Page 77
1 Tuesday, 4 April 2006
2 [Status Conference]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 2.18 p.m.
6 JUDGE AGIUS: Madam Registrar, good afternoon to you. Could you
7 call the case, please?
8 THE REGISTRAR: Good afternoon, Your Honour. This is case number
9 IT-05-88-PT, the Prosecutor versus Vujadin Popovic and others.
10 JUDGE AGIUS: I thank you, Madam.
11 All right. So let's proceed. I take it that Miletic and Gvero
12 are still on provisional release, so I will address the others.
13 Mr. Popovic, Vujadin, can you follow the proceedings in our own language?
14 THE ACCUSED POPOVIC: [Interpretation] Yes.
15 JUDGE AGIUS: I thank you.
16 Mr. Ljubisa Beara, can you follow the proceedings in your own
17 language?
18 THE INTERPRETER: The microphones of the accused are not switched
19 on. We actually cannot hear the accused.
20 JUDGE AGIUS: Thank you for pointing that out to me. Please make
21 sure that when you answer, when you reply, that you have your microphone
22 switched on. Thank you. However, just for the record, I did hear the
23 witness confirm that he can follow the proceedings in his own language.
24 Drago Nikolic, can you follow the proceedings in your own
25 language?
Page 78
1 THE ACCUSED NIKOLIC: [Interpretation] Yes, Your Honour.
2 JUDGE AGIUS: Ljubomir Borovcanin, can you follow the proceedings
3 in your own language?
4 THE ACCUSED BOROVCANIN: [Interpretation] Yes, I can follow it in
5 my own language, Your Honour.
6 JUDGE AGIUS: Thank you. Mr. Pandurevic, can you follow the
7 proceedings in your own language?
8 THE ACCUSED PANDUREVIC: [Interpretation] Yes, I can, Your Honour.
9 JUDGE AGIUS: And Mr. Trbic?
10 THE ACCUSED TRBIC: [Interpretation] Yes, I can. Your Honour.
11 JUDGE AGIUS: Thank you. So let's go to the presentation. For
12 the Prosecution?
13 MR. McCLOSKEY: Good afternoon, Your Honour. Peter McCloskey for
14 the Prosecutor, and with me are, well, faces that are familiar and will
15 become more familiar, Janet Stewart, our case manager; Antoinette Issa;
16 and Nelson Thayer; and also with us today are Melina de la Garza and Sara
17 Murphy with our legal staff.
18 JUDGE AGIUS: I see that you're striving towards achieving
19 equality of arms.
20 MR. ZIVANOVIC: [Interpretation] Good afternoon, Your Honour. For
21 Vujadin Popovic, Zoran Zivanovic.
22 JUDGE AGIUS: I thank you, Mr. Zivanovic, and good afternoon to
23 you.
24 For accused Beara.
25 MR. MEEK: May it please Your Honour. Christopher Meek,
Page 79
1 co-counsel Nebojsa Mrkic for the accused Beara.
2 JUDGE AGIUS: What's the position of Mr. -- you have been
3 appointed in the position.
4 MR. MEEK: Your Honour--
5 JUDGE AGIUS: You have been -- you have been very simply approved
6 or appointed as co-counsel.
7 MR. MEEK: That's correct, Your Honour.
8 JUDGE AGIUS: And what is Mr. Mrkic's position?
9 MR. MEEK: Mr. Mrkic is a legal assistant from Belgrade, and lead
10 counsel, Mr. Ostojic, could not make it, and he requested that Mr. Mrkic
11 sit in on this hearing. I asked before the hearing if it would be
12 appropriate, and to ask Your Honour, and I'd happily fill out any forms to
13 allow Mr. Mrkic to sit in this Status Conference today.
14 JUDGE AGIUS: Yes, but has he been appointed as legal assistant?
15 MR. MEEK: Legal assistant, yes, Your Honour.
16 JUDGE AGIUS: By the Registrar?
17 MR. MEEK: That's my understanding, Your Honour.
18 JUDGE AGIUS: All right. If that is the case, I won't question it
19 any further.
20 MR. MEEK: Thank you very much.
21 JUDGE AGIUS: I thank you, Mr. Meek.
22 And appearances for Drago Nikolic.
23 MS. NIKOLIC: [Interpretation] Good afternoon, Your Honour. My
24 name is Jelena Nikolic. Together with my colleague, Mr. Stephane Bourgon,
25 we are representing Mr. Drago Nikolic in this case. Thank you.
Page 80
1 JUDGE AGIUS: Thank you, Madam, and good afternoon to you.
2 Appearances for Ljubomir Borovcanin.
3 MR. LAZAREVIC: Good afternoon, Your Honour. My name is
4 Aleksandar Lazarevic, and here by my side is Mr. Miodrag Stojanovic. We
5 will represent Mr. Borovcanin's Defence.
6 JUDGE AGIUS: I thank you, Mr. Lazarevic, and good afternoon to
7 you and to your colleague.
8 Appearances for Miletic, Radivoje.
9 MS. FAUVEAU-IVANOVIC: [Interpretation] Natacha Ivanovic, and I
10 represent Radivoje Miletic.
11 JUDGE AGIUS: I thank you, Madam. Appearances for -- and good
12 afternoon to you.
13 Appearances for Milan Gvero.
14 MR. KRGOVIC: [Interpretation] [No interpretation].
15 JUDGE AGIUS: I thank you, Mr. Krgovic, and good afternoon to you.
16 Appearances for Vinko Pandurevic.
17 MR. HAYNES: Peter Haynes, Your Honour, and Djordje Sarapa. Good
18 afternoon.
19 JUDGE AGIUS: I thank you, Mr. Haynes, and good afternoon to you,
20 too, and to your colleague.
21 Appearances for Milorad Trbic.
22 MS. ROHAN: Good afternoon, Your Honour. Colleen Rohan for
23 Mr. Trbic, and with me is my legal assistant Marina Akinova [phoen].
24 Thank you.
25 JUDGE AGIUS: I thank you, Madam Rohan. Good afternoon to you and
Page 81
1 your colleague.
2 So I appeal for the cooperation of everyone. It's not going to be
3 an easy Status Conference. There are many of us and everyone will have a
4 little bit to say. So if we cooperate, we'll try to bring this Status
5 Conference to an end successfully and within the shortest time possible.
6 The last Status Conference, as you will all recall, those of you
7 who were here, took place on the 10th of November of last year. I, as
8 Pre-Trial Judge, had originally scheduled another Status Conference, the
9 next Status conference, to be held on Tuesday, the 7th of March of this
10 year. However, there were some developments, as a result of which I felt
11 duty-bound not to hold that Status Conference on the scheduled day and
12 appointed today as an alternative. The rescheduling was announced by
13 means of an order that I signed on the 2nd of March, and the reason given,
14 and I can assure you, consisted of unforeseen, very valid and justified
15 reasons.
16 For the sake of the public that follow these proceedings, may I
17 just point out that Status Conferences are held pursuant to Rule 65 bis,
18 and the main purpose of the Status Conference is to organise exchanges
19 between the parties with a view to ensuring an expeditious preparation for
20 trial and, in addition, to give the opportunity to every Accused to come
21 and face-to-face with the Pre-Trial Judge, where issues relating to their
22 mental and/or physical conditions as well as to their state of detention
23 may be freely discussed.
24 In preparation for this Status Conference, I asked my Senior Legal
25 Officer to hold two 65 ter meetings. One was held just prior, the 3rd
Page 82
1 March date, although both Mr. Von Hebel and myself knew at the time that
2 the Status Conference will not follow the day after.
3 And the other one -- the first one took place on the 6th of March,
4 to be precise, and the second one took place yesterday, on the 3rd of
5 April. Mr. Von Hebel has duly informed me of everything that was
6 discussed during these two 65 ter meetings, made notes of same, and I will
7 be referring to some of these matters as we go along today.
8 I will start first with what appears to be outstanding motions,
9 and although in number they seem to be -- they appear to be quite a
10 number, in reality there is much in common with plenty of them, with a lot
11 of them, and I will explain to you how I propose to be dealing, with the
12 utmost of judicial economy.
13 You will recall that on the 11th of November of last year, the
14 Prosecution filed a notice of filing a consolidated amended indictment
15 which contained the text of the joint amended indictment against all
16 accused in the present case. I then issued an order called -- on the 7th
17 of December, 2005, and further to it, all accused were called upon to file
18 preliminary motions in relation to or against the form of the consolidated
19 amended indictment before the 9th of January of this year. All accused
20 except you, Mr. Beara, did so. The Prosecution then filed a consolidated
21 response on the 23rd of January of this year, and in the wake of this
22 consolidated response, we had a number of accused filing a reply in return
23 shortly afterwards.
24 Then came the 22nd of March of this year. We are talking of very
25 recently. And on the 22nd of March, the Prosecution filed a proposed
Page 83
1 amendment to the indictment in relation to one of the accused only, that
2 is you, Mr. Borovcanin. On then the 29th of March, 2006, that's just
3 barely over a week ago, the Prosecution then filed a motion to amend the
4 indictment relating to the 22nd March 2006 Appeals Chamber decision or
5 judgement in the case of Stakic. This motion aims at deleting from the
6 consolidated amended indictment all references to the concept of direct
7 and/or indirect co-perpetration, and to insert instead references to two
8 forms of joint criminal enterprise; namely, the joint criminal enterprise
9 with agreement and joint criminal enterprise with common purpose.
10 Then I will just mention them, I have not had time to go through
11 them because they arrived on my desk today while I was presiding over
12 another case, but I have received today confirmation from the Registry of
13 your appointment as co-counsel, Mr. Meek. I have Prosecution consolidated
14 response to General Miletic's motion for access to confidential materials
15 in the Perisic case and to rejoin the motions of Milan Gvero, Ljubomir
16 Borovcanain, Drago Nikolic, and Vinko Pandurevic. These are tied already
17 to some of the motions that we have.
18 I also received today Vinko Pandurevic's Defence notification on
19 joining the motion of General Gvero for access, confidential information
20 in the Milosevic case. Again, that is connected to an existing -- another
21 motion from General Gvero for access, confidential information in the
22 Milosevic case. That goes with the other. And, of course, these matters
23 will need to be addressed as I prepare the decisions on the outstanding
24 motions.
25 However, I wish to make it clear that I don't think it is the
Page 84
1 right moment now to enter into any debate on all the motions relating to
2 the form of the indictment. There are several, as you all know. It is my
3 intention, instead, to issue later on today in the course of this Status
4 Conference a further oral order for the filing of responses and replies in
5 order to allow me and the Trial Chamber seized with this case to take --
6 to come out with one consolidated decision on all pending motions on the
7 indictment. We have been working very hard on this, but, of course, until
8 the Appeals Chamber decision in the Stakic case we had even a particular
9 motion dealing with co-perpetratorship, so we have done a lot of work, I
10 won't say for nothing, but which kept us from concluding on other issues
11 which now have to be concluded, but I can assure you that the matters, all
12 outstanding matters are being attended to.
13 This oral order that I will give within a couple of minutes will
14 provide also a decision on the response filed by counsel for accused Gvero
15 in relation to the amendment of the indictment on the 30th of March, 2006,
16 which I have here with me in case we need to refer to it, and the motion
17 filed by accused Borovcanin on the 31st of March just a few days ago for
18 an extension of time.
19 I emphasise that this oral order that I'm going to give shortly
20 aims at getting the responses in from the parties, from all the parties,
21 at the same time, on the same -- on both the issue under Rule 50, that is
22 as to whether the Prosecution will be granted leave to amend the
23 indictment, and also the substantive comments pursuant to Rule 72 on any
24 alleged shortcomings in the formulation of the proposed amended
25 indictment. So I'm trying to kill as many birds as possible with one
Page 85
1 stone, and I count on the cooperation of everyone.
2 Having said this, I'm now going to proceed with my oral order. I,
3 Carmel Agius, as Presiding Judge in this case, and in these pre-trial
4 proceedings, having noted all the filings up until now on the form of the
5 consolidated amended indictment filed by the Prosecution on the 11th of
6 November, 2005, considering that judicial economy, amongst other
7 considerations, dictates that the Trial Chamber takes one consolidated
8 decision, not only in relation to all filings relating to the consolidated
9 amended indictment itself but also to all additional and further
10 submissions that I am hereby ordering and referring to in relation to the
11 proposed amendments to -- the Prosecution's proposed amendments in their
12 filings of the 22nd and 29th March, pursuant to Rules 50, 72, 126 bis
13 and 127, I hereby order that, first, all accused will each file a
14 consolidated response to the Prosecution's motion to amend the indictment
15 relating to the 22nd March 2006 Appeals Chamber judgement in the case of
16 Stakic filed on the 29th of March and the accused Borovcanin will also
17 file a response to the Prosecution motion to amend the indictment relating
18 to Ljubomir Borovcanin filed on the 22nd of March before or by Wednesday,
19 the 12th of April, 2006, relating to the issue of amendment pursuant to
20 Rule 50(A)(i)(c) and relating to any alleged defects in the form of the
21 proposed amendments pursuant to Rule 72.
22 Second, the Prosecution will file, if it so wishes, one
23 consolidated reply to the Defence responses by Wednesday, 19th of April
24 2006. It is hoped that after that, the Chamber will then be in a position
25 to issue one consolidated decision which will cover all previous issues
Page 86
1 and submissions that I referred to, plus the new ones following the motion
2 by accused Borovcanin and also the motion by the Prosecution.
3 There is a motion pending from accused Pandurevic relating to a
4 renewed request for provisional release filed on the 30th of January,
5 2006. Now, on this, I am in discussions with the other two Judges in my
6 Chamber, and we will be able to take a decision on this motion in due
7 course.
8 The same applies to similar almost identical motion filed by
9 accused Borovcanin. We are discussing this, and we should be able to take
10 a decision quite soon.
11 Then accused Miletic, on the 21st of March 2006, requested a --
12 filed a motion requesting a translation of the pre-trial brief of the
13 Prosecution into Serbo-Croat, and the time for the accused after the
14 translation -- after translation has been provided to submit the pre-trial
15 brief.
16 There are several other co-accused that have joined in with this
17 motion. I don't need to repeat every single one of them. This is being
18 considered. It has reached a very advanced stage of elaboration. It's
19 being drafted actually, and I assume that we should be in a position to
20 decide it pretty soon.
21 Finally, there is another motion by accused Miletic filed very
22 recently, on the 28th of March of, 2005 [sic], requesting first a
23 translation into B/C/S of two other motions that the Prosecution has
24 announced to file; namely, one being or relating to adjudicated facts, and
25 the other relating to the admission of witness statements pursuant to Rule
Page 87
1 92 bis, and secondly, Mr. Miletic is also asking for time for the accused
2 after the translation has been provided to submit their responses.
3 Again, even if relation to this motion of Miletic, of the 28th of
4 March, several other co-accused have joined in. I don't need to repeat
5 the names. Again, this is also being dealt with and more or less it has
6 reached the same stage as the previous one. It was more or less the same
7 principle is more or less involved, and we hope that when we hand down the
8 decision on the 21st March motion we will be able to hand down our
9 decision on the 28th March motion too, unless I decide to combine them
10 together in one decision, which is very likely what I will opt for. But I
11 still am in the process of thinking about it, because there are some
12 slight differences.
13 All right. Before I move on to the next section, are there any
14 comments from any of you on what I have stated so far before I move on to
15 disclosure matters?
16 I see none. So I come to disclosure matters. I am fully aware of
17 the debate or exchange of discussions that took place during the two
18 65 ter meetings that I referred to earlier, which Mr. Von Hebel provided,
19 and I am only going to dwell on those issues relating to disclosure where
20 I think I either need some updating or some kind of information from you.
21 First relates to disclosure under Rule 66(A)(ii). I am informed
22 that roughly there are about 20 to 25 additional witness statements that
23 are being prepared, and this is further to the forensic experts and 92 bis
24 witnesses, and Mr. Von Hebel was more or less assured or given an
25 indication by you, Mr. McCloskey that disclosure in this category will be
Page 88
1 completed by mid-April. I would like to have a formal confirmation from
2 you that this is so.
3 MR. McCLOSKEY: Yes. We fully intend to try, and it's just a
4 matter of transcriptions and reports. We are very close to meeting that.
5 We keep struggling and trying to take resources from the Krajisnik team,
6 so if you have any pull with the Krajisnik judges that would be helpful.
7 But it's a matter of resources and we are getting close, so I think we
8 will be able to meet that.
9 JUDGE AGIUS: I'll try to give a hand, Mr. McCloskey, but of
10 course it doesn't depend much on me. I know how that Trial Chamber is
11 working at full speed, and I know how limited our resources are but I will
12 try to give a hand.
13 All right. Are there any comments from the Defence side on
14 Rule 66(A)(ii) disclosure, only on that category of disclosure or type of
15 disclosure? I see none.
16 I feel a little bit handicapped by this column here that hides
17 Mr. Lazarevic, his colleague. Ms. Rohan and her legal assistant, I can
18 barely see you. So if you need to attract my attention, please keep that
19 in mind because it's not easy. I mean, I can't see you.
20 So Rule 68 disclosure. Again, I'll be very specific here. I am
21 informed that during the 65 ter meetings or conference of the 6th of March
22 there were discussions between the parties on the issue of the use of the
23 EDS system and the possibility of providing material to the Defence by
24 CD-ROM because of the well known deficiencies in the EDS system. I am now
25 informed, and please I would be happy to have a confirmation of this, that
Page 89
1 during yesterday's 65 ter conference, the parties informed my Senior Legal
2 Officer that the Prosecution will be in a position to provide all 66
3 and 68 -- Rule 66 and 68 material on an external hard disk to the Defence
4 so that they can have easy access to all core documentations for the
5 trial.
6 Do you confirm that, Mr. McCloskey? And do you confirm -- are you
7 happy with that, members of the Defence teams?
8 MR. McCLOSKEY: Yes. There has been a recent agreement to be able
9 to provide a large amount of material directly on a hard disk, which I
10 think is close to happening. It's not absolutely everything. There are
11 still some collections that are in the EDS, but I think a good part of the
12 collections are able to be just put on a hard drive and that's something
13 that I'm confident will happen.
14 JUDGE AGIUS: I thank you.
15 Any differing or -- opinions or remarks or comments? None? From
16 the Defence?
17 MS. ROHAN: Excuse me, behind the pole.
18 JUDGE AGIUS: Yes, Ms. Rohan.
19 MS. ROHAN: The Office of the Prosecutor has been extremely
20 cooperative in working this out with the Defence. Still I think it might
21 be useful if we would have some sense of the date when this might happen.
22 If that's some information that you have.
23 JUDGE AGIUS: I thank you, Ms. Rohan.
24 Mr. McCloskey?
25 MR. McCLOSKEY: Internally we are striving for 5 May, but
Page 90
1 Ms. Stewart tells me hopefully individual laptops by the end of the week.
2 So everyone has been working hard on all this, Your Honour, and
3 just to let you know, the Defence and the Prosecution, when up eight
4 Defence counsels and a Prosecution that aren't saying anything in response
5 to these questions, that's a reflection that everyone has been working
6 very hard on these issues, just to let you know that, that there is a --
7 that the value of that silence is hard to put a price on.
8 JUDGE AGIUS: I thank you. And I am -- enjoin you -- don't take
9 this by any way of criticism, I am not criticising, but I enjoin you to
10 chase this matter up to the best of your ability. Otherwise you have the
11 complete trust of the Trial Chamber. I would like you to keep in mind
12 also the need to bring the pre-trial proceedings to an end as quickly as
13 we can, so that we can then start the trial at the first opportunity.
14 So let's go into private session for a while because I need to
15 discuss something in private session with you.
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13 [Open session]
14 JUDGE AGIUS: Okay. We are in open session.
15 I am going to get very soon to the crucial part of today's Status
16 Conference, and that's the entering of pleas. But before I do that, I am
17 just going to try and briefly recapitulate the salient points that has
18 brought us to this. I stated earlier that on the 11th of November of last
19 year the Prosecution filed its consolidated amended indictment against all
20 accused in the present joint case. This was in the wake of the decision
21 given by Trial Chamber III of which I formed part, joining all the present
22 accused together in one case.
23 The indictment has been translated into B/C/S, and according to
24 the information that I have available, made -- given to the accused, who
25 very soon will be asked to enter their plea.
Page 94
1 In the meantime, as I stated earlier on, and I'm stating it again
2 because I want to make one thing clear. In the meantime, as recently as
3 the 22nd of this month, that is, the same day the appeals trial chamber
4 handed down their appeal judgement in the Stakic case, the Prosecution
5 filed a motion that -- relating only to accused Borovcanin seeking to
6 further amend the consolidated amended indictment. And then exactly a
7 week later, again once more in the wake of the Stakic appeal decision,
8 judgement, Prosecution filed another motion to which I have referred
9 already, again seeking to further amend the consolidated amended
10 indictment, removing the concept of co-perpetratorship, co-perpetration
11 and substituting therefore the question of joint criminal enterprise in
12 its two forms.
13 However, these amendments are at the moment still subject to
14 Rule 50 -- to the Rule 50 procedure, and parties will need to be heard on
15 this first as has been indicated above. In other words, it's premature to
16 take into consideration these two motions or the contents of, substance of
17 these two motions for the purpose of the exercise that we have today. So
18 for all clarity, the pleadings that I am going to seek to obtain from the
19 accused today, or from some of the accused today, will be against the
20 indictment that was contained and as is contained in the OTP motion of the
21 11th November 2005, to which I have been referring as the consolidated
22 amended indictment.
23 Of course, if the litigation about these motions and further
24 proposed amendment lead to further new charges against the accused, a
25 further new pleading will, of course, become necessary once a decision is
Page 95
1 made and it becomes final.
2 So that's the position. Because of this, I will be explaining,
3 because I want to go to bed tonight with my conscience as quiet and as
4 serene as possible, I will be explaining to each one of the accused the
5 difference that there is between the original indictment and the
6 consolidated amended indictment. And then each one will be asked to plead
7 guilty or not guilty to the count, to the full count.
8 I will be approaching the accuseds one by one to -- and ask them
9 how they wish to plead, and I also wish to make sure of the following
10 before I proceed. You would have noticed earlier on I said, "I am
11 informed that not only has the consolidated amended indictment been
12 translated into B/C/S but that you have each received a copy of it in your
13 own language." If any one of you has not received the consolidated
14 amended indictment in your own language, please stand up and speak up.
15 So I take it that you have all.
16 I also wish to know whether you have read this indictment. Is
17 there anyone of you who has not read this indictment, the consolidated
18 amended indictment? If there is, please speak up.
19 Also it is my duty -- yes, I see Madam -- I'm sorry, I didn't see
20 you before.
21 MS. FAUVEAU-IVANOVIC: [Interpretation] I'm very sorry,
22 Mr. President. Excuse me for interrupting you.
23 I wanted to say there was a third proposed amendment of the
24 indictment attached to the response by the Prosecutor of the 23rd of
25 January. I would like to say a few words about this, but you might wish
Page 96
1 to finish the pleadings first and then I could have the floor.
2 JUDGE AGIUS: I thank you. I know about that. Thank you, Madam
3 Fauveau. Let me finish with this exercise and then of course you will--
4 MS. FAVEAU-IVANOVIC: [Interpretation] Thank you very much.
5 JUDGE AGIUS: So the Rules and the Statute also impose on me the
6 responsibility to make sure that you fully understand the indictment and
7 the nature of the charges that are brought against you in it.
8 Is there any one of you that does not understand the indictment or
9 the nature of the charges that have been brought against you and to which
10 you will be pleading very soon?
11 I see no reaction from the six co-accused.
12 Next thing I would like to know, I know that this matter was more
13 or less dealt with yesterday during the 65 ter meeting, but for reasons of
14 my own, I want a confirmation from each one of you as to whether you would
15 like the consolidated amended indictment to be read out in full here or
16 whether you are waiving this right that you have. The right exists. If
17 any one of you asks that we read out the consolidated amended indictment
18 in full, we are duty-bound to do it, but this is a right that you can
19 renounce to. Is there any one of you who would like me to read out the
20 entire consolidated amended indictment?
21 All right. Registrar, please enter into the records that none of
22 the accused has expressed -- so I take it that you are waiving this right.
23 The only conclusion I can draw is that one, and if you don't agree that
24 this is the conclusion, please speak up now.
25 So the consolidated amended indictment will not be read out or
Page 97
1 will be taken as read.
2 Yes, Madam Fauveau?
3 MS. FAUVEAU-IVANOVIC: [Interpretation] Thank you very much, Mr.
4 President.
5 The Prosecutor filed three proposed amendments: One on the 23rd
6 of January, 2006; the other one on the 22nd of March; and the last one in
7 date was on the 29th of March. They are cumulative in nature, I believe.
8 The problem the Defence now face, they have to provide a
9 consolidated response, and they have to know exactly what are the
10 amendments. I'm asking hereby the Prosecutor to file a consolidated
11 proposal for the amendments. I'm not asking for postponement of the time
12 or the dates, but I'd like to have this proposal by the end of the working
13 day on Friday.
14 JUDGE AGIUS: What's your reaction to that, Mr. McCloskey? Given
15 that we will be proceeding today with what we have, that's based on the
16 consolidated, 11th November consolidated amended indictment, the last two
17 motions, 22nd and 29th of March, particularly the 29th of March one, will
18 have to be dealt with subsequently.
19 MR. McCLOSKEY: Your Honour, I believe our motions speak for
20 themselves. They are relatively clear, and if there is some confusion or
21 some help I can -- we can speak with Ms. Fauveau outside of court, but I
22 don't see the point in reshuffling everything to send it out again. It's
23 there as we meant to file it, and I think it's clear.
24 JUDGE AGIUS: All right, point taken.
25 And if you need the Trial Chamber to deal with this specifically,
Page 98
1 Ms. Fauveau, please come forward with an ad hoc motion and we will decide
2 accordingly. The problem that will arise definitely is substituting
3 co-perpetratorship with joint criminal enterprise, are we talking of new
4 charges, what are we talking about? Will there be the need for further
5 plea and so on and so forth? Same applies to the Borovcanin measure.
6 Anyway, I don't want to prejudice the Trial Chamber's position on
7 this because this is a decision if asked -- if I am asked to take this
8 decision, it will be in consultation with the other two Judges, so I
9 cannot make a pronouncement myself on this.
10 But in any case, we are going to proceed -- yes, Madam Fauveau?
11 MS. FAUVEAU-IVANOVIC: [Interpretation] Mr. President, the first
12 proposed amendment filed on the 23rd of January had to do with Counts 4
13 and 5, and it had to do with the language of the two counts. Of course,
14 General Miletic's Defence is not against the amendments. But the problem
15 is that in the latest proposed amendment, that of the 29th of March, you
16 don't have the new Counts 4 and 5. Therefore, we find it rather hard to
17 meet this new mode of liability, or new mode of JCE, if the language of
18 Counts 4 and 5 is not clearly defined.
19 So I understood yesterday that the Prosecutor is of the view that
20 all these changes add up, but I don't think it's up to the Defence to try
21 and find in one proposal, one specific paragraph, and another paragraph
22 and another. We should have a clear language for the indictment and we
23 should also have it in the language of the accused if we want to be able
24 to answer. We should at least have one clear proposal in one single text
25 in order to provide a proper answer.
Page 99
1 Thank you.
2 JUDGE AGIUS: I thank you, Madam Faveau. My position doesn't
3 change on this because it's not fit and proper for me to give an
4 indication as to what I think, since this is obviously a matter that has
5 to be dealt with by the Trial Chamber in its collegial format.
6 So I'm going to deal with you one by one.
7 Mr. Popovic, could you please stand up?
8 Mr. Popovic, before I ask you to enter your plea, I wish to point
9 out that if you prefer not to enter a plea of guilty or not guilty, in
10 other words, if you remain passive and do nothing, I am bound by the
11 Statute and the Rules to enter a plea of not guilty on your behalf.
12 That's the position. So there is no way you can prejudice yourself by not
13 entering a plea.
14 I will point out first and foremost to you the difference between
15 the initial indictment against you and the consolidated amended
16 indictment. When I say the initial indictment, I mean that indictment
17 which -- with which you were confronted when you first appeared before
18 this Tribunal. You know that after that there was the joinder and then
19 the consolidated amended indictment.
20 Now in the first indictment, in the initial indictment, you were
21 charged under Counts 1(a) and (b) with genocide or, in the alternative,
22 complicity to commit genocide. The charge of complicity of genocide has
23 now been removed from the indictment in order to avoid redundancy with the
24 mode of liability of aiding and abetting under Article 7(1) of the
25 Statute. There is, however, now a new Count 2 in the consolidated amended
Page 100
1 indictment that charges you with something akin but different and charges
2 you with conspiracy to commit genocide.
3 Also, in the initial indictment, you were charged with inhumane
4 acts, consisting in the forcible transfer of the Bosnian Muslim population
5 from the Srebrenica enclave and persecutions, including the forcible
6 transfer of Bosnian Muslims from the Srebrenica enclave. You see the
7 similarity or the common denominator in these two charges in the initial
8 indictment.
9 In the consolidated indictment, the charge of forcible transfer of
10 Bosnian Muslims from the Srebrenica enclave, the charge of forceable
11 transfer, not only applies to women and children but has been extended to
12 include the forced bussing of men who were separated allegedly --
13 allegedly separated at Potocari or captured or having surrendered from the
14 column of peoples fleeing the Srebrenica enclave up to the Zvornik area
15 where they, according to the Prosecution, were ultimately captured and
16 executed. In addition, the consolidated amended indictment charges the
17 forcible transfer of the Bosnian Muslim population from the Zepa enclave,
18 which wasn't before, including the deportation of men from Zepa. The
19 charge of persecutions has also been extended in the consolidated amended
20 indictment accordingly and the charge of deportation has been added.
21 You see I've tried to explain to you how the indictment has
22 changed from what it was to what it is now.
23 What I'm going to do now, Mr. Popovic, and I invite the other
24 co-accused to follow exactly what I'm doing, because this is what I'm
25 going to do with each one of you later on, is I'm going to go through the
Page 101
1 charges one by one, as they are now in the consolidated amended
2 indictment, and then I will ask you whether you wish to plead, and if you
3 wish to plead, whether you wish to plead guilty or not guilty to each of
4 these counts separately. Your answer should be either guilty or not
5 guilty.
6 I start with Count 1. Count 1 charges you with genocide
7 punishable under Articles 4(3)(a) and 7(1) of the Statute of the Tribunal.
8 That is you are being charged with individual criminal responsibility for
9 genocide.
10 How do you wish to plead to this first count of genocide? Guilty
11 or not guilty?
12 THE ACCUSED POPOVIC: [Interpretation] Not guilty.
13 JUDGE AGIUS: The accused pleads not guilty.
14 Count 2 charges you with conspiracy to commit genocide punishable
15 under Articles 4(3)(b) and Article 7(1) of the Statute of the Tribunal.
16 Again you're charged with individual criminal responsibility here.
17 How do you wish to plead to this second count; namely of
18 conspiracy to commit genocide? Guilty or not guilty?
19 THE ACCUSED POPOVIC: [Interpretation] Not guilty.
20 JUDGE AGIUS: The accused pleads not guilty. Count 3 charges you
21 with extermination, this being a crime against humanity punishable under
22 Articles 5(b) and 7(1) of the Statute, again individual
23 criminal responsibility.
24 How do you wish to plead to this third count of extermination?
25 Guilty or not guilty?
Page 102
1 THE ACCUSED POPOVIC: [Interpretation] Not guilty.
2 JUDGE AGIUS: The accused pleads -- enters a plea of not guilty to
3 the third count.
4 Mr. Lazarevic?
5 MR. LAZAREVIC: Yes, I apologise, Your Honour, for this, but the
6 transcript shows that the accused Borovcanin is entering his plea instead
7 of accused Popovic.
8 JUDGE AGIUS: Yes, I thank you for pointing that out. I think
9 that needs to be taken care of in the transcript.
10 Mr. Borovcanin, you will still have a chance to enter your plea
11 freely, and Mr. Popovic will not have the right to represent you. I can
12 assure you of that.
13 So we come -- so for the record, I just make it clear that what
14 has been pointed out by Mr. Lazarevic is absolutely correct. The
15 transcript should show accused Popovic and not Borovcanin.
16 Count 4 charges you with murder, a crime against humanity,
17 punishable under Articles 5(a) and Article 7(1) of the Statute of the
18 Tribunal.
19 How do you wish to plead to this Count 4, murder and -- count of
20 murder?
21 THE ACCUSED POPOVIC: [Interpretation] Not guilty.
22 JUDGE AGIUS: Not guilty.
23 Count 5 charges you with murder, this time being a violation of
24 the laws or customs of war. Again, you're being charged under Article 3
25 and Article 7(1) of the Statute.
Page 103
1 How do you wish to plead? Guilty or not guilty?
2 THE ACCUSED POPOVIC: [Interpretation] Not guilty.
3 JUDGE AGIUS: Count 6 charges you with persecutions on political,
4 racial and religious grounds, a crime against humanity. And these
5 persecutions include murder, cruel and inhumane treatment, terrorising the
6 civilian population, destruction of personal property and forcible
7 transfer, all punishable under Articles 5(h) and 7(1) of the Statute of
8 this Tribunal.
9 How do you wish to plead to this sixth count consisting of
10 persecutions?
11 THE ACCUSED POPOVIC: [Interpretation] Not guilty.
12 JUDGE AGIUS: Not guilty.
13 Count 7 charges you with inhumane acts consisting in forcible
14 transfer, a crime against humanity, punishable under 5 -- Articles 5(1)
15 and 7(l) [sic] of the Statute of the Tribunal.
16 How do you wish to plead to this seventh count? Guilty or not
17 guilty?
18 THE ACCUSED POPOVIC: [Interpretation] Not guilty.
19 JUDGE AGIUS: I thank you, Mr. Popovic.
20 We come to Count 8, which charges you with deportation. I've
21 already explained how this has come in, a crime against humanity,
22 punishable under Articles 5(d) and 7(1) of the Statute of the Tribunal.
23 How do you wish to plead? Guilty or not guilty?
24 THE ACCUSED POPOVIC: [Interpretation] Not guilty.
25 JUDGE AGIUS: All right. I ask the Registrar to put on record
Page 104
1 therefore that accused Mr. Popovic has pleaded not guilty to all the eight
2 counts brought against him in the consolidated amended indictment.
3 Mr. Popovic, I thank you so much. Please take a seat.
4 And I now ask Mr. Beara to -- you can remain seated for the time
5 being. I will ask you to stand up later.
6 You are in a somewhat slightly different position. Following the
7 consolidated amended indictment. Before I ask you to enter your plea, I
8 will explain the difference that exists between the previous -- what I
9 call the previous indictments.
10 What I need to tell you is that in the amended indictment, you
11 were charged with inhumane acts, namely forcible transfer and
12 persecutions, including the forcible transfer of the Bosnian Muslim
13 population from Srebrenica by means of the forced bussing of the women and
14 children -- of women and children, to Bosnian Muslim-controlled territory,
15 and the forced bussing of men separated at Potocari or captured or having
16 surrendered from the column of people fleeing the Srebrenica enclave up to
17 Zvornik area where, according to the Prosecution, they were captured and
18 ultimately executed.
19 In the consolidated amended indictment, the charge of forcible
20 transfer has been extended to include also the forcible transfer of the
21 Bosnian Muslim population from the Zepa enclave, which also includes the
22 deportation of the men from Zepa. The charge of persecutions has also
23 been extended in your case, in the consolidated amended indictment
24 accordingly, and the charge of deportation has been added.
25 So I now ask you to stand up and we'll go through the same
Page 105
1 procedure.
2 Have you understood how your situation has changed?
3 THE ACCUSED BEARA: [No interpretation].
4 JUDGE AGIUS: I thank you so much again I will be asking you
5 whether you plead guilty or not guilty, and please restrict your answer to
6 guilty or not guilty.
7 THE INTERPRETER: Your Honour, we have problems hearing the
8 accused. He is simply too far from the microphone.
9 JUDGE AGIUS: Mr. Beara, the interpreters are telling me that you
10 are too tall, and they can't -- and we can't -- no, it's okay. I mean, I
11 will -- just raise your voice, the volume of your voice and they should
12 be able to hear you.
13 Are you hearing him now? Can you say something, please?
14 THE ACCUSED BEARA: [Interpretation] Can you hear me now?
15 THE INTERPRETER: Yes, we can, but it is not as loud as it should
16 be. This is better now.
17 JUDGE AGIUS: So Count 1, Mr. Beara, charges you with genocide
18 which is punishable under Articles 4(3)(a) and 7(1) of the Statute of the
19 Tribunal. When I say 7(1), it means that you've been charged
20 individually, in your own individual capacity, individual criminal
21 responsibility.
22 How do you wish it plead to this first count of genocide? Guilty
23 or not guilty?
24 THE ACCUSED BEARA: [Interpretation] Not guilty.
25 JUDGE AGIUS: And Count 2 charges you with conspiracy to commit
Page 106
1 genocide punishable under Articles 4(3)(b) and 7(1) of the Statute.
2 How do you wish to plead to there second count? Guilty or not
3 guilty?
4 THE ACCUSED BEARA: [Interpretation] Not guilty.
5 JUDGE AGIUS: And Count 3 charges you with extermination, a charge
6 that you had already, punishable under Article 5(b) and Article 7(1) of
7 the Statute.
8 How do you wish to plead to this third count of extermination?
9 Guilty or not guilty?
10 THE ACCUSED BEARA: [Interpretation] Not guilty.
11 JUDGE AGIUS: And Count 4 charges you with murder, a crime against
12 humanity, punishable under Article 5(a) and Article 7(1) of the Statute of
13 the Tribunal.
14 How do you wish to plead to this fourth count of murder as a crime
15 against humanity? Guilty or not guilty?
16 THE ACCUSED BEARA: [Interpretation] Not guilty.
17 JUDGE AGIUS: And Count 5 charges you again with murder but this
18 time being a violation of the laws or customs of war, which is punishable
19 under Article 3 and 7(1) of the Statute of the Tribunal.
20 How do you wish to plead to this fifth count of murder?
21 THE ACCUSED BEARA: [Interpretation] Not guilty.
22 JUDGE AGIUS: And Count 6 charges you with persecutions on
23 political, racial and religious grounds, that is being a crime against
24 humanity, and which includes murder, cruel and inhumane treatment,
25 terrorising the civilian population, destruction of personal property and
Page 107
1 forcible transfer punishable under Articles 5(h) and 7(1) of the Statute.
2 How do you wish to plead? Guilty or not guilty?
3 THE ACCUSED BEARA: [Interpretation] Not guilty.
4 JUDGE AGIUS: And Count 7 charges you with inhumane acts, forcible
5 transfer being a crime against humanity punishable under Articles 5(i)
6 and 7(1) of the Statute of the Tribunal.
7 How do you wish to plead? Guilty or not guilty?
8 THE ACCUSED BEARA: [Interpretation] Not guilty.
9 JUDGE AGIUS: And finally Count 8 charges you with deportation,
10 being a crime against humanity, punishable under Articles 5(d) and 7(1) of
11 the Statute.
12 How do you wish to plead? Guilty or not guilty?
13 THE ACCUSED BEARA: [Interpretation] Not guilty.
14 JUDGE AGIUS: I thank you, Mr. Beara. You may sit down.
15 And, Madam Registrar, could you please enter in the records of
16 this case that accused Beara entered a plea of not guilty to all eight
17 counts brought against him in the consolidated amended indictment.
18 I now call on Drago Nikolic to pay attention. You may remain
19 seated for the time being. I'll explain to you the differences between
20 the initial indictment and the consolidated amended indictment.
21 In the initial indictment, you were charged under Counts 1(a) and
22 (b) with genocide or, in the alternative, with complicity to commit
23 genocide, very similar to what your colleague Popovic was charged with.
24 The charge of complicity of -- in genocide has now been removed from the
25 indictment in order to avoid redundancy with the mode of liability of
Page 108
1 aiding and abetting under Article 7(1) of the Statute, but there is now a
2 new Count 2 which charges you with conspiracy to commit genocide, and this
3 is what you will be asked to enter a plea on.
4 Also in the initial indictment you were charged with persecutions,
5 not explicitly including forcible transfer, and you were not charged with
6 forcible transfer as a separate count. The consolidated amended
7 indictment, however, charges you with persecutions which include the
8 forcible transfer of Bosnian Muslim population from Srebrenica and Zepa,
9 which also includes the deportation of men from Zepa. It charges you
10 accordingly with forcible transfer and deportation. More or less the same
11 as I explained in the case of co-accused Popovic.
12 So please stand up now, and we'll go through the eight counts, and
13 I will be asking you how you wish to plead to each one of these eight
14 counts.
15 Count 1 charges you with genocide punishable under
16 Article 5, 4(3)(a) and 7(1) of the Statute of the Tribunal. When I
17 say 7(1), I mean individual criminal responsibility.
18 How do you wish to plead to this Count 1 of genocide? Guilty or
19 not guilty?
20 THE ACCUSED NIKOLIC: [Interpretation] Not guilty.
21 JUDGE AGIUS: And Count 2 charges you with conspiracy to commit
22 genocide, punishable under Articles 4(3)(b) and 7(1) of the Statute.
23 How do you wish to plead? Guilty or not guilty?
24 THE ACCUSED NIKOLIC: [Interpretation] Not guilty.
25 JUDGE AGIUS: Count 3 charges you with extermination, this being a
Page 109
1 crime against humanity, punishable under Articles 5(b) and 7(1) of the
2 Statute of the Tribunal.
3 How do you wish to plead? Guilty or not guilty?
4 THE ACCUSED NIKOLIC: [Interpretation] Not guilty.
5 JUDGE AGIUS: And Count 4 charges you with murder, a crime against
6 humanity, punishable under Articles 5(a) and 7(1) of the Statute.
7 What's your plea? Guilty or not guilty?
8 THE ACCUSED NIKOLIC: [Interpretation] Not guilty.
9 JUDGE AGIUS: And Count 5 also charges you with murder, however
10 this being a violation of the laws or customs of war punishable under
11 Article 3 and 7(1) of the Statute of the Tribunal.
12 How do you wish to plead to this Count 5 of murder? Guilty or not
13 guilty?
14 THE ACCUSED NIKOLIC: [Interpretation] Not guilty.
15 JUDGE AGIUS: Count 6 charges you with persecutions on political,
16 racial and religious grounds, a crime against humanity, which includes
17 murder, cruel and inhumane treatment, terrorising the civilian population,
18 destruction of personal property and forcible transfer punishable under
19 Articles 5(h) and 7(1) of the Statute of this Tribunal.
20 How do you wish to plead to this sixth count of persecutions?
21 Guilty or not guilty?
22 THE ACCUSED NIKOLIC: [Interpretation] Not guilty.
23 JUDGE AGIUS: Yes, not guilty.
24 And Count 7 charges you with inhumane acts, being forcible
25 transfer, a crime against humanity, punishable under Articles 5(i)
Page 110
1 and 7(1) of the Statute of this Tribunal.
2 How do you wish to plead to this seventh count? Guilty or not
3 guilty?
4 THE ACCUSED NIKOLIC: [Interpretation] Not guilty.
5 JUDGE AGIUS: And Count 8 charges you with deportation, a crime
6 against humanity, punishable under Articles 5(d) and 7(1) of the Statute
7 of the Tribunal.
8 How do you wish to plead to this eighth and final count of
9 deportation? Guilty or not guilty?
10 THE ACCUSED NIKOLIC: [Interpretation] Not guilty.
11 JUDGE AGIUS: All right. I thank you, Mr. Nikolic. You may sit
12 down.
13 And, Madam Registrar, could you kindly put on record that accused
14 Nikolic entered a plea of not guilty to each of the eight counts brought
15 against him in the consolidated amended indictment. Thank you.
16 Ljubomir Borovcanin, please follow what I am going to inform you
17 now. Yours is a little bit more extensive than that of the others. And
18 then we will go through the usual procedure.
19 In the initial indictment you were charged with complicity to
20 commit genocide under Articles 4(3)(e), 7(1) and 7(3) of the Statute.
21 When I say 7(3), it's command and control, superior command
22 responsibility. Whether I say 7(1), it's individual criminal
23 responsibility.
24 The charge of complicity of genocide, and genocide, has now been
25 removed from the consolidated amended indictment for the same reasons as
Page 111
1 those of your colleagues. The initial indictment did not charge you with
2 genocide under Article 4(3)(a).
3 Count 1 of the consolidated amended indictment, however, charges
4 you with genocide, punishable under Articles 4(3)(a) and 7(1) but limited
5 to aiding and abetting genocide. And also under Article 7(3) of the
6 Statute of the Tribunal; that is, in your capacity as a superior.
7 In regard to Count 2, conspiracy to commit genocide, as is -- it
8 appears in the consolidated amended indictment, while your name and
9 this -- please, Prosecution, also please note. While your name does not
10 appear above paragraph 34 and in paragraphs 34 and 35 that relate to
11 Count 2, your name does appear on the first page of the consolidated
12 amended indictment as one of the accused charged with genocide and
13 conspiracy to commit genocide.
14 The Prosecution has requested, in its response to the Defence
15 motions under Rule 72 to add your name where it is missing in the
16 paragraphs that relate to Count 2, in order to clarify that you are
17 charged with conspiracy to commit genocide. Accordingly, you are going to
18 be asked to plead to the charge in Count 2, that is conspiracy to commit
19 genocide.
20 In the initial indictment, you were also charged with
21 persecutions, which included the forcible transfer of Bosnian Muslims from
22 the Srebrenica enclave. In the consolidated amended indictment, the
23 charge of forcible transfer not only applies to women and children but
24 also to the forced bussing of the men separated at Potocari or captured or
25 having surrendered from the column of people fleeing in the Srebrenica
Page 112
1 enclave up to the Zvornik area where they were ultimately captured and
2 executed. This is not according to me; it's according to the Prosecution.
3 It stands to be proven.
4 In addition, the consolidated amended indictment charges the
5 forcible transfer of the Bosnian Muslim population from the Zepa enclave,
6 including the deportation of the men from Zepa. Accordingly, the charges
7 of persecution have been extended and a charge of deportation has been
8 added.
9 Have I been clear to you, Mr. Borovcanin? Have you been able to
10 follow?
11 THE ACCUSED BOROVCANIN: [Interpretation] Yes.
12 JUDGE AGIUS: I thank you. You may remain standing now.
13 I am now going through the various counts one by one, and the
14 first count charges you with genocide punishable under 4(3)(a) and 7(1),
15 it's Articles of the Statute, limited to aiding and abetting genocide, and
16 Article 7(3) of the Statute of the Tribunal.
17 How do you wish to plead to --
18 THE ACCUSED BOROVCANIN: [Interpretation], Your Honour, I plead not
19 guilty.
20 JUDGE AGIUS: Count 2 charges you with conspiracy to commit
21 genocide, punishable under Articles 4(3)(b) and 7(1) of the Statute of the
22 Tribunal.
23 How do you wish to plead to this Article 2 -- Count 2?
24 THE ACCUSED BOROVCANIN: [Interpretation] Your Honour, before I
25 enter my plea, may I say something in relation to that?
Page 113
1 JUDGE AGIUS: Yes, certainly.
2 THE ACCUSED BOROVCANIN: [Interpretation] The indictment that I
3 received, the last indictment that I received does not mention my name in
4 Count 2. In the contents of Count 2 my name does not appear. My name
5 figures in the title of the indictment together with others as charged
6 with Count 2. Later it was explained to me that it was a technical
7 mistake, a clerical error, so it appears to me that it is more likely that
8 the clerical error would be with respect to the title. I find it hard to
9 see why I do not appear later on. I would like to ask my counsel to
10 explain what the situation is.
11 JUDGE AGIUS: Yes. By all means. I thank you for expressing your
12 concerns, Mr. Borovcanin. In the meantime, while this is being discussed,
13 you may remain seated.
14 Yes, Mr. Lazarevic.
15 MR. LAZAREVIC: Yes. Your Honour, the first mention of adding new
16 charges against Mr. Borovcanin, Count 2, and I speak about Count 2 of the
17 indictment, was on Prosecutor's submission dated January 21st. So it
18 wasn't in the indictment that my client received dating from November 11.
19 And in its submission, it's a reply that the Prosecution filed of
20 January 21st. The Prosecution asked for leave to amend the indictment by
21 adding the name of Mr. Borovcanin in Count 2 of the indictment, and there
22 is no ruling on this request of the Prosecution.
23 JUDGE AGIUS: Yes. I think I -- do you want to respond to that,
24 Mr. McCloskey? Because it's not exactly how you put it.
25 The submission is that your client is there from the 11th -- is
Page 114
1 there. He is mentioned but he's not mentioned specifically everywhere
2 that he should have been mentioned. This is the position. But that is
3 the mistake. The mistake does not consist from what I could understand
4 that he has been erroneously mentioned somewhere when he shouldn't have
5 been mentioned. The submission is that he should have been mentioned more
6 and was not mentioned but there should be no doubt left in the minds of
7 whoever that he is included in the charge of conspiracy to commit
8 genocide.
9 Yes, Mr. McCloskey.
10 MR. McCLOSKEY: Yes, Your Honour. I think you've got it correct.
11 JUDGE AGIUS: So this is the position. I mean --
12 Yes, Mr. Lazarevic.
13 MR. LAZAREVIC: Yes, Your Honour, I can understand your position.
14 However, the motion seeking for leave to amend the indictment filed by the
15 Prosecution before the amended indictment was filed in November does not
16 contain the name of Mr. Borovcanin for Count 2. There is absolutely no
17 explanation regarding Mr. Borovcanin's involvement in complicity to commit
18 genocide.
19 JUDGE AGIUS: Mr. Lazarevic, the amended indictment, in its very
20 first page, starts with a declaration that the Prosecution, pursuant to
21 her authority -- the Prosecutor, pursuant to her authority, et cetera,
22 charges, amongst others, your client with genocide, conspiracy to commit
23 genocide. So this does not leave any doubt in the minds of anyone that
24 that is what the consolidated amended indictment seeks to -- seeks to
25 confirm.
Page 115
1 As happens in many instances, mistakes result in all indictments.
2 It seems that in Count 2, when it comes to paragraph 34, his name is
3 missing, as you said. But the Prosecution is not giving an explanation to
4 the effect that there was a mistake in the first page his name should have
5 never appeared together with the others as being charged with conspiracy
6 to commit genocide. What they are explaining is that the mistake happened
7 in the description or in the listing of names in paragraphs 34 and 35;
8 namely, that his name should have appeared there as -- there as well.
9 It's true that that has not been decided. I mean, I am not in any
10 way suggesting that it has been decided, but I think the safest way of
11 going about it is to ask him to enter the plea today because I think it
12 will be harbouring a little bit of -- bring a little bit of an illusion to
13 think that it's exactly the opposite way around. And especially if you
14 look at some of the paragraphs preceding 34, particularly 33, it is
15 indicative that destruction of women, children, et cetera, it was never
16 apparent from the indictment that it was the intention of the Prosecution
17 to leave your client out from -- especially considering the way he was
18 accused under the initial indictment in the first place.
19 So I don't think I should say more than that.
20 I am going to proceed with asking you whether you wish to plead
21 guilty or not guilty to Count 2. I explained to you what the
22 circumstances are. If you want the opportunity to consult with your
23 lawyer --
24 MR. LAZAREVIC: This is precisely what I wanted to ask, Your
25 Honour.
Page 116
1 JUDGE AGIUS: So what I suggest, I don't know what instructions,
2 security officers, what instructions you may have on this. I would like
3 him to grant him a moment to consult with his counsel. Do you prefer to
4 have the consultation in the courtroom, here, somewhere in the corner or
5 outside?
6 MR. LAZAREVIC: I think it would be fine with us to consult in the
7 courtroom. We don't need any extra space.
8 JUDGE AGIUS: All right. I tell you what to do because we are
9 soon over in any case. We'll have a short break during which you will
10 have an opportunity to consult with your client on this. And then we will
11 proceed with the entering of pleas later.
12 We'll have -- if I have the indulgence of the staff, how much time
13 do you wish to have? I reckon that we only have about 20 minutes more of
14 sitting, or half an hour at the moment -- at best.
15 I can't see -- I can't see anyone behind the dark glasses. 15
16 minutes? Yeah, 15 minutes break.
17 Thank you.
18 --- Recess taken at 3.50 p.m.
19 --- On resuming at 4.14 p.m.
20 JUDGE AGIUS: Mr. Lazarevic, have you conferred with your client?
21 MR. LAZAREVIC: Yes, Your Honour, I can confirm that I consulted
22 with my client.
23 What I have to say is that earlier this morning when I met
24 Mr. Borovcanin in the detention unit and when we discussed the issue of
25 his plea, it seems that he was -- that the indictment that we are
Page 117
1 discussing about didn't contain his name in count -- is in these counts.
2 So it is our position, I have to say it's my position, Mr. Stojanovic
3 position, and also Mr. Borovcanin's position, that it would be better for
4 him not to plead on this count of the indictment.
5 JUDGE AGIUS: All right.
6 Do you confirm, Mr. Borovcanin, please stand up, on Count 2, do
7 you confirm the position as explained by your lawyer now; in other words,
8 that you are not entering a plea on Count 2?
9 THE ACCUSED BOROVCANIN: [Interpretation] Yes, Your Honour.
10 JUDGE AGIUS: Okay. My reaction to that is that there is a 30-day
11 grace period which becomes applicable. If at the end of 30 days you do
12 not enter a plea, then I will enter a plea of not guilty on your behalf.
13 For that purpose, Mr. Von Hebel, there will be a further
14 Status Conference for accused Borovcanin alone, 30 days from now, unless
15 he signifies his intention to enter a plea earlier.
16 Count 3 charges you with extermination. This is a crime against
17 humanity, punishable under Articles 3(b), 7(1) and 7(3) of the Statute.
18 How do you wish to plead? Guilty or not guilty?
19 THE ACCUSED BOROVCANIN: [Interpretation] Not guilty, Your Honour.
20 JUDGE AGIUS: And Count 4 charges you with murder, as a crime
21 against humanity, punishable under Articles 5(a), 7(1) and also 7(3) of
22 the Statute of the Tribunal.
23 How do you wish to plead? Guilty or not guilty?
24 THE ACCUSED BOROVCANIN: [Interpretation] Not guilty, Your Honour.
25 JUDGE AGIUS: Count 4 charges you with the same crime, murder, but
Page 118
1 this time being a violation of the laws or customs of war, punishable
2 under Articles 3, 7(1) and 7(3) of the Statute of the Tribunal.
3 How do you wish to plead? Guilty or not guilty?
4 THE ACCUSED BOROVCANIN: [Interpretation] Not guilty, Your Honour.
5 JUDGE AGIUS: And Count 6 charges you with persecutions on
6 political, racial and religious grounds, a crime against humanity, which
7 includes murder, cruel and inhumane treatment, terrorising the civilian
8 population, destruction of personal property and forcible transfer,
9 punishable under Articles 5(h), 7(1) and 7(3) of the Statute of the
10 Tribunal.
11 How do you wish to plead? Guilty or not guilty?
12 THE ACCUSED BOROVCANIN: [Interpretation] Not guilty.
13 JUDGE AGIUS: Count 7 charges you with inhumane acts, being
14 forcible transfer. This is a crime against humanity, punishable under
15 Articles 5(i), 7(1) and 7(3) of the Statute of this Tribunal.
16 How do you wish to plead? Guilty or not guilty?
17 THE ACCUSED BOROVCANIN: [Interpretation] Not guilty, Your Honour.
18 JUDGE AGIUS: Mr. Borovcanin, Count 8, finally, charges you with
19 deportation, being a crime against humanity, punishable under
20 Articles 5(d), 7(1) and 7(3) of the Statute of this Tribunal.
21 How do you wish to plead? Guilty or not guilty?
22 THE ACCUSED BOROVCANIN: [Interpretation] Not guilty.
23 JUDGE AGIUS: I thank you so much, Mr. Borovcanin. You may sit
24 down.
25 And, Madam Registrar, please enter that Mr. Borovcanin has entered
Page 119
1 a plea of not guilty on all counts except Count 2, to which he has not
2 entered a plea.
3 I now come to you, Mr. Pandurevic. You may remain seated for the
4 time being. I will tell you when to rise.
5 Yours is less complicated. In the initial indictment, you were
6 charged with conspiracy to commit genocide, contrary to or in violation of
7 Articles 4(3)(b) and 7(1) of the Statute. In other words, you are charged
8 with individual criminal responsibility in relation to this crime.
9 The situation has now changed. The consolidated amended
10 indictment also charges you with -- under 7(3), Article 7(3) of the
11 Statute, that is with command responsibility for conspiracy to commit
12 genocide.
13 Second point is the following: In the initial indictment you were
14 charged with persecutions and which included forcible -- the forcible
15 transfer of Bosnian Muslims from the Srebrenica enclave.
16 The situation has changed somewhat. In the consolidated amended
17 indictment, the charge of forcible transfer does not -- not only
18 applies -- not only applies to the women and children but it extends also
19 to the bussing, forced bussing, of men who, according to the Prosecution,
20 were separated at Potocari or captured or having surrendered from the
21 column of people fleeing the Srebrenica enclave up to the Zvornik area,
22 where they were, according to the Prosecution, ultimately executed.
23 In addition, the consolidated amended indictment charges the
24 forceable transfer of Bosnian Muslim population from the Zepa enclave,
25 including the deportation of the men from Zepa. Accordingly, you will
Page 120
1 find that in the consolidated amended indictment, the charge of
2 persecutions has been extended and a charge of deportation has been added.
3 Lastly, by contrast to the initial indictment, the consolidated
4 amended indictment also explicitly charges you as one of the participants
5 in a joint criminal enterprise to forcibly transfer the Bosnian Muslim
6 population and to commit the mass killings.
7 These are basically the main differences that there are.
8 Now I ask you to stand up, please. I will go through the counts
9 one by one and we'll ask you to enter a plea.
10 Please stand up.
11 Mr. Pandurevic, the first Count against you is one of genocide,
12 punishable under Articles 4(3)(a), 7(1), and 7(3) of the Statute of this
13 Tribunal.
14 How do you wish to plead? Guilty or not guilty?
15 THE ACCUSED PANDUREVIC: [Interpretation] Not guilty, Your Honour.
16 JUDGE AGIUS: I thank you. Count 2 charges you with conspiracy to
17 commit genocide, punishable under Articles 4(3)(b), 7(1), and 7(3) of the
18 Statute.
19 How do you wish to plead? Guilty or not guilty?
20 THE ACCUSED PANDUREVIC: [Interpretation] Not guilty.
21 JUDGE AGIUS: And Count 3 charges with you extermination as being
22 a crime against humanity, punishable under Articles 5(b), 7(1), and 7(3)
23 of the Statute.
24 How do you wish to plead? Guilty or not guilty?
25 THE ACCUSED PANDUREVIC: [Interpretation] Not guilty, Your Honour.
Page 121
1 JUDGE AGIUS: And Count 4 charges you with murder being a crime
2 against humanity punishable under Articles 5(a), 7(1), and 7(3) of the
3 Statute.
4 How do you wish to plead? Guilty or not guilty?
5 THE ACCUSED PANDUREVIC: [Interpretation] Not guilty.
6 JUDGE AGIUS: And Count five charges you with murder a violation
7 of the laws or customs of war punishable under Articles 3, 7(1), 7(3) of
8 the Statute.
9 How do you wish to plead? Guilty or not guilty?
10 THE ACCUSED PANDUREVIC: [Interpretation] Not guilty.
11 JUDGE AGIUS: And Count 6 charges you with persecutions on
12 political, racial, and religious grounds, a crime against humanity
13 including murder, cruel and inhumane treatment, terrorising a civilian
14 population, destruction of personal property and forcible transfer,
15 punishable under Articles 5(h), 7(1), and 7(3) of the Statute.
16 How do you wish to plead? Guilty or not guilty?
17 THE ACCUSED PANDUREVIC: [Interpretation] Not guilty, Your Honour.
18 JUDGE AGIUS: And Count 7 charges you with inhumane acts being
19 forcible transfer, against -- a crime against humanity punishable under
20 Articles 5(i) 7(1), 7(3) of the Statute.
21 How do you wish to plead? Guilty or not guilty?
22 THE ACCUSED PANDUREVIC: [Interpretation] Not guilty.
23 JUDGE AGIUS: And finally Count 8 charges you with deportation.
24 As I have explained already, this is a crime against humanity, punishable
25 under Articles 5(d), 7(1), 7(3).
Page 122
1 How do you wish to plead? Guilty or not guilty?
2 THE ACCUSED PANDUREVIC: [Interpretation] Not guilty, Your Honour.
3 JUDGE AGIUS: I thank you, Mr. Pandurevic. You may sit down.
4 And for the record, Ms. Fabian, please enter that Mr. Pandurevic
5 has pleaded not guilty to all eight counts.
6 And I finally come to you, Mr. Trbic. Yours is even more simple
7 than that of the others. In the initial indictment, you were charged with
8 one count, that is murder, a crime against humanity, punishable under
9 Articles 5(a) and 7(1) of the Statute. This charge remains now in the
10 consolidated amended indictment as Count 4. In addition, however, the
11 consolidated indictment now charges you with genocide, conspiracy to
12 commit genocide, extermination, murder, a violation of the laws or customs
13 of war, persecutions, inhumane acts, and deportation. By contrast to the
14 initial indictment, the consolidated indictment -- amended indictment also
15 explicitly charges you as one of the participants in a joint criminal
16 enterprise to forcibly transfer the Bosnian Muslim population and to
17 commit the mass killings.
18 Mr. Trbic, could you stand up, please?
19 I'm going to ask you whether you wish to enter a plea in which
20 case you tell me either guilty or not guilty.
21 Count 1 charges you with genocide, punishable under
22 Articles 4(3)(a) and 7(1) of the Statute of the Tribunal.
23 How do you wish to plead? Guilty or not guilty?
24 THE ACCUSED TRBIC: [Interpretation] Not guilty, Your Honour.
25 JUDGE AGIUS: Count 2 charges you with conspiracy to commit
Page 123
1 genocide, punishable Articles 4(3)(b) and 7(1) of the Statute.
2 How do you wish to plead? Guilty or not guilty?
3 THE ACCUSED TRBIC: [Interpretation] Not guilty, Your Honour.
4 JUDGE AGIUS: Thank you. Count 3 charges you with extermination,
5 a crime against humanity, punishable under Articles 5(b) and 7(1) of the
6 Statute.
7 How do you wish to plead? Guilty or not guilty?
8 THE ACCUSED TRBIC: [Interpretation] Not guilty, Your Honour.
9 JUDGE AGIUS: I thank you. Count 4 charges you with murder a
10 crime against humanity punishable under Articles 5(a) and 7(1) of the
11 statute.
12 How do you wish to plead? Guilty or not guilty?
13 THE ACCUSED TRBIC: [Interpretation] Not guilty, Your Honour.
14 JUDGE AGIUS: Count 5 charges you also with murder, this time
15 being a violations of the laws or customs of war, punishable under
16 Articles 3 and 7(1) of the Statute.
17 How do you wish to plead? Guilty or not guilty?
18 THE ACCUSED TRBIC: [Interpretation] Not guilty, Your Honour.
19 JUDGE AGIUS: Count 6 charges you with persecutions on political,
20 racial and religious grounds, a crime against humanity, including murder,
21 cruel and inhumane treatment, terrorising the civilian population,
22 destruction of personal property and forcible transfer, punishable under
23 Articles 5(h) and 7(1) of the Statute.
24 How do you plead? Guilty or not guilty?
25 THE ACCUSED TRBIC: [Interpretation] Not guilty, Your Honour.
Page 124
1 JUDGE AGIUS: Count 7 charges you with inhumane acts forcible
2 transfer, a crime against humanity, punishable under Articles 5(i)
3 and 7(1) of the Statute.
4 How do you wish to plead? Guilty or not guilty?
5 THE ACCUSED TRBIC: [Interpretation] Not guilty, Your Honour.
6 JUDGE AGIUS: And finally Count 8 charges you with deportation, a
7 crime against humanity, punishable under Articles 5(d) and 7(1) of the
8 Statute.
9 How do you plead? Guilty or not guilty?
10 THE ACCUSED TRBIC: [Interpretation] Not guilty, Your Honour.
11 JUDGE AGIUS: I thank you, Mr. Trbic. You may sit down and
12 Madam Registrar, could you please enter a record to the effect that
13 Mr. Trbic has entered a plea of not guilty to all eight counts.
14 I thank you all. And I now come to work plan for this trial.
15 And I'm doing this because I am, of course, required to do so by
16 Rule 65 ter(D)(ii). I have been informed by Mr. Von Hebel that what will
17 happen between now and when we start the trial and when the trial will
18 start has been subject of some debate during the 65 ter Conferences of
19 the 6th of March and of yesterday.
20 And Mr. Von Hebel has more or less provided me with a revised plan
21 which will, of course, be revised as -- and if necessary, because in these
22 cases obviously things happen and dates have to shift.
23 I have actually taken note of all the submissions that you have
24 both made to Mr. Von Hebel, and as I said, although in my mind I do have a
25 plan, the work plan may shift as a result of developments. But this
Page 125
1 should not in any way keep us from trying to plan as accurately as we can,
2 and establish a target date for the conclusion of the pre-trial stage and
3 commencement of the trial.
4 In my calculations, and again I say this subject, of course, to
5 possible revisions, even in my mind, of my calculations, I think that we
6 should be in the position, and I can expect all parties to be ready for
7 trial practically immediately after the summer recess.
8 That's my opinion. But I also advised that it will be probably
9 wiser to make an allowance for an extra week or two at the most, to cover
10 any possible contingencies that we may encounter in the meantime and also
11 to make sure that every one of you is given all the opportunities
12 necessary to present the pre-trial Chamber with all the documentation that
13 we require from you.
14 There are some things to which I give priority. Obviously, the
15 first thing that must be done, and which depends on me rather than on you,
16 is to come forward with a final decision on all the motions that relate to
17 the indictment. I'm fully aware that until and unless that becomes final,
18 there is no point in asking you particularly to come forward with a
19 response in relation to agreed facts, to any possible motion on
20 adjudicated facts, Rule 92 bis motions, and so on and so forth. I fully
21 concur, agree, and I say it openly, that what must happen first is our
22 decision. But from the moment our decision becomes public, is handed
23 down, in other words, we need to start working. So what I am suggesting
24 is that while I, together with the other two judges and our staff, work on
25 the decision that I have just mentioned, the Prosecution tries to work on
Page 126
1 the following.
2 We have agreed that we need to address the pre-trial Prosecution
3 brief. Do you have a definitive date in mind where you will certainly be
4 in a position to give us that, Mr. McCloskey?
5 MR. McCLOSKEY: Yes, Your Honour. We were -- had obligated
6 ourselves to the 21st of April. As we get closer and actually looking at
7 our draft and being slightly delayed by the Stakic judgement, if we could
8 get one more week, I think we would give you a better product so we would
9 be asking for a one week extension to our own initial deadline of April
10 21, to 28 April.
11 JUDGE AGIUS: I had in mind -- I will grant you that,
12 Mr. McCloskey, without much further discussion.
13 I had in mind, then, that within a week from the filing of the
14 pre-trial Prosecution brief, you file an adjudicated facts proposal, a
15 proper motion. That would have been the 28 April, we now have to shift it
16 by one week. Can anyone tell me the -- 5th May? 5th May. That would be
17 the 5th May.
18 MR. McCLOSKEY: That looks good for us.
19 JUDGE AGIUS: And I had in mind the 12th of May for Rule 92 bis
20 motion.
21 MR. McCLOSKEY: That looks good as well.
22 JUDGE AGIUS: We'll leave it at 12th?
23 And you indicated that by the 9th of June you should be in a
24 position to submit Mr. Butler's, the military expert, report.
25 MR. McCLOSKEY: Yes, Your Honour.
Page 127
1 JUDGE AGIUS: You are aware, Mr. McCloskey, of Mr. Miletic's
2 motions, two motions, in relation to the translation of the proposed
3 adjudicated facts and Rule 92 bis motion. Do you think that you would
4 spare the Trial Chamber the trouble of having to decide that by having
5 recourse to your translation resources in the OTP and have those two
6 motions translated into B/C/S. For that, I would be prepared to extend
7 the dates of the 5th of May and the 12th of May by another week.
8 MR. McCLOSKEY: The 92 bis statements of the witnesses are in
9 B/C/S. Many of them, as you know, were from prior testimony and the
10 Defence should have had the audio of that in B/C/S and hopefully now the
11 capability to listen to the audio, which is actually I think the best way
12 for them to have it given the enormous resources it would be to do it
13 otherwise.
14 JUDGE AGIUS: And the adjudicated facts?
15 MR. McCLOSKEY: The adjudicated facts --
16 JUDGE AGIUS: This is included too in Madam Fauveau's motion.
17 I've seen others in other cases and also in my case, so we are not -- I
18 think we are talking of a document which may be translated in two or three
19 days.
20 MR. McCLOSKEY: Something that simple, I will endeavour to talk to
21 CLSS about. They always try to be cooperative but as you know they are
22 very honest about their abilities.
23 JUDGE AGIUS: Yes. And I know what burden they carry as well.
24 MR. McCLOSKEY: So we'll check with them on that. On the
25 adjudicated facts we had sent out a potential agreed facts to the Accused
Page 128
1 and we were hoping to get some response on that to perhaps reduce the
2 burden of the adjudicated facts. Unfortunately we haven't heard much on
3 that so our burden has not been reduced and so we will be able to go
4 forward without any help from the Accused.
5 JUDGE AGIUS: But agreed facts and adjudicated facts are not the
6 same thing. It should never be put in the same basket. I mean there are
7 definitely adjudicated facts to which the Defence can agree, but the
8 two -- the two are not the same.
9 MR. McCLOSKEY: No. My only point is, as you said, if the Defence
10 agreed to some fact that had already been adjudicated, the motion would be
11 a little lighter on that but -- and some facts have been, as you know so
12 adjudicated here that we were hoping to get some response but there are
13 eight accused and we are being realistic. That would be a hard thing to
14 imagine getting too many people agree, so we are ready to go forward with
15 the adjudicated facts motion as we said and we will try to get that deal
16 with CLSS about how to do that.
17 JUDGE AGIUS: All right. So the position is as follows: If in
18 relation to adjudicated facts and Rule 92 bis motion, you are in a
19 position or you agree -- I mean, I'm no way forcing you or asking to do
20 this I'm just inviting you to consider this possibility, if you are
21 prepared to have B/C/S version accompany the original motion, then you can
22 take the two dates that I indicated to you, the 5th of May and 12th of May
23 respectively extended by another week in each case. If not, they will
24 remain firm. In other words, adjudicated facts, 5th of May, and
25 Rule 92 bis motion, 12th of May.
Page 129
1 MR. McCLOSKEY: Yes. We'll have that in B/C/S and we have some in
2 French if anyone cares to see them in French.
3 JUDGE AGIUS: Okay.
4 Starting now, from the date when we will hand down the decision on
5 the form of the indictment, the Defence -- when I say the Defence, it
6 means each and every team will have three weeks within which to come
7 forward with any notification of alibi or any special defence in terms of
8 Rule 67(A). You will recall that this -- there have already been some
9 orders and I agreed that it makes much more sense to wait until the
10 decision on the form of the indictment, which is not really the right
11 medicine but I agree that it's wiser to wait until that matter is decided
12 and then we will deal with the rest.
13 So Defence notification of alibi or any special defence under
14 Rule 67 not later than three weeks from the date of the Trial Chamber's
15 decision on the form of the indictment.
16 Any motion or remarks or official position that you would desire
17 to take in relation to agreed facts, proposed adjudicated facts, and
18 Rule 92 bis motion, you will need to address by not later than one month
19 from the date of the decision of the Trial Chamber on the form of the
20 indictment.
21 As it is, and as the situation would be or is expected to be, at
22 that point in time, but depending, of course, on how things work out, my
23 idea is that each one of the Defence teams should have their pre-trial
24 brief filed by not later than the 14th of July. That's when we go
25 basically on recess, more or less on recess. So it's important that we
Page 130
1 have all these before we go on recess.
2 Then I plan either during the recess or immediately after the
3 recess, or towards the end of the recess, I plan to have the full Trial
4 Chamber here in The Hague. We would require some refreshing training on
5 the e-system which we will be using for the trial. Maybe if anyone of you
6 also needs some coaching, some training, you will let me know and I will
7 attend to that. And I plan to start the case round about, if not exactly,
8 on the 21st of August. That's my plan. We can shift by one week or two
9 weeks, as I explained earlier but, please, let's all try to get started.
10 Basically what I'm saying is this that would be almost naive on my part to
11 expect that the road ahead will be full of roses and no problems and no
12 thorns, no appeals, and no this and no that. So with that in mind, with
13 that in mind, and with the responsibility also in mind, the responsibility
14 that I have, I am going to try to start at the earliest opportunity.
15 According to me, the earliest ideally would be the 21st of August. But I
16 may be too optimistic and I'm fully aware that we may need another week or
17 two before we could actually start.
18 We would start with the -- my intention would be that towards the
19 end of August or between the 21st at any time before the end of August we
20 will have the Pre-Trial Conference, to be followed a week after by the
21 opening statements and the start of the trial, so basically, as I envisage
22 it, if there is a one-week delay, the Pre-Trial Conference will take place
23 on the 28th of August, with the trial starting a week after. If there is
24 a two-week delay, the Pre-Trial Conference will be on the -- seven days
25 after the 28th of August, and then we start the week after with the
Page 131
1 opening statements, to be followed by what we discussed in private
2 session. Do you read me? To be followed then by that.
3 So basically there will be that also breathing space, further
4 breathing space, for you to -- there is a possibility, at least I have
5 that indication, that some of the time between now and when we start the
6 trial may be made use of, profitably made use of for receiving testimony
7 in the forms provided for under the Rules. I have to -- still to think
8 about that. If that matter comes up, if and when, but if it is at all
9 possible then, of course, after hearing what you have to say we will
10 decide accordingly but that's the position for the time being.
11 I have said what I have said to give you an indication of what my
12 intentions are. We all have lived pre-trials and trials before in our
13 lives. Some more than others. And you would agree with me and I would
14 agree with you that you can never -- at this stage you can never be that
15 sure as to the exact date when we will start the trial but more or less
16 that's what I am aiming at, all right?
17 There are a few final things that I would like to address. In
18 anticipation of all this, and also to be able to plan ahead better, I
19 would like the Defence teams to discuss amongst themselves the way they
20 wish to proceed in relation to the opening -- Defence opening statements.
21 There may be some who may wish to make an opening statement. There may be
22 others who may not wish to make opening statements. There may be
23 controversies amongst you as to who should go first, who should go second,
24 and who should go after and last. I will, of course, not interfere in all
25 this. But please don't allow a situation to obtain where we come to the
Page 132
1 day when we are supposed to hear the first of the Defence opening
2 statements, if there will be any, and Trial Chamber would not be in a
3 position even to know if there is going to be one, who is going to go
4 first, who is going to go second, et cetera. This is a big trial. There
5 are eight defence teams. I appeal to your cooperation. And I will
6 accommodate you accordingly, but you need to discuss this amongst
7 yourselves because there may be conflicting interests, or there may be
8 some who would not wish to make any opening statement.
9 Also, although, of course, the situation -- I realise that the
10 situation may change between now and when we start the trial, I suppose
11 you ought to start consulting with your clients whether they too would
12 like to make any statements at the beginning of the trial. In which case,
13 please do let us know because we will need to plan accordingly. All
14 right?
15 Now, I am going to ask each one of you the usual questions about
16 your state of detention, your state of health, be it mental or physical.
17 I'll start with you, Mr. Popovic. I will keep the same order,
18 Mr. Popovic, Mr. Beara; we'll go in that order.
19 Mr. Popovic, and if there is any one of you who would like to
20 address me on any of these matters, particularly health matters, in
21 private session, closed session, in other words, keep it away from the
22 public, please do let me know straight away.
23 Mr. Popovic, I would like to know if you have anything to tell me
24 in relation to the conditions of your detention or in relation to your
25 health or anything else that, in your opinion, I should be made aware of.
Page 133
1 THE ACCUSED POPOVIC: [Interpretation] For the time being, Your
2 Honour, I don't have any complaints. I think everything is in order.
3 JUDGE AGIUS: I thank you so much, Mr. Popovic. Please be seated.
4 Mr. Beara. The same question to you. If there is anything that
5 you would like to bring to my notice in public or in private.
6 THE ACCUSED BEARA: [Interpretation] No. I don't have anything in
7 particular. The detention -- the conditions of my detention are excellent
8 and my health is also very good. Thank you.
9 JUDGE AGIUS: I'm happy to hear that, Mr. Beara. I thank you so
10 much.
11 Mr. Drago Nikolic. The same question to you, your feedback on
12 your conditions of detention and on the state of your health or any other
13 matter that you would like to address me upon in public or in private.
14 THE ACCUSED NIKOLIC: [Interpretation] [Microphone not activated].
15 THE INTERPRETER: Microphone, please. Microphone for the accused.
16 JUDGE AGIUS: Yes, please start again.
17 THE ACCUSED NIKOLIC: [Interpretation] Mr. President, I do not have
18 any complaints as to the conditions of my detention, and my health is
19 equally good. Thank you.
20 JUDGE AGIUS: I thank you, Mr. Nikolic.
21 Mr. Borovcanin. The same question to you.
22 THE ACCUSED BOROVCANIN: [Interpretation] Mr. President, as far as
23 my health is concerned, I do not have any problems whatsoever.
24 As for the conditions of my detention, I don't think I have
25 anything to add in relation to what you already know. Thank you.
Page 134
1 JUDGE AGIUS: I thank you, Mr. Borovcanin.
2 Mr. Miletic is not here.
3 Mr. Gvero is not here.
4 Mr. Pandurevic.
5 THE ACCUSED PANDUREVIC: [Interpretation] Mr. President, thank you
6 for your concern. My health is good, and the conditions of my detention
7 are also good.
8 JUDGE AGIUS: Okay. I thank you, Mr. Pandurevic.
9 Mr. Trbic.
10 THE ACCUSED TRBIC: [Interpretation] No complaints whatsoever, Your
11 Honour. Thank you for asking.
12 JUDGE AGIUS: I thank you, Mr. Trbic. You may sit down.
13 So, now, any other matter that the parties would like to address?
14 I see Mr. Bourgon anxiously waiting to be heard. Go ahead.
15 MR. BOURGON: Thank you very much, Your Honour. Good afternoon,
16 Your Honour.
17 I rise at this point to address the -- on behalf of my colleagues
18 representing the eight accused in this courtroom, or at least eight
19 co-accused in these proceedings, regarding our ability to be ready for
20 trial at a certain date, and in this respect I would like to make
21 five observations.
22 My first observation as a preliminary matter is I would like to
23 express on behalf of my colleagues our appreciation for your involvement
24 leading to this case being ranked at level 3 by the Registry. We believe
25 that this is directly related to the issue of setting an appropriate date
Page 135
1 for beginning this trial.
2 My second observation is that on the 6th of March, when we had the
3 Rule 65 ter meeting with the Senior Legal Officer, I indicated that as a
4 consequence of having this trial ranked at level 3, all Defence teams had
5 increased their rate of preparation, and we all agree that we can be ready
6 to begin this trial by 1 November of this year.
7 Follows my third observation. Of course, if the Trial Chamber
8 decides, or should the Trial Chamber decide on an earlier date, it goes
9 without saying that all Defence teams will be present and will be there
10 for trial. However, we are collectively of the view that this is likely
11 to cause longer delays than the time which we could save by starting
12 earlier considering a number of issues, such as, for example, potential
13 requests for short term adjournments at a time when witnesses are present
14 in The Hague, which could be counterproductive, and also this will impact
15 on the ability of Defence to work with, to work on, and meet with the
16 Prosecution with the aim of possibly agreeing on stipulations which could
17 shorten the trial.
18 My fourth and last observation is that there is another related
19 issue that goes with starting the trial on 1 November. And this is an
20 issue which is of significant importance to all Defence teams, and this is
21 also an issue which I raised yesterday during the Rule 65 ter meeting with
22 the Senior Legal Officer. And this issue is that of the possibility of a
23 long-term postponement in the beginning of this trial in the event the
24 Prosecution requests that a further accused be joined to the proceedings
25 between now and the beginning of the trial.
Page 136
1 The consequences of such an event must be mentioned, and we
2 believe it is necessary to bring these consequences to your attention,
3 Your Honour.
4 First, in order to be ready for November, we have, of course,
5 increased the rate of our preparations, but the consequence will be that
6 when we reach the beginning of the trial, with a view to being ready, and
7 working along with the Trial Chamber, we will have exhausted all resources
8 at our disposal between now and the day which will be decided upon by the
9 Trial Chamber.
10 Accordingly, taking, for example, for the sake of this submission,
11 that a further accused was joined to this -- to these, the present
12 proceedings, by the Prosecution, by way of motion, of course, requesting
13 that this is what the Prosecution would like, it means that from that
14 point on, the Defence will have no more resources, whereas significant
15 resources would be required to allow the Defence to do a number of things,
16 such as, one, to keep up with the Prosecution during that postponement or
17 adjournment, in order to simply keep up with the work taking place within
18 the Office of the Prosecutor. Two, to work, investigate and adjust the
19 case for the Defence for each of the respective accused.
20 MR. McCLOSKEY: Excuse me one second. I'm sorry to interrupt. If
21 we are going to get into any subjects of a speculative nature like this,
22 could we go into private session?
23 JUDGE AGIUS: I don't see the need, but if it puts your mind at
24 rest, let's go into private session. I mean, this is all speculation for
25 the time being. I understand exactly what he means. Some people might
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1 not understand. Let's go into private session.
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1 (redacted)
2 [Open session]
3 JUDGE AGIUS: All right.
4 MR. BOURGON: Thank you, Your Honour.
5 In conclusion, all Defence teams in this case, and I speak here
6 this behalf of all my colleagues are more than willing to work with
7 yourself as the Pre-Trial Judge and with the Trial Chamber to which this
8 case will be assigned for trial to ensure that this trial can begin at the
9 earliest possibility and without delay.
10 That being said, given the work that we still have to do to be
11 ready for trial, we are of the view that a realistic date to which we
12 agree to be bound by would be 1 November.
13 Just to name one further example of the things that are happening
14 for which additional time is required is what is happening today in the
15 war crimes chamber in Sarajevo. The war crimes chamber is increasing its
16 pace of work. Many people are being either brought for investigation,
17 trials are about to take place, and there will be a lot of evidence which
18 will be generated by the war crimes chamber in Sarajevo which the Defence
19 needs to be aware of, needs to review, before we can proceed soundly with
20 this trial.
21 This is just to name one example.
22 That being said, Your Honour, we all want to begin at the earliest
23 possibility but there is some level of uncertainty here, and all Defence
24 counsel believe it was necessary at least to bring these issues to your
25 attention so that we know what we are getting into and also to
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1 understand -- to underline the need for a firm date. You are not giving
2 us a firm date. We believe this firm date should be adjusted to
3 1 November but we will be -- we will respect, of course, any date set by
4 the Trial Chamber, but we will work accordingly and spend our resources
5 according with the date that you give us with, of course, the consequences
6 that might arise.
7 Thank you, Your Honour.
8 JUDGE AGIUS: I thank you. Are there any matters that the
9 Prosecution would like to address?
10 MR. McCLOSKEY: No, Your Honour.
11 JUDGE AGIUS: All right. So I think we can safely adjourn now.
12 As to the matters that you raised, Mr. Bourgon, of course, they will
13 receive my full attention as well as that of my two colleagues, present
14 and future. As to the rest, if the situation changes, as you tried to
15 speculate, then obviously I will not speculate now but obviously you will
16 hear from me and I will need to hear from you and any problems that you
17 indeed will face will be addressed and where needed you will find my
18 support.
19 But let's plan according to what we have here and not what could
20 possibly happen which might not happen. If that happens, we are obviously
21 not starting in August and not starting in November.
22 The case is adjourned.
23 --- Whereupon the Status Conference adjourned at
24 5.08 p.m.
25