Tribunal Criminal Tribunal for the Former Yugoslavia

Page 5157

1 Wednesday, 05 December 2001

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.35 a.m.

5 JUDGE MUMBA: Good morning, please call the case.

6 THE REGISTRAR: Your Honours, case number IT-95-9-T, the

7 Prosecutor versus Blagoje Simic, Milan Simic, Miroslav Tadic and Simo

8 Zaric.

9 JUDGE MUMBA: Yes. Yesterday we discussed briefly about some of

10 the matters affecting the indictment and the evidence that was being

11 elicited from the Prosecution witness now on the stand, and we did agree

12 that there may be need for the Prosecution to address the Trial Chamber on

13 matters which were mentioned yesterday. So now this is the time, Mr. di

14 Fazio.

15 MR. DI FAZIO: Thank you, if Your Honours please. Can I inform

16 the Chamber that I will be seeking to make an application to amend the

17 indictment? In fact, I've taken the liberty of providing the Chamber with

18 a document that is not an official motion or anything like that but merely

19 an aid to my submissions this morning and it contains the proposed

20 amendment.

21 Essentially, the proposed amendment would be the addition of a

22 further small paragraph after 14(e) in the indictment and thereafter

23 throughout the various paragraphs that follow to give it coherence.

24 JUDGE MUMBA: That is the ones cited here, 14(e), 14(g), 17(f) and

25 18(g).

Page 5158

1 MR. DI FAZIO: That's right. I wonder if you might be handed a

2 copy of the proposed amendment. Have you been provided with that?

3 JUDGE MUMBA: Yes, I think we have. You can go ahead and

4 hopefully you'll be able to read out this. Yes.

5 MR. DI FAZIO: Yesterday, the central question that was raised was

6 whether or not the evidence of damage or destruction to religious

7 institutions would be admissible through the indictment by virtue of the

8 wording of paragraph 14(e) and its repetition in the various paragraphs

9 that follow, and furthermore two related questions, whether the word

10 "property" within that paragraph would permit such evidence or whether it

11 is confined to a stricter meaning, private property. And also whether the

12 word "including" in that paragraph 14(e) sheds any light and the absolute

13 or precise ambit of paragraph 14(e). So those are the questions I

14 understand that you wish me to address. And this proposed amendment

15 arises out of my addressing you on that.

16 The -- although we propose -- although we seek to apply to amend

17 the indictment with the -- to include that extra paragraph, the

18 Prosecution position is that such evidence of destruction of religious

19 institutions would have been admissible notwithstanding the provisions of

20 paragraph 14(e). Having said that, the proposed amendment, I suggest,

21 will crystallise the case even further and make it clearer for the

22 defendants and will be of assistance to the Chamber in its deliberations.

23 Evidence of destruction of religious institutions should, in the

24 Prosecution's submission, become relevant simply by virtue of the factual

25 allegations contained within the indictment. Paragraphs 38, 39 and 40 of

Page 5159

1 the factual allegations, indeed, the part of the indictment dealing with

2 additional factual allegations, clearly allege a discriminatory attack.

3 In paragraph 38 there is reference to the actions of the Serb authorities

4 otherwise making life so impossible and oppressive that most Bosnian

5 Croat, Bosnian Muslim and other non-Serb residents of the municipality

6 fled or were forced to leave the area.

7 That in itself, in the Prosecution's submission, would make

8 evidence of destruction of religious institutions of that particular group

9 at once admissible.

10 Paragraph 39 doesn't shed that much further light on it because it

11 simply repeats the allegations as far as Odzak is concerned. And then

12 paragraph 40, referring to a campaign of persecutions, refers to other

13 serious violations of international humanitarian law directed against

14 Bosnian Croat, Bosnian Muslim and other non-Serb civilians.

15 THE INTERPRETER: Could you please slow down a little?

16 JUDGE MUMBA: Slow down for the interpreters, please.

17 MR. DI FAZIO: I do apologise.

18 I'll just repeat that last --

19 JUDGE MUMBA: Part, yes, please.

20 MR. DI FAZIO: -- part. Paragraph 40, in reference to a campaign

21 of persecutions refers to the commission of other serious violations of

22 international humanitarian law directed against the Bosnian Croat, Bosnian

23 Muslim and other non-Serb civilians residing in the relevant

24 municipalities. And therefore, the destruction of religious institutions

25 would be evidence that is directly relevant to that particular factual

Page 5160

1 allegation.

2 JUDGE WILLIAMS: Mr. di Fazio, if I could just ask you on that

3 point, it seems that the Appeals Chamber of this Tribunal in the Kupreskic

4 appeal, concerning what is necessary in the indictment, stated that what

5 we have to have is a concise statement of the facts of the case, that

6 that's necessary to ensure a fair hearing for the accused, to enable him

7 to have adequate time and facilities for the preparation of his Defence,

8 that the Prosecution has therefore an obligation to state the material

9 facts underpinning the charges in the indictment, and so my concern would

10 be, if or were the attacks on the religious buildings material facts, then

11 they should be pleaded explicitly or expressly in the indictment.

12 Mr. Di FAZIO: Yes. Well, I don't take issue with that. And I'm

13 not suggesting that this is the only method -- that the references in

14 paragraphs 38, 39 and 40, are the only means by which such evidence would

15 become relevant. I'm merely building it up, and this is one factor that

16 you can take into account in looking at its relevance and its

17 admissibility as far as the trial is concerned. But I don't take issue

18 with what Your Honour has said as far as the law is concerned. I agree

19 that the material facts must be laid before the accused so that they know

20 the case that they have to answer.

21 Discriminatory intent, if Your Honours please, is also required

22 in order for proof of all crimes against humanity, and I don't think I

23 need to provide you with references to that but there has been -- there

24 have been utterances in the cases to a common element of discrimination

25 and the -- in regard to a -- the enjoyment of a basic or fundamental

Page 5161

1 right. And that is one of the forms that persecution can take. So

2 destroying the ability of people to practise, or a selective group, to

3 practise their religion is in the Prosecution just such a discriminatory

4 denial of a basic right and, therefore, the evidence becomes relevant

5 under that heading as well.

6 In addition, the indictment in paragraph 10 alleges that all acts

7 and omissions charged as crimes against humanity were part of a widespread

8 or systematic attack against the Bosnian Croat and Bosnian Muslim civilian

9 residents of the municipalities of Bosanski Samac and Odzak. And in the

10 Prosecution's submission, the evidence of the selective destruction of

11 religious institutions must go directly to establishing a widespread and

12 systematic attack on that particular group.

13 The evidence that's proposed would fit the bill. It would show

14 the destruction of mosques and Catholic churches in various towns in those

15 two municipalities, and it would go to establish the destruction of

16 non-Serb property, in other words, the establishment of a widespread and

17 systematic attack on those groups. And so, therefore, evidence of such

18 selective attacks should become relevant and admissible as the

19 indictment now stands.

20 If you look, however, at paragraph 14(e), as it -- in its current

21 wording, it may be that it would permit the evidence, the sort of

22 evidence that I was trying to lead yesterday in any event. Your Honour

23 raised the issue of the meaning of the word property in 14(e). Do Your

24 Honours have that paragraph?

25 JUDGE MUMBA: Yes. You mean the indictment itself?

Page 5162

1 Mr. Di FAZIO: Yes.

2 JUDGE MUMBA: 14(e).

3 Mr. Di FAZIO: (e)

4 JUDGE MUMBA: Yes, we have it.

5 Mr. Di FAZIO: It's a curious wording but nonetheless its meaning

6 is reasonably plain, I submit. The wanton and extensive destruction,

7 plundering and looting of property of the -- of the property of Bosnian

8 Croats, Bosnian Muslims and other non-Serb civilians, including dwellings,

9 businesses, personal property - I emphasise that, if Your Honours please

10 - personal property and livestock. There is on the face of that

11 phraseology no apparent reason why you should read down "property" to

12 confine it to personal property. Indeed, the presence of the words

13 "personal property" after the word "including" would, I think, I submit,

14 only mean that the word "property" where it first appears in the phrase

15 has a very broad meaning. Otherwise, what would be the point of including

16 personal property later in the phraseology of the paragraph? But be that

17 as it may, it may be that it would have been preferable to include

18 something like including but not limited to dwellings, businesses,

19 personal property and livestock. I don't know. That might be a counsel

20 of perfection. But certainly, there is nothing that I can see in the

21 normal reading of the paragraph 14(e) that imposes any restriction on the

22 ambit of the word "property" in 14(e) where it first appears. And so for

23 that reason alone, I submit that the evidence of the destruction of

24 commonly held property or property that is the patrimony of a group, or --

25 yes, under those two headings, property -- this evidence would then become

Page 5163

1 admissible.

2 So that's the situation as the indictment stands at the

3 moment, and the Prosecution's submission, therefore, is that the evidence

4 of destruction of religious institutions is already admissible and

5 relevant.

6 As far as the word "including," if I might just return to the

7 wording of 14(e) is concerned, it really doesn't shed any particular light

8 because it's not limiting the previous word "property" where it first

9 appears.

10 I'm not aware of any principle that says that you have to give a

11 strict reading or a strict interpretation to the language used in the

12 indictment.

13 JUDGE MUMBA: Yes, except that one has to be cautious because this

14 is a criminal trial.

15 Mr. Di FAZIO: Yes.

16 JUDGE MUMBA: Unlike civil proceedings.

17 Mr. Di FAZIO: Yes, yes. I appreciate that but one must also seek

18 the plain intent and meaning of the indictment, and it's clear that it is

19 concerned with the property of these non-Serbian groups. Now, if that --

20 that may not just be their own personal property or their real property,

21 land. There is no apparent reason why it should be confined to such

22 notions or limited notions of property.

23 Having said that, however, the Prosecution, in being concerned to

24 make sure that the Defence know with absolute precision what the case is

25 that they have to answer proposes the amended indictment, makes an

Page 5164

1 application for the amendment of the indictment, in the terms of the

2 document that I've handed to you.

3 For the purposes of the record, and as this is only an aid to

4 assist us this morning, I should read it, the proposed amendment, into the

5 transcript. The proposed wording of the additional paragraph to be

6 inserted as paragraphs 14(f), 15(g), 17(f), and 18(g), is as follows:

7 The destruction or wilful damage of institutions dedicated to

8 religion, including but not limited to --

9 THE INTERPRETER: Could the counsel please slow down while

10 reading.

11 JUDGE MUMBA: Please slow down.

12 MR. DI FAZIO: I do apologise.

13 JUDGE MUMBA: If you can start again.

14 MR. DI FAZIO: I'll start again.

15 The destruction or wilful damage of institutions dedicated to

16 religion including, but not limited to, the Catholic churches and mosques

17 in Bosanski Samac, Odzak, Donji Hasici, and Hrvatska Tisina. That's the

18 proposed amendment.

19 There is, in the Prosecution's submission, no conceivable

20 prejudice that could arise to the Defence if the amendment were to be

21 permitted at this stage of the trial. First of all, there are numerous

22 references in the statements of the witnesses to the destruction of these

23 particular institutions. It's been referred to in evidence that's already

24 been given to the Chamber but the fact that -- the matter that clinches it

25 beyond all doubt whatsoever is the question of notice that the Defence

Page 5165

1 have had.

2 The pre-trial brief, the Prosecutor's pre-trial brief, was filed

3 on the 9th of April of this year, many months ago. Paragraph 120 of the

4 Prosecutor's pre-trial brief says, and I quote, "Numerous witnesses will

5 testify to events such as the confiscation of their belongings, the

6 destruction of places of worship and extensive looting of private

7 residents and commercial property belonging to non-Serbs." So there can

8 be no complaint whatsoever that the Prosecution -- the Defence, rather,

9 are taken by surprise, have not had any notion or idea that the

10 Prosecution would intend to lead this evidence. Quite the contrary.

11 Quite the contrary. They have received notice, have been aware, and

12 cannot complain of surprise or any prejudice that might be caused to them

13 by this particular amendment.

14 So there are my submissions. Is there any other matter that you

15 wish to hear me on?

16 JUDGE MUMBA: No, Mr. di Fazio, that's sufficient.

17 Yes, the Trial Chamber will now ask the Defence for their

18 submissions on the proposed amendment.

19 MR. PANTELIC: Yes, Your Honours, could we have just a couple of

20 seconds to confer among us? Because this is quite new issue.


22 MR. PANTELIC: Not for us but in the course of the proceedings, so

23 we have to confer. Thank you.


25 [Defence counsel confer]

Page 5166

1 JUDGE MUMBA: Before the Defence puts up their submissions, we

2 just want one question more for the Prosecutor.

3 JUDGE WILLIAMS: Yes. Mr. di Fazio, this is on a -- not related

4 to cultural property but this is just something else in terms of the

5 indictment. I wonder whether you could turn to page 7, paragraph 18,

6 dealing with Mr. Simo Zaric.

7 MR. DI FAZIO: Yes.

8 JUDGE WILLIAMS: And if we look at the first line, I'd like to

9 know whether those dates are correct, from or about September 1991 to

10 about 31st of December, 1992. Is the 1992 correct?

11 MR. DI FAZIO: I'm just checking the other -- the references to

12 the end dates for the other defendants.

13 JUDGE WILLIAMS: This is in view of paragraph 6, the chapeau, as

14 well, Mr. di Fazio. The paragraph --

15 MR. DI FAZIO: Yes, yes, yes, I see it.

16 JUDGE WILLIAMS: And also paragraph 13, which says, "Beginning or

17 about September, 1991, and continuing through at least 31st of December,

18 1993. And then also mentions Mr. Zaric. And I'm just wondering why the

19 difference.

20 MR. DI FAZIO: Well, there may -- if Your Honours please, there

21 may well be a reason which I just don't know about at this particular

22 time. I am suspicious about that particular date and I'm grateful to Your

23 Honours for pointing that out to me. Again, could I have some time and

24 address you on this again tomorrow after I've had a chance to confer with

25 my colleagues, and will let you know precisely what the Prosecution

Page 5167

1 position is? I can let you know tomorrow or perhaps even today. If you

2 are keen to hear me on this issue by lunch time, I can probably do that.

3 However, I would prefer to be able to do it tomorrow morning, if that's

4 convenient to the Chamber. But it certainly does, I agree, need to --

5 JUDGE MUMBA: To be explained.

6 MR. DI FAZIO: -- crystallise our minds as to why that date has

7 been chosen and I regret that I can't give you an answer straight away,

8 but I can let you know fairly soon.

9 JUDGE MUMBA: So we will go back to the proposed amendment by the

10 Prosecution. Can we have the Defence, please?

11 MS. BAEN: Your Honour, the situation that we are dealing with

12 right now is identical to the situation that arose in Kupreskic and is

13 addressed by the Kupreskic Appeals Chamber. The simple question here is,

14 did the Prosecution plead the material facts with the requisite detail so

15 that the Defence were put on notice of what they're being charged and were

16 able, therefore, to prepare their Defence on those charges. And our

17 position is that they did not, in paragraph 14(e) of the indictment.

18 Obviously, the Prosecution is -- has some concerns about the specificity

19 or they would not have proposed this amendment, they simply would have

20 gone forward with the trial and their position would have been that they

21 gave us enough notice in 14(e).

22 So, therefore, this is the situation as we see it, Your Honours.

23 They have three choices. First of all, they can continue the trial but

24 not present any evidence on the destruction of this property that we have

25 been talking about, and not amend the indictment. That's the first

Page 5168

1 choice.

2 The second choice is they can go ahead and present this evidence,

3 which I think would be careless without amending the indictment, and just

4 argue that it comes in under 14(e), but our position is we would object to

5 that because we weren't put on sufficient notice of the detail of the

6 charges.

7 Or the third choice is that they can go ahead and seek to have

8 this amendment made to the indictment, and unfortunately, under the Rules

9 of this Tribunal, under Rule 50, in that situation, the Defence is

10 entitled to 30 days to answer the new charges so that if we need to file

11 any motions or responses to the new charges, and also if there is any

12 investigation necessary, then the Defence has the chance to do that. And

13 this is exactly the situation, as I said, which was raised in the

14 Kupreskic appeals decision.

15 Opposing counsel's argument about -- that we were put on notice by

16 the pre-trial brief and statements is actually arguing the losing position

17 in Kupreskic because the Court addressed that and said that a pre-trial

18 brief and witness statements is not enough notice. So my bottom line,

19 Your Honours, is the Defence's position is -- well, I guess the ball is in

20 the Prosecution's court. We need to know whether or not they are going to

21 amend or not amend and then --

22 JUDGE MUMBA: They have made -- this is an oral motion to amend.

23 MS. BAEN: If they are going to --

24 JUDGE MUMBA: -- under the words which Mr. di Fazio read out.

25 That is part of the subparagraph which they wish to have inserted in all

Page 5169

1 those paragraphs in 14(f). These are the proposed paragraphs for 14(f),

2 15(g), 17(f) and 18(g). So these are the subparagraphs they wish to have

3 inserted in the indictment.

4 MS. BAEN: Then if they are making a formal motion to amend at

5 this time, if this is not just merely discussion, academic discussion.

6 JUDGE MUMBA: No, no, no, it's an oral motion to amend.

7 MS. BAEN: Our clear response is, under the Rules, we are entitled

8 to 30 days in which to respond.

9 JUDGE MUMBA: That's all you have to say? As far as I want to

10 have clear in my mind - I haven't understood you clearly - you are saying

11 that these subparagraphs which are facts additional to the paragraphs

12 already existing in the indictment, according to you, amount to new

13 charges?

14 MS. BAEN: They amount to material facts which could also be

15 considered new charges, but at the very least, they constitute material

16 facts which should have been pled in the original indictment so that we

17 could prepare our defence. So, Your Honour, my answer is this: At the

18 very least, they are material facts but they also could be considered to

19 be new charges because, as Judge Williams pointed out yesterday, there is

20 a charge under -- there is part of the Statute of the Tribunal which could

21 be specifically charged, although it's perfectly all right to charge this

22 under persecution as well, as long as we are given notice. So to answer

23 your question, Your Honour, we are saying they are material facts that

24 should have been pled in the indictment.

25 JUDGE MUMBA: And having accepted that these are material facts,

Page 5170

1 you still need 30 days? Is that your submission?

2 MS. BAEN: The Rules tell us we are entitled to 30 days, Your,

3 Honour, so we are asking for all the protections of the Rules of this

4 Tribunal.

5 MR. PANTELIC: And also, Your Honour.

6 JUDGE MUMBA: Yes, Mr. Pantelic.

7 MR. PANTELIC: This is a part of Defence submission, if I may. I

8 will be very, very brief. In addition to what my learned colleague said,

9 and on behalf of all Defence, I would also like to point out the paragraph

10 92 of the Kupreskic appeals decision which says --

11 JUDGE MUMBA: Paragraph?

12 MR. PANTELIC: 92.

13 JUDGE MUMBA: And please read it slowly.

14 MR. PANTELIC: Absolutely. The relevant paragraph to our

15 particular case is as follows: In this connection, the Appeals Chamber

16 emphasises that the Prosecution is expected to know its case before it

17 goes to trial. It is not acceptable for the Prosecution to omit the

18 material aspect of its main allegations in the indictment with the aim of

19 moulding the case against the accused in the course of the trial,

20 depending on how the evidence unfolds. There are, of course, instances in

21 criminal trials where the evidence turns out differently than expected.

22 Such a situation may require that the indictment to be amended and an

23 adjournment to be granted or certain evidence to be excluded as not being

24 within the scope of the indictment.

25 JUDGE MUMBA: That's the end of the quotation?

Page 5171

1 MR. PANTELIC: Yes, this is end of the quotation of this paragraph

2 92. So, Your Honours, the criminal proceedings are based on the -- first

3 of all, equality of arms, and also on the role of each party. To

4 illustrate this particular situation, the -- I would say -- informal

5 position of the Defence with regard to the indictment from 1995, including

6 all amendments after the 1995, up to to date, were that it's absolutely

7 vague, this indictment is vague, without any particulars, without any

8 bills. The Defence was of the opinion, due to the fact that this is --

9 JUDGE MUMBA: No, no, Mr. Pantelic, your submission should be

10 limited to this proposed amendment. That's all.

11 MR. PANTELIC: That's what I'm going to emphasise. What I would

12 like to say, it is not permissible that the Prosecution can in the --

13 during the ongoing trial proceedings, to see whether this case,

14 Prosecution case, is going towards the left or centre or the right

15 direction and to react in this particular case.

16 Our position is that we, of course, are not entitled to discuss

17 whether there is a right of the Prosecution to amend or not. Obviously,

18 it arises from the capacity of the Prosecution by itself but what we would

19 like to outline is that we have a right, maybe it's -- maybe it can be

20 oral motion or written motion, no matters. We have a right under the

21 Article -- under Rule 50(C) to have 30 days to respond to new charges

22 actually because --

23 JUDGE MUMBA: So, Mr. Pantelic, you're now submitting that this is

24 a new charge?


Page 5172

1 JUDGE MUMBA: Unlike what Ms. Baen's position is?

2 MR. PANTELIC: Yes, actually.

3 JUDGE MUMBA: She started off with calling it, when I discussed it

4 with her, these are material particulars. It's a subparagraph of the

5 charges existing.

6 MR. PANTELIC: I saw in the transcript that my learned colleague

7 said it's a twofold issue, both new facts as well as the charges. Our

8 understanding is based on the submission of Her Honour Judge Williams

9 yesterday when she outlined in discussion with the Prosecution that these

10 charges are -- I mean, this particular charge can be found in the other

11 Articles of the Statute. By its nature, it's a new charge and

12 furthermore, we are not agree with the position of the Prosecution that we

13 will be -- we were of the -- aware about the fact -- about the factual

14 basis. No. It is not the case.

15 Defence will not do the Prosecution's job. We shall wait and we

16 shall build our case, and if Prosecution is not in the situation to make a

17 foundation for its case, then we shall profit as a Defence from this

18 particular situation. That's a rule of the game.

19 JUDGE MUMBA: Yes, yes. Now, let me cut you short. There is a

20 proposal to amend.


22 JUDGE MUMBA: So is your response the same as Ms. Baen or are you,

23 on behalf of Mr. Blagoje Simic, submitting otherwise?

24 MR. PANTELIC: I basically -- we all agree that it's our common

25 position.

Page 5173


2 MR. PANTELIC: And I think that I am speaking on behalf of all

3 Defence.

4 JUDGE MUMBA: I thought Ms. Baen did that.

5 MR. PANTELIC: Yes, but in addition to her submission.

6 JUDGE MUMBA: Yes, yes.

7 MR. PANTELIC: I was of the opinion to add these few words.

8 JUDGE MUMBA: Yes. That is accepted. What the Trial Chamber will

9 not allow is a repetition of similar submissions.

10 MR. PANTELIC: Okay. That would be the end of my submission,

11 thank you.

12 MS. BAEN: Your Honour, this isn't repetition. It's just I

13 believe it's in the transcript, respectfully. I just want to make sure

14 it's clear. What I'm stating is that these are, at the very least,

15 material facts but also could constitute new charges or constitute new

16 charges. So I want to make sure that's clear for the record, so if we

17 ever get to -- if we get to appeal, the appeals court does not say that I

18 commit waiver, which is addressed in the Kupreskic decision also.

19 JUDGE MUMBA: No, no, no, no. Your stand is that they are

20 material facts which amount to new charges and the Defence is entitled to

21 30 days.

22 MS. BAEN: Yes, Your Honour, thank you.

23 JUDGE MUMBA: Notice in order to respond, isn't it? Or what is

24 the 30 days for, if the Trial Chamber can be clear?

25 MS. BAEN: To respond to the charges and to file preliminary

Page 5174

1 motions if they are needed pursuant to the Rules, and also to prepare our

2 Defence, if necessary, to investigate and make any preparations with

3 respect to the new charges.

4 JUDGE MUMBA: So all that work has to be done within that 30

5 days?

6 MS. BAEN: My co-counsels would like to have a short conference,

7 Your Honours, on that issue.


9 [Defence counsel confer]

10 JUDGE MUMBA: Yes, Ms. Baen? Have you consulted or do you still

11 need more time?

12 MS. BAEN: I'm sorry, Your Honour, there are a lot of cooks in the

13 kitchen right now and it will just be a few minutes.

14 JUDGE MUMBA: All right.

15 [Defence counsel confer]

16 JUDGE MUMBA: Let me say this: There is nothing to stop each

17 counsel to address the Trial Chamber.

18 MR. ZECEVIC: Your Honours, we were very cautious about the time

19 of this Trial Chamber. That is why we decided that we would do it on

20 behalf of all the Defence but then again we have to confer, of course.

21 JUDGE MUMBA: Yes, yes. I just wanted to make it clear.

22 MR. ZECEVIC: Just one more minute.

23 JUDGE MUMBA: All right.

24 [Defence counsel confer]

25 JUDGE MUMBA: Yes, Ms. Baen.

Page 5175

1 MS. BAEN: After consultation with my co-counsels, I believe the

2 joint position of all the accused -- of counsel for the accused is that

3 pursuant to the rules, we need 30 days --

4 JUDGE MUMBA: Rule? Which Rule?

5 MS. BAEN: Rule 50(C).


7 MS. BAEN: That we request pursuant to Rule 50(C) 30 days in

8 which to file preliminary motions, and the question I believe from Your

9 Honour was, is that enough time to do everything else, investigation, et

10 cetera? And it's the position of the -- all the lawyers here that that

11 may not be enough.

12 JUDGE MUMBA: No, no, no, no, no. I didn't ask whether that is

13 enough time. I said that is the time required for you to do all the

14 things you mentioned that you need to do. That is why the Rules give a 30

15 day period.

16 MS. BAEN: We will know when we find out. We haven't answered the

17 charges yet but we need at least 30 days pursuant to the Rules to answer

18 to the new charges and file any motions where necessary, if necessary.

19 JUDGE MUMBA: Like I said before, this is an oral motion, right?

20 That is the position of the Trial Chamber, and you have responded to it.

21 [Trial Chamber confers]

22 JUDGE MUMBA: The Trial Chamber will adjourn to make their ruling

23 on this one. But the Trial Chamber is of the view that the other matter

24 raised, whether it's 1992 or 1993 specifically in respect of Mr. Simo

25 Zaric, we feel it's important, because Witness M is giving evidence on

Page 5176

1 allegations touching on Mr. Simo Zaric. So it is important that the

2 Defence and Mr. Simo Zaric himself understands why this paragraph is 1992,

3 the other one is up to 1993, so that they can prepare their

4 cross-examination properly.

5 MR. DI FAZIO: Yes.

6 JUDGE MUMBA: So the Trial Chamber will adjourn and we will give

7 the parties notice when we are able to give our decision. I would like to

8 ask Mr. Di Fazio, you did mention that you'd need perhaps up to tomorrow

9 to be able to address this 1992, 1993 problem.

10 MR. DI FAZIO: I think I can do that this morning, if need be. I

11 just need an opportunity to confer with my colleagues. Could I do that

12 over the break while you consider the matter, the other matter?

13 JUDGE MUMBA: For the sake of neatness, we'll deal with your 1992,

14 1993 first.

15 MR. DI FAZIO: First.

16 JUDGE MUMBA: And then deal with the amendment later. So you

17 think by 11.00, you would be clear?

18 MR. DI FAZIO: May I just confer with my colleague? It may be

19 that I can deal with it now.


21 [Prosecution counsel confer]

22 JUDGE MUMBA: The Trial Chamber can give you an hour. We can

23 break off now, come back at 11.30.

24 MR. DI FAZIO: That would probably -- that's -- if you want to

25 give me that amount of time just for me to consider this, I don't need

Page 5177

1 quite that much time. I would need a shorter period of time. However, if

2 you wish to do that in order for the Chamber to consider the other

3 question as well, then of course, I can be -- I will use the time well and

4 have the answer for you on resumption at 11.30. I'm in the Chamber's

5 hands.

6 JUDGE MUMBA: All right.

7 MR. DI FAZIO: If you want to resume earlier, then of course, that

8 will be certainly convenient for the Prosecution.

9 JUDGE MUMBA: All right. We will rise to give you sufficient

10 time, because in view of what you may say, maybe the Defence may also want

11 to make submissions.

12 MR. DI FAZIO: Yes.

13 JUDGE MUMBA: So we shall resume at 11.30.

14 MR. DI FAZIO: Yes. 11.30 is ideal. Is there anything -- might I

15 just respond briefly to what the Defence said on the issues?

16 JUDGE MUMBA: On the proposed amendment?

17 MR. DI FAZIO: Yes.

18 JUDGE MUMBA: All right.

19 MR. DI FAZIO: On the proposed amendment. Mr. Pantelic referred

20 to -- quoted from Kupreskic which complained of the Prosecution moulding

21 its charges to fit the evidence as it comes out. That is a completely

22 unrelated situation here. The evidence is coming out precisely as

23 expected and precisely as the Prosecution said it would in its pre-trial

24 brief. So it's -- we are not -- it's not a question of new evidence

25 coming out or unexpected evidence coming out and the Prosecution suddenly

Page 5178

1 changing the charges to meet this new situation.

2 Furthermore, if you stand back and just look at the structure of

3 the general allegations in 17, you will see that the proposed amendment is

4 minor in the extreme. It refers to all sorts of classes of persecution:

5 the forcible takeover, unlawful arrest and confinement of a certain group,

6 cruel and inhumane treatment of a certain group, deportation, expulsion,

7 transfer of a certain group, and then finally, the destruction, plunder

8 and looting of property of a certain group.

9 Now, the effect of this amendment, if you allow it, is to bring --

10 is to simply expand slightly the allegation in 17(e). It is simply saying

11 this is one other form of property that was subjected to precisely the

12 same sort of treatment that is alleged in 17(e).

13 JUDGE WILLIAMS: Excuse me, Mr. di Fazio, you're talking about

14 17. You mean 14, I presume.

15 MR. DI FAZIO: I'm sorry, 14(e). I do apologise. I was looking

16 for the sake of convenience at 17(e) because it's repeated throughout, but

17 I'm talking about 14(e).


19 MR. DI FAZIO: One is at a loss to understand how this can be

20 regarded as something that is --

21 JUDGE MUMBA: So is your submission that it does not amount to a

22 new charge?

23 MR. DI FAZIO: Yes, yes. It does not amount to a new charge. The

24 amendment is so minor, and is an allegation of the same class and nature

25 as you will find in that paragraph, that it cannot possibly be described

Page 5179

1 as a new charge. And if you look at the Rule 50, with respect to my

2 learned friends, I don't think that 50(C) is applicable to this situation,

3 as I see it. Rule 50, amendment to the indictment, refers to amendments

4 in all sorts of situations, before its confirmation and without leave,

5 between the confirmation and the assignment of the case to a Trial Chamber

6 and after the assignment of a case to a Trial Chamber.

7 Rule 50(B) refers to the amended -- if the amended indictment

8 includes new charges, and then prescribes that an appearance shall be held

9 with -- as soon as possible. So it's dealing with situations -- Rule 50

10 is dealing with situations where there are new charges and Rule 50(C) --

11 Rule 50(C) says that.

12 JUDGE MUMBA: Follows upon 50(B).

13 MR. DI FAZIO: Follows upon 50(B) and 50(A) and refers to new

14 charges, and that's referring to -- it must be referring to a pre-trial

15 situation. It refers to the date for trial may be postponed to ensure

16 adequate time for the preparation of the Defence, and given that the rest

17 of the rule does talk about pre-trial stages, it seems to me that 50(C) is

18 really dealing with amendments, or rather with new charges pre-trial. It

19 couldn't be the case that trials would be stopped for 30 days whenever

20 there is an amendment to an indictment or a new charge is included. Even

21 if it were to apply, even if I'm wrong in what I've submitted, then, in

22 practical terms, there is no need for an adjournment or a recess of 30

23 days. I don't know if my learned friends were actually asking for that or

24 making a formal application for that to follow if the application is

25 granted or not.

Page 5180

1 JUDGE MUMBA: They were making that submission.

2 MR. DI FAZIO: Well, it's not necessary because we have got the

3 holiday period in which they can prepare themselves for any new

4 preliminary motions they want it make. But in any event, it seems to me

5 that 50(C) is dealing with an altogether different situation than we have

6 here.

7 MS. BAEN: May I respond just briefly, Your Honours?

8 JUDGE MUMBA: Not to repeat anything that has been said before,

9 because the Trial Chamber is not prepared to listen to repetitions.

10 Anything new? Because you've made your submission. The Prosecution was

11 simply replying.

12 MS. BAEN: He's saying that we are saying that this is new charges

13 only, is what Mr. Di Fazio is saying. Kupreskic deals with material

14 facts.

15 JUDGE MUMBA: Yes. You have already said that. It's already on

16 record. You've already made that submission. And Mr. Pantelic did read

17 the quotation.

18 MS. BAEN: All right, Your Honour. Thank you.

19 JUDGE MUMBA: Yes, Mr. Lukic?

20 MR. LUKIC: [Interpretation] If you allow me, I would like to say a

21 few words. I hope I will not be repetitive, although I do subscribe to

22 whatever my colleagues have said so far.

23 JUDGE MUMBA: This is on the motion an amend?

24 MR. LUKIC: [Interpretation] Yes, yes, exclusively regarding the

25 arguments of the Prosecutor to the effect that there are no material new

Page 5181

1 facts concerned.

2 JUDGE MUMBA: No, no, no, no. The Prosecution is saying the

3 amendment does not amount to a new charge.

4 MR. LUKIC: [Interpretation] I, on the contrary, believe it is a

5 completely new charge, and that's what I want to talk about. I am

6 particularly concerned about one thing. In explaining and arguing that

7 the Defence should not be surprised by this, the Prosecutor refers to his

8 pre-trial brief. However, my concern is the fact that the indictment does

9 not mention any of these allegations regarding the new charge. None of

10 these allegations concern perpetration. Precisely the paragraphs 38 and

11 39 describe acts which constitute the element of persecution.

12 On the other hand, the Prosecutor refers to his pre-trial brief,

13 where he does provide a description of acts of destruction of places of

14 worship, which shows that the Prosecutor had, and had in his evidence,

15 elements for such a charge, which he failed, however, to encompass in his

16 indictment. I will refer to Rule 27 (sic), which says, in paragraph 4(a),

17 that the accused must be informed in a timely manner of the nature of the

18 charges against him. And the word "charge" is used, rather than

19 "incrimination," "allegations," et cetera. Somebody cannot be charged

20 based on a pre-trial brief. There is nothing about these charges in the

21 indictment, not in the section concerning general background or in the

22 section which deals with facts.

23 That is what I had to say. It just said -- I referred, and I

24 refer to Rule -- Article 21 of the Statute, not Rule 27. That's the only

25 correction.

Page 5182

1 MR. PANTELIC: Your Honours --

2 JUDGE MUMBA: We are still listening to the interpretation.

3 MR. PANTELIC: Excuse me, excuse me.

4 THE INTERPRETER: So a correction to the transcript. Counsel

5 referred to Article 21 of the Statute.

6 MR. PANTELIC: Thank you to our learned friends from the

7 Prosecution for this nice Christmas present so we have something to do in

8 the period of 30 days. On the other hand, our interpretation of the Rule

9 50 is that the 30 days' time for the preliminary motions should run as of

10 the decision of this Trial Chamber with regard to the issue of the

11 amendment of the indictment, and then, depending of the case, of the

12 preparation of details, et cetera. So we cannot be framed in terms of 30

13 days saying, "Well, you have 30 days. Do what you want to do."

14 JUDGE MUMBA: No, no, no. You simply submit what your

15 understanding is. That's all.

16 MR. PANTELIC: Yes. My understanding is that we have 30 days to

17 file preliminary motions with regard to the new charges and the form of

18 indictment, and then we shall see what the outcome of our preliminary

19 motion would be. So that's the first stage. Thank you.

20 JUDGE MUMBA: The Court will rise, and we will resume the

21 proceedings at 11.30.

22 --- Break taken at 10.35 a.m.

23 --- On resuming at 11.34 a.m.

24 JUDGE MUMBA: Yes. The Prosecution is required to address us on

25 the matters we discussed.

Page 5183

1 MR. DI FAZIO: Yes. As far as the date is concerned, there is no

2 application made by the Prosecution.

3 JUDGE MUMBA: No, no. What are you saying? 1992, 1993, the

4 paragraphs pointed out?

5 MR. DI FAZIO: Yes, I've got no application to make in respects

6 of those dates. I ask that they be left as they stand.

7 JUDGE WILLIAMS: So I presume, Mr. di Fazio, it will also be the

8 same with respect to Counts 2 and 3, deportation and transfer, paragraph

9 22. Whereas in paragraph 20, concerning Dr. Blagoje Simic, the dates are

10 April 17th, 1992 to December 31, 1993. Paragraph 21, the same dates for

11 Mr. Miroslav Tadic, and then paragraph 22 with respect to Mr. Simo Zaric,

12 the indictment is restricted to 31st of December, 1992.

13 MR. DI FAZIO: Yes, I have no application to make in respect of

14 those dates.

15 JUDGE WILLIAMS: Thank you.

16 MR. DI FAZIO: Did Your Honours hear me? I didn't have my

17 microphone on. Just to repeat, I have no application to make with

18 respect to dates. Thank you.

19 JUDGE MUMBA: The other matter we thought you may look at which we

20 feel concerned about in the indictment again, is the limitation of the

21 sphere of responsibility for the accused persons. If you look at

22 paragraph 5 of the indictment, where the title is "Individual criminal

23 responsibility: Each of the above accused is individually responsible,"

24 blah, blah, blah, blah. "Individual criminal liabilities includes

25 planning, instigating, ordering, committing or otherwise aiding or

Page 5184

1 abetting." All right?

2 MR. DI FAZIO: Yes.

3 JUDGE MUMBA: When you go to paragraph 15, on page 5 of the

4 indictment, for Mr. Blagoje Simic, the sphere of responsibility is limited

5 to "committed and aided and abetted." The same thing with -- the same

6 with paragraph 16, with Mr. Milan Simic. Again, it's limited to

7 "committed and aided and abetted." The same thing with paragraph 17 and

8 18. And then paragraph 19 widens again the sphere of responsibility. We

9 go back to "planned, instigated, ordered, committed or otherwise aided or

10 abetted the planning, execution of." Is that all right with the

11 Prosecution?

12 MR. DI FAZIO: I can see no reason it should be restricted in

13 the paragraphs you pointed out, considering that it's amplified in those

14 other paragraphs. May I have a moment to confer with my colleagues about

15 this?

16 [Prosecution counsel confer]

17 JUDGE WILLIAMS: Mr. di Fazio, before you begin, if I could just

18 add one thing to what Judge Mumba has said, I'd also like to draw your

19 attention to paragraph 13, which is the chapeau to Count 1, persecutions,

20 which similarly to the previous paragraph mentioned, elaborates planning,

21 instigating, ordering, committed or otherwise aided and abetted the

22 planning, preparation, et cetera. And I think it would be most useful to

23 the Chamber if we were to know what your position is on the relationship

24 between the chapeau, paragraph 13, and the specifics with respect to each

25 of the individual accused persons in paragraphs 15, 16, 17, 18, and also

Page 5185

1 the relationship with paragraph 19 or the concluding paragraph. And I

2 would also like to make a specific reference to the fact that paragraphs

3 13 and 19, in terms of committing and aiding and abetting, do use the

4 disjunctive "or", committed or aided and abetted. Whereas the specifics

5 with respect to the four accused persons, in paragraphs 15 through 18, use

6 the conjunctive, committed "and" aided and abetted. So if we could have

7 your submissions on those issues, please.

8 MR. DI FAZIO: Yes. Well, in the Prosecution's submission, the --

9 it does not wish to restrict itself in any way, and would seek to expand

10 paragraphs 15 to include the words "planned, instigated, ordered," and

11 then continuing, "committed, aided and abetted."

12 JUDGE WILLIAMS: Excuse me, so you want to keep the conjunctive,

13 "and" aided and abetted; is that correct? Rather than what we have in

14 paragraphs 13 and 19, which is disjunctive?

15 MR. DI FAZIO: Yes. May I just confer again with my colleagues on

16 that specific issue? Thank you.

17 [Prosecution counsel confer]

18 MR. DI FAZIO: If Your Honours please, paragraph 13, which refers

19 to them acting in concert together and then going on to plan, instigate,

20 order, commit and otherwise aid and abet, most accurately reflects the

21 Prosecution's position and that is the standard by which we would like to

22 set all the other paragraphs which may, to a certain extent, be

23 inconsistent. But that is the yardstick by which we wish to -- the

24 Prosecution case to be understood, and bearing that in mind, I think the

25 paragraphs that you have mentioned, or rather I submit that the paragraphs

Page 5186

1 that you have mentioned, should be expanded to include the wording in that

2 -- in paragraph 13, "planning, instigating, ordering," in addition to the

3 words "committed and aided and abetted." As far as the -- your reference

4 to the disjunctive is concerned, again, I think the Prosecution position

5 should be that it would prefer to use the disjunctive. Otherwise, it

6 would be confining its case and having to prove all of those particular

7 matters that you have referred to. So that's the position of the

8 Prosecution.

9 [Trial Chamber confers]

10 JUDGE MUMBA: Did we understand you correctly that you wish to add

11 the other words that are omitted, that are in paragraph 13, to paragraphs

12 15 --

13 MR. DI FAZIO: Yes, to bring them into line and make them

14 consistent.

15 JUDGE MUMBA: Yes. So that is another amendment?

16 MR. DI FAZIO: Yes.

17 JUDGE MUMBA: To the indictment.

18 MR. DI FAZIO: Yes. There can be no prejudice, of course, because

19 it's been there in that form all along, as you see, in paragraph 13, and

20 expanding that -- the responsibility in paragraph 15 to conform with

21 what's in paragraph 13 can provide no prejudice to the accused, in the

22 Prosecution's submission.

23 JUDGE MUMBA: So can we have the motion for leave to amend in this

24 particular respect again clearly spelled out so that the Defence

25 understand what it is that the proposal is by the Prosecution?

Page 5187

1 MR. DI FAZIO: There is only one phrase -- I'm about to do that.

2 There is only one particular phrase that I need to speak to my colleagues

3 about. May I please do that?

4 JUDGE MUMBA: All right.

5 [Prosecution counsel confer]

6 JUDGE MUMBA: Yes, Mr. di Fazio.

7 MR. DI FAZIO: Yes, thank you. So the -- the motion would have to

8 include amending paragraph 15, and the subsequent paragraphs that Your

9 Honours have mentioned in this way, from -- and looking at paragraph 15:

10 From on or about 17th of April, 1992, through at least 31st of December,

11 1993, Blagoje Simic, both prior to and while serving as president of the

12 Bosanski Samac Serb Crisis Staff, and as president of the War Presidency,

13 acting in concert with others, acting in concert with others, planned,

14 instigated, ordered -- planned, instigated, ordered, committed and aided

15 and abetted, and so on.

16 JUDGE WILLIAMS: Mr. di Fazio, maybe it was unintentional but you

17 have used "and" rather than "or" again, unless you've changed your mind on

18 that.

19 MR. DI FAZIO: I'm sorry, no, I have not and I'm grateful to you

20 for having pointed this out to me. "Committed, aided or abetted the

21 commission."

22 JUDGE MUMBA: Yes, all right.

23 MR. DI FAZIO: And, sorry, my colleagues point out one further

24 change. I would like to include the words "acting together and in concert

25 with others." "Acting together and in concert with others," and then the

Page 5188

1 former words that I mentioned.

2 JUDGE MUMBA: The Trial Chamber is of the view that having heard

3 the Prosecution on this one again, proposing an amendment, we would like

4 to consolidate the amendments of the indictment. It will be much neater

5 that way. And we would like to ask the Prosecution to put in -- to put in

6 a written motion. It's better when it's all in black and white.

7 Everybody will have the same record. There will be no question of

8 misinterpretation and also, we view these amendments as quite far-reaching

9 in the way that the details have changed. And we believe that it is only

10 fair to the accused that the proposed amendments be served to them in

11 Serbo-Croat.

12 MR. DI FAZIO: Yes.

13 JUDGE MUMBA: A language they understand, because the indictment

14 was served to them. Now, if it's changing in these details, the Trial

15 Chamber is of the view that it should be served to them in Serbo-Croat and

16 then --

17 MR. DI FAZIO: That can be done. Just to be absolutely clear

18 about --

19 JUDGE MUMBA: Then they can give instructions to their Defence

20 counsel.

21 MR. DI FAZIO: Certainly. Just to be absolutely clear about this,

22 do you wish me to ensure that the entire motion is translated or simply

23 the new proposed form of words? If it's the new -- sorry, the new motion

24 or the new proposed form of words? In other words, do you wish me to have

25 the proposed amendments to the indictment simply changed or do you want

Page 5189

1 the entire motion that deals with this issue translated for them?

2 [Trial Chamber confers]

3 JUDGE MUMBA: The Trial Chamber is of the view that since these

4 are not new charges, strictly speaking, they are details in the wording of

5 the paragraphs of the indictment, just the inclusion, the words that are

6 going to be included, exactly where, on which paragraph.

7 MR. DI FAZIO: Yes. Thank you. I understand. That will be done.

8 JUDGE MUMBA: And I said we consolidate the previous discussion we

9 had, the other, waiting for the details for the paragraphs you were

10 supposed to add because we haven't yet taken a decision. So I think that

11 it will be neater if the amendments are in one motion, done at the same

12 time, and then the Trial Chamber will be able to consider everything at

13 the same time and give one decision.

14 MR. DI FAZIO: Yes. I understand. And it will be done in that

15 form.

16 JUDGE MUMBA: And the instructions I want to give to the Defence

17 is that once the paperwork is done and the filing is done and served on

18 the Defence, the Trial Chamber will be able to ask the Defence to

19 respond. The reason is that they have to get instructions, of course,

20 from their clients and they may need time to do that.

21 MR. DI FAZIO: Yes.

22 JUDGE MUMBA: Yes, Mr. Pantelic?

23 MR. PANTELIC: If Your Honour please, maybe I can given a

24 suggestion in order to facilitate this particular issue.

25 JUDGE MUMBA: Yes, perhaps.

Page 5190

1 MR. PANTELIC: We would prefer to have, of course, if it's

2 possible, and I think it should be possible, to have actually the -- this

3 form of the indictment with bold words which are the practically bases for

4 the amendment so that we can easily go through the text and speak with our

5 clients and also to have this kind of -- otherwise, if we would have

6 isolated, I would say, amendments to certain paragraphs, it might be a

7 little bit confusing for us to follow and to inform our clients, because

8 we have to add on our copies, et cetera, et cetera.

9 JUDGE MUMBA: In which case we will have a fourth amended

10 indictment.

11 MR. PANTELIC: Fourth amended indictment, yes.

12 JUDGE MUMBA: But strictly speaking, there are no new charges, as

13 the Prosecution has said. It's only the details in the paragraphs.

14 MR. PANTELIC: I would say, Your Honour, that it's --

15 JUDGE MUMBA: There is no harm.

16 MR. PANTELIC: It's a legal question.

17 JUDGE MUMBA: Because of the way that you have explained it, it

18 will be much easier for you and your clients if you have the document

19 which is the indictment put in -- the proposed amendments in bold. It

20 will be much easier for you to distinguish what was there before and what

21 is now being proposed by the Prosecution.

22 MR. PANTELIC: Yes. Of course, I have to reiterate again, Your

23 Honours, that we consider this approach of the Prosecution as the new

24 charges, in fact. So that's our position. Whether -- I mean, the final

25 word will be yours, of course. Thank you.

Page 5191

1 [Trial Chamber confers]

2 JUDGE MUMBA: I think the discussion or our decision is that the

3 proposal of the Prosecution to just filing their proposals, the words they

4 want included in particular paragraphs, in Serbo-Croat as well, and then

5 after that is considered, depending on the response from the Defence, then

6 the decision -- after the decision has been made, if the amendments will

7 be allowed, then the Prosecution will be allowed to file the indictment as

8 amended.

9 MR. DI FAZIO: Yes.

10 JUDGE MUMBA: Okay. And that will be the end of the matter but

11 for the -- in the meantime, because we would like to make sure that the

12 accused understand what the amendments are, how far-reaching they are.

13 That is why we feel they should be served in their own language.

14 MR. DI FAZIO: I understand.

15 JUDGE MUMBA: Not as a fourth amended indictment, just as the

16 proposed new wording to each paragraph, identifying exactly where the new

17 words should be fitted and which paragraphs, all right? For all the

18 amendments, including the one we discussed before the break. So this will

19 be a consolidated amendment.

20 MR. DI FAZIO: I will have the one motion which will indicate each

21 and every proposed amendment to the indictment.


23 MR. DI FAZIO: That will have the relevant paragraphs that contain

24 each and every proposed amendment.


Page 5192

1 MR. DI FAZIO: Translated into B/C/S so they can see at a glance

2 the new phraseology that is being proposed by the Prosecution.


4 MR. DI FAZIO: Okay. I understand that, and that task will be

5 undertaken.

6 JUDGE MUMBA: And that is actually, it's an application for leave

7 to amend because the trial has already started.

8 MR. DI FAZIO: Yes.

9 JUDGE MUMBA: Yes. How soon would the Prosecution do that?

10 MR. DI FAZIO: We can get it done today. The only hiccup I can

11 think of is the translation but I'm sure that we can --

12 JUDGE MUMBA: Yes, if you could deal with that as soon as possible

13 because it is not possible to continue with the witness before these

14 amendments are put in. Like I've explained before, the Defence have to

15 know before they cross-examine, and also you have to know whether you can

16 elicit the evidence you wish to elicit from the evidence.

17 MR. DI FAZIO: Of course, Your Honours, if you were to take the

18 view that the evidence is relevant anyway, even as the amendment stands

19 and even before you've ruled on the proposed amendments - even before

20 you've ruled on the proposed amendments - would that not permit me now to

21 continue, if you were to take that view? You'll recall this morning my

22 submissions were that it's relevant as it stands and admissible as it

23 stands.


25 MR. DI FAZIO: If you don't want to do that I understand, and I

Page 5193

1 won't --

2 JUDGE MUMBA: Yes. Because in the event that we reject the

3 amendment, that would be a waste of time. It is better for the Trial

4 Chamber to make a ruling, everybody knows what the stand is, whether or

5 not we can receive that evidence on record.

6 MR. DI FAZIO: Yes. Well, I appreciate that. I understand that

7 that's -- if that's what the Trial Chamber wishes, naturally, the

8 Prosecution will adopt that course.


10 MR. DI FAZIO: The only point that I sought to make was that you

11 understand our position is that, regardless of these amendments, the

12 evidence is admissible and relevant because of the discriminatory intent

13 and because of widespread and systematic attack on the population.

14 However, notwithstanding that, I understand your position, that

15 you prefer to deal with this evidence only after your final ruling.

16 JUDGE MUMBA: Yes. I think it's better that way. We would ask

17 the Prosecution to work as quickly as possible so that we deal with this

18 matter before the end of the sittings this year.

19 MR. DI FAZIO: I'm hopeful of getting it done today.

20 JUDGE MUMBA: All right.

21 [Trial Chamber confers]

22 JUDGE MUMBA: I'm just reminded by the Registry that they wanted

23 to know roughly how many pages that will consist of, for purposes of

24 arranging for the translation.

25 MR. DI FAZIO: Well, we'll have to -- there will be the -- depends

Page 5194

1 on the way we structure the motion, I suppose. If we adopt Mr. Pantelic's

2 submission that we attach as an annex the entire amendment with the --

3 sorry, the entire indictment with the amendments in bold, then --

4 JUDGE MUMBA: No, no, no. The Chamber had decided that you

5 simply -- in your leave, in your motion for leave to amend, you simply

6 spell out what new words are going to be inserted where.

7 MR. DI FAZIO: Yes.


9 MR. DI FAZIO: Well, it would -- roughly speaking, I suppose it

10 would be eight paragraphs or thereabouts.

11 JUDGE MUMBA: It will be about three pages?

12 MR. DI FAZIO: A few pages, no more than that.

13 JUDGE MUMBA: Maybe three, maybe four?

14 MR. DI FAZIO: Yes. And as my colleague points out to me, and as

15 I envisage myself, we would get our own official translation --

16 JUDGE MUMBA: Official translation from the Prosecutor's Office.

17 MR. DI FAZIO: -- from the Prosecutor's Office to do that, you

18 see.

19 JUDGE MUMBA: All right.

20 MR. DI FAZIO: And that's why I would think it would be -- could

21 be done fairly swiftly.

22 JUDGE MUMBA: I can see the registry assistant disagreeing,

23 because there is a procedure, as far as translation is concerned, which

24 the Trial Chambers use, so it is that office which will translate.

25 MR. DI FAZIO: Yes. But we can provide -- we can assist them by

Page 5195

1 providing a translation in any event for them to review and assist them in

2 that process.

3 THE REGISTRAR: That then would be an unofficial translation of

4 the filed document.

5 MS. REIDY: Could I just explain?

6 JUDGE MUMBA: Yes, Ms. Reidy.

7 MS. REIDY: Normally, my understanding is that we have a handful

8 of interpreters who are certified interpreters who work within the OTP

9 office. When we put in a translation request, what we can do to expedite

10 the matter, when it's a matter of urgency, is to provide what is still a

11 draft translation from a certified translator and then it is submitted for

12 revision purposes to the Registry, which means they don't have to start

13 with from a --

14 JUDGE MUMBA: From scratch.

15 MS. REIDY: My understanding is that is the quickest way to

16 expedite things. We get it done by a certified translator, not anyone but

17 someone certified, and then they get submitted to the Registry for

18 revision, and at that stage, when it passes the revision process, it is

19 acceptable to the Court standard. And it's been my -- I've been led to

20 believe that that is the quickest way for all parties to get a translation

21 through. If I'm wrong, then we will do whichever way is suggested but

22 that was --

23 JUDGE MUMBA: What is important is that it's officially translated

24 so that the accused are given the correct version in B/C/S.

25 We will adjourn the proceedings until tomorrow morning at 0930

Page 5196

1 hours.

2 --- Whereupon the hearing adjourned at

3 12.06 p.m., to be reconvened on Thursday, the 6th

4 day of December, 2001, at 9.30 a.m.