Case No. IT-96-21-T
Tuesday, 20th August 1996
Before:
JUDGE GABRIELLE MACDONALD
(The Presiding Judge)
JUDGE STEPHEN
JUDGE VOHRAH
-v-
ZEJNIL DELALIC
MS. TERESA McHENRY and MS. ELLES VAN DUSSCHOTEN appeared on behalf of the Prosecution
MS EDINA RESIDOVIC and MR. EKREM GALIJATOVIC appeared on behalf of the accused Delalic
align (Open Session)
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1 (10.10 a.m.)
2 THE REGISTRAR: Before us we have the Prosecutor v. Zejnil Delalic, case No. IT-96-21-T.
3 THE PRESIDING JUDGE: This is a hearing on the motion filed by the Defence on defects in
4 the form of the indictment. We have received that motion as well as various attachments
5 and we have received the response from the Prosecutor as well as various attachments. Is
6 the Defence ready to proceed and may I have the appearances for counsel, please?
7 MS RESIDOVIC: My name is Edina Residovic. I am counsel for Mr. Zejnil Delalic. I am
8 ready to proceed.
9 THE PRESIDING JUDGE: Thank you, and for the Prosecution?
10 MS McHENRY: Teresa McHenry for the Prosecutor. Senior trial attorney, Mr. Eric Ostberg,
11 is still out of town. Miss Elles Van Dusschoten, trial manager, is also here at counsel table.
12 THE PRESIDING JUDGE: I am trying to pull up the transcript and I am having some
13 difficulty. One minute -- yes. It appears now that the transcript is operative. As I
14 indicated, this is a hearing on the motion filed by the Defence, Mr. Delalic challenging the
15 form of the indictment. We have received that motion as well as the response of the
16 Prosecutor. Is the Defence ready to proceed and may I have appearances once again for
17 the Defence, please?
18 MS RESIDOVIC: Your Honour, for the Defence, Ekrem Galijatovic and Edina Residovic. We
19 are counsel for Mr. Delalic and we are ready to proceed.
20 THE PRESIDING JUDGE: Thank you. For the Prosecution?
21 MS McHENRY: Teresa McHenry for the Prosecution, your Honour.
22 THE PRESIDING JUDGE: Very good. Thank you. Ms Residovic, will you be arguing this
23 motion?
24 MS RESIDOVIC: Yes, your Honour. My colleague and myself will present the arguments
25 concerning the proposal we made in the Bosnian language on 4th July and in the English
26 language on 8th July this year.
27 Taking the right pursuant to Rule 73 concerning the previous motions on the
28 form of the indictment, the Defence made a written motion and gave a large number of
29 documents confirming and supporting that motion and later on informed the Tribunal that
30 it will be using other explanations and other supporting material which it got in the
31 meantime.
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1 Rule 47(B) stipulates that the indictment against an accused person should
2 contain, 1st, the name and the details of the accused; second, the basics of the merits and
3 then, third, the basics of the crime with which a person is charged. The Defence in a
4 written motion declared in its submission that the indictment against Mr. Delalic does not
5 contain any of these necessary conditions that are in the Rules, except for the 1st and the
6 last name of the accused, Mr. Delalic.
7 For those reasons, the Defence stipulates that the indictment is vague, unclear,
8 contradictory and ungrounded. It, therefore, proposes then and now to this Trial Chamber
9 to reject the indictment in all its charges against Mr. Zejnil Delalic.
10 Allow me, please, to tell you for which reasons the Defence would like that.
11 First of all, the Defence does not see all the expressions of the background and the facts,
12 but it alleges that the legal Bosnian forces carried out many aggression on the areas with a
13 majority of Serbian population, and it does not in the introduction take into account the
14 fact that it was the time after the aggression, which it is clear in the indictment, in the
15 charges 2 and 9, it clearly stated that it was an international aggression. That is why the
16 indictment and the facts are unclear because it suggests a different development of events
17 than was really the case.
18 As in our written submission, we explained in more detail what it was all about.
19 We, in our submission, think that such an indictment cannot stand and the most important
20 part of our motion concerns the lack of information about the accused. Except for the 1st
21 and the last name of Mr. Delalic, all the other information is so much contradictory that
22 the whole indictment is ungrounded.
23 Instead of a short account of the facts about the accused and its functions, in
24 this part the Prosecution suggest that he, as co-ordinator and then as a Commander of the
25 Tactical Group No. 1, was in charge of the camps. That fact in itself is not linked to the
26 actual function, but to Mr. Delalic. So, it is unclear in this particular part.
27 In our submission, such allegations cannot stand when its validity is questioned.
28 For the reasons of caution, in our motion we also mentioned other defects of the
29 indictment. According to the Rule 47(B) -----
30 JUDGE STEPHEN: I am sorry, if I can interrupt you because I should understand exactly
31 what you are saying. If one looks at paragraph numbered 3 in the background, you have
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1 your client and the positions he is alleged to have held during the relevant period. I do not
2 follow at all why you say that there is imprecision.
3 MS RESIDOVIC: In the indictment count which refers to the particulars of the accused, it is
4 said that, as a co-ordinator and then as the Commander of the 1st Tactical Group, he was
5 the person superior in the camp. In them two completely different functions are
6 indicated. Neither of these functions, regardless of either of them is a superior position,
7 cannot run in parallel, because if he is a co-ordinator, then he is not the Commander of the
8 1st Tactical Group. If he is the Commander of the 1st Tactical Group, then he is not the
9 co-ordinator.
10 JUDGE STEPHEN: That is my difficulty. This is all a matter of evidence. I do not follow at
11 all why you say that there is inconsistency between those two positions. That will
12 emerge in evidence, will it not?
13 MS RESIDOVIC: I believe, your Honour, that it is necessary, 1st, to establish the capacity
14 and if it is not done, if there are no particulars, there are inaccuracies, I know what you are
15 referring to, but one and the same particular is expressed in two different ways. Therefore,
16 these particulars become quite vague because we do not know whether the function of a
17 Commander, whether the function of the co-ordinator, means the supreme authority.
18 Therefore, the Prosecutor should indeed be clear because such a contradiction
19 regarding the principal capacity without which the accused Delalic could not appear before
20 any court, let alone this one. That is why in the view of the Defence the indictment is so
21 unclear, so vague, that we believe it should be dismissed.
22 If I may, I should also briefly like to refer to another of the objections. It relates
23 to some of the facts that, as the Rule says, the crime with which the suspect is charged.
24 The indictment has very many facts about the crime in Celebici. Those are the objective
25 grounds for incrimination for any superior. But that is not an act, the offence, of the
26 superior. The superior, maybe the fact that he was aware of such acts and failed to act,
27 yet this is not mentioned at all. The fact of the omission is not mentioned at all. All the
28 indictment says is that he could have been aware of something, and yet failed to act upon
29 it. In other words, the crime of which our defendant is accused, that is a crime for which a
30 responsible commander needs to be accountable, but to become accountable, to become
31 responsible, he must be a superior, yet this is not established.
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1 Your Honours, we already discussed this at our previous status conferences.
2 The indictment speaks about acts which are tantamount to the omission to act, and yet no
3 facts support this claim. So these are some of the defects of the indictment.
4 We included some other objections in our motion, but I do not wish to dwell on
5 them. I should merely like to respond to the response submitted by the Prosecution in
6 writing. The Prosecution responds to the suggestions and submissions and the evidence
7 we filed that during the preliminary hearings one cannot question a fact, and that the
8 indictment contains all as required by Article 47(B).
9 It thus rejects our 1st argument saying that it is not contradictory to items 9 and
10 10, and claims that items 9 and 10 presume the presence of some international forces in our
11 territory which was not our intent. The intent of our motion referred to the contradiction
12 of a situation wherein a country under Chapter VII of the United Nations is entitled to
13 defends itself and is merely liberating territories occupied by an aggressor, that is,
14 defending territories not occupied by that aggressor.
15 In the light of this contradiction which the Prosecution also indicates, I think
16 that the view of the Prosecution, that is, a political motion, does not hold water. This is a
17 factual situation and it is not immaterial whether in a war conflict one detains prisoners or
18 whether one detains civilians. I could not agree more that these are two categories of
19 protected persons under the Geneva Conventions. However, the Prosecution should be
20 consistent in either of the cases. Therefore, if we are talking about the capture of
21 individuals in a conflict which is indispensable in order to liberate the territory and the
22 town where these incidents are taking place, then this is quite unquestionable.
23 The Prosecution also quotes a number of earlier rulings of the Tribunal in other
24 similar cases and quotes the cases of Tadic, Mucic and some other opinions held by the
25 Court. I do appreciate the law of precedents. However, since I come from a school of law
26 which abides by the legality, and also in the light of the principle adopted by this Tribunal
27 on individual responsibility, I do not think that the precedent made in a different case
28 which has nothing similar to the status of our defendant can be accepted as an argument; all
29 the more so as these are decisions of the Court still pending their entry into force. The
30 precedent can only be observed, adopted, if we are talking about fully valid decisions. We,
31 therefore, think that we should really follow those rules of law, or that system of law,
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1 which will best protect the interests of the accused or, rather, my defendant in this
2 particular case.
3 Furthermore, the Prosecutor indicates that even if the Chamber agreed that one
4 could deliberate about the case in a manner requested by the Defence, it will refute that
5 because the indictment has been confirmed by the Judges of this Tribunal. The rules of
6 procedure do not envisage a specific procedure in that particular case, nor do they say that
7 a Judge on a Chamber must follow the decision taken by the confirming Judge.
8 The question arises, where is there the Rule 73 and preliminary motions, unless
9 the Trial Chamber can rule differently from the confirming Judge. I do see such a
10 possibility in the law of the Republic of Bosnia-Herzegovina and other Republics of the
11 former Yugoslavia where various preliminary motions, submissions or objections to the
12 indictment do exist. This right, this law, permits the Chamber that the subject of the
13 indictment is not a crime, that there are extenuating circumstances such as, for instance,
14 that my client was not a superior person in command and there is also not enough evidence
15 to support the indictment.
16 All those reasons which we indicate in our motion in writing and allegations of
17 the Prosecution amount to what I have just said.
18 But now, your Honours, while appreciating the fact that my client without
19 having his capacity established has spent five months in a detention, I should also like to
20 comment on those proofs and evidence that we submitted along with our motion.
21 When referring to the question raised by your Honour, we believe that the
22 indictment, in contrast with the Rules, establishes the possible existence of crimes in the
23 Celebici camp, tends to forget the fact that a person may be responsible only if he is there
24 in a particular capacity. If this capacity is not quoted in the indictment, then such charges
25 against him simply cannot stand.
26 With regard to the introductory part of the indictment and the number of
27 evidence (and there is quite a pile of evidence), we wish to indicate the environment within
28 which the Prosecution claims that crimes took place at Celebici. There were armed
29 persons, and we have evidence about persons questioned at the time from which it
30 transpires, clearly, that there were prisoners who, which is true, come under the protection
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1 of the Geneva Conventions. Therefore, if anybody committed a crime against them, he
2 should be charged with that.
3 To support our evidence, we also enclose the report of the investigating
4 Commission which, likewise, established beyond any doubt that those were armed
5 individuals. If need be, we may also submit to the trial the video tapes of the then
6 situation in Konjic and Jablanica which may show that our motion, that our submission,
7 regarding the introduction to the indictment is fully justified and that this evidence runs
8 contrary to items 9 and 10 of the indictment.
9 My client is in a very difficult predicament. I believe you should heed to that.
10 He has been accused of severe war crime. When we talk about a war crime, we mean
11 people who commit mass killings and so on and so forth. The Tribunal accuses Delalic of
12 being a superior, and relates the superior position to Delalic. Whatever he might be doing,
13 he is always a person superior, a person with authority, in that camp, and thereby it vests
14 him with a specific capacity.
15 In spite of the documents which date back to the time of the incidents and
16 regardless of numerous testimonies of evidence, the Prosecution still insists that this is a
17 person who was in command, a person of authority, regardless of the actual function that
18 he held. I go back to the form of the indictment and I claim that the Prosecution must
19 indicate very precisely the capacity of the defendant and know what he should be held
20 accountable for.
21 It is unquestionable that Delalic did not commit these crimes personally, that he
22 did not order any crimes, that he was not a guard or warden of the camp, that he never
23 talked to or investigated anyone in the camp, that he did not detain any person in person
24 or order that somebody be detained. Therefore, having failed to do all that but, as the
25 Prosecution says, was aware, or could be aware, that such and such acts were happening in
26 the camp of Celebici, this awareness is not indicated in the indictment and thereby the
27 indictment does not contain the facts on the omission.
28 The Prosecution also claims that a relevant number of testimonies of prisoners
29 corroborate the claims of the Prosecution. I am not producing evidence here, but I also
30 have to go to the substance of the indictment if I am to refute the claims there. There is no
31 doubt that persons captured, 1st, in blocked villages and then as prisoners are not in a
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1 position to know what functions were exercised by the accused Delalic. All they can say
2 is that they saw him once pass through the camp and having heard that he was a person of
3 importance. If this were true, some mention that he was the Commander of the 1st
4 Tactical Group (which we have never denied) and this function is something that most of
5 the witnesses remember. However, they have not the least idea what this function means.
6 In view of this, among these numerous testimonies and documents that we
7 submitted to the Trial Chamber, once again we also attached the statements of these
8 persons who at that time did not mention Delalic as an eminent personality, let alone a
9 superior person of authority.
10 I must also add that recently in Belgrade a book came out with 48 testimonies of
11 persons who went through the Celebici camp. None of those individuals mentions Mr.
12 Delalic in any way whatsoever, not even the reports of the Helsinki Watch or the OSCE
13 ever mention Mr. Delalic.
14 What then led the Prosecutor to allege after all those books and after all this
15 evidence that Mr. Delalic was a person of authority, that he was something, after we have
16 learned about the file of the indictment that he suddenly emerges as a personality who is
17 talked about?
18 We have here an eminent newspaper which comes in Belgrade and on March
19 10th, that is only about 10 days before the arrest of Mr. Delalic, it came out with its issue
20 which quotes in detail and in extenso all the counts of the indictment -- not even then.
21 Therefore, your Honours, 10 days prior to the arrest of Mr. Delalic, when this extensive
22 article mentions all the persons who have been transferred to this Tribunal, apart from Mr.
23 Delalic, and very many other individuals from the area of Konjic, even then Mr. Delalic is
24 not mentioned. However, my colleague, the counsel for Mr. Landzo, indicated the
25 prejudice which arises with the arrest of Delalic. We have a large number of annexes,
23
26 different papers from Belgrade which subsequently start writing about Delalic as a mega
27 criminal.
28 I do not wish to belittle, to underestimate, the Prosecution in its attempt to
29 prove the crime. Unfortunately, I must say they did nothing to establish whether my
30 client was a person to appear between this Trial Chamber, or is this also an error in
31 persona?
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1 What the Prosecution offers additionally in its response are statements of
2 witnesses, of two witnesses, which are used, to all intents and purposes, as the grounds
3 for all the charges with which my client is accused. I have to say that many witnesses we
4 have offered before to the Tribunal and to the Trial Chamber had the opportunity to read
5 that. Even something that somebody could judge as some kind of a superiority concerning
6 [redacted] we showed to the Prosecutor the original video of two journalists, [redacted]
7 [redacted] and [redacted] who at that time
8 established a fact that, in complete contradiction with what those witnesses had said, the
9 declarations made by the reporters and also by [redacted] that we are now
10 giving to the Trial Chamber and to the Prosecutor, because the Prosecutor in its response
11 says that they are considering our proposals in detail, all these things show that Delalic
12 had no superiority, no capacity, no official capacity and no contacts with the prison,
13 except that in that context we could see the evidence made by [redacted] that know the
14 situation in the prison. They say that they never saw Zejnil Delalic in that prison, nor
15 that they ever had sent any report to him or had received any kind of similar report for the
16 prison. At that time, as a co-ordinator, Delalic [redacted]
17 as Witness A, [redacted]
18 [redacted] already had some threats expressed by some person
19 coming from Herzegovina, and that is why [redacted] decided to be a protected witness.
20 The second person, [redacted], when Mr. Delalic was the Commander of the
21 Tactical Group, mentioned all the evidence. [redacted] there was never any
22 information that either Mr. Delalic sent to the prison or that went from the prison to Mr.
23 Delalic.
24 We gave the evidence to the Prosecutor showing that Mr. Delalic had some
25 contacts with the prison, but the Prosecutor used them in his response. We know that
26 Mr. Delalic was on the premises of the prison because half of it belonged to the Logistics.
27 He had to go to the prison to see all the arms that were there, all the weapons, but he had
28 no official capacity in the actual prison.
29 But all the persons interviewed show that Mr. Delalic had no reasons, no
30 contacts, with the prison, apart from one which we gave to the Prosecutor after the visit of
31 the ICRC, under the special order of the Supreme Command he is ordered to take some
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1 measures. The Supreme Command decided that one of the Commander of the Tactical
2 Group (which had completely other duties) takes all the steps necessary to carry out a
3 certain number of provisions. But, in the whole form of the indictment, I have to go back
4 to a concise account of the facts that it should contain, but the Prosecutor never mentions
5 with one single sentence where the responsibility of Zejnil Delalic towards the prison
6 should appear.
7 I am not going to interpret all this evidence, but I am not stating it just for the
8 Trial Chamber to have to interpret them now, but just for the Trial Chamber to know that
9 such evidence exists. We provided such evidence, even exculpatory evidence. There is a
10 possibility always that the indictment be dismissed. We did not manage to convince the
11 Prosecutor that Mr. Delalic was not a superior, but that is why we decided to show that
12 there is contradiction with the list of the official capacities and the functions of Mr.
13 Delalic, and also it is never stated where, under what order Mr. Delalic was appointed a
14 superior. These are the facts.
15 THE PRESIDING JUDGE: Excuse me, Ms Residovic. The evidence you have submitted to
16 the Prosecutor that you contend supports your position that there is contradiction, that is,
17 that Mr. Delalic was not in a superior position and he did not have responsibility over the
18 Celebici camp, have you provided that to the Trial Chamber? You have provided much
19 material in support of your motion for provisional release and the Trial Chamber had
20 indicated that we would consider that, if you wished to submit it as a part of your
21 challenge to the form of the indictment. But the information, the material, you are referring
22 to now, has that been submitted to the Trial Chamber as a part of your motion for
23 provisional release?
24 MS RESIDOVIC: Yes, your Honour. The document of 24th and 28th August in the very title,
25 it can be see that according to the order given by the Supreme Command and the order
26 made on 19th August, where it is asked from the prison Commander to take certain
27 measures, that is, what Zejnil Delalic did was according to the order of the Supreme
28 Command, not in his capacity as the Commander of the Tactical Group. We submitted
29 that evidence in Bosnian and the English language. If you allow me, your Honour ----
30 THE PRESIDING JUDGE: We have a number of statements that you have submitted. I do
31 not want to cut you short, but you have been preceding now for a little over half an hour
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1 and I wish you would bring it to an end. If I can just focus you, as you have indicated. At
2 some point what we are concerned with, in terms of your challenge to the form of the
3 indictment, is whether or not the indictment contains a concise statement of the facts and
4 the crime or crimes with which the accused is charged. That is what Article 18(iv)
5 provides, that the Prosecutor shall prepare an indictment containing the concise statement
6 of the facts and the crime or crimes with which the accused is charged under the Statute.
7 Rule 47(B) of the rules of the Tribunal provides that, "The indictment shall set forth the
8 name and particulars of the suspect, and a concise statement of the facts of the case and of
9 the crime with which the suspect is charged".
10 In your motion you have about, I think, six points, your written motion, but it
11 appears to me that your argument really boils down to three points: (1) that Mr. Delalic is
12 not a superior, that factually he is not a superior, that you have evidence that he was not in
13 a position of responsibility over the Celebici camp. That is point (1). Point (2) is that the
14 Prosecutor in the indictment has made a misstatement of the facts. First, in paragraph 2 of
15 the indictment, the Prosecutor states that the Bosnian Muslim and Bosnian Croat forces
16 attacked and took control of villages containing predominantly Serbs. It is your position
17 that, in fact, they were not the aggressors. You also say then that the next assertion of the
18 Prosecutor in paragraph 2 in which they assert that a state of international armed conflict
19 existed is contradictory because of the allegation that is made in the earlier part of
20 paragraph 2.
21 The second part of your position that there is a misstatement of facts in the
22 indictment relates to the Prosecutor's allegation that Mr. Delalic is a superior, that is, that
23 he co-ordinated activities, etc. etc. -- it is contained in paragraph 3 -- and the last sentence,
24 "His responsibilities included authority over the Celebici camp and its personnel". You say
25 that is a misstatement, that in fact his responsibilities did not include authority over the
26 Celebici camp and its personnel.
27 The third group of your arguments, it appears to me (and this is the one that I
28 believe most closely meets our enquiry here in the light of Article 18.4 and Rule 47(B)), is
29 whether or not the indictment contains a concise statement of facts. What you say is that
30 in paragraph 3 of the indictment, when Mr. Delalic is described, those are not sufficient
31 facts, that that allegation regarding his activities and the statement that his responsibilities
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1 included authority over the Celebici camp and its personnel does not meet the requirement
2 of Rule 47(B) or Article 18(iv).
3 Then you say in paragraph 7, when the Prosecutor states that Mr. Delalic had
4 superior authority and knew or had reason to know that his subordinates were mistreating
5 detainees and failed to take the necessary and reasonable measures to prevent such acts or
6 to punish the perpetrators, that once again there are not sufficient facts.
7 The Prosecutor in its response says, "Well, these are matter of evidence". It is
8 not their responsibility to provide in an indictment all the evidence that they have
9 regarding Mr. Delalic's authority; nor are they responsible to provide evidence regarding its
10 assertion that he knew or had reason to know that his subordinates were mistreating
11 detainees; that instead all they need do is set forth a concise statement of the facts and that
12 evidence will come forward later.
13 As my fellow Judge pointed out, if you disagree with the facts, I can understand
14 that you disagree with the facts, Mr. Delalic has entered a plea of not guilty, but that alone
15 is not sufficient to challenge the indictment itself. The question that we are focusing on is
16 whether there is a concise statement of facts, so whether or not the indictment meets
17 Article 18(iv) and Rule 47(B). As I say, you have three arguments, as I see it, only one of
18 which really focuses on, I think, what the Trial Chamber is concerned with because we
19 have reviewed the papers and discussed generally our view.
20 You have filed a motion for provisional release. We have not ruled on the
21 motion for provisional release. Attached to your motion for provisional release is a lot of
22 data, and we do have some questions which we would like to pose regarding that motion
23 and the data as soon as we conclude the hearing on this motion.
24 So, unless you have something to add, I think we understand your position. We
25 have read carefully the motion. We have read the attachments and we have heard you. But,
26 unless you are going to give more information that we do not already have, I do not think
27 that you are adding anything more. I do not want to cut you off, but I think we
28 understand fully your position. So can you wrap up in five minutes? I guess I am cutting
29 you off. Would you wrap up your argument in five minutes, if you would, please?
30 MS RESIDOVIC: Your Honour, I thank you for understanding my position, but I think that
31 five minutes to let me state my position is not -- it is nothing to do with this understanding
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1 because my client is here, he has spent five months in custody, and we think not only
2 there is not a concise statement of facts there, but there is no statement of facts in the
3 indictment. There is the assertion that he knew or could have known. This is not a
4 statement of fact. What did he know? When did he know? That would be a statement of
5 fact about a superior, somebody in a superior capacity. That is not in the indictment.
6 The Prosecutor did not put that in.
7 That is why I ask for your understanding when we are in the situation when the
8 Prosecutor is not giving all the burden of proof which would normally lay within the
9 responsibility of the Prosecutor. Please allow the Defence to give evidence because we
10 think it is necessary to show in this way what are the most important things in the case we
11 are discussing. As the Trial Chamber did not rule on previous matters, we thought it
12 necessary to stand and explain our position so that you could also have all the necessary
13 material on which you could rule when you are going to rule about the separate trial and so
14 on.
15 There is nothing saying about the crimes of Mr. Delalic. There is the legal
16 examination of facts when all those facts, statement of facts, are missing. So please allow
17 me to say something on the last response of the Prosecutor made upon your request, your
18 Honours, where there are also as an addendum the two statements of witnesses, [redacted]
19 [redacted] and [redacted]. I will not ask here why two members of the HVO sent there to
20 protect all the inmates in the camp, all these inmates who did not see Mr. Delalic, the
21 person responsible for their situation. But, as we have said on previous occasions, these
22 persons had some official functions in Konjic and that is maybe, therefore, why the
23 Prosecutor believes them. But, if carefully read, their statements show that there are
24 things missing and it should be very carefully examined by the Trial Chamber.
25 Mr. Jorda probably in very short time with an enormous amount of material
26 could not have all the time to look at that, because he also did not have all this enormous
27 mass of material that we are providing and which was not provided by the Prosecutor.
28 Unfortunately, in these two years that have elapsed since the events, a lot of material had
29 accumulated. I will ask you for some 10 more minutes and I will wrap up in 10 minutes,
30 and my colleague would also like to say something. That is how we agreed to ----
Page 15
1 THE PRESIDING JUDGE: Please go on.
2 MS RESIDOVIC: Thank you very much. So from what [redacted] is saying, one can say
3 that he says that Mr. Delalic has been the Camp Commander, which nobody else had
4 confirmed. There are so many things that are stated that are wrong. For example, that the
5 defendant had been tried and sentenced by a Bosnian court to a 12-year prison sentence.
6 My defendant had not ever been accused of any ----
7 JUDGE STEPHEN: I am sorry, to make what you are saying useful to me, at least, I should
8 ask you why are you challenging this? Obviously, you will cross-examine this witness
9 when he comes along and says what he has said, that your client was a Commander. Well
10 and good. If your cross-examination is successful, we will disbelieve him. But it does no
11 good at this stage saying, "Here is a witness who when he is called should not be believed",
12 which is what you are saying.
13 THE PRESIDING JUDGE: Ms McHenry? Excuse me one minute. I think what Ms
14 Residovic is doing is responding to the Prosecutor's response and, that is, you have
15 attached witness statements, and now what Ms Residovic is doing is saying that that
16 information is incorrect.
17 MS McHENRY: Yes, your Honour. I am happy to wait for my time to respond. The only
18 thing that I wanted to ask is any names of witnesses or potential witnesses not be used in
19 open court. We submitted them as confidential. I know the Defence attorney has used
20 what she believes are names of potential witnesses. I would just ask that they be expunged
21 from the record and not be used by anyone here.
22 THE PRESIDING JUDGE: Yes. Ms Residovic, refer to the substance of the statement. If
23 the Prosecutor has submitted it to us, we will be able to identify the statement. But
24 quickly wrap up, please, your response and do not identify the names of the witnesses at
25 this point, and the name will be expunged.
26 MS RESIDOVIC: Yes, excuse me, your Honours, for having used the names, but the response
27 of the Prosecutor did not state that these names should not be mentioned. This is a public
28 hearing. So, I would like also that there would be the same treatment of the witnesses for
29 the Defence as the witnesses for the Prosecution. So, the witnesses themselves speak in
30 such a way in order to cover their own responsibility. Those witnesses -----
Page 16
1 THE PRESIDING JUDGE: We do not need to know the names of the witnesses at this point.
2 That is not relevant at all to our consideration. What we are concerned with is that you
3 wish to respond to what the Prosecutor has asserted. But once you need to finish now
4 because I have told you in so many words what we are focusing on is whether there is a
5 concise statement. That is what you need to be focusing on because you are not really
6 assisting the Tribunal at all in this argument.
7 MS RESIDOVIC: Yes. These are the only witnesses that partly give in their statements, the
8 Prosecutor partly gives a small concise statement of facts. I have to say that these
9 witnesses should be neither witnesses for the Prosecution nor for the Defence. Many
10 other Prosecutors have stated that those people could be sitting here in the place of my
11 client. Many of them are responsible for thefts and other criminal offences in Konjic.
12 There is other material that we produced in order to support this, what we are saying,
13 because those persons -- we have mentioned this a previous time and even today the
14 Prosecutor in his response gives this material. That is why I have to analyse these things
15 in this particular manner in front of this Trial Chamber. We are going to submit all the
16 supporting materials, most of them in English, and when you will be ruling on this motion,
17 please examine them very carefully in case we will not be able to discuss this in more detail
18 today. That is why I ask you, please, to bear in mind all of these things.
19 THE PRESIDING JUDGE: Ms Residovic, those statements are not a part of the indictment.
20 So, whether or not those statements are correct or not correct, or whether they truly give a
21 concise statement, they are not in the indictment. The issue is once again whether the
22 indictment contains a concise statement of facts. It is your position (and you have stated
23 it very clearly) that it does not. You have told us why, that you say in paragraph 3 the
24 Prosecutor says his responsibility included authority over the Celebici camp, and you
25 want the Prosecutor to explain how and why, describe his responsibilities, explain what
26 were his responsibilities that included control or direction of the Celebici camp. The same
27 thing with paragraph 6. But those statements are not in the indictment. They are not in
28 the indictment. So it really does not make any difference what those say, except what you
29 are saying is that since they have more evidence it should be in the indictment, but that is a
30 question of law. That is a question of law as to whether or not a Prosecutor in an
Page 17
1 indictment is responsible for putting in the indictment evidentiary matters and that is
2 purely a question of law.
3 I do not care how many statements they have, and you can tell me that their
4 statements are wrong, you can tell me that they are right, but it does not make any
5 difference. The question is, need those facts be in the indictment? You have argued that
6 point well in your papers and you have argued it well again, that is, you say they should
7 be in. We need to hear from the Prosecutor and then we will decide.
8 MS RESIDOVIC: Your Honours, I would just like to wrap up in these 10 minutes where
9 various persons have spoken, but I will not ask for more time. I just want to pay attention
10 that the statement of facts corroborated with such statements, that this cannot be found in
11 the indictment. These facts can be accessible to the Trial Chamber, so I ask the Trial
12 Chamber to examine that carefully. In the material that we submit it states that my
13 defendant was not the Commander in Celebici. He was not responsible for appointing the
14 Commander of the camp or the Commander of the artillery, or he is not responsible, he is
15 not bearing responsibility for anything stated in the indictment.
16 There is also all the supporting material, all the documents issued by the
17 institutions of a country that co-operates with this Tribunal, because all this states is that
18 Zejnil Delalic had nothing to do with the prison. So, please, pay attention to the
19 documents that were issued by the state institution in 1996.
20 There is the Territorial Defence Commander statement which states that himself
21 with the HVO Commanders made all the appointments when the prison was set up. That
22 Commander states that Zejnil Delalic proposed the Camp Commander, but that the actual
23 appointment was made in the usual way, that is, the Commander of the HVO and the
24 Commander of the Territorial Defence. Maybe in various other tribunals, in the tribunals
25 that are not of such high rank as this one, this would be enough to say that this cannot
26 result, such responsibility, such an appointment, could not result from such a capacity.
27 If we examine carefully all the statements of witnesses (which after a rule I
28 cannot mention), there are
30 of such statements, there are 100 documents speaking about
29 the functions, the capacities and the competences of my defendant, you would see that
30 there are contradictions and that there is not any ground to say that this indictment
Page 18
1 contains a concise statement of facts, and that would be all. I do not think I have spoken
2 for more than 10 minutes.
3 THE PRESIDING JUDGE: Ms McHenry -- did you have something to add that has not been
4 already argued?
5 MR. GALIJATOVIC: I find incomprehensible the existence of the Prosecution to keep this
6 indictment and to oppose the requests of the Defence to review the indictment. Your
7 Honours, I should like to ask you to merely read carefully paragraph 3 of the indictment
8 on page 2 where it says that Zejnil Delalic co-ordinated activities of the Bosnian Muslim
9 and Bosnian Croat forces in the Konjic area from approximately April '92 to September
10 '92, and that he was the Commander of the 1st Tactical Group of the Bosnian Muslim
11 forces from approximately June '92 to November '92. This is also already so contradictory
12 that at one and the same time, from June to September, he is both treated as a co-ordinator
13 and a Commander of a tactical group. This -----
14 JUDGE STEPHEN: Let me stop you there. Why is that contradictory? These are merely
15 titles. The roles may be completely coincident, one with the other. You are playing with
16 words when you say it is contradictory.
17 MR. GALIJATOVIC: No, sir.
18 THE PRESIDING JUDGE: You may say they are contradictory because they are wrong
19 because -- put your earphones on -- but does that mean that they are not a concise
20 statement of facts?
21 MR. GALIJATOVIC: It is precisely that, and I claim with full responsibility that no
22 European Court would admit such an indictment, nor could it stand on its two feet legally
23 in the light of modern provisions of criminal law. One needs to realise that a co-ordinator
24 is a completely different function which was performed by the accused Zejnil Delalic, and
25 a Commander of a tactical group is a completely different function. While he was a
26 co-ordinator between Bosnian and Croatian armed forces, there was a separate Commander
27 of the 1st Tactical Group, that is, until 27th July '92 the 1st Tactical Group was headed
28 by another person and he was replaced by Zejnil Delalic after July 27th.
29 Therefore, the question arises, if a Commander of the 1st Tactical Group is a
30 superior, how could he then be also responsible as a co-ordinator for these acts if after
31 27th July '92, when he was appointed the Commander of the 1st Tactical Group, then the
Page 19
1 question arises whether there was a co-ordinator and whether that other co-ordinator was
2 responsible for the situation.
3 In other words, the approach of the Prosecution is completely erroneous. I
4 claim with full responsibility that the opinion presented by colleague, Ms Residovic, there
5 is not a single statement of fact in the indictment as such which would show that even had
6 Delalic been a superior, what would have been his submission regarding the supervision
7 and any other activities had he been a superior. But you do not have a single fact in the
8 whole description of his acts whether he had done something or had not done something
9 even if he had been responsible. In what way had he acted or failed to act?
10 I think that such an indictment cannot pass the most elementary test of
11 accusation because, ladies and gentlemen, one of the fundamental human rights is the right
12 to freedom, to quick and expeditious court proceedings, the protection of human rights
13 and, of course, our profession has a role to play in it. You must realise that the examination
14 of the indictment cannot come down to a merely formal procedure, that it must go to the
15 substance of the matter, and that we, as the Defence of an independent country and a
16 member of the United Nations, are showing that until 18th May '92 the accused Zejnil
17 Delalic had no position whatsoever in the army or in the political or any other state
18 agency, that he was merely responsible for logistics as evidenced by the documents of the
19 official authorities of that time. That is not '96, but May '92.
20 That is the period for which he is incriminated for and when he is accused of
21 being a co-ordinator. He became the co-ordinator on 18th May '92 only. This is from the
22 Chief of Staff of the army to show what a co-ordinator is, that he is not a person superior
23 to anyone else, that he has no authority to issue any orders, that he is merely a
24 co-ordinator.
25 We also have a certificate of the 4th Corps that in the territory of Konjic, Zejnil
26 Delalic was not appointed to the position of a Commander, nor did he have any other
27 position of authority in the Territorial Defence. We also have such a certificate issued by
28 the Municipality of Konjic. We also offer some diagrams showing that his title, the title of
29 co-ordinator, meant that he was responsible for information and mediation, that he was
30 never in a command position or anything else.
Page 20
1 We also have a written proof that on 27th July '92 he was appointed a
2 Commander of tactical group which was a purely military group and, as shown from the
3 official diagram, it only included a few soldiers from some Territorial Defences.
4 We also offer proof which the Prosecutor uses against Zejnil Delalic. It is his
5 orders of 22nd and 24th August showing that he acted under orders of the Supreme
6 Command, and that when he learned from the International Red Cross report and from the
7 Chiefs of Staff of the Supreme Command that he merely carried out the order of the
8 Supreme Command and that he did all that.
9 We also submit yet another proof. That is the order of 28th August '92 signed
10 by the President of the Presidency, Alija Izetbegovic, and the then Commander, Alilovic,
11 on 28th August, provisional command group JUG was formed at that time, and my client
12 Zejnil Delalic is appointed Assistant Commander of that group responsible for logistics.
13 Therefore, all the previous proof that he was always responsible for logistics is
14 corroborated. As of 28th August '92, he joins the temporary command of the group JUG
15 and where he is in the position of the Deputy Logistics Commander.
16 I cannot understand, the Prosecution may be wrong and we have already had
17 such a case in this Tribunal because a case was dismissed against one individual. In this
18 case, the Prosecution denies objective proof so persistently, and wishes to prove at
19 whatever cost the responsibility of Zejnil Delalic in spite of the existence of evidence to
20 the contrary. I think you really have to appreciate this stand of the Defence.
21 It is really not irrelevant whether this man will spend a year or two in prison.
22 His health has collapsed. He has family problems, business problems and he will suffer
23 defeat in all walks of life. It is up to us to every time act in the spirit of humanity and also
24 in the spirit of the Charter of United Nations. After all, your Rules may also be reviewed
25 by your superiors and there is absolutely no reason why he should not be released from
26 detention. We have nothing against the proceedings being continued, but it is not inhumane
27 to be relieved of the charges after two years only. Thank you.
28 THE PRESIDING JUDGE: I was going to ask you, each of those documents that you refer to,
29 sir, have been submitted to us as a part of your motion for provisional release. We are
30 aware of them. We have read them carefully. You do not have to read them again. It is
31 your position that those documents would mean that when the Prosecutor alleges in the
Page 21
1 indictment that his responsibilities included authority over the Celebici camp and its
2 personnel, that the Prosecutor is wrong. That is what your position is and you would
3 offer those documents for that position.
4 This is a hearing on the motion challenging the form of the indictment. The issue
5 is whether or not the indictment states concise facts, and that is what we are focusing on.
6 We have those documents. They have been submitted in support of your motion for
7 provisional release. We are going to consider those. So I hear you, but we have spent an
8 hour and a half mostly arguing about whether or not Mr. Delalic is a superior. I can
9 understand it, because I can tell from the way that you are presenting the evidence that
10 you firmly believe that he was not. We will attempt to address those concerns. I just do
11 not believe that they can be addressed as it relates to the motion challenging the form of the
12 indictment.
13 Now we will stand in recess for -- there are some questions that we wish to ask,
14 Mr. Residovic, and then we will hear from Ms McHenry in response to this motion that
15 we are here today to discuss. But, regarding your motion for provisional release, you did
16 attach a statement from Bosnia-Herzegovina, I do not recall the title of the officer, but in
17 any case stating that Bosnia-Herzegovina would comply with any order of this Tribunal
18 directing Mr. Delalic to appear before the Tribunal for a trial or any hearings. The Trial
19 Chamber is wondering whether, perhaps, it would not be helpful to us if we could hear in
20 person from that individual. We have the letter and there is a seal at the bottom of it. His
21 last name is Pasic, P-A-S-I-C.
22 MS RESIDOVIC: Yes, Pasic.
23 THE PRESIDING JUDGE: When we take our recess, I want you to think about this and then
24 respond when we return. The second question that we have is where the defendant is
25 proposing that he would reside, if he were released. In the motion he states
26 Bosnia-Herzegovina. He also talks about Austria and Germany. So we want to know
27 where it is that he would reside.
28 Thirdly, I would like to know more information surrounding the arrest of Mr.
29 Delalic, how he came to be arrested.
30 We will stand in recess for 20 minutes. When we return, we will hear from Ms
31 McHenry on the motion that has been filed by the Defence challenging the form of the
Page 22
1 indictment saying that it does not contain a concise statement of facts. We will then hear
2 from Ms Residovic regarding these questions and, perhaps, others that the Judges may
3 have regarding your motion for provisional release. Then we will hear from Ms McHenry
4 regarding that issue as well.
5 We will stand in recess for 20 minutes.
6 MS RESIDOVIC: Excuse me, may I talk to my client?
7 THE PRESIDING JUDGE: Yes, Ms Residovic, you may.
8 (11.25 a.m.)
9 (Short adjournment)
10 (11.45 a.m.)
11 THE PRESIDING JUDGE: Ms McHenry, would you please respond? You probably will
12 say, "Well, where do I begin?" Begin with the motion, if you will.
13 MS McHENRY: Your Honour, I will just briefly respond to the motion because most of our
14 more detailed response about specific factual allegations, specific sentences, are in our
15 written material, so unless you specifically ask me about something, I will just very briefly
16 respond. With respect to the form of the indictment, the Prosecution believes that this
17 indictment does provide notice of the nature of the crimes and a concise statement of the
18 facts. As such, the Statute of this Tribunal and the Rules of this Tribunal have been more
19 than satisfied. Indeed, this Chamber has already denied identical claims challenging the
20 form of this exact indictment with respect to the co-accused Mucic.
21 To the extent that the accused wishes additional particulars, those maybe found
22 in not only the supporting material which the accused got immediately, but in the large
23 amounts of additional material which we have given and continue to give to the Defence. I
24 think that is really the issue here. I believe that the Defence concedes that there is a
25 specific factual allegation in the indictment, which is that as co-ordinator and as
26 Commander he had responsibility over the camp, and they contend that this is wrong and,
27 therefore, they wish to know the evidence upon which we base that factual assertion such
28 that they can dispute it.
29 We have in many, many different ways given them the material which gives the
30 particulars upon which, the evidence upon which, we will rely in arguing that, as
31 co-ordinator and then as Commander, he had responsibility over the Celebici camp.
Page 23
1 The fundamental principle of both, I think, this Tribunal and other tribunals,
2 including those in Europe, is, is what is going on fair to the Defence? Is the Defence able
3 to prepare, to know what they are being charged with, the basis for it and prepare for trial?
4 I do not think that there can be any argument among anyone involved with this case that
5 the Defence is not able to prepare for trial.
6 They have been amply able to get large amounts of material going to the exact
7 nature of the roles of co-ordinator and of Commander and of his exact authority over the
8 Celebici camp. We continue to explore some of those issues with the Defence. We
9 continue to provide each other with additional material. We are continuing our
10 investigation in attempting to clarify some of the material given by the Defence. We will
11 continue to do so, but to the extent that there is now (and we expect that there will
12 continue to be) a disputed issue of fact, ultimately that will have to be resolved at trial.
13 THE PRESIDING JUDGE: Let me interrupt you, if I may, one minute. Your reference
14 though to Mr. Mucic, Mr. Mucic is a co-accused, but Mr. Mucic filed a motion for
15 particulars. In Mr. Mucic's motion for particulars, we treated it as a challenge to the
16 sufficiency of the indictment. Then we assumed that he had already gone through the step
17 of looking at the materials to determine whether or not he had sufficient particulars and
18 then acted on his request for particulars.
19 But Mr. Mucic, unlike Mr. Delalic, as I recall, and I do not have the motion
20 before me -- I had it and I left it in my office -- Mr. Mucic did not challenge the sufficiency
21 of the evidence to show that he was a superior, that is, a Commander, at Celebici. He
22 certainly, as I recall, did not attempt to offer the volumes of evidence that the Defence has
23 offered here to support a position that, in fact, he was not the Commander of the camp.
24 To that extent, is there such an exact fit, as you might suggest?
25 MS McHENRY: Yes, your Honour. It would be our position that there is an exact fit.
26 Although your Honour is correct that there is a difference in that this accused has provided
27 much material, the form of the indictment should not depend on whether or not the
28 Defence is, in our view, inappropriately trying to argue the merits of the case. Mr. Mucic,
29 in fact, denies that he was Commander of the camp for the majority of the time with which
30 he is accused, but I believe that he is appropriately not attempting to resolve the merits
31 with a motion on the form of the indictment or with a motion requesting particulars.
Page 25
1 So the fact that I believe that the accused here is inappropriately trying to argue
2 the merits, I do not believe that should have any relevance. If anything, I believe this very
3 detailed attempt to argue the merits supports our case, which is that all the material they
4 need to know the facts, the evidence upon which we are relying, has been provided to
5 them. That, I think, is the only enquiry for this court. Is the indictment sufficient under
6 the Statute and under our Rules? I believe that it is the exact same position for Mr. Mucic
7 and for Mr. Delalic, and we continue to maintain that this motion and this form of
8 documents is not an appropriate way to resolve disputes of fact.
9 Your Honour, that is basically with respect to our material, again other than to
10 note that with respect to a protection for the Defence, our Rules provide that the
11 protection is that a confirming Judge looks at the material and sees if there is prima facie
12 evidence to submit, to support, a prima facie case. That has been done. There is no other
13 avenue within our Rules with which a defendant can challenge the factual accuracy of the
14 Prosecution's evidence prior to trial, nor should there be because, in fact, I think, as this
15 case demonstrates, it is impossible to do so without the full opportunity for all the
16 relevant facts, without the full opportunity for cross-examination.
17 If the Defence wants to suggest to the Tribunal that they change the Rules
18 because they believe that the confirming Judge did not do it, I believe that is the
19 appropriate enquiry. In fact, I think the Judges should not adopt such a different rule
20 because it would create more problems, more delay and in the long run less protection.
21 But, under our Rules the factual allegations must be tested ultimately at trial, although of
22 course the Prosecution and Defence can do everything beforehand to try to resolve and
23 narrow them, which we are attempting to do in this case.
24 JUDGE VOHRAH: Yes, except that Ms Residovic has said that when the confirming Judge
25 considered all the material he was not fully aware of the new material which she has
26 submitted to you, and in your response of 14th August you indicated that you were also
27 conducting an ongoing enquiry on the papers which have been submitted.
28 MS McHENRY: Yes, your Honour. That is right, and I agree that the confirming Judge did
29 not have all the evidence. In fact, the confirming Judge did not have all our evidence. But
30 the appropriate time for all the evidence to be considered is at trial. So, yes, I would agree
31 with you that the confirming Judge did not say, "I have looked at all the evidence in this
Page 25
1 case both for and against and I have had an opportunity to test the bias of witnesses and
2 explore some ambiguities etc., and I find that this is a good case" or even "that this case is
3 beyond a reasonable doubt", but that is what the trial is for.
4 THE PRESIDING JUDGE: The Prosecution has filed a response to the Defence's motion for
5 the provisional release. Since that time, perhaps you have received more data from counsel
6 for Mr. Delalic, I am not sure, but from listening to Ms Residovic it seems there has been
7 an ongoing exchange.
8 In considering the motion for provisional release, if we may then set aside this
9 motion for a moment, should not this Trial Chamber review the strength of the
10 Prosecution's case as we find it at that time?
11 MS McHENRY: No, your Honour, I do not believe you should. (1) I do not believe there is
12 any provision for it under the Rules, and (2) in cases like this I believe, as in fact Judge
13 Jorda found ----
14 THE PRESIDING JUDGE: In Djukic? Is that the one he found that health reasons would be
15 the only reason for provisional release? Is that what you are referring to?
16 MS McHENRY: Your Honour, I believe that is what was found in the Djukic case, but I do not
17 believe that is what I am referring to, but I cannot be sure, despite having had it in front of
18 me a few seconds ago.
19 THE PRESIDING JUDGE: Judge Jorda's review of the indictment after he confirmed it?
20 MS McHENRY: Yes, your Honour, it would be in the decision in the Blaskic case rejecting a
21 request for provisional release, in which the Judge found, "The Rules have incorporated the
22 principle of preventive detention of accused persons because of the extreme gravity of the
23 crimes for which they are being prosecuted by the International Tribunal, and for this
24 reason subordinate any measure for provisional release to the existence of exceptional
25 circumstances". They go on to say that in that case the exceptional circumstances would
26 be the health of the accused.
27 In this case where there are numerous particular problems that this Tribunal has
28 that a national court does not have, certainly including the gravity of the offence, but also
29 given that we do not have a national Police Force and we have much more limited ways to
30 obtain the appearance of witnesses, there is a presumption of preventive detention and no
31 provision for looking at the strengths of the Prosecution's case.
Page 26
1 I believe that you, in effect, would have very complicated mini trials in every
2 single case which would ultimately delay and cause a larger number of problems, including
3 for witnesses. So, no, I do not believe that there is any provision in these Rules for an
4 examination of the strength of the case, nor do I believe that this Court should adopt such a
5 rule.
6 THE PRESIDING JUDGE: Rule 65(B) says: "Release may be ordered by a Trial Chamber
7 only in exceptional circumstances, after hearing the host country and only if it is satisfied
8 that the accused will appear for trial and, if released, will not pose a danger to any victim,
9 witness or other person". There is nothing in that Sub-rule nor anywhere else in Rule 65
10 that deals with provisional release that, at least, on its face would prevent the Trial
11 Chamber from assessing again the strength of the Prosecutor's case, except that you say
12 that has been the position of the other Trial Chamber.
13 MS McHENRY: There is certainly nothing in this, your Honour, I concede, in which it says
14 on its face in exceptional circumstances should not include a review of the strength of the
15 case. But, I also believe that, given that every accused believes that he is not guilty, had it
16 been the case that your Honours intended exceptional circumstances to include the strength
17 of the case, that would have been specifically set out as one of the factors to be considered
18 in evaluating exceptional circumstances.
19 THE PRESIDING JUDGE: But if international standards require that we review periodically
20 the strength of the Prosecutor's case in passing on a motion for provisional release, even
21 though it is not specifically set forth in our Rule, would we not have to comply with those
22 international standards and read them into 65(B)? I suppose the answer has to be yes,
23 how can you say no? You would say those are not the international standards.
24 MS McHENRY: That is correct, your Honour, they are not and, if so, the Rules should be
25 amended to have some very specific procedure set out to control what I believe turns out
26 to be an uncontrollable situation, at least as it exists now, and to the extent that in our
27 system there has already been a finding by a Judge that there is sufficient evidence to
28 charge someone, that in fact the international standards have been complied with, although
29 I will concede that I am not an expert and have not looked at the exact standards for that.
30 THE PRESIDING JUDGE: That is correct. Judge Jorda did, I presume, confirm this
31 indictment -- yes, I guess you have the review. It was Judge Jorda. Certainly he was
Page 27
1 acting based upon the evidence that was offered to him, the material of the Prosecutor, and
2 all of that material now has been provided to the Defence. My only question was, well,
3 what do we do as time goes on and further evidence is adduced either on the part of the
4 Defence or either on the part of the Prosecutor? Should we stand firm with a
5 determination that was made, perhaps, six months ago -- I am not sure when the
6 indictment was confirmed ----
7 MS McHENRY: March, I believe.
8 THE PRESIDING JUDGE: March.
9 MS McHENRY: Yes, your Honour.
10 THE PRESIDING JUDGE: The other question is this, and that was raised by Ms Residovic
11 also, that is, that is just another Trial Chamber. In terms of precedent, it was either Ms
12 Residovic or co-counsel -- I am not sure which -- that would be not be a binding present on
13 this Trial Chamber. What is your position in that regard?
14 MS McHENRY: I am not sure what you mean by "binding precedent". It is not binding on
15 you in the sense that at trial you will be making your own decision. In fact, as I
16 understand the Rules, they have been set up such that you will hear the evidence at trial
17 relatively fresh and not have reviewed the supporting material. To the extent that the
18 Defence is now suggesting that you review the supporting material, you review all kinds of
19 additional documents and, in effect, have a mini-trial, because that is what we are talking
20 about, evaluating the strength of the case, I do not think the prior decision would be
21 binding on you. But, with respect to whether or not there is sufficient evidence to charge
22 this defendant, I believe that has already been made, your Honours, and that is binding in
23 that regard. Certainly your Honours will be making your own determination of whether or
24 not the evidence in all its presentation is sufficient to find the accused guilty.
25 THE PRESIDING JUDGE: Yes, that may be binding, his confirmation and his decision that at
26 that moment, in March, there was sufficient material offered to establish a prima facie
27 case. But since that time, if additional evidence has come into the possession of the
28 Prosecutor, or is offered by the Defence, should we not look at that to determine whether
29 or not provisional release would be appropriate under 65(B)?
30 MS McHENRY: My position, your Honour, is firmly that you should not, that especially, in
31 effect, what you would be having would be a mini-trial, and that, in fact, what we should
Page 28
1 do is wait for the trial. That is what the Rules envision. In fact, I think the fact that the
2 Defence rejects some of the statements given to it by the Prosecution and says, "Well, yes,
3 we concede that these statement say that, in fact, he was a co-ordinator and he was a
4 Commander and he did have responsibility over Celebici camp", but they say, "but those
5 witnesses are biased", I do not believe there is any way, realistically, for your Honours to
6 evaluate those statements without having the witnesses and, in effect, without having a
7 trial.
8 THE PRESIDING JUDGE: We have received what I suppose were sworn statements from
9 various officials within the government of Bosnia-Herzegovina setting out the dates on
10 which Mr. Delalic was appointed to certain positions, saying that it was not until July
11 12th, if I recall, or sometime in July, that in fact he was appointed to -- was it co-ordinator
12 or is it Commander? I am not sure.
13 MS McHENRY: The documents submitted by the Defence indicate that on 27th July the
14 accused was given certain responsibilities over armed forces in an area. But the documents
15 ----
16 THE PRESIDING JUDGE: Let us suppose the confirming Judge confirms the indictment,
17 and some months after that the Defence presents an affidavit saying that this Mr. Delalic
18 who is named in the indictment is not the Mr. Delalic who was a Commander of the forces,
19 and as such may or may not have had responsibility for Celebici camp, and that is the case
20 that Ms Residovic is referring to that was handled by the other Trial Chamber where there
21 was a case of mistaken identity and that person was released.
22 MS McHENRY: I believe that person was released because the Prosecution dismissed -- I am
23 not even sure if the accused ever came here. I do not, in fact, think the accused ever did
24 arrive in The Hague, but I am not sure. But the evidence was presented to the Prosecution
25 ----
26 THE PRESIDING JUDGE: And the Prosecution agreed.
27 MS McHENRY: The Prosecution, I believe, had done an investigation and determined that
28 there was a problem. I am not familiar with the all the complexities of that.
29 THE PRESIDING JUDGE: It does not make too much difference. I guess the principle,
30 though, is that after the confirmation there may be facts that become available that should
31 be taken into consideration. The question becomes: Should those facts only be weighed
Page 29
1 by the Prosecutor or should the Trial Chamber play a role in reviewing additional matters
2 that come to it after the confirming Judge has made a decision? Is there room in the Rules
3 for such a consideration? Your position is that it would be a mini-trial, that Mr. Delalic
4 has pleaded not guilty and he says that he did not have superior authority over the camp
5 or did not have control over the camp, and that is something that should be resolved at
6 trial. That is what trial is all about. When a person enters a plea of not guilty, they are
7 saying, "No, I did not commit those offences", and he is denying each and every allegation
8 in the indictment, including that he was the Commander and including that he had a
9 responsibility over the camp.
10 MS McHENRY: Yes, your Honour. That is exactly right. I believe the evidence may be
11 presented to the Prosecution, but to the extent that there remains a contested issue of fact
12 that matter must await trial. Let me just again, it is not the case that in this case the
13 Defence even is saying the Prosecution has no evidence, or anything like that. They are
14 just saying, "We do not agree with the evidence. In fact, the situation is much more
15 complicated than the Prosecution would have you believe. Therefore, we are going to give
16 you 100 documents and 30 witness statements and all these things and have you, in effect,
17 find that there is not enough evidence". But I believe that it is conceded here that the
18 Prosecution does have evidence; it is just that the Defence does not agree with the
19 evidence put forward by the Prosecution.
20 I believe that is a disputed issue of fact and it will fall on a number of things,
21 including credibility of witnesses, and that can only be resolved at trial. That is the
22 ultimate safeguard, but given that (1) the Judge has already confirmed it and (2) evidence
23 can always be presented to the Prosecution who will look at it, it is its ethical duty, we
24 believe, to look at it and investigate where appropriate, and the ultimate safeguard then is
25 trial.
26 THE PRESIDING JUDGE: One question then of you and then we ask Ms Residovic to
27 provide some responses to questions we had posed: What weight should be given to
28 Bosnia-Herzegovina's willingness to turn over Mr. Delalic? One of the statements that we
29 have received in the voluminous material that has been submitted is from the Minister ----
30 JUDGE STEPHEN: Minister for Justice.
Page 30
1 THE PRESIDING JUDGE: --- and he indicates that Bosnia-Herzegovina guarantees the return
2 of Mr. Delalic. What weight should be given to that?
3 MS McHENRY: To the extent that the Republic of Bosnia and Herzegovina has turned over
4 defendants, has turned over accused in the past, we certainly think that is a relevant
5 consideration and applaud Bosnia for its co-operation with the Tribunal. Given that, we do
6 not believe that this guarantee is sufficient in any way and I will just briefly discuss that,
7 other than to say that there is nothing exceptional about this case other than the fervency
8 with which the accused argues, that any other accused could not come and claim exactly
9 the same thing with respect to the specific guarantees. The guarantee is, in effect, a
10 guarantee that if they have the defendant in their territory and are able to find him, and if
11 their rules of law on extradition permits his extradition, then they will turn him over. This
12 guarantee does not speak in any way to whether or not Bosnia will be able to, in effect,
13 have custody of this defendant if he does not want them to have custody.
14 In this regard, we will point out, among other things, that Bosnia itself had an
15 arrest warrant for this accused in 1992 and was never able to execute it. At some later
16 point, I believe, the charges were dropped but for some significant period of time they
17 themselves had an outstanding arrest warrant. Again, we will point to the accused's
18 significant financial resources and his ties to many different countries.
19 I do not believe that there is anything in this guarantee or as a matter of fact that
20 Bosnia would be able to guarantee that they would be able to have physical control over
21 the accused at all times. Even if then they did arrest him, there would be at the minimum a
22 several month delay while the legal proceedings were gone through, because when they
23 arrest someone there is first a court review and then a subsequent appeal that, in fact, the
24 other accused in this case exercised in challenging Bosnia's turning them over. They lost
25 those challenges. I am not an expert in their extradition proceedings and do not know
26 under what conditions they would in fact not be able to turn someone over. For instance,
27 do they do their own independent review of the merits?
28 JUDGE STEPHEN: Ms McHenry you refer to reference in the guarantee, so-called, to the
29 extradition laws of Bosnia. I do not see anything to that effect. It simply says: "The legal
30 authorities of Bosnia, Bosnia-Herzegovina undertake the obligation herewith to ensure
31 that Delalic will be available to the ICT. Upon each request of the Tribunal the presence
Page 31
1 of Delalic will be ensured in The Hague or in any other place and in due time as it would be
2 determined by the International Tribunal." What could be more clear and unqualified than
3 that?
4 MS McHENRY: Well, your Honour, I am referring to the last paragraph ----
5 JUDGE STEPHEN: Yes.
6 MS McHENRY: --- which refers to, "This guarantee is issued in accordance with the
7 obligations undertaken by the Republic", including their rules of law on extradition. At
8 least to the extent with the other accused it is the case that before anyone was turned over
9 Bosnia had to find that that the proceeding ----
10 JUDGE STEPHEN: Just read that. It says: "This guarantee is issued in accordance with the
11 obligations undertaken by the Republic of Bosnia-Herzegovina towards the International
12 Tribunal on the basis of the Rules of the Memorandum on agreement between the
13 Government of the Republic of Bosnia-Herzegovina and the Prosecutor." That is what it
14 says.
15 MS McHENRY: Yes, your Honour.
16 JUDGE STEPHEN: Well, where is your difficulty there?
17 MS McHENRY: Because I believe that implicit in this guarantee is a ----
18 JUDGE STEPHEN: I want explicit, not implicit. There is nothing explicit at all about
19 qualifications.
20 THE PRESIDING JUDGE: Well, let us assume there is. Let us assume that as it relates to
21 two of the accused, they went through the proceedings they were entitled to under the law
22 in Bosnia before extradition. Suppose Mr. Delalic was willing to waive that right and
23 suppose he were to say, "I waive my right to insist upon exhaustion of the procedures that
24 Bosnia-Herzegovina has adopted as a precondition to extradition"?
25 MS McHENRY: Certainly if we had a binding decision from the appropriate authorities in
26 Bosnia which may include the Bosnian Supreme Court or may include the Ministry of
27 Justice, I have to say I do not know, I think that would satisfy at least that concern.
28 THE PRESIDING JUDGE: So the first question would be whether that is waivable, perhaps.
29 In some systems there are certain rights I suppose that are not waivable, but my general
30 understanding is that a challenge to extradition is something that may be waived. If that
Page 32
1 were to be done and if that were approved by a Bosnian court, then that impediment has
2 gone. The other impediment is that they would have to locate him.
3 MS McHENRY: Yes, your Honour.
4 THE PRESIDING JUDGE: OK. Is there anything else you wish to add on that point, Ms
5 McHenry?
6 MS McHENRY: No, your Honour.
7 THE PRESIDING JUDGE: We had indicated when we were hearing the motion on the form of
8 the indictment that we would consider the motion for provisional release and the
9 attachments and had the asked the Prosecutor to respond to those, but we have kind gone
10 afield from the motion on the form of the indictment. So let me hear then Ms Residovic.
11 There were questions we posed and perhaps some more we will want to ask you about
12 this matter. First regarding the Minister, is it possible to have a representative of his
13 appear before the Chamber to explain to the Chamber this undertaking that is made in the
14 letter from Mr. Pasic?
15 MS RESIDOVIC: Your Honours, my Defendant will personally assume the application to
16 come. There are no difficulties concerning his appearance before the Court because at the
17 time of the arrest in Germany, he himself without the presence of his attorney, he
18 requested immediately to be extradited to the International Tribunal. As I have said, my
19 defendant believes profoundly that he is innocent and therefore he has no reason not to
20 appear. Another proof, his statement to the German Court that he does not request any
21 procedures concerning the extradition, that he is ready to go immediately.
22 The second thing is the document that you are referring to. It came from the
23 Ministry of Justice following the consultation with the Supreme Court of
24 Bosnia-Herzegovina and the Ministry of the Interior Republic of Bosnia-Herzegovina. In
25 other words, all those authorities guarantee that they will comply with the orders of the
26 Tribunal. In other words, we are not talking here about conventional extradition or the
27 enforcement of the extradition law, but the commitment of the State to comply with the
28 orders of the Tribunal as expediently as possible. I believe our country has been doing so
29 from the beginning.
30 Thirdly, I have asked my office in Sarajevo to establish contact with Minister
31 Pasic immediately, and Minister Pasic in Sarajevo I believe should be able to confirm his
Page 33
1 attitude within an hour or so. I can now say that the Minister is quite ready to come and
2 appear before the Court if invited to confirm it all. Of course, it would be in the interest of
3 my defendant to be in Germany where he has his residence, but there is no problem if the
4 Court rules so he will live in Konjic and respond to any summons of the Court because it
5 is in his own interest. He is an innocent person. It would thus also save the costs. Even
6 the request that we made today is related to the frequent mentions by the Prosecution of
7 the enormous costs, travel and so on and so forth. I am quite ready to adduce all the
8 evidence that my Defendant is indeed willing to help the Court to reach its decision as
9 soon as possible.
10 We simply need to bear this in mind. In view of the evidence that you will have
11 available when deciding and that you will look into when ruling upon our motions, I think
12 you should also bear in mind the costs of travel, of sojourn and everything else.
13 Another thing, that is what kind of decisions this Chamber may be taken after
14 Judge Jorda confirmed the indictment. There is a Rule in this Tribunal and it allows the
15 Tribunal that if the Rules are inaccurate to then accept those Rules which are most suited
16 to the supreme principles of international law and human rights, and the right to justice I
17 believe is one of the fundamental rights.
18 I have already referred to the law of Bosnia and Herzegovina. It is quite true
19 that it need not be applied, but to follow a precedent which has not yet entered into force
20 in a case which is under way, cannot be applied in this case. If Mucic was ever the warden
21 of a prison, he was no doubt a superior person, a person in authority, but in the case of
22 Delalic we do not have that situation. So that if this precedent which has not entered into
23 force could be enforced, and I do not think so, then it certainly would not be suited to this
24 situation because if the accused Mucic has spent a day as a warden of the prison, he is
25 then responsible for that one day and our Defendant has not been a superior for one day,
26 for a single day.
27 So, you are quite right, and you should like to thank you for the commentary,
28 the Judges need to go into additional material. They are not going to evaluate the evidence,
29 but they need to have them at their disposal when ruling on our motion. Thank you very
30 much.
Page 34
1 THE PRESIDING JUDGE: Regarding Mr. Delalic's place, his desire, you said it would be in
2 his interests to be in Germany but he would live in Konjic, are you asking that if the
3 Chamber grants provisional release he be permitted to reside in Germany? Judge Stephen
4 wants to amplify on that.
5 JUDGE STEPHEN: On this question of where he might reside, there are difficulties, are there
6 not, in living in Germany? For instance, if he is to report daily, weekly or at some other
7 period to appropriate authorities, that could scarcely be done in Germany I would have
8 thought. It is unlikely that the German Police would assume that responsibility. What
9 about in The Hague or in Bosnia? In The Hague I suppose he could report here. In Bosnia
10 he could no doubt report to the Bosnian authorities. Have you any comment on this?
11 MS RESIDOVIC: Your Honours, I do not know whether you have received our additional
12 motion. We made a submission in response to the answer of the Netherlands Government
13 with a guarantee of the Government of the Republic of Bosnia-Herzegovina that it would
14 guarantee all the costs of Mr. Delalic's sojourn here. Mr. Delalic would undertake to
15 report to any agency as may be indicated by this Tribunal, but if you believe that the
16 guarantee of the government of the Republic of Bosnia-Herzegovina is the best guarantee
17 that Mr. Delalic will respond to the summons of the Court, then Mr. Delalic could live in
18 Konjic. That does not provide him with an identical opportunity for engaging in his
19 business and solving other questions and problems, but he is quite willing to go to Konjic.
20 JUDGE STEPHEN: One problem I suppose of living here in The Hague is that I gather you
21 have not yet heard from the Dutch authorities as to whether permission could be granted
22 to him to reside temporarily here, is that right? I know that you made an application, but I
23 assume you have not had a response yet.
24 MS RESIDOVIC: I have received an oral response, your Honour, and I am told that the
25 Minister of Justice had established contact with the Tribunal. I do not know with whom.
26 They said that their decision would depend on the ruling of this Court, and that they
27 would maintain communication. Unfortunately, due to my absence from the Hague I did
28 not have contact with Mr. Marro, so I do not know whether the communication has been
29 established indeed or not.
30 Another thing, in a written responses and today in the oral statement of the
31 representative of the Prosecution it is said that my Defendant is a very well off man. We
Page 35
1 have presented to the Court the letters of his firm. Unfortunately, it is very bad and the
2 situation of his family is also very bad, and to ensure the defence to which he is entitled to
3 and that is one of his basic rights to have, to have a counsel of his choice, I believe his
4 family has run into debt.
5 THE PRESIDING JUDGE: Am I correct that your order of preference for Mr. Delalic or Mr.
6 Delalic's order of preference would be first to reside in Germany if he were released. The
7 second preference would be Konjic and the third would be Germany -- you correct me if I
8 am wrong -- I am sorry, the Netherlands, Germany, Konjic, Netherlands. Would that be
9 his order of preference?
10 MS RESIDOVIC: Yes, but we have to say right away we cannot ensure the guarantees of the
11 German authorities regarding those conditions, those terms that his Honour referred to. So
12 even though that would be his wish, we do not think it realistic. We, therefore, suggest that
13 the Court rules that he lives in Konjic because that is where he has his home. He can also
14 communicate by telephone with his company and everything else. The third possibility is
15 The Hague if the Dutch authorities allow him to stay here for the duration of the
16 proceedings.
17 THE PRESIDING JUDGE: So the wish list, so to speak, would be Germany, Konjic and the
18 Netherlands, but realistically it would be Konjic and then the Netherlands, The Hague?
19 How could, though, Bosnia-Herzegovina guard against Mr. Delalic's escape, going
20 underground, so to speak? Even though the Dayton Accords have been signed, we have
21 the Dayton Accords and the situation has improved, we still read in the newspaper that
22 they certainly are not back to normal.
23 MS RESIDOVIC: There is only one danger and I do not think it will ever happen again, for the
24 war across the territory happens again. During this trial and alongside the efforts of our
25 country and the world over, I believe that for the duration of the trial or that it would
26 happen ever again, and under these conditions our country is quite able of complying, of
27 standing good on the guarantees that it has given and there are communications.
28 THE PRESIDING JUDGE: How would the Trial Chamber guard against interfering with
29 witnesses? My fellow Judge is reminding me that that is one of our concerns. How
30 would we guard against Mr. Delalic interfering with witnesses? You indicated in one
Page 36
1 response that the witnesses were of a different ethnicity and perhaps located in an area
2 that he would not have access to. Is that correct, and is that still the situation?
3 MS RESIDOVIC: Yes, the situation continues. He is accused of war crime against Serbs.
4 How can he go to Serbia and contact those witnesses? On the other hand, he is charged by
5 two Croats. How can he go there? How could he have any influence over them? Thirdly,
6 he has no money. If it is true what the Prosecution say, that some of the witnesses are in
7 the United States or Australia, my client cannot go there to influence them. Besides, those
8 witnesses are not incriminating him and I do not see how he could influence those who
9 were prisoners in the camp, so they would start incriminating him now. At the time I used
10 I think ample evidence in favour of this. Besides he has already obtained so many of
11 statements of witnesses and everything else while he was in detention, so there is no need
12 for him to influence anyone and in his interests that he tells the truth for the time to which
13 the indictment applies.
14 THE PRESIDING JUDGE: Ms McHenry?
15 MS McHENRY: With respect to concern for witnesses, there are witnesses in Bosnia and
16 there are witnesses in the immediate Konjic area, and so we would echo those concerns.
17 JUDGE STEPHEN: Can you tell me this, Ms Residovic? What sort of limitations would you
18 suggest as far as residence in Konjic is concerned, confined to his house there, to an area of
19 one kilometre around the house and daily reporting? What comments do you have on that?
20 MS RESIDOVIC: Well, I think that you would hardly expect that he spent all the time in his
21 house. So he would be able to move around Konjic, in Konjic or whatever is necessary for
22 his business, that is to go to Sarajevo and to Konjic. That is about 50 kilometres distance
23 and that is where he could report to the authorities informing them that he was going on a
24 business trip to Sarajevo or elsewhere, but he would not leave the territory of
25 Bosnia-Herzegovina which is under the control of army of Bosnia-Herzegovina. Of
26 course, his travel documents could be seized and he could use those documents only when
27 summoned by the Tribunal in The Hague.
28 JUDGE STEPHEN: I was going to ask you about that. Surrender of passport would be an
29 obvious step, I suppose?
30 MS RESIDOVIC: Yes.
Page 37
1 JUDGE STEPHEN: Surrender of identity document, however, would be impractical I imagine,
2 would it, because he needs to show that from time to time in Konjic? Is that right?
3 MS RESIDOVIC: Yes.
4 THE PRESIDING JUDGE: Ms McHenry?
5 MS McHENRY: Yes, your Honour. With respect to his living in Konjic, in addition to there
6 being witnesses there, again the Tribunal has publicly and stated many times its
7 appreciation for Bosnia's co-operation with the Tribunal. It is also the case that Konjic,
8 though, is a local area that is, in effect, where the allegations in this case happened. That is
9 where, for instance, the Defendant was previously able to get false identity documents. It
10 is still the case that things are tense now. I believe I am correct in saying that there are still
11 people out there who use false documents to travel from place to place. It is also the case
12 with respect to reporting and local officials that, for instance, the other two accused I
13 believe lived in their houses in the Konjic area for over two months or for approximately
14 two months before they were arrested because of the local conditions there. So I am not as
15 confident as your Honours may be that in fact we could assure protection of witnesses or
16 any kind of reliable reporting or even the ultimate appearance of the accused. I believe that
17 would need much more examination.
18 With respect to having Mr. Pasic, the Justice Minister here, I am sure that
19 would be a large inconvenience. I believe Bosnia does have a local representative, and at
20 the minimum I would suggest that -- I do not of course think your Honours should even go
21 this far, but if you want to go further, I would suggest at a minimum that the Court hear
22 from her and everyone be allowed to explore some of these questions.
23 JUDGE STEPHEN: That is the Ambassador?
24 MS McHENRY: Yes, your Honour, Madam Vidovic.
25 THE PRESIDING JUDGE: Yes, she has appeared before the Tribunal on other occasions.
26 MS RESIDOVIC: Excuse me, your Honours, very briefly may I?
27 THE PRESIDING JUDGE: Yes.
28 MS RESIDOVIC: The Madam Prosecutor says that my Defendant had forged documents. I
29 already discussed it. It was a legally issued document to another name under wartime
30 conditions when it was indispensable to ensure safe movement around and after two
31 attempts had been made against him in that same area. Secondly, I think that this Court
Page 38
1 should rule on our motion and that is that the Prosecutor may not use evidence obtained
2 from the accused. We have already submitted such a motion and the Prosecutor has been
3 using and commenting on evidence obtained from the accused.
4 THE PRESIDING JUDGE: Ms Residovic, does Mr. Delalic have anything to say with
5 respect to his willingness to appear before the Tribunal for any hearings that we may set
6 as well as trial?
7 MS RESIDOVIC: Yes.
8 THE PRESIDING JUDGE: Mr. Delalic, would you stand up, sir, a moment?
9 THE ACCUSED DELALIC: Yes, with pleasure, because I have no reason not to appear at
10 any time and I would really like for the proceedings in my case to start as soon as possible,
11 because I believe that the Defence and I already have so much evidence and we shall prove
12 that this is a libel, especially when it comes to two principal witnesses for the Prosecution.
13 Besides, they are in the territory of Herceg-Bosna they are not officially in our Federation.
14 They are enemies of the territory where I come and where I should like to live. There are
15 some details mentioned here and the guarantees and who should I report to. I think that is
16 the concern of the guarantor. Our Minister of Justice issued this guarantee and it is this
17 concerned how they will act towards me, what documents I will surrender to them or
18 whatever. There is I think unnecessary concern. I do not think we need any stronger
19 guarantee than that. The same one would apply for Germany without any problem or
20 procedure. In Germany where I spent unnecessary 60 days, your Honours, unnecessary
21 60 days in solitary confinement, I could do nothing and I could not help either the Defence
22 or the Prosecution regarding this misconception under which I was arrested. So, within
23 three days, if need be, I can appear either for a short session or for the real trial. Besides,
24 we have already agreed that we should complete the statements which the investigators
25 wish to do during this week in its entirety, so as not to incur unnecessary costs regarding
26 additional interviews and supplement to the statements already made. That is all that I
27 would have to say. Thank you.
28 THE PRESIDING JUDGE: What we are concerned about of course is your not contacting any
29 witnesses, persons who may have information regarding the charges that are against you.
30 That is something that you would be absolutely prohibited from doing. If we enter an
31 order directing that you not do that, then you may be subject to other charges, contempt of
Page 39
1 court, for example, and possibly other penalties if you contact witnesses. But most
2 importantly that is something that you are not to do. You understand that?
3 THE ACCUSED DELALIC: Yes, your Honour, I understand it clearly, but I do have to say a
4 fact. If I wanted to do I can do it now and contact these witnesses. The fact that I am in
5 prison now, that I am in custody, it does not mean anything because I have got counsel, I
6 have got my family. I think there is too preoccupation about contacting the witnesses, but
7 there are there are many people from the region who cannot appear in Konjic, [redacted]
8 and [redacted], they shelled Konjic, they wanted to attempt to kill me. I also doubt that
9 they will appear before this Court. They also know that these were false allegations. If
10 they said this in newspapers, in the media before, they will not appear before this Court.
11 So, your Honours, you should have no fear about me contacting the witnesses. I
12 cannot go into the Republic of Croatia, neither to Herceg-Bosna because they were in
13 conflict with us and the fact that I was in the war on the Bosnian side and also knowing
14 that I am here charged with crimes against Serbs, one cannot even imagine that I would go
15 in the region where the witnesses are.
16 MS RESIDOVIC: Among the materials that we offer there is also an appeal of all the
17 witnesses for the Prosecution cannot even contact counsel for the Defence, let alone the
18 accused.
19 THE PRESIDING JUDGE: Do you have anything else, Ms Residovic? Ms McHenry?
20 MS McHENRY: Other than to once again say that there are witnesses in the immediate Konjic
21 area. The Defence may not know the identity of all those witnesses, and certainly the
22 accused's presence in the area would discourage witnesses from co-operating with us. That
23 in fact was one of the reasons that was cited by Judge Jorda in denying similar motions
24 with respect to General Blaskic.
25 THE PRESIDING JUDGE: You may be seated, Mr. Delalic, thank you. In there is nothing
26 else from counsel, we will rule shortly on the motion of the Defence with respect to the
27 form of the indictment and also shortly on the Defence's motion for provisional release, as
28 well as the motion on separate trials that is still pending. Yes, Ms McHenry?
29 MS McHENRY: Your Honour, we would ask for a brief delay in any decision on provisional
30 release while we at least explore with the Bosnian authorities and some other potential
31 issues that might arise were the accused to be released in the Konjic area.
Page 40
1 THE PRESIDING JUDGE: You will have 10 days, is that enough time to submit a
2 supplementary response?
3 MS McHENRY: Yes, your Honour.
4 THE PRESIDING JUDGE: Very good. Thank you we will stand adjourned.
5 (12.50 p.m.)
6 (The court adjourned).