Tribunal Criminal Tribunal for the Former Yugoslavia

Page 168

1 Monday, 24 January, 2000

2 [Open session]

3 [The accused entered court]

4 [Status Conference]

5 --- Upon commencing at 3.04 p.m.

6 THE REGISTRAR: Good afternoon Your Honours,

7 IT-95-08-PT, the Prosecutor versus Dragan Kolundzija and

8 Damir Dosen.

9 JUDGE MAY: Let us have the appearances.

10 MR. NIEMANN: My name is Niemann and I appear

11 with my colleague Mr. Keegan and Mr. Kapila Waidaratne

12 for the Prosecutor.

13 JUDGE MAY: For the Defence.

14 MR. VUCICEVIC: Your honours, Dusan Vucicevic

15 on behalf of Dragan Kolundzija.

16 MR. PETROVIC: Your Honours, my name is

17 Vladimir Petrovic. I am an attorney at law from Zagreb

18 and I appear for Damir Dosen.

19 JUDGE MAY: This hearing is listed as a

20 Status Conference, but also for the hearing of various

21 motions. There are, firstly, motions relating to the

22 indictment from both accused and motions in relation to

23 the evidence from both Prosecution and Defence.

24 Now, the position is this, as I hope you have

25 been informed. Judge Robinson is not here. He is away

Page 169

1 for urgent personal reasons, and therefore we are not

2 in the position of making any orders in his absence.

3 However, it is possible to hear argument from counsel,

4 which the judge can then read and take part in the

5 deliberations and the making of orders.

6 I must say that in the two weeks that we have

7 been in this position, we have dealt with several

8 matters in this way. However, before making any

9 decision, we will hear the submissions, if any, of

10 counsel, of our hearing these matters in the

11 absence of Judge Robinson.

12 Any objection, so far as the Prosecution is

13 concerned?

14 MR. NIEMANN: No objection, Your Honour.

15 JUDGE MAY: As far as the Defence are

16 concerned?

17 MR. VUCICEVIC: No objections, Your Honour.

18 MR. PETROVIC: No objections, Your Honour.

19 JUDGE MAY: Very well. We will begin with

20 the motions in relation to the indictment. As I say,

21 we will merely hear the arguments today. There will be

22 no orders until the Trial Chamber is fully

23 constituted. There are two motions relating to the

24 indictment, and the form of it. It may be convenient

25 to hear them together. Mr. Vucicevic, would you wish

Page 170

1 to begin?

2 MR. VUCICEVIC: Yes, Your Honour. Defence of

3 the accused, Dragan Kolundzija, respectfully submits

4 that the indictment is deficient in form and that it

5 should be dismissed. The case law of this Tribunal

6 states that primae facie case must be pleaded, and also

7 a case from the Rwanda Tribunal says that the essential

8 facts, when supported by the evidence, should result in

9 conviction. And that was a position taken by the

10 Prosecution in their response. However, the most

11 essential holding on which the Defence of Dragan

12 Kolundzija relies is the holding of this Trial Chamber

13 in Kvocka case, specifically outlining the essential

14 facts which must be supported by minimum level of

15 information, in order to sustain challenge to the form

16 of the indictment.

17 Therefore, in my oral argument I would like,

18 with particularity, to tie the lack of the specificity

19 and lack of minimum information to each and every count

20 of this indictment. Therefore, the allegations in

21 Count 1, 2 or 3 are defectively pled as far as the

22 individual criminal responsibility is concerned because

23 they merely recite language of the Statute in not --

24 they are not pleading or alleging any facts showing

25 that the accused was involved in planning, instigating

Page 171

1 or in committing, or otherwise aiding and abetting, or

2 in the planning, preparation or execution of the

3 certain unlawful acts.

4 There are three separate defects of form that

5 the Prosecution has failed to plead. A, the

6 Prosecution has failed to plead that Dragan Kolundzija

7 was involved in any activities at the other detention

8 facilities in Prijedor region, such as Omarska and

9 Trnopolje. And those pleadings are evident in

10 paragraph 6 to 10.

11 B, the Prosecution has failed to plead the

12 facts establishing criminal, individual criminal

13 responsibility with regard to any other facility or

14 occurrence in Prijedor, other than Keraterm detention

15 centre.

16 And C, the Prosecution has failed to

17 establish any facts as to the severe beatings, torture,

18 killing, sexual assault and other forms of physical and

19 psychological abuse as evident in paragraph 21.

20 The allegations regarding liability of

21 superior officer in Counts 1, 2, and 3 are also

22 defectively pled and must be dismissed.

23 In order to sustain the indictment on form,

24 the Prosecution must plead that the accused must have

25 known or had reason to know of his subordinates'

Page 172

1 criminal acts; and, two, that the accused failed to

2 take necessary and reasonable measures to prevent such

3 acts or punish his subordinates.

4 There are no less than six separate defects

5 in form in pleading the required specific facts.

6 Number one, there is a defect showing that Dragan

7 Kolundzija was present at Keraterm in his capacity as

8 chief commander at all times, where all the acts

9 alleged were present.

10 To illustrate this, the lack of specificity,

11 when Dragan Kolundzija was present at Keraterm and what

12 acts were perpetrated when he was present. It is not

13 only when the shift of which he was a commander was

14 there but also the shift that was there was at various

15 times, other times, commanded by other individuals, and

16 on other occasions Kolundzija wasn't there.

17 Number (2) there is essential defect of fact

18 pleading that Kolundzija knew of the acts before or

19 during their commission.

20 (3) that Kolundzija -- there are no facts

21 indicating that Kolundzija failed to take any steps to

22 prevent those alleged criminal acts or that he had

23 failed to punish his subordinates for those acts.

24 Moreover, there are no specific pleadings indicating

25 that he had authority to punish the subordinates for

Page 173

1 those acts.

2 Counts 1, 2, and 3 are also defectively pled

3 because the terms used are vague and ambiguous and

4 don't give sufficient notice of what conduct Dragan

5 Kolundzija must defend against. For example,

6 psychological abuse as used in paragraph 21(D),

7 inhumane conditions or acts in paragraph 21(E); in

8 Count 2, outrages on personal dignity as in

9 paragraph 23 in Count 3.

10 Counts 4 and 5 accuse Kolundzija both

11 individually and as a superior authority for certain

12 unlawful acts that were allegedly committed on July 24,

13 1992. Those counts are defectively pled because they

14 fail to provide the minimum information and essential

15 acts to allege that he had individual criminal

16 responsibility, because again, they merely recite the

17 language requirements from Statute Article 7(1), and

18 they are not providing any basic facts to sustain such

19 a language.

20 Also, Counts 4 and 5 are defectively pled

21 because they have to allege sufficient facts that

22 Dragan Kolundzija had superior authority under

23 Article 7(3).

24 The Prosecutor has specifically failed to

25 inform the defendant and furnish essential facts that

Page 174

1 Kolundzija had knowledge before shooting took place on

2 7/24/92. Also, there is a failure to allege that

3 Dragan Kolundzija had authority over Serb forces. And

4 with all due respect, I have to point out that in the

5 amended indictment, the "Serb forces" term has been

6 used to substitute term "soldiers" in the first

7 indictment. That is a very vague term. It's not used

8 in either military professional terminology in any of

9 the languages used in the former Yugoslavia.

10 Therefore, it is indefinite and unclear.

11 Also the Prosecutor has failed to allege the

12 facts that Dragan Kolundzija had any authorities over

13 any other camps besides Keraterm, and there is no

14 specificity delineating any of his responsibilities,

15 which would -- conveniently, omissions were made to

16 picture him as the part of a persecution that allegedly

17 has occurred in the Prijedor area. But there is no

18 specific facts indicating that he was at all part of

19 the alleged persecution, while there are numerous

20 statements, essential facts indicating that Dragan

21 Kolundzija was not.

22 And with all due respect, I have to bring up

23 the point that the Statute and the cases so far

24 indicate that essential facts must be pledged. And in

25 order to sustain the form of the indictment, the

Page 175

1 information presented is firmly grounded on the facts.

2 What the Prosecutor is arguing in their response, that

3 those are merely issues of fact and should be resolved

4 at trial.

5 However, I will give you an analogy.

6 Prosecutor is saying that there is the tip of an

7 iceberg floating on the ocean, when indeed he knows

8 there is no iceberg under the surface. This might be

9 the reason why this indictment is so defective, unlike

10 any indictment that has been submitted before this

11 Tribunal in the past.

12 In the submission of my learned colleague,

13 counsel for accused Dosen, there was quite a few

14 examples of the language of specificity used by the

15 Prosecution in the other indictment, and I would

16 respectfully ask this Trial Chamber to compare the

17 specificities in other indictments with this one,

18 because we have arrived to the point on which this

19 Trial Chamber has commented in Kvocka case by saying,

20 Your Honours, there might be a case where the level of

21 the information must fall -- may fall below the

22 minimum. Indeed, that case is before you, Your

23 Honours, today.

24 JUDGE MAY: What do you say about the

25 attachment which is attached to the schedule,

Page 176

1 Attachment A, in which much more detail is given?

2 MR. VUCICEVIC: Your Honours, that was a

3 last-minute effort to save a defective indictment.

4 However, it's too little and inappropriate.

5 In paragraph 17 and 19 in their response,

6 Prosecutor is basically attempting to say, "We are

7 submitting the attachment." That attachment was

8 originally, as we pointed out, submitted to the

9 proposed amendment of the indictment that was pending

10 before you and then it was withdrawn. And this is

11 nothing but a laundry list of all alleged crimes -- and

12 I do I apologise for the term but it might seem that

13 way -- of all the crimes that occurred in Keraterm

14 throughout its existence.

15 It fails severely, because it does not at all

16 specify which of those victims were allegedly murdered

17 or tortured on Kolundzija's watch. And it could happen

18 that most of those people were or all of those people,

19 I respectfully submit, suffered during the times that

20 Kolundzija was not in that authority. That's why that

21 list is not proper. There is enough information in the

22 disclosed statements.

23 To prepare the indictment -- to attempt to

24 prepare the indictment to meet the specificity of

25 information. However, Your Honours, I respectfully

Page 177

1 submit there has been five years since this indictment

2 was brought and confirmed, there were numerous

3 statements of the witnesses which basically do not meet

4 the standard, and this indictment cannot be formed to

5 satisfy the basic charge against Dragan Kolundzija.

6 I'm more concerned about another point

7 because in reading the statements of the Prosecutor's

8 witnesses. I have reason to believe that there are

9 statements, yet undisclosed, that exculpatory, and we

10 haven't got any of them.

11 JUDGE MAY: That's a separate point. Now,

12 we've got your pleadings, Mr. Vucicevic, your

13 submissions, both the original motion and your reply to

14 the Prosecutor's submissions. Is there anything more

15 you want to say to us?

16 MR. VUCICEVIC: With all due respect, we ask

17 that this indictment should be dismissed with

18 prejudice, because there is no sufficient information

19 in the essential facts upon which the accused could be

20 tied up to the alleged acts committed. Most

21 particularly in your holding in Kvocka, the Prosecutor

22 has not met the standard or at least showing the line

23 of other authorities that were concurrently present.

24 There is not a single fact indicating that

25 Kolundzija is responsible for nothing else than that

Page 178

1 event of the night of July 24th. And on that one,

2 there is a failure to provide that he had -- what were

3 the other lines of authority, as you said.

4 So the whole indictment must be dismissed,

5 and it's up to you, Your Honour, by evaluating the

6 facts. And that is completely another issue that I

7 have decided not to go into the merits, but now under

8 the Rule 72 the disclosed facts should be evaluated. I

9 leave that upon the wisdom of this Trial Chamber.

10 Thank you, Your Honours.

11 JUDGE MAY: Thank you. Mr. Petrovic.

12 MR. PETROVIC: [Interpretation] First of all,

13 with regard to this matter, I wish to say that the

14 Defence of the Damir Dosen abides by what has been has

15 been submitted in writing; that is to say, on the

16 15th of December last year, as well as the response

17 that was filed on the 15th of January this year. That

18 is to say, there are no new points that we wish to make

19 in relation to what it already says in writing. So I

20 would like the Trial Chamber to consider what is in

21 these submission that have already been made.

22 There is just one fact that I wish to point

23 out. In the opinion of the Defence of Damir Dosen, the

24 indictment, as it stands, considerably lags behind the

25 usual form and practice and already attained standards

Page 179

1 in indictments before this Tribunal. So there are

2 quite a few facts that are lacking. The way in which

3 crimes were committed, the time, the place of

4 commission of the offence, all of this is lacking. All

5 of this is missing. That makes the preparation of the

6 defence in this case considerably more difficult. How

7 can one prepare the defence if one does not precisely

8 and exactly know where -- how the accused is being

9 indicted?

10 There is another very essential point. The

11 accused, as he thought of what was going on and thought

12 of what he is being charged with, what is actually

13 being held against him? That he killed someone? That

14 he mistreated someone? That he did what? These are

15 grave problems that the accused has to face. At this

16 point in time, in view of the content of the

17 indictment, he does not know what he's up against.

18 So for all these reasons -- and I don't want

19 to go into all of what I already presented in my

20 motions -- the indictment is deficient, imprecise, and

21 it requires a substantive and comprehensive amendment.

22 Also, it is important to delineate the

23 responsibility of the accused in view of Articles 7(3)

24 and 7(1) of the Statute. The accused has to know

25 exactly what he's being held responsible for, whether

Page 180

1 he was involved in the planning, aiding, and abetting

2 of certain crimes that are punishable according to the

3 Statute of this Tribunal, and when he is responsible

4 for crimes that were allegedly committed by others as

5 the Prosecutor is claiming; that is to say, persons who

6 were in his shift.

7 Of course, during the trial, because this is

8 not the right time or place to do this, the Defence is

9 going to show that Dosen was not a shift commander, nor

10 was he responsible for what other persons, who worked

11 with him, did in terms of the security of the Keraterm

12 camp.

13 A different matter is Attachment A. We got

14 that in the Prosecutor's response to our preliminary

15 motion, and I imagine that the Trial Chamber would be

16 interested in hearing more about this particular

17 matter.

18 JUDGE MAY: Yes. I'm sorry, Mr. Petrovic, if

19 you would like to go on.

20 MR. PETROVIC: [Interpretation] So this

21 attachment that we got, as we said in our response of

22 the 17th of January this year, the legal nature of this

23 document is not quite clear to the Defence. It says

24 that this is a document that will assist the Defence.

25 In the cases that were quoted in our response, that is

Page 181

1 to say the case of Krnojelac, the case of Kvocka, and

2 others, the status of the same document of this nature,

3 which consists of this table of what the accused is

4 being charged with, it says, clearly, that this is --

5 this document is part of the indictment. And it went

6 through a procedure that is customary for amending the

7 indictment; that is to say, the Chamber instructed the

8 parties involved to do so, that is to say, to have the

9 indictment amended.

10 And this differs from what we were given by

11 the Prosecutor, along with their response to another

12 motion.

13 Also, if one only glances at this document,

14 one can see that it is quite contradictory. It creates

15 quite a bit of confusion. In terms of this already

16 imprecise indictment, we try to specify some examples.

17 For example, when it says co-perpetrator, when it gives

18 Damir Dosen's name, what does that mean? Does that

19 mean that he committed this crime by himself or, when

20 there is no other name in the column co-perpetrators,

21 does that mean he is the only one who is being held

22 responsible? These are all the things that are

23 imprecise. And especially in relation to what Damir

24 Dosen relates to, that is counts 4 to 7 of the

25 indictment.

Page 182

1 In the introductory part of Article 25 of the

2 indictment, it says that this happened on the 25th of

3 June, 1992. If one only glances at this document that

4 we are speaking of, that is to say, Attachment A, that

5 is attached to the Prosecutor's response to our

6 preliminary motion, one can see that this concerns

7 events that happened in July, in August, at different

8 points in time, and also killings are mentioned that

9 are not mentioned at all in the indictment itself.

10 Does that mean that in this way the

11 indictment is being expanded, amended? Is the

12 Prosecutor, through this informal document, trying to

13 amend the indictment? Because there is no mention of

14 this in the amended indictment.

15 I also want to add one more thing, that a

16 precise and adequate indictment would considerably --

17 would make it much easier to expedite the trial

18 itself. We wouldn't have to bring in so many

19 witnesses. If it were clearly stated in the indictment

20 what my client is being charged with, then, when we

21 come to the point when the Defence case starts, we will

22 be in a position to precisely say what we have to

23 prove, whereas now the Defence has to prove everything,

24 in relation to every day of Keraterm's existence.

25 If we knew exactly what this referred to,

Page 183

1 when, how, et cetera, then we would expedite the trial

2 itself. Because we know, unfortunately, for how long

3 the -- our clients will have to wait to have this Trial

4 Chamber start with their trial. But once the trial

5 starts, we would like it to be as speedy and as

6 efficient as possible, not to mention the fact that

7 this would save resources for the Tribunal itself and

8 for everyone concerned. And, on the other hand, there

9 are matters that Damir Dosen was not involved in at

10 all.

11 There is quite a bit of time left until the

12 trial begins, unfortunately, if we have been made

13 adequately aware of the schedule of this Trial

14 Chamber. So the Prosecutor has enough time and

15 resources to specify this, so that the indictment would

16 truly be directed at what it is believed that the

17 accused Damir Dosen committed.

18 Thank you for your attention.

19 JUDGE MAY: Thank you. Mr. Niemann, just two

20 matters which you can help us with. At the moment, as

21 I understand it, there are two separate indictments now

22 against these two accused. I think those are the most

23 -- the latest documents which we have.

24 MR. NIEMANN: Yes, Your Honour.

25 JUDGE MAY: Is it proposed that there should

Page 184

1 be -- they should be joined in due course into one

2 document?

3 MR. NIEMANN: Yes, one document. It is

4 proposed that there be one document that covers both

5 accused contained within the confines of one document.

6 In fact, Your Honours, you are aware that the -- I

7 think you are aware that the indictment has been

8 joined, so it's not a matter that we'll be making an

9 application for joinder, because joinder -- that's how

10 the indictment was presented to the Confirming Judge.

11 The Confirming Judge entertained an

12 application on our part to issue individual documents,

13 pending arrests of persons, because that happens

14 sporadically and doesn't happen in one event. But we

15 have the intention of filing one document to cover both

16 accused.

17 Now, whether we do it now, Your Honour, or

18 whether we do it at another stage, it's a matter of

19 convenience for the Chamber. Our position is that we

20 could do it now, without difficulty, but it may be

21 preferable to wait to an event -- to a time closer to

22 trial, because it's not going to affect in any way --

23 in any significant way the presentation of the

24 indictment. It may be better to do it closer to trial

25 because if these accused are to be joined by any other

Page 185

1 accused from the Keraterm camp, that will necessitate

2 filing yet another document to include that third or

3 fourth person, if that should happen to trial.

4 But if it's a matter of convenience for us to

5 do it now, we can, if that would assist Your Honours.

6 JUDGE MAY: It may assist. It may be easier

7 to deal with the matter closer to trial, for the

8 reasons you've mentioned.

9 The other point I want to ask you is about

10 Attachment A. The point is made as to what the status

11 of this document is. As I take it, it's a document

12 which is put forward to assist the Defence in the

13 preparation of their case and to assist the Trial

14 Chamber.

15 Is there any reason why it shouldn't form

16 part of an indictment, if the Trial Chamber was of a

17 mind to so order? We haven't yet decided the matter,

18 of course, but we need to consider all possible

19 courses.

20 MR. NIEMANN: There is no reason at all, Your

21 Honour, why Your Honours couldn't so order, if that was

22 an appropriate course for Your Honours to take. But

23 perhaps I might just cover that point a bit. The

24 complaint by both Defence counsel in this case really

25 is a complaint of lack of particulars. They frame

Page 186

1 their motion in the form of an attack upon the

2 indictment, and a suggestion that the indictment should

3 plead more of the evidence. In our submission, Your

4 Honours, that is not the purpose of the indictment, and

5 the indictment itself doesn't have to prove the case.

6 The evidence proves the case, and whatever

7 the allegations contained in the indictment, will not

8 prove the case. If one examines their complaint,

9 really what they are saying is the indictment isn't

10 giving us a sufficient directory to the type of

11 evidence that's going to be relied upon, and we find it

12 deficient because we don't have that directory. Well,

13 Attachment A achieves that directory, Your Honour. It

14 gives them that directory. It tells them the details

15 that they say are deficient, and it tells them where to

16 go to find it, in terms of the particular statements.

17 It gives them the people involved, other perpetrators

18 involved, and it gives them further particularity with

19 relation to the dates and places.

20 We have no particular objection, if this was

21 to be ordered to be attached to the indictment, but

22 what we would say is this, Your Honours, that it's not

23 the purpose of the indictment to put in this level of

24 particularity, and to some extent put in this

25 evidence. That's not the purpose of an indictment.

Page 187

1 But if Your Honours felt that it was more

2 convenient to do so, then we certainly raise no

3 objection to that.

4 Your Honours, in the Kvocka case, it was an

5 attachment of this sort which we submit remedied the

6 situation in terms of lack of particulars, which the

7 Defence complained of in that case.

8 There was just one other matter I was going

9 to raise, if I may. I don't want to traverse all the

10 issues, it's been done in our submissions. We think

11 they are sufficient for the purposes. If we can assist

12 you in any other matters, we will, and be pleased to.

13 But the reference, Your Honours, to the other camps,

14 Omarska and Trnopolje, has been raised by the Defence

15 in a way which is suggesting that we haven't provided

16 specific particulars in relation to these accused

17 involved in those camps. That, Your Honour, denies the

18 very nature of the charges. The charges that have to

19 be established are that it's a widespread and

20 systematic attack, and the allegations are that this

21 happened in the Prijedor municipality. And so the

22 indictment, in our submission, would not be complete if

23 it didn't provide some reference to the widespread and

24 systematic nature of the offence.

25 And so, Your Honours, that is the reason why

Page 188

1 it's included there. And to suggest that somehow the

2 indictment should be dismissed because it contains a

3 vital allegation relating to widespread and systematic,

4 Your Honours, in our submission, fails to recognise the

5 nature of the offences that are charged here.

6 JUDGE MAY: Thank you. If the Defence want

7 to respond in a few words, they can, but make it a few,

8 please.

9 MR. VUCICEVIC: Yes, Your Honour. Thank you

10 for the opportunity. What Prosecution is inviting this

11 Trial Chamber to do is to give them a carte blanche to

12 write, basically, the language of the Statute without

13 any essential facts to support it. That hasn't been

14 the case.

15 And just recently I have read your decision

16 in the Kupreskic case, and I could not escape the

17 opportunity to look in some of those counts of

18 indictment, where the Prosecutor with specificity tied

19 up each and every defendant with particular acts.

20 Looking here, counts 2 to 9, murder and inhumane acts

21 and cruel treatment. And there is 3 or 4 or 5 names of

22 the victims and perpetrators, the statements of the

23 witnesses indicating that they have seen those acts

24 committed.

25 In the indictment of Dragan Kolundzija, the

Page 189

1 Prosecutor not a single time indicated that the victim

2 X, Y, Z was either murdered or tortured while Dragan

3 Kolundzija was on the shift. This is the difference.

4 The Prosecutor is trying to change the goal

5 post in the game. And this is not a game. This is a

6 serious legal proceedings, that the whole world is

7 looking at us. And the standards that you have set in

8 Kvocka, it's a time now to be enforced. There must be

9 a minimum of information based on the facts. It's a

10 language of the Statute, and Prosecutor must be asked

11 to get those facts, or we respectfully ask you to

12 dismiss the indictment.

13 JUDGE MAY: Mr. Petrovic, if you want to add

14 anything.

15 MR. PETROVIC: [Interpretation] Just briefly.

16 I had expected to get an answer regarding the legal

17 nature of the documents. That was the first thing.

18 And the second, if that is part of the indictment, what

19 is the legal remedy left to the Defence in terms of

20 investigating and preparing a Defence, because this

21 part of the indictment is full of contradictions and

22 vague points. And this is what I am interested in.

23 This is what I would like to find an answer to in some

24 way or another. Thank you.

25 JUDGE BENNOUNA: [Interpretation] Mr. Niemann,

Page 190

1 we have the indictment here, and also we have this

2 Attachment A that you handed over, and that is where

3 there is a list of victims and perpetrators. That is

4 to say, that if we look at this table, there are two

5 columns in this annex. The problem that the Office of

6 the Prosecutor has to face is the following. Perhaps

7 you could clarify this for us. If we look at this

8 annex, you mention a number of crimes that were

9 committed in camps and, on the other hand, you also

10 mention charges that are brought against the accused

11 persons.

12 Then you particularly refer to Articles 7(1)

13 and 7(3) of the Statute, and then you give a few

14 elements of the accused themselves. I'm not asking you

15 now to disclose all the evidence you have, but we would

16 kindly ask you to explain to us what is the

17 inter-relationship with the indictment itself; that is

18 to say, how does this relate to the indictment? What

19 is the nexus between the attachment and indictment?

20 What guided you in this effort? What guided you in

21 this effort? Why did you mention all these charges?

22 Of course, there is a presumption of

23 innocence. However, what is the nexus between the list

24 of the crimes allegedly committed by the accused and

25 the legal basis for all of this?

Page 191

1 Could you now give us more details about what

2 guided you in this effort; that is to say, why you made

3 this nexus between the crimes allegedly committed by

4 the accused and the legal qualification involved.

5 MR. NIEMANN: Yes, Your Honour. Your

6 Honours, the way we approach the indictment in this and

7 in many other cases is to set out, in a manageable

8 form, the allegations and the crimes that the

9 Prosecution allege will be proved at trial. In doing

10 this, invariably there is a reference in the indictment

11 to some pieces of the evidence that will be ultimately

12 relied upon at trial.

13 We do not, however, seek to produce a

14 document, when we present an indictment, which is, in

15 effect, a mirror of the trial itself. If we were to do

16 that a number of difficulties would arise. The most

17 obvious ones that occur to us is that having regard to

18 the nature of oral testimony and witnesses' evidence,

19 it's possible that what we may recite in an indictment,

20 if we were to set out the whole trial in the

21 indictment, may ultimately turn out to be different

22 than to what occurs at trial. But probably the most

23 important aspect of it is that if we were to set out in

24 all the detail the whole evidence of the case, then the

25 purpose of the trial itself would be rendered

Page 192

1 superfluous.

2 So what we do, Your Honours, and what our

3 philosophy has been, is to present the accused and Your

4 Honours with a document which, we agree, in some

5 respects presents a summary, an outline of the case

6 both as to the issues of law and, to some extent, as to

7 issues of fact.

8 Bearing in mind the nature of the charges

9 here, these charges are never or very, very rarely

10 dependent upon a single event. In most instances, the

11 evidence that is required to be produced in order to

12 prove these charges most often represents a

13 multiplicity of events which go to make up the charge.

14 These multiplicity of events may be multiplicity of

15 crimes committed and, in addition, they could include

16 such other matters as the nature of the crime committed

17 over a geographical region, hence the wide-spread and

18 systematic nature. Further, it may involve the actions

19 of states or authorities because that is the nature of

20 these particular crimes.

21 Having regard to the magnitude of these

22 events, we find, almost invariably in every case, we

23 are met with a motion filed by the Defence saying that

24 the indictment is deficient. Regrettably, Your

25 Honours, this is a misunderstanding of the nature of

Page 193

1 the indictment. What they're really saying is there

2 are insufficient particulars; the Defence haven't been

3 given enough detail about the particular events which

4 we say go to constitute the crime charged.

5 Now, an argument that could be put is, well,

6 the supporting materials should do that and that should

7 be all that is necessary. Certainly that's all that's

8 necessary for the Confirming Judge to be satisfied of a

9 prima facie case. And at this stage of the

10 proceedings, one could successfully argue, in my

11 submission, that why should the Defence, at this time,

12 have more than what the Confirming Judge has?

13 The Prosecution is not seeking to prove its

14 case with the indictment. It's merely attempting to

15 set out the details of what it will go about to prove

16 in the course of the trial. However, in an abundance

17 of caution, with a mind to assist the Defence, because

18 we do recognise the complexity of these cases and the

19 magnitude of them, what we try and do and what we have

20 attempted to do in Attachment A is to provide, if I can

21 call it, a road map of the way the Prosecution will go

22 about the proof of the allegations contained in the

23 indictment. It's a means by which the Defence can look

24 at what we are alleging and say, "Ah, that's how

25 they're going to do."

Page 194

1 And they talk about numerous inconsistencies

2 and other defects which they may say are contained in

3 the attachment. Of course, that is so. I mean, this

4 is what the Prosecution is doing. It's laying its case

5 bare at this stage of the proceedings and saying, "This

6 is what we're going to rely on to go to trial."

7 Inconsistencies and defects which may be

8 suggested on the basis of these summaries now we say

9 will either be resolved at trial, and if they're not

10 resolved at trial and still stand at the end of the

11 Prosecution case, they will be obviously to the

12 detriment of the Prosecution. But our submission, Your

13 Honours, there is no point in looking at this

14 attachment now and saying there are inconsistencies.

15 Therefore, the indictment should be dismissed and the

16 case shouldn't be heard. In our submission, that's

17 nonsense.

18 So, Your Honours, what we're trying to do

19 with this is to provide the sort of particulars that

20 the Defence claim they need to prepare themselves for

21 trial. We submit that it's inappropriate that it

22 should form part of the indictment because that's not

23 what indictments are for, in our submission. But if

24 Your Honours are disposed to join it, we're not going

25 to object to that if Your Honours feel that is a better

Page 195

1 course to take. We're saying that these sort of

2 details shouldn't be included in the indictment. This

3 is merely the same sort of thing that a Prosecutor's

4 opening address does. It's an extension of the

5 supporting material that's provided to the Confirming

6 Judge. That's, Your Honours, its status.

7 JUDGE MAY: Of course, you will be obliged to

8 provide more detail and indeed set out the way in which

9 you intend to prove the case in your pre-trial brief.

10 MR. NIEMANN: Certainly, Your Honour.

11 JUDGE MAY: And while we're on that, when do

12 you anticipate having that document ready?

13 MR. NIEMANN: If I may consult my colleague.

14 [Prosecution counsel consult]

15 MR. NIEMANN: We had envisaged, Your Honour,

16 that it would be something that would no doubt be

17 ordered by Your Honours. We thought perhaps at some

18 time close to trial, but if that would assist in due

19 course. Again, it's a document of some length. It

20 will take some time to produce.

21 JUDGE MAY: I would be grateful if a start

22 could be made towards it. We are not in a position to

23 order it at the moment because we haven't finish the

24 preliminary motions, but once we've done that, I

25 anticipate we will be making a fairly short order. It

Page 196

1 will assist everybody in the preparation of the trial

2 to have that document.

3 MR. NIEMANN: We will start it.

4 JUDGE MAY: Thank you.

5 MR. NIEMANN: I hope that assists Your Honour

6 and Judge Bennouna. If there is anything further I can

7 do to assist Your Honour.

8 JUDGE BENNOUNA: [Interpretation] Thank you,

9 Mr. Niemann. Judge May did ask the right questions of

10 you. In other words, we have a full picture of this

11 pre-trial brief. We would like to have the pre-trial

12 brief so we would know what the strategy of the

13 Prosecution is going to be.

14 The question that arises now is certain

15 objections are being raised; in other words, that you

16 are only mentioning the Articles of the Statute; that

17 is, 7(1) and 7(3). In other words, that you just

18 mentioned in passing the command responsibility. But

19 could you tell us how you intend to frame, both in

20 regard to Mr. Kolundzija and Mr. Dosen, how do you

21 intend to frame your case in regard to their superior

22 authority and within the chain of command?

23 Obviously you don't need to present it now,

24 but what you have presented to us so far is fairly

25 limited. You say that in the Kolundzija case you would

Page 197

1 refer to the Statute, Article 7(1) and 7(3), but you

2 provide no further details in that respect. And in the

3 Kolundzija case, in paragraphs 16 and 17, you mention

4 certain things, but could you go in more detail, to

5 tell us in more detail how you envisage to present

6 evidence regarding the superior authority, and

7 specifically in Counts 1 to 3 of the indictment. Could

8 you assist us with some additional information,

9 Mr. Niemann?

10 MR. NIEMANN: Certainly, Your Honours. As I

11 say, when we present our pre-trial brief we will expand

12 on this, and during the course of the opening we'll

13 expand upon it a little further.

14 But perhaps if I can take Your Honours to

15 paragraph 23 of the indictment of the accused Dosen,

16 and 22 of the Kolundzija indictment. Paragraph 23,

17 dealing with the Dosen indictment, is a preface to

18 Counts 1, 2, and 3. And the evidence that the

19 Prosecution will bring at trial and will refer to again

20 in our pre-trial brief and will become much more

21 detailed as we go, will establish what we say there,

22 that this accused was a shift commander in the Keraterm

23 camp; that this person, this accused, had the authority

24 to alter the conditions of confinement that existed in

25 the Keraterm camp during the times he was on duty.

Page 198

1 So we're saying that while he was there, he

2 could do things to affect the circumstances and

3 conditions that operated upon the detainees. He had

4 the authority to control the conduct of the guards

5 assigned to his shift and to prevent or control the

6 conduct of visitors to the camp. He had the authority

7 to grant the prisoners more freedoms and rights within

8 the camp, including access to potable water, reasonable

9 living conditions, and hygienic standards, and contact

10 with their family or friends to receive clothing,

11 hygienic supplies or food and medicine. In addition,

12 as a policeman on active duty, he had an independent

13 duty to uphold the laws in force.

14 Now, Your Honours, this is again just a

15 summary form of what the Prosecution will prove in much

16 greater detail at trial. We're not seeking to prove it

17 now. We wouldn't want to tie Your Honours with graphic

18 detail of evidence, which we may or may not use coming

19 to trial, in attempting to establish this at this point

20 as if we believed that Your Honours were going to go

21 away and retire, read the indictment, and come back

22 with your verdict. We don't believe that's what Your

23 Honours are going to do, and we don't believe, Your

24 Honours, that it assists anyone, at this point, for us

25 to do that. That's not the purpose of an indictment.

Page 199

1 What we've said here must be proved. At the

2 end of the day, I'm sure Your Honours will sit down and

3 tick off the various things that we said would be

4 proved. And if they're not proved, that may or may not

5 be fatal to the Prosecution case.

6 I don't know whether that assists Your

7 Honours.

8 JUDGE BENNOUNA: [Interpretation] You also

9 quoted paragraph 23 -- sorry, paragraph 22 with respect

10 to Mr. Kolundzija. It seems to me that what you said

11 does not really touch on Articles 7(1) and 7(3),

12 because these are legal points rather than, say,

13 anything -- whether they were in a position to know

14 anything of what was going on. In other words, you're

15 referring to these two paragraphs, 22 and 23, you say

16 that they had legal authority, that they were in

17 control of the guards, but that does not quite

18 correspond to what is stated in Article 7(1) and 7(3)

19 of the Tribunal.

20 MR. NIEMANN: Perhaps if I could just say

21 this first. The allegations that we make in paragraphs

22 22 and 23 are no more than that. They are

23 allegations. We are not seeking to prove paragraph

24 7(1) and 7(3) by these paragraphs. We will do that, we

25 undertake to do that, and we'll do it at trial. But we

Page 200

1 are not seeking to prove it in the indictment.

2 We are not asking Your Honours to now find a

3 prima facie case for the Prosecution before you've

4 heard the evidence. We will ask you to do that after

5 we have tendered our evidence.

6 I'm also directed, Your Honours, to further

7 paragraphs, 16 and 17, which I won't go through and

8 read in detail, but again go to the Article 7(1) and

9 7(3) of the Statute.

10 To do it any other way, Your Honours, would

11 be to turn the whole process on its head, for the

12 Prosecution to present its whole case in the

13 indictment. There would be nothing more to do. But

14 what we say in the indictment is not the evidence.

15 It's merely the allegations.

16 JUDGE BENNOUNA: [Interpretation] Thank you,

17 Mr. Niemann.

18 JUDGE MAY: We must move on from the

19 indictment, Mr. Vucicevic. We've got several other

20 matters to deal with --

21 MR. VUCICEVIC: Your Honours, I would beg for

22 your indulgence just for 30 seconds.

23 JUDGE MAY: All right. Thirty seconds.

24 MR. VUCICEVIC: Mr. Niemann has said, in the

25 end of his responses, the Prosecutor is not asking the

Page 201

1 Trial Chamber to present the primae facie case evidence

2 at this stage. Whether that was his misspoke or not,

3 but that's basically what he argued. At some point he

4 has said the wider the case is, the less information

5 the Prosecution should be allowed to permit.

6 I respectfully submit that the rights of the

7 accused and the specific language in the Statute on how

8 the indictment is framed does not permit the Trial

9 Chambers to give the latitude to the Prosecutor to

10 dispense the formalities of the indictment.

11 At another point he says, in order to give

12 you ample information, Your Honours, that would tie you

13 up with the details. When the shoe is on the other

14 foot, Your Honours, we attorneys for the Defence are

15 going to be tied up without any details. Thus, the

16 formalities that are required in the Statute bind us

17 all to do our duty. And I respectfully hope that you

18 will do yours.

19 JUDGE MAY: Yes. Let us move to the next

20 motions. There are motions in respect of various

21 protective measures. Is there anything that the

22 Prosecution want to add to those?

23 MR. KEEGAN: No, Your Honour, we have nothing

24 to add to our submissions.

25 JUDGE MAY: We have the submissions of the

Page 202

1 Defence in relation to that. I'll just ask the legal

2 officer a question.

3 I was inquiring what our practice was in

4 other cases, particularly Kordic, and I am reminded

5 that we took a much more restricted view of redactions

6 and non-disclosure. As is recollected, we ordered that

7 virtually all the material be disclosed, apart from one

8 or two selected witnesses, for whom particular reasons

9 applied.

10 You are asking in this case for a blanket

11 order, in effect, aren't you? Mr. Keegan.

12 MR. KEEGAN: Your Honour, it would in effect

13 be a blanket request for non-disclosure at this time.

14 And the request was based on what appears to be, I

15 think, recognised that it may be some length of time

16 before we actually go to trial. Of course, consistent

17 with the practice in other cases, full disclosure would

18 be made in a reasonable time prior to trial, to allow

19 the Defence to have the opportunity to fully

20 investigate.

21 The question for us is whether that is

22 necessary now or whether it would indeed pose, in our

23 opinion, an undue risk to the witnesses, which is not

24 necessary for the Defence to investigate at this time.

25 [Trial Chamber confers]

Page 203

1 JUDGE MAY: I should have said, in relation

2 to the matters on the indictment, those motions, that

3 we'll consider them, and we shall give our order when

4 we are fully constituted. Similarly, in relation to

5 this matter, we will consider it in due course.

6 Yes. Anything anybody wants to say about

7 that? Yes, Mr. Vucicevic.

8 MR. VUCICEVIC: Your Honours, I'd like to

9 make a response to Mr. Niemann's argument on the motion

10 for the protective measures.

11 JUDGE MAY: Yes.

12 MR. VUCICEVIC: You are duly cognisant of

13 your previous practices. I have read the language in

14 your order that you issued in the previous Prosecutor's

15 motion for protective order. And you have requested

16 full disclosure with specific directions to the Defence

17 on how to protect the witnesses. And I believe the

18 experience that the Tribunal has had in disclosures, in

19 communications between witnesses and various parties,

20 has been positive.

21 The Prosecutor has indicated some isolated

22 incidents, but there was no reason that Your Honours,

23 at the time that you have considered this matter,

24 without opposition from us, because we put our trust in

25 your learned opinion and experience.

Page 204

1 However, in order to change this and allow

2 redaction, blanking out of the names would mean that

3 the Defence will be precluded from applying to you,

4 Your Honours, to give us permission to look and find

5 witnesses who are scattered throughout the Europe and

6 American continent. To do this 30 days before the

7 trial would be practically impossible.

8 I sincerely submit that we will obey to your

9 orders, to the last letter of your order, and even take

10 a stricter approach. But we would like the permission,

11 on a case like this, which is insufficiently supported

12 with specific facts, to look for the witnesses and to

13 find out what they mean when they said some of those

14 facts are indeed ambiguous and controversial statements

15 the Prosecutor has.

16 In order to accommodate the Prosecutor on

17 this, would be to blindfold the justice, to tie our

18 arms, and to not allow us to present you the other side

19 of the case. Thank you.

20 JUDGE MAY: Yes.

21 MR. PETROVIC: [Interpretation] Very briefly,

22 please. I would just like to recall something. It is

23 certainly rather not necessary at all for me to remind

24 this Trial Chamber on the order to protect witnesses

25 and victims in the Kvocka case. It is unclear why --

Page 205

1 what is being done now is far more restricted. Damir

2 Dosen's Defence would like to suggest an approach that

3 would be less restrictive, more selective. So perhaps

4 40-odd witnesses could be questioned. In the

5 Prosecutor's case, this is certainly insufficient.

6 Then also the accused, Damir Dosen, will be prepared,

7 within a given amount of time, to give a comprehensive

8 interview to the representatives of the OTP.

9 How can he do this, if he does not have the

10 basic information needed, the basic elements that are

11 contained in the statements that charge him with all

12 those alleged crimes? Thank you.

13 JUDGE BENNOUNA: [Interpretation]

14 Mr. Petrovic, how much time do you need before the

15 commencement of the trial, so that you would be in a

16 position to have all the elements of the evidence which

17 you need?

18 MR. PETROVIC: [Interpretation] The Defence

19 would, of course, like to have this as early as

20 possible, perhaps at this point in time to have all

21 these elements concerning all the witnesses. And we

22 are aware of the fact that this will not be possible in

23 each and every case. If the Trial Chamber accepts this

24 more restrictive approach that is propounded by the

25 Prosecutor, we would suggest that it be a 60-day time

Page 206

1 frame. However, I repeat, it would mean a great deal

2 for the Defence if this could be much earlier. Thank

3 you.

4 JUDGE BENNOUNA: [Interpretation] Thank you.

5 JUDGE MAY: Thank you. The final motion is a

6 motion on behalf of Mr. Kolundzija for access to

7 certain materials from another case.

8 What the Prosecution have suggested is that

9 the proper course is to go -- is to approach the Trial

10 Chamber in the other case in order to obtain materials,

11 and not in this case.

12 Now, Mr. Vucicevic, is there any reason why

13 you can't do that?

14 MR. VUCICEVIC: Your Honour, there is no

15 reason that I couldn't do it. However, this is a case

16 where Mr. Kolundzija is charged, this is the material

17 that we are going to need, and the evidence, why we are

18 going to need this material, will be presented to you

19 in -- and if needed, we can do it in the hearings in

20 Chambers.

21 They are very pertinent, because

22 Mr. Kolundzija is a victim of his service at Keraterm,

23 just as the other people who were inmates there were

24 victims. He has suffered severe mental consequences,

25 in terms of having post-traumatic stress disorder.

Page 207

1 Post-traumatic stress disorder has been litigated

2 before this Trial Chamber extensively in the Furundzija

3 case, and we would like to start our presentation from

4 the point where the other expert has left it off, and

5 not to waste judicial time by going over the materials

6 and the positions and statements that were already

7 heard.

8 And that is the purpose that I have directed

9 this to this Trial Chamber. With due respect, that

10 Your Honour, Judge May, was a member of the other Trial

11 Chamber, I thought there could be an inter-Chamber

12 transfer of the request, with you allowing, if you

13 would like to hear the reasons for our request, because

14 we have the expert psychiatrist examine Mr. Kolundzija,

15 and we have had professional opinion that he has indeed

16 suffered from post-traumatic stress disorder, and acute

17 psychological traumatic disorder from the night of July

18 24th.

19 Therefore, in order to properly present that

20 aspect of the case, we would need this information.

21 JUDGE MAY: Thank you. We'll consider the

22 right approach.

23 Yes. Moving on to some general matters. The

24 first is this, to give some idea of the scope of this

25 case, as the Prosecution envisages at the moment; the

Page 208

1 number of witnesses, a time estimate and that sort of

2 thing. It would be helpful for planning the case.

3 MR. NIEMANN: At this stage, Your Honours, I

4 think we are contemplating a case which would involve

5 60-plus witnesses. And bearing in mind the amount of

6 time it takes to deal with witnesses at trial, would be

7 upwards of eight weeks, the Prosecution case. But we

8 are not fully precise on that, Your Honour, because the

9 numbers may vary slightly. But that's the ambit of the

10 case, as we see it at this point.

11 JUDGE MAY: And, as far as disclosure is

12 concerned, exculpatory and any other material, is that

13 in hand?

14 MR. NIEMANN: We have complied, Your Honours,

15 with the -- obviously, the material has been disclosed

16 in accordance with the Rules. The issue of Rule 68 is

17 actively under consideration, and any matters coming up

18 in that regard are being set aside for that purpose.

19 We would envisage, in due course, Your

20 Honours, that under Rule 66(A)(ii), as we get closer to

21 trial, perhaps orders will be made in relation to

22 disclosure there. And that, of course, is

23 -- at this stage we are dependent upon the orders of

24 Your Honour concerning protective measures.

25 JUDGE MAY: Thank you. We have to fix a date

Page 209

1 for the next Status Conference, and we shall do so.

2 The 22nd of May. That's a Monday. Or earlier, if so

3 ordered. It depends upon the progress of the Trial

4 Chamber. But for the moment we'll make an order for

5 the 22nd of May to comply with the Rules. If possible,

6 we shall hold, or I shall as Pre-Trial Judge, hold an

7 earlier conference. But that depends upon other work

8 in other cases.

9 Finally, the Rules require the Chamber to

10 hear any submissions which the accused or those acting

11 for them wish to raise in relation to detention or to

12 their cases.

13 Are there any such submissions on behalf of

14 the accused or by the accused, anything they'd like to

15 raise about their conditions of detention or the

16 cases?

17 Mr. Vucicevic?

18 MR. VUCICEVIC: Your Honour, you mentioned

19 anything about detention or the case of the accused. I

20 do not -- I would like to ask you for a clarification.

21 Does that mean also with what you have just mentioned

22 with scheduling of the pre-trial -- of the next

23 conference?

24 JUDGE MAY: If you want to say something

25 about that, do. What do you want to say?

Page 210

1 MR. VUCICEVIC: Yes, Your Honour. We would

2 respectfully ask that the next conference be scheduled

3 on much shorter notice, if possible within the next 60

4 days, because we would like to see this case move much

5 faster so to give the meaning to the word of a speedy

6 trial as one of the rights of the defendants. And I'm

7 saying this not with any scintilla of disparagement in

8 my wording, because I know that this Trial Chamber is

9 labouring hard under the cases that are on its docket.

10 But at the same time, we have heard here today that

11 these essential facts are rather missing here, and what

12 Prosecutor has asked you, to give him a latitude and

13 proceed to a trial brief instead of having a sufficient

14 indictment.

15 Prosecutor, he is not disclosed any --

16 JUDGE MAY: Mr. Vucicevic, let me interrupt

17 you.

18 MR. VUCICEVIC: Yes, sir.

19 JUDGE MAY: I mean, these are arguments which

20 we've already heard. We hear what you say. Of course

21 it is matter of importance that these cases, all of

22 them, come to trial. You rightly refer to the other

23 cases on our docket. We are as anxious as anybody that

24 these matters do come to trial soon, and we are working

25 to that end. That's why I specifically said that if

Page 211

1 it's possible to have an earlier date, we will fix one,

2 but it's necessary, at this stage, to have an outside

3 date in case circumstances prevent us having an earlier

4 conference. So we have your point on that.

5 MR. VUCICEVIC: I do thank you, Your

6 Honours.

7 JUDGE MAY: Anything else that anybody wants

8 to raise?

9 MR. VUCICEVIC: Prosecutor -- I don't have my

10 copy of the Rules of Procedure and Evidence in front of

11 me -- but has mentioned disclosure. I would ask you to

12 set a date by which, as the Rule reads, the exculpatory

13 evidence must be disclosed as soon as practicable. And

14 if there is any exculpatory evidence to be presented

15 and disclosed to us within the next 15 days, 30 days

16 maximum.

17 JUDGE MAY: That again is something that

18 we're going to have to consider in due course.

19 Now, is there anything that the accused want

20 to raise about anything else, other than matters that

21 have been raised, about their detention or their

22 cases? Anything, Mr. Kolundzija or Mr. Dosen, you want

23 to say? No. Thank you.

24 Very well. We'll adjourn now.

25 --- Whereupon the Status Conference

Page 212

1 adjourned at 4.25 p.m., to be

2 reconvened on Monday, the 22nd day of

3 May, 2000.