International Criminal Tribunal for the Former Yugoslavia

Page 1325

1 Thursday, 2 August 2001

2 [Motion Hearing]

3 [Open session]

4 --- Upon commencing at 10.09 a.m.

5 [The accused entered court]

6 JUDGE RODRIGUES: [Interpretation] Good morning, ladies and

7 gentlemen. Good morning to the technical booth. Good morning to the

8 interpreters, members of the registry, the Prosecution.

9 Please call the case.

10 THE REGISTRAR: Good morning, Your Honours. Case number

11 IT-97-24-PT, the Prosecutor versus Milomir Stakic.

12 JUDGE RODRIGUES: [Interpretation] Thank you very much. May we

13 have the appearances? For the Prosecution first, please.

14 MS. SOMERS: Thank you, Your Honour. Susan Somers, lead counsel

15 for the Prosecution. I have the honour of presenting the group which has

16 facilitated the amendment, and I wish to do so. Miss Helen Long,

17 Mr. Andrew Corin, our new member of the team, Mr. Massimo Scaliotti,

18 Suellen Taylor, of course Denise Gustin. Thank you very much.

19 JUDGE RODRIGUES: [Interpretation] And for the Defence?

20 MR. LUKIC: Good morning, Your Honours. Branko Lukic for the

21 Defence this morning.

22 JUDGE RODRIGUES: [Interpretation] All right. Thank you very

23 much. Thank you very much. Good morning, Dr. Stakic.

24 We are here today, in this hearing today to hear the Prosecution's

25 application for leave to amend the indictment, so we will proceed as

Page 1326

1 follows: We will hear the arguments, and then we'll see what the

2 Defence's answer is, and then you may have a reply by the Prosecutor then,

3 if the Prosecution has a response.

4 Mrs. Prosecutor, you have the floor.

5 MS. SOMERS: Thank you very much, Your Honour.

6 The application sets forth, among other points, the fact that from

7 the inception, as early as 1997 in front of Her Honour Odio-Benito, there

8 has been an indication of intent to amend the indictment if - once and if

9 the accused were taken into custody.

10 Only in 2001 was the accused Stakic taken into custody. His

11 status as an accused, having been on a sealed indictment, was not changed

12 in terms of the counts when the case against Milan Kovacevic, co-accused,

13 was amended. However, many, if not all, of the points which would have

14 been in the accusation against, or were in the accusation against

15 Kovacevic have been incorporated one way or the other into the present

16 indictment, amended indictment, for which we are seeking to -- upon which

17 we're seeking to proceed.

18 The initial indictment set forth a complicity in genocide count

19 alone; however, the factual base for that complicit in genocide count was

20 broad. It included, in terms of crime base, principally Keraterm,

21 Omarska, and Trnopolje camps. It set forth essentially the same factual

22 background which has been elaborated upon in the, the current amended

23 indictment which we are seeking to proceed upon.

24 We have had the benefit, since the 1997 indictment, of new

25 materials seized from the various organs of the Republika Srpska in

Page 1327

1 Prijedor and Banja Luka which have given us much greater insight into the

2 alleged criminal activity of the accused and which figure into this

3 indictment. The time frame incorporates the period in the original

4 indictment, however, we have been able to ascertain sufficient evidence to

5 take it back to September 1st -- I'm sorry, September 11, 1991, and extend

6 it to September 30, 1992.

7 This case does differ from, for example, the Omarska and Keraterm

8 cases in that that is a political leadership case at the municipal level.

9 However, the activity that was conducted by the political leadership in

10 Prijedor municipality was reflected in the crime base in Omarska. So the

11 allegations that are set forth in the original indictment again reflect,

12 perhaps on a lower scale because it was done under a different set of

13 circumstances, the essential political scene, at least set out to put the

14 Defence on notice as to what type of facts we'll be relying on, it is

15 expanded upon in the proposed amended indictment.

16 The counts that have been added include the complicity in genocide

17 count, along with a genocide count itself; murder, crime against humanity;

18 extermination, crime against humanity; murder, violation of the laws and

19 customs of war; persecutions, crime against humanity; torture, crime

20 against humanity; cruel treatment, violation of the laws and customs of

21 war; torture, violation of the laws and customs of war; deportation, crime

22 against humanity; wanton destruction of cities, towns, and villages,

23 violation of the laws and customs of war; and lastly, destruction or

24 wilful damage done to institutions dedicated to religion, violation of the

25 laws and customs of war.

Page 1328

1 These counts were built upon a great number of the facts in the

2 original indictment, plus through the work of my team. The information or

3 the evidence, as we consider it to be, gathered from other sources,

4 including the searches, and evidence that has surfaced through the other

5 trials that have arisen out of the operative facts on Prijedor, such as

6 Omarska, Keraterm, and certainly the very well-developed base that came

7 out of Tadic.

8 The actual time frame, should the Bench grant our application, for

9 trial would, I believe, not be greatly expanded from what would have been

10 necessary in the original count because the original count was the

11 overall -- all facts in a complicity in genocide count, and we think we

12 can try to keep the case tightly tried, with the assistance, of course, of

13 the use of judiciously noticed facts and stipulations that we have

14 discussed at prior Status Conferences.

15 Although this is a Rule 50 amendment with -- before the Chamber,

16 it appears that confirmation is not the issue from the Rules but, rather,

17 whether or not it is a new indictment, and, in fact, we believe that it is

18 soundly an amendment as contemplated by the Rule.

19 We have -- should the Chamber wish, we have the materials which

20 have served, as it were, supporting materials for any additional aspects

21 of the charges which may not have been included in the original supporting

22 materials for the single complicity in genocide count. We would leave

23 them with the Registry for the Chamber. It is a single set, unredacted,

24 and we'd be very happy if the Chamber would wish to see these materials.

25 If not, we of course leave that in the Chamber's hands.

Page 1329

1 If I may answer any further questions. I believe we have set

2 forth requirements of the Rule and believe that there is no aspect of this

3 which would cause surprise to the Defence.

4 JUDGE RODRIGUES: [Interpretation] Thank you very much. Thank you,

5 Ms. Somers. The Judges might have questions towards the end of the

6 proceedings, but we want to give the parties the opportunity of -- to give

7 some more explanations.

8 Mr. Lukic, can you answer the Prosecutor's arguments? You have

9 the floor.

10 MR. LUKIC: As you know, Your Honours, we haven't seen the

11 indictment yet, the amended indictment, so -- although we have the

12 indictment for late Dr. Kovacevic. So I think that in general we know

13 what this amended indictment is about, but still, we would like to see it

14 to be able to answer any further questions.

15 And our position is that this is a new indictment, not amended

16 indictment, because adding 11 counts on one makes really something new,

17 not something broadened.

18 JUDGE RODRIGUES: [Interpretation] Mr. Lukic, how much time would

19 you need to look at the new or amended indictment, in your version, that

20 is?

21 MR. LUKIC: I don't think that we need more than half an hour

22 because, as I said, we have the indictment for late Dr. Kovacevic, and we

23 suppose that it's basically the same.

24 JUDGE RODRIGUES: [Interpretation] Mrs. Registrar, has the

25 indictment been sent to Mr. Lukic, and why has not the indictment been

Page 1330

1 sent to the Judges?

2 THE REGISTRAR: I apologise, Your Honour, if no one has received a

3 copy of the Prosecution's application and the amended indictment. It was,

4 however, distributed yesterday, for the information I have, to all the

5 parties, including the Chamber. But I'll try to follow this problem and

6 see what happened and why it seems that it hasn't been distributed.

7 JUDGE RODRIGUES: [Interpretation] But the question is whether

8 Mr. Lukic already has an indictment, an amended indictment, that is,

9 again. I can see that you have the answer to this, Mrs. Somers.

10 MS. SOMERS: If I may assist the Chamber, Your Honour, the actual

11 application, along with the indictment, was filed confidentially,

12 partially ex parte. The Rule requires that there be a hearing by the

13 parties on the application but does not indicate that the actual

14 indictment be provided until the Chamber has made a ruling on the

15 application as to whether or not it would be appropriate.

16 I have, however, sent to Mr. Lukic in advance a -- the draft of

17 the application for amendment so that he has been on notice about what the

18 additional counts would be. We have spoken telephonically about the event

19 -- I'm sorry, about the amended indictment and the counts, so there was

20 notice as soon as we were able to reach Mr. Lukic after he returned from

21 his vacation.

22 The documents were in fact distributed yesterday, and if they have

23 not reached Chambers, I'm concerned, but we did physically bring them down

24 for distribution, and for this I can offer no explanation.

25 If the Chamber normally would break -- although, in fact, I must

Page 1331

1 say that the experience has been that it is not customary to give out the

2 amended indictment until the Chamber has heard us on it, and then if the

3 application is granted, it is provided, with my understanding, normally a

4 break to allow the accused and his counsel to confer for purposes of

5 entering a subsequent plea. However, we are in the Chamber's hands in

6 terms of the procedure here. The indictment was not provided, only a copy

7 of the application which details the charges but not, of course, any of

8 the summary of the evidence on it -- of the facts underlying it, rather.

9 JUDGE WALD: Ms. Somers, at what point, then, in this process

10 would somebody like Mr. Lukic, the Defence counsel, have an opportunity to

11 make his argument that it is -- to make his argument that it is not, in

12 fact, merely an amendment but a new -- I mean, does -- what is your

13 interpretation of the Rules that would allow -- when is the window of

14 opportunity for him to make that argument?

15 MS. SOMERS: I think the Rule does not really address it.

16 JUDGE WALD: Yes, I don't think so.

17 MS. SOMERS: And it has been -- at this point, just beginning to

18 be interpreted. But in the past, the application details at least enough

19 counts to indicate how much, if any, other activity would be added to the

20 existing indictment. Now, again, the detail is not there, but it has not

21 in the past been there.

22 And I don't know whether this Chamber wishes to initiate its own

23 procedure and permit some type of initial reading just to know enough

24 detail to enter a plea, although, again, there seems to be enough

25 precedent that this has not been the case. Some Chambers do; some

Page 1332

1 Chambers don't. And however the Chamber wishes us to do it, we followed

2 the approach that has been consistent with past practice.

3 But again, Rule 50's changes with the lack of confirmation once it

4 is before the Chamber perhaps requires some consideration other than --

5 but our position has been that there is no entitlement to see it in

6 advance, that it is sufficient to know the additional charges and --

7 JUDGE WALD: But what's the, what's the difference? Now, suppose,

8 just suppose his argument were accepted, "But gee, when you add 11 new

9 counts to one count, you're really doing more than amending the

10 indictment; you're creating a new one." The consequence of that would be

11 what? That he'd have to get it -- that the indictment would have to be

12 reconfirmed or confirmed --

13 MS. SOMERS: If it were --

14 JUDGE WALD: -- with supporting material? If that argument were

15 accepted. I'm just --

16 MS. SOMERS: If it were a new, if it were truly a new indictment

17 incorporating other municipalities, a time frame that went into 1995. But

18 it is not. This is the indictment from the period. I think that --

19 JUDGE WALD: My last question to you which I was going to ask but

20 it's part of this now, is, can you tell us whether or not the new counts

21 are based on new incidents, new episodes that the old count was not based

22 on?

23 MS. SOMERS: There are some additional killings resulting from

24 attacks that -- well, because Keraterm and Omarska and Trnopolje were the

25 results of these attacks, I would feel relatively safe in saying that the

Page 1333

1 attacks would have been presented one way or the other, it's a question --

2 because most of the detentions and any resulting deaths or violations of

3 Article 5 would arise either from these attacks or from activity in the

4 camps. So there would not be a substantial increase. There may be some

5 locations that would not have appeared necessarily in the camp cases

6 because some of it -- because of some of the killings which occurred

7 outside of the camps. We do deal with killings outside of camps here as

8 well. This, I think, is significant for the Chamber to know.

9 And, Your Honour, also, of course, there is the fact that this

10 individual occupied a position of control and authority in perhaps a

11 different way, a political level that was not present. However, it is its

12 impact on the crime base that is crucial, and the crime base is very much

13 based on the same facts, with some expansions, as the camp cases.

14 JUDGE RODRIGUES: [Interpretation] Madam Somers, I personally want

15 to go to the merits of the application you've filed, but you have a

16 preliminary procedural issue to deal with.

17 What we find in Rule 50, paragraph (C), is that the Prosecutor may

18 amend the indictment once the case has been assigned to a Trial Chamber

19 with leave of that Trial Chamber or a Judge of that Chamber after having

20 heard the parties. In other words, the application gives rise to a

21 discussion between the two parties, the Prosecution and the Defence.

22 Hence my question: How could the Defence be heard, take part in this

23 discussion if it doesn't know what the indictment is? What we had

24 beforehand, as you know, is that the application for leave to amend was

25 presented to the Confirmation Judge and, thereafter, once the Confirming

Page 1334

1 Judge had confirmed the indictment, it was sent to the Defence, the

2 accused would appear in the courtroom, and he or she would already know

3 the contents of the amended indictment.

4 Now, following the latest change to the Rules, I believe, but I'd

5 like to seek your views on this, I think that we find ourselves in a new

6 proceeding; that is that the Chamber is to rule after having heard the

7 parties. I interpret this as meaning that there is a discussion between

8 two parties. Therefore, for the Defence to be able to take part in this

9 discussion, it must be informed.

10 So what do you think regarding this reading of the Rules, and more

11 specifically, as to the issue of what it means to have heard the parties

12 first? What do you think, Mrs. Somers?

13 MS. SOMERS: Your Honour, based on, for example, the amendment of

14 the Kordic indictment in 1998, the only aspect of hearing the parties was,

15 again, on the application, there was no presentation in advance of the

16 indictment. I'm trying to recollect without having my notes in front of

17 me, but I was part of that. And the actual indictment was presented only

18 to a Confirming Judge after the Trial Chamber heard the application on

19 amendment. So it was not a noticed or an adversarial matter up front to

20 have the indictment distributed.

21 I do not see that it was contemplated that there would be a debate

22 about the substance. I believe that would be more for the Chamber to

23 consider, as it was considered in the older proceedings, that the Chamber

24 might take a look, and it may give its decision on whether or not it

25 believed it was beyond or an absolutely new instrument, charging

Page 1335

1 instrument. And if the Chamber so believed, then it would order

2 accordingly and it would go into a confirmation proceeding. But that --

3 there is no real provision for an assessment as to whether or not the

4 Defence agrees with whether these things should be in. That was really a

5 decision for the Trial Chamber. And then if it so decided, then the

6 instrument was presented to the Defence and the plea would be entered.

7 At that time, it did revert to the Confirming Judge. I don't

8 recall a provision for it coming before the Chamber at that point in

9 time. It was sent back to the Confirming Judge. But there seems to have

10 been, if I read it correctly, a change in procedure, and again, it becomes

11 a matter for the Chamber to determine if it sees it as truly an amendment,

12 and if so, to act on the application, and then it is given to the Defence

13 for the same procedure.

14 It almost looks as if this were an administrative facilitation

15 tool, but it does not seem to alter the, as it were, ex parte nature of

16 the decision as to whether or not it is a new indictment. I see no

17 evidence of that in the Rule.

18 JUDGE RODRIGUES: [Interpretation] Mrs. Somers, you did not answer

19 my question. How do you understand the notion of hearing the parties of

20 the adversarial system which is couched in the Rule? You've mentioned the

21 Kordic case law, but what happened in the Kordic case, that was before the

22 Rules were changed. Now we have this new Rule which clearly specifies

23 that the Chamber is to hear the parties first.

24 So what do you mean by that, by this adversarial procedure? How

25 do you read it?

Page 1336

1 MS. SOMERS: Your Honour, I see it as going to the leave to amend

2 and what is set forth in the motion, not necessarily the accompanying

3 document. I do not see that it really changes the initial assessment by

4 the Chamber as to whether or not it believes it to be a new one. There

5 may be factors which the Defence wishes to bring to our attention about

6 the counts, but it does not, by its plain language, suggest that the

7 indictment is distributed before there is a decision to -- as to whether

8 or not it is the appropriate subject of an amendment and allowing the

9 indictment as an amendment to be the document in force.

10 I believe that it goes to just the hearing on the application for

11 leave, not on the substance of the actual charges. That was the purpose

12 for laying out the expanded charges and indicating if there were a change

13 in the time period, which was done in the application. I think that is

14 sufficient for the Defence to answer this part of the proceeding. I do

15 not think it goes beyond that. I see no evidence of intent taken beyond

16 that.

17 JUDGE WALD: But surely, Ms. Somers, suppose we were later on in

18 the proceeding than we are now and the Prosecution came in and said, as

19 can happen, "We want to add six or seven new counts to that," and we had

20 already begun trial or something? Surely the Rules would envision having

21 a hearing in which a Trial Chamber could say, "Sorry. We're well along

22 into this. It's not fair to everybody involved. It's too late. You

23 can't amend it this dramatically."

24 MS. SOMERS: Your Honour --

25 JUDGE WALD: I mean, there has got to be room for the Trial

Page 1337

1 Chamber, once the procedure has got under way, to look at at least what is

2 being asked of in the application proceeding.

3 MS. SOMERS: It would seem from prior practice that if the case

4 were already commenced, with witnesses having been sworn and evidence

5 taken, that could change the equation. We are not at that phase.

6 JUDGE WALD: No, I understand.

7 MS. SOMERS: And I think because we are at the phase at which we

8 find ourselves, the -- what I would call the more traditional approach

9 that I think seems to stand intact in this Rule would apply, that the

10 Chamber would take a look at the indictment and make a decision and then

11 grant, hopefully, the application, hopefully, and then proceed.

12 But I -- at the stage at which we find ourselves, I don't think

13 there would be any reason to, even in the interests of justice, have an

14 assessment of anything in the substance of it by the Defence.

15 JUDGE RODRIGUES: [Interpretation] Fine. Before ruling on this

16 issue, on this procedural issue, I'd like to give Mr. Lukic the

17 opportunity to speak because we've come up with new factors and you might

18 have something to say on this. You have the floor, Mr. Lukic.

19 MR. LUKIC: Thank you, Your Honour. I don't think that I have to

20 add much because basically Your Honours have already put all questions I

21 had, and I think that it's up to the Chamber to decide on this matter.

22 And according to my learned friend, I shouldn't interfere too much in this

23 matter, anyway.

24 JUDGE RODRIGUES: [Interpretation] Fine. We're going to

25 deliberate.

Page 1338

1 [Trial Chamber confers]

2 JUDGE RODRIGUES: [Interpretation] The Trial Chamber has to rule on

3 the issue of whether the notion of having heard the parties as stated in

4 Rule 50 of the Rules means that the Defence must be heard on the

5 application filed by the Prosecutor for leave to amend the indictment.

6 The Trial Chamber rules that the words "having heard the parties" means

7 that the Trial Chamber has to hear the parties before it rules; "the

8 parties," meaning the Prosecutor and the Defence.

9 Therefore, the Trial Chamber rules that the Prosecutor's

10 application for leave to amend must be notified to the Defence. The

11 Defence will have 45 minutes. Mr. Lukic asked for 30 minutes, but we

12 grant him 45 minutes in which he can look at the application, upon which

13 we shall return to the courtroom to hear the Defence on the application.

14 We are going to suspend the hearing for 45 minutes.

15 Did you want to have less time, Mrs. Somers?

16 MS. SOMERS: No, Your Honour. I just want a clarification. The

17 application itself was served upon the Defence. It was simply not the

18 indictment. As long as -- I want to make sure the Chamber knows, we still

19 hold the indictment and will wait to turn it over until there has been a

20 hearing on the application. Is that -- do I understand Your Honour

21 correctly?

22 JUDGE RODRIGUES: [Interpretation] Yes, indeed. For us, the

23 application is the application and its annex because the application

24 without the indictment doesn't make any sense.

25 MS. SOMERS: All right.

Page 1339

1 JUDGE RODRIGUES: [Interpretation] I mean the entire application

2 with the annex.

3 MS. SOMERS: Thank you for clarifying it, Your Honour.

4 JUDGE RODRIGUES: [Interpretation] Fine. Therefore, it is up to

5 the Registry to make sure that the Defence will have the entire

6 application. Do you agree, Madam Registrar?

7 THE REGISTRAR: Yes, Your Honour.

8 JUDGE RODRIGUES: [Interpretation] Fine. So we're going to have a

9 break of 45 minutes.

10 --- Break taken at 10.42 a.m.

11 --- On resuming at 11.30 a.m.

12 JUDGE RODRIGUES: [Interpretation] The hearing is resumed. In

13 keeping with the decision made by the Trial Chamber, we are going to hear

14 the Defence, according to the Rules, and the interpretation of the Trial

15 Chamber by the Rules. We believe that the English version is clearer than

16 the French version. There are some differences, because the English

17 version says clearly that this, after having heard the parties.

18 And if you look at Rule 2, which defines the parties, the parties

19 are the Prosecutor and the Defence. [In English] If you put this

20 definition of Article 2 into Article 50, we'll have the same result

21 saying, "... after having heard the Prosecutor and the Defence."

22 [Interpretation] There we are. We're now going to hear the

23 Defence.

24 Mr. Lukic, how do you view the Prosecutor's application?

25 MR. LUKIC: Your Honours, I think that we hold the same position,

Page 1340

1 that actually in front of us we have a completely new indictment, which is

2 based on different factual ground than the previous one, although we, as I

3 said, expected this indictment, which is almost the same as the indictment

4 of late Dr. Kovacevic. But as I said, we think our position is that it's

5 a completely new indictment, and I think that we should proceed in that

6 manner.

7 JUDGE WALD: Mr. Lukic, what difference would it make in terms of

8 the Defence's preparation or getting ready to defend whether or not we

9 decided that it was a new indictment or an amended indictment? I mean,

10 we're at a very early stage now. So what real difference would it make to

11 the Defence?

12 MR. LUKIC: Your Honour, you are right. We are still preparing

13 anyway, so we are in process of preparation. And of course, having 11 new

14 counts in the indictment, it's clear that we will need more time for

15 preparation, nothing else.

16 JUDGE WALD: Well, I think Rule 50(C) takes care of that to

17 further extent. It says you have "... a further period of thirty days

18 [for] preliminary motions ... and, where necessary, the date for trial

19 may be postponed to ensure adequate time for the preparation of the

20 defence."

21 MR. LUKIC: Yes, Your Honour. And the trial date hasn't been

22 established yet so it doesn't affect us much.

23 JUDGE RODRIGUES: [Interpretation] Have you finished, Mr. Lukic?

24 MR. LUKIC: Yes, Your Honour, I have.

25 JUDGE RODRIGUES: [Interpretation] Fine. Mrs. Somers, do you have

Page 1341

1 anything to say in reply?

2 So basically, the Defence says that we are dealing with a totally

3 new factual base, so this is a radically new indictment, this is not an

4 amended indictment. What do you say to this?

5 MS. SOMERS: Your Honour, I submit that the response of the

6 Defence is groundless. In fact, just looking back at what transpired with

7 the Kovacevic situation, it was granted. The amendment was granted.

8 Further, because in this instance genocide or complicity in

9 genocide was the initial very large charge, almost -- well, arguably every

10 fact that is now -- instead of just made a bit of evidence that would go

11 into inferring the genocidal intent, has been broken out or crystallised

12 into separate -- into different counts which is the -- within the

13 prerogative of the Prosecutor. We think, given the levels of intent that

14 have to be shown, this is the wise course to do and was, in fact, followed

15 in Kovacevic. But the factual submissions which we would have to make at

16 trial would be these factual submissions to enable the Chamber to make a

17 decision which it will still have to make on the genocide counts, and

18 there is really no substantial variation.

19 The additional month at the end is to cover a period of time where

20 we can show, based on, again, the ability to know better about this

21 individual than was known earlier, activity going through the end of

22 September. And he is alleged, in the accused's section of the 1997

23 indictment, to be a member of the Crisis Staff. Again, we have to show

24 that. We have set the time period that we are looking at to prove his

25 positions of responsibility as 11 September, based on documentary

Page 1342

1 evidence.

2 But these facts as submitted would have had to have gone into the

3 original count, the original genocide. It is, given the growing body, we

4 hope, of law on genocide, perfectly normal and prudent to want to break

5 out separate counts should there, for example, not be a conviction on

6 complicity on genocide. But these facts at all times were the same or

7 essentially the same facts that would have gone into proving the larger,

8 more grave charge. We see no, no basis for a comment that it is a new

9 indictment in the sense of new types of facts. It's a matter of proof.

10 Again, reminding the Chamber, which I know it knows well, that

11 Rule 72 provides a full opportunity for comments on or objections to form

12 of indictment, which is traditionally where objections would appear, not

13 at this time. This again -- these are legal issues about timing, but they

14 are not issues where facts should be delved into now by the Defence.

15 If there's further on the matter I may answer.

16 JUDGE WALD: You mentioned earlier that should we, should we, the

17 Chamber, at some point think it was a new indictment, you had confirmation

18 material available for us; but if we decide it's an amended indictment,

19 then the Defence -- which the Defence, if it were a new indictment, would

20 get that confirmation material under 66, but it won't get it under an

21 amendment, right?

22 MS. SOMERS: Again, because the Rule is drafted in such a way that

23 it says no longer is a confirmation required --

24 JUDGE WALD: I understand that.

25 MS. SOMERS: -- strictly speaking, legally they're not entitled to

Page 1343

1 it.


3 MS. SOMERS: We -- should we choose to call witnesses, particular

4 witnesses --

5 JUDGE WALD: I understand that.

6 MS. SOMERS: -- yes, we would -- they would get them. And we are

7 encouraging -- we hope we may engage in Rule 66 types of requests which we

8 hope will speed things up. But again, I want to make it clear that

9 whether we had to prove the count of genocide or all of the things that go

10 into genocide, it is our burden. The time frame is basically the same. I

11 disagree with Mr. Lukic that it's a longer trial. I don't think so.

12 JUDGE RODRIGUES: [Interpretation] Very well, thank you.

13 I have a question that I'd like to put to Mr. Lukic. You may know

14 that we are now with an indictment which was initially involving three

15 co-accused. Two of these co-accused have now died. We therefore have

16 this indictment against Mr. Stakic.

17 As you can see, in the Kovacevic indictment, the Prosecutor added,

18 I believe, 13 counts, and as you know, this gave rise to a decision, a

19 ruling by the Trial Chamber, which has always regarded this indictment as

20 an amended indictment. Never was the issue raised of knowing whether it

21 was a new indictment. In this instant case, the Prosecutor is adding 11

22 counts. So basically, at the end of the day, the difference is that in

23 this case, the Prosecutor did not include offences under Article 2, sort

24 of grave breaches of the Geneva Conventions.

25 If you compare the Kovacevic indictment with the Stakic

Page 1344

1 indictment, and if you look at the way the Trial Chamber dealt with this

2 issue in the Kovacevic case, do you still believe that you're dealing with

3 a new indictment rather than with an amended one? What is your feeling to

4 this?

5 MR. LUKIC: Your Honours, although knowing the decision, previous

6 decision of the Trial Chamber in Kovacevic case, I can't escape the

7 feeling that this is really a new indictment.

8 I know that it's -- I leave it to the discretion of the Trial

9 Chamber, but I have to think in a way according to the legal system from

10 which I come from, and in our system, if you add so many counts to one

11 count you had before, it's a new indictment; it's not amended.

12 But if this Trial Chamber still holds the same position as the

13 Trial Chamber in Kovacevic case, I would like to have Prosecution ordered

14 to disclose the materials which follow this, according to them, amended

15 indictment. So at least in that field to have covered the defence and to

16 have provided the Defence with all materials necessary.

17 JUDGE RODRIGUES: [Interpretation] Two remarks on this. I can see

18 the transcript which mentions the Kovacevic Trial Chamber, but in fact, I

19 think we should refer to the Appeals Chamber. Is that what you mean,

20 Mr. Lukic?

21 MR. LUKIC: Yes, Your Honour. Sorry.

22 JUDGE RODRIGUES: [Interpretation] Second remark: I do understand

23 your argument. You allude to your national legal system. Me too. I have

24 a similar legal system, but we have to operate on the basis of the

25 Tribunal's Rules. We do not work on a national basis. We cannot apply

Page 1345

1 national rules to this Tribunal. But we understand your position, and

2 we'll take it into account.

3 Thank you. You may sit down, Mr. Lukic.

4 Mrs. Somers, I have another question for you. You rely in your

5 application on at least two arguments. You have the fact that the

6 Prosecution's investigations have been maintained and have continued, that

7 you have received additional materials from other cases. This is my

8 question: If you compare the Kovacevic indictment to the present

9 indictment for Stakic - I think we'll end up agreeing and saying that

10 we're dealing with one single initial indictment - what is the difference

11 between the Kovacevic indictment and that filed against Stakic if we leave

12 aside the issue of violations or breaches to the Geneva Conventions?

13 MS. SOMERS: Your Honours, firstly, we -- we're able to be more

14 precise now as to the nature of the criminal responsibility or the alleged

15 criminal responsibility of the accused Stakic with the benefit of having

16 more materials. I'm confident that had he been included on the amendment

17 for Kovacevic, we would have proceeded, but again, we are in a better

18 position because of the other factors which we've indicated in our

19 application.

20 The nature of the -- the Kovacevic indictment was also adding

21 genocide, crimes against humanity, violations of laws or customs of war

22 and removing grave breaches. There is not a substantial difference in

23 terms of the scope of the -- the breakdown of the counts. Again, these

24 points would have been facts to have been proven. We have been able to

25 crystallise them, regroup them into counts, which I think is a better

Page 1346

1 practice, particularly in this institution given the state of -- trying to

2 develop the jurisprudence on genocide.

3 But the difference in charges, there was -- the allegations in

4 Kovacevic discussed attacks. They were not terribly specific. They

5 discussed deportation. They discussed the types of atrocities that took

6 place in the camps. Again, this is what is merely --

7 JUDGE RODRIGUES: [Interpretation] Sorry for interrupting you,

8 Mrs. Somers. So in conclusion, if you look at the two indictments,

9 there's no substantial difference. Is that the conclusion we can draw?

10 Is that what I heard from you?

11 MS. SOMERS: Essentially it tracks -- essentially, and I would

12 want to make that clear, because certainly we have the benefit of detail

13 and we have an expanded beginning by a couple of months and expanded end.

14 JUDGE RODRIGUES: [Interpretation] I have another question,

15 Mrs. Somers. Why did you not include the breaches to the Geneva

16 Conventions as that being a major difference between the two indictments?

17 MS. SOMERS: Your Honour, that was a prosecutorial decision. The

18 nature of proof that would have had to have been adduced, it would not

19 have added greatly to dealing with this particular individual. It would

20 not have made the difference that it has made in other cases.

21 Specifically to this case, it would not have enhanced it greatly. And

22 we've covered the facts, Your Honour, in the other counts.

23 JUDGE RODRIGUES: [Interpretation] So your answer raises another

24 question. Is the Prosecution going to take out infractions or offences

25 under Rule 2 or Article 2 in other cases this Tribunal is going to hear,

Page 1347

1 just for the sake of consistency?

2 MS. SOMERS: It depends, Your Honour. That again depends on the

3 type of proof that is available in every case, and it will vary. There

4 are times when it is absolutely appropriate, if the proof is there, to

5 proceed if the Prosecution wishes go on a grave breach that may not be

6 touched upon by another type of count. That is very much individualistic,

7 and I don't think that it would necessarily require a declaration of

8 consistency because it would be so case specific.

9 JUDGE RODRIGUES: [Interpretation] Yes. But if it's a matter of

10 proof, what is the difference between the Brdjanin and Talic case and this

11 case when this comes to proof?

12 MS. SOMERS: I believe there were factors above and beyond the

13 Prosecution, if I'm correct, in the Brdjanin and Talic case, wherein

14 Article 2 was added. I don't believe initially it was in the indictment,

15 if I'm not wrong. I have to reserve that, but I think it was added.

16 Again, I could be wrong, but I don't think -- that is a regional case.

17 There may be points of proof with which I am not familiar in that case.

18 I'm looking at a municipal leader, and for purposes of the municipal

19 level, we felt strategically this was the soundest way to go.

20 JUDGE RODRIGUES: [Interpretation] Thank you.

21 Thank you. We don't have any more questions. We're going to have

22 a break, but before doing so, let me turn to Mr. Lukic. Are you ready to

23 enter a plea of guilty or not guilty today? What is the position of your

24 client?

25 MR. LUKIC: Yes, Your Honours, we are ready to enter the plea

Page 1348

1 today.

2 JUDGE RODRIGUES: [Interpretation] Good. We're going to have a

3 break, a half-hour break. Were the Trial Chamber to grant the

4 Prosecution's application, in that case we will move straight away to the

5 initial appearance. So we're going to have a break for half an hour.

6 --- Break taken at 11.50 a.m.

7 --- On resuming at 12.25 p.m.

8 JUDGE RODRIGUES: [Interpretation] Madam Somers, before I give the

9 ruling, I would seek some clarification. I understood that you said you

10 were available to disclose to the Defence, as it were, the supporting

11 materials, the documents in support of a possible change to the

12 indictment. Did I understand you well?

13 MS. SOMERS: Within the time frame that we are allotted, yes, we

14 are, Your Honour. Again, because it's not clear whether we have to, but

15 we would do it, we'd ask the Chamber for the usual permission to make the

16 redactions that are necessary to protect regular factors, but yes, we

17 would be glad to do that within 30 days after.

18 JUDGE RODRIGUES: [Interpretation] At any rate, yes, we could solve

19 this issue without having to issue a ruling. What we had in mind,

20 Ms. Somers, Mr. Lukic, is this: After the change made to Rule 50, which

21 made it possible to look again at the indictment as amended by a Trial

22 Chamber who has -- which has been assigned to the case and not by a

23 Confirming Judge, I think that the Trial Chamber, looking at the overall

24 Rules, has the same function as the Confirming Judge before. Therefore,

25 once the amended indictment has been confirmed, you still have to disclose

Page 1349

1 the supporting materials. We are therefore in the same position. We're

2 basically doing the same work as the work done before by the Confirming

3 Judge, so we should proceed in the same way as before.

4 Mr. Lukic asked for something. You seem to agree. So the Chamber

5 basically clarifies the issue and is now going to issue a ruling on this.

6 But the Chamber uses this opportunity to clarify the situation to say that

7 basically everything should be taking place as though it was a Confirming

8 Judge who had confirmed a change to the indictment. We're now issuing our

9 ruling.

10 The Prosecutor filed an application for the leave to amend the

11 indictment against Milomir Stakic. This change is reflected in the

12 addition of 11 counts. The Defence opposed the application, stating that

13 this is not tantamount to an amendment but that it is basically a totally

14 new indictment.

15 After hearing the parties on the issue, the Trial Chamber is of

16 the view that the Prosecutor has a potential right to amend the

17 indictment. The Prosecutor may therefore exercise the said right which

18 may be also viewed as an obligation within the confines of the Rules, and

19 more specifically, of Rule 50 of the Rules of Procedure and Evidence.

20 The Trial Chamber is also of the view that this is an amendment

21 and this is not a new indictment. Indeed, the trial has not yet begun or

22 come to an end, and the indictment must contain all the charges brought

23 against the accused who needs more time to prepare for his defence before

24 the trial begins.

25 This being so and taking Rule 50 into account, the Trial Chamber

Page 1350

1 grants the Prosecutor's application and thereby grants the requested

2 amendment.

3 --- Whereupon the Motion Hearing adjourned at

4 12:30 p.m.






















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