1. 1 Friday, 27th February 1998

    2 (2.30 pm)

    3 THE REGISTRAR: The case number IT-97-24-PT.

    4 Kovacevic.

    5 MR KEEGAN: For the Prosecution, I am Michael

    6 Keegan, assisted by Ms Sutherland.

    7 JUDGE MAY: Tell us again with the microphone

    8 on so it is recorded.

    9 MR VUCICEVIC: Dusan Vucicevic, on behalf of

    10 the defendant, today with Defence is appearing

    11 Professor Anthony D'Amato of Chicago.

    12 JUDGE MAY: Can the accused hear in a

    13 language that he understands?

    14 MR KOVACEVIC: Yes.

    15 JUDGE MAY: There are two motions which the

    16 Chamber has before it today. The first is the

    17 Prosecution motion to amend.

    18 There is some problem with the mechanics.

    19 (Pause).

    20 The position, as I understand it, is that the

    21 simultaneous transcription is, of course, being made

    22 but it is not showing on the screens and it does not

    23 seem to me necessary that it should, so we will

    24 proceed.

    25 I was saying that there were the two motions:

  2. 1 one from each party. It would seem sensible to start

    2 with the motion to amend. We will consider the other

    3 motion in due course.

    4 Mr Keegan, that is your motion.

    5 MR KEEGAN: Yes, thank you, your Honour. The

    6 Prosecutor, as indicated in her submission of 28th

    7 January, respectfully requests leave to amend the

    8 indictment in the subject case, for the purposes of

    9 adding counts 2 through 15 to the indictment.

    10 I assume, having not actually heard anything

    11 but getting the official copy, that our request to file

    12 the reply was accepted.

    13 JUDGE MAY: Yes, we will, for the purposes of

    14 this argument, we will certainly accept that.

    15 MR KEEGAN: Thank you, your Honour. In which

    16 case I will endeavour not to repeat anything in the

    17 reply in my submissions today.

    18 MR D'AMATO: I have not received a copy of

    19 that.

    20 JUDGE MAY: Have you not received a copy

    21 Mr D'Amato?

    22 MR D'AMATO: No.

    23 JUDGE MAY: Can you use the microphone,

    24 please, and tell us the position?

    25 MR D'AMATO: We have not received a copy of

  3. 1 the reply.

    2 JUDGE MAY: You must have a copy. We will

    3 hear what the Prosecutor has to say. Then, if you want

    4 an opportunity to study the document, of course, you

    5 shall have it.

    6 MR D'AMATO: Your Honour, may I have it now?

    7 JUDGE MAY: Yes. Do we have a copy?

    8 MR KEEGAN: Yes, your Honour. I presume it

    9 is in the mail box for the Defence downstairs.

    10 JUDGE MAY: Mr Keegan, I understand that one

    11 of my colleagues does not have it either, but it has

    12 been handed in. Do we have a copy?

    13 In those circumstances, Mr Keegan, it may be

    14 just as well if you would refer to that document and go

    15 through it, briefly indicating your argument on it.

    16 MR KEEGAN: Yes, your Honour.

    17 The nature of the reply, your Honour, was of

    18 course a reply to the Defence response to the

    19 Prosecutor's request for leave to amend. In substance,

    20 the position of the Prosecutor is, first, that the

    21 Article 9(2) of the International Covenant on Civil and

    22 Political Rights is inapposite here. That provision of

    23 the Covenant is focused on insuring the right to

    24 personal liberty; that is, the province of unlawful

    25 arrest and detention.

  4. 1 The notice requirement under Article 9(2) is

    2 focused solely on that issue. In this case, this

    3 accused was lawfully arrested, pursuant to an arrest

    4 warrant issued as a result of a confirmed indictment.

    5 Upon his arrest, he was notified of the reasons for his

    6 arrest and given a copy of the indictment in his own

    7 language. Subsequent to that time, as this Chamber

    8 well knows, he has certainly exercised his right to

    9 challenge the lawfulness of his pre-trial detention.

    10 The notification to the accused and the

    11 service of the indictment upon him at the time of

    12 arrest, satisfied the requirements of Article 9(2) and

    13 that ends the application of that particular

    14 provision.

    15 The Defence attempt to transpose that notice

    16 requirement in Article 9 into some larger limitation on

    17 the right of the Prosecution, or even conceivably the

    18 court, to amend an indictment at a later date is

    19 misguided and incorrect.

    20 The right to amend indictments is recognised

    21 by every jurisdiction. In each matter, the question of

    22 the amendment is generally judged against one

    23 particular criterion and that is, as mentioned in our

    24 reply, whether there would be substantial prejudice to

    25 the right of an accused to a fair trial or, as it might

  5. 1 be phrased in the United Kingdom, whether there would

    2 be injustice to the accused as a result of the

    3 amendment.

    4 In our circumstances, given the provisions of

    5 Rule 50, which, as a result of an amendment, would

    6 restart the pre-trial clock, the 60-day clock, if you

    7 will, and the rights of the accused pursuant to Rule

    8 72, to challenge both the indictment both as to its

    9 form and substance through pre-trial motions,

    10 sufficiently to protect the rights of the accused in

    11 this matter. The right of the accused to prepare and

    12 present to defence similarly would not be substantially

    13 impaired by this amendment.

    14 The additional charges arise out of the same

    15 basic circumstances and facts as the original

    16 indictment and there would be ample time, if necessary,

    17 for the Defence to conduct its investigation.

    18 The obligation of the Prosecution in this

    19 matter is not simply to lay any charge against an

    20 accused but the most appropriate charges which he

    21 believes best reflects the conduct of the accused.

    22 In this matter, both the international

    23 community and the accused have the right to a fair

    24 trial. The question of a trial without undue delay or

    25 speedy trial as the Defence refers to it is also

  6. 1 a basic right in every system. Undue delay is relative

    2 to the processes of each system and the circumstances

    3 of each particular case.

    4 It is a fact that history will not judge us

    5 by how quickly we conducted our cases here but how just

    6 our system and our judgements are.

    7 JUDGE MAY: Mr Keegan, I think you must

    8 address the question of delay in this case. The

    9 history is this: this accused was arrested in July of

    10 last year, the indictment having been reviewed and

    11 confirmed as long ago as March last year.

    12 The position is this: a year, or nearly

    13 a year, after the indictment was reviewed and

    14 confirmed, and some six to seven months after the

    15 arrest of the defendant, you now seek to amend the

    16 indictment. This amendment is not the addition of

    17 a count or something of that sort; it involves what is,

    18 in effect, the substitution of a new indictment.

    19 Now, the question of delay is clearly

    20 important. There is an obligation, of course, for

    21 a trial to be fair, but there is also an obligation for

    22 it to be expeditious. With this sort of delay, how can

    23 the Prosecution justify an amendment at this late

    24 stage?

    25 I say "you"; of course, the criticism is not

  7. 1 directed at you personally, Mr Keegan, but, at the

    2 Prosecution generally. How is it you could justify

    3 such a delay in a case of this sort?

    4 MR KEEGAN: Yes, sir. I think, as

    5 I indicated earlier, that in each case the question of

    6 undue delay must be looked at in terms of the processes

    7 of the particular system itself, as well as the

    8 circumstances of each case.

    9 In this case there are, in fact, a number of

    10 circumstances which have impacted on the decision of

    11 when to submit an amendment.

    12 As is clear from the amendment we indicated

    13 at the earliest stage of our intention to amend the

    14 indictment. In fact we notified counsel at our first

    15 meeting of that intent and the basic nature of the

    16 articles and the concept we would include in an

    17 amendment for the purposes of providing notice.

    18 Of course, in the early days of this case, we

    19 had a change of Trial Chambers which negated the delay

    20 of motions which were already existing which were

    21 transposed to this Chamber.

    22 We had a question of whether the accused was

    23 going to submit to an interrogation, which he

    24 ultimately chose not to do, which is his right, but

    25 that would also affect the question of when to bring

  8. 1 forth an amendment.

    2 Then there was the issue of the accused's

    3 request for release from pre-trial detention based on

    4 the allegations of his serious medical condition. This

    5 office already had, in fact, experience in the case of

    6 General Dzukic, with an accused who did arrive who did,

    7 in fact, end up being terminally ill and was released

    8 as a result of that. In that case also there was a

    9 pending amendment, but it was prudent to wait until the

    10 decision on provisional release based on health was

    11 issued and we, in fact, made that statement to this

    12 Chamber and to the Defence as early as the beginning of

    13 October, if I recall correctly, that we preferred to

    14 wait until after the issue of provisional release was

    15 determined. Because in our view, if the accused was

    16 released based on the seriousness of his medical

    17 condition it would directly impact on whether or not

    18 there was any purpose in an amendment.

    19 There are a number of factors which weigh in

    20 the decision; whether this Trial Chamber accepts all of

    21 those or any of those as relevant criteria, of course,

    22 is your decision.

    23 The point is, as I indicated, the crux of the

    24 determination at this point, we believe, whether or not

    25 the grant of the amendment would have substantial

  9. 1 prejudice or result in injustice to this accused with

    2 regard to his right to a fair trial.

    3 We submit it would not, because of the fact

    4 that we are still in the pre-trial stage and the

    5 protections that Rule 50 gives by virtue of restarting

    6 the clock to the accused and his right to challenge

    7 this indictment, because there are two separate stages

    8 here: one is the question of the confirmation of the

    9 proposed indictment; the second would be whether any or

    10 all of that indictment survives challenges by the

    11 accused, if they so bring them by virtue of Rule 72, or

    12 what other motions they may bring with respect to

    13 jurisdiction and other issues.

    14 There are many issues still to be resolved

    15 here that may affect the ultimate trial. The question

    16 here is whether this accused would still have -- be

    17 able to achieve a fair trial under our processes with

    18 the grant of the amendment.

    19 JUDGE MAY: You, no doubt, say that any

    20 unfairness to the accused could be cured by an

    21 adjournment of the trial sufficient so that his Defence

    22 could be prepared.

    23 There are two points about that: the first is

    24 that the adjournment, given the size of the amendment

    25 which you are asking for, would have to be for

  10. 1 a considerable time. Mr D'Amato in his brief speaks of

    2 seven months. That does not seem unreasonable, given

    3 the size of the case.

    4 That means that we would be looking at

    5 a trial, if the amendment were to be granted, in

    6 October, the accused having been arrested last July.

    7 Now, that cannot be expeditious. Therefore, there is

    8 a distinction between producing a trial that would be

    9 fair to both sides and one that is expeditious.

    10 The second point, one that Mr D'Amato makes

    11 in his brief, is because there has been such a delay in

    12 producing these amendments, the Defence have not had

    13 the opportunity which they would otherwise have had of

    14 gathering evidence and preparing for an amended

    15 indictment which contains all these new counts.

    16 Now, that is a potential unfairness, is it

    17 not, and one that cannot be cured.

    18 MR KEEGAN: If those were, in fact, the

    19 circumstances, your Honour, yes, that would result in

    20 injustice to the accused. But for the same reason

    21 which the Trial Chamber may challenge the Prosecution's

    22 assertions as to length of delay, resources needed or

    23 any other aspect of its preparation of a case, relative

    24 to the right of the accused to an expeditious trial, we

    25 believe the Trial Chamber can challenge the Defence to

  11. 1 substantiate its assertions.

    2 There is a question whether or not another

    3 seven months is necessary. All the additional charges

    4 flow from the basic facts and circumstances as to

    5 genocide. The nature of proof involved in a genocide

    6 count will flow over into all of these charges. If you

    7 look at the nature of the indictment, the background

    8 facts and the preparatory facts for each of the

    9 charges, all relate back to the same basic

    10 circumstances which occurred in Prijedor.

    11 This Defence team has been to Prijedor on

    12 a number of occasions already, conducting defences, as

    13 they indicated in their communications with this

    14 Chamber and with the Prosecution.

    15 Certainly, they now understand the nature of

    16 the witnesses who were prepared to testify both as to

    17 the accused's actions, his character and all the other

    18 related factors which would are been necessary for

    19 Defence in -- for the genocide charge. Those factors

    20 are still going to be applicable to these additional

    21 charges. A factor that also plays into the right or

    22 the obligation of the Prosecution is, unlike state

    23 jurisdictions where the police and prosecution and

    24 court, as arms of the state have great control over all

    25 aspects of the investigations and the accused, the OTP

  12. 1 and in fact the Trial Chamber, in some respects, do not

    2 have that same type of leverage of authority.

    3 We believe in making determinations about

    4 what is undue delay or what is reasonable in light of

    5 the circumstances, one must account for the changing

    6 opportunity that are available to the Prosecution in

    7 its investigations, including the ebb and flow of state

    8 communication. The Office of the Prosecutor is

    9 continuing to investigate this case, like every other

    10 case, up until the end. We will continue to

    11 investigate up to the date of final judgement, as is

    12 our obligation, because of the nature of this

    13 jurisdiction.

    14 This factors into the question of timing of

    15 the submission of an amendment. If there are other

    16 justifications for delays, like the issue of the

    17 provisional release here, which was a real question for

    18 many months, it is a question for the Prosecutor to

    19 decide whether it is appropriate to issue an amendment

    20 at a particular time or to continue investigation to

    21 see what that evidence may develop with respect to the

    22 charges.

    23 All those factors we believe should be

    24 considered in the question of whether it is undue

    25 delay. In this circumstance, how much more time is

  13. 1 necessary for the Defence to complete its preparation

    2 of its defence, given the related nature of the facts

    3 which form the basis of all of these charges.

    4 Many of the charges, of course, if they were

    5 in a state jurisdiction, would probably, as a result of

    6 a Statute lessor, included defences and would have been

    7 natural alternative charges in jurisdictions to begin

    8 with. We do not have that here. One cannot make that

    9 as a blanket statement, but if one looks at the

    10 amendments, one would certainly see that, for example,

    11 the homicide, the murder offences, the other serious

    12 bodily injury offences would in many jurisdictions be

    13 related offences to the same or similar facts.

    14 I think all those factors which exist in

    15 other jurisdictions which do not exist here should be

    16 considered in those questions about whether there is

    17 undue delay.

    18 JUDGE MAY: One other matter I want to raise

    19 with you is this: it might be argued that the amendment

    20 was delayed because of the difficulty of obtaining

    21 evidence, or the fact that you had not the evidence to

    22 file your amendment. But, as far as I can see, most of

    23 the supporting material is evidence which you had in

    24 your hands before the arrest.

    25 MR KEEGAN: That is correct, your Honour.

  14. 1 JUDGE MAY: So it is not a case where you are

    2 saying that there is new material which has come to

    3 light which has caused us to amend the indictment.

    4 MR KEEGAN: No, your Honour. I am suggesting

    5 opportunities opened up which might render better or

    6 alternative forms of evidence. For example, if we now

    7 come into possession of documents in the last recent

    8 months, that would supplant witness testimony which

    9 would be the necessary form of information. For the

    10 purposes of an indictment that might be the preferable

    11 form to submit with the indictment, reducing the risk

    12 of exposure of a witness prior to the commitment of

    13 a trial.

    14 So, I am simply saying that the purpose of

    15 a continuing investigation simply raises or opens up

    16 the options available to the Prosecutor in reaching her

    17 determinations. Yes, you are absolutely right. We

    18 processed prior to the last few months the information

    19 necessary for the amendment.

    20 JUDGE MAY: Why was the matter not tended to

    21 more quickly? As I have said, in effect, you are

    22 substituting a new indictment. This could have been

    23 done a very long time ago.

    24 MR KEEGAN: Your Honour, the answer to that,

    25 your Honour, that I can make, is that it was the best

  15. 1 judgement of the members of the Prosecution given our

    2 experience over the last four years, that, given the

    3 other issues in this case that were going on at the

    4 beginning, that it was preferable to continue the

    5 investigation and wait and see what would happen with

    6 the accused in the initial stages, whether he would be

    7 released or not, before we submitted the amended

    8 indictment.

    9 At the time when it became clear he would

    10 remain in custody, we then submitted. We made our

    11 intentions clear back in October, as early as I can

    12 recall. Prior to that, the notice we intended to amend

    13 had been made from the very beginning days to give the

    14 Defence -- to put them on notice that they would have

    15 the opportunity to act accordingly. Presumably

    16 a prudent Defence counsel when making trips to

    17 Prijedor, knowing the intentions of the Prosecution, is

    18 going to act accordingly. We believe those are

    19 relevant questions for the court also to determine.

    20 JUDGE MAY: Whether prudent Defence counsel

    21 could have anticipated such a large-scale change in the

    22 indictment, I do not know. I rather doubt.

    23 MR KEEGAN: Our discussions were fairly

    24 candid. We made it clear we intended including the

    25 charges that are there, from our very first meeting.

  16. 1 I was simply going to move on to Rule 50, if

    2 you would like to ask questions at this stage, please,

    3 your Honour.

    4 JUDGE MAY: Yes, you can go on.

    5 MR KEEGAN: With respect to the actual

    6 confirmation process, your Honour, Rule 50 -- the

    7 amended Rule 50 because, of course, it has changed

    8 since we began this case and in fact since the Defence

    9 raised its motion for clarification under Rule 50 --

    10 the revised Rule 50 addresses only the mechanics for

    11 the amendment of an indictment dependent on the status

    12 of the indictment and of the accused.

    13 It does not alter the standard or the manner

    14 of review of the -- or the obligation of the

    15 confirming judges if it is before the Chamber. That

    16 obligation is still derived from Article 19 of the

    17 Statute and Rule 47 of the Rules of Procedure and

    18 Evidence.

    19 Article 19 indicates that if a judge is

    20 satisfied that a prima facie case exists, he or she

    21 shall confirm the indictment. Neither Article 19,

    22 Rule 47, nor Rule 50 make any provision for the right

    23 of an accused to contest the confirmation process or

    24 the supporting material.

    25 Under Rule 50(A), by its language, that after

  17. 1 initial appearance the request for leave to amend

    2 should be done by way of motion, would indicate that

    3 the Defence has an apparent right to comment upon or

    4 object to the request for leave, itself. At that

    5 stage -- that is, the nature of the objection only

    6 being to the request for leave to amend and not to the

    7 substance of the indictment itself -- the only viable

    8 objection from the Defence is that the very fact of an

    9 amendment itself will substantially prejudice the right

    10 of an accused to a fair trial. That should be the only

    11 question here. Absent such a finding, the Trial

    12 Chamber should then move on to the confirmation process

    13 in which it is guided by Article 19 and Rule 47.

    14 Interestingly, reading of Article 19 and the

    15 two Rules I mentioned, raise the issue of whether

    16 a judge can deny a confirmation for any reason once he

    17 or she is satisfied there is a prima facie case.

    18 If a judge cannot deny a confirmation for any

    19 reason other than lack of a prima facie case it then is

    20 clear that the right of an accused to object flows

    21 directly from the right of an accused to a fair trial.

    22 That would be handled through Rule 72, preliminary

    23 motions, by way of objection to the form or substance

    24 of an indictment.

    25 We believe, however, that all of the factors

  18. 1 we have discussed prior would be necessary for the

    2 court to consider prior to making a determination of

    3 whether the very fact of leave to amend would

    4 substantially prejudice the right of an accused to

    5 a fair trial.

    6 It is the position of the Office of the

    7 Prosecutor that in a situation of a post-appearance

    8 request for leave to amend, post-initial appearance,

    9 that the Defence has absolutely no right to receive the

    10 supporting material or to object to the basis of the

    11 indictment at confirmation. That is consistent with

    12 the confirmation process under Rule 47 in the other two

    13 instances under the Rules, which are, of course, prior

    14 to the time an indictment is actually confirmed or the

    15 appearance prior to an initial appearance of the

    16 accused.

    17 In this case, we provided the materials to

    18 the Defence with our request for leave to amend because

    19 of the background in this case. The Defence had

    20 clearly made it an issue from the early days. Rather

    21 than go through what would have been the obvious motion

    22 to provide the materials had we not done so, in an

    23 effort to simply speed up the process, we provided

    24 them. But it is the position of the Office of the

    25 Prosecutor, as we have done in other cases pending

  19. 1 before the Chambers, that they have no right to the

    2 materials nor any right to comment on the confirmation

    3 process, itself. Thank you, your Honours.

    4 JUDGE MAY: Thank you, Mr Keegan. Now, who

    5 is going to deal with this on behalf of the Defence?

    6 MR D'AMATO: Your Honour, may we split the

    7 argument?

    8 JUDGE MAY: If you wish.

    9 MR D'AMATO: Thank you, very much.

    10 Then I will address the objection to the

    11 leave to amend, which Mr Keegan says at least relevant

    12 under the fact that this is a motion to amend.

    13 Mr Keegan has referred to the conversations

    14 we had and I was very happy to have those conversations

    15 back in September and to receive all the supporting

    16 materials and I thanked him for that. I think the

    17 openness and transparency of the trial is a great

    18 asset, and I wanted to work very closely with the

    19 Prosecution.

    20 I was not ever going to comment on our

    21 conversations, on the substance of our conversations,

    22 because I felt that those were off the record. But

    23 since Mr Keegan has commented on them rather fulsomely

    24 right now, let me rise to object to some of the things

    25 he said.

  20. 1 First of all, he said that he made it very

    2 clear to us that these new counts he was going to add;

    3 that is not so. All he told me was that they were

    4 thinking of adding a count of a crime against

    5 humanity. When I pressed him on that he said "well,

    6 maybe persecution", but certainly not 14 new counts.

    7 It got no more specific than that.

    8 Secondly, the idea that the Prosecution was

    9 entitled to continue to delay to amend the indictment

    10 because of conversations we were having and because of

    11 the defendant's physical condition; not so. I think

    12 the Prosecution was holding over our head the threat of

    13 a vague possibility of an avalanche of amendments in

    14 order to either get us to cooperate with the

    15 Prosecution -- which I was not against in principle --

    16 or to keep us off balance. This was a tactic, it was

    17 not the neutral situation that Mr Keegan suggests. It

    18 was a way of holding something over our head which we

    19 did not know about, but which they knew.

    20 Since he has admitted that all the facts were

    21 there -- all the facts he needed to make the

    22 indictment -- it seems that the only reason that he did

    23 not add these new counts to the indictment were for

    24 tactical reasons, for negotiating reasons to keep us

    25 off balance, perhaps to investigate the situation in

  21. 1 Prijedor without us knowing what he was going, looking

    2 for, because we had no idea what the counts were.

    3 Those are pathologies which result from a failure to

    4 get Article 9 seriously.

    5 I will get to Article 9 in just a minute, but

    6 before that I want to just make a few other comments on

    7 Mr Keegan's statements. He said that all these

    8 additional counts just flow from the basic facts of

    9 genocide. That is not true. Genocide is a crime that

    10 can occur in peace as well as in armed conflict and the

    11 allegation of genocide did not put on us any burden of

    12 arguing whether or not an armed conflict existed at the

    13 time.

    14 As you all know, and from the Tadic trial and

    15 other trials, that the question of the extent of an

    16 armed conflict, when it occurred, whether the locality

    17 was, itself, had to be part of the armed conflict, all

    18 these are major issues which have nothing to do with

    19 genocide but have a lot to do with the 14 additional

    20 counts. That is just one example. There are all kinds

    21 of things we would now have to look up, that they knew

    22 about back in March of 1997 that we are finding out in

    23 January and February of 1998 that would have to change

    24 the entire picture of how we are approaching this

    25 case.

  22. 1 With respect to the point that he said when

    2 he said that it might be better to substitute in the

    3 indictment document evidence as opposed to witnesses,

    4 first of all, he blacked out the name of any witness he

    5 did not want us to see, so we did not know who those

    6 witnesses were anyway.

    7 Secondly, we are not talking about an

    8 indictment but pre-trial discovery. You do not have to

    9 give us document re examples in the indictment. In

    10 fact, Mr Keegan wants it both ways: on the one hand he

    11 says, "we were very generous and gave you a lot of

    12 documentary and other evidence". On the other hand, he

    13 is saying, "because we did that we are entitled then to

    14 wait and amend the complaint later". He cannot have it

    15 both ways.

    16 When he refers to the fact that many domestic

    17 courts allow indictment of lesser included offences,

    18 I will stand on my brief on that. These crimes are not

    19 lesser, murder is not lesser than genocide. Just about

    20 everything in the added indictments could conceivably

    21 carry a life -- a penalty of life imprisonment, so it

    22 is not lesser at all, in fact, not even within the same

    23 realm. They come from different realms of

    24 international law. War crimes go back to the American

    25 Civil War and earlier. The Genocide Convention of 1949

  23. 1 post dates World War II. Genocide was something that

    2 was -- the word was invented in 1944 and was not part

    3 of the Nuremberg Tribunal but came with the resolution

    4 on genocide in 1948 and the Genocide Convention. These

    5 are all wildly different, they have nothing to do with

    6 each other.

    7 It is unfair that because we were asking for

    8 provisional release he did not want to tell us what the

    9 additional indictments are. How does that follow? It

    10 is illogical. If our client is sick and needs medical

    11 attention and we were trying to devote our attention to

    12 do that, what does that have to do with the ability of

    13 the Prosecution to disclose these additional counts

    14 that it has in mind? It really has nothing to do with

    15 that.

    16 Now let me just say a few words about

    17 Article 9, because I would like to rest on the brief

    18 and I thank the court for reading it and so I do not

    19 need to say much, but I would like to say, by way of

    20 rebuttal: Mr Keegan's approach to Article 9 is very

    21 simple and interesting. He says there is a purpose to

    22 Article 9 of the International Covenant on Civil and

    23 Human Rights; what is that purpose? It does not say in

    24 Article 9 what the purpose is, but Mr Keegan knows what

    25 that purpose is. That purpose, Mr Keegan says, has to

  24. 1 do with the initial arrest and detention.

    2 So he infers a purpose for Article 9 and then

    3 he uses that purpose to circumscribe what Article 9

    4 says. These are equally fallacious steps. One, you

    5 infer purpose then use it to limit the meaning of the

    6 article. There is no justification for that.

    7 Article 9 of the covenant is entitled

    8 "liberty and security of person"; that does not talk

    9 about original arrest. The language of Article 9

    10 clearly excludes what is going on here.

    11 Eleanor Roosevelt, at the time Article 9 was

    12 drafted in 1950, the question was -- I will read the

    13 language of paragraph 2, for those who would like to

    14 know what we are talking about here:

    15 "Anyone who is arrested shall be informed at

    16 the time of arrest of the reasons for his arrest and

    17 shall be promptly informed of any charges against

    18 him."

    19 "Any charges against him", is the key

    20 phrase.

    21 Now the question is, what does, "any charge

    22 against him" mean? The Philippine delegate in 1950

    23 proposed we change that to, "shall be informed of the

    24 charges against him", figuring that whatever the

    25 charges were, the person should be informed of them.

  25. 1 Mrs Roosevelt objected to that. She said --

    2 this was summarised by Mrs Roosevelt at the time: it

    3 seemed better to her:

    4 "Not to replace 'any charges' by the

    5 words 'the charges', as the former text (that is the

    6 'any charges') more nearly met the requirement that

    7 the right of the person to know all the charges against

    8 made him, whatever they were, should be protected."

    9 Now, Dr Kovacevic, when he was arrested on

    10 January 10 1997, had a right to know what all the

    11 charges were against him. Any of the charges, all the

    12 charges. He had a right to know that.

    13 Mr Keegan now admits that all the facts were

    14 in his possession to enumerate those charges and, of

    15 course, if we look at the Karadzic indictment we will

    16 see a list of similar charges drawn up two years before

    17 Dr Kovacevic's indictment. On far fewer facts they

    18 were able to come up with roughly the same thing.

    19 Dr Kovacevic had a right to know what all the

    20 charges were against him at the time he was arrested.

    21 Mr Keegan knew what the charges were, but he did not --

    22 but he chose not to disclose them until six months

    23 later. If that is not a literal violation of a Human

    24 Rights Covenant, Article 9, I do not know what is. You

    25 cannot get round it by positing a purpose that does not

  26. 1 exist in this thing to try to narrow the scope. The

    2 court is charged -- I am sure there is no argument

    3 about this -- with upholding the provisions of the

    4 International Covenant on Civil and Human Rights. That

    5 is like a constitutional document that supersedes

    6 anything that is going on here, including our internal

    7 Rules.

    8 I think Mr Keegan has not made a dent in the

    9 specific arguments that I made that Article 9 applies

    10 here. They apply for very good reasons because

    11 otherwise the Prosecution can use tactics that are

    12 distinctly unfair, not just because it makes the trial

    13 unfair -- that is another narrowing point, I will

    14 conclude with that. It is not just that the trial

    15 maybe unfair, but we -- you and I -- we all enjoy human

    16 rights in addition to the right to a fair trial.

    17 Dr Kovacevic has human rights as a person presumed to

    18 be innocent. All this time that he is in the detention

    19 centre he still has the human rights. He had the human

    20 right of Article 9 and he has all the human rights of

    21 the International Covenant. They do not just depend on

    22 whether a fair trial comes later in time. They exist

    23 at the moment. At the moment he was arrested he was

    24 deprived of his human right under Article 9 to be

    25 informed of any charges against him.

  27. 1 I will now turn over to Mr Vucicevic, unless

    2 there are any questions?

    3 JUDGE MAY: Thank you. Yes, Mr Vucicevic.

    4 MR VUCICEVIC: Your Honours, the Prosecution

    5 has basically, in the second part of the argument,

    6 attempted to emasculate the new Rule 50. They suggest

    7 that Rule 50 should be interpreted to effect, give the

    8 same lack of legal defence to the accused before this

    9 Trial Chamber, basically his interpretation would like

    10 to silence defence, were the meaning of the Article 50

    11 as it is drafted now calls that leave to amend shall be

    12 by motion and everybody knows that the business of the

    13 court in deciding on the motion is not only to hear

    14 whether or not application for leave is timely -- which

    15 we heard it is not -- but also to hear whether or not

    16 the standards for confirmation are met.

    17 If the Prosecution has been willing to turn

    18 the supporting evidence willingly on the motion for

    19 provisional release and has turned it now, anticipating

    20 that this will be a hearing under new Rule 50, it is

    21 just plain unfair to allow them even to pedal back to

    22 say that they were given the supporting material.

    23 If this is Trial Chamber is going to accept

    24 such an argument, that would mean that this would and

    25 should be an ex parte hearing again, as it used to be

  28. 1 before the amendment. However, we fully realise that

    2 embodiment, if the new Rule 50 gives right to Defence

    3 to point out to the inconsistencies in the evidence

    4 that the Prosecutor is adducing to support the

    5 indictment.

    6 The Prosecutor has repeatedly said that the

    7 standard of proof on the indictment is prima facie case

    8 or reasonable suspicion. We do not challenge the

    9 standard. This learned Chamber knows those standards.

    10 What the new Rule 50 has given the Defence is the right

    11 to challenge the evidence which does not rise to such

    12 a level; that gives us the right to comment and point

    13 to the inconsistencies of the witnesses.

    14 To Witness C, for example, being -- his

    15 statement being given twice, once being given early,

    16 which the Prosecution must have must have had for two

    17 years, where the sighting of Dr Kovacevic was not

    18 reported in the concentration, detention camp, and the

    19 statement of Witness C that was taken on July 18,

    20 where, supposedly, on one short page, the same witness

    21 has remembered Dr Kovacevic. That is the only thing

    22 that ties up Dr Kovacevic to the whole affair.

    23 The question is such an inconsistency and

    24 especially up on the massive publication that it

    25 happened and lack of the due diligence on behalf of the

  29. 1 Prosecutor would certainly cause the Trial Chamber to

    2 give life to the new Rule 50 and if it all is timely

    3 and if it all is proper, after considering the whole

    4 indictment -- I would only say in the alternative the

    5 Trial Chamber might give the Prosecutor the chance to

    6 call such a witness to explain consistencies which are

    7 lethal to his testimony, even to substantiate the

    8 standard of a -- a minimal standard, such a prima facie

    9 case.

    10 I would go back, your Honours, on the

    11 different standard. In order to substantiate count on

    12 genocide, it has to be a plan in the first few

    13 paragraphs of the amended -- or let us put it, proposed

    14 amended indictment, are talking about a plan. The only

    15 fact indicating a plan, it is the testimony in Tadic's

    16 case where the Prosecutor examining Witness P, as in

    17 Peter, where, in direct leading language -- and we put

    18 it in our brief. I would just like, for the importance

    19 of this moment, to cite it:

    20 "The Prosecutor: who was it that said in

    21 1992 that the upper tolerable limit on the presence of

    22 Muslims in Krajina would be 2 per cent?"

    23 That is the Prosecutor testifying.

    24 The witness:

    25 "In 92 this was said by the president of the

  30. 1 crisis committee Radislav Brjanin."

    2 Who was earlier disclosed to having been

    3 a president of the crisis committee in Banja Luka, not

    4 in Prijedor. This is all evidence of the plan.

    5 When we, your Honours, look at the evidence

    6 of the plan through testimony of other witnesses,

    7 because they were rather talkative in explaining

    8 witness Semenovic, witness Mujadzic, witness Merkal; as

    9 we pointed out first, there was no plan. Secondly,

    10 there were attempts, mutual attempts by all parties and

    11 politicians in Prijedor, more than any other area in

    12 Bosnia Herzegovina to avert the civil war. They were

    13 meeting and talking with each other before the

    14 political power takeover was carried out by the Serbian

    15 politicians. There was negotiations to avert a war,

    16 armed conflict. They were going on later. Federal

    17 policeman in federal Yugoslavia, who was very

    18 high-ranking, Mr Merkal testified that after takeover

    19 of power he met with Mr Drljaca, some other officers,

    20 where Mr Drljaca -- there is some confusion as to

    21 language, but it seems to me that he testified that

    22 Mr Drljaca was introduced as a Minister of Police.

    23 Another witness testified that Mr Drljaca was

    24 introduced -- that he got the appointment as assistant

    25 deputy Minister of Police.

  31. 1 That, your Honours, in and of itself is very

    2 important, because the Prosecutor is defeating his own

    3 assertion that there was a superior authority, because

    4 the superior authority under the international

    5 customary law -- and the precedent that we have so far,

    6 going from the amasitar down to Lieutenant Kelly and

    7 Captain Merdana, committed the first, and the second

    8 being acquitted, of the war crimes in Vietnam, clearly

    9 established that this superior authority is applicable

    10 only to the commanders that have a high degree of

    11 control, military control. They can order their troops

    12 to sacrifice, order their men to sacrifice their life

    13 upon an order.

    14 Then there is no such authority ever being

    15 placed under the law. I am suggesting as a matter of

    16 law, the Prosecutor is on extremely shaky factual

    17 evidence trying to lead the Trial Chamber to extend

    18 a law that has never been extended so far. In order to

    19 allow him, he is asking you: "Please tell us, Defence,

    20 I would rather have my indictment without the facts".

    21 That would be contrary to what the due process of law

    22 is and interpreting Article 50 I think we all have to

    23 bear in mind the due process in law means fair and

    24 level playing-field. The defendant would be denied

    25 that.

  32. 1 In terms of the facts, on the superior

    2 authority, your Honours, the Prosecutor is suggesting

    3 the town of Kosarac was a peaceful population that was

    4 levelled to the ground by a military attack of local

    5 military commanding by Dr Kovacevic. That would be his

    6 conclusion to invite you to support this indictment.

    7 However, in Tadic case -- and I believe some

    8 of the evidence was heard in that case by Judge Vohrah,

    9 if I am not mistaken. Colonel Selak, who was a chief

    10 logistics officer in the Fifth Corps, sitting in Banja

    11 Luka. There was a Yugoslav army retreating from Zagreb

    12 and made the headquarters in Banja Luka. He testified

    13 upon receiving reports in the headquarters on military

    14 activities at Kosarac, that he knew that the officers

    15 of such a corps were receiving ammunition supplies and

    16 salaries from general staff in Belgrade.

    17 I cannot surmise that a doctor from a small

    18 town, it is going to have any power to satisfy the

    19 prima facie standard on superior authority to be

    20 commanding, as one other witness testified, I believe,

    21 that is Mr Semenovic, it was told that was the

    22 strongest army corps in that part of Europe, meaning

    23 that they had at their disposal 34,000 soldiers. Just

    24 their facts missing there and all those gaping holes in

    25 the evidence are not supporting the logic. They are

  33. 1 all being done and they are all being made by the

    2 Prosecution's witnesses on statements and testimony

    3 under oath.

    4 There is another major problem here, your

    5 Honours. That is how could we reconcile such a great

    6 reliance on the Crisis Staff. In the supporting

    7 material, some of us who had lived in a period of

    8 "enlightenment" in Tito's Yugoslavia where the

    9 self-management was created. Such self management has

    10 percolated down to the municipal levels. Did it mean

    11 anything? Not this Trial Chamber, but you know the

    12 other Trial Chambers, just as far as yesterday there

    13 was an expert testifying that there was no democracy

    14 there, there was no totalitarianism.

    15 I respectfully suggest that the western

    16 bankers and the governments have bought the Trojan

    17 horse of democracy in Yugoslavia, but it was nothing

    18 but the tripartite structure -- party, police and the

    19 military -- that divided up the spoils of the foreign

    20 investments.

    21 When the foreign investments stopped pouring

    22 in, the people who did not receive an opportunity to

    23 develop tolerance and respect for rule of law to

    24 a mutual productive work, to respect each other human

    25 being interacting properly, all of a sudden, in

  34. 1 a poverty created, because there was no giveaways, they

    2 started this war.

    3 Your Honours, the mistake is the mistake that

    4 western bankers made by recognising self-management on

    5 a various level democracy, should not be a pretext that

    6 this Trial Chamber should take to implore superior

    7 authority just because these crisis committees

    8 existed.

    9 The Prosecutor in their supporting material

    10 indicated nothing that was direction from Mr Stakic --

    11 JUDGE MAY: Let me interrupt you for

    12 a moment. It seems we are now entering the realm of

    13 argument about the merits which would be more

    14 appropriately addressed, would it not, at the trial.

    15 At this stage we are merely seeking to determine

    16 whether we should amend the indictment.

    17 It seems to me that this sort of detail is

    18 not going to assist us very much.

    19 MR VUCICEVIC: I appreciate that comment,

    20 your Honour.

    21 The only thing I was attempting to do was to

    22 point out to standard of evidence which is not reach to

    23 go the probable suspicion. That was a suspicion the

    24 Crisis Staff had authority. Another point there, there

    25 was not a single fact in the amended indictment that

  35. 1 Dr Kovacevic had any authority on the Crisis Staff and

    2 that he had been tied up to any of the acts that

    3 amended indictment is accusing him of.

    4 Your Honour, I am not talking -- I refer to

    5 it in our brief -- to facts that do not rise -- because

    6 what -- I will finish on this note: the Prosecutor is

    7 using interchangeably standard terminology under the

    8 international law but he is also using the term "ethnic

    9 cleansing". "Ethnic cleansing" is inflammatory and it

    10 is prejudicial to my client, because ethnic cleansing

    11 does not exist in the Statute, in any of the elements

    12 of the crime under the Statute. It does not exist in

    13 Genocide Convention or in the international customary

    14 law. "Ethnic cleansing" is a misnomer used only to

    15 convict and give more or less presumption of guilt to

    16 a Serbian side of this conflict for certain acts which

    17 should be adjudicated here.

    18 Therefore, a term carries such a significant

    19 stigma in and of itself that I ask this Trial Chamber

    20 to bar usage of such a term because it is not generic;

    21 it is wholesale; it does not describe anything; it is

    22 conclusary, it is judgmental. That is basically what

    23 the Prosecutor had used in order to support all of the

    24 crimes against humanity. All the crimes against

    25 humanity he is charging they have to have superior

  36. 1 authority and all those elements to tie my client.

    2 With all due respect, your Honours, there was

    3 no intent specific to Mr Kovacevic that has been

    4 presented to make a prima facie case. There was no

    5 showing that he had command authority. There was no

    6 showing that has risen to prima facie that he had

    7 personally done any of this.

    8 Therefore, your Honours, I ask you to strike

    9 the counts based on genocide laws and the laws against

    10 humanity as far as the crimes that are grave breaches

    11 of Geneva Conventions and violation of the laws and

    12 customs of war, those crimes are not available to the

    13 Prosecutor charging a participant who was a member of

    14 insurgency in a civil war.

    15 The laws that are before you, if this were to

    16 be interpreted, if this were to be accepted, it is

    17 a cardinal violation of the principle crimine senalege,

    18 because on twice, two reports, Secretary-General has

    19 indicated, first, in adoption of the Statute for the

    20 Yugoslavia Tribunal and second, for adoption of the

    21 Rwanda Tribunal, has indicated that such principles

    22 should be respected.

    23 Moreover, the Secretary-General's report in

    24 adoption of the Rwanda Tribunal said explicitly, this

    25 is for the first time the common Article 3 has been

  37. 1 written in as the Article 4 of Rwanda Tribunal.

    2 Therefore, by clear implication that article is not

    3 Yugoslavia Tribunal.

    4 There is a difficulty here and that is the

    5 Appeals Chamber in Tadic's case has interpreted that

    6 common article of the Geneva Conventions, Article 3 is

    7 a part of the Article 3 of the Statute for Yugoslavia,

    8 of this Tribunal.

    9 Well, that was not complete and full analysis

    10 because basic analysis was that that was international

    11 war, because those were the facts that were argued by

    12 the parties.

    13 However, the point of each was not

    14 considered. There were three parties to the war; there

    15 was Bosnian Muslim, Bosnian Serbs that were engaged in

    16 a civil war, and there was Yugoslav national army

    17 versus Bosnian Muslim and there was international war.

    18 If you do not look clearly to the facts, and only then

    19 we decide to make a pronouncement of the law, then we

    20 are going to make not only injustice to my client but

    21 we are going to set up international law which is not

    22 going to be fair.

    23 There is also indicia that such an

    24 interpretation of the law was incorrect and it is not

    25 bound on this Trial Chamber, based on the

  38. 1 pronouncements of the International Court of Justice,

    2 international law, presidential value, all the cases,

    3 it is not strongly viewed as persuasive.

    4 What had happened; the Appeals Chamber

    5 accepted in preparation of Article 3, in trying to

    6 interpret the legislative history of post facto

    7 discussions in the Security Council, which consists of

    8 15 members, three great powers have found a proper --

    9 after adoption of the language, to make comments that

    10 such a language which was never on the face of the

    11 text, which will incorporate common Article 3.

    12 In domestic jurisdiction perhaps that would

    13 not have been so strongly considered but in 1966, even

    14 so, that common Article 3 has been incorporated by

    15 Security Council in the Rwanda Tribunal.

    16 International Law Commission; permanent

    17 member state delegates could not agree whether or not

    18 this incorporation of Article 3 is a part of the

    19 international customary law or not, based on this, the

    20 states that make the United Nations are not only three

    21 great powers have spoken. This could not be customary

    22 international law. Therefore, I respectfully ask you

    23 to deny amendments alleging violations of grave

    24 breaches of Geneva Conventions and violations of

    25 customs of war because they are not premised upon the

  39. 1 acceptable law. Thank you, your Honours.

    2 JUDGE MAY: Thank you.

    3 Mr Keegan, is there anything you want to

    4 add?

    5 MR KEEGAN: Thank you, your Honour.

    6 I would just mention a few points with

    7 respect to the aspect, the argument with respect to

    8 Article 9(2) and the purpose of that Article, the

    9 commentary to the International Covenant makes it quite

    10 clear that the purpose of that article is the question

    11 of arbitrary arrest and detention.

    12 It goes on to say that the notification

    13 requirement in Article 9(2) itself relates only to the

    14 stage of arrest, not to the stage of detention or, in

    15 fact, thereafter. It is a question of notification, so

    16 that the person is above all in a position to make use

    17 of their right to remand under Article 9(4); that is,

    18 be in a position to challenge.

    19 In fact, the European Commission on Human

    20 Rights, in deliberating a case brought under Article 5

    21 of the European Convention of Human Rights -- which is,

    22 of course, analagous, in fact the wording is almost

    23 exactly the same to Article 9 -- requiring again

    24 notification of any charges at the time of arrest. The

    25 European Commission on Human Rights found that Article

  40. 1 5(2), which is again the counter to Article 9(2),

    2 neither requires that the necessary information be in

    3 a particular form nor that it consists of a complete

    4 list of the charges held against the arrested person.

    5 The European Commission -- I believe a copy

    6 has been provided to your Honour of that case, as well

    7 as the commentaries to the Convention.

    8 It is not an issue that relates to the

    9 question of amendments of indictment in a case, which

    10 is what we are here about.

    11 Mr D'Amato, of course, is right that many of

    12 the charges in the amendment have discrete elements or

    13 aspects which are separate; the questions of

    14 characterisation of conflict, attack on a civilian

    15 population, whether it was widespread or systematic,

    16 et cetera. Those are just a part of the

    17 consideration. The focus of the Defence response was

    18 the question of investigation of the accused's

    19 involvement; that relates, as I understand it, as to

    20 which actions he did or did not undertake during the

    21 relevant period of time. That does flow from the basic

    22 set of facts and circumstances as I suggested. While,

    23 yes, there will be legal research necessary that was

    24 not necessary for the charge of genocide and perhaps

    25 the commission of experts -- hiring of experts by the

  41. 1 Defence for particular legal questions, the basic

    2 question of their right to investigate in the issue of

    3 exculpatory evidence can flow from the same facts they

    4 have been investigating, and therefore it is a question

    5 of how much further time would be necessary.

    6 As to the question of Rule 50, the Office of

    7 the Prosecutor takes its reading of the Rules on its

    8 face. The problem of importing a process for

    9 contesting the confirmation of an indictment by the

    10 Defence would necessitate, in fact, we believe, a whole

    11 series of additional regulations in requirement by the

    12 Trial Chambers. If we engage in the same rights that

    13 accused has pursuant to Rule 72 under Rule 50 does that

    14 then obviate the rights of the accused under Rule 72,

    15 if they made use of them under Rule 50, or would they

    16 get to do them twice? What type of interventions would

    17 be necessary?

    18 Having fractured my leg twice, and maybe not

    19 being enough, I am about to stick my neck out and talk

    20 a bit about British Law now.

    21 It is my understanding that, in the UK, as

    22 well as many other systems, the modern trend is away

    23 from lengthy committal hearings, which would be the

    24 analogy here because of the determination that they

    25 have little effect on the right to a fair trial of an

  42. 1 accused, given the rights of an accused at a trial

    2 itself. That is, I believe, the modern trend in the UK

    3 and Australia, other common law jurisdictions. In some

    4 civil law jurisdictions, the right of an accused is

    5 limited to written objections to an indictment or its

    6 analagous document at the stage that that document

    7 becomes viable.

    8 The question here really is: how do we read

    9 Rule 50 in light of the other Rules that already exist

    10 in this Tribunal? We believe that the only appropriate

    11 reading of Rule 50 in light of Article 19 and Rule 47

    12 and the subsequent rights of accused under Rule 72, we

    13 believe this whole thing, of course, has to be pinned

    14 on the question that the accused is not losing any

    15 right to contest an indictment. Those rights have

    16 always existed under the Rules of the Tribunal and will

    17 continue to exist under Rule 72.

    18 All that Rule 50 did was change the mechanism

    19 for the confirmation of indictment in the situation

    20 where an accused has made an initial appearance. It

    21 did not change any of the standards of confirmation or

    22 the processes. The accused has always had the right to

    23 contest and will have the right to contest an

    24 indictment post-confirmation under Rule 72.

    25 That is why we believe Rule 50 does not

  43. 1 envisage the type of process we have had here today,

    2 where the Defence will argue the evidence which would

    3 then require the Prosecution to re-argue and end up in

    4 what we refer to in our reply as, "a mini trial".

    5 JUDGE MAY: Mr Keegan, you would accept that

    6 the court has to judge -- the Tribunal Chamber has to

    7 judge the matter with respect to the necessity for

    8 a fair and expeditious trial. That is a matter we have

    9 to take into consideration.

    10 MR KEEGAN: Yes, sir. There is no question

    11 that the rights, under Article 21, of an accused to

    12 a trial without undue delay is a fundamental right.

    13 That is a fundamental right in every system.

    14 As I indicated earlier, we believe that the

    15 question of what is an undue delay is relevant to the

    16 requirements of each particular system and, in fact, to

    17 each particular case. It must be judged within that

    18 context. The underlying question in every system, when

    19 this issue is reached, is: will the amendment or the

    20 change in the indictment result in injustice or, as we

    21 termed it, substantially prejudice the accused to the

    22 right to a fair trial. If the answer is no, we believe

    23 leave to amend should be granted and the question of

    24 delay is merely one factor to be considered within the

    25 large scheme of the right of both the international

  44. 1 community and the accused to a fair trial. Thank you,

    2 your Honours.

    3 JUDGE MAY: Thank you. We shall --

    4 MR D'AMATO: May I have one minute to rebut?

    5 JUDGE MAY: I think we have heard enough.

    6 Thank you very much.

    7 MR D'AMATO: These were new points.

    8 JUDGE MAY: I think we heard the points and

    9 got your point.

    10 We will adjourn for 20 minutes and we will

    11 consider this amendment and consider what course to

    12 take.

    13 (3.48 pm)

    14 (A short break)

    15 (4.10 pm)

    16 JUDGE MAY: We have considered this motion.

    17 We have come to this conclusion: in our judgement, it is

    18 far too late in the day to amend an indictment as

    19 substantially as is being proposed.

    20 We think that if this amendment were allowed

    21 it would not be possible to hold a fair trial and

    22 certainly not an expeditious one.

    23 Accordingly, we refuse the motion and we

    24 shall give our reasons in writing in due course.

    25 Mr Vucicevic and Mr D'Amato, you have

  45. 1 a motion to strike parts of the amendment. Do you want

    2 to pursue that?

    3 MR D'AMATO: No, your Honour. We appreciate

    4 the fact that you read it, considered it and we would

    5 sooner drop that matter.

    6 JUDGE MAY: I think the only matter which is

    7 not disputed is that the name of the co-accused should

    8 be removed. I take it, Mr Keegan, that that will

    9 happen?

    10 MR KEEGAN: Yes, your Honour, that is

    11 correct.

    12 JUDGE MAY: Yes, thank you.

    13 That being so, are there any other matters to

    14 be raised in open session before we go into closed

    15 session and conduct a status conference, as we said we

    16 would?

    17 MR VUCICEVIC: Your Honour, upon hearing the

    18 ruling of this Trial Chamber, if you would give us 30

    19 seconds to a minute, maximum, just to consider, because

    20 there was another motion and there was a motion to

    21 strike original indictment. When your Honour spoke,

    22 you indicated whether or not we would like to strike

    23 certain portion of the amended indictment --

    24 MR D'AMATO: I just waived that.

    25 JUDGE MAY: I think Mr D'Amato just dealt

  46. 1 with that, in fact. Perhaps you would like to have

    2 a word.

    3 MR VUCICEVIC: I would like to have a word

    4 with Mr D'Amato before having a final one on that one.

    5 There was a language difficulty here, in my

    6 understanding.

    7 MR D'AMATO: Thank you, 30 seconds.

    8 (Pause).

    9 Thank you, your Honour. My original

    10 statement stands. Thank you.

    11 JUDGE MAY: Thank you. Are there any other

    12 matters to be dealt with in open session?

    13 MR KEEGAN: No, your Honour.

    14 JUDGE MAY: Very well, we will go into closed

    15 session to have a status conference on this trial.

    16 (Hearing adjourned)










4.45 pm hearing