International Criminal Tribunal for the Former Yugoslavia

Page 1363

1 Friday, 05 October 2001

2 [Motion Hearing]

3 [Open session]

4 --- Upon commencing at 2.30 p.m.

5 [The accused entered court]

6 JUDGE RODRIGUES: [Interpretation] Good afternoon, everybody.

7 Madam Registrar, will you please call the case.

8 THE REGISTRAR: Good afternoon, Your Honours. Case number

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

10 JUDGE RODRIGUES: [Interpretation] Thank you very much. Can we

11 have the appearances, please, for the Prosecution.

12 MS. SOMERS: Thank you very much, Your Honours. Susan Somers,

13 lead counsel. Also present for the Stakic team, from my right,

14 Mr. Michael McVicker, Mr. Massimo Scaliotti, Mr. Morten Bergsmo,

15 Mr. Kapila Waidyaratne, and Ms. Ruth Karper, our case manager. Thank

16 you.

17 JUDGE RODRIGUES: [Interpretation] For the Defence, please.

18 MR. LUKIC: Good afternoon, Your Honours. Branko Lukic for

19 Mr. Stakic.

20 JUDGE RODRIGUES: [Interpretation] Good afternoon, Dr. Stakic.

21 We have assembled here this afternoon in order to hear the motion

22 which has been submitted by the Prosecutor to -- for a third amendment of

23 the indictment, if I'm correct.

24 Madam Susan Somers, let us hear you.

25 MS. SOMERS: Thank you, Your Honour. On this indictment, I hope

Page 1364

1 I'm correct that it's the actual second amended for purposes of

2 Dr. Stakic's counts.

3 The matter was duly noticed. I must indicate to the Chamber up

4 front that although served upon my learned counsel opposite, I did not

5 receive a response in writing and so have no advanced notice of any

6 particular objections to the application.

7 We have set forth, I think succinctly, the grounds for seeking it,

8 particularly acting quickly on the heels of the Krstic judgement, which we

9 feel is extraordinarily important for the state of law and to make sure

10 that having been given this jurisprudence, that we are able to take

11 advantage of it so that the charges may best reflect the facts.

12 The other matters which show up in the application for amendment

13 are mostly stylistic, or if there is a numbering change, it is because it

14 reflects the changes that may have occurred as a result of the other

15 principal points which we seek to have amended.

16 The focal points would revolve around amendment to the wording

17 and -- in the genocide count. In paragraph 56 specifically, to bring to

18 the Chamber's attention. Then also having received the benefit of the

19 jurisprudence as to when it is appropriate to charge deportation, as

20 opposed to unlawful transfer, we would also bring to the Chamber's

21 attention we seek to make that modification, and then the others.

22 There also is a count added reflecting best the plunder of private

23 property, and that was count 14. The facts are already set forth. We

24 felt upon review that it would be best to have this additional count. It

25 would benefit all parties, for specificity as well.

Page 1365

1 The Prosecution has been in touch with the Defence. The documents

2 have been provided. The application and copies of the proposed amended

3 indictments have been provided both in English and in the Serbo-Croatian

4 language. The Defence and the Prosecution met just prior to this

5 hearing. We have, I'm pleased to announce, or to reaffirm, that we have

6 good communication, and we discussed other matters concerning this hearing

7 that perhaps may come on the heels of the amended indictment application

8 hearing.

9 There was one concern which we wanted to try to address with the

10 Defence, and that would be the impact of the Rule 72 motions, should the

11 Chamber grant our application, and we have been informed by counsel for

12 the Defence that he would seek approximately 15 additional days.

13 The changes -- the amendment to changes are such that the facts

14 are as alleged, with a change in the ending date of the indictment

15 period. Instead of 30 August 1992, it has been 30 September. However,

16 the starting point for purposes of the genocide charge, which we believe

17 inures to the benefit of the Defence, as it gives him a more specific

18 period of time within which to focus his Defence, would be from

19 approximately 22nd of May, 1992, again having borne in mind the language

20 from the Krstic judgement that supports when facts indicate that there is

21 an escalation of the criminality and the objective of the common purpose.

22 And with the Chamber's permission, any issues specifically on the

23 genocide aspects would be handled by my colleague Mr. Bergsmo, and I would

24 handle any other aspects that the Chamber may wish to inquire of us.

25 We do wish to let the Chamber know that there is no new supporting

Page 1366

1 material at all involved in this amendment, that in fact the changes

2 reflect, again, a harmonisation with the current state of jurisprudence as

3 handed down by this Chamber in Krstic and a -- that would be both as to

4 the inhumane acts and to the aspects of genocide and common purpose.

5 And also the additional count, again, is not based on any new

6 facts. It just re-characterises or recasts in a count that which was

7 already alleged, probably in paragraph 17 where it talks about businesses

8 and other property. It should appropriately be in a count. And the other

9 changes as we indicate are, again, principally of style and of necessity

10 when there has been a change in paragraph formatting.

11 JUDGE RODRIGUES: [Interpretation] Very well. Thank you,

12 Ms. Somers.

13 I'm now going to give the floor to Mr. Lukic so that we could hear

14 his response.

15 MR. LUKIC: Your Honours, my learned colleague is right that we

16 really have very good cooperation, until now. And that's the -- it's true

17 that we didn't give any written response to their request for amendment of

18 this indictment, but we will do it orally today. And if you need me to

19 proceed that way, I'm ready. If you want to hear anything else from the

20 Prosecution, I'll wait.

21 JUDGE RODRIGUES: [Interpretation] Yes, Ms. Somers? I thought you

22 had finished. No?

23 MS. SOMERS: I should have informed the Chamber that even in the

24 face of these amendments, of this application, we have continued to

25 provide, without stopping, discovery. We are actually submitting

Page 1367

1 documents. We have not in any way stopped the process. It has been our

2 intention to move forward and have no disruption. I just wanted to make

3 sure the Chamber was aware of it. And Mr. Lukic, I'm sure, would

4 acknowledge that this is the case. I'm sorry I didn't mention it

5 earlier.

6 JUDGE RODRIGUES: [Interpretation] Very well. Let us hear your

7 response to the motion, Mr. Lukic.

8 MR. LUKIC: Our stand is that there can be only three legitimate

9 reasons for the Prosecution to amend an indictment. First, the

10 Prosecution may have had to draft the indictment hurriedly in order to

11 take advantage of an opportunity of finding and serving the accused. This

12 is not the case. The initial indictment is from 1997, and the accused was

13 not arrested in March 2001.

14 Second, new facts may come to the attention of the Prosecutor that

15 she did not know and had no reason to know at the time the defendant was

16 indicted with the previous indictment. By reading and comparing previous

17 two indictments and the second amended indictment, it is obvious that it

18 is not the case as well.

19 And the third legitimate reason for the Prosecution to amend the

20 indictment is the case when the Prosecutor may want to add detail to the

21 factual allegations in the indictment. Since the Rules do not require the

22 initial indictment to contain sufficient factual detail, any such addition

23 by the Prosecution would assist the Defence in preparation of its case

24 before trial. Thus, if all the Prosecution wants to do is add detail to

25 the indictment and not introduce new charges, the defendant in the present

Page 1368

1 case would offer no objections to such an amendment.

2 Unfortunately, here we have the opposite case. We have added

3 charges without any additional factual details except for point five in

4 paragraph 17 of the second amended indictment, which is an additional

5 burden for the accused.

6 For us, it is not acceptable that the Prosecutor may amended the

7 indictment after the Defence team has used much or most of its limited

8 resources preparing to defend an entirely different theory of the case.

9 The Prosecutor, by the last amendment, introduced a new theory in this

10 case. She introduced the theory of joint criminal enterprise. The

11 Prosecutor may threaten to amend the indictment simply to keep the Defence

12 team in a continual state of uncertainty as to future charges, facts, and

13 abrupt changes in the nature of the Prosecutor's theory of the case.

14 The Tribunal has to provide procedural safeguards by protecting

15 the rights of the accused. For the Defence, it is not acceptable that the

16 Prosecutor can change the indictment at will or as pleased. Our stand is

17 that in this case, there is no legitimate reason for the amendment of the

18 first amended indictment.

19 That's roughly what we think and what's our stand about this

20 proposed amendment.

21 JUDGE RODRIGUES: [Interpretation] Very well, Mr. Lukic. Thank you

22 very much. I will now give the floor once again to the Prosecutor to hear

23 their reply, if they have any, to the response of the Defence.

24 MS. SOMERS: Thank you, Your Honour. I will handle the issue of

25 5(i), the request that the inhumane acts be added to the already

Page 1369

1 deportation facts that are there. And that again is virtually no

2 prejudice to anyone. It simply indicates that the state of the law now

3 suggests that where there is a national or an internal border, it should

4 or may be inhumane facts, and where it is a national boundary, it would be

5 deportation. The state of the law prior to this time was not clear. This

6 Chamber has cleared this up in Krstic.

7 Again, we are at such an early point in proceedings that again

8 prejudice is not an issue. Joint criminal enterprise was indeed charged

9 in the first amended indictment. It would have been paragraph 55. The --

10 what is recast is the alternate theory, but there is indeed a joint

11 criminal enterprise charge in 55. It was the language - and I shall turn

12 this over to my colleague Mr. Bergsmo - but it was the language from

13 Krstic that gave us the guidance as to how better to formulate it. And if

14 I may ask -- with the Chamber's permission, ask Mr. Bergsmo to pick up on

15 this point, I shall do it.

16 MR. BERGSMO: Your Honours, as my learned colleague stated, there

17 is no change in the mode or form of liabilities that are pled in the

18 indictment. The joint criminal enterprise mode of liability under

19 Article 7(1) was pled in the amended indictment in paragraph 55, is now

20 pled again in paragraph 56, and we have provided greater specificity also

21 for the benefit of the Defence in the way that we have spelled out the

22 different aspects of this mode of liability.

23 The only charge with regard to this mode of liability pertains to

24 the crime of genocide, where in the amended indictment we pled that

25 genocide did not fall within the common criminal purpose but was only a

Page 1370

1 natural and foreseeable consequence of the execution of common criminal

2 purpose.

3 The Krstic judgement provides expressly, first of all, that

4 genocide can fall within a common criminal purpose; and secondly, and

5 maybe more importantly to this case, it provides that the object or the

6 nature of the common criminal purpose need not be one and the same from

7 the outset of the existence of the joint criminal enterprise. It can

8 change at one stage. And indeed, paragraph 633 of the Krstic judgement

9 provides that the object can escalate to include genocide at one stage.

10 With this clarification of the state of the law, the Prosecution

11 is of the view that the facts of this case fall within the scope of what

12 can be a part of common criminal purpose as determined in the Krstic

13 case. In other words, we have changed our principal pleading with regard

14 to genocide and the joint criminal enterprise to include genocide within

15 the common criminal purpose, and we have added an alternative pleading

16 which says that if the Trial Chamber were not to find that genocide and

17 complicity in genocide fell within the common criminal purpose, then it

18 was a natural and foreseeable consequence. That, Your Honours will

19 recall, was the sole pleading with regard to genocide under the old

20 paragraph 55.

21 We are not only of the view in the Prosecution that this provides

22 an opportunity to shape our pleadings better, in accordance with the facts

23 of this case, but the Prosecution also submits that this amendment would

24 give full effect to the Krstic judgement, which the Prosecution would

25 argue is important.

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Page 1372

1 The Prosecution would also like to point out again that by using

2 the escalation language, we have narrowed the temporal frame of the

3 genocide and complicity in genocide charges in the case to apply only from

4 about the 22nd of May in 1992 until the end of September.

5 Thank you.

6 JUDGE RODRIGUES: [Interpretation] Thank you very much.

7 I don't know if there are certain new elements that we have just

8 heard that you need to address, Mr. Lukic. If yes, I will give you the

9 floor. If no -- no? Do I read your body language correctly?

10 MR. LUKIC: Nothing new, Your Honour. Thank you.

11 JUDGE RODRIGUES: [Interpretation] Good. I will now give the floor

12 to my colleagues for questions, if any.

13 Judge Wald?

14 JUDGE WALD: Mr. Lukic, I wonder, in light of the discussion we've

15 just heard, whether or not you could tell us whether you consider there to

16 be any new area that you would have to explore for new facts as a result

17 of the proposed amendments, or would it be related to your -- primarily to

18 new legal arguments that you would have to explore and answer?

19 MR. LUKIC: Your Honours, as you know, we recently received this

20 amendment, and I think that we have to go both ways. The new theory opens

21 the whole new field for us to check: What is foreseeable consequence? We

22 have to engage experts. We have to talk with -- maybe with the same

23 witnesses again, to clarify some questions. And, of course, it is the

24 second consideration regarding the legal ground on which to defend the

25 defendant based on this amended indictment, the second amended

Page 1373

1 indictment.

2 JUDGE WALD: Unless I misunderstood the Prosecution - and if I did

3 so, I invite them to correct me - I thought that originally, in the

4 original indictment there was a foreseeable question, a question of

5 whether or not the genocide would be foreseeable, but now they've moved

6 that to an alternative under their new genocide escalating theory. But if

7 it was in the original indictment, then questions of foreseeability you

8 would have had to look into anyway, right?

9 MR. LUKIC: I think that first - correct me if I'm wrong - in

10 first amended indictment, we have joint criminal enterprise, but I'm not

11 sure whether we had foreseeable consequence for genocide.

12 JUDGE WALD: Maybe the Prosecution could just for a moment give us

13 his view of that.

14 MR. BERGSMO: Yes, Your Honours. If I may refer learned counsel

15 of the defendant to paragraph 55 of the amended indictment, where the last

16 sentence reads:

17 "The crimes charged in Counts 1-2 in this Amended Indictment fall

18 outside the common criminal purpose referred to above, but were natural

19 and foreseeable consequences of the criminal enterprise."

20 Counts 1 and 2, of course, refer to genocide and complicity in

21 genocide. And as the Prosecution stated earlier, this was our principal

22 pleading on genocide under the joint criminal enterprise mode of liability

23 in the amended indictment. But this very same pleading, which still

24 applies, has now been made an alternative pleading, insofar as our

25 principal pleading is that genocide and complicity in genocide fell within

Page 1374

1 the common criminal purpose from about 22nd of May, 1992. Thank you.

2 JUDGE RODRIGUES: [Interpretation] Very well. Thank you.

3 Ms. Somers, I have a question: Realistically speaking, at the end

4 of the day, I would like to know whether or not Dr. Stakic has to plead

5 again. In other words, if I understand you correctly, we have some new

6 charges of the indictment, although the facts remain the same. However,

7 there has been a certain reorganisation of the pleading and a different

8 legal qualification of the facts. We have a new charge, number 11, and

9 charge number 14. Do I understand correctly your motion or not? And if

10 yes, does the accused have to appear once again and enter a plea on the

11 basis of these new charges?

12 MS. SOMERS: Technically, because there are some changes, and

13 again count 11 has a -- the facts are the same, and it is recast into the

14 additional language of inhumane acts, perhaps technically.

15 Count 14, again, is a count reflecting facts previously charged.

16 If the question of pleadings so as to give rise to new Rule 72

17 issues is the thrust of it, I have no case upon which to base -- any prior

18 case that I can think of that directly speaks to it. If the time frame is

19 the issue with the 30 days, and a concern, therefore, I think that has

20 been to some degree addressed in terms of discussions, agreements of the

21 Chamber.

22 Technically there are new matters. And if there is an agreement

23 by counsel, a record waiver of the need to do so, it would seem that that

24 would to protect the record sufficiently. But I have no guidance from any

25 other case that says when it is this type of change, whether to have new

Page 1375

1 pleadings -- perhaps my learned colleague might know. If I might take a

2 moment and ask.

3 [Prosecution counsel confer]

4 MS. SOMERS: If it turns on whether there is a new charge giving

5 rise to a -- technically an amendment, it would seem that it would be

6 necessary to do so. I think in the Chamber's inherent powers, and

7 particularly if there is some indication by counsel about shortening

8 certain time periods, then perhaps a re-entering of a plea would be best

9 for the Defence and for the record, and then in its inherent powers, the

10 Chamber could direct us for time limits. But I think technically there

11 are new charges.

12 JUDGE RODRIGUES: [Interpretation] Very well. But let me just

13 remind you of the fact that there was an amendment of the indictment in

14 the Krstic case only in order to amend the legal qualification of the

15 facts, and the result was a new appearance, that is, a re-entering of the

16 plea. Because if we are dealing with a new count, that is the case, even

17 if the facts remain the same.

18 In the Martinovic case, we had a similar situation where a clause

19 needed to be inserted, and we decided that a re-entering of the plea is

20 necessary.

21 But be that as it may, having said that, I'm now going to turn to

22 Mr. Lukic and ask him the same question that I asked Ms. Somers, that is:

23 What is your opinion, Mr. Lukic, regarding the consequences of this

24 amendment which has been sought by the Prosecutor? If indeed we have new

25 counts - namely, count number 11 and count number 14 - should there be a

Page 1376

1 new appearance? And secondly: How do you view the situation concerning

2 the time limits, that is, the time limit of 30 days in order to submit

3 preliminary motions?

4 And allow me to add the following, Mr. Lukic: If the facts remain

5 the same, we are dealing with new legal qualifications, and preliminary

6 motions will only perhaps address this new legal qualifications. But I

7 would like to hear your opinion on these new issues.

8 MR. LUKIC: Concerning the first question, we think that the

9 accused should enter plea again, because obviously we have two new counts,

10 and we think that we can shorten that one-month period up to 45 minutes,

11 as we did the last time. If you give us 45 minutes, I consult with my

12 client, and he would be ready to plea, because we have already discussed

13 these questions in case that the amendment would be approved. So I think

14 that that answers the second question as well.

15 And concerning preliminary motions, I spoke today with Ms. Susan

16 Somers, and we agreed that the complete deadline extends only for 15

17 days. So we need additional 15 days. And that motion should include the

18 objections from the first amended indictment as well, not to file two

19 motions separately.

20 So we are ready to enter a plea today, and we ask that the Trial

21 Chamber not for an additional month, but only 15 days.

22 JUDGE RODRIGUES: [Interpretation] Thank you very much, Mr. Lukic.

23 What we're going to do now is to take a break to accord you sufficient

24 time for you to be able to consult your client, Dr. Stakic, to speak with

25 him, and we shall reconvene with a decision with respect to the motion put

Page 1377

1 forward by the Prosecution.

2 If the Chamber decides to grant the motion by the Prosecutor, we

3 shall then go on to hearing whether Dr. Stakic pleads guilty or not guilty

4 to the new counts, count 11 and count 14. And we can also have a short

5 Status Conference to see how we stand, how matters are proceeding under

6 these new circumstances.

7 We shall now adjourn for 45 minutes, after which we shall

8 reconvene. Thank you.

9 --- Recess taken at 3.05 p.m.

10 --- On resuming at 3.55 p.m.

11 JUDGE RODRIGUES: [Interpretation] The Chamber hereby renders its

12 decision.

13 The Prosecutor filed a motion on the 31st of August, 2001 seeking

14 leave from the Chamber to amend the indictment already amended for the

15 first time on the 2nd of August. The purpose of the present application

16 is to incorporate the recent jurisprudence from the Krstic judgement and

17 to add counts 11, inhumane acts, forcible transfer, as a crime against

18 humanity; and 14, plunder of public or private property, as a violation of

19 the laws or customs of war.

20 The amendments sought by the Prosecutor also concern certain

21 clarifications and corrections of dates and style.

22 The Chamber rejects the argument which has been put forward by the

23 Defence during the hearing, alleging that the Prosecutor wishes by the

24 present application to introduce a new theory of liability of the accused,

25 which requires additional research and preparation on the part of the

Page 1378

1 Defence of the accused. This theory was already contained in the previous

2 indictment. Therefore, there is no obstacle for the Chamber to allow the

3 amendments that have been sought by the Prosecutor. The leave is granted

4 in accordance with Article 50 of the Rules of Procedure and Evidence.

5 The Chamber therefore hereby grants the motion submitted by the

6 Prosecutor.

7 The Chamber wishes to note that the Defence has accepted to file

8 its preliminary motions, if any, within 15 days.

9 --- Whereupon the Motion Hearing adjourned

10 at 4.00 p.m.
















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