1 Tuesday, 9th March, 1999
2 (Motion Hearing)
3 (Open session)
4 (The accused entered court)
5 --- Upon commencing at 10.03 a.m.
6 THE REGISTRAR: Good morning, Your Honours.
7 This is case number IT-98-30-PT, the Prosecutor versus
8 Miroslav Kvocka, Milojica Kos, Mladen Radic, and Zoran
10 JUDGE MAY: Appearances, please.
11 MR. NIEMANN: Good morning, Your Honours. My
12 name is Niemann, and I appear with my colleagues
13 Mr. Keegan and Mr. Waidyaratne, and the case manager
14 for the Prosecutor is Ms. Reynders.
15 Your Honours, we have moved back to here. I
16 hope that is not inconvenient to the Court, but it does
17 give us a bit of perspective of the bench, if Your
18 Honours please.
19 JUDGE MAY: The Defence, please.
20 MR. SIMIC: (Interpretation) Good morning,
21 Your Honours, Mr. President. My name is Krstan Simic
22 representing the Defence of Mr. Kvocka.
23 MR. NIKOLIC: (Interpretation) Good morning,
24 Your Honours. My name is Sarko Nikolic, Defence
25 counsel for Mr. Milojica Kos, along with Ms. Jelena
2 MR. FILA: (Interpretation) Good morning,
3 Your Honours. I am Toma Fila and, along with
4 Mr. Petrovic, represent the Defence of Mr. Mladjo
5 Radic. Thank you.
6 MR. TOSIC: (Interpretation) Good morning,
7 Your Honours. I am Attorney Simo Tosic, Defence
8 counsel for Zoran Zigic, and I am assisted by legal
9 counsel, Jelena Lopicic, attorney from Belgrade. Thank
11 JUDGE MAY: Thank you. Turning next to the
12 accused to make sure that they can hear in a language
13 which they can understand. You can't. Can someone go
14 and try get the correct channel?
15 AN ACCUSED: We have no interpretation here.
16 JUDGE MAY: I understand there is a
17 difficulty with the interpretation.
18 You can now hear, can you, all of you?
19 Very well. I just make sure that the accused
20 can hear. That being so, this hearing has been called
21 to deal with a number of motions. There is, firstly, a
22 motion to amend the name of an accused and to make
23 various other minor amendments to the indictment. We
24 will deal with that first. That is a Prosecutor's
25 motion, it relates to Mr. Radic, and I understand that
1 there is no opposition to the motion.
2 The problem is that any motion in relation to
3 the indictment and the amendment of the indictment at
4 this stage of the proceedings, that is, before we have
5 started to hear evidence, must be dealt with by the
6 confirming Judge, and it is to him or her that the
7 Prosecution should send the motion.
8 What we have in mind is that the motion
9 should be sent and a transcript of this hearing, or
10 this part of the hearing, should be sent with it, to
11 confirm that, in fact, there is no opposition --
12 Mr. Fila, can I take it that that is the position?
13 MR. FILA: (Interpretation) You're absolutely
14 correct, Your Honour.
15 JUDGE MAY: Thank you very much. There are
16 then a series of motions relating to the form of the
17 amended indictment and jurisdiction, and it would seem
18 to us convenient to deal with those motions next,
19 hearing the Defence first and then the Prosecution can
20 deal with all the motions together afterwards.
21 So I shall call on the Defence. Perhaps in
22 the order of the indictment would be most convenient.
23 Mr. Simic, would you like to start, please?
24 MR. SIMIC: (Interpretation) Thank you,
25 Mr. President.
1 The Defence of Mr. Kvocka has filed a motion
2 which was submitted in writing, taking into
3 consideration that a good portion of this motion is
4 following the same line of argument as filed by
5 Mr. Fila regarding Article 3 and Article 1 of the
6 Statute. I am not going to dwell on this and I will
7 let Mr. Fila focus on that because these two motions on
8 these particular points are practically identical.
9 I am instead going to focus on those points
10 which relate to the form of the indictment. I am going
11 to try to summarise which points, and point to only
12 those which we believe need to be highlighted.
13 I first reaffirm all the written arguments
14 which we have submitted, but I would like to point out
15 that in the amended indictment, which was confirmed by
16 the confirming Judge, my client is, for the first time,
17 charged with responsibility pursuant to Article 7 of
18 the Statute, and it refers to the individual criminal
19 responsibility which has to do with planning,
20 instigation, ordering, committing or otherwise aiding
21 and abetting in the planning, preparation, or execution
22 of a crime contained in Articles 225 (sic) of the
23 present Statute.
24 We believe that the facts stated, which are
25 the basis for any court proceeding, and here we have in
1 mind a number of decisions of this Tribunal, we say
2 that the accused has the right to be given detailed
3 information of the charges and incriminations. We
4 believe that the minimum of this factual basis has not
5 been provided. Nowhere has it been stated that
6 Mr. Kvocka has ordered anyone anywhere, that he
7 instigated anything anywhere, and we say that there are
8 no facts in the supporting material provided by the
9 Prosecution that Mr. Kvocka was present to a single
10 incident which may have been a serious violation of
11 humanitarian law.
12 In this situation, we are unable to prepare a
13 defence which would provide any basis for the
14 individual criminal responsibility of Mr. Kvocka
15 pursuant to Article 7(1). Similar arguments also apply
16 to the charges pursuant to Article 3, which is the
17 superior responsibility provision. We are not going to
18 submit any arguments in that regard because we are
19 going to point to the facts during the presentation of
20 evidence. However, the arguments which I have just
21 mentioned can also be referred to in point 17 of the
22 indictment because there is no prima facie basis. The
23 indictment does not detail the names of the guards or
24 the members of the police force who were providing
25 security in Omarska at that time. The indictment
1 should have provided a sufficient factual basis, citing
2 individuals by name, so that the responsibility of
3 Mr. Kvocka could be contextualised.
4 I also submit that all charges in the
5 indictment are too vague for the Defence to be able to
6 proceed to preparation of a defence and providing
7 evidence which would be exculpatory. This is not to
8 say that we are not prepared for the trial. We are
9 prepared. But this form of indictment does not lend
10 itself to an efficient and fair trial.
11 In some points, the indictment is also
12 contradictory with respect to certain facts. In almost
13 all points, it is stated that Mr. Kvocka was in Omarska
14 somewhere between the 26th of May and the 30th of
15 August, 1992. However, in one of the counts of the
16 indictment, it states that he was there between the
17 26th of May until about the 15th of July, and this
18 again is contradictory and puts us in a position to
19 have to wonder whether it has to deal with the time
20 period of the 26th of May until the end of August or
21 the 26th of May until the 15th of July.
22 There are certain witness statements which
23 clearly point that he was there for less than one
24 month, and it is very clear that on July 1st, he was
25 already on another duty. We believe that the
1 Prosecution had enough elements there and, again, let
2 me stress that the incidents which are covered in the
3 indictment have taken place in a particular period of
4 time and the Prosecution should have been more accurate
5 about stating that.
6 Further, we have points of vagueness, such as
7 "unknown person," "unknown date," and also the
8 Prosecution affirms that Mr. Kos and Mr. Radic were
9 also in positions of superiority, which is not true,
10 and if they are covering every period of time when all
11 of them were shift commanders, that is contradictory.
12 An attempt should have been made from a
13 number of pieces of evidence provided by the
14 Prosecution, a daily schedule of Mr. Kvocka should have
15 been laid out, especially given the fact that the
16 evidence exists that Mr. Kvocka was also working on a
17 regular basis in the police station in Omarska. Again,
18 these facts, had they been presented in a more detailed
19 way, would have simplified our proceedings and
20 contributed to judicial economy.
21 I am not going to dwell on the cumulative
22 responsibility which is part of Article 7(1) and 7(3),
23 I believe that Mr. Fila will touch on that more, but
24 the Prosecution has charged Mr. Kvocka in the
25 alternative, which points again to a certain vagueness.
1 Let me point out the case of the Prosecutor
2 versus Furundzija. The Prosecution spent a lot of time
3 trying to prove the whereabouts of Mr. Furundzija,
4 whether he was present there or whether he was 20
5 metres away. In comparison, this is a very summary
6 indictment which the Prosecution has offered in this
7 case because there has been no attempt made to specify
8 exactly the place where Mr. Kvocka was. We therefore
9 ask that the Trial Chamber direct the Prosecution to
10 clarify and specify these points of fact which we
11 believe to be essential for the further proceeding and
12 presentation of evidence. Thank you.
13 JUDGE MAY: Thank you. Mr. Nikolic.
14 MR. NIKOLIC: (Interpretation) Your Honours,
15 the Defence for Mr. Kos has filed a preliminary motion
16 to amend the indictment. The first part is a general
17 part for an amended indictment and the second refers to
18 concrete criminal acts. In my oral presentation, I
19 should like to refer to the special section because I
20 feel that to be crucial.
21 In response to the motion, the Prosecution
22 said that the indictment must be concise, and that is
23 the criticism, that is to say, that the indictment as
24 it stands is not concise, and we have a time period
25 which is too broad, in fact, and practically
1 encompasses the whole time of the functioning of
2 Omarska, from the 26th of May to the 30th of August;
3 for example, with point 5, which refers to the murders
4 done by Kos and the other accused, but these victims
5 are precisely defined in the case of Tadic, for
6 example. So the Defence sees no reason why, in the
7 case of these accused, the events which refer to these
8 victims could not have been precisely defined in the
9 same way as they were in the Tadic case. That is as
10 far as this point is concerned and the other point
11 concerning maltreatment, torture, inhumane treatment,
12 and so on and so forth.
13 The second thing that the Defence would like
14 to state is that in the initial indictment, the accused
15 Mr. Kos is accused on the basis of Article 7(3) of the
16 Statute, but in the amended indictment, it is enlarged
17 to encompass 7(1), and in that section too the Defence
18 considers that criticism can be made and that the
19 Prosecutor, in his reply, comments on this, and states
20 that the arguments presented by the Defence were not
21 well-placed and quotes an example.
22 The example that the Prosecutor gives in his
23 response is considered by the Defence to be abstract.
24 As it is stated, it probably can exist and be explained
25 in that way. However, the Prosecution did not throw
1 light upon any piece of evidence from which this kind
2 of example could be deduced and would emanate, and it
3 is in that direction that the Defence would like to
4 make use of the judgement in the case of the Prosecutor
5 versus Anto Furundzija, it is para 8 of the judgement,
6 which states that the Prosecution has been told to send
7 a document in which it will precisely define in what
8 way the accused has gone against Article 7(1) of the
9 Statute, and I should like to ask that the same be done
10 in this case and that the Defence be presented with a
11 document which would show the responsibility of the
12 accused's course with regard to Article 7(1) of the
14 As far as Article 7(3) is concerned, I don't
15 think I need give any special explanation, because it
16 is a question of fact which will be ascertained during
17 the trial itself. Thank you, Your Honours.
18 JUDGE MAY: Yes, Mr. Fila.
19 MR. FILA: (Interpretation) Your Honours, the
20 Defence of Mr. Radic, and on behalf of the other
21 Defence counsel as well, in keeping with Rule 72(A),
22 under (i) and (ii), that is, challenging jurisdiction
23 and defects in the form of the indictment, I would like
24 to say something in that regard.
25 The Defence was encouraged by a good idea
1 presented by our learned colleague, Mr. Niemann, in the
2 Dokmanovic case, that the best thing is to discuss
3 matters of this kind before the trial begins so that we
4 deal with facts at the trial. You have also encouraged
5 the Defence in that respect, and I thank you for that,
6 because I do feel that we should clarify all these
7 questions before we begin with the concrete situation
8 and concrete cases under the given indictment.
9 In great detail, the Defence explained why it
10 considers that the United Nations -- that is to say its
11 Security Council -- did not have the intention of
12 having Common Article 3 of the Geneva Conventions being
13 placed under the competency of this Trial Chamber. And
14 that was the first question I dealt with.
15 The second question was that if he did not
16 include this, as he did not, whether Common Article 3
17 has become part of international customary law or not,
18 and so come under the jurisdiction of this Tribunal.
19 As you know, in written form, I go on to
20 explain and emphasise the difference between the
21 Statute of this same ad hoc Tribunal for Rwanda, where
22 after 18 months, Common Article 3 of the Geneva
23 Conventions has been introduced. Then I refer to the
24 report of the Secretary-General, and Cherif Bassiouni's
25 opinion, and others, who said that it appears that
1 Common Article 3 should not come under the jurisdiction
2 of this Tribunal.
3 It would be taking up too much of Your
4 Honours' time if I were to expound all this again,
5 because what I wrote, I wrote in my motion, the
6 Prosecution provided a response, and we provided a
7 response again, so I have nothing more to add nor any
8 legal authority to add, nor do I have the authority to
9 do so. But I would like to look at these questions,
10 because they have to do with this trial and other
11 trials, because the judgement will, of course, be used
12 as stare decisis in other matters.
13 I think that the criticism which has been
14 made as regards the Tadic judgement is not a case in
15 point, because there was a different decision made
16 there, and this Honourable Court is not bound to the
17 Tadic decision, particularly because the stare decisis
18 principle is not always applied in international law as
19 it is in national jurisdictions, and for that reason
20 the Tadic judgement does not represent a judgement that
21 can be applied in this case.
22 The Defence also looked at Article 1 of the
23 Statute and considered that particular article. We
24 also consider that this high and distinguished Court
25 cannot deal with all matters at once, and at all times,
1 and that precisely for that reason it states that the
2 competence of this International Tribunal is a serious
3 violation of humanitarian law, and I say this in all
4 seriousness. What we say with regard to Witness F
5 cannot be considered a serious violation of
6 international humanitarian law, even if it did occur as
7 it occurred, and that would be below the competencies
8 of this International Tribunal. That kind of question
9 will come up on the agenda of national courts in
10 Bosnia-Herzegovina when they are established and when
11 they are capacitated to deal with cases of that kind.
12 Furthermore, the Defence looked at Point B,
13 and the challenges in the form of the indictment and
14 their defects. I have already expounded this in
15 writing, and referred to three particular decisions
16 with regard to the defects in the form of the
17 indictment. I would like to quote them, and then I
18 won't be taking up more of your valuable time, Your
20 One of the decisions, in the case of Dusko
21 Tadic, the 14th of November, 1995, as a response to the
22 Defence motion with regard to the form of the
23 indictment. The second decision is in the Tihomir
24 Blaskic case, and a decision there, once again, a
25 response to criticisms as to precision, and the third
1 and latest decision was one taken with regard to the
2 Milorad Krnojelac case. I don't know at the moment --
3 that is, we filed our motion after the term given by
4 Your Honours for one simple reason, and that is because
5 the decision was taken after that time limit, that
6 deadline. I don't know if it was distributed; I have
7 no knowledge on that matter. But we did send it out as
8 soon as we had received it, and it is the decision of
9 the 24th of February of this year, where we adopt the
10 criticism made by the Defence and which states to the
11 Prosecution that it should precisely define when the
12 actual crime took place and who it refers to.
13 The last thing that I have to say in this
14 sense is that we have been using too much descriptive
15 terms, that the Prosecution is using descriptive terms
16 and bringing itself into a collision of a certain
17 kind. I would like to state the introduction of the
18 indictment with Mladjo Radic where he says he was
19 responsible for everything that took place in the camp
20 when Dzelko Meakic was not there, Miloslav Kvocka was
21 not there, and civilians and inspectors, they're all
22 referred to, and when that was within his shift. We
23 never know, according to the indictment, when it
24 actually took place; that is to say when Meakic,
25 Kvocka, and these civilians and inspectors were not
1 there and when those shifts actually took place, what
2 particular day.
3 So it is no problem that the learned
4 Prosecution, via its multitude of inspectors that it
5 has, to send them to the Omarska police station, where
6 documentation exists as to the schedule of the
7 individual shifts, because with us, during Tito's
8 Yugoslavia, at least, there was some order, and we
9 would keep documents of this kind for 20 years at
11 Perhaps the Prosecution has evidence of this
12 kind, but it doesn't agree with the Prosecution to put
13 them forward, because then they would have to specify
14 what day each one of the individuals had a shift and
15 what happened during those shifts, and that Meakic and
16 Kvocka, all the investigators, all the civilians, were
17 in fact not present. Only then would we have command
18 responsibility of Mladjo Radic, had he been the shift
19 commander, which it is asserted that he was, and which
20 he was not.
21 So without precisely defined facts of this
22 kind, we're going to sink into a sea of various
23 proceedings and will never emerge.
24 That is all I have to say. Thank you very
25 much, Your Honours.
1 JUDGE MAY: Thank you, Mr. Fila.
2 MR. TOSIC: (Interpretation) Your Honours, the
3 Defence of Zoran Zigic would like to stress that we
4 fully remain with the stand taken with our preliminary
5 response to the motion and to stress that everything
6 that my colleagues have said with regard to the
7 precisions of the indictment I consider to stand. The
8 place, the time, when the acts occurred, were not
9 precisely defined, and so we should like to associate
10 ourselves with them.
11 In our motion we stressed and said that we
12 have severance of responsibility in the indictment, and
13 the fact that there was a change in the Rules,
14 particularly with regard to Rule 82(B), and that the
15 accused that I represent is not responsible for command
16 responsibilities, not held responsible for command
17 responsibilities. So that in that sense I don't think
18 it would be economical to have one single trial, and in
19 particular I should like to highlight the provision of
20 Rule 94(B).
21 In view of the Rules and provisions, I feel
22 that there could be conflicting interests, bearing in
23 mind the defence of the accused and also that this
24 could harm the accused. All this I say in the aim of
25 having a fair and expeditious trial.
1 As far as that proposal is concerned, I think
2 that at all events the Trial Chamber should once again
3 look into the matter, because all indications point to
4 the fact that the accused that I represent is not there
5 to answer for command responsibility. So in order to
6 have a fair and expeditious trial, I think that there
7 should be a severance in the trial proceedings.
8 Thank you so much. Thank you, Your Honours.
9 Thank you, Your Honours.
10 JUDGE MAY: Yes. Thank you.
11 Mr. Keegan.
12 MR. KEEGAN: Thank you, Your Honour. Good
14 I shall endeavour not to repeat anything
15 already submitted by the Prosecution, but rather refer
16 to some general points, some of the issues raised this
17 morning, and then to the extent that I can assist Your
18 Honours with any question that you may have based on
19 the submissions.
20 Dealing first with the issue of the
21 jurisdiction, to remove that, since it was raised only
22 briefly this morning, we would stand essentially on our
23 pleadings, Your Honour. It doesn't appear that
24 anything new has been raised this morning. The
25 essential points we believe are of most relevance are
1 the fact that, of course, the concept of stare decisis
2 is, and should be, applicable before this Tribunal for
3 it to function effectively. We would note specifically
4 that the issue of stare decisis appears to have been
5 considered and utilised in the decision in the
6 Krnojelac case referred to today, and I would point
7 specifically to paragraph 5 of that decision.
8 In particular, with respect to the claims made by
9 the accused here, and in particular Mr. Fila in his
10 briefs, as we indicate in our response, the claims made
11 by these accused are the very same claims that have
12 been litigated previously, and in particular decided by
13 the Appeals Chamber on this issue on those very
14 specific arguments. They have been redressed a bit,
15 but they are in effect the same arguments, and
16 therefore we believe that the prior determination of
17 this Tribunal should stand.
18 With respect to the form of the indictment,
19 we would respectfully suggest that when considering the
20 concept of the particularity that's required in the
21 pleading of a case, it must be considered
22 contextually. It is clear that the nature of an
23 indictment for a particular actor in a single crime
24 will by definition be a more specific pleading. As one
25 moves away from the concept of a specific crime -- a
1 one-off event, if you will -- and you move away from
2 criminal liability based on direct commission of an
3 act, the very nature of the pleading itself changes,
4 and the particularity which is necessary changes.
5 We would in fact agree with the citation in
6 the Krnojelac case, the citation coming in paragraph 14
7 to the case of RV Associated Northern Collieries, where
8 the Court said that; "the opposite party here, the
9 accused, shall be placed in possession of its broad
10 outlines and the constituted facts which are said to
11 raise his legal liability. He is to receive sufficient
12 information to ensure a fair trial and to guard against
13 what the law terms 'surprise,' but he is not entitled
14 to be told the mode by which the case is to be proved
15 against him."
16 That quote will obviously have very different
17 meanings in different contexts and in different types
18 of cases.
19 The standard under the Statute and the Rules
20 calls for a concise statement of the facts. "Concise",
21 of course, meaning "summary"; not necessarily specific
22 in the nature of the detail requested by accused in
23 their present motions. In fact, to give the accused
24 the detail which they are seeking, one would not have a
25 concise statement of the facts; one would have an
1 extensive and lengthy statement of facts.
2 The question is whether the accused have been
3 placed on notice of the material facts which give rise
4 to their criminal responsibility. That is, of course,
5 as stated in the Krnojelac case, the particular acts of
6 the accused or the particular course of conduct on his
7 part which are alleged to constitute that
8 responsibility. The crimes charged against these
9 accused are all course-of-conduct violations, and with
10 respect to the persecution charge, in fact entail
11 essentially an allegation of common purpose.
12 With the exception of the accused Zigic,
13 these are not cases of individual specific one-off
14 crimes but rather a series of criminal acts committed
15 by these accused, or at their direction, and not the
16 type of pleadings which the Defence have referred to in
17 other judgements before this Tribunal; for example, the
18 Furundzija case. That was in essence a one-event
20 Similarly, the Tadic case, Mr. Tadic was
21 charged with specific acts in addition to the overall
22 crime of persecution. Therein the pleadings, and as
23 accepted by the Trial Chamber in the decision on the
24 form of the indictment, reflected different standards,
25 in essence, in the pleadings.
1 We believe that those different standards are
2 reflected in this indictment when one views the
3 allegations as alleged, how they are in fact drafted
4 against the three accused charged with criminal
5 responsibility by virtue of their positions as
6 superiors in addition to their individual
7 responsibility, and that of Mr. Zigic, who is charged
8 on a number of occasions with specific crimes in
9 addition to the overall persecution count. With
10 respect to the persecution count, the pleadings are the
11 same as the other three accused. With respect to the
12 particular crimes, there are specific victims, dates,
13 and places alleged.
14 So the Prosecution believes that the
15 pleadings do meet the requirements of the Statute and
16 the Rules given the context of the nature of the
17 responsibility and the crimes for which the accused are
19 For example, with respect to Mr. Kvocka, the
20 complaint is that the allegations are too vague, yet
21 the accused entered pleas, and in fact, as his counsel
22 indicated today, they are prepared to go to trial.
23 That in effect is an inconsistent position, one which
24 the Prosecution believes --
25 JUDGE MAY: Well, Mr. Keegan, I don't know
1 that that's a very good point. They pleaded to the
2 material that was available, and they say they're ready
3 for trial. But even if you're right about the nature
4 of the pleadings in this Tribunal, and that detailed
5 pleadings are not required, even if you're right about
6 that, there will come a time when the Prosecution must
7 clearly spell out how it is said, in the case of each
8 accused, that he is guilty of these offences, what it
9 is that he said or did that makes him guilty according
10 to you.
11 While you may be right, of course, that the
12 mode by which the Prosecution are going to prove the
13 case -- i.e. the way they're going to prove it -- does
14 not have to appear in the pleading. In due course, it
15 must be made plain to the Trial Chamber, and of course
16 to the defendants, how it is alleged that each one of
17 them committed each offence.
18 No doubt, with your experience, you have that
19 in mind.
20 MR. KEEGAN: Yes, Your Honour. If I may
21 respond to that, we believe that in fact the
22 achievement of that requirement -- that is, to make it
23 plain to both the accused and to the Trial Chamber of
24 the actual basis of the accused's responsibility, those
25 come in two different stages, of course.
1 As reflected in the prior decisions and the
2 most recent one, the Krnojelac -- and I keep butchering
3 that name; I apologise -- case, there is in effect a
4 balance between the form, the pleading of the
5 indictment itself and the content of the supporting
6 material. While decisions make clear that the
7 supporting material cannot take the place of the
8 indictment, cannot make up for substantial defects, the
9 indictment must be read in the context, as I indicated,
10 of the crimes and of the supporting material.
11 The issue for the accused is whether the
12 indictment meets the requirements of the Statute and
13 the Rules, which are of course reflective of the
14 international standards as reflected in the
15 International Covenant on Civil and Political Rights,
16 to give him notice of the charges against him.
17 The second aspect, in terms of preparation
18 for a defence, that must be considered not only on the
19 face of the indictment but also in the context of the
20 supporting material provided to the accused. I believe
21 that has been accepted in these decisions that have
22 been referred to before this Tribunal, and they're
23 certainly accepted in the case law flowing from the
24 European Court of Human Rights, based upon the European
25 Convention of Human Rights and the ICCPR.
1 With respect to when that must be made plain
2 to the Trial Chamber, we believe, in the first
3 instance, that comes with, under our practice, the
4 submissions of the Pre-Trial brief to the Trial
5 Chamber, at which point the Prosecution has generally
6 been charged by chambers, in my experience, to provide
7 the detail of the case upon which it intends to rely,
8 in essence providing a roadmap for the Trial Chamber.
9 Opening statements provide the second aspect
10 of that notice to the Trial Chamber, and the third and
11 most important component is of course the actual trial
12 itself, so that -- yes, Your Honour?
13 JUDGE MAY: I'm sorry to interrupt, but
14 there's a distinction there. You refer to the detail
15 which will be provided in the Pre-Trial brief. It is
16 of course not only the detail, some of which has been
17 referred to this morning; it's also the Prosecution
18 case. I believe in United States practice it's
19 referred to as the theory, sometimes; that's not a
20 particular concept I'm familiar with, but I think I
21 understand what's meant. We would rather say the
22 Prosecution case, how is it that the Prosecution
23 propose to prove in each case that the accused is
24 guilty of the particular offence? That is what the
25 Trial Chamber wants to know, and that's what the
1 accused are entitled to know. How is it said by the
2 Prosecution that they are guilty? That needs to be
3 said at the outset.
4 Of course, during the course of the case, as
5 the evidence is given, it may be necessary to change
6 positions, because the evidence may vary, and you can
7 never tell at the outset precisely what's going to be
8 proved and what isn't. But at least at the beginning,
9 the Court and the Defence should know how it is being
10 alleged, how it is being said, that the Prosecution are
11 going to prove the case against all the defendants.
12 MR. KEEGAN: Yes, Your Honour. We believe,
13 for example, in the present indictment, a distinction
14 between this indictment, for example, and the Krnojelac
15 case. In the decision, the Trial Chamber refers to the
16 fact that in the background section of that indictment,
17 there was information which was of relevance to the
18 issues being complained of, but that that information
19 was background only and didn't address, because it was
20 not part of the actual pleadings -- the charges, that
21 is -- did not address the concerns.
22 In this case, for example, we have
23 specifically stated that that background section is
24 incorporated and re-alleged for each of the particular
25 charges. That background section, we believe, provides
1 the underlying basis for the charges, and particularly
2 the Article 5 charges, but also substantiates the
3 underlying requirement for Article 3 as well.
4 That background section, when read in
5 conjunction with the paragraphs alleging the superior
6 authority liability, the basis for it, and then with
7 the particular crimes alleged, if read together, we
8 believe does provide exactly the theory of the
9 Prosecution case: That these accused, with respect to
10 the persecution count, all participated in an ongoing,
11 systematic, and widespread attack on the civilian
12 population within the Opstina Prijedor; that these
13 accused played a particular role with respect to giving
14 effect to that persecution in the conduct of the
15 camps. That's why, with respect to some of the
16 particular complaints made, there is no merit in the
17 complaint that the three accused charged under superior
18 responsibility have no relation to the Keraterm and
19 Trnopolje camps because, in fact, of course those other
20 camps formed a part of the overall campaign of
21 persecution, Omarska being one of the camps, but one of
22 the three which was being utilised. There was of
23 course a relationship between those three camps as
24 indicated in the proceedings and in the supporting
1 With respect to the fourth accused, Zigic,
2 his role in that persecution was slightly different in
3 that he was a tool of the leadership as opposed to part
4 of that leadership which the other three accused were.
5 The complaint about superior authority, that the
6 specificity of dates and times not being reflected in
7 the indictment we believe are not appropriate because
8 it is the entire period of the operation of the camp
9 that is the relevant time frame. In this case, it
10 amounts to less than 90 days as opposed to the 16
11 months or so alleged generally in the Krnojelac case.
12 So the objection there as to the time specificity we
13 think is addressed because we have a much more narrow
14 focus of time, and the particular places are alleged
15 because the conduct occurred in the camps.
16 To say that the accused Radic or Kos had no
17 authority when the accused Kvocka or the camp commander
18 Meakic were present is a legally untenable argument.
19 Their authority may be superseded by their superiors
20 but it does not derogate their authority to their
21 subordinates. They still have authority over their
22 subordinates whether the commander is in the camp or
23 not. To follow that line of argument would indicate
24 that only the commanding generals of armies could be
25 held responsible and not the field commander whose
1 troops are actually committing the crime. That, of
2 course, is an untenable position under international
3 law with respect to command responsibility.
4 So we believe that, again, under the context
5 of these crimes, when the entire document is read
6 together, those concerns are addressed because the
7 entire document is incorporated into each of the
8 particular charges.
9 In addition, the accused then have reference
10 to the supporting material, and in the supporting
11 material there is reference to particular crimes and
12 dates that aren't mentioned in the indictment itself,
13 although some of those crimes are mentioned because,
14 with respect to the allegations against the accused
15 Zigic, to the extent those crimes are committed in
16 Omarska, they're directly relevant to the three
17 accused. To the extent they were committed in
18 Trnopolje or Keraterm or even out in town, they are
19 still relevant to these accused to the extent that
20 those acts by the accused Zigic reflect part of the
21 operation of the persecution. So to the extent that
22 the other acts of Zigic which did not occur in Omarska
23 fall within the persecution, they are also relevant
24 then to these accused as evidence of the ongoing
1 I would like to address also, Your Honour,
2 the issue raised by Mr. Fila with respect to the crimes
3 against Witness F and that they don't rise to the level
4 required to reach this Tribunal, that is, serious
5 violations of international law. It would be perhaps
6 possible if an accused was able to sever each
7 particular act of which he is accused to make that same
8 argument. It is a rather untenable argument when any
9 one particular act is considered in the framework of a
10 course of criminal conduct, and that is the nature by
11 which those charges are brought. They are
12 representative of the course of conduct which was
13 ongoing, and the fact that that crime may be relevant
14 to establishing the crime of persecution which, of
15 course, falls squarely within a serious violation of
16 international humanitarian law, and, in and of itself,
17 amounts to a violation within the jurisdiction of this
18 Tribunal, it is entirely appropriate for that charge to
19 be brought before this Trial Chamber.
20 JUDGE MAY: Mr. Keegan, arising from what you
21 have said. You referred to Krnojelac. That also, as I
22 recollect, is a case involving a camp.
23 MR. KEEGAN: That's correct, Your Honour.
24 JUDGE MAY: You say the distinction between
25 that case and this one is that the events there were
1 spread over a much longer period. Sixteen months, I
2 think you said.
3 MR. KEEGAN: Yes, Your Honour. I believe the
4 allegation there was April '92 to August '93, and I
5 intended to make mention of particular aspects of that
6 decision which are similar to the complaints made by
7 the accused here with respect to specificity, and in
8 particular, I would note again that the Trial Chamber
9 itself in that case found that the background section
10 answered some of the issues but, because it had not
11 been incorporated into the charges, could not be
12 considered to address those issues with respect to the
13 charges. Here that's exactly the opposite case. You
14 will find in the indictment that they are specifically
15 re-alleged and incorporated. I believe it is paragraph
16 18. Yes, paragraph 18 re-alleges and incorporates into
17 each of the charges the background section.
18 With respect to the time frame, we believe
19 that there is a substantial distinction between
20 alleging a relevant time frame that amounts to somewhat
21 less than 90 days and one that amounts to 16 to 18
23 JUDGE MAY: The other matter I was going to
24 raise with you are some specific points which were made
25 by Defence counsel. In the case of Mr. Simic, he says
1 that there were contradictory dates alleged against
2 Mr. Kvocka when he was at the camp, and Mr. Fila raised
3 the question of whether you had the lists of shifts.
4 Now, that, of course, is a detail matter, but there may
5 be no harm in raising it now because, he says, that
6 would throw much light on these allegations.
7 MR. KEEGAN: Yes, Your Honour. As to the
8 first allegation, the distinction between the dates
9 used for Mr. Kvocka relate to the distinction between
10 the persecution count overall and particular crimes
11 because the evidence does, in fact, indicate, in the
12 main, that Mr. Kvocka left the camp sometime between
13 the 1st of July and mid July. There is, however,
14 information that he returned to the camp at the end,
15 and it is based on those contingencies of proof which
16 you alluded to earlier, Your Honour, that those
17 relevant time frames are pled.
18 Now, to the extent that obviously the
19 evidence at trial would indicate that he left in mid
20 July and never returned, then, of course, any acts
21 which came after that would not be relevant to the
22 issue of his criminal responsibility in terms of
23 finding him guilty or responsible for those crimes.
24 They could, theoretically, be relevant to issues of
25 intent, motive, whether it was widespread and
1 systematic, so there is still relevance to the acts
2 potentially against him even after the fact, but they
3 could not obviously be used with respect to his
4 particular findings of criminal responsibility.
5 So that is the basis for those dates as
6 alleged that way.
7 With respect to this issue of schedules,
8 clearly, Your Honour, those would be relevant evidence
9 if they exist and certainly if the Prosecution ever is
10 in possession of them. That's a separate matter,
11 however, from whether or not the accused has sufficient
12 notice for purposes of his case, and we believe that,
13 obviously, that kind of schedule is not necessary to
14 provide the notice required for an indictment.
15 JUDGE MAY: Mr. Keegan, I accept that
16 entirely. It is merely that the issue, having been
17 raised, I wanted to pursue it.
18 MR. KEEGAN: There was one other aspect, Your
19 Honour, I would raise, and that was the question, if I
20 may --
21 JUDGE MAY: Before you do, may I take it you
22 don't have those lists or schedules?
23 MR. KEEGAN: That's correct, Your Honour, we
24 do not have those schedules, as far as we're aware. As
25 we have made reference before, Your Honour, of course,
1 we are still continuing the review of the document
2 collections. We are limited by resources and we are
3 working as quickly as we can.
4 As far as we're aware, having gone through
5 virtually all the documents, they don't exist, and as I
6 understand, based on my information from the Defence,
7 they indicate those records would be specifically held
8 in the Omarska police station. Well, we have not been
9 to the Omarska police station, so we would certainly
10 not have the particular records they're referring to.
11 Now, to the extent they may have been in the Prijedor
12 police station, we may have documents, but not that we
13 are aware of.
14 The final point that I wanted to refer to was
15 the issue raised by Mr. Tosic about the -- I'm sorry,
16 it was actually made by Mr. Fila, raised with respect
17 to the issue of the identification of the specific
18 perpetrators and of the victims with respect to command
19 responsibility. I would note that the decision he
20 refers to, the Krnojelac case, indicates that the
21 categories, if particular names are not known, that the
22 categories of the perpetrators and the victims is
24 In that case, the problem was, it was unclear
25 whether, with respect to the allegations relating to
1 the superior authority of the accused in that case, the
2 perpetrators were actually guards under his control or
3 not. Here the pleadings do specifically indicate that
4 the crimes were committed either by guards or by
5 visitors to the camp who were allowed in to commit
6 crimes but were under the direct control of the various
8 Similarly with the victims, it's clear from
9 the pleadings that the victims are all Bosnian Muslims
10 or Bosnian Croats who were prisoners in the camp, or
11 the various camps in the case of Mr. Zigic. So we
12 believe that the specificity required by the Trial
13 Chamber in Krnojelac is met.
14 JUDGE MAY: Thank you, Mr. Keegan.
15 MR. KEEGAN: I'm sorry, Your Honour. The one
16 other issue raised was the severance issue. To the
17 extent that there are any questions, we believe,
18 obviously, our pleadings are sufficient. I would only
19 note that today in the pleadings there is no basis for
20 the severance indicated clearly. Here, counsel for
21 Mr. Zigic raised the issue of conflicting interests
22 under Rule 82 but doesn't provide a basis or elaborate
23 what the conflicting interests are except to say the
24 general assertion that Mr. Zigic isn't charged under
25 Article 7(3). Whether we believe that the Defence has
1 not raised any of the bases reflected under Article 82
2 and that the main issue here, of course, as it is in
3 any severance motion, is a question of prejudice, the
4 accused here failed to make a showing of prejudice to
5 the accused, there is no conflict of interest with
6 respect to the charges, rather the interests of
7 justice, both with respect to speedy trial for all
8 accused here as well as the interests of justice with
9 respect to the Prosecution evidence and particularly
10 the witnesses necessary to prove these crimes, would
11 indicate that a joint trial is the most appropriate
12 forum for these four accused.
13 JUDGE MAY: Thank you.
14 MR. KEEGAN: Thank you, Your Honour.
15 JUDGE MAY: Now I turn to the Defence. Would
16 anybody like to respond? In the same order then,
17 please. Yes?
18 MR. SIMIC: (Interpretation) Your Honours, I
19 would like to go back to the jurisdiction regarding
20 Common Article 3 and whether it has been incorporated
21 or not in the provisions. At one point, Mr. Keegan
22 said that the Defence had offered no new arguments
23 which would open the possibility of re-examination of
24 this decision.
25 I would like to point out -- perhaps I did
1 not read or follow well -- but in the
2 Secretary-General's report, in paragraphs 41, 42, 43,
3 the basis for Common Article 3 is introduced, and there
4 it is specifically stated that the legal basis for this
5 provision was The Hague Conventions, Conventions 3 and
6 4. At another point in this report, it is mentioned
7 that the Hague Conventions are not in contradiction
8 with the Geneva Conventions.
9 My understanding of it was that the
10 Secretary-General's position was justified by the fact
11 that there was no contradiction between these
12 provisions, but I think he drew a clear line that the
13 legal basis for the relation was to provide the basis
14 for the humanisation of the armed conflict itself, so
15 my thinking is that the drafting of this provision
16 would be focused on the armed conflict itself and that
17 this Article would only apply to those provisions. In
18 the Secretary-General's report, paragraphs 41, 42, 43
19 lead me to believe that we can construe this, so I
20 would like to have that point taken into consideration
21 when you reach your decision.
22 Now, something with respect to the defects in
23 the form of the indictment. Mr. Keegan avers that it
24 refers to all four of the accused and it was a
25 systematic persecution of non-Serbs in the Prijedor
1 municipality. We believe that we should take into
2 account the status of these accused. Mr. Kvocka is
3 just a regular police officer, before the war, during,
4 and after the war, even to date, that is, until he was
5 arrested, he was a policeman. Mr. Kos was a waiter.
6 He was mobilised during the war. Today we learn that
7 they were part of a system of planned persecution of
8 non-Serbs because, by applying the laws and rules of
9 the former Yugoslavia which were adopted by Bosnia and
10 Herzegovina in this terrible war, they became part of a
11 machine, became part of a system such as was set up in
12 Omarska, Keraterm, Trnopolje, and so on.
13 Again, in response to Mr. Keegan's arguments,
14 we say that the indictment does not provide the factual
15 basis which would place our clients into the context
16 which is alleged here, that they have consciously taken
17 part in the systematic military system of persecution.
18 There are documents which talk about the
19 setup of the investigating centre of Omarska. The
20 police station in Omarska was to provide security. I
21 don't know if somebody who is part of a security agency
22 and goes to work there, based on these provisions that
23 were set up, makes him part of the systematic
24 persecution. When talking about the command
25 responsibility or superior responsibility, it has to be
1 individualised because a superior person has to be
2 responsible or liable for specific persons. Mr. Kvocka
3 cannot be charged with anything and everything that
4 happened in the Prijedor area, he cannot be made
5 responsible for the Keraterm camp as well, the events
6 which took place there, and I come from that area. We
7 would be able to provide many more facts to provide a
8 more specific context for indictments.
9 Also, the way the indictment is framed
10 precludes the possibility of alibi because it charges
11 all of the accused being everywhere at all times. If
12 they had shifts even of 12 hours, I cannot see how you
13 can accuse them of being there for 24 hours at a time.
14 So the argument of the Prosecution, that they
15 were part of a premeditated system and plan, that they
16 were part of a plan which they have adopted and carried
17 out as their own systematically, has to be supported by
18 a much broader basis in fact. Thank you.
19 JUDGE MAY: Judge Robinson?
20 JUDGE ROBINSON: Mr. Simic, I would like to
21 ask you a question in relation to the reach of Article
22 3 of the Statute.
23 What the Prosecutor is saying is that the
24 very points that you have raised in relation to that
25 Article were specifically considered by the Appellate
1 Chamber in the Tadic case. There are three main
2 points: First, whether Common Article 3 is included in
3 Article 3, whether Common Article 3 is part of
4 customary international law, and whether Common Article
5 3 entails individual criminal responsibility. All
6 those points were explicitly considered by the
7 Appellate Chamber in the Tadic case.
8 You are now asking a Trial Chamber to
9 reconsider these points which were determined as a
10 matter of law by the Appellate Chamber. Is it not a
11 prescription for chaos if each Trial Chamber had the
12 option, had the right, to review decisions of the
13 Appellate Chamber on questions of law, and what would
14 be the point of the Statute establishing an Appellate
15 Chamber with specific power to correct mistakes of law
16 and mistakes of fact if, having issued its decisions,
17 those decisions are not binding on Appellate Chambers?
18 Would you like to comment on that, please?
19 MR. SIMIC: (Interpretation) Your Honours, the
20 arguments you raise are indeed convincing. However,
21 the Defence also views this Tribunal as something new.
22 We are all brought into the situation of implementing
23 certain rules that have just been adopted several years
24 ago, and I believe that both my colleague Mr. Fila and
25 I have provided arguments to the effect that this,
1 being a new decision, it still needs to be tested. We
2 were also looking at the Rwanda Tribunal. I have to
3 say that we are not fully convinced that the arguments
4 provided are fully convincing. We think that we are
5 still at a stage where we need to re-examine things and
6 readdress, and I don't think that it would lead to
7 judicial chaos. I think that there are enough
8 arguments which I find lead to the overturning of the
9 Tadic decision yet. We therefore believe that this
10 position needed further re-examination.
11 JUDGE ROBINSON: Yes, but if it is to be
12 overturned, then it has to be overturned by the
13 Appellate Chamber itself. It can't be overturned by
14 the Trial Chamber. Is that not so?
15 MR. SIMIC: (Interpretation) I accept that
16 argument too, and if our motion is not granted, we will
17 obviously turn to the Appellate Chamber in the future.
18 JUDGE MAY: Yes. Thank you.
19 MR. SIMIC: (Interpretation) Thank you, Your
21 JUDGE MAY: Mr. Nikolic?
22 MR. NIKOLIC: (Interpretation) In my motion, I
23 did not touch upon Article 3, so I will spare you
24 the chaos there, but I have additional arguments.
25 I believe that there is a certain chaos
1 emanating from the indictment referring charges
2 relating to Mr. Kos. I may have missed something due
3 to the interpretation, but I think that we really need
4 to specify the time frame of the crimes for which the
5 accused is charged as a perpetrator, and I raise the
6 very Tadic case as a basis for that. Now, this is one
8 The second point that I just heard for the
9 first time is that the accused Kos supported what
10 Mr. Zigic did in Keraterm and Trnopolje in the original
11 indictment. Again, I don't know whether this was
12 interpreted correctly to me, but this is what I heard.
13 In the original indictment, there is no Trnopolje and
14 Keraterm, but now the way the Prosecutor said we should
15 understand the indictment, I somehow construe that Kos
16 should also be liable for what happened in Keraterm or
17 Trnopolje, and in no point, nowhere in the indictment,
18 is the presence of Kos mentioned because he never was
19 there -- excuse me. Trnopolje and Keraterm; he was
20 never there.
21 As far as Mr. Zigic is concerned -- and this
22 is something that will be argued in the presentation of
23 evidence -- he never knew this man. Thank you.
24 JUDGE MAY: I think, Mr. Nikolic, and this
25 will be spelled out by the Prosecution -- it is not for
1 me to do their job at all -- but they say, presumably,
2 that the fact that a person wasn't at a particular
3 place or didn't know another particular person is
4 neither here nor there if they were part of a general
5 enterprise, a joint enterprise, which involved the
6 particular crime which is alleged. So they may well be
7 saying that it doesn't matter where a particular person
8 was at a time. If he was part in some way of the
9 persecution, then he is guilty. But no doubt that is a
10 matter which can be followed in due course.
11 MR. NIKOLIC: (Interpretation) Your Honour, if
12 we stipulate that Mr. Kos was in Omarska, we can do
13 that right away, but here he is also charged with some
14 specific things, and in this way, the alibi defence is
15 precluded because the indictment charges that there
16 were three shifts, and they are indicted as shift
17 commanders. One is here in The Hague and the others
18 are at large. Now, the alibi defence is precluded by
19 this. In the supporting material that the Prosecution
20 provided, I cannot believe that there is something in
21 the supporting materials -- the additional supporting
22 material that has now been provided to the Defence
23 where this is stated.
24 JUDGE MAY: Yes, Mr. Fila?
25 MR. FILA: (Interpretation) First of all, I
1 would like to refer to the question of Judge Robinson,
2 that is to say, whether there would be legal chaos if
3 the decisions of the Appeals Chamber were not abided
4 by. If the decision of a Trial Chamber is erroneous
5 and if new facts emerge which would lead to another
6 judgement of the Appeals Chamber had those circumstances
7 been known, then the whole case can be brought before
8 the court again, and we would seek that that be done.
9 I think that that is included in everybody's national
11 The problem is that the Rules do not provide
12 for an institution of that kind and, second, the fact
13 that Tadic, who was tried and is being tried, would be
14 interested in bringing the case back to trial and not
15 us. For example, in the Celebici case, the Defence,
16 once again, asked for the re-opening of the case by the
17 Appeals Chamber because there is no way that we can
18 indicate the elements which were not present or not in
19 evidence during the case and when the Trial Chamber
20 made its judgement.
21 Second, if I understood my learned colleague
22 Mr. Keegan properly, he said that the time will come
23 when he will precisely define the indictment, and that
24 leads me to conclude that he himself agrees that the
25 indictment is not sufficiently precise. The problem
1 that is raised now is when am I going to wait for that
2 time and what can I do after that time when the
3 Prosecution has decided that the right time has come
4 for him to define more precisely the time span?
5 So it is not up to the Court to keep people
6 with this lack of knowledge and that they should not
7 receive something had they had a clear idea of what
8 they were actually being accused of. So the Court
9 cannot resort to ruse but to justice and truth, and
10 that is where the specific features of the Prosecution
11 in this Tribunal, compared to national prosecutions,
13 I therefore consider that a fair trial would
14 be possible only if the accused knows in precise detail
15 what he is being accused of, what he is being charged
16 of, and when these acts were committed. So it is not a
17 problem when we say the name and surname of the
18 individual, if we say that it is Omarska and that
19 something happened there. In the same way, you can say
20 that the term "Muslim" represents equality which is
21 sought for in canulae. One Muslim, a particular Muslim
22 man; what does that mean? It is just a religious
23 denomination. It doesn't say when, doesn't say why.
24 It is not a category. That is what my learned friend
25 Mr. Keegan was talking about.
1 He does not refer to the situation with
2 regard to Witness F. I said that Witness F was twice
3 accused of the same thing, and you have this in writing
4 in point 17, I believe, and 27 -- Count 17 and Count
5 27. Mr. Keegan does not refer to that, and this was
6 raised twice in the two counts.
7 The third matter that I wanted to draw your
8 attention to was that in the general premises of the
9 indictment, Counts 19, 20, 21, and 22 -- for example,
10 when any of the accused are being mentioned, let us
11 take Milojica Kos, for example, or Mladjo Radic, and it
12 is stated that he was the leader of the shift, and that
13 when he was present in the camp, he was in a superior
14 position with regard to the other personnel in the
15 camp, which means that when he was present in the camp,
16 for the Prosecution and for us, it means something,
17 when he was present in the camp means something. And
18 argumentum a contrario. It states that when he was not
19 present, he was not responsible.
20 So how are we going to ascertain, if the
21 indictment is imprecise, when he was present and when
22 not? If the indictment refers to events that took
23 place in 1992 and was written in 1994, is it perhaps a
24 lack of seriousness that we have not found time in five
25 years in the entire Tadic case to go to the police
1 station in Omarska and get the documents from it? When
2 the protector of Bosnia and Herzegovina,
3 Mr. Westendorp, is able to replace presidents and
4 states and do what they like, can they not go to the
5 police station in Omarska, for the Prosecutor to get
6 that documentation so that we can ascertain when
7 Milojica Kos was there, when the accused were there,
8 when Mladjo Radic was there and what were they when
9 they were there.
10 So in each of these statements that we have
11 dating back to the Tadic trial, the victims say that it
12 was the policemen, the victims say that they were the
13 policemen of the police station in Omarska when these
14 three people are in question, that is, two of them, two
15 of the accused. Is it not a good idea to look at the
16 documents of the police station in Omarska? Were they
17 policemen? When were they on duty? What were they
18 doing while they were on duty? We can't wait for the
19 right time for Mr. Keegan to decide when he is going to
20 do that. Those documents exist. I have seen the list,
21 but I cannot get them because I am not the Prosecutor
22 nor am I Westendorp, and I am not even a citizen of
23 Bosnia and Herzegovina to boot. You have the power to
24 ask for those documents. You have them proprio moto,
25 if the Prosecution wishes to do so -- that is, does not
1 want to do so.
2 My request is that if the Prosecution does
3 not wish to do so, that it should be made to do so, so
4 that we can see who was in which shift and what
5 happened in a particular shift, and individuals must
6 have names and surnames and not just give a general
7 category and say "a Muslim," I don't know any category
8 like that. That is a religious denomination.
9 Thank you, Your Honours.
10 MR. TOSIC: (Interpretation) Your Honours,
11 with full respect for Mr. Keegan, I should like to
12 refer to what he said in connection to my defendant and
13 the positions in the indictment that it is not
14 essential, as regards the details, when concrete
15 actions took place, and I should like to stress in that
16 regard that in the entire indictment and case, the
17 Prosecution does not have facts as to when my defendant
18 was in the reserve formation of the police force and
19 when he was recruit, and also it is unacceptable what
20 Mr. Keegan said with regard to the operation of
21 persecution and that my defendant was sort of the
22 extended arm of the leadership. If we look at the
23 status of my defendant, my defendant was not a leader,
24 nor was he a member of any party, nor did he take part
25 in any civilian authorities, and the question can be
1 raised whether this kind of indictment can say that he
2 took part in a persecution.
3 As regards the stand that there is no grounds
4 for severance, I should like to stress that two-thirds
5 of the evidence and material that we are going to
6 present during the case will refer to command
7 responsibility, which has nothing to do with my
8 defendant, so that for that period and the evidence, my
9 defendant could not even be in the courtroom, outside
10 the courtroom, because all the witnesses with regard to
11 the other accused refer to command responsibility, so
12 that they have nothing to do with my own accused, and I
13 thought that because of a fair and expeditious trial,
14 there should be severance in this case.
15 Thank you so much from me. Thank you, Your
17 JUDGE MAY: Judge Bennouna.
18 JUDGE BENNOUNA: (Interpretation) I would like
19 to ask the Defence a question after the presentation
20 made by Mr. Fila and also the position stated by
21 Mr. Tosic on the question of precision. I am tempted
22 to ask what that means. If I understand correctly,
23 there is a question of dates. That is the first issue
24 that was raised: There is the question of dates. One
25 must also specify exactly what dates we are referring
1 to and when the dates with which the accused are
2 charged took place and also the presence of such and
3 such an accused in the camps.
4 I believe that the Prosecutor did not deny
5 the fact -- everybody is referring back to Krnojelac,
6 the decision that was rendered, in one way or another,
7 and what we know here of this decision is that they
8 stated that there was the possibility of having
9 additional precision on the part of the Prosecution.
10 We should also define what this mean. What does the
11 term "precision" mean? Once we have a better idea of
12 what "precision" means, we will be in a better position
13 to make a ruling on this matter.
14 The other issue is whether or not the accused
15 were present in the camp, as I stated, and the other
16 question which was asked, if I understood Mr. Fila
17 correctly, is whether the responsibility is based on
18 their presence in the camp. That is a question of law;
19 it is no longer a question of fact. One can be
20 responsible even if one is not present, of course.
21 The other question of fact -- I am trying now
22 to follow what you are requesting in what you stated --
23 that when there is command responsibility at issue,
24 then one must specify also what crimes were committed
25 by the subordinates, Article 7(3), that is to say, to
1 establish the link between the commander and his
2 subordinates, and it is specified quite clearly in our
3 Statute, I believe. It states that if the superior
4 knew, or had reason to know and also punish him if he
5 did not take necessary and reasonable measures to
6 prevent or to punish.
7 So these are the matters before us now. I
8 would like to hear from you whether or not there are
9 any questions of fact that you would like to ask and to
10 be as clear as possible with regards to the indictment
11 and also have the Prosecutor's position on specific
12 matters because it was stated that the Prosecutor, the
13 Office of the Prosecutor, in his pre-trial motion, he
14 states that he was prepared to set forth additional
15 precisions, and you stated that that was a question of
16 strategy. Why doesn't he present them now and not
17 later? Of course, there is no ruse here. It is simply
18 a matter of working with transparency, total
19 transparency, and for everyone to have as fair a trial
20 as possible. So if there are any precisions that may
21 be made available, then perhaps they will be given
22 without any further ado, further delay.
23 From what I have understood of your position,
24 can you state whether there are matters that could be
25 specified in relation to this indictment in reference
1 to what I have just stated, and, if so, can we then
2 turn to the Prosecution and see whether they have these
3 precisions in hand at this time, and, if so, can they
4 then respond immediately to your request?
5 MR. FILA: (Interpretation) Your Honours, for
6 you to be able to understand me clearly and briefly,
7 the basis of my criticism of the indictment is the
8 indictment itself, and I quoted the fact that the
9 accused were accused as shift commanders, which they
10 deny in their defence. But let us take it that they
11 were shift commanders.
12 According to Article 7(3), they are held
13 responsible only if them and their subordinates were in
14 the camp. That is what it says in the indictment,
15 "when he was present in the camp." So to define more
16 precisely the indictment is something the Defence
17 requires because I want to know the dates -- I
18 apologise. Let's begin again.
19 The camp lasted for less than 90 days. It is
20 not contested -- and Mr. Keegan knows this full well --
21 that they had shifts: one shift for 12 hours and then
22 it would not work for 24 hours, which means that each
23 of them, according to that rotation principle, 12, 48,
24 24, he was not there for at least 30 days of the 90
25 days that the camp existed, according to that
1 principle. Or 60 -- or he wasn't there 60 days. That
2 is to say, he was not there a third of the time. Quite
3 simply, he was not there for a third of the time. Yes,
4 sorry. One-third of the time he worked, two-thirds of
5 the time they were not there and didn't work, which
6 means that each of the accused of that rank will be
7 held responsible only for 30 days and not for the other
8 60 days, and that is the reason why I am asking that
9 via the police station we ascertain what days were in
10 point, and when the shifts worked, and what happened
11 while that shift was on duty, and if we ascertain that
12 Mladjo Radic was indeed the shift commander, then he
13 will be held responsible according to 7(1) of the
14 Statute for when he and his shift were on duty because
15 that is what he is being accused of, whereas I cannot
16 prepare a defence for the other 60 days because that is
17 not something that I would have to deal with, it is not
18 a matter of interest to me, and that is the precision
19 that I seek.
20 (Trial Chamber deliberates)
21 JUDGE MAY: Mr. Fila, you have raised this
22 question of the shift documents. We take the view that
23 this is purely a matter of evidence; it doesn't affect
24 the form of the indictment. We take your point that
25 these are crucial documents, if they are available, and
1 would be very important for a trial.
2 After this hearing, when we have heard all
3 the motions, we shall have a Status Conference, and it
4 may be possible then to pursue matters further with the
5 Prosecution as to the availability or the possibility
6 of obtaining those documents. That might be the
7 appropriate time to deal with these.
8 MR. FILA: (Interpretation) Thank you, Your
9 Honours. I would just like to give the other half of
10 my answer to the Judge.
11 JUDGE MAY: Yes.
12 MR. FILA: (Interpretation) One limitation we
13 spoke about were shifts. The second limitation, which
14 the Prosecution goes on to state in its description and
15 says that Mladjo Radic and Kos were in a superior
16 position with regard to the overall personnel in the
17 camp, and that's okay, but the problem arises after
18 that, "except for the commander and deputy commander
19 and most of the visitors."
20 If we ascertain when the shifts were, that is
21 to say, when they worked, and that is a question of
22 fact which I agree with, it is also a question of fact
23 when they were not in the camp and when, during their
24 shift, the commander -- when the commander, deputy
25 commanders, and most of the visitors were not in the
1 camp because if the commander, the deputy commander,
2 and most of the visitors were there, once again,
3 argumento tempere criminis, Meakic, the commander was
4 present, so we are not responsible. So we have to
5 know, once again, more precise details, when it
6 happened -- when all this did not happen, that is to
7 say, and then -- and I would like this to be my last
8 sentence -- what happened at that particular time?
9 Because we have ascertained theoretically the command
10 responsibility, 7(3) when Meakic wasn't there, when the
11 visitors weren't there and when the deputy commander
12 was not there, but it remains to be seen what happened
13 next, and that is the important part, because if I were
14 to have command responsibility, some crime must have
15 been committed, and that is not included here, and that
16 is another question that we have to settle.
17 Before I begin to collect my evidence to
18 ascertain whether the actual things happened then or
19 did not happen then, and that is why I protested when
20 the category was used, saying "a Muslim." That is not
21 a legal category, "a Muslim," it once happened that he
22 was beaten, killed, or whatever. When? When? And
23 then I can see who was responsible for that.
24 Thank you, Your Honours.
25 JUDGE MAY: It is time for the usual break.
1 We will sit again at ten past twelve.
2 --- Recess taken at 11.44 a.m.
3 --- On resuming at 12.10 p.m.
4 JUDGE MAY: We will consider the motions
5 which were discussed this morning, and we will give our
6 decisions in due course in writing.
7 I turn next to the remaining motions, which I
8 hope we can get through by the luncheon adjournment. I
9 would also like, if it's possible, to hold a Status
10 Conference after we've heard the motions, again this
11 morning, to review the current state of the trial.
12 The remaining motions which I have here are
13 first of all a Prosecutor's motion -- they're all
14 Prosecutor's motions. There's one for judicial notice
15 of adjudicated facts. There is another relating to the
16 admission of documentary evidence, and finally there is
17 a request for the admission of the evidence of an
18 expert. It may be that we can take these matters in
19 that order, beginning with the motion for judicial
20 notice, which we have, and the response from the
21 Defence, we have.
22 If I have understood it aright, the
23 Prosecutor is asking for some 583 items to be the
24 subject of judicial notice. Those all arise from the
25 Celebici and Tadic judgements.
1 As far as the Defence are concerned, the
2 Defence of Mr. Kvocka accepts none; that of the
3 remaining defendants would accept Items 1 to 125, and
4 I'm referring now to the annex to the Prosecutor's
5 motion which sets out these items, items 1 to 125,
6 relating to the context of the conflict, and the
7 background, except for 17 which are spelt out in the
8 Defence, so that we can understand the background.
9 Is that the position in relation to the
10 defendants? Mr. Simic.
11 MR. SIMIC: (Interpretation) Your Honours,
12 first of all, I would like to express dissatisfaction
13 because the materials which were the basis for this
14 motion have not been provided to me by the Prosecution,
15 but taking into consideration my desire that the Trial
16 Chamber proceed to the trial as soon as possible, I
17 have given my statement referring to the Rules of
19 However, I stated some facts could be
20 adjudicated which I find to be incontrovertible, and I
21 would now like to enumerate those, but again, let me
22 point out that I did not receive all the materials.
23 The Kvocka Defence agrees to accept 1 through
24 6, 8, 10 to 17, 21 to 70, 74, 78 to 87, 89, 96 to 113,
25 113 to 125.
1 So we join the positions of Mr. Fila and
2 Mr. Nikolic, who have also agreed to stipulating these
3 facts as adjudicated. We are also prepared to accept
4 them because they are just incontrovertible in
5 themselves, rather than that they are any product of
6 the trials. But we again would like to point out that
7 we need to receive the materials which the Prosecution
8 has used to base these adjudicated facts on.
9 JUDGE MAY: Mr. Simic, so that I have that,
10 you adopt the same position as the remaining Defence
11 counsel; is that right?
12 MR. SIMIC: (Interpretation) yes.
13 JUDGE MAY: Thank you.
14 That being the position, I turn to the
15 Prosecution. Mr. Niemann, if you would like to add
16 anything to what you said, as briefly as possible,
17 please; I think we've got the arguments.
18 MR. NIEMANN: Yes, Your Honours. It seems
19 that there is a considerable portion on which agreement
20 is being reached on. It really then becomes a matter
21 for the Chamber to decide whether or not you consider
22 that any of the other material should be judicially
23 noticed in accordance with Rule 94(B). I don't wish to
24 add anything further in terms of submissions; I just
25 wish to point out a couple of matters which have been
1 raised by the Defence.
2 Firstly, they have said that the materials
3 that we have referred to from the Tadic case are the
4 subject of an appeal; they are not in fact the subject
5 of an appeal for at least the vast majority of them.
6 There are perhaps the incidents to which the name of
7 Mr. Tadic has been referred to concerning his
8 particular crimes; that could be resolved, not the
9 incidents themselves, but his involvement in it has
10 been appealed.
11 If Your Honours had any concern at all about
12 taking judicial notice of matters which are under
13 appeal, that could be resolved simply by removing the
14 name "Mr. Tadic." The incidents themselves are not
15 contested. Mr. Tadic isn't contesting the incidents.
16 His contest relates to his participation and
17 involvement. So removing his name would achieve that
19 So in our submission, in any event, the Rule
20 is not designed to deal with a situation where its
21 operation is dependent upon whether or not an appeal is
22 being filed or not. In our submission, the Tadic
23 decision is a final decision. It clearly comes within
24 Rule 94, and Your Honours are in a position to take
25 judicial notice of those matters.
1 Now may not be the time when Your Honours
2 have reached the point where you should take judicial
3 notice of these matters. But in my submission, Your
4 Honours, the time will be reached when traversing all
5 of these matters in each case will become so onerous
6 and so unnecessary that the point will have been
7 reached when judicial notice of all these things should
8 be taken having regard to the expediency of the trial.
9 In my submission, the time is now. They're
10 extensively canvassed in the Tadic case. Clearly the
11 Trial Chamber regarded them as relevant and important,
12 because they included them in their judgement. Clearly,
13 in relation to all of those matters, there's no major
14 controversy which touches directly upon the accused
15 themselves, general events in relation to the vast
16 majority of them, which are pleaded and which are
17 required, in our submission, for the purposes of
18 establishing that the widespread and systematic nature
19 of the crime, motive, and other general matters, that
20 they could easily be taken judicial notice of and
22 But at the end of the day, it's a matter for
23 Your Honours. It's for you to decide what you want to
24 take judicial notice of, and we can only assist you, in
25 what way we can, in drawing your attention to matters
1 which we consider you can safely take judicial notice
3 Unless I can assist, Your Honour, that's my
4 submission on that particular motion.
5 JUDGE MAY: Thank you, Mr. Niemann.
6 Would anybody for the Defence like to say
7 anything? I see Mr. Fila, yes.
8 MR. FILA: (Interpretation) Your Honour, I
9 appreciate your efforts and also the efforts of my
10 colleague Niemann, and I appreciate his point that we
11 will in time reach that level. But there are two
12 issues arising from this. In Tadic, if on appeal the
13 judgement is either overturned or if the appeal of
14 Mr. Niemann is upheld, the Tadic decision will change.
15 Second, I don't understand the position. If
16 you say that this was an internal armed conflict,
17 because nobody questions that, what does Omarska have
18 to do with Kosovo, with Milosevic, with the events in
19 Vojvodina? This is the territory of another state,
20 events which took place after Omarska and which were in
21 another state. I, for instance, don't know why I would
22 in a similar way ask some facts about the history of
23 the state of Texas. But if we at some point come to
24 the point where we -- crimes which may have taken place
25 in the Kosovo indictment, we may then be able to use
1 some of the facts here.
2 But there are also other things that refer to
3 Mr. Radic, and that is according to 421 and 422. These
4 are not general facts which would point that Mladjo
5 Radic committed a rape. If this is an adjudicated
6 fact, then I don't know if there are any other -- what
7 are we doing here? So this is wrong.
8 In the case of Dokmanovic, we had worked with
9 the Prosecution to stipulate a number of matters, and
10 that is the only appropriate manner. But I cannot
11 agree to link Kosovo here and to adjudicate that Mladjo
12 Radic committed a crime. If that is what we agree on,
13 then what is it that we do not agree on?
14 So the position that we take is that we have
15 to only take into account the cases which have been
16 fully completed and on which we can base our
17 agreements. Thank you.
18 JUDGE MAY: Does anybody else want to say
20 The next motion that I have is the request by
21 the Prosecution for the admission of documentary
22 evidence. The Defence position, as I understand it, in
23 relation to these documents, is that there is a dispute
24 about a video, 41, "Victims of War, Time to Mourn," as
25 there's no transcript as yet available. But that
1 apart, I understand there to be no dispute about the
2 admission of these documents.
3 I would say the fact that a document is
4 admitted does not mean, of course, that the Trial
5 Chamber in any way attributes weight to it, if any.
6 It is merely part of the evidence, and when the Trial
7 Chamber comes to consider all the evidence, it will
8 have to determine what weight, if any, a particular
9 document is afforded.
10 At this stage, Pre-Trial admission merely
11 allows the Prosecution to produce the document. I
12 would also add this: That it would not preclude in any
13 way, in my judgement, anybody objecting to a particular
14 document if some matter arose which in their view made
15 the document inadmissible. I would not see it as
16 precluding any further debate as to admissibility but
17 merely admitting it at this stage.
18 If that represents the Defence position, then
19 the motion could be allowed, except in relation to this
20 video, which would obviously require rather more
21 attention, and that could be given in the next few
22 months before the trial.
23 Perhaps someone could tell me if that does
24 represent the Defence position.
25 MR. FILA: (Interpretation) Your Honours, that
1 precisely represents the Defence position. Let me
2 clarify videotape 411. First of all, because they are
3 victims that are speaking, and so their testimony would
4 become evidence, so to speak; second, the tape was
5 taped in the German language, and German is not a
6 language which we speak; neither is it the official
7 language of the Tribunal. So the Defence suggested
8 that, if the Prosecution insists on having this tape,
9 that a transcript be made or that it be translated into
10 English, and then we can see what it's about.
11 Therefore the position of the Defence is just as you
12 have explained it and interpreted it, Your Honour.
13 JUDGE MAY: Thank you, Mr. Fila.
14 Can we deal, then, with the tape. I can't
15 remember -- I've got 41, but it may be 411.
16 MR. NIEMANN: My understanding, it's 41, Your
18 JUDGE MAY: 41.
19 MR. NIEMANN: In relation to that, Your
20 Honours, yes, we take the point, and we will endeavour
21 to make a translation available for that, and we can
22 take that up as a separate matter. So it does resolve
23 all matters except one question, Your Honour, and that
24 is that in the motions, the Defence have said that
25 among the challenges they wish to reserve the right
1 to -- and we don't quarrel with this -- they wish to
2 reserve the right to authenticity.
3 Now, I think that what I say with
4 authenticity and relevance, I think relevance will be
5 dealt with anyway. The question of authenticity does
6 raise this issue: If we don't know about which
7 documents they are going to contest the authenticity
8 of, it is unlikely that we will call the evidence in
9 our case in chief, as such, because there is no point
10 in doing it merely on the basis of suspecting which
11 ones -- we won't know which documents they're going to
12 challenge, in terms of authenticity.
13 It seems to us that if they could tell us in
14 advance, we can then cater for that in our case in
15 chief by calling appropriate evidence to deal with
16 authenticity. Alternatively, so long as it's a matter
17 that everybody's in agreement with, we would be quite
18 as happy to deal with it by way of rebuttal, so that if
19 in the course of the trial, in the course of both the
20 Prosecution and the Defence case, it emerges that a
21 document or a number of documents are challenged on the
22 basis of authenticity, then we could deal with that in
23 the rebuttal case.
24 In my submission, that would be the most
25 efficient way, because it would, a) save the Defence
1 the burden of now having to determine which ones they
2 wish to challenge the authenticity of, because they may
3 in fact change their mind, in the course of the trial,
4 on this question. Secondly, it's possible that at the
5 end of the case, when it comes to the rebuttal case, we
6 ourselves may say, "Well, look, we're not going to
7 proceed with that," and for the sake of expediency not
8 proceed to establish the authenticity and therefore
9 withdraw it. We can do it that way.
10 It seems to me to be much more efficient to
11 allow the Prosecution, on everybody's understanding
12 that we will have the opportunity to address
13 authenticity at the rebuttal stage, and if everybody is
14 in agreement with that, then that would be the way that
15 I think it could be most efficiently disposed of. But
16 if Your Honour wishes to deal with it in our case in
17 chief, we are very happy to do that, but we need to
18 know which ones are going to be challenged on that
20 So that would necessitate an order from Your
21 Honours directing the Defence to inform us which ones
22 are challenged on the basis of authenticity. If we
23 proceed down the route of dealing with it in rebuttal,
24 no order would be necessary, because we can pick that
25 up in the course of the case, and we will know, by the
1 time we get to the rebuttal case, what ones are
2 challenged on authenticity and what aren't.
3 That's the only matter, Your Honour.
4 JUDGE MAY: Does the Defence want to comment
5 on that proposal?
6 MR. FILA: (Interpretation) The Defence quite
7 simply saw the documents that it received from the
8 Prosecution, and it seeks the right to deny the value
9 of the documents when they are presented as evidence.
10 They are presented as evidence; I cannot accept that
11 they are absolutely authentic, and I would like to take
12 advantage of the time to see whether they are
14 If I ascertain that they are authentic or
15 not, then I will do as has been suggested. But I have
16 no reason to doubt the good intentions of the
17 Prosecution, nor do I think that they have given us
18 documents which are not authentic. This is just in
19 case we feel, sometime along the line, that some
20 document is not authentic. If we don't do this in any
21 of the cases, then of course all the documents are
22 relevant and authentic, and that is what Mr. Niemann
23 has just said, I think.
24 JUDGE MAY: Mr. Simic?
25 MR. SIMIC: (Interpretation) Your Honours, I
1 accept Mr. Fila's stance, and I would like to underline
2 that we have understood that not all these documents
3 may be used. They are documents, they are parts of
4 press cuttings from the period of the indictment, and
5 the question is; when they will occur with regard to
6 individual facts? The Defence merely wish to state
7 that when a document of this kind appears, it will give
8 its opinions, and how far -- and its probative value
9 and authenticity, perhaps. But we're not going to make
10 the work of the Prosecution more difficult, because in
11 the time that we have before us, we shall be seeing
12 whether the documents are authentic or not, and we will
13 of course present our views.
14 So I don't see any contesting views there,
15 and I don't see that we will have to give our views on
16 every document. Every document will be assessed on its
17 own merits, and of course if we feel that one is not
18 authentic, we will say so. But I think that we
19 actually agree and don't want to prolong the process
20 any further. Thank you, Your Honours.
21 (Trial Chamber deliberates)
22 JUDGE MAY: Very well, as far as this motion
23 is concerned, we shall order that the documents be
24 admitted. If there is a dispute about authenticity, it
25 can be raised at trial, and the Prosecution will be in
1 the position of calling rebuttal evidence as they
2 suggest. That seems to us a sensible and neat way of
3 dealing with the matter.
4 The remaining motion concerns expert
5 evidence. The evidence in question is that of
6 Dr. Hanne Greve, who gave evidence in Kovacevic and
7 Tadic. The Defence position, as I understand it, is
8 this: That at the moment they object to the admission
9 of the evidence, largely because they want to
10 cross-examine the witness, and they haven't had that
11 possibility, or they wouldn't have that possibility if
12 she were not called.
13 Supposing this were the position -- and I
14 merely put it forward as a suggestion: That the
15 transcripts which the Prosecution refer to, together
16 with the exhibits, be admitted as evidence in chief of
17 the witness; so that means that the witness would not
18 have to go through it all again, having given it on
19 previous occasions at the behest of the Prosecution,
20 but that she be brought here for cross-examination so
21 that these accused may have the opportunity of
22 cross-examining her during the trial.
23 Is that a solution which seems practicable?
24 MR. FILA: (Interpretation) Yes, Your
25 Honours. That is the position of the Defence. We
2 JUDGE MAY: Does the Prosecution want to say
4 MR. NIEMANN: Briefly, Your Honour, yes. I
5 think perhaps what Your Honour has suggested is the
6 best solution to the matter, and I think we are very
7 content with that, with two possible issues that I
8 might raise. One, again, the question of authenticity
9 has been raised with relation to the documents that she
10 tenders. It may be that it's not quite the same issue,
11 because she can deal with authenticity to some extent
12 herself; but in relation to some of the documents, she
13 may not able to deal with them, so we merely ask that
14 we be extended the opportunity to deal with
15 authenticity in the rebuttal case should that become
16 necessary. It may not become necessary at all, because
17 we'll have a witness here dealing with the documents,
18 and it may not even raise itself.
19 The other point I wish to raise, Your Honour,
20 is that at this stage, I don't think there are any
21 other matters that we would wish to ask her in chief
22 which are separate and distinct from what she has
23 already testified to in both the case of Tadic and
24 Kovacevic, but it's possible we may want to raise fresh
25 matters which she hasn't touched upon. In that event,
1 Your Honours, we would just intimate at this stage that
2 we would like to make an application at the relevant
3 time should that become necessary.
4 Finally, Your Honours, I just remind Your
5 Honours of the recent decision in Aleksovski, where
6 this document in fact could be tendered as a hearsay
7 statement. I don't wish to pursue it any further than
8 just to remind Your Honours of that. Thank you, Your
10 JUDGE MAY: Aleksovski may not be appropriate
11 in this case.
12 MR. NIEMANN: It may not be, Your Honour.
13 JUDGE MAY: But if, therefore, the Prosecutor
14 could examine, with leave, that would presumably
15 satisfy your requirements.
16 MR. NIEMANN: Your Honours, it just occurred
17 to me, before I sit down, may we treat the transcripts
18 in both those cases as her statement, rather than
19 having the trouble of going to her and obtaining from
20 her a statement? I seek to do that. She has now been
21 appointed a judge of the European Court of Human
22 Rights, and she's very busy, and we don't wish to
23 trouble her with that if we can possibly avoid having
24 to obtain another statement.
25 (Trial Chamber deliberates)
1 JUDGE MAY: Very well. The transcripts and
2 exhibits of the witness will be admitted as evidence in
3 chief, but the witness must be available for
4 cross-examination, the Prosecution to have leave to
5 examine in chief, only with leave, the statements, the
6 transcripts, rather, of the evidence of the witness,
7 are to be treated as her statement. So there will be
8 no further statement from the witness, simply those
9 transcripts, which should clearly cover that particular
10 aspect of the case.
11 We will consider the motion, the application
12 in relation to judicial notice of adjudicated facts,
13 and we will give our decision on that in due course.
14 Now, unless there are any other matters to be
15 dealt with in open session, I propose that we go to
16 closed session for a Status Conference.
17 Are there any other matters which anybody
18 would like to raise in open Court?
19 Very well, we'll go into closed session.
20 --- Whereupon session proceeds into a
21 Status Conference, at 12.44.