Tribunal Criminal Tribunal for the Former Yugoslavia

Page 5197

1 Thursday, 06 December 2001

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.33 a.m.

5 JUDGE MUMBA: Please call the case.

6 THE REGISTRAR: Yes, Your Honour. This is case number IT-95-9-T,

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

8 Zaric.

9 JUDGE MUMBA: Good morning. The Trial Chamber is following up on

10 what was discussed yesterday. We are informed that the translation into

11 Serbo-Croat has not yet been completed. Is that the case, Mr. di Fazio?

12 MR. DI FAZIO: I just don't know, if Your Honours please. The

13 motion was filed late yesterday afternoon -- the annex and part of the

14 motion was filed earlier in the afternoon and I understand that

15 translation was started earlier in the afternoon. The actual motion

16 itself wasn't filed until later in the afternoon, the actual motion as

17 opposed to the annex. So I don't know what the situation is in respect of

18 progress in that -- as far as that is concerned. I just can't tell the

19 Chamber what stage it's reached. It's being done in the normal course of

20 events, I understand through Registry.

21 JUDGE MUMBA: Yes, so we can only wait.

22 MR. DI FAZIO: I just don't know is the short answer.

23 JUDGE MUMBA: Yes, and like we said yesterday, it's important that

24 the accused get it in their -- in the language they understand and they

25 can give instructions to their lawyers.

Page 5198

1 In the meantime, I just want to inform the -- unless there is

2 something else, Mr. di Fazio?

3 MR. DI FAZIO: No, Your Honour.

4 JUDGE MUMBA: Anything from the Defence? I don't think there can

5 be anything before the papers are completed.

6 MR. ZECEVIC: Your Honours, we actually -- good morning, Your

7 Honours. I'm sorry. We actually received the document just two minutes

8 ago.

9 JUDGE MUMBA: Yes. The Trial Chamber is aware of that.

10 MR. ZECEVIC: Thank you, Your Honour.

11 JUDGE MUMBA: I just want to inform the parties that the Trial

12 Chamber was informed by the Victims and Witnesses unit about the condition

13 of Witness M after the proceedings when he gave evidence. During the

14 proceedings, he was asked to look at some documents and read them and that

15 affected his eyes. Apparently he has a problem of inflammation with his

16 eyes, so whenever he's asked to read anything that causes pressure and he

17 had to be taken to the doctor. So I'm asking the parties to see whether

18 that can be avoided next time he comes to give evidence, ask him to read.

19 It is better for counsel to read, if it's necessary, and then put the

20 questions to the witness. So we have that problem with Witness M.

21 And we also were advised by the Victims and Witnesses Unit on the

22 problem of witnesses who, after the Court has risen are spoken to by

23 anybody in the courtroom. In this case it was Defence counsels. In this

24 proceedings and another proceeding, in another Trial Chamber, and I did

25 say earlier on that when witnesses are sitting in their box, they are not

Page 5199

1 supposed to be spoken to by anybody, and that all of us all the parties,

2 including the accused are supposed to observe those conditions in the

3 courtroom so that the witnesses are not unduly under pressure except when

4 the trial proceedings start.

5 We will adjourn now and see how the progress will be on getting

6 the documents translated and served on the accused, and the Defence,

7 and --

8 MR. PANTELIC: Your Honour, can I --

9 JUDGE MUMBA: Excuse me, just wait. When we are informed that

10 those documents have been duly served, then we can sit and see what can be

11 done.

12 Yes, Mr. Pantelic?

13 MR. PANTELIC: Your Honour, although I didn't speak about this

14 topic with my client, but I will just raise the issue. I think that it

15 would be appropriate, of course with the decision -- after the decision of

16 this Trial Chamber, maybe our clients for this particular issue can waive

17 their rights to be here during these procedural matters, these proceedings

18 about procedural matters. They can be transferred in the -- we can follow

19 the progress about the translation of the amended indictment, then we can

20 go and make a conference with our clients. In the meantime we could see

21 what's going on. I don't think that it's appropriate, although the

22 conditions here within this Tribunal for them are more or less good for

23 the detention but still, I mean, they should be maybe with their papers,

24 documents, whatever, in order to be ready for our conference. That would

25 be my suggestion, of course, if it's possible.

Page 5200

1 JUDGE MUMBA: Yes, the Trial Chamber has looked into that

2 possibility but then the Trial Chamber can't tell when the documents will

3 be ready. And the transport system is also fairly rigid because there are

4 other accused being transported to and fro and the people responsible for

5 transport may not be readily available should we sit again this morning,

6 before 1.00, to have the accused back In case the proceedings will require

7 their presence. But if you're saying that they are waiving their right

8 whatever proceedings follow on today, that is fine. That's their choice.

9 MR. PANTELIC: Your Honours, can I just make a short conference

10 with my colleagues and also with the clients so we can know exactly what

11 the case will be? Because, frankly, I don't believe that we shall have

12 any kind of proceedings, including the appearance of the witnesses so

13 that --

14 JUDGE MUMBA: No, no, no, no. There will be no witness today

15 because the Trial Chamber will not have decided on the application. What

16 the Trial Chamber will be interested in after the translation, after the

17 service, that is the stand of the Defence.

18 MR. PANTELIC: Our position maybe it can facilitate.

19 JUDGE MUMBA: No, no, no. Let's not go ahead. Let's wait for the

20 translation and let the accused wait in the cells in the Tribunal. For

21 those lawyers who after the translation is there, can get instructions,

22 whichever position -- stand they want to take and they will be ready to

23 make their submissions all the better. Because we have this courtroom up

24 to 1.00 today.

25 MR. PANTELIC: Up to 1.00.

Page 5201

1 JUDGE MUMBA: Up to 1.00. We can only sit in the morning because

2 the courtroom is occupied in the afternoon.

3 MR. PANTELIC: Yes, yes. There is another trial.

4 JUDGE MUMBA: Yes, so we will adjourn for the time being and wait

5 for the progress and then we will be able to reassemble before 1.00. The

6 Court will rise.

7 --- Break taken at 9.41 a.m.

8 --- On resuming at 12.34 p.m.

9 JUDGE MUMBA: Yes. The Trial Chamber has been informed that the

10 translated parts of the actual amendments have been served, so the Trial

11 Chamber would like to find out from the Defence whether they are ready to

12 make submissions now or they need time or what is their position.

13 MS. BAEN: Your Honour, in light of the fact that we received the

14 translations just after 12.00 and have not yet had a time to consult with

15 our clients regarding the receipt or the proposed amendments, we need more

16 time, Your Honour.

17 JUDGE MUMBA: How much time?

18 MS. BAEN: I really can't say. I'm told that by looking at the

19 B/C/S version, my understanding is my co-counsels even in have a problem

20 with some of the translations. They say it is incorrect. So I don't know

21 how to gauge how much time because I don't read the language and I don't

22 know how significant the problems are. So I don't know if one of my

23 co-counsel wants to address that or not --

24 JUDGE MUMBA: Would it be all right if the Trial Chamber suggested

25 to the Defence that they should put in a written response by Tuesday at

Page 5202

1 12.00?

2 MS. BAEN: We were going to ask leave to file something in writing

3 because we thought it would be helpful to the Court so that sounds like a

4 good idea. We accept that proposition.

5 JUDGE MUMBA: Yes. To reply to this application for leave and to

6 all the matters that have been raised by -- if you can file the written

7 response by Tuesday, 12.00, and when I say Tuesday, I mean Tuesday, the

8 11th of December.

9 MS. BAEN: That sounds good, Your Honour.

10 JUDGE MUMBA: All right.

11 MR. PANTELIC: And also, if I may, Your Honour, since we are in

12 the -- this kind of, I would say preparatory phase, it came to my

13 attention that I'm reading the Prosecution motion for leave to amend the

14 indictment, and in particular, I'm referring to annex A, the paragraph 14,

15 and then the line actually the chapter E. The Expression, "the wanton and

16 extensive destruction" is one term.

17 JUDGE MUMBA: Just hold on.

18 MR. PANTELIC: Yes, so this is the annex A.

19 JUDGE MUMBA: Paragraph?

20 MR. PANTELIC: 14. It's actually the second page of the Annex A

21 and I'm referring to the --

22 JUDGE MUMBA: Proposed amendment.

23 MR. PANTELIC: Chapter e.

24 JUDGE MUMBA: 14(e).

25 MR. PANTELIC: 14(e), "the wanton and extensive destruction," I

Page 5203

1 mean I just need a clarification from the Prosecution but let me give my

2 submission. So "the wanton and extensive destruction," term, is also in

3 the paragraph 15, the subparagraph f, "the wanton and extensive

4 destruction." And then we are going to paragraph 16, or rather 17.


6 MR. PANTELIC: 17(e), without "wanton". It's only "destruction".

7 And also in paragraph 18(f) also just "destruction". So there is

8 inconsistency between these terms, so maybe our friends can clarify that.

9 Since we are in this phase maybe we can also do something on that matter.

10 Thank you so much.

11 JUDGE MUMBA: Yes. Because it entirely depends on how the

12 Prosecution are going to present their case. Are there any comments on

13 what Mr. Pantelic has said?

14 MR. DI FAZIO: First of all, I don't think it's a matter of great

15 significance, but I'm grateful to -- sorry, would Your Honours just bear

16 with me?

17 [Prosecution counsel confer]

18 MR. DI FAZIO: It's -- as I said, I don't consider it to be a

19 matter of any great significance and, in fact, I'm grateful to

20 Mr. Pantelic for pointing that out to us. I hadn't picked that up and

21 we'll rectify that. Let me say this: I foreshadow a further brief

22 application to rectify that mistake and bring it into line, and restore

23 consistency in those paragraphs in due course but I don't think that's a

24 matter that should trouble the Defence. It's not -- it's the least of

25 chair concerns at the moment, given the substantial nature of the other

Page 5204

1 application.

2 JUDGE MUMBA: Yes, but it does -- because when you talk of wanton

3 and extensive -- wanton denotes knowledge and intention, all right? And

4 when you simply -- you leave it out and deal with destruction only, the

5 level of evidence, especially on the mens rea becomes different and

6 sometimes one may argue that if you just put destruction is it absolute

7 liability?

8 MR. DI FAZIO: I see. I take your point. I'm not suggesting that

9 the word is -- has no significance. I appreciate that. However, I would

10 seek time to consider the matter and consider the effect of the adjective

11 "wanton" on the rest of the phraseology and I foreshadow an application

12 to restore harmony throughout those paragraphs either by the deletion

13 of the word or by its inclusion in the missing paragraphs. And I think my

14 learned friends from the defence now stand warned that there will be a

15 brief application to fix that issue up.

16 JUDGE WILLIAMS: Mr. di Fazio, there is also the term "extensive"

17 which is left out in the same paragraphs as Mr. Pantelic raised, so it's

18 not just "wanton" but it's also "extensive" which clearly raises an issue

19 in and of itself as well.

20 MR. DI FAZIO: Yes.

21 JUDGE WILLIAMS: Because in those paragraphs that Mr. Pantelic

22 raised, it simply says "the destruction, plundering and looting."

23 MR. DI FAZIO: Yes. Once again I'm grateful to Your Honour for

24 pointing that out. That, of course, may depend upon the use of that word,

25 may depend upon the class of property being attacked and destroyed and

Page 5205

1 the extent of it; so therefore, that word may be of even greater

2 significance and I'll make sure that that is also attended to in our

3 further application to bring harmonisation to the wording of the

4 indictment.

5 JUDGE SINGH: Perhaps another thing that may require harmonisation

6 or you may want to consider harmonisation, if at all, would be a number of

7 phrases used say if you go back to the original charges, charge 13, sorry,

8 paragraph 13, count 1, you have a number of mens rea, different mens rea n

9 line 4, "planned, instigated, ordered, committed, otherwise aided and

10 abetted." And then in paragraph 15 you have got the words "committed and

11 aided and abetted." You've just got those two mens rea with the

12 conjunctive.

13 MR. DI FAZIO: Yes.

14 JUDGE SINGH: Then you have at paragraph 19, you've got then

15 the -- if you go back to paragraph 13, "planned, instigated, ordered

16 otherwise aided and abetted the planning," then it goes into the other

17 paragraphs as well.

18 MR. DI FAZIO: I think those matters -- I'm sorry, Your Honour.

19 JUDGE SINGH: Yes. Perhaps you want to explain that.

20 MR. DI FAZIO: Yes, well, I think those matters are attended to in

21 the fresh -- in our application but I will also cast my eye again over

22 those particular phrases that Your Honour has raised.

23 JUDGE MUMBA: Yes, I think this was discussed. It's only that I

24 think Judge Singh was looking at the other part of the indictment because

25 we have Annex B.

Page 5206

1 MR. DI FAZIO: Yes. Is there any other matter that the Chamber

2 wishes to raise on the wording of the indictment?

3 JUDGE MUMBA: No. I think not.

4 MR. DI FAZIO: Thank you.

5 JUDGE MUMBA: Yes. Mr. Lukic?

6 MR. LUKIC: [Interpretation] Your Honours, I would only like to say

7 briefly a word about one detail I've noticed since we've got the B/C/S

8 version of this annex. I have noticed namely that in Article 40 of the

9 English version, the highlighted part --

10 JUDGE MUMBA: You mean paragraph 40?

11 MR. LUKIC: [Interpretation] Paragraph 40, 4-0.


13 MR. LUKIC: [Interpretation] The Prosecutor stated in his

14 submission that the parts which were added are highlighted in bold. And

15 literally, it says in the English version, "acting in concert together

16 and," [In English] "Crisis Staff" is not bolded. [Interpretation] In the

17 B/C/S version also in bold, it says, "Acting in concert with," but

18 then the words "with others in the Crisis Staff" is added -- are added.

19 And before that, "And others" does not exist in the English version.

20 Since every word carries a certain meaning, perhaps the translator wished

21 to further explain this wording, but it is up to the Prosecutor in my view

22 to explain the meaning of every addition to the indictment that he is

23 proposing.


25 MR. LUKIC: [Interpretation] So the same section is highlighted in

Page 5207

1 bold but one word is added in the B/C/S version, that is "in concert

2 with," which does not feature in the English version. I am saying

3 actually that we need to make a careful comparison of the two versions

4 after a consultation with our clients. That is all, thank you.

5 JUDGE MUMBA: Yes, perhaps Mr. di Fazio can clarify paragraph 40.

6 Is there any amendment to paragraph 40?

7 MR. DI FAZIO: Yes. And you can see that it's highlighted in our

8 annex A. The problem that my learned friend refers to is really a problem

9 of translation, isn't it? And one that I can't really assist with. Might

10 I respectfully suggest and with the approval of the Chamber, perhaps they

11 consult with the interpreters on this and see if they can sort the matter

12 out.

13 JUDGE MUMBA: Yes, it's a problem with interpretation.

14 MR. DI FAZIO: If that's suitable with the Chamber and if they

15 inform us what their consultations with the interpreters produce, then I

16 would be happy for them to speak to the interpreters.

17 JUDGE MUMBA: Can you read 40?

18 MR. DI FAZIO: Yes.

19 JUDGE MUMBA: With the amendment?

20 MR. DI FAZIO: Yes. I will, into the transcript.


22 MR. DI FAZIO: I'm now reading from Annex A of the Prosecution's

23 motion for leave to amend the indictment, paragraph 40.

24 JUDGE MUMBA: Slowly.

25 MR. DI FAZIO: Yes, Your Honour. I will endeavour to slow down.

Page 5208

1 "Paragraph 40, from approximately 1st September 1991 through 31st

2 December 1993, Blagoje Simic, Milan Simic, Miroslav Tadic and Simo Zaric,

3 acting in concert together and with various individuals on the Serb Crisis

4 Staff and other political, municipal and administrative bodies, the police

5 force and the army, committed, planned, instigated, ordered or otherwise

6 aided and abetted a campaign of persecutions for the common purpose of

7 ridding the Bosanski Samac and Odzak municipalities of all non-Serbs and

8 in furtherance of the campaign committed other serious violations of

9 international humanitarian law directed against the Bosnian Croat, Bosnian

10 Muslim and other non-Serb civilians residing in the Bosanski Samac and

11 Odzak municipalities in the territory of Bosnia and Herzegovina."

12 JUDGE MUMBA: Thank you. Are there any other matters from the

13 Prosecution? I know that the witness is not here. We have tomorrow.

14 Unless the Prosecution have evidence which does not touch on the matters

15 on the motion, it's up to you to decide.

16 MR. DI FAZIO: Well --

17 JUDGE MUMBA: Whether you feel in the circumstances of these

18 amendments that are still in process.

19 MR. DI FAZIO: My preference would be to proceed. I have stated

20 that now -- may I very briefly confer with my colleagues on that?

21 JUDGE MUMBA: Yes, please.

22 [Prosecution counsel confer]

23 MR. DI FAZIO: Yes, the position of the Prosecution is that we

24 would like to try and get as much evidence completed as possible. It's

25 easy for me, I think, because they are quite separate and discrete topics,

Page 5209

1 the evidence relating to the destruction to the religious institutions.

2 It's easy for me to continue on with the other topics and hopefully get as

3 far as I can with him. It's inevitable that he will have to come back

4 next year and so I can finish the topic then once -- if it's appropriate,

5 given whatever ruling eventuates. So, yes, my preference is to go ahead

6 as far as I can tomorrow with him.

7 JUDGE MUMBA: Provided you remember that he should not be asked to

8 read any document.

9 MR. DI FAZIO: I think I can deal -- I do have a last document but

10 I think I can deal with that by simply reading the relevant portions that

11 is I'm interested in into the transcript.

12 JUDGE MUMBA: Yourself.

13 MR. DI FAZIO: So I can save him from that.


15 MR. DI FAZIO: Thank you.

16 JUDGE MUMBA: So the proceedings will continue tomorrow morning at

17 0930 hours.

18 The Court will rise.

19 --- Whereupon the hearing adjourned at 12.52 p.m.,

20 to be reconvened on Friday the 7th day of December,

21 2001, at 9.30 a.m.