even a third category that says you didn't specifically intend the
17 result in a particular place but it was reasonably foreseeable in the
18 common purpose to which you became a part.
19 So that is something for final determination as to exactly how
20 broad that goes. But certainly for purposes now, we believe it is a
21 relevant context in which to determine if there is any mode of liability
22 on which there is some evidence.
23 JUDGE WALD: I understand your basic -- and I would agree with
24 your basic notion -- pause. I would agree with your basic notion about
25 looking at any possible mode of liability. I think you understand from
1 your answer what my problem is, that nobody -- I did not find the Tadic
2 dicta sufficient for me to determine what you were talking about as the
3 common purpose mode of liability that would be applied here. I assume at
4 some point in this whole proceeding you'll brief that a little bit more
5 down the line.
6 But what you have said has helped me to some degree, so thank you.
7 End of pause.
8 MS. HOLLIS: I'm sorry if I didn't address your question. Perhaps
9 I'm too obtuse, but I intended to address it. I apologise if I wasn't
10 able to.
11 JUDGE RODRIGUES: [Interpretation] Yes, thank you, Madam Hollis.
12 In follow-up to the issue that has just been discussed, I should
13 like to ask a question and hear your views about certain doubts that I
14 have at the moment. And I hope that you will help me clarify certain
16 You'll remember that this case was, at the very beginning, Radic,
17 Kvocka, Zigic, and Kos, that it involved four accused; however, Zigic was
18 made part of this case because of his involvement in the events in the
19 Omarska camp. But he was also the accused in one other case, Simic, I
20 think, involving the events that took place in Keraterm and Trnopolje. At
21 one point in time, the Zigic case was joined to the present case, so he
22 was accused for the events that took place in Omarska, and in addition to
23 that, he was joined in the sense that he participated in the events that
24 took place in Keraterm and Trnopolje. Am I correct, Ms. Hollis?
25 MS. HOLLIS: Yes, Your Honour.
1 JUDGE RODRIGUES: [Interpretation] My question in relation to that
2 is the following: Before Zigic was joined with this case, including the
3 Trnopolje and Keraterm events, the other accused at the time, Kvocka, Kos,
4 and Radic, were already held responsible, according to the theory of the
5 Prosecutor, for the events that took place in Keraterm and Trnopolje, or
6 not. Was that the case? Were they held responsible for those events as
7 well, before Zigic came to this case?
8 MS. HOLLIS: Your Honour, if we exclude Zigic from discussion, the
9 events in Trnopolje and Keraterm are relevant to the charges against these
10 accused because it is part of the broader crime that occurred in Prijedor;
11 it is part of the ethnic cleansing of the municipality of non-Serbs. So
12 in that regard, the context is significant.
13 The context is also significant because the evidence of those
14 camps further supports that there was a regime within the opstina Prijedor
15 of repressive conduct toward non-Serbs in camps. So it is significant for
16 that as well.
17 Why is it significant? It is significant for the common or
18 jurisdictional elements; it is also significant for intent and inferring
19 intent; it is also significant for different legal characterisations of
20 the conduct of these accused, different modes of liability, if you will.
21 That's where we go back in to proof, first of all, that there was this
22 common purpose; to proof that it could extend to this concentration camp
23 regime, so it was relevant to all of that.
24 If we look at the counts themselves, as we talked about earlier,
25 and if we look at persecutions, for example, we look at what was
1 actually stated in there and we look at, for example, paragraph 24 -
2 paragraph 24 in the indictment basically indicates that they were guilty
3 of persecutions of Bosnian Muslims, Bosnian Croats, and other non-Serbs in
4 the Prijedor area on political, racial, and religious grounds - now, if
5 you look at that language, it does not say they're guilty for what
6 happened in Keraterm or they're guilty for what happened in Trnopolje.
7 We suggest that at the conclusion of this case, when Your Honours
8 decide the parameters of their liability, if any, under common purpose,
9 that it is possible that Your Honours could determine that they are guilty
10 of crimes in those other camps because they took part in a common
11 enterprise. The intended result for them was to continue the regime in
12 Omarska, or it was to inflict the specific types of abuses that are
13 alleged, or -- and you can either argue that they also intended for the
14 other abuse, so that they are guilty under this common purpose theory, or
15 you could find that they limited their intention to what happened in
16 Omarska, but they were aware that the regime of misconduct would
17 reasonably include the same type of crimes at Keraterm and Trnopolje.
18 Under the third theory of common purpose, if you are a part of the
19 common purpose and you don't intend a specific result but that specific
20 result is reasonably foreseeable based on what you do intend, then you can
21 be found criminally liable for that as well.
22 So when Your Honours conduct your ultimate deliberations, you may
23 conclude that they were liable for these other acts of misconduct. And
24 then the question would be, really, the degree of liability. And if at
25 some point causation does break off, and that even if you find they were
1 liable because it wasn't in the camp in which they were working, then on
2 sentencing you would reflect that with a lesser sentence. But we believe
3 that is a permissible final determination you could make, and it is
4 encompassed within this theory of common purpose, which is one mode of
6 JUDGE RODRIGUES: [Interpretation] So, Ms. Hollis, in view of what
7 you have just told us, can I conclude that in the Simic case, the accused
8 in the Simic case are also responsible for everything that we are
9 discussing here concerning the Omarska camp?
10 MS. HOLLIS: I think this is an issue as to when does liability
11 attach. Yes, Your Honour. And that is something also that Judge Wald had
12 raised as a problem for her and a question for her. We suggest that the
13 issue is one for resolution at the conclusion of the case because of the
14 way the counts are alleged, but we would suggest to you this: that the
15 determining factor would be, we would suggest, when the person joins the
16 common purpose. So that even if an accused came to the camp at, say, the
17 end of July, which is not the case here, but the end of July, if they had
18 joined the common purpose earlier and if Your Honours could determine that
19 what happened in these camps was reasonably foreseeable given the common
20 purpose they had joined, then, yes, they could be held guilty for what
21 occurred in these camps prior to their arrival at the camp.
22 So we suggest the real legal issue, and it's not a legal issue for
23 discussion under judgements for acquittal, we suggest, but the legal issue
24 is when does the evidence show, either directly or through reasonable
25 inferences, that the person joined the common purpose, that they became a
1 part of it? And that is the point at which liability would attach.
2 The evidence of what happened before that would still be relevant
3 to Your Honours because it does establish the ongoing nature of the
4 enterprise; it establishes what the common purpose was. Because
5 individuals don't all have to be present at the creation of the common
6 purpose, they can join later. That's the fatal flaw with the argument put
7 forth by the counsel for the accused Prcac. You don't have to be in at
8 the beginning. Any time you jump on board, your liability commences.
9 So when they would be liable --
10 JUDGE RODRIGUES: [Interpretation] We don't have the transcript
11 anymore. There seems to have been a problem. I was trying to have a
12 break but I don't know now. I think we should have a break before our
13 Status Conference.
14 Madam Hollis, could you perhaps just finish your intervention, and
15 then we will have the break, because we're not getting the transcript.
16 Yes? No, nothing is being written down at the moment, because we don't
17 have the court reporter in the courtroom here. I think that the best way
18 would be to have a break at this point, and we will come back to finish
19 your argument, Ms. Hollis, and to begin the Status Conference.
20 So a one-hour break.
21 --- Recess taken at 1.10 p.m.
22 --- On resuming at 2.07 p.m.
23 JUDGE RODRIGUES: [Interpretation] You may be seated.
24 Ms. Hollis, as you can see on the transcript, the last sentence
25 that you uttered was "they don't have to be in at the beginning." Please
1 continue with your argument, Ms. Hollis.
2 MS. HOLLIS: Your Honour, I have reviewed the last part of the
3 transcript, and the part I reviewed also had the sentence "They can
4 join." I have also recalled the principle or adage that Judge Riad has
5 set forth: If you can do more, then you can do less. We have argued that
6 that principle does not apply to Rule 98 bis. However, that principle
7 would apply to my comments, Your Honours, and I have nothing further to
8 say unless you have additional questions.
9 JUDGE RODRIGUES: [Interpretation] I do have one more question,
10 Ms. Hollis. What I wanted to know was whether in the Simic case the
11 accused will also be held responsible for these actions that were
12 committed in the Omarska camp. But let me, perhaps, try to rephrase the
14 Before the joinder in the Omarska case, the acts for which Zigic
15 was held responsible and which took place in Keraterm and Trnopolje, did
16 the configuration of the indictment, if I can put it that way, did it
17 change? So before Zigic was joined to the indictment, did the accused
18 that were already present there in Omarska, were they accused for the acts
19 committed in Omarska as well, or did that happen only at the moment when
20 Zigic joined them with the acts that he committed in Keraterm and
22 MS. HOLLIS: Your Honour, again, I think, to clearly answer that,
23 we have to look at the counts themselves and the language of the counts.
24 If we look at the murders, I believe, in regard to the four accused -- or
25 the three accused who were in the case before Zigic, the murders talked
1 about prisoners in Omarska. If we talked about the torture counts, I
2 believe that those counts in the relevant paragraph referred to prisoners
3 in Omarska. When we looked at persecution, I believe I earlier alluded to
4 that language, and that language was in the area of Prijedor, so that that
5 was broader.
6 Given that, Your Honours, we would suggest the following: For
7 Counts 1 to 3 for Kvocka, for Radic, for Kos, and later for Prcac, that it
8 is possible that Your Honours could, on the language of the indictment,
9 find them guilty for what happened in those other camps using one of the
10 modes of liability that is referred to as common purpose, and that is the
11 third mode of liability that says that you join a common purpose intending
12 certain things. Other crimes occur which were not within the intent that
13 you had but they were reasonably foreseeable. Under that mode of
14 liability, you could conclude, we suggest, they were liable for crimes in
15 Keraterm and Trnopolje. The language of the indictment would allow you to
16 do that. We suggest further that is a decision for final judgement. That
17 is not a decision for Rule 98 bis.
18 So I hope I have answered your question, Your Honour.
19 JUDGE RODRIGUES: [Interpretation] Thank you very much, Ms. Hollis.
20 I should like to go back to one other aspect that was touched upon by one
21 of my colleagues. You tell us that, for example, the charge of murder
22 refers to several individuals, but I think that when it comes to the
23 definition of the criminal offence of murder, if we talk about the
24 abstract elements of the criminal offence of murder, I don't think that
25 there is a -- that the element was that there had to be several persons
1 murdered. When you say "several persons" in the criminal offence of
2 murder, it is enough to have one victim to sustain this count of the
4 So in follow-up to the question that was asked by Judge Riad, if
5 we say that there is not enough evidence, and to a certain extent you
6 refer yourself to the Kordic case law and you also admit, to a certain
7 extent, that you haven't met the required standard for the charge of
8 murder, I would like to know whether this criminal offence of murder can
9 still stay, because it does not require several victims. The only thing
10 that it requires is one victim. I don't know how you can respond to
11 that. I'm talking about the abstract definition of the criminal offence
12 of murder. What is necessary, what is required, is only one victim, not
13 several victims. What is your opinion on that?
14 MS. HOLLIS: Your Honour, in the count, at least Counts 4 and 5,
15 but also as against the accused Zigic, Counts 6 and 7, if we look at
16 paragraph 34, we find the universe, if you will, of victims, as well as a
17 time frame, and it indicates a time frame between the 24th of May and the
18 30th of August. And then it indicates that Kvocka, Prcac, Kos, and Radic
19 participated in the murder of prisoners, in the plural, in Omarska camp
20 including those listed in the schedules. So those listed in the schedules
21 are among the universe of victims.
22 The same thing would be true in Counts 6 and 7, at paragraph 37.
23 The same time frame is alleged, and it accuses Zigic, either alone or with
24 others, of entering the Omarska and Keraterm camps and participating in
25 the murder of prisoners. And then in that, proceeds to list A through D
1 in terms of victims. So in regard to how it was charged, it was charged
2 as murder of more than one person.
3 Your Honours, we suggest, at the conclusion of these proceedings,
4 you could find the accused guilty of Count 4 and 5 by what, in my
5 practice, we would have called "by exceptions" in that you could find that
6 the accused are guilty of murder but the exception would be you would only
7 find murder of one victim. So that as to prove a murder charge, even if
8 it is a cumulative charge, you have to meet all of the elements for
9 murder, so that you have to prove that either named or unnamed persons
10 were killed and that the accused, somehow his acts or omissions could be
11 legally characterised in a way that would give him criminal responsibility
12 for those murders, and that the requisite intention was present.
13 So you could find him guilty of just one person, but it would not
14 transform each individual victim into a separate murder count, and that is
15 the basis for our argument: to say that you would not have a basis in the
16 Rule to acquit for specific victims because there are no individual murder
17 counts for each specific victim. The schedules do not give individual
18 murder counts. They are further particulars to support the existing
19 counts which are counts of multiple murders.
20 JUDGE RODRIGUES: [Interpretation] Very well, then. Thank you very
21 much. I don't think we have any additional questions for the parties. So
22 this actually concludes our hearing of the arguments in support of the
23 motion for judgement of acquittal.
24 We will now proceed with the Status Conference, which was
25 announced in our Scheduling Order, and we will follow the agenda indicated
2 --- Whereupon the Motion Hearing adjourned at 2.26 p.m.,
3 to be followed by a Status Conference
2 [Status Conference]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 2.26 p.m.
6 JUDGE RODRIGUES: [Interpretation] The Prosecution has used 53 days
7 of hearing in order to present its evidence against the five accused in
8 this case. In principle, the Defence has the right to use the same amount
9 of days in order to present its case. The Chamber believes that each of
10 the accused should have at least two weeks for the presentation of his
12 In view of that, I should like to hear the views and positions of
13 Defence counsel, in particular, regarding the number of witnesses that
14 they intend to call to testify at trial. However, before I give the floor
15 to Defence counsel, I should like to mention that, as you know, we have
16 just discussed this motion for judgement of acquittal, and the Chamber, of
17 course, has not made a ruling as yet. What we know at this point is that
18 the Defence is going to continue with its case. There is at least one
19 accused who hasn't filed a motion for judgement of acquittal. And also in
20 respect of those accused who have admitted, to a certain extent, that
21 there are still elements that need to be discussed. So we will continue
22 our discussions in light of that.
23 If we take the worst case scenario, then I should like to ask each
24 of the Defence counsel to tell us what will be the number of their
25 witnesses in accordance with their estimate at the moment.
1 So having said that, I will now give the floor to Mr. Krstan
3 MR. K. SIMIC: [Interpretation] Thank you, Your Honours.
4 The issue that is going to be discussed during this Status
5 Conference is linked, I must say, to our previous discussion both as
6 regards the Defence counsel, the Prosecution, and the Chamber.
7 From the very beginning, we have a problem involving the
8 indictment; that is to say, the indictment that we have in this case, it's
9 different from all other indictments before this Tribunal. You remember
10 when I told Mr. Niemann that I hoped that he would not have me arrested,
11 and today I have just received a confirmation of a theory from Ms. Hollis
12 in accordance with which the Common Purpose Doctrine equals the common
13 responsibility -- collective responsibility.
14 Talking about an individual that have a certain position, that
15 makes the position of the Defence very complex, because we do not know how
16 to organise our defence. Rule 98 bis has another provision whereby the
17 Trial Chamber may order the entry of judgement of acquittal and motion of
18 an accused or proprio motu. In view of the allegations made by
19 Ms. Hollis, and in view of the evidence that has been presented in this
20 case so far, I must say that not a single witness mentioned the fact that
21 Mr. Kvocka was present at any single murder, any single incident, any
22 single torture --
23 JUDGE RODRIGUES: [Interpretation] Madam Hollis.
24 MS. HOLLIS: Your Honour, to the extent that Defence counsel is
25 arguing Rule 98 bis, the Prosecution objects to it. He did not submit a
1 pleading, he has not put anyone on notice that he wishes to argue it, and
2 we believe that given those circumstances, it is inappropriate for this
3 counsel now to argue Rule 98 bis.
4 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Simic. I was wondering
5 what your objective was, because my question concerned the presentation of
6 your evidence, that is, the Defence case, in particular, the number of
7 witnesses. I can understand your wish to state once again that you are in
8 a very difficult position to organise your defence, but I don't think that
9 it is necessary and wise to reopen the discussion that we had on a number
10 of occasions. We are now beginning a new phase in these proceedings, and
11 I should like your specific answer to my specific question, that is, the
12 number of witnesses that you intend to call in support of your case.
13 MR. K. SIMIC: [Interpretation] Mr. President, Your Honours, I do
14 accept your criticism, but I was about to finish. I just wanted to say
15 that the issue discussed so far has brought us into a situation where we
16 have to do the job of the Prosecutor. And when I say that -- having said
17 that, I can also indicate that we intend to call 27 witnesses, and we have
18 six alternative witnesses and two affidavit witnesses, plus two expert
19 witnesses who are supposed to give evidence. And I wanted to say -- I was
20 about to say, that because of a certain approach, we have been brought
21 into a position where we are held responsible for a wider area of
22 Prijedor. The Defence was supposed to call evidence regarding the
23 organisation of the camp, and the Prosecution has provided us with a
24 number of materials from which it was clear that they were able to discuss
25 the organisation of the camp itself. But it seems that we have to do it
1 right now.
2 JUDGE RODRIGUES: [Interpretation] Mr. Simic, if you wish to
3 discuss these issues, you have to file the adequate motion, the motion for
4 the judgement of acquittal. We are now discussing the presentation of the
5 Defence case. Okay. You have told us that you intend to call 27
6 witnesses, two expert witnesses --
7 MR. K. SIMIC: [Interpretation] That's right, Your Honour.
8 JUDGE RODRIGUES: [Interpretation] So please try to focus yourself
9 on these specific issues.
10 MR. K. SIMIC: [Interpretation] Twenty-one affidavit witnesses, and
11 we also intend to call a representative of the OTP to challenge the
12 identification. The minimum amount of time that we need is two to three
13 weeks, but it will, of course, depend on the written of -- hearing of
14 witnesses. Once again, we have to bear in mind all technical problems in
15 calling the witnesses to testify before trial. So that is the reason why
16 we have such a long list of witnesses.
17 We will file a motion by the 15th containing the list of
18 witnesses, including facts to which they intend to testify. And as
19 regards our pre-trial brief, it was filed on the 15th of September, 1999
20 and we will more or less follow the same grounds and arguments that we
21 indicated in our written brief and that were discussed by Mr. Kvocka
22 during his testimony.
23 Thank you, Your Honours.
24 JUDGE RODRIGUES: [Interpretation] Thank you very much, Mr. Simic.
25 I believe that you have the order of the Chamber, issued on the 23rd of
1 November. In that order, we indicated what would be the agenda for
2 today, under number 2, Status Conference, the same date, in order to be
3 able to address the following issues. And then we have the issues
4 enumerated one by one, and we are going to follow this agenda. We work
5 with five Defence teams and we have to be able to organise ourselves
6 properly. Now we are discussing the number of witnesses the Defence of
7 each accused intends to call. Afterwards we are going to take up one by
8 one all of the issues that are contained in the agenda. I think that this
9 is a far better approach than to discuss all of the issues at once.
10 I'm going to give the floor to Mr. Nikolic now.
11 Mr. Nikolic, could you tell us the number of witnesses that you
12 intend to call in support of your case.
13 MR. NIKOLIC: [Interpretation] Thank you, Your Honour.
14 The number will require a brief introduction. May it please the
15 Court? Can I go ahead with that before I state the numbers?
16 JUDGE RODRIGUES: [Interpretation] But are we going to arrive at
17 numbers that you don't know now, or have you got the number of witnesses
18 already before you go into your introduction?
19 MR. NIKOLIC: [Interpretation] Let me be more specific, Your
21 JUDGE RODRIGUES: [Interpretation] Very well. But quickly, please,
22 Mr. Nikolic.
23 MR. NIKOLIC: [Interpretation] In response to this question, I
24 shall refer to Rule 82 which speaks about joint and separate trials, Rule
25 82 of the Rules of Procedure. And in cases of this kind, each accused
1 shall be accorded the same rights as if such accused were being tried
3 Now, the number of witnesses will depend on a ruling by the Trial
4 Chamber with respect to the pleading as regards Rule 98 bis, which was
5 filed on the 6th of October by the Defence, and the presentation of the
6 case for the accused Kvocka, who is before the accused Kos. At this point
7 in time, the Defence plans to call approximately 15 witnesses; however,
8 depending on the two aforementioned facts, that number might be halved.
9 The Defence has borne in mind the need for a fair and expeditious
10 trial, but also we are fully conscious of the fact that the trial must be
11 fair and expeditious, as I say, as well as being just. And that is why it
12 states that we feel that we will need five to seven days, but we should
13 like to ask that Rule 82 be respected, of the Rules of Procedure and
15 JUDGE RODRIGUES: [Interpretation] Very well, Mr. Nikolic. Let us
16 go on with the other points at a different point. Mr. Fila, you have two
17 or three -- the right to two or three words by way of introduction, and
18 after that I want to hear the number of witnesses you intend to call.
19 MR. FILA: [Interpretation] Your Honour, everything is very
20 simple. Are there or are there not depositions in Banja Luka? If
21 depositions in Banja Luka exist, then I will need two weeks here. That
22 will be sufficient. That will make 19 witnesses, three or four expert
23 witnesses, depending, and several affidavits, which are not going to take
24 up any time. If depositions in Banja Luka exist, then I will have 48
25 witnesses plus four expert witnesses, and then I will need seven days at
1 trial here.
2 That is the response by the Defence with respect to that issue,
3 Your Honour. Thank you.
4 JUDGE RODRIGUES: [Interpretation] Thank you, Mr. Fila.
5 Mr. Stojanovic is next.
6 MR. STOJANOVIC: [Interpretation] Thank you, Your Honour. I won't
7 be trying your patience with some of the problems that we have at this
8 point. Let me just give you a provisional piece of information.
9 We filed a more detailed report yesterday. We intend to have 22
10 witnesses, three depositions, eight alternative witnesses, and three
11 expert witnesses. That is a provisional list for the moment, but
12 Mr. Zigic will be one of the witnesses testifying, and we plan to have his
13 examination last and testimony last over a period of several days. I
14 don't think I have understood what you mean by two weeks. Does that mean
15 two times five working days? Is that what you mean by two weeks?
16 But at all events, it is our position that we would require more
17 time, all the more so as the accused is the only accused for three camps.
18 I know how much time we spent with Omarska, but with Mr. Zigic, we must
19 focus on Keraterm and Trnopolje, and this will require much greater time.
20 So our examination of these witnesses will require longer time.
21 Thank you, Your Honour.
22 JUDGE RODRIGUES: [Interpretation] Thank you, Mr. Stojanovic.
23 Mr. Jovan Simic has the floor next.
24 MR. J. SIMIC: [Interpretation] Your Honour, the Defence of
25 Mr. Prcac plans to call to The Hague, to the Tribunal, 14 to 16 witnesses;
1 one expert witness amongst them, and 16 affidavits. We will have to have
2 a meeting with the Prosecution, and have asked for one and hope that this
3 will be done today or tomorrow, because some witnesses that the
4 Prosecution did not bring forward, we intend to call. So that is the
5 general framework for the numbers, and I think that we will be able to get
6 through them in 14 days, in two weeks.
7 If there are depositions in Banja Luka, however, and if the facts
8 that we discussed previously in keeping with Rule 98 bis, then we could
9 reduce the number of witnesses, and that will require half the amount of
10 time than we would need otherwise.
11 Thank you, Your Honour.
12 JUDGE RODRIGUES: [Interpretation] Thank you, Mr. Jovan Simic.
13 With respect to the number of witnesses, and we have already
14 considered this point, they are provisional, but we are getting to know
15 the general dimensions of the Defence case, although the numbers are
16 provisional. So before discussing what will be presented by the Defence,
17 we will have to discuss these points, but we have to have a general idea
18 of what is going to happen.
19 The other aspect that I would like to consider and share with you
20 with respect to the number of witnesses are the protective measures
21 required for the witnesses. Without wasting -- in order not to waste time
22 during the proceedings themselves, could the Defence tell us before the
23 presentation of evidence in the Defence case what protective measures
24 they shall be requiring for their witnesses, and for which witnesses in
1 Mr. Krstan Simic, have you got a general idea of what you will be
2 requiring at this point?
3 MR. K. SIMIC: [Interpretation] Your Honour, the Defence does not
4 intend to avail themselves of the use of protective measures except for
5 one case which I wish to explain to you.
6 The Defence intends to call one witness called by the Prosecution
7 and who has already testified, and we shall ask for the same protective
8 measures that the witness had when he was called -- they were called by
9 the Prosecution, whereas all the other witnesses will be testifying with
10 their own names and surnames, without any protective measures being
11 required and sought.
12 Thank you, Your Honour.
13 JUDGE RODRIGUES: [Interpretation] Very well, Mr. Krstan Simic.
14 Thank you very much.
15 Mr. Nikolic is next.
16 MR. NIKOLIC: [Interpretation] Your Honour, looking at it from this
17 perspective, we might have to request protective measures for one
18 particular witness, but that, again, will depend upon the number of
19 witnesses when we come down to the specifics.
20 Thank you, Your Honour.
21 JUDGE RODRIGUES: [Interpretation] Okay. Thank you, Counsel
23 Counsel Fila.
24 MR. FILA: [Interpretation] Mr. President, unfortunately, I'm going
25 to give you the same answer. If depositions in Banja Luka exist, then
1 protective measures, as I wrote in my submission of the 14th of December,
2 1999 - you have all the facts there in writing - then they will be seeking
3 measures to travel to The Hague and to come back and safe conduct. If
4 there are no depositions, and I will reduce the number of people from 48
5 to 19, as I have said, they will ask for the same measures when they come
6 here. And those who were coming here anyway, that is to say, even if
7 there are or there are not depositions, are not seeking protective
8 measures. So everything is linked to Banja Luka. I apologise, but that's
9 how things stand at the moment.
10 Thank you, Your Honour.
11 JUDGE RODRIGUES: [Interpretation] Well, we shall see what happens
12 in Banja Luka. We are going to discuss that point later on. Perhaps this
13 was not a convenient order for you, but we'll see to that later on.
14 Mr. Stojanovic, the floor is yours.
15 MR. STOJANOVIC: [Interpretation] Thank you, Your Honours. In our
16 submission, and I handed it in yesterday, we are categorical on only one
17 case, that we will truly need protective measures, all available
18 protective measures, for just one witness. For the moment, we don't see
19 that we shall be needing these measures for other witnesses, but we will
20 see what happens as time goes on.
21 Thank you.
22 JUDGE RODRIGUES: [Interpretation] Mr. Jovan Simic.
23 MR. J. SIMIC: [Interpretation] Your Honour, for the moment, the
24 Defence of Mr. Prcac will not be seeking any protective measures for any
25 of the witnesses, whether they are here or in Banja Luka, depositions in
1 Banja Luka.
2 JUDGE RODRIGUES: [Interpretation] Thank you very much, Mr. Jovan
4 Another question that we must consider, and I apologise to keep
5 having to get you up on your feet, but I think a little exercise is rather
6 welcome, is it not? The other point is the summaries of the facts on
7 which each witness will testify. That is the second point.
8 Article 60 ter (G) requires that summaries of the facts be
9 supplied on which each witness will testify, and this will allow us to
10 rationalise the presentation of evidence. And the Chamber hopes that the
11 witnesses called to testify will not be testifying about facts that have
12 not been contested or are under judicial inquiry. I think that the
13 Defence might also bring in common witnesses to testify if it is a crime
14 that all of the accused have been charged with. So with respect to the
15 Defence case, we must bear in mind that the Prosecution -- that the
16 Prosecutor will have to be prepared for the cross-examination. So the
17 Prosecution will have to have information as to the events or facts on
18 which each witness will testify.
19 Bearing that in mind, I am now going to give the floor to
20 Mr. Krstan Simic, once again, with respect to the summary of the facts,
21 summaries of the facts. Where do you stand with respect to that issue?
22 MR. K. SIMIC: [Interpretation] Your Honour, up until the 15th,
23 which is the deadline, we will -- our submission will contain all the
24 summaries, and we shall be complying with the deadline as you have
1 Thank you, Your Honour.
2 JUDGE RODRIGUES: [Interpretation] Thank you, Mr. Krstan Simic.
3 Mr. Nikolic, may we hear you.
4 MR. NIKOLIC: [Interpretation] The Defence will certainly be
5 handing in summaries to the opposite side before the presentation of the
6 case. That is what I would like to request before the Defence case of
7 Mr. Kos proceeds.
8 JUDGE RODRIGUES: [Interpretation] Okay. Very well, Mr. Nikolic.
9 Mr. Fila.
10 MR. FILA: [Interpretation] Mr. President, we have a question to
11 deal with here, and the question is the following: Is it a fair trial if
12 the Defence of all five accused puts forward, on the 15th, a summary of
13 its defence although the witness will be brought to testify in three or
14 four months' time? Or are we supposed to present the summaries before
15 each of us begins our case? I hope I have been clear. So either all five
16 of us at the same time, which is not something which we find agreeable,
17 that is, when Mr. Krstan Simic finishes, then Mr. Nikolic can go ahead;
18 once Mr. Nikolic completes, then it is me; and when I am over, then it is
19 Zigic. And in that sense, I would like to hear a ruling by you, and we
20 shall respect that ruling, whatever it might be. Thank you, Your Honours.
21 So do you want me to do it by the 15th? If you do, I will do so.
22 But if not, then I would rather, I would prefer, the other option, because
23 then we will see what has been proved while the counsel before me has
24 presented the evidence. And then the Prosecution will, of course, receive
25 summaries within eight to ten days prior to the presentation.
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 JUDGE RODRIGUES: [Interpretation] Thank you very much, Mr. Fila.
2 We should perhaps hear the response of the Prosecution, first of
3 all, concerning what has been exposed so far. However, my idea was that
4 the order of the presentation of evidence during the Defence case will be
5 in accordance with the order of the indictment, that is, what we are
6 actually doing right now. First we will hear the defence of the accused
7 Kvocka, Kos, Radic, Zigic, and then Prcac at the end, that is, in
8 accordance with the order of the indictment. Each Defence team will
9 present its defence in accordance with that order.
10 I will give the floor to Ms. Hollis for all of the issues that
11 have been brought up so far, or if she wants to, she can address them one
12 by one. It's really up to you, Ms. Hollis. I don't know in what manner
13 you wish to respond to the submissions made by the Defence.
14 MS. HOLLIS: Your Honour, regarding all of the submissions --
15 JUDGE RODRIGUES: [Interpretation] I'm sorry, Ms. Hollis. If you
16 can just tell us now whether you prefer to respond to all of the questions
17 that have been raised by the Defence or if you prefer to intervene after
18 each issue has been brought up.
19 MS. HOLLIS: Your Honour, we don't have a response for most of the
20 questions because we believe it is between you and the Defence. There's
21 only one issue that we would like to speak to, and that is when the
22 accused must provide you with summaries. May we speak to that now?
23 JUDGE RODRIGUES: [Interpretation] Yes, yes, I think it will assist
25 MS. HOLLIS: Your Honour, first of all, we don't believe it would
1 be a violation of a fair trial to have all of the accused submit their
2 summaries on the 15th of December. We also believe that that would
3 facilitate a smoother functioning of the trial as it proceeds for this
4 reason: There is a difference in the Rules between the disclosure that is
5 provided by the Prosecution and disclosure that is required to be provided
6 by the Defence. There is no provision in the Rules themselves or in the
7 Statute except in the case of notice of affirmative defences which
8 requires disclosure by the Defence to the Prosecution of witness
9 statements or what witnesses will testify about, except for Rule 65 ter.
10 So if we look at the situation, the Prosecution must provide all
11 witness statements to the Defence, and then they also must provide 65 ter
12 which gives summaries. The only vehicle in the Rules by which the
13 Prosecution learns the substance of the testimony of witnesses is through
14 the vehicle of 65 ter. We suggest that in order to enable us to proceed
15 with an effective and prepared cross-examination, that we must be
16 provided with those summaries well in advance of the testimony. We
17 suggest that it is not enough for the Prosecution to be given summaries
18 eight to ten days before a case from a particular accused begins if the
19 summaries are the only information we have about what all of those
20 witnesses will testify to. It simply does not give us enough time to
21 prepare effective and appropriate cross-examination. That is different
22 than the situation that the accused are in because of the difference in
23 the disclosure rules.
24 So we would ask that you ask the Defence to present their
25 summaries to you on the 15th of December, and we would also ask that those
1 summaries be detailed enough to enable us to effectively cross-examine the
3 JUDGE WALD: I have one question for you. Your position is
4 different from the Defence, but the Defence has a little bit of an
5 additional obstacle. The Prosecution knows theoretically, and I'm sure
6 practically, what its case will be before it goes to trial. Pretty much
7 it knows where its witnesses are. The Defence are five different
8 defendants, and it may be that the -- you know, some witnesses of Kvocka
9 will say something that the Kos or the somebody else that could have an
10 implication for them that they hadn't expected. It seems to me that you
11 might adhere to your Rule, but there would have to be some flexibility; in
12 other words, they would have to be at least allowed to expand if something
13 came up in the trial that they had no reason to anticipate and their
14 witness could take care of it.
15 MS. HOLLIS: Your Honour, we certainly agree with that, and we
16 believe that Rule applies to the Prosecution as well, because in the
17 presentation of the Prosecution's evidence, issues may arise or questions
18 may be resolved. We think the Rules allow for additional witnesses to
19 be added just by the language of the Rules. When they talk about
20 disclosure of all witness statements, the witnesses you've identified, and
21 then if you later identify them, you have to disclose those statements as
22 well. So we believe there is flexibility there, and we would certainly
23 agree that witnesses can be added or taken off the list depending on how
24 the case evolves.
25 JUDGE WALD: Pause. I was also referring to a particular
1 witness. Say, Witness A, you find out on December 15th that Witness A is
2 Mr. Kos' witness, and he says that when he's going to testify about 1, 2,
3 3, 4, 5, and then during the prior presentations, Kvocka or something,
4 some evidence comes up that now makes it necessary for Mr. Kos to cover
5 some other aspect that this witness could cover. I just say -- I would
6 hate to have the Prosecution leaping up and saying, "We object to their
7 going outside of the summary because they didn't give it to us on the
8 19th." Okay.
9 MS. HOLLIS: Your Honour, we wouldn't do that, and I think our
10 position would be that we may need a little bit of time to cross-examine
11 on things that were caught by surprise. But our position all along is
12 that these things happen, and there has to be flexibility to allow it.
13 JUDGE RODRIGUES: [Interpretation] Very well. Mr. Fila has raised
14 the issue of the filing of summaries of facts, and he said that he will
15 abide by the decision of the Chamber. But I think that we can still hear
16 and have an idea about the opinion of the Defence counsel, and to see what
17 they think about this issue. The issue, I think, can be considered at the
18 end. We have a list of items on our agenda, and I think that
19 Mr. Stojanovic was about to state his position about the summaries of the
20 facts on which each witness will testify.
21 I hope that you have something to tell us in that respect.
22 MR. STOJANOVIC: [Interpretation] Your Honour, in the filing that I
23 mentioned that was sent the day before yesterday, when talking about
24 witnesses, we provided information also as to the facts on which each
25 witness will testify. I don't know whether the Prosecutor will deem it
1 sufficient. If they should request additional information to that effect,
2 I believe that we will be in a position to give them that additional
3 information only at the beginning of the presentation of our case, that
4 is, the case for Mr. Zigic. I don't think that we will be able to provide
5 any additional information by the 15th of December, in view of the
6 circumstances, including the change in composition of the Defence team,
7 and also including the situation of witnesses and other accused and their
9 Thank you.
10 JUDGE RODRIGUES: [Interpretation] Thank you, Mr. Stojanovic.
11 Mr. Jovan Simic.
12 MR. J. SIMIC: [Interpretation] Your Honour, the position of the
13 Defence of Mr. Prcac is identical as the position expressed by Mr. Nikolic
14 and Mr. Fila. We also believe that it would be fair and correct for all
15 our material to be handed over right at the beginning -- before the
16 beginning of our case. But let me mention one other thing.
17 The Chamber is familiar with the fact that the Defence accepted to
18 proceed with the trial only 45 days after the arrest of the accused Prcac,
19 so we only had 45 days in order to prepare ourselves. We have been
20 working on the case for the Prosecution so far, and only recently have we
21 begun to work on our case. I really think that it would be only fair for
22 this Defence team to be allowed an additional amount of time for the
23 filing of these summaries, and not by the 15th of December.
24 Let me stress two other aspects. We received summaries from the
25 Prosecution on the day of the hearing, not perhaps every time but very
1 often, and let me mention once again the case of Witness K, in which we
2 didn't receive anything, and that evidence was also accepted despite that
3 fact. I think that we should stick to your order which stated that such
4 summaries should be handed over within seven days prior to the testimony
5 of the witness in question.
6 JUDGE RODRIGUES: [Interpretation] Yes, you are quite right,
7 Mr. Simic. We do intend to adopt the same conditions of work for the
8 Defence as well. So the same procedure which was used during the
9 Prosecution case will be applied for the Defence case. That is a minimal
10 request, I should say.
11 If what Mr. Jovan Simic is saying is true, we must admit that the
12 Defence has received a number of materials which enable them to
13 cross-examine their witnesses. But the Prosecutor hasn't received
14 anything so far except for several pieces of information. We have to
15 continue in that perspective. The Chamber will have to make appropriate
16 rulings because the Prosecutor must respond to the pre-trial brief of each
17 Defence team, and the Prosecutor has the right to say, "Well, the
18 summaries won't do. They're insufficient and we need more information."
19 You will all remember that we spent quite some time during the
20 Prosecution case discussing details of witness statements, several witness
21 statements, including those given to the authorities of Bosnia-Herzegovina
22 and statements given to the OTP for one and the same witness. You will
23 remember that at one point in time I said that the Defence will also be
24 required to supply detailed information to the Prosecutor; otherwise, we
25 will not have the equality of arms that needs to be applied.
1 We have to put something in writing; that is, the Defence must
2 submit written filings to that effect, and then we will hear the response
3 of the Prosecutor.
4 But let us continue with the agenda. We have covered the issue of
5 summaries. As regards the issue of witnesses, I think that we need to
6 stress that such summaries should indicate the points in the indictment to
7 which each witness will testify. This is provided for in our Rules. So
8 when the Defence -- when filing its summaries, the Defence should also
9 indicate which are the points in the indictment or, rather, the counts in
10 the indictment as to which each witness will testify.
11 I think we have already discussed the issue of the estimated
12 length of time required for each witness, because you have already touched
13 on this issue, and I hope that you will also indicate it in your written
15 Let us now move to the issue which might affect our work during
16 the presentation of evidence for the Defence, that is, the issue of
17 deposition testimony, involving the issue of the Presiding Officer, the
18 number of witnesses that can be heard by way of deposition, whether the
19 deposition-taking will take place here in The Hague, in Banja Luka, or
20 some other location.
21 Let us hear you on the issue of depositions, and if you can also
22 tell us how many witnesses you intend to have heard by way of deposition,
23 where do you think they should be heard, here at the seat of the Tribunal
24 or away from the seat of the Tribunal; and how do you think we should
25 proceed. And I should like to hear you in general terms, each of you,
1 regarding the issue of depositions.
2 Mr. Krstan Simic.
3 MR. K. SIMIC: [Interpretation] Thank you, Your Honour.
4 The Defence of Mr. Kvocka supported depositions at one point for
5 the reason that we were in a position to have to wait for the trial to
6 begin. But as the trial has already begun and is under way, we shall not
7 have any deposition witnesses because we should like to present the
8 evidence before this Trial Chamber which we consider to be relevant for
9 bringing in the right judgement. And so I don't think I need to comment
10 further on issues which do not concern me as such.
11 JUDGE RODRIGUES: [Interpretation] Thank you.
12 Mr. Nikolic, may we have your views.
13 MR. NIKOLIC: [Interpretation] Your Honours, the Defence was in
14 favour of depositions while the case was in Trial Chamber III and the list
15 of witnesses was handed in that it thought to hear through deposition.
16 There were 12 witnesses in all of this type.
17 In the meantime, we have given up having one witness present
18 testimony by means of deposition, and this leaves us with 11, and that
19 number, 11, will depend on the decision taken by the Trial Chamber with
20 respect to Rule 98 bis, and with respect to the Kvocka case. But it
21 principally depends on the place in which the depositions would be taken.
22 The Defence at this point in time does not know where this would take
23 place. The Defence preferred Banja Luka from the very beginning, and we
24 had an agreement with the witnesses and depositions were taken and sent to
25 the opposite side, and we told the witnesses that the depositions would
1 take place in Banja Luka, so we're still in favour of that.
2 The only thing that I can say with certainty is that if there were
3 depositions in Banja Luka, the number of witnesses would quite certainly
4 be fewer than 11.
5 JUDGE RODRIGUES: [Interpretation] Yes, thank you, Mr. Nikolic.
6 Mr. Fila, I think that you have already spoken on the issue, but
7 please go ahead. You have some more time.
8 MR. FILA: [Interpretation] First, I should like to say that the
9 Defence has sent 90 per cent of the testimony of witnesses to the
10 Prosecution and the Court at the very beginning of trial, and the
11 witnesses -- what the witnesses will be testifying about is in the
12 Registry and with the Prosecution, just a few of them that we haven't
13 received yet.
14 If the depositions are taken in Banja Luka, then, in that case,
15 the Defence will bring three witnesses and four expert witnesses to
16 testify before this Tribunal. Everything else will take place in Banja
17 Luka where it is cheaper and where we'll be able to get through the job
18 quicker. If depositions are taken in The Hague, then there's no
19 difference. It would be just as if we had brought the witnesses to the
20 Trial Chamber, the only difference being that the Trial Chamber can do
21 some other work, but then that would be 19, as we said, to begin with. So
22 that's what I have to say. Thank you.
23 JUDGE RODRIGUES: [Interpretation] Thank you.
24 Mr. Stojanovic is next.
25 MR. STOJANOVIC: [Interpretation] Thank you, Your Honour.
1 THE INTERPRETER: Microphone, please, counsel.
2 MR. STOJANOVIC: [Interpretation] Thank you, Your Honours. We also
3 have a witness whose testimony would be made via deposition. We have
4 three witnesses of this kind, that is to say, but we think that the
5 number will be greater. And we hope that the depositions will be taken in
6 Banja Luka, although I don't wish to present arguments in favour of that.
7 I think they are fairly strong arguments, but we'll say more about this at
8 a later date. So it is our position that we have testimony by deposition
9 in Banja Luka.
10 Thank you, Your Honour.
11 JUDGE RODRIGUES: [Interpretation] Thank you, Mr. Stojanovic.
12 Mr. Jovan Simic has the floor.
13 MR. J. SIMIC: [Interpretation] Your Honour, at this point, the
14 Defence of Mr. Prcac has envisaged just one witness to testify by
15 deposition, and in our talk with him he insisted that he come to The
16 Hague, that he --
17 THE INTERPRETER: Microphone, please.
18 MR. J. SIMIC: [Interpretation] -- if we decide that the
19 depositions are going to be in Banja Luka, then the Defence could reduce
20 the number of witnesses and the number of days needed for trial in The
21 Hague. And this would reduce -- as I say, reduce the number of days
22 necessary in The Hague by half. This would, however, increase the number
23 of deposition witnesses, but we would save time at trial.
24 Thank you, Your Honour.
25 JUDGE RODRIGUES: [Interpretation] Thank you, Mr. Jovan Simic.
1 I think that this question of depositions was considered
2 beforehand, and our orientation was that we could have a Presiding
3 Officer, and all the other necessary staff that are required to undertake
4 this task, to have them travel for one week and only one week. For
5 security reasons, that would be the time allotted. But now I think that
6 we should look at this issue again with a view to implementing it. The
7 Chamber is sitting in complete form, and you have furnished us with all
8 the necessary elements, and the Chamber will make a ruling, that is to
9 say, to appoint a Presiding Officer. And afterwards, the entire question,
10 as you have heard with respect to the other Chamber that tried to organise
11 the taking of depositions, the Presiding Officer will have contacts and
12 meetings with the parties in order to organise everything required for
13 these depositions. And therefore we must bear in mind the conditions;
14 that is to say, we would have just one week and see how many people we
15 would need to get the job done, and this is something that the Chamber
16 will see who the Presiding -- which Presiding Officer to appoint.
17 So we have received all the necessary information from you, you
18 have communicated it to us, and we shall make a decision on the issue.
19 Let us now move on to another question.
20 MS. HOLLIS: Excuse me, Your Honour.
21 JUDGE RODRIGUES: [Interpretation] Yes, Ms. Hollis.
22 MS. HOLLIS: Your Honour, if I could make a few brief comments
23 regarding the depositions.
24 JUDGE RODRIGUES: [Interpretation] Yes, go ahead. Please proceed.
25 MS. HOLLIS: Your Honour, we would note, first of all, very
1 basically, that of course Rule 90 says that, in principle, witnesses will
2 be heard directly by the Chambers. And then Rule 71 says where it is in
3 the interests of justice to do so, you may order depositions.
4 Our position on this is that we support the request for
5 depositions however long that may take if the Defence can show that the
6 witnesses would not appear or that it is otherwise in the interests of
7 justice for the evidence to be taken by way of deposition. It could be,
8 Your Honours, that they would be able to make a showing that would extend
9 beyond one week. If they were to make that, the Prosecution's position
10 would be that Your Honours should seriously consider that and perhaps
11 allow for more than one week. But before you get to depositions, we would
12 suggest the following:
13 Number 1, the Defence counsel should indicate what is the
14 interest of justice for each of these witnesses that requires a
15 deposition versus live testimony. And quite honestly, Your Honours, if a
16 witness is prepared to come here to The Hague, why don't they testify
18 Secondly, if they are able to show that a witness would not come
19 to The Hague, for example, as some of them apparently would not, we would
20 suggest Your Honours consider the alternative of videolink testimony,
21 because that is live testimony for all practical purposes. You are seeing
22 it as it happens; you are able to ask questions. It has worked
23 successfully in the past. So we would suggest perhaps, as you say, you
24 are reflecting on this issue again, that you reflect on it all the way
25 from the beginning what has been shown in regards to the interests of
1 justice that require it, would videolink be possible as a preferred option
2 to live testimony?
3 But, finally, if you are persuaded that depositions are necessary
4 in the interest of justice, we would ask that Your Honours rule that these
5 depositions will be conducted even if they would extend to beyond one
6 week. And we again support the request of the Defence that should there
7 be depositions or should there be videolink testimony, that it occur in
8 Banja Luka.
9 Thank you, Your Honour.
10 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Fila. Are you speaking
11 on behalf of all the counsel or ...
12 MR. FILA: [Interpretation] Yes. Mr. President, let's wind the
13 film back. We don't mind if it is videolink in Banja Luka or deposition
14 in front of a Presiding Officer or testimony in front of a Presiding
15 Officer, and generally it is out of fear that the witnesses don't want to
16 come to The Hague. But, as we say, all of this would, I think, facilitate
17 the Trial Chamber to come to the right decision.
18 I accept everything that Ms. Hollis has said, especially when she
19 said that more than one week should be allowed; even two or three weeks,
20 because it would be a great saving for the Tribunal. Their coming and
21 going does not cost anything. The expenditure would be zero, and it would
22 be faster.
23 Videolink is an expensive procedure, a costly procedure, I have
24 seen, and this would be simpler. But, of course, the Defence will abide
25 by any ruling that the Trial Chamber may take.
1 Let me also mention one more detail. An alternative to all of
2 this is an affidavit, but you don't see the person, the live person, with
3 an affidavit, and that is the drawback there. It is just a statement,
4 regardless of whether it is under oath or a solemn declaration or whatever
5 you'd like to call it. It's the same thing. You don't see the actual
6 human being, and that is the reason why I would prefer to see
8 JUDGE RODRIGUES: [Interpretation] You know that the objective of
9 deposition evidence is to speed the trial up, and we have this problem of
10 judicial economy in this and every other case. Everything that can be
11 done outside the courtroom should be done outside the courtroom. The
12 witnesses who will come to The Hague to testify before the Chamber are the
13 ones who will be testifying about the facts concerning the accused.
14 Everything else, political, military, ethnic background, personality
15 traits, elements that go to the sentencing, so on and so forth, including
16 general allegations that are often of a repetitive nature, that has to be
17 heard by other means. It is true that the principle is that of viva voce
18 testimony; however, we have certain constraints and we have to find ways
19 to solve this problem.
20 There are legal systems where evidence is presented mainly in a
21 written manner. So we should hear witnesses viva voce when they testify
22 about facts, and as regards other matters, we have to have recourse to
23 other means.
24 We appreciate the contribution that you have just given us, but we
25 have to bear in mind the principle of equality of arms when it comes to
1 the presentation of evidence as well, and this is something that is very
2 important for the Chamber. All those elements will be present in the
3 decision of the Chamber.
4 Thank you very much for the time being, Mr. Fila.
5 I think that we have a number of other issues that need to be
6 discussed. We have touched upon, more or less, all of the aspects having
7 to do with the presentation of evidence and calling of witnesses.
8 However, I think that we have skipped -- that we haven't covered the
9 number of exhibits.
10 Some Defence counsel have already submitted their lists of
11 exhibits, but we need to put them in proper context. Those lists arrived
12 at a certain point in time, and an indication was made that they were of a
13 provisional nature. Now we have to have final lists, and I should like to
14 hear you on the presentation of exhibits that each counsel intends to
16 Mr. Krstan Simic.
17 MR. K. SIMIC: [Interpretation] Your Honour, I didn't have an
18 opportunity to react regarding the issue of witnesses.
19 We have a very serious problem here. We have five accused in this
20 case. Mr. Nikolic invoked Rule 82. In view of the indictment and the
21 form of the indictment, I should like to know what will happen. I
22 remember the practice that was adopted in the Celebici case, but I should
23 like to know what will happen here with the cross-examination of Defence
25 JUDGE RODRIGUES: [Interpretation] Mr. Krstan Simic, it is one of
1 the issues on the agenda; it's item 7 on our agenda. We haven't come to
2 that as yet.
3 MR. K. SIMIC: [Interpretation] Yes, Your Honour, but this concerns
4 only the accused Kvocka and Radic and not other Defence witnesses. But we
5 can, of course, discuss it in the context of item 7.
6 Let me now go back to the issue of exhibits.
7 JUDGE RODRIGUES: [Interpretation] Yes, please do, Mr. Simic.
8 MR. K. SIMIC: [Interpretation] This Defence team has submitted a
9 list containing some 56, 57 exhibits, and within the prescribed time
10 limits, it will also provided the list of exhibits that it intends to use
11 during the examination of its witnesses and the presentation of evidence.
12 JUDGE RODRIGUES: [Interpretation] Thank you very much, Mr. Simic.
13 Mr. Nikolic.
14 MR. NIKOLIC: [Interpretation] Your Honours, the position of this
15 Defence team is as follows: We intend to present several documents and to
16 tender them into evidence, but once again, that number will depend on your
17 ruling and the pre-Defence brief, and also it will depend on the Defence
18 case of the accused Kvocka.
19 But be that as it may, the Prosecution will receive on time those
20 documents and they will have enough time to verify their authenticity, and
21 I don't think it will disrupt in any way the usual course of the
23 JUDGE RODRIGUES: [Interpretation] Thank you very much,
24 Mr. Nikolic.
25 Mr. Fila.
1 MR. FILA: [Interpretation] Mr. President, our Defence team does
2 not have any written documentation which hasn't been used or presented so
3 far, and I do not intend to burden you with additional written material.
4 Everything that I had has already been tendered into evidence.
5 JUDGE RODRIGUES: [Interpretation] Thank you very much, Mr. Fila,
6 for this present.
7 Mr. Stojanovic.
8 MR. STOJANOVIC: [Interpretation] Your Honours, together with the
9 list of witnesses which was submitted awhile ago, we also submitted a list
10 of exhibits. But we are intensifying the preparatory work of our case and
11 I don't think that I will be able to give you any more specific
12 information at this time. I will be able to do so only before the
13 beginning -- before the opening of our case.
14 JUDGE RODRIGUES: [Interpretation] Thank you very much,
15 Mr. Stojanovic.
16 Mr. Jovan Simic.
17 MR. J. SIMIC: [Interpretation] Your Honours, the Defence team of
18 Mr. Prcac will provide you with all of the documents that it has at its
19 disposal at the moment by the 15th of December. However, we reserve our
20 right to continue with our investigation work in the preparation of the
21 Defence, and we might come up with some additional documents which will be
22 presented subsequently.
23 JUDGE RODRIGUES: [Interpretation] Thank you very much.
24 We seem to be forgetting about time; we are completely immersed in
25 our work. We have been working for one hour and twenty minutes, and I
1 think that we should really have a break at this point in order to give an
2 opportunity to everybody to have some rest.
3 Let's have a half-hour break at this point, and we will continue
4 after that.
5 --- Recess taken at 3.25 p.m.
6 --- On resuming at 3.52 p.m.
7 JUDGE RODRIGUES: [Interpretation] Please be seated.
8 Let us resume our work. We cannot work beyond 5.00. So having
9 said that, we must try and be more concise and to the point.
10 The question now is to know whether the parties have the intention
11 of making opening statements.
12 Mr. Krstan Simic, how long do you think you will need for that?
13 MR. K. SIMIC: [Interpretation] Your Honour, in our introduction --
14 I think there's something wrong with the interpretation.
15 JUDGE RODRIGUES: [Interpretation] We're all equal now, I think.
16 Are you receiving the interpretation?
17 MR. K. SIMIC: [Interpretation] Yes, I am, Your Honour. Thank
19 Your Honour, we said at the beginning that we planned to bring two
20 expert witnesses; one of those witnesses will be a witness that did
21 the psychiatric examination and report at the request of the Court and the
22 second expert witness will be speaking about the organisation of the
23 police force. And --
24 JUDGE RODRIGUES: [Interpretation] I apologise, Mr. Krstan Simic,
25 but where are we agenda-wise? I think we have reached point 5, Article
1 84, regarding the opening statement.
2 MR. K. SIMIC: [Interpretation] I do apologise, Your Honour. I
3 wasn't getting the interpretation.
4 JUDGE RODRIGUES: [Interpretation] Very well. So we're talking
5 about opening statements and Rule 84. Do you intend to make an opening
6 statement? And if so, how long?
7 MR. K. SIMIC: [Interpretation] Yes, we do intend to make an
8 opening statement which will last between two and three hours.
9 JUDGE RODRIGUES: [Interpretation] Very well. Thank you.
10 Mr. Nikolic, please.
11 MR. NIKOLIC: [Interpretation] Your Honour, the answer is yes, and
12 it will take one hour at the most.
13 JUDGE RODRIGUES: [Interpretation] Now I am not getting the
14 interpretation. Thank you. That is a very brief answer and succinct.
15 Thank you, Mr. Nikolic.
16 Mr. Fila.
17 MR. FILA: [Interpretation] Just like Mr. Nikolic, the same applies
18 to us, Your Honour.
19 JUDGE RODRIGUES: [Interpretation] Thank you.
20 Mr. Stojanovic, let's hear you.
21 MR. STOJANOVIC: [Interpretation] Your Honour, we too intend to
22 make an opening statement which we think will last between two and three
23 hours. Thank you.
24 JUDGE RODRIGUES: [Interpretation] Mr. Jovan Simic, let's hear
1 MR. J. SIMIC: [Interpretation] Your Honour, we are also going to
2 have an opening statement which will not go beyond one hour.
3 JUDGE RODRIGUES: [Interpretation] Very well. And now we come to
4 the cross-examination and the mutual cross-examination of the accused
5 Kvocka and Radic. As you know, these accused testified in their own
6 defence at the beginning of trial. We agreed that the cross-examination
7 of the accused will not take place before the end of the presentation of
8 the Prosecution case.
9 Now I have a question for the Prosecutor: When does the
10 Prosecutor think that the cross-examination of these accused will take
12 MS. HOLLIS: Your Honour, when do we think they take place, or
13 when would we prefer that they take place?
14 JUDGE RODRIGUES: [Interpretation] What you prefer.
15 MS. HOLLIS: We would prefer to cross-examine them at the end of
16 their cases.
17 JUDGE RODRIGUES: [Interpretation] After the Defence case has been
18 presented; is that right, Madam Hollis?
19 MS. HOLLIS: Yes, of each accused after their case has been
21 JUDGE RODRIGUES: [Interpretation] Very well. And as to the
22 counsels of Mr. Kvocka and Radic, Mr. Krstan Simic, the cross-examination
23 for you of Mr. Kvocka, how do you feel about that?
24 MR. K. SIMIC: [Interpretation] Your Honour, I consider that in the
25 Kvocka case, the cross-examination should start and then the Prosecution
1 should declare its position with respect to all these issues. I am of the
2 same opinion, Your Honour.
3 JUDGE RODRIGUES: [Interpretation] Very well. Thank you.
4 Another question is the following: We need to know whether the
5 Defence counsels of Mr. Kvocka and Mr. Radic would like to proceed with a
6 mutual cross-examination.
7 Mr. Krstan Simic.
8 MR. K. SIMIC: [Interpretation] Your Honour, I broached the subject
9 earlier on and I was advised to leave it until this particular point, and
10 we discussed this issue during the break, and that is the question of
11 cross-examination and the mutual cross-examination, that is, examination
12 of the Defence witnesses. I start out from Rule 82, which says that each
13 of the accused be accorded the same rights as if such accused were being
14 tried separately. Therefore, we have a Rule which prescribes how
15 cross-examination is to be conducted, and it provides for the fact that
16 cross-examination be restricted to the subject of the examination, that we
17 can discuss the credibility of the witness, and that under extraordinary
18 circumstances, the Trial Chamber can ask the witness relevant questions
19 about the case.
20 This opens up a very relevant question. We have five accused.
21 Now, what is the limit up to which we can examine those witnesses? It is
22 our view, and I think it is the view of the rest of the Defence teams, and
23 that is the following: It is my case, they are my witnesses, and I don't
24 mind the Prosecution asking the witnesses about all relevant cases linked
25 to exclusively the Kvocka case. So the witnesses brought in by Kvocka and
1 Kos, they are not witnesses of the Prosecution so they can't ask them
2 questions relevant to another accused. And we consider that the other
3 Defence counsels would not have the right either to pose questions to
4 these witnesses, because we consider it to be the Kvocka case. So it is
5 between Kvocka and the Prosecution.
6 If we were to adopt a different attitude, then we would bring
7 ourselves into a position where we cannot rationalise our time. I would
8 consider that I need two hours. If we have four people, 20 minutes each,
9 this would lead us into a chaotic situation, and that is why I don't think
10 that justice will be denied or hampered in any way if we proceed in that
11 way in respect to all the accused and their witnesses.
12 Thank you, Your Honour.
13 JUDGE RODRIGUES: [Interpretation] Yes, thank you, Mr. Krstan
15 Mr. Fila.
16 MR. FILA: [Interpretation] Mr. President, I think that the Trial
17 Chamber must make a ruling in this respect; otherwise, we're going to face
18 a problem. You know all the things that can happen, everything is
19 possible, and that it would be best if the Trial Chamber were to make a
20 ruling on the issue, of course after having heard from our learned
21 colleague, and we shall abide by your decision.
22 JUDGE RODRIGUES: [Interpretation] Thank you.
23 Madam Hollis, on this point, cross-examination and mutual
24 cross-examination of the accused Kvocka and Radic, and we know that
25 Mr. Zigic will also testify in his own defence. But independently of
1 that, let us have your views on the cross-examination and the mutual
2 cross-examination. Do you have an opinion there?
3 MS. HOLLIS: Your Honour, in terms of the --
4 THE INTERPRETER: Microphone, please.
5 MS. HOLLIS: Sorry, Your Honour.
6 Your Honour, in regard to the restriction that has been put
7 forward on the content of the cross-examination, we disagree with the
8 characterisation of Rule 89(H) and we suggest that you look closely at
9 (iii) subparts. They do allow the cross-examining party to go beyond the
10 evidence in chief, and also matters affecting the credibility of the
11 witness, and indicate that where the witness is able to give evidence
12 relevant to the case for the cross-examining party, then you may go into
14 In regards to Kvocka and Radic, there are two grounds for doing
15 that. One is that our allegation in part of the indictment is that they
16 were superior to the others, so the conduct of the others would have a
17 bearing on the criminality of these accused, both Kvocka and -- I'm sorry,
18 I should have said Kvocka and Prcac.
19 Secondly, going back to the theory that we discussed earlier
20 regarding the Common Purpose Doctrine, cross-examination relating to other
21 crimes or incidents in the camp would be relevant to the accused's
22 liability based on that.
23 As to Kos, Radic, and Zigic, we believe we could examine as to
24 matters that were relevant to our case which would go beyond the direct
25 examination. We also believe that we could examine -- because of the
1 theory of common purpose, we could go into questions about other actions
2 in the camp. So we don't believe that we would be restricted in content
3 as the Defence suggests we would be.
4 If your question goes to when in the order we would cross-examine
5 compared to the other accused, we believe that ultimately that is a matter
6 for Your Honours. We would request we be allowed to cross-examine after
7 the other accused have cross-examined both the witnesses and the accused
8 who have testified or will testify.
9 JUDGE RODRIGUES: [Interpretation] Very well. Thank you very much,
10 Ms. Hollis.
11 Now, with respect to the Defence counsel for Kos and Prcac, I
12 would like to hear their views and whether these accused are going to
13 testify on their behalf, in their own defence, or not.
14 Mr. Nikolic, let's hear you.
15 MR. NIKOLIC: [Interpretation] Your Honour, according to Rule
16 85(C), the defendant can testify on his own behalf, and I have in view the
17 ruling in the Celebici case, IT-90-31, of the 4th of April, 1998, in which
18 it is stated that the accused can choose when he wishes to testify - that
19 is under number 1 - and 2, the accused may testify at any time in the
20 course of his case, during the trial proceedings, and that is Article
21 21(4)(g) of the Statute. It is expressed there. So the Defence presented
22 the time plan, will not overstep that, and if it decides to, it will been
23 within that time span.
24 JUDGE RODRIGUES: [Interpretation] So Mr. Kos is going to testify
25 on his own behalf, is that it?
1 MR. NIKOLIC: [Interpretation] That is not what I said. I did not
2 say that, Your Honour.
3 JUDGE RODRIGUES: [Interpretation] Okay. My question -- I'm asking
4 you now: Is he going to testify in his own defence or not?
5 MR. NIKOLIC: [Interpretation] I don't know yet, Your Honour. At
6 this point in time, I do not know that.
7 JUDGE RODRIGUES: [Interpretation] So you're reserving the right to
8 tell us at some given point in the future; is that right?
9 MR. NIKOLIC: [Interpretation] Yes.
10 JUDGE RODRIGUES: [Interpretation] Thank you.
11 Counsel Stojanovic, what about Mr. Zigic? Have we understood that
12 matter? Yes, he's going to testify?
13 MR. STOJANOVIC: [Interpretation] Yes, Your Honour.
14 JUDGE RODRIGUES: [Interpretation] Mr. Jovan Simic, what about
15 Mr. Prcac?
16 MR. J. SIMIC: [Interpretation] Your Honour, we take the same
17 position as the Kos Defence.
18 JUDGE RODRIGUES: [Interpretation] Okay. Very well.
19 MR. K. SIMIC: [Interpretation] Your Honour.
20 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Krstan Simic.
21 MR. K. SIMIC: [Interpretation] Your Honour, I should just like to
22 respond to Ms. Hollis in one sentence. Ms. Hollis and I agree absolutely
23 on one point: The Defence does not wish to limit the Prosecution in
24 asking the witness relevant matters but linked to Mr. Kvocka. She can ask
25 whatever she likes, and that is our position on this problem. Ms. Hollis
1 and I are in agreement there. She will have no limitations and no
2 restrictions. But the witness did not mention Zigic. He did not mention
3 anyone else, and if we went into that, then that would extend the whole
4 thing. So that is the point we're trying to make.
5 JUDGE RODRIGUES: [Interpretation] The Chamber will take a
6 decision, having been provided with arguments from the two parties.
7 I think that we now ought to look at the calendar and scheduling.
8 If I summarise everything that we have discussed up until now, I shall go
9 back to Article 65 ter (G) of our Rules and you will find a synthesis.
10 All the matters we discussed in detail are set out in Rule 65 ter; that is
11 to say, after the close of the Prosecution case and before the
12 commencement of the Defence case, the Pre-Trial Judge shall order the
13 Defence to file the following: A list of witnesses the Defence intends to
14 call and all the elements which are mentioned in (G)(i); second, a list of
15 exhibits that Defence intends to offer in its case, stating, where
16 possible, whether the Prosecutor has any objection as to authenticity.
17 As you see, it is the Rule which mirrors the one that we used for
18 the Status Conference that we had for the Prosecution case and the
19 presentation of the Prosecution case. Now you have a synthesis of all the
20 work that we have developed today. You have this Rule which you must bear
21 in mind.
22 And now as to calendar, as to the schedule, we have the basis that
23 you gave us. The Prosecutor took 53 days to present his evidence. In
24 principle, and I underline that word, in principle, each Defence counsel
25 will have approximately two weeks. I say "approximately two weeks," and
1 "in principle."
2 Now, I should like us to be able to programme our time. You are
3 well aware of the fashion in which the proceedings evolve. So at the
4 beginning of the Defence case, you are going to tell us how long you will
5 take to complete your cases, and we always said that organisation is an
6 instrument of our work; that is to say, it is an instrument to serve us
7 and not us to serve the instrument. So we are going to exchange views and
8 see what we can do.
9 The calendar is the following -- that has been proposed is the
10 following: From the 22nd to the 25th of January; from the 5th to the 8th
11 of February, those are the sittings; from the 12th to the 16th of
12 February; from the 5th to the 30th of March; from the 2nd to the 13th of
13 April; from the 23rd to the 27th of April. As you know, the 16th and the
14 30th of April are holidays. No audiences in the week from the 16th to the
15 20th of April either.
16 After that, from the 1st to the 18th of May we shall be sitting,
17 and we envisage to have the end of the Defence case then; from the 28th of
18 May to the 1st of June for the rebuttal by the Prosecutor; from the 12th
19 to the 15th of June, the redirect by the Defence, rejoinder, and one day
20 for each member of the Defence; and from the 2nd to the 10th of July, the
21 pleadings and closing arguments.
22 Then we have the calendar with respect to the preliminary
23 motions. You have the Scheduling Order already with respect to this.
24 Preliminary motions, a filing of the pre-Defence briefs on the 15th of
25 December, 2000, and the response of the Prosecutor on the 5th of January,
1 2001. Pre-Defence Conference on the 12th of January, and it will be at
2 10.00 a.m. and not at 16 hours as is indicated. We said 16 hours because
3 we had another matter to attend to that day. But now that we do not have
4 to attend to that matter on that particular day, the Pre-Defence
5 Conference will start at 10.00.
6 I think that it might be possible or, indeed, necessary, and if
7 so, if it is necessary, we might have a Status Conference to discuss the
8 pre-Defence brief and the responses by the Prosecutor perhaps in the week
9 of the 8th -- 7th of January. The 7th of January is the Orthodox
10 Christmas so we shall bear that in mind. So it will be the 8th or the 9th
11 of January because the 7th of January is the Orthodox Christmas. So the
12 Status Conference could be on the 9th or 10th of January if necessary.
13 But we're going to go through all your documents and material
14 again, and if we find the need for an extra Status Conference, we shall
15 invite you to attend. If we find that we don't need a Status Conference,
16 then we go ahead with the Pre-Defence Conference on the 12th of January,
17 as we have already stipulated in the Scheduling Order.
18 I, therefore, think that we have the calendar for the Defence case
19 and for the different stages of the Defence cases. We have this schedule
20 for preparing the Status Conference. We shall contact you if we need to.
21 I think that that exhausts our agenda for today. Let me just ask
22 both parties whether there is any urgent matter that they wish to discuss
23 at this point, and I give the floor to Ms. Hollis.
24 MS. HOLLIS: Thank you, Your Honour.
25 Your Honour, there is one matter that we would like to put on the
1 record today. As you will recall, at the end of our case, we had marked
2 the Exhibit 3/167A, B, and C, that is, the record of interview of the
3 accused Prcac; A being the English version, I believe; B being the B/C/S
4 version; and C consisting of three documents that were shown to the
5 accused during the interview.
6 After the conclusion of our case, counsel for accused Prcac
7 examined that transcript and has notified us and, I believe, the Court
8 that he has no objections as to the accuracy of the content. Therefore,
9 Your Honours, we would move again for you to admit that exhibit into
10 evidence, and that would be 3/167A, B, and C.
11 JUDGE RODRIGUES: [Interpretation] Ms. Hollis, I thought that you
12 were actually going to clarify the situation as regards other exhibits.
13 Hasn't there been a motion concerning exhibits that is still pending?
14 MS. HOLLIS: Yes, Your Honour. We filed a motion for
15 clarification and admission of evidence. We filed that, I believe, within
16 a short period after the conclusion of our case in chief, and that is
17 still pending before Your Honours. I didn't wish to appear that I was
18 attempting to hurry Your Honours. I didn't mention that since it has
19 already been filed and is pending.
20 JUDGE RODRIGUES: [Interpretation] I think that we can make a
21 ruling for both things at the same time. But we will hear Mr. Jovan Simic
22 as well.
23 I think, Mr. Simic, that you have already submitted your written
24 motion concerning this particular exhibit.
25 MR. J. SIMIC: [Interpretation] Yes, Your Honour, you are quite
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 right. We have informed the Prosecutor of that, and the transcript is
2 identical with the original. We have examined it, and it is up to Your
3 Honours to make a ruling.
4 JUDGE RODRIGUES: [Interpretation] Thank you.
5 MS. HOLLIS: There is one final matter for Your Honours to
6 consider and that is: During the Prosecution case, once a witness took
7 the oath, the Prosecution was not allowed contact with the witness, and we
8 ask Your Honours if you intend to apply the same procedure to the Defence
9 witnesses: Once the witness takes the oath, Defence counsel may not have
10 contact with the witness.
11 The further refinement of that rule would be to ask Your Honours
12 what your position will be when it is an accused who testifies. After
13 they take the oath, will you have the same rule or a different rule? And
14 we certainly do not request a response from Your Honours now, but we
15 wanted to raise that for your consideration.
16 JUDGE RODRIGUES: [Interpretation] I don't know about my
17 colleagues, but I will tell you my personal opinion. We will apply the
18 same rule in respect of Defence witnesses; that is, once they have been
19 sworn in, there will be no contact between the counsel and the witness.
20 However, the decision also made provision for certain exceptional
21 circumstances, and I think that we have already availed ours of such
22 exceptional circumstances. The accused can act here in his capacity of a
23 witness, but he's, first of all, an accused in the case and I think that
24 that justifies the application of the provision for exceptional
25 circumstances. I can, of course, discuss it with my colleagues and we can
1 make the appropriate ruling later on. The accused who is testifying in
2 his own defence is in a somewhat different capacity than the regular
3 witness, and it is a bit difficult for the accused and the counsel not to
4 have communication during that period of time because very often an
5 accused testifies over a period of days.
6 But we will take into consideration your arguments and we will
7 make a ruling.
8 Let us perhaps hear the Defence regarding this issue. Mr. Fila,
9 I don't know if you are going to take the floor on behalf of your
10 colleagues as well. Mr. Fila.
11 MR. FILA: [Interpretation] Mr. President, this conversation is
12 beside the point because Mr. Kvocka and Mr. Radic testified almost a year
13 ago. If we should stick to the rule strictly, then I wouldn't have had an
14 opportunity to talk to my client during that period of time. So that
15 situation in itself is, I think, the appropriate answer to the question,
16 whether we like it or not. Thank you.
17 JUDGE RODRIGUES: [Interpretation] Mr. Nikolic.
18 MR. NIKOLIC: [Interpretation] Your Honours, just one question for
19 the purposes of clarification: The 15th of December and the filing of
20 pre-trial briefs, is that in accordance with Rule 65 ter (G)?
21 JUDGE RODRIGUES: [Interpretation] Yes.
22 MR. NIKOLIC: [Interpretation] That is, names of witnesses,
23 summaries of facts, counts of the indictment.
24 JUDGE RODRIGUES: [Interpretation] Yes, yes, indeed. Yes,
25 Mr. Nikolic, the pre-Defence briefs are provided for in that Rule.
1 MR. NIKOLIC: [Interpretation] I agree with you, Your Honour;
2 However, the discussion that was held here went into a different
3 direction. On the 22nd of January, we will begin with the Kvocka case,
4 and the estimated time that the case will take is two weeks, that is, 14
5 working days. And then there is a break between the 16th of February
6 until the 5th of March.
7 I think that if we bear in mind, if we respect Rule 82 of the
8 Rules of Procedure and Evidence, I think that that should be the
9 appropriate time for the Defence of the accused Kos to present its
10 case, and at that moment the Rule 65 ter (G) should be triggered, because
11 only at that point in time can that Rule be applied in a specific and
12 concrete manner. Otherwise, if we have to file the pre-Defence brief by
13 the 15th of December, we can only discuss the matters in abstract terms.
14 JUDGE RODRIGUES: [Interpretation] Yes, but, Mr. Nikolic, if I
15 understand your argument, you are telling us that you are not in a
16 position to file the pre-Defence brief in accordance with the provisions
17 of the relevant Rule because the discussion at this point in time is still
18 somewhat academic for you and abstract.
19 MR. NIKOLIC: [Interpretation] Conditionally speaking, yes, because
20 I don't know whether by the 15th of December I will receive the decision
21 of the Chamber pursuant to the motion which was filed in accordance with
22 Rule 98 bis.
23 JUDGE RODRIGUES: [Interpretation] Yes. That is why I indicated
24 that we might need another Status Conference before the pre-Defence
25 Conference which will treat the elements you have invoked.
1 If we want to be really ready to proceed with the Defence case,
2 and perhaps we will not be ready to proceed before the end of January, I
3 think that you should put in writing your arguments that you will have to
4 file, the pre-Defence brief, bearing in mind the first scenario, that is,
5 if your motion is rejected.
6 It is possible that the Chamber makes public its ruling this week
7 or maybe next week, and then once you receive the decision, you will
8 revise, if necessary, your pre-Defence brief. But it is also possible
9 that the decision is made only once you have already filed your
10 pre-Defence brief. If that should happen, we will need another Status
11 Conference to discuss the matters which will be pending at that time
12 before the opening of the Defence case.
13 We have to try and proceed as expeditiously as possible, and that
14 is why it is necessary for you to file the pre-Defence brief.
15 MR. NIKOLIC: [Interpretation] Yes, Your Honour, that is one
16 aspect, but we also have the issue of the Kvocka case which affects the
17 position of my client.
18 Looking at the schedule that you have suggested, I think that the
19 Defence of the accused Kos fits perfectly in that schedule. Our intention
20 is not to manipulate the schedule, but we want to be given an opportunity
21 for the accused Kos to be tried separately, pursuant to Rule 82, that is,
22 that he should receive the same treatment as if he were being tried
24 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Nikolic, but this
25 concerns every single accused at this trial. This particular Rule is
1 applicable in respect of all of the accused in the case.
2 MR. NIKOLIC: [Interpretation] I agree with you, Your Honour, when
3 you say that the Rule is applied to all of the accused. But the provision
4 here is made that they should be accorded the same rights as if such
5 accused were being tried separately, and this was also debated by my
6 colleague, Mr. Fila. We do not intend to disturb the schedule that has
7 been suggested by you, Your Honours; we can assure you of that.
8 Let me try and make myself clear. Once the accused Kvocka has
9 completed its case, within the period of five days, that is, on the 16th
10 of February until the 20th of February, the Defence of Kos will be filing
11 its pre-Defence brief in accordance with Rule 65 ter (G), which will be
12 almost two weeks before the beginning of his case.
13 JUDGE RODRIGUES: [Interpretation] I think that we have to take up
14 this issue once again. I believe that we said that we would come back to
15 this question, and we should perhaps now find out whether all of the
16 accused will present their pre-Defence briefs at the same time or not. My
17 understanding was that the pre-Defence briefs would be filed for all of
18 the accused by the 15th of December, because the Scheduling Order did not
19 concern any specific accused, it concerned all of the accused in this
20 case, and this is what is stated in the schedule.
21 MR. NIKOLIC: [Interpretation] Yes, Your Honour, indeed. That is
22 stated in the schedule. But we wanted to present our arguments to that
23 effect, and our arguments are based upon relevant provisions of the Rules
24 of Procedure and Evidence, including Rule 82 and Article 21 of the
25 Statute. And we also have Rule 73 of the Rules of Procedure and Evidence,
1 then Article 2 of the Statute -- I'm sorry, Rule 2 of the Rules of
2 Procedure and Evidence, and Rule 85(C). Those are the relevant provisions
3 which give us the basis for our position, the position that we have taken
4 up in respect of this issue.
5 JUDGE RODRIGUES: [Interpretation] So you're going -- you're trying
6 to say that you're not going to file your pre-Defence brief by the 15th of
7 December but by some other date.
8 MR. NIKOLIC: [Interpretation] Mr. President, I cannot tell you
9 that I'm not going to do that. I would merely like to be given an
10 opportunity to avail myself of the rights contained in the Rules, and for
11 me to be able to present my pre-Defence brief once the Kvocka case has
12 been completed. Then Mr. Fila would follow, Mr. Stojanovic, and
13 Mr. Prcac in the end. That is our common position except for the Defence
14 team of Mr. Kvocka, for whom this issue is irrelevant, because he is the
15 first on the list.
16 JUDGE RODRIGUES: [Interpretation] Just one moment, please.
17 [Trial Chamber confers]
18 JUDGE RODRIGUES: [Interpretation] Mr. Nikolic, I think we finally
19 understand your argument. I have to apologise. There has been a
20 misunderstanding here. But as far as I understand, the position of the
21 Defence is the following: A pre-Defence brief will, first of all, be filed
22 in respect of Kvocka, which will be followed by Kos, then Radic, Zigic,
23 and Prcac.
24 Let us discuss the issue. Why such a procedure, Mr. Nikolic? Why
25 do you think it wouldn't be such a good idea to file all of the
1 pre-Defence briefs at the same time? How do you think that the right of
2 an accused to have a separate trial can be endangered by the fact that his
3 pre-Defence brief is filed at the same time as the pre-Defence briefs in
4 respect of all his co-accused?
5 MR. NIKOLIC: [Interpretation] Your Honour, I will repeat once
6 again what the basis of our position is, and that is Rule 82 of the Rules
7 of Procedure and Evidence which discusses the issue of joint and separate
8 trials. In our view, the Rule is perfectly clear. In joint trials, each
9 accused shall be accorded the same rights as if such accused were being
10 tried separately.
11 JUDGE RODRIGUES: [Interpretation] Yes, I understand, Mr. Nikolic.
12 But how can a joint filing of the pre-Defence briefs endanger this right
13 to separate trial? In what manner?
14 MR. NIKOLIC: [Interpretation] Well, Your Honour, in that case, the
15 pre-Defence brief, if it is filed separately, can be precise, specific,
16 and concrete, because we would have already heard the case of the accused
17 Kvocka by that time. And the pre-Defence brief of my client would be of a
18 better quality.
19 JUDGE RODRIGUES: [Interpretation] Is that the reason -- is that
20 the argument that works only in favour of your client or in favour of all
21 other accused?
22 MR. NIKOLIC: [Interpretation] No, Your Honour. My colleagues are
23 joining me in my position because their situation would also be much
24 clearer after the presentation of the case of the accused Kvocka, then
25 Kos, so on and so forth. They will be in a much better position once they
1 have heard the cases of their co-accused.
2 While the case was being heard by Trial Chamber III and when
3 discussing the issue of depositions, we already touched upon the issue of
4 multiple witnesses and overlapping witnesses, and I think that in
5 proceeding in this manner, we would avoid that problem. We would hear one
6 case, complete the case, and then we would begin with the following case.
7 In the meantime, the Defence would act pursuant to the provisions of Rule
8 65 ter (G). If it proceeds in that manner, I believe, I hope, that we
9 will be very specific in our pre-Defence briefs and we would not be
10 speaking in abstract terms.
11 JUDGE WALD: Mr. Nikolic, can you cite us any other -- any other
12 examples here in the Tribunal of joint trials where it's been proceeded
13 that way, either Celebici that your co-counsel was with or perhaps some
14 other ones?
15 MR. NIKOLIC: [Interpretation] Yes, the Celebici case is a case in
17 JUDGE RODRIGUES: [Interpretation] I beg your pardon. I was
18 following the suggestion made by Judge Wald.
19 Mr. O'Sullivan, could you enlighten us as to how Celebici stood on
20 that point? Mr. O'Sullivan.
21 MR. O'SULLIVAN: Indeed, at the time of the Celebici case, there
22 was no Rule 65 ter, but the Tribunal, under the general powers of Rule 54,
23 ordered that the Defence, as and when the cases began, disclosed to the
24 Prosecution the information. I may have been a little less complete than
25 Rule 65 ter, But by and large, what Rule 65 ter obliges. So there was
1 no obligation on the Defence to disclose it prior to the commencement of
2 their respective cases. So it was done in the way that we're proposing
3 here, not all at once but at a reasonable point prior to the beginning of
4 the next Defence case.
5 Indeed, that's the -- if I might add, it seems that that is the
6 structure of these Rules. It is a disclosure provision, Rule 65 ter, and
7 the key thing is the date at which that date of disclosure is triggered.
8 And to be fair and equal among the accused, it shouldn't happen all at the
9 same time. So there are no discrepancies between the first, second,
10 third, and so on down the line. So it's a case of -- that's tied, I would
11 submit, to the presumption of innocence, burden of proof, and just the
12 general framework of the disclosure and the timing of disclosure. It's
13 unfair or unequal to request that all of the accused disclose at the same
14 time. The Rules do not contemplate that. There should be a staggered
16 JUDGE RODRIGUES: [Interpretation] Madam Hollis, would you like to
17 speak to us on that issue?
18 MS. HOLLIS: Thank you, Your Honour.
19 Just a few comments. First of all, Your Honour, if you look at
20 Rule 82, we suggest that the fundamental flaw to the arguments you have
21 heard is that Defence counsel are somehow assuming or implying that
22 Rule 82 requires that the 65(G) submissions be given close in time to the
23 beginning of the Defence case. We suggest that the Rule doesn't require
24 that, nor does a fair trial require that. So this is not a matter of
25 treating these accused as though they were being tried separately.
1 We suggest it is purely within the discretion of the Trial Chamber
2 as to when they order the Rule 65(G) submissions to be given, and that if
3 you had a case where there was only one accused and there was going to be
4 a three- or four-month delay between the close of the Prosecution case and
5 the opening of the Defence case for that one accused, the Chamber could
6 order that the 65 ter (G) submissions be made within a very short time
7 after the Prosecution case closed.
8 So there is no requirement in the Rules or in the Statute that the
9 Defence provide the information required under 65(G), only until its case
10 is about to start. The Rule says sometimes after the Prosecution case
11 closes and before its case opens; that's a broad period of time.
12 Moving to the second point they have made, and that is somehow the
13 submission would be better if you waited until later, we suggest that
14 they're reading too much rigidity into 65 ter (G). They already know
15 because they've told you how many witnesses they will call if they have
16 to address the entire case against them. They can provide the information
17 about those witnesses by the 15th of December. If your rulings on the
18 motions for judgement of acquittal or if the evidence that is brought out
19 in the other presentations by the other accused somehow changes the
20 witnesses they need to call and witnesses drop out, they simply notify the
21 Trial Chamber and the Prosecution that these witnesses will not be called.
22 That is not a difficult thing to do.
23 The thing that having them provide their submissions on one date
24 does is that, number one, it is a, we suggest, better way to organise the
25 trial because then the submissions are all provided on the one day, and
1 then on the following date you have established the Prosecution has to
2 respond to all those submissions. If we do it the other way, the
3 Prosecution will respond to five different submissions. That can take
4 additional time, because each time you tell them they must file their
5 submission by a certain date, you have to give us some time to respond to
6 that submission, so that could delay the proceedings.
7 So we don't see that the Statute or the Rules require these single
8 submissions just before that particular accused's case goes on. We
9 suggest that the real question is: How would you better organise the
11 And also there is as a by-product of Rule 65 ter (G), of course,
12 there is some disclosure. We suggest that the sooner the opposing side,
13 in this instance us, receives that disclosure, the more time that we have
14 to prepare an effective and a focused cross-examination. If those
15 witnesses drop out, that doesn't harm the accused if they decide not to
16 call them. Filing submissions early doesn't preclude them from changing
17 if circumstances require it.
18 So we believe that it is totally within your discretion as to when
19 you want this to be filed, and we would ask that you continue to ask them
20 to file it on the 15th of December.
21 There is a situation that could alter that. For example, the
22 Defence counsel for Prcac has indicated that they really have not had the
23 time to do it. If they can persuade Your Honours that they have not had
24 sufficient time to be able to prepare these submissions, then that's a
25 separate basis for giving them additional time. But that is something you
1 would have to consider after they present to you their reasons why they
2 haven't had sufficient time.
3 JUDGE WALD: Do you know what the experience is with any other
4 cases involving joint trials after 65 ter?
5 MS. HOLLIS: Your Honour, I cannot speak to that with any degree
6 of certainty.
7 JUDGE WALD: Even with a little degree of certainty?
8 MS. HOLLIS: I'm not aware that this procedure that is being
9 suggested has been followed. Celebici, I understand now, it has been;
10 but as to the other cases, I'm not aware that it has been. But I would
11 not make a statement -- a definite statement about that.
12 JUDGE RIAD: Ms. Hollis, you seem to find that there is no harm in
13 presenting -- from the side of the Defence, because they can, after all,
14 change the number of witnesses to their advantage, I mean they can reduce
15 it and then no harm done. But what about the opposite hypothesis: They
16 might need more witnesses after hearing one of the other accused. They
17 might find themselves in need of more witnesses, and in that case they
18 would be at a disadvantage if we ask them to decide it right at the
20 MS. HOLLIS: Your Honour, that is an extremely important point,
21 and I believe that earlier in the day at some point Judge Wald raised that
22 as well. The Prosecution's position is that filing something under 65 ter
23 (G) or the Prosecution's submission under 65 ter should not preclude that
24 party from presenting evidence if they can show why a changed circumstance
25 requires it. But this is true whether they present their 65 ter
1 submissions immediately before their case or two months before their case,
2 because in the middle of their own case, a witness could say something
3 that changes the circumstances and requires them to call yet another
5 We are very caught up today with the need for speedy trials, and
6 that is an appropriate consideration. But we stress again that a speedy
7 trial cannot be at the expense of a fair trial or a just trial.
8 So the Court has the power to and has in the past adapted the
9 proceedings to the situation. If justice requires they change the order,
10 it doesn't matter when they file their submissions, they should be allowed
11 to do so, as should the Prosecution. So we don't see that as a detriment
12 either, Your Honour.
13 JUDGE RIAD: Thank you.
14 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Fila.
15 THE INTERPRETER: Microphone, please.
16 MR. FILA: [Interpretation] As time is passing rapidly, we have to
17 say one thing: Ms. Hollis requests that I ask a request from you for me
18 to change the name of the witnesses, to increase the number or to reduce
19 the numbers, which means that that is something that is up to you, whether
20 you allow it or not. But if we accept the other solution, then I don't
21 have to ask for a request, and five days after Kos' case I will be able
22 to decide which witnesses I will have without asking permission from
23 anybody. And if we have at heart a fair trial, then why should Kvocka
24 have the advantage; that is to say, the Prosecution can prepare for him
25 15 days and one year for Prcac, for example. Where is the fair play
2 Thirdly, let me remind you that Mr. Radic was arrested on the
3 basis of the testimony of one individual A, and we have received three
4 more incriminations from the Prosecution 20 days ago. The Prosecution did
5 not adhere to that rule of theirs to give us summaries in time. We either
6 didn't get them at all or Mr. Saxon would supply us with the summaries in
7 the morning, 15 minutes before the proceedings went ahead.
8 So I would like each of us, in making a request from the other
9 side, asking the other side to do something, should show by way of their
10 own example what should be done. And the extended indictment was in 1995
11 not in the year 2000.
12 So if that is fair, then I want that fairness to be applied to me.
13 I want to be given five days after the Kos case to see which witnesses I
14 am going to call and to decide, and not to ask for additional permission
15 and understanding from Ms. Hollis. Had Ms. Hollis had understanding, then
16 in 1995 she would have charged Mladjo Radic with everything that she did
17 later on in September or August, or whatever month it was - it's not
18 important - because she had it in her hands. She could have done it
19 during disclosure, but we did not receive that.
20 So the same that was applied to them, we request that it be
21 applied to us; that summaries are not given 15 minutes before we go ahead
22 with trial. I can come in the morning, like Mr. Keegan, and say, "The
23 changes for this week are such and such. We're not going to hear one
24 witness, we're going to hear another." And now you are asking us to do so
25 by the 15th of December, to tell you exactly who is going to come on what
1 day, at what time. And if that is not so, then I will ask to ask the
2 Court's indulgence to show understanding. Why should that apply to us
3 when it did not apply to the Prosecution? Had they set the example, I
4 would have followed it. But you must reap as you sow, as we say in our
5 country, and I think it applies generally.
6 Thank you.
7 JUDGE RODRIGUES: [Interpretation] Mr. Krstan Simic, have you got
8 anything to add? Because it is five minutes to five o'clock.
9 MR. K. SIMIC: [Interpretation] I do, Your Honour. In principle,
10 this discussion is something that does not concern me, but there is
11 something that concerns my case. Everybody is setting yardsticks. How
12 much Kvocka does, we are going to do the same. That will be our
13 yardstick. Whereas the schedule is done in advance. And that is why I
14 should be given all the necessary time. Because what would happen if I am
15 given ten days - I am speaking hypothetically - and I need 15 days
16 perhaps? And then somebody later on within those 53 days to keep the
17 balance, there's no need for us to do that because it was done in the
18 Kvocka case.
19 So the question here is the correct distribution of time, because
20 it is the first 10 or 12 days which are set as a parameter and yardstick
21 to what will happen later on. So we don't want it to be at our
22 disadvantage and to the advantage of everybody else.
23 JUDGE RODRIGUES: [Interpretation] Let me ask Mr. Jovan Simic
24 next. Are you ready to respond in general terms? I say "in general
25 terms," without making any specificities, with respect to the Defence of
1 Mr. Prcac? Can you tell us now? Are you prepared to do so?
2 MR. J. SIMIC: [Interpretation] Your Honour, I could give a
3 provisional programme. We have talked to many witnesses. Some witnesses
4 are afraid to testify because of their own environment; others are afraid
5 because of the IPTF visits.
6 JUDGE RODRIGUES: [Interpretation] You can tell us all that in the
7 pre-trial brief defence. Can you tell us what you have and what you still
8 need? Can you tell us that?
9 MR. J. SIMIC: [Interpretation] Yes, I can.
10 JUDGE RODRIGUES: [Interpretation] Thank you. Just one moment,
11 please, for the Judges to confer.
12 [Trial Chamber confers]
13 JUDGE RODRIGUES: [Interpretation] The Chamber makes the following
15 Several pre-Defence briefs, multiple pre-Defence briefs, will be
16 submitted on the same date, that there will be a single submission, and
17 the date will be indicated in the same decision, that is, the decision on
18 the motion for judgement of acquittal. The pre-Defence briefs will have
19 to be submitted ten days after the publication of the said decision. The
20 Prosecutor will have one week to file her response, one single response to
21 several pre-Defence briefs.
22 That was the best solution that we could have reached. We
23 understand that everything is somewhat unclear because we haven't yet made
24 the decision on the motion for judgement of acquittal. So I think that
25 the best way for all of you will be to file your pre-trial briefs ten days
1 after the publication of the decision on the motion for judgement of
2 acquittal, and the Prosecutor will be given another seven days to file her
4 This brings us to the end of our working day today. It is almost
5 5.00, and I think that all of us are quite tired.
6 [Trial Chamber confers]
7 JUDGE RODRIGUES: [Interpretation] I was saying that we have
8 reached the end of our hearing today. I should like to thank the parties
9 for their availability to begin at 10.00, because we realised at one point
10 that two hours would not be enough to discuss all of the pending issues.
11 As soon as we learned that we had enough time to hear your case today,
12 this other case has been cancelled, we informed you of the new schedule,
13 and I should like to thank you once again on your availability to proceed
14 earlier on.
15 As far as I understand, Ms. Hollis is not going to continue
16 working with us. Am I correct in understanding that, Ms. Hollis?
17 MS. HOLLIS: Your Honour, it would depend upon how long it takes
18 Ms. Somers to familiarise herself with the case so that she can
19 effectively function. If she does that before the January session, then I
20 will not be involved. If she needs a little bit more time, then I will
21 assist in January. So I don't know. I guess, as many other things today,
22 if this scenario, this, and if that scenario, that.
23 JUDGE RODRIGUES: [Interpretation] We will see. Let me take this
24 opportunity to wish you a Happy Christmas to all of those who celebrate
25 it, and also to wish you a Happy New Year, and also to wish you a happy
1 Orthodox Christmas.
2 We worked a lot today. Thank you for your patience, once again,
3 and I should like to thank the interpreters who have worked hard today.
4 We really have to wind up because I think that everybody is tired.
5 The hearing is adjourned.
6 --- Whereupon the Status Conference adjourned at
7 5.05 p.m.