1 Thursday, 19 July 2007

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 3.33 p.m.

5 JUDGE AGIUS: Good afternoon, Madam Registrar. And good

6 afternoon, everybody. Could you kindly call the case, please.

7 THE REGISTRAR: Good afternoon, Your Honours. This is case number

8 IT-05-88-T, the Prosecutor versus Vujadin Popovic et al.

9 JUDGE AGIUS: I thank you, ma'am. All the accused are here, for

10 the record. From the Defence teams I notice the absence of Mr. Haynes,

11 Mr. Josse, Mr. Petrusic; is that correct? I'm not seeing him. Yes.

12 Madam Nikolic and Mr. Ostojic. Prosecution I notice same composition as

13 yesterday.

14 So yesterday, before we rose, I told you we'll have one hour, and

15 I encouraged you to discuss how you were going to share the time. If

16 perhaps one of you could come back to us and tell us what you have agreed.

17 MR. NICHOLLS: Good afternoon, Your Honours. If I'm correct, I

18 think that the Borovcanin team would like 25 to 30 minutes and Mr. Meek,

19 and I will split up what's the rest, 50/50.

20 JUDGE AGIUS: And what about responses and replies and --

21 MR. NICHOLLS: Well, I'll be going last so I'll fit mine in. I

22 think I don't know how they want to divide theirs up.

23 JUDGE AGIUS: Okay. Mr. Lazarevic.

24 MR. LAZAREVIC: Thank you, Your Honour. May I start.

25 JUDGE AGIUS: Certainly. Thank you.

1 MR. LAZAREVIC: [Interpretation] Thank you very much.

2 Your Honours, the first question to which I wish to address myself

3 in presenting my argumentation is the question of voluntariness.

4 According to the position of Mr. Borovcanin's Defence team, voluntariness

5 is a multi-facetted category which can be considered from a number of

6 aspects. The first aspect of voluntariness in the strict sense of the

7 word would refer to whether compulsion, coercive force, or a series threat

8 was applied in respect of Mr. Borovcanin in order for him to grant this

9 interview and whether such coercion or threats was applied during the

10 actual giving of the interview.

11 The Defence of Mr. Borovcanin answers this question with a no, it

12 was not the case.

13 In the system from which I come, the second aspect of

14 voluntariness is called the defective consent, and this is equally as

15 important for evaluating the admissibility of a specific exhibit. In the

16 specific case, the Defence should like to stress that this Trial Chamber

17 should establish whether, when giving his interview, Mr. Borovcanin was

18 aware of his position in the proceedings in which he was taking part and

19 whether he was fully cognizant of all his rights which emanate from his

20 position.

21 The onus probandi to the effect that the interviews of

22 Mr. Borovcanin were given in all respects in accordance with valid and

23 generally accepted rules and principles is on the Prosecutor, and to that

24 effect, the Prosecutor has brought the witness Alistair Graham, in the

25 view of the Defence, it was precisely the testimony of this witness that

1 confirmed our position that Mr. Borovcanin from the beginning of his talk

2 with representatives of the OTP was not aware of his legal position in the

3 proceedings, nor had he been regularly and completely advised of the

4 rights in which he has on the basis of his status. In such a situation

5 the fact that Mr. Borovcanin is -- was proceeding under a misconception in

6 respect of his status, and the rights that he had, are the basis for these

7 interviews and the accompanying documents not to be admitted into the file

8 of this case.

9 The notion of the accused is defined under Rule 2 of the Rules of

10 Procedure and Evidence of the Tribunal, and it says that the accused is a

11 person in respect of which the Prosecutor has reliable information which

12 indicate the possibility of that person having committed a criminal

13 offence for which this International Tribunal has jurisdiction.

14 Under Rule 42 of the Rules of Procedure and Evidence, this rule

15 actually defines the rights of the accused during investigation and that

16 is the point of departure from which we must start when we analyse this

17 question; namely, whether at the time of giving his statement,

18 Mr. Borovcanin was giving his statement, all the conditions from this rule

19 were indeed fulfilled in order to make it possible to adopt a decision on

20 the admissibility of that interview.

21 Mr. Borovcanin even received an invitation to meet with

22 representatives of the OTP in order to give a statement. In the

23 invitation, it was stated in the summons that he had the status of an

24 accused, and this is not contested by the Defence. However, the summons

25 did not indicate the actual rights which Mr. Borovcanin has as an accused,

1 such as the right to refrain from giving a statement, the right to legal

2 assistance, and so on and so forth.

3 JUDGE AGIUS: I just want to make sure that interpretation.

4 MR. LAZAREVIC: It's a mistake in transcript

5 [overlapping speakers].

6 JUDGE AGIUS: It's not a status of an accused but is, I suppose

7 you said a status of a suspect.

8 MR. LAZAREVIC: Suspect.

9 JUDGE AGIUS: Correct. Thank you. Go ahead. I just wanted to

10 ask the interpreter who is translating to us in English whether

11 Mr. Lazarevic is going too fast for her.

12 THE INTERPRETER: No, no, it's all right. Thank you very much.

13 JUDGE AGIUS: Thank you.

14 MR. LAZAREVIC: Well, Your Honour, I provided written text to the

15 interpreters, so this is why it's going smoothly.

16 [Interpretation] Already during the first interview conducted by

17 the investigator of the Office of the Prosecutor, Mr. Graham, informed

18 Ljubomir Borovcanin that he, Mr. Borovcanin, could be or may be a suspect

19 for crimes or criminal acts envisaged by the Statute of the Tribunal.

20 This very formulation, "May be a suspect" can be interpreted in only one

21 way. "You are not a suspect but you could become one." Is there any

22 other reason why Mr. Borovcanin could draw any other conclusion than the

23 one I just suggested? Mr. Borovcanin is not a lawyer, his legal adviser

24 was not present at that time, and his understanding of the status he had

25 in the proceedings could only be that of a layman.

1 Mr. Borovcanin was certainly labouring under a legal misconception

2 concerning his status; namely, from the interview it is clear that

3 Borovcanin was told not only at the beginning but several times during the

4 interview that he was a possible suspect. A potential suspect. That

5 concept does not exist either in the Rules of Procedure and Evidence of

6 the Tribunal, nor in the relevant legislation of other jurisdictions. In

7 an investigation, a person can be a suspect or a witness, but they cannot

8 be a potential suspect.

9 To compound this confusion and misconception, although

10 Mr. Borovcanin received the interpretation at one point that he was a

11 suspect, the following cautions in the course of the interview again

12 sounded as "possible suspect". Mr. Graham testified that during the

13 interview he used and relied on a standardised aide-memoire when he had to

14 caution Mr. Borovcanin and advise him of his rights.

15 Nevertheless, every caution was given or formulated differently or

16 was interpreted differently to Mr. Borovcanin.

17 Mr. Graham did say to Mr. Borovcanin that his statement could be

18 used against Mr. Borovcanin personally in trial proceedings. However, due

19 to inadequate interpretation, Mr. Borovcanin was not actually advised of

20 that. Thus, he was not informed that the statement he was giving may be

21 used against him. The Defence believed -- believes that this caution is

22 of special importance when it concerns the rights of a suspect. Such a

23 person when deciding whether to grant an interview or not must be clearly

24 advised of their status when giving the statement. To be more precise,

25 out of the six cautions given to Mr. Borovcanin in the course of two

1 interviews concerning his own rights during the process, on four occasions

2 he did not receive the interpretation that what he was saying can be used,

3 "against him." Which again indubitably points to the fact that

4 Ljubomir Borovcanin could be confused about his status.

5 The lack of adequate caution is perhaps an error in translation,

6 although two interpreters made the same mistake, which may lead this Trial

7 Chamber to believe that these words might be superfluous in B/C/S. This

8 is undoubtedly an error on the interpreters part because the second

9 interview does include the words "against you" at one point. And that

10 really is an error because in the legal system from which Mr. Borovcanin

11 comes, an important element of the caution given to the person granting

12 the statement is precisely the phrase that "the statement may be used

13 against that person". Even if, for argument's sake, we were to assume

14 that the words "against you" do not have to be said in B/C/S, the role of

15 the interpreter is not to interpret the rules of any legal system but to

16 interpret as accurately as possible what is being said to the best of

17 their ability.

18 Therefore, the error that occurred as a result of inadequate

19 interpretation must not and should not have negative consequences on

20 Mr. Borovcanin or his fundamental rights to a fair trial, his right to

21 defend himself by silence and the right not to incriminate himself. This

22 situation should be viewed from the position that at that time

23 Mr. Borovcanin did not know or at least was not sure that the statement he

24 was giving may be used in proceedings against him personally.

25 Mr. Borovcanin was cautioned that he did not have to answer the

1 questions, but at no time was it clearly stated to him that he did not

2 have to speak to the Office of the Prosecutor at all and that that right

3 includes that at any point he was free to stop and leave the interview.

4 The Defence holds the opinion that this right also should have been

5 clearly and unequivocally stated to Mr. Borovcanin so that he could

6 consciously and of his free will decide whether to exercise that right or

7 not.

8 There was no time in any of the interviews when Mr. Borovcanin was

9 clearly told of which crimes he was suspected or which form of

10 responsibility or liability envisaged by the Statute of the Tribunal is

11 involved. The Office of the Prosecutor limited itself to the formulation,

12 "Acts in the jurisdiction of the Tribunal." If that were to happen in

13 any criminal trial, in any legal system, that would be reduced to the

14 following: "You may be suspected of some crime that is envisaged by the

15 Criminal Code of this country." The Defence of Mr. Borovcanin believes

16 that this caution addressed to Mr. Borovcanin was at least insufficient,.

17 And based on such a caution, he was not able to know whether the answers

18 he was giving were incriminating him or not.

19 There is no evidence that Mr. Borovcanin was aware of all the

20 criminal acts envisaged by the Statute of the Tribunal. Mr. Graham also

21 confirmed that the Office of the Prosecutor did not know either whether

22 Mr. Borovcanin or his legal adviser were even aware of the Statute and the

23 rules of the Tribunal. At this moment, I can only say with certainty that

24 at the time he was giving the statement, neither Mr. Borovcanin nor his

25 counsel were really aware of that. Furthermore, the Statute of the ICTY

1 covers a large number of acts of varying gravity, varying descriptions,

2 and it can certainly not be assumed that Mr. Borovcanin could have been

3 aware of all of them. Similarly --

4 JUDGE AGIUS: Yes, Mr. Nicholls?

5 MR. NICHOLLS: I'm very sorry to object. I understand this is

6 argument. However, and I haven't been but here I think I have to object

7 to the line at this moment, at line 22 page 7, "I can only say with

8 certainty that at the time he was giving the statement neither

9 Mr. Borovcanin nor his counsel were really aware of that." That's the --

10 that's the kind of evidence where evidence must be called when an

11 assertion that direct is made. There is -- my friend I think is perfectly

12 clear to say that's a rational conclusion that one could draw from the

13 interview, but I'm sorry I'll sit down. I just don't think he should make

14 direct statements of facts which are not supported in the record.

15 JUDGE AGIUS: Yes, do you wish to respond to that, Mr. Lazarevic?

16 MR. LAZAREVIC: I agree with Mr. Nicholls and I apologise. It was

17 certainly not my intention to testify, but this is -- I was just

18 commenting on what we heard from Mr. Graham and that was it.

19 JUDGE AGIUS: Yes, go ahead.

20 MR. LAZAREVIC: [Interpretation] Similarly, Mr. Borovcanin could

21 not have known that he could also be suspected of command responsibility

22 and that speaking of the activities of others he could incriminate himself

23 as well.

24 Finally, the Defence of Mr. Borovcanin wishes to emphasise that

25 Mr. Borovcanin, as we heard from Mr. Graham, is not a lawyer, and his

1 ability to understand such cautions or lack of them should be viewed

2 through the prism of the fact that his legal counsel was not present at

3 the time. Regards to the question of cautioning or advisement, the

4 Defence team of Mr. Borovcanin would like to quote the appropriate

5 provisions of the law and criminal procedure of some of the states of the

6 former Yugoslavia in order to acquaint the Trial Chamber with the standard

7 which in this respect should be satisfied in our opinion.

8 The law and criminal procedure of Bosnia and Herzegovina in

9 Article 78, para 2, says, "At the beginning of the questioning, the

10 suspect shall be informed of which criminal offence -- with which criminal

11 offence he's been charged and the grounds of suspicion against him."

12 Similarly to this, Article 5 of the law on criminal procedure of the

13 Republic of Serbia which incidentally equalises the concept of accused and

14 suspect envisages the following: "Prior to his first hearing, the accused

15 shall be warned that everything that he states can be used as proof

16 against him." In paragraph 2, it states that already at the first

17 hearing, the accused must be informed of the offence that he's being

18 charged with and on the evidence on which the charges are grounded; and

19 lastly, I shall quote Article 186 of the law on criminal procedure of the

20 Republic of Croatia which in its relevant part, which is item 5, envisages

21 that in collecting information, the police authorities, the law

22 enforcement, shall inform and caution the accused in keeping with the

23 provisions of Article 2372 of this law. He shall be informed of the

24 charges against him, and the basic grounds of suspicion against him and

25 also cautioned that he does not have to present his defence nor to respond

1 to any questions.

2 I should just like to state that I only quote the relevant parts

3 of these articles.

4 The provisions which I have just quoted clearly show the standard

5 which has been adopted by the states whose legislation I have just quoted

6 from, in respect of the necessary informing of suspects. It is equally

7 clear that these cautions go beyond what the investigator, Mr. Graham,

8 advised Mr. Borovcanin on the occasion of the giving of his statement.

9 This standard is very clear. Before deciding whether to give a statement

10 or not, the suspect must be informed of the actual charges against him and

11 the factual basis from which emanates the grounded suspicion that he had

12 committed that offence.

13 Obviously, when Mr. Borovcanin was giving his statement to the

14 OTP, this standard had not been satisfied. The question which arises is

15 which standard in respect of this legal issue shall be adopted by this

16 Trial Chamber.

17 The Defence allows for the possibility that this question may be

18 addressed in different ways in different legal systems, as well as that

19 this Tribunal, as an International Tribunal, dispenses justice according

20 to different rules in respect of each individual legislation. However,

21 precisely because of the fact that this is an International Tribunal and

22 given the historic role which this Court has in creating the jurisprudence

23 of international criminal law, Mr. Borovcanin's Defence team suggests that

24 in respect of this question, the Trial Chamber should be guided by the

25 highest possible standards in the very least those which

1 are envisaged in the legislations which I have just quoted.

2 In particular, as this is the International Tribunal for the

3 Former Yugoslavia, it is the view of the Defence that the Trial Chamber

4 should in any case pay due attention to also the legislations of the

5 countries of that former Yugoslavia.

6 I shall now move on to the subject of the legal representation of

7 Mr. Borovcanin during the giving of the interview. It has already been

8 mentioned that according to the rules of the legal system from which

9 Mr. Borovcanin and his Defence team hail, grave criminal offences entail

10 the principle of necessary defence or more precisely to put it, an accused

11 or suspected person for such criminal offences must have a legal

12 representative who has to be present at each and every moment during the

13 granting of the suspect's statement.

14 It is a fact that Mr. Borovcanin's lawyer did not attend the first

15 part of his interview on the 20th of February 2002. It is equally a fact

16 that Mr. Borovcanin actually agreed to that. However, Mr. Borovcanin's

17 consent for the interview to continue in the absence of Defence counsel

18 should actually be viewed through the prism of the arguments which I have

19 already adduced, namely: Would Mr. Borovcanin have indeed consented for

20 that interview to be conducted without a legal representative had he

21 clearly known that his was the status of a suspect, would he have

22 consented had he clearly and unequivocally known that what he was saying

23 could be used against him personally, and would he have consented had he

24 known that he was a suspect for the criminal offence of genocide and

25 conspiracy to commit genocide? In other words, the question is would

1 Mr. Borovcanin have at all talked to the Office of the Prosecutor and in

2 particular without the presence of legal counsel?

3 As regards the role which a legal representative should have, the

4 Defence should like to stress the following: In keeping with Article 18.3

5 of the Tribunal's statute and Rule 42 of the rules of procedure, the

6 suspect is entitled to be assisted by a lawyer of his own choice meaning

7 that it is the duty of legal counsel to assist the person being

8 represented. That implies an active role in the proceedings, whether it

9 is in the pre-trial stage or in the actual trial stage. Such an

10 interpretation and such a perception of the right of the suspect to

11 lawyers has also been accepted in the practice of this Tribunal as well,

12 and I should like to invoke the decisions in the Blagojevic-Jokic case of

13 18 September 2003, paragraph 25.

14 Mr. Borovcanin's defence contends that apart from being merely

15 present for a certain -- during a certain part of this interview, the

16 legal representatives of Mr. Borovcanin in no way actually assisted

17 Mr. Borovcanin, nor did they effectively protect his rights.

18 There is no dispute about the question that it was with

19 Mr. Borovcanin's consent that the interview of the 20th of February 2002

20 started and was conducted for a full three hours without the presence of a

21 legal representative. Even at the point when his legal counsel, Mr. Zoran

22 Bubic, actually joined the interview, that transpired without any concrete

23 input on his part. He neither said anything, nor did he suggest anything,

24 nor did he in any way whatsoever extend any legal assistance to his

25 client. He, in fact, did not even see fit to check what had been said in

1 his absence, nor whether he, as the designated Defence counsel, agreed for

2 the interview to proceed from the point at which he had joined it or

3 whether it should start over from the beginning. He also failed to

4 interview a single time -- to -- sorry, intervene a single time in

5 situations when it was required to clarify the status and the extent of

6 the rights that Mr. Borovcanin had during the interview.

7 The formal presence of Mr. Borovcanin's legal counsel during a

8 part of the interview cannot be justification for failure to perform the

9 function entrusted to him, which is to assist his client. He simply did

10 not do that, whereby Mr. Borovcanin was deprived of the effective -- of

11 effective legal representation.

12 When he was giving the second interview, Mr. Goran Bubic, another,

13 a new legal representative, appeared also and again with the consent of

14 Mr. Borovcanin. Not even this second lawyer participated in any way

15 whatsoever in extending legal assistance to his client.

16 Mr. Bubic literally did not say a single word that would concern

17 his -- that would amount to his extending legal assistance to his client.

18 Apart from that, the question of the continuity of defence also

19 arises because we do not know whether the first lawyer actually informed

20 the second lawyer on what had happened during the first interview. It is

21 in the view of the position of -- it is in the position of the Defence

22 team of Mr. Borovcanin that also grounds for which the interview and the

23 attending documentation should not be admitted into the case file.

24 Mr. Borovcanin's Defence team would like to stress another

25 question which it deems to be of importance for the adoption of a proper

1 decision in this legal matter. At the end of the interview,

2 Mr. Borovcanin was given the possibility to ask to change or further

3 clarify some of the things that he had said during the interview and that

4 all he needed to do that was to inform the OTP accordingly. The

5 interviews with Mr. Borovcanin lasted for about 15 hours, and it is clear

6 to any sensible person that there does not exist a person that has such a

7 command -- such concentration that he could precisely remember any

8 question and answer given during an interview that was conducted for 15

9 hours, and especially not the person who is giving a statement, without

10 listening to the tapes. That certainly would not be possible in the

11 absence of such an aid.

12 There was not a single valid reason for Mr. Borovcanin not to be

13 provided the tapes from the interview -- of the interview within a period

14 of a couple of days. However, that was not done. It is quite clear from

15 yesterday's and today's testimony that at the beginning of the second

16 interview, Mr. Borovcanin did not have the audio tapes from the previous

17 hearing, nor had any of his lawyers received these tapes. On the

18 contrary, he was given the right to change or supplement something in his

19 interview, but de facto that right was limited because he hadn't got the

20 tapes in a timely fashion.

21 And to wrap up, it is the position of the Defence of

22 Mr. Borovcanin that the interviews were obtained in a way which did not

23 fully abide by the basic rights of Mr. Borovcanin and that accordingly no

24 adverse consequence vis-a-vis Mr. Borovcanin may arise out of them.

25 Hence, the Defence should like to stress that admission of the interview

1 of Mr. Borovcanin into the case file would not be in the interests of

2 justice, nor would it be in conformity with the principle of a fair trial,

3 and it proposes that this Trial Chamber adopt a decision dismissing the

4 Prosecutor's motion for the interview, and the accompanying documents to

5 be tendered into evidence.

6 JUDGE AGIUS: I thank you so much, Mr. Lazarevic.

7 Mr. Meek?

8 MR. MEEK: Thank you, Mr. President, Your Honours. Good

9 afternoon.

10 JUDGE AGIUS: Good afternoon.

11 MR. MEEK: I'll try to keep this as short as possible. First off,

12 and Mr. Lazarevic has pointed this out and that's Rule 42, which states

13 that a suspect who is to be questioned by the Prosecutor shall have the

14 following rights. And the Prosecutor shall inform the suspect prior to

15 questioning. This is mandatory, not discretionary, and the reason and the

16 purpose for such warnings is to neutralise the distinct psychological

17 disadvantage that suspects are under when they are dealing with law

18 enforcement officers or the Office of the Prosecutor in this case. Under

19 the voluntariness test, the Prosecution must prove, I submit, that they

20 read specific warnings and obtained an intelligent waiver. I submit,

21 Your Honours, that they cannot show this in this case.

22 An interrogation is inherently -- inherently involves persuasion

23 and pressure. The ultimate goal of any interrogation is to obtain a

24 confession or at least an admission. Anything -- anything that would

25 implicate the suspect in criminal behaviour. It can safely be assumed

1 that nobody, none of us, would voluntarily implicate ourselves to the

2 police but interrogation such as we have here necessarily involves

3 persuading or convincing a person that it would be in their best interest

4 to do so. Interrogation, in fact, is a changing of a person's mind so

5 that they want to tell the police or law enforcement everything they did,

6 therefore helping to convict themselves.

7 The Prosecution in this case has talked a lot in the last week or

8 so to Your Honours about the only issue is voluntariness: Was the

9 statement given voluntarily? I respectfully submit that that is only the

10 second prong of the analysis that Your Honours are going to have to delve

11 into. I submit that the Prosecution has the burden to prove first that

12 the suspect, Mr. Borovcanin, knowingly, intelligently and voluntarily

13 waived his rights and thereafter, that he, Mr. Borovcanin, voluntarily

14 gave his statement.

15 This burden is a heavy burden and it is never placed on the

16 Defence. Again, I believe that the Prosecution wants Your Honours to

17 focus on was the statements -- were the statements voluntarily given?

18 Well, no one claims that anyone held a gun to his head. However, the

19 point being that the Prosecution has to prove that Mr. Borovcanin, who

20 what is a suspect at the time, who was served with a summons to appear as

21 a suspect under Rule 42, that he knowingly and intelligently waived the

22 rights under Rule 42. The requirement, the simple requirement, that the

23 waiver of these rights be knowing and intelligent, ensures that a

24 defendant or an accused or a suspect in this case is aware of these

25 rights, further the requirement that a waiver be voluntary protects the

1 trustworthiness of the statement by ensuring that the suspect was not

2 coerced into confessing or giving statements against himself falsely.

3 Further, Your Honours, once a suspect has made an incriminating

4 statement, it is unlikely that in that event that he would feel free to

5 retract those statements or refuse to speak further to the person whom he

6 had just given the statements after he had been issued the warnings.

7 This is what I would call, Your Honour, and has been called,

8 letting the cat out of the bag by giving the statement and no matter what

9 the inducement, the person who has given it is never thereafter really

10 free of the psychological and practical disadvantages of having given that

11 statement in the first place.

12 I submit, Your Honours, that the Office of the Prosecutor has not

13 come close to showing and meeting their burden that this statement should

14 be admitted against Mr. Borovcanin based on the fact that it was

15 voluntary. They cannot show, Your Honours, that there was a knowing,

16 intelligent, and voluntary waiver of the rights due to the fact that you

17 heard yesterday and due to the fact that Mr. Lazarevic just spoke about.

18 He was told he was a possible suspect. He was told because of a bad

19 interpretation that "anything would be used against him" rather than just

20 "used in court."

21 I submit, Your Honour, that the OTP by using this document to read

22 these rights and tell Mr. Borovcanin that he was a possible suspect was

23 nothing less than subterfuge. It was nothing less than a ruse, a trick, a

24 device, to obtain an advantage over him to get him to give the statement.

25 Another way you could put it, Your Honours, is that, and I submit, that

1 because of the way the rights were read to him, that it was also the

2 statement was produced based on fraud and inducement; that the OTP used a

3 deceitful warning as a trick to cause him to act to his disadvantage. I

4 submit, Your Honours, that Rule 42 has been violated, they cannot show and

5 they have not shown any -- under any burden, a preponderance of the

6 evidence, by clear and convincing evidence, or beyond a reasonable doubt,

7 that Mr. Borovcanin voluntarily, knowingly, and intelligently waived the

8 rights afforded him by the Rules of Procedure and Evidence.

9 Finally, Your Honours, I just want to say that if any trial is

10 worth conducting, then it's worth conducting fairly. And the courts that

11 apply this principle rigorously become stronger and not weaker. This

12 statement should not be admitted, and we request that you disallow it.

13 Thank you very much.

14 JUDGE AGIUS: I thank you, Mr. Meek.

15 Mr. Nicholls?

16 MR. NICHOLLS: Thank you to my friends and Your Honour for the

17 time. I'll try to finish in the 15, 14 minutes that are left.

18 I'll shorten my presentation a little bit.

19 Our position, Your Honours, is that this interview, I think, is

20 entirely admissible. It's probative, it's reliable, all the procedural

21 safeguards required under the statute were fully complied with. It was

22 given voluntarily and knowingly and intelligently by Mr. Borovcanin.

23 The crux, I think we can see, of the issue here is Rule 42 and

24 whether it was complied with. Mr. Lazarevic on behalf of his client has

25 gone through a great deal of explaining what the law is that

1 Mr. Borovcanin would have been familiar with, the law of the former

2 Yugoslavia regarding interrogation and things of that nature. That is

3 entirely irrelevant. First of all, for it to be relevant, it would mean

4 that Mr. Borovcanin, the Professor of law enforcement, would have been

5 aware of that law for it to have affected his thinking. If he was aware

6 of that law, he -- and was able to understand those concepts and compare

7 them while he was being interviewed, he surely would have been able to

8 understand the very simple rights -- reading of the rights which was given

9 to him at his interviews; and more importantly, the case law of this

10 Tribunal makes it clear that the cultural differences defence holds no

11 water whatsoever.

12 I'm talking there primarily to the decision on Zdravko Mucic's

13 motion for the exclusion of evidence, that's the Celebici case,

14 IT-96-21-T, 2nd September 1997, specifically starting at paragraph 59 to

15 60. There, the Trial Chamber specifically addressing Rule 42 states that

16 the test is an objective test. The question is whether Rule 42 was read

17 out, and it is the -- the test is not whether the person had any

18 familiarity with that from their culture, and the reason for that makes

19 good sense which they refer to; which the rights, as listed -- the

20 exhaustive rights and specific rights in Rule 42 are derived from

21 international norms from the European Convention of Human Rights, the

22 international -- ICCPR, and they are specifically designed to apply to all

23 situations, all people. These rights were designed to be easily

24 understood by people from the Former Yugoslavia when they were put in our

25 statute and to comply with international norms. I urge you to read those

1 paragraphs as well as paragraphs 551 to 553 of the Celebici judgement --

2 appeals judgement, excuse me, which affirms that.

3 In talking about Rule 42 in paragraph 551, the Appeals Chamber

4 said, "The right is neither ambiguous nor difficult to understand, as long

5 as a suspect is clearly informed of its language, in a language he or she

6 understands, the Prosecution fulfils its obligation. An investigator is

7 not obliged to go further."

8 And I won't because of the time go through it, but in the

9 Halilovic decision, 8 July 2005 for exclusion of the statement of the

10 accused, paragraphs 22 and 23, they make it very clear that what this

11 Tribunal requires under our Statute and our Rules of Procedure, is that "A

12 suspect be informed that he had the right to remain silent and that any

13 statement he may make may be used in evidence," period. There is no

14 requirement that the words, as my friend would like to add, "Be used

15 against you." The investigator in this case was going further than the

16 requirement. I think it was very clear from his testimony that what he

17 was trying to do was to be as fair as possible to Mr. Borovcanin and make

18 sure that he understood those rights. He went beyond the rule.

19 The argument that Mr. Borovcanin should have waited for his

20 counsel to appear or that he was free to leave the room, all of those

21 arguments, I urge you to read how many times the investigator and

22 Mr. McCloskey on pages 1 and 2 of the first interview told Mr. Borovcanin

23 that it was an important matter, and he should wait for his lawyer if he

24 wanted to and that he was under no obligation. And Mr. Borovcanin said,

25 "I want to start." He was read and advised his rights in a very simple

1 fashion which complied to the rules and he said, "I want to start."

2 And again, just to go back to Halilovic, the key here, the key for

3 you, is was he informed that he had the right not to answer any questions

4 and to remain silent? Yes. That's the rule. The rule was complied with.

5 Was he told that anything he said could be used in evidence? Yes. And he

6 was told that many times, both before his lawyer arrived and after his

7 lawyer arrived.

8 I want to comment briefly on the -- very briefly on the attack on

9 the competency of his counsel or the claim that counsel was ineffective.

10 It cannot be that simply because the lawyer did not ask questions or

11 interrupt that that constitutes somehow ineffective assistance of counsel.

12 First of all, when counsel arrived, what the record shows is that

13 there was a two-hour gap, break, specifically for him to consult with his

14 client, and all of the questions, all of the questions posed by

15 Mr. Lazarevic, that he wondered why the lawyer did not ask the

16 investigator could have been answered by Mr. Borovcanin during those two

17 hours, and it's just really raw, gross speculation to try to say that

18 somehow this lawyer listening to the evidence and with his client was

19 ineffective merely because he didn't jump up at certain points.

20 And I think we need to look at the reality of what happened during

21 this interview step by step.

22 Mr. Borovcanin, it's clear from the record, is an educated man,

23 highly educated man. At the time of the interview he had a master's

24 degree, he was a life-long career police officer, he was working as a

25 professor in law enforcement at Banja Luka at the academy, and he was

1 working on a Ph.D. This man was summonsed as a suspect and that summons

2 says that "He is to provide a statement in respect of an investigation

3 into crimes that occurred in and around Srebrenica in 1995."

4 He's also given a safe conduct or Prosecutor's undertaking which

5 said that you will not be arrested at the interview or for five days after

6 the interview or on the way to or from the interview. He retained an

7 attorney prior to the interview at some point after he received the

8 summons. He unambiguously waived his right to have that counsel present

9 more than once at the beginning of the interview. If you look through

10 this interview, most especially in the February interview, at pages 2, 23,

11 44, 1, 115, and the March interview at pages 1, 115, 50, you'll see that

12 all the rights were complied with.

13 And really what my friends are trying to do is set up an

14 impossible standard, a standard in which no interview would be admissible

15 because what they are attacking is not so much the way their rights were

16 administered in this, but saying that Article 42 is inadequate because it

17 doesn't say "You have to be advised of your status as suspect," it doesn't

18 say that. And because it doesn't say that "Evidence may be used against

19 you," because it doesn't have those extra words, "Against you." Those

20 rules are the same one that is have been used since the beginning of this

21 institution. They were complied with in this case, and it is just simply

22 not complicated, as they would try to have it.

23 I can understand if they had called some evidence that

24 Mr. Borovcanin had some kind of mental impairment, if he had some specific

25 difficulty in understanding very, very plain language like that contained

1 in rules 42 and 43. The interpretation, there have been some mistakes,

2 but we've corrected that in the transcript, and over all, it was very

3 accurate. He received everything he needed to know under the rules, and

4 we've also learned that he speaks English to some degree as well.

5 So, finally, I would say in answer to my friend Mr. Meek, was it

6 knowing? Yes. This is a man working on a Ph.D. hearing very simple rules

7 which are a universal standard that applied to him and applied in the

8 Former Yugoslavia as well as they were a member of those international

9 instruments. Was it intelligently waived? If you read the transcript

10 you'll see that he understood. He says, "Yes, we can continue." He

11 answers the question intelligently. My friend said that at the end of the

12 interview he was told he could contact the Prosecution later. Well,

13 actually, he was referring to page 162, I think, and they are when

14 Mr. Borovcanin is given the opportunity to add or clarify and that's at

15 the second interview, he does so. He says that he makes some comments on

16 the structure. And was there a waiver? Yes. The waivers are express all

17 the way through. The waiver of his right to remain silent, the waiver of

18 his right to counsel. It's completely unambiguous. He understood his

19 rights and he waived them. Thank you.

20 JUDGE AGIUS: I thank you, Mr. Nicholls. Do you wish to add

21 anything, Mr. Lazarevic? Or shall we leave it at that?

22 MR. LAZAREVIC: No, Your Honour.

23 JUDGE AGIUS: Thank you. Mr. Meek?

24 MR. MEEK: Very briefly, Your Honour, since I see that we have a

25 minute left.

1 JUDGE AGIUS: Yes. Go ahead.

2 MR. MEEK: Two things. It doesn't matter under these

3 circumstances that Mr. Borovcanin was a very educated man. Here is a man

4 who has never been in the shoes of a suspect. He's there in Banja Luka at

5 the United Nations building. He is without his lawyer. He is with an

6 investigator and a senior legal attorney from the OTP; and frankly, Your

7 Honour, we are not trying to set up an impossible standard, and the

8 Prosecution says this a lot. We just would like the Prosecution to abide

9 by the rules, and the rules are that they shall do these and it's not

10 discretionary. So that's all I have to say, Your Honours. I thank you

11 very much.

12 JUDGE AGIUS: Okay. I thank you.

13 [Trial Chamber confers]

14 JUDGE AGIUS: So I think we can safely close the debate on this

15 issue here. We will not be rendering a decision today or tomorrow. I

16 think we need to mull over the whole -- all the submissions that you have

17 made. We do not have any further business to transact until after the

18 recess, and, of course, I told you yesterday we'll meet on the 21st of

19 August, not because we have decided to reject the joinder motion but

20 because hope springs eternal, Mr. McCloskey, but because we are scheduled

21 to sit on that day.

22 So until then, or until we meet again, I wish to take this

23 opportunity and speak on behalf of both Judge Kwon, Judge Stole, and Judge

24 Prost, to thank you for all the work that you have put in the case. I

25 know you have a very hard task, all of you, Prosecution and Defence. It's

1 not an easy case by any means. And it's very demanding on your time and

2 on your energies. You've worked a lot, and the number of motions and the

3 level of your interventions indicate your preparation for the case on a

4 daily basis. We appreciate that.

5 I think a break is what we all need at the moment. So what

6 remains to be said on my part is to wish you a good rest, and to come

7 back, please God, come all back in August when we meet again, and then we

8 can take it up from there. Thank you so much.

9 --- Whereupon the hearing adjourned at 4.33 p.m.,

10 to be reconvened on Tuesday, the 21st day of August,

11 2007, at 9.00 a.m.

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