Tribunal Criminal Tribunal for the Former Yugoslavia

Page 5958

1 Monday, 3 July 2006

2 [Judgement - Rule 98 bis]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 9.00 a.m.

6 JUDGE MOLOTO: Good morning, everybody.

7 At the last sitting of the Chamber, the Defence made an oral

8 motion requesting a postponement of the matter to the 15th of September.

9 The Trial Chamber indicated then that the application would be dealt with

10 in due course. We will deal with it now.

11 Before this last motion, the Defence had made a motion, again,

12 asking that the matter be postponed to enable the Defence to prepare

13 itself in this matter. Therefore, this application that was made or this

14 motion that was made orally at the last sitting was actually a repetition

15 of a prior motion. Now, for a motion to be brought again on the same

16 facts -- I beg your pardon. For the Chamber to be asked to reconsider its

17 decisions on a motion that came before, it is important for new facts to

18 be put on the table for the Chamber to consider. What Mr. Milovancevic

19 told the Chamber at the last time was that he was now acting in that

20 motion on the express instructions of Mr. Martic. The Chamber does not

21 regard that as a new fact. The Defence is at all times acting on the

22 instructions of Mr. Martic. So even the previous motion was made on his

23 instructions. Otherwise, it was out of court.

24 The Court wants just to remind the Defence that, in fact, previous

25 indulgences have been given to the Defence, and also to remind the Defence

Page 5959

1 that preparation in the view of the Chamber does not start at the close of

2 the Prosecution case, but it starts at the time the Defence receives

3 instructions from your client. So it cannot be said at this stage that

4 witnesses are now going to be sought and be interviewed to be able to meet

5 the Prosecution case. Indeed, the Defence has been cross-examining

6 witnesses of the Prosecution, it must be understood that this is based on

7 instructions from both their own client and their own witnesses. For

8 these reasons, the Chamber feels that and rules that the application for a

9 postponement be and is hereby dismissed.

10 What now remains is to give an oral decision on the 98 bis

11 submissions.

12 This will be read very slowly so as to enable the interpreters to

13 interpret.

14 1: The Trial Chamber today delivers its judgement on the Defence

15 oral submissions on the 26th of June 2006 for a judgement of acquittal.

16 The Defence moved for a full acquittal. The Prosecution responded the

17 same day and opposed the Defence submissions in their entirety.

18 2: Pursuant to Rule 98 bis of the Rules, the Trial Chamber shall

19 enter by oral decision and after having heard the parties' oral

20 submissions, a judgement of acquittal on any count if there is no evidence

21 capable of supporting a conviction. It is important to note that the rule

22 was amended in 2004 and now focuses on counts rather than as before

23 charges. The Defence did not make submissions on the standard to be

24 applied pursuant to Rule 98 bis. However, the Defence submitted

25 that, "The Prosecution has to prove Mr. Martic's guilt beyond a reasonable

Page 5960

1 doubt in this stage of the proceedings." Furthermore, on several

2 occasions, the Defence made allegations of crimes committed by other

3 parties to the conflict. The Defence also made extensive argument on the

4 credibility of Prosecution witnesses. In light of these submissions the

5 Trial Chamber finds it necessary to address the applicable standard

6 pursuant to Rule 98 bis.

7 3: The standard to be applied in respect of each count of the

8 indictment is whether the evidence, if believed, that is taken at its

9 highest, could lead a reasonable trier of fact to convict the accused on

10 the respective count. This standard does not imply an assessment of the

11 alleged guilt of Mr. Milan Martic in light of the evidence adduced during

12 the Prosecution's case. This judgement therefore does not entail

13 considering the credibility of the Prosecution's witnesses or weighing the

14 evidence. Significantly, the Trial Chamber's assessment does not involve

15 an evaluation of the strength or weakness of contradictory or different

16 evidence before the Trial Chamber.

17 4: The Defence's submissions in these respects are therefore

18 dismissed as falling outside the scope of Rule 98 bis.

19 5: The Trial Chamber in the Mrksic case recently rendered its

20 oral judgement pursuant to Rule 98 bis. That Trial Chamber held that the

21 rule in its new incarnation, "Does not also require evidence capable of

22 establishing each and every allegation or form of liability, that is

23 criminal responsibility pleaded in respect of a count to support a

24 conviction on a count."

25 The Mrksic Trial Chamber held that while there must be evidence

Page 5961

1 which meets the standard in respect of every element of the offence

2 alleged by the count, "This may be established even though the evidence is

3 not necessarily sufficient in respect of some other allegations or

4 particulars set out in the indictment in respect of that encounter or in

5 respect of one or some forms of criminal responsibility relied on by the

6 Prosecution."

7 This Trial Chamber is of the same opinion and furthermore agrees

8 with the Mrksic Trial Chamber that, "The Prosecution need only ultimately

9 succeed in proving one of the forms of criminal responsibility it relies

10 on for there to be a conviction on a count."

11 The Trial Chamber will therefore consider the submissions of the

12 parties on the basis of the above observations regarding the applicable

13 standard pursuant to Rule 98 bis. In doing so, it makes an evaluation of

14 all the evidence on the trial record.

15 6: The indictment against Mr. Milan Martic focuses on the period

16 from August 1991 until 31 December 1995 when he held various positions

17 within the SAO Krajina, later called the Republic of Serbian Krajina or

18 RSK. It is a matter of agreed facts between the parties that the SAO

19 Krajina was established on the 21st of December 1990. There is evidence

20 that throughout 1991, Territorial Defence, the TO, and the police of the

21 SAO Krajina, together with the Yugoslav national army, the JNA, engaged in

22 armed conflict with the Croatian Territorial Defence, the Croatian police

23 and the Croatian National Guard in the territory of the SAO Krajina,

24 including in places such as Pakrac, Plitvice, and Kijevo.

25 Approximately one year later, that is on the 19th of December, the

Page 5962

1 assembly of the SAO Krajina in Knin proclaimed the Republic of Serb

2 Krajina, the RSK. This is also an agreed fact.

3 There were numerous cease-fire agreements and agreements regarding

4 the withdrawal of the JNA from the -- from Croatia in 1991. The Vance

5 Plan, which was eventually signed by Slobodan Milosevic and Franjo Tudjman

6 provided for United Nations Protected Areas or UNPAs, demilitarisation of

7 the Krajina and maintaining the peace and security to allow for the return

8 of refugees of all ethnicities. However, the Vance Plan was not properly

9 implemented in the SAO Krajina and the cease-fire was regularly violated.

10 Mr. Milan Martic's positions as Minister of the Interior, minister

11 of the Defence and deputy commander of the Territorial Defence of the SAO

12 Krajina are established by the agreed facts and are not subject to

13 dispute.

14 Mr. Milan Martic held at least the positions of Minister of the

15 Interior, and deputy commander of Territorial Defence also during the

16 existence of the RSK. It is also an agreed fact that on the 25th of

17 January 1994, Milan Martic was elected president of the RSK. In respect

18 of the above, the Trial Chamber refers to the testimony of Veljko Dzakula,

19 Reynaud Theunens, Charles Kirudja and Peter Galbraith.

20 7: Mr. Milan Martic is charged with all modes of liability

21 pursuant to Article 7(1) of the statute in relation to each count in the

22 indictment, in particular with participating in a joint criminal

23 enterprise in its basic and extended forms.

24 Mr. Milan Martic is also charged with superior responsibility

25 pursuant to Article 7(3) of the Statute for each count in the indictment.

Page 5963

1 8: The common purpose of the joint criminal enterprise is alleged

2 as the forcible removal of a majority of the Croat, Muslim and other

3 non-Serb population from approximately one-third of the territory of

4 Croatia and large parts of Bosnia and Herzegovina, in order to make those

5 areas part of a new Serb-dominated state. It is alleged that this common

6 purpose was furthered by the commission of the crimes alleged in the 19

7 counts of the indictment, that is violations of the lawyers or customs of

8 war under Article 3 of the Statute and crimes against humanity under

9 Article 5 of the Statute. In the alternative, it is alleged that the

10 crimes pleaded in the indictment with the exception of the crimes of

11 deportation and forcible transfer were a natural and foreseeable

12 consequence of the execution of the joint criminal enterprise and that

13 Milan Martic was aware of these crimes.

14 This is the extended form of the joint criminal enterprise.

15 It is alleged that Mr. Milan Martic and numerous other persons

16 participated in the joint criminal enterprise by contributing

17 significantly to its common purpose.

18 9: The Defence has submitted that no evidence has been adduced to

19 show that there was an oral or a written plan of the joint criminal

20 enterprise. However, according to the consistent jurisprudence of the

21 Tribunal since the Tadic appeals judgement in 1999 the existence of a

22 common purpose need not have been previously arranged or formulated.

23 Accordingly, the Prosecution is not required to prove the existence of an

24 explicit agreement or a formal plan. Indeed, the common purpose may

25 materialise extemporaneously and may be inferred from the fact that a

Page 5964

1 plurality of persons act in unison to put into effect a joint criminal

2 enterprise.

3 Nevertheless, according to the Appeals Chamber in Krnojelac -- I'm

4 sorry, I can't pronounce his name properly, in Krnojelac this element has

5 to be identified as precisely as possible and when it is inferred from

6 circumstantial evidence, the inference must be the only available

7 inference available on that evidence.

8 As will be shown in the following, the Trial Chamber's view is

9 that the evidence properly satisfies this standard.

10 10: There is evidence that idea of creating a new state which

11 would include Serbs from all the former republics of Yugoslavia was

12 initially envisaged by Serb authorities in Belgrade, notably Slobodan

13 Milosevic and Borislav Jovic and was then endorsed in Croatia by the SAO

14 Krajina leadership including Milan Martic. The evidence shows that Milan

15 Martic told witness MM-079 during a visit to Knin in May 1991 that, "The

16 Serbs of Krajina wanted to live in one single country with all the other

17 Serbs from Yugoslavia, including Serbia, and that by no means would the

18 Serb people live under the Ustasha authorities in Croatia."

19 In this respect, the Chamber refers to the following evidence as

20 illustrative. Peter Galbraith at 3746 to 47; Witness MM-079 at 3069 to

21 71; and Charles Kirudja at 4838 to 39.

22 11: The evidence shows that Milan Martic in his positions in the

23 SAO Krajina and RSK closely cooperated with the Ministry of the Interior

24 and the Ministry of Defence in Belgrade. In relation to the alleged

25 responsibility under Article 7(3), there is evidence that Milan Martic had

Page 5965

1 effective control over the police and the TO of the SAO Krajina and the

2 SVK. Milan Martic throughout the period of the indictment was in close

3 contact with officers of the Ministry of the Interior in Belgrade, in

4 particular Franko Simatovic and Jovica Stanisic. Numerous meetings were

5 also held by Milan Martic with these officers, both in Belgrade and in

6 Knin. The Trial Chamber has received considerable evidence which shows

7 that the Ministry of Interior in Belgrade provided financial, logistical

8 and military assistance to the SAO Krajina and Milan Martic. A

9 particularly notable example is the training camp in Golubic, just north

10 of Knin, which was set up in 1991 by Milan Martic with the assistance of

11 Dragan Vasiljkovic and Frenki Simatovic. There is evidence that the

12 government of the SAO Krajina formed special police units under the

13 Ministry of the Interior, then under the control of Milan Martic. There

14 is considerable evidence that these special police units were

15 trained at the Golubic camp. There is also evidence to show that these

16 forces of the Ministry of the Interior participated in important

17 operations such as Operation Corridor for the purpose of taking control

18 of "territories under Croatian or the Bosnia and Herzegovinian units and

19 authorities and to establish a direct communication with Serbia by road."

20 Moreover, these units were also active in Bosanski Novi. The

21 existence of close cooperation between Milan Martic and the authorities in

22 Belgrade is further supported by evidence of reports containing

23 operational information on the situation in the SAO Krajina which were

24 regularly sent to the Ministry of the Interior in Belgrade. Some relevant

25 evidence in this respect is that of Reynaud Theunens at 703 and 797.

Page 5966

1 Witness MM-003 at 1982, 1982 to 95, 1987 to 89 -- I beg your pardon, 87 to

2 88, 2003, 2041, 2134, 2212 to 213; Marko Miljanic at 2959; Peter Galbraith

3 at 3756 to 57. Rade Raseta at 3921 to 22; Witness MM-078 at 4539 and

4 4547, Exhibits 38, 39, 469, 537, 698 and 707.

5 12: There is also evidence that Milan Martic and other Serb

6 leaders of the SAO Krajina and of the RSK worked in close cooperation with

7 leaders of the Autonomous Region of Krajina in Bosnia and Herzegovina, the

8 ARK. Hamdija Krupic testified that on the agendas of the meetings in the

9 ARK municipalities were the establishment of so-called Serb municipalities

10 which were to be joined up with the SAO Krajina in order to form a single

11 territory. Veljko Dzakula testified that what mattered to Milan Martic in

12 sessions of the RSK was "to work for recognition in joining the

13 association of Serb lands, Republika Srpska and Serbia."

14 The Chamber refers to Hamdija Krupic at 2943 and Veljko Dzakula at

15 404 to 405.

16 13: Inference as to the existence of a common purpose may also be

17 drawn from the cooperation of military units and civilian authorities in

18 conducting armed operations within the territory of the SAO Krajina and

19 the RSK. Milan Martic himself recognised on more than one occasion the

20 good cooperation and coordination between the army and the police. There

21 is evidence of a joint assignment for linking up all Serb lands into one

22 single territory and that coordination meetings were held with leaders of

23 military units and police units to be engaged in join combat operations.

24 Specifically, there is evidence that Milan Martic participated in two such

25 meetings with the 9th corps and that where he was not present, members of

Page 5967

1 the Ministry of the Interior would report back to him. Reference is made

2 here inter alia to witness MM-078 at 4412 and 4442 and Exhibit 518;

3 Witness MM-003 at 2022 to 23; Radoslav Maksic at 1165 to 69, and Exhibit

4 692.

5 14: There is evidence which allows for the reasonable inference

6 that Milan Martic shared intent with the principal perpetrators of the

7 crimes committed in furthering of the common purpose of the joint criminal

8 enterprise. The evidence supports the conclusion that Milan Martic backed

9 the displacement of the non-Serb population from the areas indicated in

10 the indictment. In relation to the Red Cross's planned return of

11 displaced victims of the Skabrnja attack, Milan Martic in a letter to the

12 UNPROFOR command in Zagreb dated the 28th of September 1992, stated

13 that, "We will be forced to prevent an arrival by force -- I beg your

14 pardon, on the territory of the Republic of Serbian Krajina."

15 Similar inferences can be drawn from evidence which shows that

16 Milan Martic talked of the takeover of villages such as Kijevo, Saborsko

17 and Skabrnja as a victory against the Croats. For instance, Milan Martic

18 stated that the mission in Skabrnja was, "To cleanse it from the Croat

19 population." And he describes Saborsko as, "Pure Serb land." Moreover,

20 Milan Martic is described as having, "Shared the goal of the army and the

21 police to join up the Serb lands and cleanse the Croat areas that were in

22 the way of Croat civilians and all Croats." The evidence indicates that

23 Milan Martic would often visit places where fighting occurred in order to

24 boost the people's morale. In relation to the attack on Skabrnja on the

25 18th of November 1991, Milan Martic stated that Goran Opacic, who was a

Page 5968

1 member of the Benkovac police and therefore part of the Ministry of

2 Interior under Martic had done the job well and had completed the mission.

3 Relevant evidence in this respect includes Dzakula at 404 to 405, Witness

4 MM-003 at 2024 to 25, 2026 [sic], 2190, and Witness MM-079 at 3112 to 113.

5 15: There is considerable evidence that persons of non-Serb

6 ethnicity in the territory of the SAO Krajina/RSK and in Bosanski

7 Novi/Bosanska Kostajnica were exposed to severe forms of terror, violence,

8 and discriminatory treatment during the indictment period.

9 The evidence indicates that the objective of inter alia the

10 special police units was to terrorise the local non-Serb population and

11 make them leave the territory. This reached such levels as to make their

12 further stay in these territories impossible. The record shows that as a

13 result of this coercion, a very large number of persons left their homes

14 and were bussed out in convoys, then organised manner by the relevant Serb

15 authorities in the territories of both the SAO Krajina and Bosanski

16 Novi/Bosanska Kostajnica. The Trial Chamber notes that there appears to

17 have been coordination between the authorities of the SAO Krajina, RSK,

18 and the ARK. While the resulting displacement may have been described as

19 voluntary in official documents of the Serb authorities, the evidence

20 allows the conclusion that the continued threat and intimidation was of

21 such a level and character that the non-Serb population did not have a

22 genuine choice to remain. There is evidence that Milan Martic knew of and

23 even encouraged through speeches in the media, the displacement of the

24 non-Serb population from the territory of the SAO Krajina. The Trial

25 Chamber notes the evidence of Witness MM-003, at 2190 to 91, John

Page 5969

1 McElligott at 4595 to 96, Charles Kirudja at INS, Witness MM-078 at 4461,

2 4468, 4518 to 19, 4521, 4588 to 89, and 4595 to 96, as well as the several

3 UNCIVPOL documents in evidence. The Trial Chamber finds that a reasonable

4 trier of fact could convict Milan Martic on counts 10 and 11.

5 16: There is evidence that beginning in 1991, attacks were

6 launched on numerous Croat villages within the territory of the SAO

7 Krajina. These attacks appear to have followed the same general pattern.

8 Police of the SAO Krajina and RSK directly participated in the attacks,

9 together with units of the JNA and the TO. The purpose of the attacks was

10 to remove the non-Serb population from the attacked areas. Civilians were

11 killed, detained, driven out or made to flee. There was general

12 destruction of dwellings and religious buildings in the areas which were

13 torched, shelled or otherwise destroyed. There is also evidence that

14 plunder and looting was carried out by the attacking forces. Evidence

15 relation to the attacks and killings, plunder and destruction of property

16 includes the evidence of Aernout van Lynden, Ana Bicanic, Ana Kesic, Ante

17 Marinovic, Anton Blazevic, Bosko Brkic, Jasna Denona, Josip Josipovic,

18 Jure Vukovic, Luka Brkic, Marica Vukovic, Marko Miljanic, Marko Vukovic,

19 Mijo Cipric, Neven Segaric, Tomislav Kozarcanin, Tomislav Segaric, Vlado

20 Vukovic, Witness MM-003, Witness MM-022, Witness MM-036, Witness MM-037,

21 Witness MM-038, Witness MM-078, Witness MM-083, Exhibit 507. The Trial

22 Chamber finds that a reasonable trier of fact could convict Milan Martic

23 on counts 2 to 4 and 12 to 14.

24 17: There is evidence that persons of non-Serb ethnicity were

25 detained in various detention facilities throughout the SAO Krajina and

Page 5970

1 RSK. This included the prison in Knin, the old hospital in Knin, also

2 known as Martic's prison, and that at the Tova-Korenica police station.

3 At these locations detainees were subjected to acts of physical and mental

4 violence which may properly be described as torture, cruel treatment, and

5 inhumane acts. The Trial Chamber refers in particular to the evidence of

6 Luka Brkic at 3226 to 27, 3266, 3268 to 73, 3279 to 85, 3439, and Mladen

7 Loncar at 5435, Witness MM-079 at 3099, 3102 to 03, Vlado Vukovic at 2524

8 to 25, 2670 to 71, Stanko Erstic in Exhibit 397, and Exhibit 392. And the

9 Trial Chamber finds that a reasonable trier of fact could convict Milan

10 Martic on counts 5 to 9.

11 18: In relation to counts 15 to 19, which alleges responsibility

12 for the shelling of Zagreb on the 2nd and 3rd of May 1995, there is

13 evidence that Milan Martic ordered the shelling on both dates using the

14 Orkan rocket launcher system. Evidence in this respect comes from

15 witnesses MM-003, at 2043 to 44 and Exhibits 97, 98, and 388. There is

16 also evidence that these shelling incidents resulted in a large number of

17 civilian fatalities and casualties. Evidence in this respect includes

18 Branko Lazarevic, Sanja Bintic at 5647 to 5674, Mina Zunac at 5819 to

19 5822, Vaseljka Gromoja at 5781, Ivan Mikulcic at 5598 to 5599, Sanja

20 Risovic at 5582 to 5584 and Exhibits 388, 799, and 802, and the Trial

21 Chamber finds that a reasonable trier of fact could convict Milan Martic

22 on counts 15 to 19.

23 19: Count 1 of the indictment charges Milan Martic with

24 individual criminal responsibility for persecutions under Article 5(A) of

25 the statute. As the Trial Chamber has found that a reasonable trier of

Page 5971

1 fact could convict Milan Martic on the other counts, the Trial Chamber

2 concludes that this is true also of count 1.

3 20: There is evidence to conclude that the joint criminal

4 enterprise on both its basic and extended forms have been proven for the

5 purposes of Rule 98 bis. The Trial Chamber therefore concludes that a

6 reasonable trier of fact could convict Milan Martic on all counts of the

7 indictment.

8 21: And just to sum up, there is therefore no basis on which the

9 Trial Chamber can enter a judgement of acquittal pursuant to Rule 98 bis.

10 I'm sorry, Judge Nosworthy has just brought to my attention that

11 at the end of paragraph 14, where I referred to Witness MM-003, at 2024 to

12 25 and then I also said 2026 instead of 2062, if that correction could be

13 made. Thank you very much.

14 I guess this brings us to the end of the business for the day,

15 unless there are any housekeeping matters. Yes, Mr. Milovancevic? Yes,

16 sir.

17 MR. MILOVANCEVIC: [Interpretation] The Defence would like to raise

18 an issue which has to do precisely with this ruling that we just heard

19 from the Trial Chamber pursuant to Rule 98 bis. It is the first time that

20 the Defence now has before it the position of the Trial Chamber in

21 relation to all counts of the indictment. This was this ruling made in

22 accordance with Rule 98 bis. This is something that should guide the

23 Defence in further proceedings. The Defence would like to point out that

24 in their oral ruling, the Trial Chamber referred to a number of witness

25 statements and their evidence. In the view of the Defence it is very

Page 5972

1 difficult to assess such evidence when we do not have a final position in

2 relation to the evidence of Milan Babic. The relevancy and veracity of

3 the evidence of these witnesses that the Trial Chamber referred to is

4 something that the Defence may not assess properly and accurately in a

5 situation where we do not know what is the status of Milan Babic's

6 evidence. However, despite of that, we are bound to comply with all the

7 rulings of the Trial Chamber, including their ruling on when the Defence

8 case is to begin.

9 In several instances we tried to draw the attention of the Trial

10 Chamber to the situation where we receive instructions from Mr. Martic,

11 the instructions that are binding for us. In order to avoid any

12 misunderstanding, the Defence would like to inform the Trial Chamber with

13 the written instructions we received from Mr. Martic. We had it

14 translated and we made sufficient copies for the Trial Chamber and the

15 Prosecution. We now find ourselves a situation where we have to plan our

16 work under the circumstances where we do not know exactly which

17 Prosecution evidence will stand, and this is what we are facing at the

18 beginning of the Defence case. The entire position of the Prosecution is

19 based on the evidence of witness Milan Babic. All counts of the

20 indictment including factual and legal issues are based on his evidence.

21 Even though the status of this evidence is still not finally resolved, the

22 Trial Chamber adopted this ruling. We find ourselves in a situation where

23 the legal position is not entirely clear as to which evidence will be

24 allowed to stand and which won't. We have to proceed working under those

25 circumstances.

Page 5973

1 Naturally, we have to comply with the ruling of the Trial Chamber.

2 However, this leads us into the conflict of interests of the accused. By

3 continuing working under such circumstances, or rather it would be

4 completely illogical for us to continue working under the circumstances

5 the Trial Chamber expects us to work; however, Mr. Martic expects us not

6 to embark on the Defence case until -- unless we are fully prepared. We

7 now have an entirely new legal and factual situation. The Trial Chamber

8 has assessed the Prosecution case and even though we know which counts

9 there are in the indictment, we do not know which evidence will be allowed

10 to stand.

11 Ones again, we ask the Trial Chamber to reconsider this situation

12 and to judge the circumstances in which the Defence finds itself and they

13 have been radically changed in relation to, say, yesterday. This is the

14 first time that we were given an inkling of what the Trial Chamber thinks

15 of the status of evidence so far. The Defence is expected to proceed with

16 work contrary to the instructions of our client. This is against the

17 interests of our client and I think that this situation can be resolved

18 only if the Defence team is to withdraw. However, I don't think that that

19 is an option or rather no Defence team can work against the interests of

20 clients and contrary to the client's instructions. Our client gave us

21 written instructions, we provided them to you, we believe that the reasons

22 stated therein are reasonable and logical and by going contrary to the

23 instructions of our client, we would be seriously harming his interests.

24 We apply to the Trial Chamber to assist us in this matter. We have

25 invested a lot of effort, this Defence team has been working for more than

Page 5974

1 three years on this case, since the trial began we've been here on a daily

2 basis for more than five months now and we believe that given the legal

3 and factual consequences, given how serious they are, we believe that our

4 appeal to the Trial Chamber is fully justified and we expect to encounter

5 some understanding in relation to our situation.

6 With your permission, I would now distribute the instructions we

7 received from Mr. Martic.

8 Would the usher please assist us so that we could give a copy to

9 the Trial Chamber and the Prosecution.

10 JUDGE NOSWORTHY: [Previous translation continues] ... might I

11 interrupt you before you proceed to delivery? I must confess,

12 Mr. Milovancevic, I consider the course that you're about to embark on

13 highly unorthodox and I have never, ever known it been adopted before. As

14 a general rule, the Bench ought not to be privy to instructions coming

15 from your client, because it's normally regarded as highly confidential

16 and subject to privilege passing between attorney and client. Granted,

17 there are circumstances where the accused may consent, but it is not usual

18 to pass the instructions of the accused to the OTP. This, I understand,

19 and know to be one of the hallowed rules of legal procedure and practice

20 and it touches and concerns your duty to your client. Might I inquire of

21 you if your client has been duly advised and counseled as to all the

22 several consequences of the course which you are about to embark on and

23 before that, I would like to hear from you what is the jurisprudence

24 before this Tribunal for the course which you are now going to embark on?

25 I would like to hear from you, Mr. Milovancevic, and after hearing from

Page 5975

1 you, I would also like to hear from learned counsel for the OTP. Please.

2 MR. MILOVANCEVIC: [Interpretation] Your Honours, the manner in

3 which the Defence communicates with a client in this case, against the

4 accused, Mr. Martic, is via direct oral communication. During these three

5 years, we have opted for such a way of communication whereby the Defence

6 would come to The Hague on a monthly basis before the trial began, visit

7 Mr. Martic for four to five days in the detention unit, and receive all

8 instructions from him orally.

9 This situation that you have described, Your Honour, is fully

10 accurate. However, we find ourselves in an impossible position because,

11 from our own client, officially, we received a motion which ties our hands

12 in our future work. Faced with a need to make the Trial Chamber

13 understand our position, we opted for this radical solution, which is such

14 that we received instructions mandating that we comply with them strictly

15 as formulated in writing. Naturally, if you believe that this is contrary

16 to the jurisprudence of this Tribunal, we will not insist on turning over

17 this motion to you. We simply wanted to inform, fully inform, the Trial

18 Chamber about the key problem faced by the Defence. We as a Defence team

19 are in a very delicate situation because we can see that what our client

20 is instructing us to do is minimal by nature and fully reasonable, fully

21 justified in relation to the time frame imposed by the Trial Chamber.

22 That's on the one hand. And then on the other hand, we are duty bound and

23 we have always done this, to comply with all the rulings of the Trial

24 Chamber, and so far we have complied with all of them.

25 We are doing what we can now. We do not want you to view us as

Page 5976

1 negligent and we also do not want you to think that we are drawing wrong

2 conclusions from the instructions of our client. The instruction that is

3 we received from him are not dealing with the substance of Defence case,

4 no. These are not instructions about what needs to be done, with which

5 piece of evidence. So in that sense we are not harming the interests of

6 the accused or his rights, nor are we disclosing the confidential portion

7 of our communication with him. No. These instructions are simply dealing

8 with the future schedule and deadlines that, in view of the accused, are

9 important, and these are instructions that he is giving to us. This is

10 what we propose to acquaint you with, Your Honours, by giving you this

11 motion. We were only guided by our desire to make you see the position of

12 the Defence in this situation.

13 JUDGE NOSWORTHY: Mr. Milovancevic, is it a motion or is it

14 instructions? Because I've heard you use both words.

15 MR. MILOVANCEVIC: [Interpretation] Your Honours, I just looked at

16 the text again. Mr. Martic uses the following words. He says that our

17 client, he is giving instructions to us and he says that he is issuing a

18 written order to us. I used the term instruction in the broader sense but

19 these are -- yes, his instructions for the Defence.

20 I failed to mention another matter, Your Honours, namely that

21 Mr. Martic asked us to keep him informed about this and to have a fully --

22 to have fully open channels of communication in relation to this.

23 Mr. Martic insisted on this. He insisted on us putting this forward. We

24 have in no way violated the attorney-client privilege by doing so. We

25 simply believe it to be important for the Trial Chamber and for the

Page 5977

1 continuation of these proceedings to ensure that the Trial Chamber fully

2 understands the position in which the Defence finds itself.

3 JUDGE MOLOTO: Judge Nosworthy wanted to hear the Prosecution on

4 this point.

5 MR. WHITING: I'm extremely grateful to the Bench for raising this

6 issue. Our position is I think as follows: It's certainly unorthodox,

7 though in principle there is nothing barring the Defence counsel and the

8 accused from assenting to disclosing this material to the Trial Chamber or

9 to the OTP. The wisdom is another matter. But I think that it would be

10 important that before that occurs, that -- and maybe Defence counsel has

11 already stated it but I missed it, but that it's stated clearly on the

12 record by Defence counsel that the accused assents to this material -

13 whatever it is; it's been described as instructions - that it -- that the

14 accused assents to it being disclosed to the Prosecution and to the Trial

15 Chamber. And that once it's disclosed it can be used in whatever manner

16 anybody deems fit. I don't -- I take counsel at his word that it's merely

17 about scheduling but if there is other material in there that becomes

18 relevant in some way, then it becomes relevant. It's disclosed and I

19 think the accused should be warned about that. And perhaps as an

20 additional precaution -- obviously the accused is here in court but as an

21 additional precaution perhaps the Trial Chamber could briefly inquire of

22 the accused himself if that is correct, if he could just affirm that

23 that -- that he has consented.

24 I would say, if I may, while I'm on my feet just briefly, I'm not

25 really sure how having these instructions handed up to the Trial Chamber

Page 5978

1 or to the OTP advances the ball in any way. There is nothing magical

2 about these instructions. The accused cannot simply by writing it down on

3 a piece of paper instruct or ordering his Defence counsel, upend the

4 schedule that the Trial Chamber has set down again and again, and it

5 doesn't -- he can't simply stop the trial because he has ordered it. And

6 so I don't really see how it's going to advance the ball at all to have

7 this handed around.

8 I would also just, if I may very briefly, say I take issue with

9 Defence counsel's characterisation that the Trial Chamber has somehow

10 given its view of the evidence at this stage and suddenly there has been

11 this radical change. I don't see Rule 98 bis as being that at all. I

12 don't think the Trial Chamber has given its view of the evidence. It's

13 merely given its view of the 98 bis standard. There is a lot of weighing

14 and determining and judging that has yet to be done and has not occurred.

15 I don't think that the decision that the Trial Chamber provided today is

16 its view of the evidence at all. I think we are operating really very

17 much from a clean slate. We have put forward the case for the Prosecution

18 and the evidence and now it's -- and I don't think that anything has been

19 prejudged or the Trial Chamber has not reached any decisions or

20 conclusions about the evidence whatsoever. So nothing really has changed

21 today. And then, and in particular the Defence counsel keeps going back

22 to Babic but I noted that and I may be -- I'll be corrected if I'm wrong

23 but I don't think the Trial Chamber even relied on -- cited Mr. Babic once

24 in its decision on 98 bis so I don't think there, there is anything -- has

25 changed.

Page 5979

1 And if I may, I think that the accused really has two options here

2 now, that the Trial Chamber has ruled, and has set down the schedule. The

3 accused can either start its defence or if it has no defence to put forth

4 before the Trial Chamber, then it rests and we proceed to final argument

5 and judgement. There really is not a third option in our submission, that

6 we -- that the accused simply by repeatedly saying "we should stop, we

7 should stop," that that becomes a third option. And I think really I

8 think from our view, our point of view, the Defence is beginning to risk a

9 contempt or sanctions from the Court for repeatedly raising this, and I

10 would cite both Rule 77, which is the contempt rule, and also Rule 73(D),

11 which is the rule about frivolous motions. Thank you.

12 [Trial Chamber confers]

13 JUDGE MOLOTO: Mr. Milovancevic, let me start off by saying to you

14 what you have raised now -- no, you may sit down. You may sit down,

15 Mr. Milovancevic. I'm speaking. What you have raised now, this Chamber

16 has decided before. What you have raised now, this Chamber has just

17 decided this morning again before we started today's proceedings. You are

18 raising one and the same issue time and time and over again, and that you

19 raise it in different language each time does not make it substantially a

20 different matter. It still is the same point. And I think it is

21 important for the Defence to remember that if you do want the Chamber to

22 reconsider its decision, you've got to bring in new facts to consider.

23 Otherwise, if you don't bring in new facts, you are saying it was crazy to

24 give the order it gave when it did give that order. And if you don't have

25 new facts, then go and appeal. There are procedures here open to parties.

Page 5980

1 And I just want to warn against your repeated going back to this point

2 that we must postpone this matter. It does verge on an abuse of process

3 and it does verge on contempt, and I just want to say also to you that it

4 is true what the Prosecution says, that the 98 bis decision did not once

5 refer to the evidence of Babic.

6 Now, as to what the evidence of Babic -- what the status of the

7 evidence of Babic is, that's a matter for the Appeals Chamber to decide.

8 You have taken that matter on appeal. The appeal court will decide that

9 point. That does not mean that there is no other evidence on the record

10 that the Defence must contend with and we can proceed with the case, we

11 can deal with the case as it stands. Obviously, if the appeal is decided

12 in favour of the Defence, then the Defence has not been prejudiced. In

13 fact, the Defence has been relieved of a further duty to deal with but to

14 deal with the case as it stands now. And let me say to you that it may

15 very well be in your own interests or in the interests of your client to

16 advise him to appreciate that this Court, like any other court, operates

17 on rules and procedures and that when orders are made, they are made and

18 to be respected, and for him to say, "and I order you to do A or B," he

19 mustn't think that that intimidates the Court. He does not. Instead, he

20 is himself verging on contempt and I want you to tell him that.

21 So he either wishes to carry on with the case as ordered, or he

22 rests his case.

23 We are not going -- this Chamber is not going to be held to ran

24 some by an accused. We have given plentiful indulgences right through the

25 trial where we thought they were called for. I do not think, and this

Page 5981

1 Chamber does not think so, that at this point there is any merit in the

2 application for a postponement of this matter. There is nothing to stop

3 the appeal going on parallel with the trial going on. You will hear in

4 due course, I suppose the appeal is going to be heard as soon as possible,

5 and the trial must go on. Let me just say that I hope this is the last

6 time this Chamber is seized of this application specifically to postpone

7 before the opening of the Defence case. Just before I stop, let me see

8 what my learned Judge wants to tell me.

9 [Trial Chamber confers]

10 JUDGE MOLOTO: My sister on the right just reminds me to tell you

11 something that I thought was obvious and I wasn't going to tell you, that

12 you obviously are expected to prepare your case at the highest point. In

13 other words, in anticipation of Mr. Babic's evidence being included. This

14 is -- actually this is the flip side of what I mentioned, that if it

15 doesn't -- if it does get excluded, then of course the Defence will be

16 relieved but that's the case that you had always known you were supposed

17 to meet from day one, so with those words, I just want to say that I hope

18 this is the last time we have heard of this application for this

19 postponement before the opening of the Defence case and the matter is

20 accordingly adjourned -- I've got to find out to when -- to Friday, the

21 7th, for a Pre-Defence Conference, but the trial to start on the 11th, at

22 9.00, of July.

23 Court adjourned.

24 --- Whereupon the hearing adjourned at 10.08 a.m.,

25 to be reconvened on Friday, the 7th of July, 2006,

Page 5982

1 at 9.00 a.m.