Tribunal Criminal Tribunal for the Former Yugoslavia

Page 15117

1 Monday, 14 April 2003

2 [Defence Closing Statement]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 9.36 a.m.

6 JUDGE SCHOMBURG: Good morning. Please be seated.

7 May we please hear the case.

8 THE REGISTRAR: Good morning. This is case number IT-97-24-T, the

9 Prosecutor versus Milomir Stakic.

10 JUDGE SCHOMBURG: Thank you.

11 And the appearances, please, for the Prosecution.

12 MR. KOUMJIAN: Good morning, Your Honours. Nicholas Koumjian, Ann

13 Sutherland, and Ruth Karper.

14 JUDGE SCHOMBURG: Thank you. And for the Defence.

15 MR. LUKIC: Good morning, Your Honours. Branko Lukic and John

16 Ostojic for the Defence.

17 JUDGE SCHOMBURG: Before we start, some remarks. First, it is to

18 indicate that I learned from the Registry that the parties and the Bench

19 will be provided with CD-ROMs where we have in one compilation all the

20 transcripts and, including the closing arguments of the parties available

21 as soon as possible and as soon as practicable. I think it would be a

22 good idea if all the parties could indicate to the Registry how many

23 copies you would need for your preparation.

24 I don't know what will be the time necessary for the closing

25 arguments to be given by the Defence. They have the time they need, no

Page 15118

1 doubt. But I regard it in the moment as premature already to decide now

2 whether or not it will be necessary to have rebuttal, rejoinder, questions

3 by the Judges, and so on, tomorrow.

4 One other more substantial point has to be addressed, and this is

5 the following: The parties are aware that somewhere in July last year we

6 discussed at that time based on the evidence available at that time a

7 maybe outcome of the case on a consensual basis. Later on we handed down

8 a 98 bis decision with a clear distinction between that -- what at that

9 time the Judges thought would be the assessment of the evidence by the, at

10 that time, working Judges and the possibility for a reasonable trial of

11 fact. We make this clear distinction, and we uphold this clear

12 distinction, also when the composition of the Bench was changed later on.

13 However, it has to be made quite clear, especially under the evidence we

14 heard during the last months, and primarily under the closing -- under the

15 impression of the closing arguments given by the Prosecution that as it

16 was indicated in our decision on 98 bis, of course everything is possible

17 between, say, acquittal and that what is foreseen under the Rules and what

18 was requested by the Prosecution. So therefore, in order not to leave

19 open any misguidance for the Defence, the Defence should know that these

20 possibilities still exist and a lot has changed since July last year and

21 the 31st of October, 2002. I only wanted from a point of fairness to

22 recall this before I give now the floor to the Defence for the closing

23 arguments by the Defence, to hear also the other side. Thank you.

24 MR. OSTOJIC: Good morning. May it please the Court. My learned

25 colleagues from the OTP, Mr. Lukic, Dr. Stakic, good morning.

Page 15119

1 Initially, I would like to express our thanks and appreciation to

2 the Court, its staff, the Registry, the people who are involved in the

3 entire process, including the court reporters, the translators, the

4 personnel at the Victim and Witness Unit protection department, all of

5 whom are vital components to securing that a trial be conducted in a

6 professional and efficient manner. On behalf of Dr. Stakic and the entire

7 Defence team, we thank you.

8 I would like initially to make some preliminary remarks before I

9 highlight some of the evidence and comments by the OTP made last Friday.

10 This is indeed a difficult and complex case. It is difficult because in

11 our view the OTP has exaggerated and distorted the facts in order to

12 fulfil their mandate. It is complex because it is based entirely on

13 circumstantial evidence, circumstantial evidence that in our view is based

14 upon hearsay, speculation, innuendo, and conjecture.

15 You will never hear the OTP state publicly or privately that they

16 are satisfied with an acquittal or with a conviction which had a minor

17 sentence so long as there was a fair trial. Instead, the OTP persists

18 publicly and privately to obtain the only mandate that they care about,

19 and that is conviction ratios. The goal of a conviction at any cost is

20 plainly evident in this case and that the OTP has decided that that goal

21 supersedes what this Court's mandate is and what the Defence professional

22 obligations are, and that is to provide truth and bring forth the truth to

23 the Tribunal. We can see what their mandate is by virtue of the fact

24 witnesses that they have called, by virtue of their selection of their

25 in-house experts, as well as by virtue of their tireless efforts in

Page 15120

1 persisting to shift the burden of proof and raise irrelevant, untrue, and

2 baseless issues only to reach their goals.

3 The OTP fact witnesses in general, with few exceptions, were

4 diligent in recalling extraordinary precise details, some of which at

5 times were inconsistent with their prior statements, some of which were

6 plainly wrong, based upon facts that we learned, some were based on

7 hearsay testimony, and some were based on testimony and recollection which

8 can only be classified as conjecture. Needless to say, after ten years,

9 after the tragic events that occurred in Prijedor in the spring and summer

10 of 1992, for those six to eight weeks, it is indeed normal, reasonable,

11 and expected not to recall every detail precisely and accurately. What

12 perhaps is most interesting and rather significant, that these fact

13 witnesses offered by the Office of the Prosecution, when asked by the

14 Court to recollect their relationships or opinions that they may have had

15 with Dr. Stakic, remembered and unequivocally were positive, honest, and

16 forthright. However, what is not surprising, at least to us, but is most

17 certainly professionally troubling and disturbing is that the OTP never

18 asked questions of their own witnesses about Dr. Stakic. We are forever

19 grateful to the Court for asking witnesses called by the OTP about

20 Dr. Stakic's personality, character, and reputation.

21 In our view, the OTP had the obligation and power to put forth the

22 truth and an obligation to put forth evidence so that there be a fair

23 trial on the merits. We believe they failed in that. The OTP in their

24 oral presentation strains to claim with a straight face that this is not a

25 case against the Serbs of Prijedor, that this is not a case against the

Page 15121

1 Serbs of Bosnia and Herzegovina, and that it is not a case against the

2 Serbs of Republika Srpska. I ask myself, as we all should, how many

3 witnesses of Serbian ethnicity did the OTP call? How many of those heroes

4 that the Office of the Prosecution now says exist who are Serbs, how many

5 did they call? How many military men who were honourable and noble in

6 following the rules of combat and rules of engagement did the OTP call?

7 None. There must be a reason if we're going to offer to a Tribunal and a

8 Court a fair and balanced view of all the facts, one would think that they

9 would offer those witnesses, if not live, perhaps through other mechanisms

10 as provided by the rules.

11 Our position was not that Dr. Stakic was a hero. Our position is

12 that Dr. Stakic is innocent. Our position is most certainly from all the

13 evidence that we have heard that the Office of the Prosecution has failed

14 to meet something they don't want to discuss, something never mentioned in

15 their closing argument, that they failed to meet the burden of proof.

16 They don't want to discuss the burden of proof not because they feel it's

17 irrelevant but because they know when they take the evidence and apply it

18 to the law and apply it to the standard required, that they will come up

19 extraordinarily short. Based upon all the evidence, including the fact

20 witnesses offered by the Office of the Prosecution, an acquittal is

21 warranted in this case.

22 Not once was there a discussion by the Office of the Prosecution

23 of what weight, if any, we should give certain documents, what weight, if

24 any, we should give to certain testimony from witnesses, what weight we

25 should give to both documents and testimony when they're inconsistent or

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Page 15123

1 compatible. Not once does the OTP in an honest and refreshing manner

2 discuss the evidence that they produced that exonerates Dr. Stakic.

3 Instead, they strike at our emotions and recall the tragic, undisputed

4 horrific killings by criminal, barbaric and insane individuals that

5 occurred in Prijedor. Not once did we hear from the Office of the

6 Prosecution a discussion of the law and its application to the facts. Not

7 once do we hear from the Office of the Prosecution the law as cited in the

8 OTP versus Krnojelac case at paragraph 83, "Without direct evidence, a

9 Chamber may not infer the existence of criminal mens rea unless the

10 inference being drawn is the only reasonable inference that may be drawn

11 from such facts."

12 Not once did we hear the Office of the Prosecution take their

13 theory that there was an intent to destroy Croats and particularly Muslims

14 and apply it to see if that inference is the only reasonable inference

15 that can be drawn. Not once, in our view, are they genuine in their

16 application and interpretation of the facts as they were presented. We

17 cannot and we should not, despite the OTP's desire, ignore all the fact

18 witnesses called by both the OTP and the Defence. Those witnesses

19 addressed Dr. Stakic's mental state, his attitude, his opinions, his

20 views, and his mens rea, his intent prior to, during, and after the period

21 of the fourth amended indictment, or as I prefer to call it, the fourth

22 amended complaint, because quite frankly the difference between the two

23 are well recognised and accepted in the law, but what we heard on Friday

24 was just a reiteration of complaints of an opening statement of the Rule

25 98 bis discussion without an honest application of the law, of the burden,

Page 15124

1 and of the facts in their totality.

2 We are grateful to be have given an opportunity to present some

3 evidence and to present our case before this Tribunal. We are not

4 surprised that at the end of their case the OTP has abandoned their

5 military and demographic experts and now merely rely on speculative,

6 inconclusive theory linking the police to Dr. Stakic.

7 Why did not the OTP with its unlimited resources ever wish to call

8 a police expert in order to establish the truth as to whether local

9 civilian political leaders such as Dr. Stakic have any control or

10 authority or influence over the police? Why didn't the OTP give the

11 police rules, regulations, and laws to their military expert so we can

12 establish the truth and determine what, if any, authority or influence a

13 civilian political leader such as Dr. Stakic may have over the police? I

14 apologise, it may be a silly question. The answer, I believe, is rather

15 obvious. The OTP did not give their military expert, Dr. Brown, the

16 military rules, regulations, and laws. Why would they ever think about

17 giving Dr. Brown the police rules, regulations, and laws? What is the

18 inference that when you call a military expert to talk about purported

19 links between the military and the civilian authorities and when you claim

20 or complain in an indictment that there is a link between the military and

21 the civilian authority that you don't even give the military expert the

22 rules and regulations governing that body? Yet they complain under

23 Article 7(3) and under the theory de jure and/or de facto that there is

24 culpability by Dr. Stakic.

25 Did they really not give Mr. Brown those rules and regulations?

Page 15125

1 Did Mr. Brown really not understand what the rules and regulations were?

2 If we recall his testimony, he stated on several occasions, "My remit."

3 His remit, his job, his task as given to him, as he so tells us, by

4 Ms. Joanna Korner of the OTP, was to look at the facts in a very narrow

5 and in a very prejudicial manner in order to attempt to weave facts to

6 support their complaint and indictment. And that's what Mr. Brown did.

7 He had no choice but to do that by virtue of his employment.

8 Mr. Koumjian seems to think that because you're on someone's

9 payroll you must do anything and everything that they so direct when he

10 questioned some of our witnesses and asked about payments to certain

11 employees or to certain offices. Why can't we use their logic and reject

12 their experts by virtue of the fact that they are prejudiced and not --

13 and did not give an objective summary or analysis of the facts for this

14 Tribunal? Because that would be unfair, according to the OTP. It's

15 unfair to use their arguments to apply to us, the Defence. It would be

16 unfair to them for the Defence to be able to utilise documents that in one

17 way or another would reveal the truth or raise a reasonable doubt on the

18 issues and merits of this case.

19 I strongly believe that the OTP had not only unlimited resources

20 to call police experts but the inference is that they chose not to. One

21 can counter that statement by saying, "We don't have police experts at our

22 disposal," or perhaps one can strengthen our position to say if you will

23 argue that there is a link between the police and Mr. Drljaca and

24 Dr. Stakic and that your whole theory of the case is now changed, that in

25 fact it is the relationship between the police and Dr. Stakic that is most

Page 15126

1 important. Our argument is strengthened, I believe, if we can establish

2 and show to the Court that the Prosecution had at their disposal police

3 experts. We heard from two. Mr. Inayat and Mr. O'Donnell, they told us -

4 we have to believe them on this - that they're very well experienced and

5 enormously trained and were former police officers. In fact, they offered

6 testimony on many, many facets of this case, including chain of custody,

7 as well as the documentation that was procured once by court order, and on

8 another occasion by the OTP without an order.

9 Is it not important to have an expert in this case? Is it not

10 important to have someone review the police protocol, rules, regulations,

11 and laws? It's not important if you wish to distort the evidence. It is

12 not important if you wish the truth not to be known. It is not important

13 if you desire that there be no question about whether there is reasonable

14 doubt. When viewing this case and accepting the OTP's theory that the

15 police was linked to Dr. Stakic and therefore he is responsible for all

16 the crimes committed by the police and its staff, one cannot escape or

17 ignore those questions or those issues. To do so would, in my view, be a

18 travesty. The only reasonable inference, as directed by the law, that may

19 be drawn from the fact that the OTP refused to call a police expert,

20 refused to produce documents relating to rules, regulations, and protocol

21 of the police, despite the fact that they did a search and seizure, had a

22 warrant, obtained all the documents from the police department, the only

23 reasonable inference should favour the accused, Dr. Stakic. He does not

24 have the burden of proof, despite the tireless efforts to shift that

25 burden.

Page 15127

1 I believe, from the limited fact witnesses that the Defence

2 called, who discussed the issues of the police, that this Court can in

3 fact decide the issue that there was absolutely no link, absolutely no

4 power or authority to order or influence the police by Dr. Stakic or any

5 of the civilian authorities. Quite honestly, the real reason the OTP did

6 not call a police expert and the inference that should be drawn is because

7 there is no expert anywhere, even those employed by the Office of the

8 Prosecution, who can under oath honestly tell this Tribunal that what the

9 Office of the Prosecution states in its indictment, argues in its oral

10 presentation, is even remotely true. We know that if any such expert or

11 witness existed, the OTP would have found them and he would have

12 testified. No police expert would ever validate or accept the baseless

13 and distorted allegations that are set forth in this indictment, in their

14 theory against Dr. Stakic relating to the police.

15 We ask ourselves: Where is the evidence or the rationale that the

16 OTP claims exists that Dr. Stakic was the superior to Mr. Simo Drljaca?

17 In fact, the evidence is rather uniform and establishes that Mr. Simo

18 Drljaca was a subordinate to no one in Prijedor. Why ignore the fact

19 witnesses who describe Mr. Drljaca's character, reputation, and

20 personality? Was that an omission by the OTP in their closing argument?

21 Should we not before this Tribunal take the evidence that perhaps is

22 claimed to be difficult and complex and attempt to show the Tribunal how

23 it favours one side or another? Why did the OTP ignore the fact witnesses

24 who described Mr. Drljaca's character, reputation, and personality?

25 Because to reach their theory and their conclusion that Mr. Drljaca was a

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Page 15129

1 subordinate to Dr. Stakic, you must ignore that evidence. But thankfully

2 we know that you cannot, and the burden of proof on every issue in this

3 case continues to stand with the Office of the Prosecution.

4 Why ignore former police officers who testified and who knew

5 Mr. Drljaca and who unequivocally said that civilian authorities had

6 absolutely no power to direct, control, instruct, or order the police,

7 much less the chief of police, Mr. Drljaca? Why ignore the facts that

8 witnesses have said that Mr. Drljaca does not and would not be influenced

9 by anyone, much less civilians, much less politicians during the spring

10 and summer of 1992? The evidence is rather uniform and it establishes

11 beyond a reasonable doubt that Mr. Drljaca was subordinate to no one in

12 Prijedor.

13 The OTP asked many questions on Friday, some rhetorical, some

14 sarcastic, some offensive, quite frankly. They ask a question that they

15 were surprised that Dr. Stakic's witnesses, that no one came forth to say

16 that Dr. Stakic helped individuals in one manner or another. What they

17 don't share with the Court is what their policy is. I'm sure we'll hear

18 from them. In every case before this Tribunal, in every trial that has

19 occurred thus far - and I can say with great confidence that will occur in

20 the future - when a defendant brings forth witnesses to show either

21 mitigation or to negate elements such as mens rea, by showing positive

22 acts or conduct, the Office of the Prosecution has its strategy all

23 prepared, well thought out. They don't accept that view and they don't

24 say, "Now, this actually hurts our case. It may touch upon our burden of

25 proof." Instead, they take the consistent position that they have to

Page 15130

1 suggest if that defendant was able to assist Witness X, Y, or Z, then he

2 must have had power and he must have been able to help others but chose

3 not to.

4 The real reason, Mr. Koumjian, the Defence couldn't bring

5 witnesses to show that Dr. Stakic did something helpful or helped people

6 during the spring and summer of 1992 is right in front of you, and that is

7 that he had no power. He had no authority. And he was indeed unable to

8 help anyone, even himself.

9 The OTP claims that the Defence wants to "rewrite history." I

10 found it offensive. I found it to be a shameful comment. But perhaps

11 there is a misunderstanding. Perhaps they truly believe that portraying

12 reality would be rewriting their distorted history, for all the Defence

13 would like to do is to portray reality, show the Court what really

14 happened, when did it really happen, why did it really happen. We would

15 like to portray reality so that the facts in this case can be placed in

16 their proper and honest context.

17 What really happened? How did it really happen? Why did it

18 really happen? These were questions that were never pursued by the

19 Prosecution investigators in any of the statements that they took from the

20 witnesses that they brought forth. Never do they discuss the complete

21 economic and social deterioration due to the cries of secession. Never do

22 they discuss the deterioration of lawfulness and why it occurred

23 throughout Bosnia and Herzegovina in 1991 and 1992. Never do they discuss

24 chaos and why the military in their daily military reports uses that word

25 often and regularly. What's interesting is when they had their military

Page 15131

1 expert, Mr. Brown, testify, the Court will recall towards the close of the

2 direct examination the Defence were offered 92 or 94 military daily

3 reports under Rule 68 exculpatory. Yes, it was late. Yes, we accepted

4 their apology that it was a mistake and an interoffice issue or problem.

5 But what I find most disturbing is that the military expert did not review

6 what the Prosecution itself calls exculpatory under Rule 68. The military

7 expert had no interest in those documents because his "remit" was to find

8 a link and to find what he calls under military standards coordination

9 between the police and the military. How objective, how thorough was the

10 analysis by their experts?

11 We know, and much to my surprise, that the Prosecution experts are

12 at times given second and third chances to testify. We saw it with

13 Ms. Tabeau, or Dr. Tabeau, the demographer. She came back after being

14 unable to fulfil questions or answer questions. We also know that the

15 exhumation witness, Mr. Nicholas Sebire was given a second opportunity

16 after he failed to share with us what we consider to be fundamental issues

17 as to who was involved in the exhumations, how many exhumations did the

18 Federation do versus the OTP alone, how many exhumations did the OTP do

19 with the Federation? He couldn't answer basic background questions, yet

20 this Court in all its wisdom gave him a second chance to testify, and he

21 in fact did.

22 The military expert, in our view, as a professional that he claims

23 he is should have on his own requested and required that he review those

24 92 or so military daily reports, and he himself through the Office of the

25 Prosecution should have applied that a supplemental report be given so

Page 15132

1 that his report would truly be considered and the weight be given to it

2 that is just. Instead, they sat silent. If the Court asked the military

3 expert or ordered him to review those documents, I truly wonder what his

4 results and opinions would be.

5 The Court was kind enough to give us an opportunity and generous

6 enough to admit those documents into evidence. I invite the Court to

7 review all the military reports, as I'm confident that you will, and to

8 see how the military describes the situation in Prijedor and in Bosnia and

9 Herzegovina when they talk about lawlessness, chaos, and disorder, when

10 they talk about the inefficiency of the civilian authorities, when they

11 discuss that extremists, both from the Muslim, as well as the Serb ethnic

12 side, are looting, committing crimes, burning homes, threatening people.

13 Of course Mr. Brown doesn't want to include that in his report. It

14 doesn't fit their mandate. It doesn't fit their theory of the case.

15 The military reports also reveal the relationship between the

16 police and the structures between the two organisations. The military

17 reports also reveal when police activity was illegal and what was done to

18 try to prevent or punish those individuals. Of course, according to the

19 Office of the Prosecution, those things are not relevant when it comes to

20 having their expert review and analyse and render an opinion on those

21 topics. They only become relevant when they can argue it from baseless

22 and unsubstantiated innuendo and speculation.

23 Never do any of their experts discuss the Serb refugees. Never do

24 any of their experts discuss what effect would people from another town,

25 the influx of those individuals, what role do they play in society or in

Page 15133

1 Prijedor in 1992? It's simply irrelevant. The military reports give us

2 an insight into some of the problems associated with a mass influx of

3 people into a town or a community.

4 Never do we hear from the Office of the Prosecution that the

5 horrific and tragic incidents and killings that occurred in Prijedor in

6 the spring and summer of 1992 were caused by drunken soldiers. We heard

7 testimony about that. Isn't it their burden of proof? Isn't it their

8 duty to reconcile some of those issues? Isn't it their duty to address

9 the issues found in the evidence, both the oral testimony and the military

10 reports, when it's cited that there was vendetta, revenge, pure criminal

11 behaviour that was the result of some of these tragic events? Shouldn't

12 they address those issues at some point, at the very least in their oral

13 presentation? They don't because it does not fit their mandate, it does

14 not fit their theory of the case. They would rather sweep and argue with

15 a broad brush than to get to the detail of the truth.

16 Lawlessness prevailed not because of Dr. Stakic. Lawlessness

17 prevailed in spite of Dr. Stakic and what he said and what his stood for.

18 We must follow the general principle outlined in the decisional authority

19 of this Tribunal. Without direct evidence, we may not infer the existence

20 of a criminal mens rea unless the inference being drawn is the only

21 reasonable inference that may be drawn from such facts.

22 Was the Prosecution truly that compelling to say - although, I'm

23 sure they stipulate and will agree - that this is a circumstantial case?

24 So when we look at inference, the evidence that we have, is it the only

25 reasonable inference? Is the inference they're trying to draw reasonable

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Page 15135

1 on both when you apply the facts and when you take an objective view of

2 the evidence? The answer will be no. Therefore, the Office of the

3 Prosecution does not and cannot sustain their plea and complaint of a

4 conviction against Dr. Stakic.

5 Well, perhaps it's time to examine the facts or their facts, so

6 I'll move away from some of my preliminary comments and address some of

7 the facts that the OTP claim reveal that Dr. Stakic had the criminal

8 intent, was associated with this criminal element, and committed by virtue

9 of his association these crimes that they set forth in their complaint --

10 I mean, indictment.

11 The OTP would like to Court to believe that there was a plan, a

12 criminal plan, a joint criminal enterprise as early as 1991, wherein the

13 Serbs, and specifically Dr. Stakic, desired, wished, and intended to -

14 it's found on page 10 of their oral presentation last week - that

15 Dr. Stakic intended, wished, and desired "to destroy and change forever

16 the demographics of Prijedor." A criminal plan, they claim, whose

17 objective was to forever change the composition of Prijedor and whose

18 direct and sole purpose of this joint criminal enterprise was to,

19 "Intended to destroy the Croats and particularly the Muslim communities

20 that have become the majority of persons in Prijedor."

21 Let's examine the evidence that they so preciously rely on. Let's

22 examine the evidence to see if there's any truth or at the very least

23 reasonable doubt to their theory and allegation.

24 With the Court's permission, we would like to review Exhibit

25 94A -- S94A, please. Oh, it's not hooked up.

Page 15136

1 We have asked the technicians, Your Honour, to assist us with a

2 cable, but I think we may need a break at this point so that we could

3 coordinate and have the technicians place these exhibits on the screen, as

4 the Office of the Prosecution has done.

5 JUDGE SCHOMBURG: The trial stays adjourned until quarter to

6 11.00.

7 --- Recess taken at 10.26 a.m.

8 --- On resuming at 10.51 a.m.

9 JUDGE SCHOMBURG: Please be seated.

10 And please continue with your presentation.

11 MR. OSTOJIC: Thank you, Your Honours.

12 As I was saying before the break, the OTP would like to Court to

13 believe there was a plan, a criminal plan, a joint criminal enterprise, as

14 early as 1991. We can view their evidence two ways: One, we can view it

15 to determine what the truth was at the given time; and two, we can view it

16 to determine whether it creates a substantial doubt against the theory and

17 the burden of proof that they've alleged before this Court.

18 When viewing these exhibits, I think the Court will find both

19 answers in favour of Dr. Stakic. The evidence when we view it will show

20 that there is a significant reasonable and logical inference that

21 Dr. Stakic did not possess the criminal mens rea, that Dr. Stakic did not

22 have any knowledge, that Dr. Stakic did not substantially contribute, and

23 that Dr. Stakic indeed did not have any effective control over any of the

24 criminal acts and conduct that tragically occurred in Prijedor.

25 The joint criminal enterprise purports to have existed in 1991 by

Page 15137

1 the Office of the Prosecution. They say that plan and objective, its sole

2 purpose was "intended to destroy the Croats and particularly the Muslim

3 communities that have become the majority of persons in Prijedor." In

4 1991? Should we be suspect of their theory and their allegations? Right

5 before the break, we said we were going to review one of their exhibits

6 that they introduced, that they rely upon, and that they once again offer

7 during their closing arguments. But let's look at this exhibit and

8 document with the view of what the law says. Is it the only inference,

9 that which the Prosecution suggests? Is it the only reasonable inference,

10 that which the Prosecution suggests, that in 1991 there was a joint

11 criminal enterprise, a criminal plan, a plan in which Dr. Stakic was

12 imminently involved?

13 I believe before us we have Exhibit S94A. The purpose of this

14 exhibit, I believe, is that the Office of the Prosecution wishes and

15 desires ever so tirelessly to infer that because Dr. Stakic became the

16 vice-president of the SDS on September 11th, 1991, he was purportedly

17 aware of, at that time, of the SDS plan, criminal plan, to separate the

18 nationalities, and being elected as the vice-president of the SDS, he

19 agreed to such a criminal plan and therefore became a member of this joint

20 criminal enterprise.

21 When I reviewed this document, several questions seemed to raise

22 their heads: Would we expect at a Serb-dominated SDS meeting of September

23 11th, 1992 that a prominent Muslim would also be present? No, if it's

24 true what the OTP suggests, that this was the start of the plan and this

25 validates that Dr. Stakic was part of this criminal plan and part of this

Page 15138

1 criminal enterprise. If indeed a prominent Muslim was present, can we

2 infer that he, too, knew of this criminal plan? According to the OTP, no,

3 because we have a double standard. Their same logic, their same theory,

4 would not apply. But when Dr. Stakic is present, all the negative

5 inferences can be drawn. I suggest - and I'm confident the Court knows -

6 we cannot and do not have a double standard.

7 Is it logical and reasonable to infer that if a prominent Muslim

8 was present, no such plan was contemplated or existed, at least as of

9 September 11th, 1992? Isn't truly the only reasonable inference that if

10 there was a mixed session during the September 11th, 1992 election of

11 Dr. Stakic as vice-president of the SDS, that in fact this document is

12 nothing more than an attempt to distort the true facts?

13 Before we actually review the document that the OTP relies on to

14 muddy Dr. Stakic, I have another question: Would we expect to see at this

15 SDS meeting, Serb-dominated, where Dr. Stakic is elected vice-president,

16 where purportedly this plan, criminal plan, joint criminal enterprise

17 commenced, would we expect from the minutes of that meeting to hear and to

18 see a discussion on the concept of unity a criminal plan, yet a discussion

19 on the concept of unity? Would we expect -- would we expect to see at

20 this Serb-dominated SDS meeting where Dr. Stakic was elected

21 vice-president on September 11th, 1992 that there was a discussion, a

22 speech, about life together is the only possible solution? How can we

23 have those types of comments and discussions at a meeting which according

24 to the OTP was the commencement of a joint criminal enterprise, a criminal

25 plan, something that Dr. Stakic purportedly participated in? Isn't the

Page 15139

1 only reasonable inference, if we view this document, that Dr. Stakic

2 acquiesced to that theme, to the theme of unity, to the theme that life

3 together is the only possible solution? Only with a vivid imagination and

4 a distortion of the facts can we view Exhibit 94 to suggest that somehow

5 at that time there was a plan, a criminal plan, a joint criminal

6 enterprise.

7 But let us clearly and honestly and objectively view Exhibit 94A

8 and really see what the truth is. Was there a criminal plan? Was a

9 prominent Muslim present? Was there a speech on unity? Was there a

10 speech that had the overriding theme that life together is the only

11 possible solution? I think we can find on that which is the last page of

12 those minutes, which is before us on the screen -- but just so that the

13 record is clear, it has ERN number 00916407, I believe on it -- that page

14 4 states, and I quote, "Professor Muhamed Cehajic, President of the

15 Municipal Assembly, also wished to speak. He noted with pleasure the fine

16 organisation of the Assembly session and the very well chosen

17 entertainment. As he said, he wanted to speak because he was very pleased

18 with Mr. Nesovic's address, which was all devoted to the concept of unity.

19 The overriding theme of the speech was that life together is the

20 only possible solution."

21 What's interesting is that the Office of the Prosecution in their

22 view deems this document to suggest something negative. Shouldn't we

23 apply the law, the law that there is a presumption of innocence to the

24 accused, the law which unequivocally says if an inference or presumption

25 should be made, we should favour the presumption of innocence? This

Page 15140












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Page 15141

1 document, without the presumption of innocence, clearly, only, and

2 reasonably infers that Dr. Stakic did not and was not a participant in a

3 plan, a criminal plan, or any such purported joint criminal enterprise.

4 But the OTP doesn't care what the documents tell us. They only use that

5 which is beneficial to their theory and their complaint.

6 The Office of the Prosecution says the Serbs and every ethnic

7 group have a right to secession, the Serbs and every ethnic group have a

8 right to self-determination. The Serbs is not what this case is about.

9 But when you view this document, you must ask yourself: Are they saying

10 Dr. Stakic was a bad and evil man because he became vice-president of the

11 SDS? Was Dr. Stakic evil because he participated in an assembly which

12 spoke of unity and life together as the only possible solution? Shouldn't

13 that be the only reasonable and logical inference we can draw from the

14 exhibit that they use in their closing argument and in their case in

15 chief? Why didn't they address this and call it a non sequitur if they

16 truly believe it has no relevance?

17 This document, September 1991, can only reasonably infer that

18 Dr. Stakic agreed with the speech of unity and the speech of togetherness

19 between all ethnic citizens of Prijedor.

20 Now, the Office of the Prosecution seems to suggest that

21 Dr. Stakic should have done more. In life, when we reflect, we all should

22 and certainly could do more. That's not the criminal standard. Did

23 Dr. Stakic ever speak of peace? Did Dr. Stakic ever say he is against the

24 war? Did Dr. Stakic ever say that problems should be solved in a peaceful

25 manner? If he said it, I'm sure that the Office of the Prosecution would

Page 15142

1 have grabbed those facts and they would have told us why they were

2 unimportant, or they would have told us why they are of no significance.

3 Instead - and I submit to the Court - Dr. Stakic did, in fact, speak of

4 peace; Dr. Stakic did say he was against the war; Dr. Stakic did say that

5 problems should be resolved in a peaceful manner. The Office of the

6 Prosecution chose to ignore those facts. Instead, they'd like to muddy

7 the waters. They move in their argument after suggesting that it's bad,

8 although not anti-Serb, but it's bad to be a member of the SDS and it's

9 terrible that Dr. Stakic became vice-president of the SDS in September of

10 1991. Despite the facts that we saw, that there was discussions and

11 speeches of unity and life togetherness, we move the film and the story a

12 little closer to the indictment. January 1992, the Office of the

13 Prosecution contends that at that time, January 7th, 1992, the Serbs and

14 Dr. Stakic formed a parallel government, formed a parallel municipal

15 assembly in Prijedor. Is that the joint criminal enterprise? Was that a

16 criminal plan?

17 Would it surprise us that in January 1992 that the formation of

18 this Serb-parallel government was made public, was publicised in the

19 newspaper, in the radio, and was known throughout Prijedor? Does that

20 mean everyone in the town knew of this joint criminal enterprise, of this

21 criminal plan? Did Dr. Stakic at that interview or those interviews

22 offered by the Office of the Prosecution to show a parallel government,

23 did he speak of war? Did he deceive the Serbs? Did he tell the Serbs

24 that the Muslims were going to attack them? Did Dr. Stakic speak of peace

25 or did he speak of destroying Croats, Muslims, and other non-Serbs in

Page 15143

1 Prijedor?

2 Well, let's take an honest look at the evidence and apply it to

3 the law, that circumstantial evidence, that hearsay evidence which the

4 Office of the Prosecution relies on to suggest that there was a plan. 6A,

5 their exhibit, 6A, in our view unequivocally, without doubt, finds and

6 infers that we can conclude Dr. Stakic was not a participant in a

7 purported criminal plan, was not a member of a purported joint criminal

8 enterprise.

9 The exhibit Your Honours are now reviewing is S6A. If I can just

10 have the top again, please.

11 The top obviously shows that it's an article from Kozarski Vjesnik

12 dated the 31st of January, 1992. It's publicised, the fact that the Serbs

13 had a parallel government in January 1992 is publicised. What's the

14 inference of that? That there was a secret criminal plan? If it was made

15 public, does it not mean that all ethnic groups knew of this criminal

16 plan, or is it indeed logical and reasonable to infer and conclude that

17 the formation of this parallel government was not criminal at all?

18 Nevertheless, let's assume for a moment that we are inclined to

19 infer evidence in favour of the Office of the Prosecution, even though

20 that's not the law, which I also submit is not only not the law; it's

21 wrong and it's erroneous, since the law is rather clear, that if more than

22 one reasonable inference may be drawn, the facts should - and we submit

23 must - be made in favour of the accused. The presumption of innocence

24 overrides such dual reasonable inferences.

25 Would you expect in this document that the OTP relies upon to show

Page 15144

1 a joint criminal enterprise, a criminal plan? Would you expect to learn

2 Dr. Stakic spoke publicly about it, that Dr. Stakic when asked on the 31st

3 of January, 1992 about this formation of a new parallel government, when

4 asked, "How is it possible to divide territory, the present municipality

5 of Prijedor, especially the town of Prijedor, and its ethnically mixed

6 villages and hamlets?" Let's look at the answer. And I think and dare

7 say that you'll find Dr. Stakic was optimistic, that the SDS and the SDA

8 could and would work out their problems. Dr. Stakic felt, he was of the

9 mindset -- he was of the mindset as of January 31st, 1992 that if there

10 was a problem with the SDA that could not be resolved, the establishment

11 of a Serb municipality would be done in a peaceful and civilised manner.

12 I think if we turn to the second page, the Court will find that

13 question and that answer in the fifth paragraph, if you count from the

14 bottom of the page, or the second paragraph from the top. Is question is

15 designated with a dot, and the paragraph is designated with a slash.

16 Dr. Stakic, a member of a joint criminal enterprise? Dr. Stakic,

17 participating in a criminal plan? Dr. Stakic, inflaming the Serbs in

18 Prijedor according to the Office of the Prosecution? Here he is at the

19 height of what the Office of the Prosecution calls an ambitious career,

20 recently elected the vice-president of the SDS, now a member of a parallel

21 Serb government in Prijedor. What better opportunity than to tell

22 everyone through the papers what he feels and what he thinks and what his

23 intentions are. It's right before us. Not only in September of 1991 but

24 in January 1992 Dr. Stakic speaks of resolution, negotiation "in a

25 peaceful and civilised manner."

Page 15145

1 We must ask ourselves, since the Office of the Prosecution didn't:

2 That fact, how do we apply it to the law? Is the only reasonable

3 inference that Dr. Stakic possesses the criminal mens rea? Does this fact

4 not unequivocally show that indeed Dr. Stakic was not at any time a member

5 of a joint criminal enterprise and did not possess any criminal intent to

6 any of the citizens in the Prijedor municipality at any time?

7 The journalist asks another question that follows immediately

8 thereafter. The Office of the Prosecution seems to suggest that

9 Dr. Stakic should have done more, he gave negative speeches. We'll

10 address some of those speeches later, where they talk about the jihad and

11 the holy war. But let's talk about these first, which were conveniently

12 omitted from the argument. Does Dr. Stakic talk about the prevention of

13 war? Let's look at his answer on the 31st of January, 1992. He states in

14 the last sentence on the last paragraph of page 2 of Exhibit 6A, "The SDS

15 is aware of the fact and will use all possible arguments and its own

16 reputation to prevent war from ensuing but rather, for problems to be

17 solved in a peaceful manner."

18 Is it really truly the honest position of the Office of the

19 Prosecution that Dr. Stakic was a member of a joint criminal enterprise

20 and possessed a criminal plan as of September and January 1992? What

21 evidence, other than to say that he became a member of the SDS and that

22 the Serbs formed a parallel government in Prijedor, do they have? Does

23 membership in a party allow us to only reasonably infer a criminal plan?

24 Does the formation, the public formation of a parallel government in

25 January 1992 honestly allow us to reasonably infer that it was a criminal

Page 15146












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Page 15147

1 plan?

2 When we look at what Dr. Stakic said and what others said at those

3 two instances, if they spoke of criminal activity, if they spoke of

4 "destroying Croats and particularly Muslims," perhaps and indeed an

5 argument could be made for such a theory, but those aren't the facts. The

6 facts are plain. They're obvious. They are before us, even though the

7 Prosecution ignores them.

8 Can the only reasonable inference be that when they speak of unity

9 and Dr. Stakic is present, when Dr. Stakic speaks of preventing war and

10 working together in a peaceful manner, should not -- not only the

11 inference be but I think it's unquestionably a fact that Dr. Stakic did

12 not possess any criminal intent for any of the tragedies that occurred in

13 Prijedor in 1992.

14 We have extrinsic evidence, documents that we review about events

15 and Dr. Stakic's state of mind, his mens rea, before the events of April

16 1992. The OTP chose to ignore those, but they do not stop there. They

17 persist in their tireless effort to scan the evidence without due

18 diligence and without detail. If they were truthful and honest, they

19 would have raised these issues when they presented these facts, and they

20 would have told the Court that in fact the reasonable inference that

21 someone is a member of a party without doubt renders that person to be

22 criminal. But they can't, because that's not true. What they chose to do

23 is to hide and shy away from the truth, the truth of what Dr. Stakic's

24 mens rea, intent, opinions, and views were of all the citizens of Prijedor

25 in September and January 1992. But they ignore the documentary evidence,

Page 15148

1 and then they proceed to ignore the live evidence, the fact witnesses.

2 Did the Defence not bring one witness that knew Dr. Stakic before the

3 events of April 30th, 1992? Did the Defence bring not more than one

4 witness to discuss the events prior to April of 1992? Ignore those facts,

5 because the Office of the Prosecution is telling you you must ignore those

6 facts if you want to acquit. We cannot ignore the September 11th

7 extrinsic evidence or the January 31st extrinsic evidence. We cannot

8 ignore the fact witnesses which discussed at length Dr. Stakic's

9 personality, character, and reputation before April 30th, 1992. An honest

10 discussion and an intellectually refreshing discussion would have been to

11 talk about those issues and to confront those issues, to discuss those

12 issues and then to argue why they should be considered or ignored, as they

13 prefer.

14 What did some of their witnesses say about Dr. Stakic before April

15 30th, 1992? Nijaz Kapetanovic, he states, "Dr. Stakic did not show or

16 display intolerance towards people, did not." Forget about the Defence

17 witnesses. Shouldn't they at least address their own evidence, their own

18 witnesses, if they're going to make a claim like they do that as early as

19 1991 Dr. Stakic possessed a criminal plan, was part of a criminal plan,

20 part of a joint criminal enterprise? Should we dismiss Mr. Kapetanovic

21 and his testimony in its entirety? Should we reasonably infer that

22 Mr. Kapetanovic was accurate and honest when he said that Dr. Stakic did

23 not show or display intolerance towards people? What does that statement

24 do if you apply the law and if you ask yourselves: Is that the only

25 reasonable inference that in fact Dr. Stakic is innocent of the crimes

Page 15149

1 that are alleged against him?

2 What about that 29-year-old, Dr. Mujadzic, who the Prosecution

3 addressed in their closing arguments, addressed Dr. Mujadzic when he

4 stopped the Office of the Prosecution during his evidence and he says, "I

5 never said that Dr. Stakic personally attempted to undermine tolerance in

6 the area." What's the inference there? Should we ignore all the OTP

7 factual evidence? I think not. I think the OTP would rather the Court

8 ignore all the exculpatory evidence, all the favourable evidence, all the

9 evidence that exonerates Dr. Stakic. The truth of the matter is that the

10 burden is not ours to prove that Dr. Stakic is innocent. The truth of the

11 matter is that if you apply the facts objectively, that you will find in

12 favour of Dr. Stakic, that the OTP did not meet their burden of proof.

13 What should we infer from now both the documents and the fact

14 witnesses about Dr. Stakic? That Dr. Stakic was part of a criminal plan,

15 as the OTP vaguely alleges, or that Dr. Stakic, as supported by the

16 evidence, both the extrinsic and the live testimony, was not part of a

17 criminal plan and certainly knew nothing of such a plan and in fact

18 Dr. Stakic advocated and promoted peace and tolerance? Does this evidence

19 really portray reality? Does this evidence really show Dr. Stakic

20 deceiving Serbs, telling Serbs they are in danger? What an extraordinary

21 imagination one must have in order to reach that conclusion.

22 Let us briefly examine the period of the indictment and review

23 some of the documents that the Office of the Prosecution relies on. And

24 likewise, I'm going to examine some of the documents and some of the

25 testimony that they chose to ignore because in order to portray reality,

Page 15150

1 in order to make an objective assessment, a fair assessment, we should

2 look at all the evidence collectively and examine all the evidence and

3 then weigh that evidence.

4 It's another issue the Office of the Prosecution didn't dare

5 discuss. They don't discuss the burden of proof because they have not met

6 the burden of proof. They have met and have established that many, many,

7 thousands of people were killed in Prijedor. What's interested is that

8 they don't remind the Court that the Defence from the beginning of this

9 case at the direction and instruction of Dr. Stakic absolutely chose not

10 to contest that issue and that fact. Numerous 92 bis witnesses were

11 called from various hamlets and villages of Prijedor which discussed

12 crimes and the brutality in which they were victimised. It's not an issue

13 and it is not a dispute and the Defence does not contest the tragedy that

14 fell on Prijedor in the spring and summer of 1992. We do take exception

15 to the Office of the Prosecution attempting to strike at our emotions and

16 to blame Dr. Stakic for those crimes, crimes that their very own fact

17 witnesses when discussing did not, could not, and in their deepest hearts

18 would never accuse Dr. Stakic of. Many of those victims who testified, it

19 would have been understandable sitting in this docket to say, "This man is

20 responsible." Those brave people, those people who suffered and continue

21 to suffer, chose instead to tell the truth and to share with us that

22 Dr. Stakic not only did not commit those crimes, is not responsible for

23 those crime, was not a participant in any purported joint criminal

24 enterprise or criminal plan resulting in those crimes from occurring.

25 According to the OTP, after the takeover on April 30th, 1992,

Page 15151

1 Dr. Stakic continued to be a member of a joint criminal enterprise with

2 its sole objective and purpose "intending to destroy the Croat and

3 particularly Muslim communities in Prijedor." We heard evidence from the

4 witnesses about Dr. Stakic's feelings before April 30th, 1992. We saw

5 concrete evidence about whether or not Dr. Stakic spoke of destruction, as

6 they claim, or of peace and tolerance.

7 Now, let's examine what, if anything, Dr. Stakic said after April

8 30th, 1992. Would it surprise us that if Dr. Stakic said, "Peace must be

9 maintained at all costs," that the Office of the Prosecution chose to

10 ignore that? Why would Dr. Stakic say "peace must be maintained at all

11 costs" at an SDS meeting? Why, there is no evidence of Dr. Stakic saying

12 anything remotely close to being negative, discriminatory, or offensive

13 against the Muslims and Croats during that period. What a perfect

14 forum -- what a perfect forum, May 9th, 1992, one week or so, ten days

15 after assuming power in the Prijedor Municipality, what a perfect forum

16 for Dr. Stakic, who just took over power, who was the vice-president of

17 the SDS, who became the new president of the municipal assembly, what a

18 perfect forum for Dr. Stakic. Why not rally the troops and say, "Let's

19 expel, drive out," or as the Office of the Prosecution states "destroy"

20 the Croat and Muslims? May 9th, at an SDS meeting, does Dr. Stakic say

21 one single derogatory word against any ethnic group? Not one single

22 negative comment, not one single discriminatory comment. If there was a

23 criminal plan, why on the 9th of May, 1992 is Dr. Stakic speaking of

24 peace? Is it not reasonable and logical to infer and to conclude that

25 Dr. Stakic is not guilty of the crimes alleged against him, that

Page 15152












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Page 15153

1 Dr. Stakic is not guilty of being part of a plan, criminal plan, or joint

2 criminal enterprise?

3 The Office of the Prosecution referenced this exhibit and

4 discusses it, but I think that which Dr. Stakic doesn't say also is

5 important to rebut, contradict, and to show that in fact there is

6 reasonable doubt in the Office of the Prosecution's theory. What better

7 forum than May 9th, 1992 for Dr. Stakic not to have used discriminatory,

8 derogatory, and negative comments against his fellow citizens? The

9 inference should be because Dr. Stakic did not use discriminatory,

10 derogatory, and negative comments, that he does not possess the criminal

11 mens rea necessary to convict him of the crimes that the Prosecution

12 alleges.

13 But we have more: Dr. Stakic affirmatively at that May 9th, 1992

14 meeting, which presumably was attended predominantly by Serbs, he states

15 on page 2, which I think you have before you, under his name, the second

16 paragraph, "Peace must be maintained at all costs." Is that not

17 significant? Is that, as the Office of the Prosecution contends,

18 irrelevant? Should we ignore it? Could we ignore it? Only if you want

19 to convict. Only if you want to deny the truth from being presented. Only

20 can we accept their theory and ignore such evidence, as compelling it is,

21 if we do not and will not accept the truth and justice to prevail.

22 Dr. Stakic at that time, according to the Office of the

23 Prosecutor, was extremely ambitious, desiring to continue to climb the

24 ladder. At that stage we see SK46, wherein Dr. Stakic, having been

25 elected as vice-president, speaks of peace and tolerance. We have the

Page 15154

1 January 1992 document which addresses his views on this parallel

2 government and how the SDS and the SDA should and in his optimistic view

3 will work things out and his statement that they will work in a peaceful

4 and civilised manner. Ignore all the evidence. Ignore all the evidence

5 would be a travesty of justice. Ignoring all the evidence is the only way

6 one can conclude that the Prosecution has met their burden of proof.

7 The weight of a document has taken up some significant time in

8 this -- during this trial. The Office of the Prosecution doesn't assess

9 the weight of any of their documents. We'll address some a little bit

10 later this afternoon. But this particular document, SK46, should be given

11 great weight and in my view heavy weight. Why? Out of all the documents

12 that we reviewed, out of all the documents that they submitted, out of all

13 the documents that they distorted in their opinion as to what they purport

14 to represent, Mr. Robert Donia with respect to this document specifically

15 was asked on his testimony of the 24th of April, 2002, page 2165,

16 specifically lines 8 through 10, in discussing SK46, question: "Is there

17 any reason, sir, that we should doubt the veracity of the person reporting

18 these notes as they being attributed to Dr. Stakic?" Answer: "No."

19 Even their expert, even their witnesses, acknowledge that there is

20 no doubt whatsoever that Dr. Stakic said those words, intended those

21 words, and was of the opinion at all times that peace must be maintained

22 at all costs.

23 I'd like to address another document that's in existence, and that

24 is document S200. And until we get that document up. I asked on SK46,

25 why does the OTP ignore the substance of that document? How does the OTP

Page 15155

1 reconcile that document and those words with their theory that Dr. Stakic

2 is part of a joint criminal enterprise? How could they on one hand say

3 that Dr. Stakic was an advocate of war, namely deceiving the Serbs,

4 telling the Serbs that there was going to be some tragedy to fall upon

5 them, and on the other hand, publicly and in private meetings with all

6 Serbs being present, to suggest, to affirmatively state peace must be

7 maintained at all costs?

8 That was May 9th, 1992. One week later, May 16th, 1992, there was

9 a 50th year jubilee anniversary for Prijedor. It's cited in a newspaper

10 article reflected under S200. Dr. Stakic at that jubilee anniversary

11 speaks, one week after his comment that peace must be maintained at all

12 costs. One week later, and approximately three weeks into his new

13 government where he's the president of the municipality, 16 days exactly,

14 would we expect Dr. Stakic to say at that time, if anything the OTP says

15 about him is true, that at that time he would be banging the drums of war,

16 he would be talking about hate, intolerance, and the need for separation?

17 Did Dr. Stakic use that word "destroy" at any time for his fellow Muslims

18 and Croats and non-Serbs?

19 The document you're looking at merely provides us with a backdrop

20 of what the evidence really says. That confirms that there was a jubilee

21 celebration on or about the 16th of May, 1992. At that event I am telling

22 the Court that Dr. Stakic said that Prijedor will be an oasis for peace

23 and nothing ugly will happen in Prijedor. I say it. I think the Court

24 might be suspect and tell me, "Well, you can't offer it without a factual

25 basis, and S200 doesn't seem to suggest it." That same standard should be

Page 15156

1 applied to my learned colleagues. When they say it, they should back it

2 up. When they make an allegation or an assertion, it cannot and should

3 not be baseless and without foundation. Dr. Stakic did say on May 16th,

4 1992 in front of hundreds and thousands of people that Prijedor will be an

5 oasis for peace and that nothing ugly would happen in Prijedor. How do we

6 know that? Because I said it was so? No. We have it, if we honestly

7 look at the evidence that the OTP would like to ignore. Witness Z, who

8 testified for the Office of the Prosecution, when Ms. Sutherland was

9 asking her questions, she admitted to that, the witness, Witness Z. There

10 was nothing to admit. She offered it as a conscious recollection of

11 Dr. Stakic who stood before her criminally accused. She could have

12 forgotten about that statement. She could have avoided making that

13 statement, or she could have ignored the statement, as the Office of the

14 Prosecution does. Instead, this honourable person, this honest

15 individual, having given an oath to tell the truth, told us the truth.

16 Here's what she says: Witness Z, page 7538, line 21, in part of

17 her answer, "He," Dr. Stakic, "said that Prijedor would be an oasis of

18 peace, that nothing ugly would happen in Prijedor, nothing like that had

19 happened in other parts of Bosnia, for example, in Foca." This witness in

20 her testimony, I think the Court will find when reviewing it, look at

21 Exhibit S200. She confirmed she went to that celebratory 50th anniversary

22 jubilee meeting. She confirmed Dr. Stakic said that. So what do we have?

23 If I'm the Prosecution, I would tell the Court, "Yes, in May -- May 19th,

24 1992, Dr. Stakic speaks of peace. May 16th, 1992 he tells the citizens of

25 Prijedor that Prijedor will be an oasis for peace, nothing ugly would

Page 15157

1 happen there." Be forthright with the evidence. Be objective with the

2 factual evidence that is undisputed so that we can make an honest and

3 refreshing assessment as to what inferences, reasonable or not, that we

4 can make.

5 Is it reasonably with this backdrop of the May 19th, 1992 speech

6 by Dr. Stakic, the May 16th, 1992 speech by Dr. Stakic, when he's at what

7 the Prosecution calls the height of his overachieving career, does that

8 infer criminal intent? Does that infer criminal conduct? Does that infer

9 that Dr. Stakic was inflaming the passions of the Serbs by telling them

10 that terrible things would happen to them? Peace, terrible? Tolerance,

11 terrible? Only with an extraordinary imagination could one conclude such

12 a preposterous and completely biased view. That is Dr. Stakic's intent.

13 That was Dr. Stakic's intent during the period of the indictment, and the

14 evidence proves it. The evidence proves what his intent was before as

15 well as during the period of the indictment.

16 Oasis of peace? Peace must be maintained at all costs. May 16th

17 and May 9th respectfully. That, Your Honours, was Dr. Stakic's goal,

18 peace to be maintained at all costs, Prijedor to be an oasis of peace.

19 That, Your Honours, was Dr. Stakic's plan. Peace at all costs and

20 Prijedor to be an oasis of peace. That, Your Honour, was Dr. Stakic's

21 mens rea. Peace, not violence, will prevail. Good, and not ugly, will

22 prevail.

23 Regrettably, as we heard from the citizens of Prijedor themselves,

24 Dr. Stakic's wishes, desires, and intent did not prevail. The criminal

25 behaviour of drunken soldiers, of criminal individuals, whether it be for

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Page 15159

1 revenge, vendetta, or pure spite, was far too uncontrollable for anyone,

2 much less Dr. Stakic.

3 Now, those first three or so weeks that Dr. -- when Dr. Stakic

4 took over power and advocated peace, did we have any crime, did we have

5 any killings? Did we maintain to the extent that it was possible that

6 things proceed in a normal manner? There was no evidence whatsoever to

7 suggest that during those first three weeks that Dr. Stakic was involved

8 in any criminal activity, was part of any criminal activity, or was a

9 member of a joint criminal enterprise that purported to possess criminal

10 intent. What changed? We do not want to recreate history. We want a

11 portrayal of reality and the truth. What occurred was that there was an

12 attack on Serb soldiers who were passing at a checkpoint at Hambarine on

13 May 22nd, 1992. The Office of the Prosecution admits and acknowledged

14 they were not there and they tell us they don't know what truly happened,

15 but they share with us, again, what they think the evidence reasonably

16 infers. They tell us that the Defence, having brought Witness DH, who was

17 a military man and who passed through that checkpoint at Hambarine that

18 morning, that that proves that the members of that checkpoint were

19 reasonable, were never going to attack or harm anyone because DH passed

20 through there in a military uniform unharmed.

21 Is it reasonable to infer that since Witness DH was of the

22 Croatian ethnic background that, he passed relatively freely at that

23 checkpoint? Is it reasonable to infer that the soldiers who were killed

24 and wounded at that checkpoint were killed and wounded because they were

25 Serbs and for no other reason? How does the Office of the Prosecution

Page 15160

1 reconcile the fact that two other members of that group who were Croatian

2 were not killed, were not injured, and are still alive and can testify, if

3 called, to tell us what the truth is? Look at the military reports, at

4 the conversation and the investigation that the military did as to who

5 shot whom and why. Their expert doesn't review it because it doesn't fit

6 into the Prosecution's theory. The Prosecution ignores it because they

7 can only get a conviction if they ignore and distort the evidence. The

8 fact of the matter remains that it's irrelevant who initiated or provoked

9 the confrontation at Hambarine. The fact of the matter is that on May

10 22nd, 1992 there was an escalation and a complete change of events for the

11 municipality of Prijedor as a result of that incident and those killings.

12 Portrayal of reality. Why is it not significant from a military

13 standpoint to discuss that on May 3rd, 1992 in the capital of Sarajevo JNA

14 military personnel and convoy were attacked and summarily assassinated

15 while departing their barracks? No one is trying to recreate history.

16 That's a fact. That's an important fact that's within the period of

17 indictment.

18 In Tuzla, similarly, we find from Major General Lewis MacKenzie in

19 his diary that he reports 150 Serb soldiers were attacked by Muslims at a

20 checkpoint, were killed. Another 150 were wounded, and 300 were captured.

21 Why is that irrelevant? Why is that recreating history? Those are facts

22 which when you place in front of a military soldier or a military

23 personnel that are extraordinary, that will heighten their awareness, that

24 will indeed regrettably in Prijedor exacerbate the response to any attack

25 to their personnel.

Page 15161

1 Why do we ignore it? Because it doesn't fit into the

2 Prosecution's theory to convict. This Court should not and must not

3 ignore facts that are pertinent, facts that will share with us what the

4 true intent was of the military at that time in Prijedor when they

5 responded to the killing of their personnel, both at Hambarine and at

6 Kozarac, as well as in the city town of Prijedor in May of 1992.

7 The Office of the Prosecution seems to suggest that the Serbian

8 army used as a pretext this incident at Hambarine. Wouldn't logic and

9 reasonableness tell us that after April 30th of 1992, when the Serbs took

10 over power, they needed no more pretext than the attack on the military in

11 Sarajevo, the attack on the military in Tuzla in order to render any kind

12 of response if they so desired to the non-Serbs in Prijedor? Hambarine

13 was not a pretext. Hambarine was an unfortunate incident, a terrible

14 provocation, and a terrible event that started the deterioration of the

15 entire Prijedor municipality of any peacefulness and lawlessness that was

16 desired and intended by Dr. Stakic.

17 At what point, we must ask us -- we must ask ourselves, do we lose

18 control? At what point was peace no longer an option for the military?

19 For the military peace was not longer an option, I suggest, after May

20 30th, 1992. If Hambarine was a pretext, as the Office of the Prosecution

21 alleges, why not at Hambarine kill everyone? Why not destroy the hundreds

22 of homes in Hambarine? Why not, since Hambarine is in the Brdo region,

23 continue if you had this joint criminal plan, and continue to "destroy the

24 Croat and Muslim communities"? Why stop at the road where the barricade

25 and roadblock was? Why stop there? Why effectively arrest no one? Why

Page 15162

1 effectively kill no one? Why effectively detain no one? Because there

2 was no joint criminal enterprise, because there was no joint criminal

3 plan. Dr. Stakic certainly didn't know what would happen or what would

4 result following the incident at Hambarine. The experts, I think, agreed

5 that an ultimatum was given, that the ultimatum was proper. If according

6 to the OTP Mr. Mujadzic was right, that there should have been an

7 investigation, why, then, didn't Mr. Aliskovic turn himself in? Why,

8 then, didn't the perpetrators of those criminal acts and killings turn

9 themselves in? The checkpoint at Hambarine is a significant, an

10 enormously important, start of what became an uncontrollable, sporadic,

11 and inconsistent criminal behaviour throughout Prijedor. No one could

12 anticipate Hambarine from happening, despite the fact that there were many

13 bunkers, as the OTP says in their closing argument, many roadblocks, and

14 many barricades throughout the Prijedor municipality. No one can

15 anticipate that soldiers would be attacked, killed. No one can stop the

16 military from responding to that provocation.

17 I think, Your Honour, if I may, this would been an appropriate

18 time for a break, with the Court's permission, of course.

19 JUDGE SCHOMBURG: If you need a break. We could continue until

20 1.00.

21 MR. OSTOJIC: I think a break would be appropriate.

22 JUDGE SCHOMBURG: Okay. Then the trial stays adjourned until

23 quarter past 12.00.

24 --- Recess taken at 12.00 p.m.

25 --- On resuming at 12.22 p.m.

Page 15163

1 JUDGE SCHOMBURG: Please be seated.

2 Mr. Ostojic, you may continue until 1.00 sharp.

3 MR. OSTOJIC: Thank you, Your Honour.

4 Let us review up to this point, if I may, the facts, and to

5 portray them in the real context that they occurred, as opposed to

6 creating history. On May 3rd, when the JNA military was attacked in the

7 city of Sarajevo, does Dr. Stakic get up and give a speech and declare

8 war? Does Dr. Stakic state to the citizens of Prijedor that we are at an

9 imminent state of war, that there is an imminent threat of war?

10 Envision this: May 3rd, Serbian soldiers from the JNA are

11 attacked leaving the barracks in the city of Sarajevo in Bosnia and

12 Herzegovina. On May 9th, Dr. Stakic with a purported criminal intent and

13 a purported criminal plan speaks and gives an interview in the Kozarski

14 Vjesnik and says that peace must be maintained at all costs. What should

15 the inference be, that Dr. Stakic was an advocate of war, of hate, of

16 intolerance, of an intention to destroy, as alleged by the Office of the

17 Prosecution? What better pretext for a Serb immediately, within one week,

18 of a gravely tragic event in Sarajevo but not to rally the troops.

19 Instead, Dr. Stakic, as we've seen, said peace must be maintained at all

20 costs. Keep the reality. Don't distort the facts.

21 On May 15th, 1992, in the city of Tuzla, another attack on Serb

22 soldiers and the JNA. What better time than on May 16th, at the 50th year

23 anniversary jubilee for the liberation of Prijedor, other than for

24 Dr. Stakic to give a speech and to say there was an incident at the city

25 of Tuzla that's reported all over the news, that the Serb soldiers were

Page 15164












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Page 15165

1 attacked and massacred, 150 of them, 150 injured and wounded, 300

2 captured? Why not at that time, if you have a criminal intent, a criminal

3 disposition, a criminal plan, having purportedly -- or being purportedly a

4 member of a joint criminal enterprise, why not on the 16th of May, 1992,

5 one day after the tragedy in the city of Tuzla, does not Dr. Stakic ask of

6 war and demand that people be destroyed or intend that people be

7 destroyed, as alleged by the Prosecution?

8 What does Dr. Stakic say? He tells the people of Prijedor what

9 his goal, what his ambition, and what his intent is. He says on the 16th

10 of May, as we previously discussed - and he's optimistic and

11 extraordinarily hopeful - he states that "Prijedor will be an oasis of

12 peace. Nothing ugly will happen in Prijedor." What is the inference?

13 How do we jump, leap, even with an extraordinary imagination, to suggest

14 that Dr. Stakic at that point in May of 1992 had the intent to destroy

15 Croats and Muslims, was a man who deceived the Serbs, was a man who

16 advocated war, advocated intolerance? Isn't truly objectively and

17 intellectually it more honest to say and offer that the sole and only

18 reasonable inference one can draw from those facts is that Dr. Stakic is

19 not guilty of the crimes alleged, that Dr. Stakic did not possess the

20 criminal intent necessary to commit any of those crimes, that Dr. Stakic

21 was not aware and certainly did not know of any purported criminal plan,

22 that Dr. Stakic indeed was not a member and participant of some joint

23 criminal enterprise?

24 That is not enough for the OTP. But if we ignore it, if we claim

25 that the Defence is trying to recreate history, then maybe it will pass.

Page 15166

1 The Defence is not trying to recreate history, but we want the truth to be

2 portrayed and we want reality to be put forth before this Court and

3 Tribunal. It's reality that Dr. Stakic in 1991, early 1992, and in

4 mid-1992 consistently, repeatedly, and unequivocally spoke of peace and

5 tolerance.

6 What about the period after May 22nd, 1992? Is the inference

7 because there are no documents, allegedly, in existence from Kozarski

8 Vjesnik that Dr. Stakic changed his tone, changed his view, changed his

9 opinion? One cannot draw that inference unless they are biased and

10 prejudiced to conclude that the lack of any further newspaper articles

11 would even remotely suggest that Dr. Stakic's intent was any different

12 after May than what it was in May and prior to that.

13 Whose fault is it that we don't have documents from Kozarski

14 Vjesnik after May of 1992? Who conducted the search and seizure for those

15 documents? Who had those documents in their possession at one time? Not

16 Dr. Stakic. We've been adamant in requesting from the OTP those

17 documents. They claim that at some point they didn't have a whole host of

18 documents but upon review, re-examination, and perhaps a deep-felt

19 examination of their conscience they decided that they had some documents

20 that they gave us in September and October of 1992. But yet we don't have

21 any of the documents from Kozarski Vjesnik for that critical period.

22 Those documents were in their possession. At all times we felt and

23 believe that those documents should have been produced. Their whole case

24 rests on the fact that but for those documents, an inference should be

25 drawn against Dr. Stakic. What law in any jurisdiction can they cite to

Page 15167

1 support that view? But for is not the standard. The burden of proof is

2 theirs and theirs alone to address the evidence, to assess the evidence,

3 to argue the evidence, and to put forth the truth and to share with the

4 Court the views when in fact there are pieces of evidence which are

5 exculpatory and evidence and legal theories which would exonerate

6 Dr. Stakic.

7 Why didn't the military, as part of and member of this joint

8 criminal enterprise, on May 22nd, 1992 not destroy the entire town of

9 Hambarine? According to the Office of the Prosecution, there was a plan,

10 a well-devised criminal plan dating back to 1991 that, created some sort

11 of joint criminal enterprise, to "destroy Croats and Muslims." They

12 needed a pretext. Forget about May 3rd in Sarajevo. Forget about Tuzla,

13 May 15th. The Serbs in Prijedor and the military in Prijedor needed

14 another pretext. They got one; the killing of their very own men and

15 wounding of their soldiers on May 22nd. One would expect, and it's

16 reasonable to infer, that if there was such a joint criminal enterprise

17 and if there was such a criminal plan to destroy Muslims and Croatians,

18 and if in fact there was this pretext, why stop at Hambarine? Why stop at

19 40 or 50 homes? Why not incarcerate and liquidate all the citizens of

20 Hambarine? Why not go to Ljubija, its neighbouring village, where the

21 intent to destroy Croats and Muslims was a plan, a criminal plan, part of

22 a joint criminal enterprise? What stopped them?

23 I'm most confused about the OTP's position and don't completely

24 have a clear handle, if they're claiming the Muslims were armed or not

25 armed. When we talk about legal theories and theories such as the

Page 15168

1 necessity for there to be an armed conflict, they conclude no doubt there

2 was an armed conflict. When we talk about the facts and we try to discuss

3 who provoked whom and the ability of people who possessed arms, they take

4 the position that there were very few arms, that there were very few --

5 much fewer ammunition and soldiers on one side than the other. The truth

6 of the matter is they can't figure out which position they would like to

7 take. If there was an armed conflict and if, as their expert Mr. Brown

8 and Dr. Donia concede, there were paramilitary groups within Prijedor in

9 the spring and summer of 1992, then it's plausible that there was an armed

10 conflict. But what's not plausible is that they deny that the Green

11 Berets existed. They deny that the Patriotic League existed. They deny

12 that there were sales and shipments of arms to Muslims in the Prijedor

13 municipality before, during, and after the period of the indictment.

14 Well, they can't have it both ways. They can't say there's an armed

15 conflict and then suggest to this Court the Muslims and the Croats had no

16 arms to fight. The credibility of what they offer is very, very suspect,

17 in my view. There is no doubt in Prijedor municipality in the spring and

18 summer of 1992 there were many, many paramilitary formations and groups.

19 Most of those groups formed, operated, and continued to exist immediately

20 after the events of May 22nd, 1992.

21 Pretext for the military. They only go into Hambarine. They

22 don't go into the other villages in the Brdo region. They don't go to

23 other towns like Ljubija. Another element they have to prove: Widespread

24 and systematic. The Court in its 98 bis decision concluded properly that

25 certain towns and villages, that there was inadequate proof that they were

Page 15169

1 attacked, victimised, brutalised. However, the Office of the Prosecution

2 should view that, since their indictment and their complaint says the

3 terror, the brutality, and the "intent to destroy" was widespread and

4 systematic.

5 If you take anything, even a piece of paper. And if you allege

6 for it to be widespread and systematic that it's white, and if you start

7 to carve it out and you have only one-fourth of that paper left, hardly

8 can you argue that it was widespread and systematic. The Prosecution did

9 not prove that element in their case. They failed to meet the burden of

10 proof that there was widespread and systematic conflict in the Prijedor

11 municipality. To start, one must first examine the Prijedor municipality

12 and take a map and highlight the areas where some of the atrocities

13 occurred. We know that they occurred in Hambarine. We know that they

14 occurred in Kozarac. And we know that they occurred at Stari Grad at some

15 point on May 30th, 1992. What other parts -- or are there no other parts

16 of the Prijedor municipality? Of course there are. That's why their

17 theory that it was widespread and systematic does not fit and that's why

18 the Court cannot convict, premised upon that necessary and fundamental

19 element, that the Office of the Prosecution failed to prove.

20 One of their experts did try to testify on widespread and

21 systematic. And maybe I'm misquoting him by calling him an expert, but

22 he's a journalist, and he testified in other cases as the Court has heard.

23 He testified exactly on this issue, widespread and systematic. The Office

24 of the Prosecution widely chose not to utilise his services on that issue

25 for this case. Why? We saw during his testimony that he wrote articles

Page 15170












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Page 15171

1 contemporaneous during the time of his visit in the municipality of

2 Prijedor, that there was not widespread or systematic attacks upon the

3 villages and people of Prijedor. It's in his very own articles, it's in

4 his very own contemporaneous notes, so why bring forth the truth? Why not

5 recreate history? Who is recreating history? If history is something

6 that is recorded contemporaneous with the time of the events, such as

7 Mr. Vulliamy's articles where he unequivocally says it's not widespread

8 and it's not systematic, why not bring forth the truth. Instead, they

9 bring him for other obvious inconsequential and irrelevant matters.

10 Kozarac, May 24th, 1992. Presumably another pretext that the

11 military was looking for. According to the OTP, what the military did was

12 send the convoy through a road, the main road, knowing full well that it

13 was going to be attacked, wanting to have that military convoy get

14 attacked so that they can have a "pretext" to retaliate. What person, or

15 what military soldier, would have such a far-fetched and extraordinarily

16 imaginative plan to suggest send a convoy in the hopes that we get shot so

17 that we can retaliate? Did the Serb military really need another pretext?

18 They had Hambarine May 22nd; they had Tuzla May 15th; they had Sarajevo

19 May 3rd. Why not arrest all the Muslims? Why not, if this campaign, if

20 this joint criminal enterprise, if this criminal plan and goal was to

21 "destroy Croats and Muslims," why not after those three significant

22 events do you not arrest and capture all? What stopped them? We dare say

23 that it was the voice of Dr. Stakic in the background speaking of peace,

24 speaking of how Prijedor should be an oasis of peace, how nothing ugly

25 would happen in Prijedor. That's not what stopped them. Perhaps it was

Page 15172

1 some of the heroes that Mr. Koumjian refers to that stopped or deterred

2 the military from attacking prior to May 24th at the village of Kozarac.

3 Remember, Your Honours, the Office of the Prosecution at the

4 beginning of this case told us that the JNA and, therefore, the VRS

5 subsequent to that, Vojska Republike Srpske, was the fourth largest

6 military in all of Europe. Can you imagine how much effort it would take

7 if that military truly was part of a joint criminal enterprise or had a

8 criminal plan to "destroy Croats and Muslims," what effort it would take?

9 I suggest very little. There was no plan. There was no joint criminal

10 enterprise whatsoever. These incidents and facts are consistent with the

11 portrayal of reality and not the recreation of history. Reality has it

12 that paramilitary groups were formed on all sides, the Muslim, the Serb,

13 as well as the Croatian side. It's clear that there were sales, as we've

14 heard from witnesses, even Serbs sold weapons to Muslims. Was there an

15 intent by the Serbs and they're selling to the Muslims arms and

16 ammunition? Reconcile it for me. Reconcile for me why the VRS did not on

17 May 24th, 1992, when attacked, when its convoy was attacked, why it did

18 not kill all the citizens of Kozarac, why it did not arrest all the

19 citizens in the Prijedor municipality. Why did it not at that time go

20 through all of Prijedor with the intent to destroy? It's not only

21 illogical what the Office of the Prosecution is alleging, but it is also

22 unreasonable.

23 An incident occurred at Kozarac on the main road from Banja Luka

24 to Prijedor. At that time the military responded. They responded in what

25 their experts said justifiably. The Honourable Vassylenko asked even the

Page 15173

1 Defence military expert why would the Muslims at the checkpoint, why would

2 they provoke an incident knowing that they're outmanned, outgunned, and

3 can never prevail? I asked that very same question with the fourth largest

4 military in all of Europe. Why was the JNA attacked at Sarajevo? Why was

5 the JNA attacked at Tuzla? Why were the Serb military soldiers attacked

6 at Hambarine? Why were they attacked at Kozarac on May 24th? The will of

7 some people, I believe, overrides the reality that they may not prevail.

8 The Kurds in Iraq do not fear the strength and did not fear the

9 strength of the Iraqi military. They were persistent. They continued in

10 their belief. The Chechnyans, knowing full well that they may be

11 outmanned, outgunned, and outmanoeuvred continued to hold strong and

12 steadfast to that which they may have believed in or believe in. We're

13 not here to second guess or to question why the Muslims of Prijedor shot

14 or provoked the military. What we're here to do is to assess whether that

15 provocation at that point resulted in a response by the military or was it

16 as alleged by the Office of the Prosecution a pretext for the fulfilment

17 of a criminal plan, a joint criminal enterprise, of which Dr. Stakic was

18 part and parcel of. What an extraordinary imagination, that this plan

19 according to the OTP, if it existed, this joint criminal enterprise, that

20 the OTP claims existed, participants of it, such as the military they

21 allege in the indictment, Colonel Arsic and Zeljaja, that they envisaged

22 this plan and said, "Look, Stakic, you go out there and in 1991 you give

23 speeches about peace. We're intending to destroy the Croats and Muslims.

24 Go out there in January. Talk about peace. But we're intending to

25 destroy the Muslims and the Croats in Prijedor. Set up a parallel

Page 15174

1 government and tell them how you think you can work together and that you

2 can resolve all your problems in a peaceful and civilised manner. But we

3 want -- we have the intention to destroy them."

4 Go to May, May 9th, at a meeting. "Tell us again, Dr. Stakic, how

5 you want peace to be maintained at all costs. Forget about what happened

6 at Sarajevo six days earlier on May 3rd." Participant of a joint criminal

7 enterprise? I hardly think if Dr. Stakic was a member of any joint

8 criminal enterprise which involved the military and six days after the

9 tragedy at the city of Sarajevo Dr. Stakic talking about maintaining peace

10 at all costs, the military wouldn't have responded in some way against

11 Dr. Stakic, publicly and privately.

12 May 16th, immediately following the Tuzla tragedy. What plan,

13 what reasonable and logical person would think it's a plan that existed

14 that would allow Dr. Stakic to talk about an oasis of peace and how

15 nothing ugly would happen in Prijedor on the 16th of May? You have to

16 have a prosecutorial extraordinary imagination.

17 The events of Hambarine and Kozarac were certainly independent.

18 We heard from people who were at Kozarac how well armed they were. We

19 know from a factual basis that you do not destroy two military tanks by

20 dropping a tree on them, rendering them incapacitated. Although,

21 according to the Office of the Prosecution, that's a plausible and

22 reasonable inference. They ignored their very own witnesses who told us

23 how many people were at the checkpoints, who was armed, how many were

24 armed, how they escaped in the woods and sheltered themselves.

25 The military at that point, being part and parcel of a joint

Page 15175

1 criminal enterprise, and having devised at some point in 1991 this

2 criminal plan with the intent to destroy Croats and Muslims, decided two

3 pretexts were not enough in Prijedor, the incident in Hambarine and the

4 incident in Kozarac. So they don't kill everyone, they don't destroy

5 everything. What they do is they start to arrest only those individuals

6 that they feel possess a threat to them and their military so that they

7 can interrogate them. They also tell the community that people should

8 move away because they're going to go in there and find these perpetrators

9 of this crime. Women and children, if there was this intent to destroy

10 Croats and Muslims, if there was this intent to commit genocide, and if

11 there was this complicity in genocide, which is what intent to destroy

12 Croats and Muslims is what the Office of the Prosecution means, why spare

13 the women and children?

14 You have two pretexts, Hambarine and Kozarac. Your military was

15 attacked less than two weeks ago in Sarajevo and in Tuzla. Why not kill

16 them all? What prevented them? What was in this devious criminal plan

17 which was part of some joint criminal enterprise that puts some

18 limitations on the brutality and on the killings that occurred in Prijedor

19 in 1992?

20 Several days later, despite the fact that according to the OTP

21 there were no arms that the Muslims had, that they were poorly armed,

22 poorly organised, ineffective, had to use tree stumps in order to

23 incapacitate two tanks at Mount Kozarac, or at Kozarac, nevertheless there

24 is an attack on the city down of Prijedor. Was it organised? Was it

25 planned? Was it criminal? Was it part of a joint criminal enterprise? On

Page 15176












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Page 15177

1 behalf of whom? Against whom?

2 At that point, the third pretext, I'm sure the attack somehow --

3 although I'm not as creative as the Prosecution, somehow this third attack

4 was also orchestrated and was a pretext by the Serbs and Dr. Stakic and

5 other members of this joint criminal enterprise so that it can be used to

6 retaliate and to destroy Croats and Muslims. Is it reasonable to infer

7 that at that point, ten days, three battles, May 22nd, May 24th, and May

8 30th, that the military at that point was truly, solely, and exclusively

9 conducting all operations in Prijedor? That no one at that point was even

10 remotely visible to give interviews or to discuss facts or to hold any

11 types of meetings? Is it not reasonable that at that point the third

12 so-called pretext by the Serbs necessary in order for them to fulfil their

13 criminal plan and joint criminal enterprise, that at that point why didn't

14 they go into Brdo region? Why didn't they on May 3rd with the intent to

15 destroy all Croats and Muslims in the community, why did they stop at

16 Stari Grad, where the attackers of the city town of Prijedor decided to

17 retreat at? Why not just go several kilometres and arrest everyone in the

18 Brdo region? What kind of a plan was it, a plan that dictated that two

19 and a half months later, on July 20th, 1992, the military would come back

20 and start to arrest civilians, unarmed? They wait six weeks in order to

21 fulfil their plan when they're immediately at Brdo on May 30th, they're in

22 Brdo on May 22nd, yet this intent to destroy was somehow derailed or

23 delayed for whatever reason? There's no logic. There's no

24 reasonableness. There's no truth to the allegations offered by the Office

25 of the Prosecution.

Page 15178

1 These were regrettably not pretexts. These were regrettably true

2 and accurate events that occurred in Prijedor, in Sarajevo, and in Tuzla.

3 These were facts that were not created by the Serbs or the Serb military

4 to be used as a pretext so that they could fulfil and attain their goal of

5 destroying Croats and Muslims. The fourth largest army. The Muslims were

6 unarmed, lack of ammunition, lack of resources. They needed no time, no

7 pretext, and no plan in order to systematically destroy them, if that was

8 the plan, the goal.

9 I tell you that there is an attack on all the Serbs and not just

10 Dr. Stakic. I think it's a reasonable inference that when a Serb such as

11 Dr. Stakic talks about peace, when a Serb such as Dr. Stakic maintains

12 peace and order will prevail throughout a most critical period, that it

13 must be a pretext, that it must be an attempt by the Office of the

14 Prosecution to muddy the Serbs as well as Dr. Stakic. Have you once heard

15 the Office of the Prosecution in their analysis and assessment try to

16 share with you how is it remotely possible that other parts of the

17 Prijedor municipality were untouched, that other Croats, namely in

18 Ljubija, were unharmed yet this was this plan intentionally to destroy

19 Croats and Muslims? Is the plan to intentionally destroy only the Croats

20 and Muslims in Hambarine on May 22nd? Did they really have this

21 preconceived and premeditated, as they call, plan to perpetrate a crime at

22 Kozarac and therefore kill several Muslims, detain hundreds and thousands

23 of them? Was that their plan?

24 Their plan, according to the Office of the Prosecution was, "To

25 intend to destroy Croats and Muslims." All of them, not one according to

Page 15179

1 this criminal plan and this joint criminal enterprise was expected to

2 survive. I submit to you the reasonable inference, looking at any of the

3 demographic figure, even those offered by Dr. Tabeau, which I suggest to

4 the Court and which I'm confident the Court agrees are not valid, should

5 not be given any weight, but those figures or the supporting documentation

6 that she does use does reveal one fact and an extraordinary fact, that

7 there was no criminal plan, that there was no joint criminal enterprise,

8 that Dr. Stakic is not culpable directly or as an accomplice to any of the

9 tragedy that occurred in the spring and summer of 1992 in the Prijedor

10 municipality.

11 I believe, Your Honour, this might be an appropriate time. I

12 might move to another area.

13 JUDGE SCHOMBURG: The trial stays adjourned until half past 2.00.

14 We'll proceed then in Courtroom number I.

15 --- Luncheon recess taken at 12.59 p.m.

16 --- On resuming at 2.35 p.m.

17 JUDGE SCHOMBURG: Good afternoon. Please be seated. Before I

18 give the floor once again to the Defence, may I announce that we start

19 tomorrow 9.30 in Courtroom II with a Status Conference, and then let us

20 hear the closing arguments in rebuttal and rejoinder, followed by a

21 limited line of questions by the Judges, and then finally Dr. Stakic

22 enjoys the right to have the last word.

23 In the afternoon we will proceed in Courtroom III because

24 Courtroom I is occupied for the purpose of an initial appearance in

25 another case. Anything else in the moment? It's not the case. Then

Page 15180

1 please, Mr. Ostojic, proceed with the third part of your closing

2 arguments.

3 MR. OSTOJIC: Thank you, Your Honour, and good afternoon.

4 Your Honour, this morning, we attempted to reveal for the Court

5 what we believe the true evidence and the inferences from that evidence in

6 reality are. When you look at the magnitude and scope of the evidence

7 presented by the Office of the Prosecution, we find very little in terms

8 of the circumstantial evidence that would lead to a conviction of

9 Dr. Stakic for any of the crimes that are alleged against him. We insist,

10 and the law requires, that the Office of the Prosecution meet their burden

11 of proof, a burden of proof that I concede is extremely high, but a burden

12 of proof that is set by the criminal law system of this Tribunal and other

13 jurisdictions throughout the world: Beyond a reasonable doubt. Never

14 were those words uttered by the Office of the Prosecution. Never have

15 they suggested or told this Court that the evidence that they claim to

16 have satisfies or meets the burden of proof beyond a reasonable doubt.

17 This Court as well as the Office of the Prosecution and the

18 Defence attorneys recognise that a circumstantial case is difficult. It's

19 rendered more complex because of the inferences that must be drawn related

20 to the evidence, both documentary, extrinsic, and from the lay witnesses

21 that are brought before the Court. It is made more complex because there

22 are presumptions that one can make as to each of the facts if there is no

23 direct evidence to the contrary. What we suggest and what we state to the

24 Court without any reservation is that the evidence is compelling that

25 Dr. Stakic is innocent of the crimes alleged in the fourth amended

Page 15181

1 indictment.

2 The OTP tries in vain to argue many facts as they have throughout

3 this one-year long trial. The Court in its wisdom restricted them on

4 numerous occasions when they discussed things like Dr. Stakic's brother.

5 Why did the OTP necessarily care or wish or desire to raise that issue?

6 To muddy the waters. To dirty the playing field. To throw mud

7 unnecessarily on Dr. Stakic. Interestingly enough, with respect to

8 Dr. Stakic's brother, the OTP at all times knew that that which they were

9 proffering was inaccurate and untrue. They don't stop there. Next, they

10 try to argue, although with their consent, we tried to confine the

11 parametres of this case to the indictment period, 30th of April through

12 the 30th of September, 1992. Nevertheless, they argued that flight should

13 be considered an important topic and issue. The purported flight of

14 Dr. Stakic. The Court in its wisdom reasonably restricted and ordered

15 that they refrain from bringing such issues and such tactics before the

16 Tribunal. The indictment as we have alleged, as is evident simply by

17 taking judicial notice of when the --

18 THE INTERPRETER: Could counsel please speak in the microphone.

19 MR. OSTOJIC: -- And when he was initially and ultimately arrested

20 and incarcerated. The OTP, however, does not stop in its efforts to muddy

21 the waters, but they now do it in a more subtle way, in a bit more of a

22 clever manner. They are not as direct because of the Court's stern

23 warnings. They are not as aggressive in their tactic, however they

24 persist ever so tirelessly to muddy the waters and to try to dirty

25 Dr. Stakic.

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Page 15183

1 They argue to this Court -- I'm actually not getting any feedback

2 on this.

3 JUDGE SCHOMBURG: It was just the request to slow down a little

4 bit that the French booth also can catch up.

5 MR. OSTOJIC: Thank you, Your Honour. I'll do so.

6 The Office of the Prosecution does not discuss the law because the

7 law, if applied fairly, objectively, and honestly, does not assist them in

8 the application of the facts. The only reasonable inference from the

9 circumstantial evidence and the presumption of innocence is that this

10 Court must acquit Dr. Stakic. How has the OTP been subtle in raising

11 things such as innuendo or items that are somewhat irrelevant and

12 immaterial to this case.

13 On one hand, whenever Dr. Stakic attempted to do something, the

14 Office of the Prosecution in all their wisdom claimed that it was an

15 aggressive act, that it was part of a plan -- part of a criminal plan,

16 part of a joint criminal enterprise. They raise the issue of curfew and

17 disarming members of a society. They claim -- and that's the only piece

18 of evidence that they put forth that they allege came from the ARK from

19 Banja Luka. They claim that disarming citizens during a heightened state

20 of tension is wrong and is criminal. In fact, they go well beyond the

21 line of reason. They state in their closing argument, page 42, line 21:

22 "As in most genocides, the first thing you do is ask the victims to please

23 disarm. On the order of the authorities, disarm." Wow. What an

24 extraordinary imagination. So put down your arms is the first step in

25 most genocides? I honestly don't know what to say. I honestly am

Page 15184

1 speechless when I hear those words and that tactic uttered.

2 But I do have a proposition for the Office of the Prosecution.

3 Perhaps the Madam Prosecutor next time she visits the United Nations at

4 the Security Council, she can share with them the Prosecution's view that

5 as in most genocides, the first thing that happens is a request to disarm.

6 Share that view with the Security Council. In fact, when Madam Prosecutor

7 shares that view, she should bring with her Security Council resolution

8 number 752 dated May 15th, 1992, involving specifically Bosnia and

9 Herzegovina where the Security Council themselves in a unanimous decision

10 on paragraph 5 -- I can have it if the Court would allow for the usher to

11 please place it on the ELMO. This document, and the Court can take

12 judicial notice of it pursuant to the Rules of Procedure and Evidence of

13 this Tribunal, with respect to this document involving Bosnia and

14 Herzegovina May 15th, 1992, within the period of the indictment involving

15 the territory that's at issue, at that time, the Security Council with all

16 its wisdom certainly didn't buy into the Prosecution's rather broad and

17 general attempt to muddy the waters by suggesting as in most genocides,

18 the first thing that happens is a call or a request for the victims to

19 disarm.

20 Paragraph 5 states, I believe it's clear although I'm reading from

21 my notes: "Demands further that all irregular forces in Bosnia and

22 Herzegovina be disbanded and disarmed." Is really disarming the first

23 step to genocide as the OTP alleges and claims? If the Court looks at the

24 date of that resolution and matches it with the date of documents which

25 call for disarming, he'll find that it was consistent with what the

Page 15185

1 Security Council felt was appropriate, not appropriate to start genocide,

2 not appropriate to victimise innocent citizens, but appropriate to calm

3 tensions, appropriate to remove future tensions and provocations,

4 appropriate as an attempt at peace, not genocide.

5 What can we infer from the comments suggested by the Prosecution,

6 that Dr. Stakic's alleges call to disarm was his first step to a plan, a

7 criminal plan, a joint criminal enterprise to destroy Croats and Muslims?

8 What was the intent of the Security Council Resolution 752? I hope that

9 the Office of the Prosecution doesn't suggest that the Security Council

10 asked people to disarm because that was the first step to genocide, or in

11 their fanciful imagination, are they, too, part of this wide and broad

12 joint criminal enterprise. In their fanciful extraordinary imagination,

13 could it be possible that their inference is not only illogical and

14 unreasonable but completely distorted and untrue? Quite frankly, I don't

15 mind aggressive advocacy. However, advocacy which distorts purposefully

16 facts and which tries unnecessarily to obtain advantage are absolutely

17 prohibited and should not be allowed.

18 The Office of the Prosecution next discusses magnitude of

19 killings. They don't give the Court an honest view of that. They don't

20 share with the Court the military reports which clearly and unequivocally

21 cite that the killings in the Prijedor Municipality were random, sporadic,

22 and uncontrollable. They don't give their military expert or consultant

23 all the evidence so that he could reach a reasonable conclusion based on

24 the military reports that were made contemporaneous with the events in the

25 spring and summer of 1992, that there is no doubt, and if any doubt,

Page 15186

1 little doubt, that the crimes that were committed were indeed sporadic,

2 random, and uncontrollable. That would certainly fly against their broad

3 theory that Dr. Stakic had a plan, that Dr. Stakic was part of a plan, a

4 criminal plan, a joint criminal enterprise.

5 When they discuss joint criminal enterprise and the purported

6 participants in their fourth amended indictment, the Court will find that

7 they list few and give us the legal "among others." Who are they? We're

8 here for the truth. We know it's not the Security Council, although based

9 on the Prosecution's evidence perhaps I'm not so sure. We know that their

10 theory is overly broad and inconsistent with the evidence. We know that

11 of the participants that they identified as coconspirators in this joint

12 criminal enterprise, none of their documents were produced to us. None of

13 the documents from General Talic, Radovan Karadzic, Biljana Plavsic,

14 Arsic, Zeljaja, even Simo Drljaca, even the late Dr. Milan Kovacevic, none

15 of their Rule 68 documents were ever produced to the Defence. Why? What

16 is the inference? The inference must be that there is a lot of evidence

17 against these individuals, that's why they didn't bring it in. They

18 didn't want to dirty our case. They didn't want to have too much evidence

19 against Dr. Stakic. Or in reality, is the evidence that if this Court and

20 if this Tribunal had collectively all the evidence of these purported

21 joint criminal enterprise perpetrators, that it would be little, there

22 would be little doubt that Dr. Stakic would be found innocent of the

23 crimes alleged?

24 Magnitude of the killings. I suggest to the Court and Your

25 Honours that when viewing the magnitude of killings and their argument on

Page 15187

1 that, look for things like where, when, and over what period of time did

2 these atrocious acts take place? Do not accept their view and some

3 computer-generated chart which suggests that in May of 1992, 112 Bosnian

4 Muslims and Croats died. It's impossible based on the evidence. Imagine

5 this: Three attacks in May. May 22nd, the military with an intent to

6 destroy, with the pretext, attacks Hambarine. Several days later, the

7 military with a pretext attacks Kozarac. And according to the

8 Prosecution, they were preplanned and premeditated. They had a wonderful

9 formation, typical military formation. And then several days later, they

10 bombard Stari Grad after an attack on the city/town of Prijedor, May 30th,

11 1992. If there was a campaign to destroy Croats and Muslims, having three

12 pretexts in May, wouldn't they, the army, military, these coconspirators,

13 those people who were so well armed against the unarmed civilians,

14 wouldn't they have been able to implement and complete their plan and kill

15 more than 112?

16 We're going to ask the usher, with the Court's permission, to

17 place S281-3 on the ELMO, please. Thank you.

18 Now, the OTP relies on yet another in-house expert or consultant.

19 I forget how he likes to be referred to. Mr. Nicolas Sebire. And this is

20 his exhibit, S281-3. And I believe the Court can see that in fact based

21 upon Mr. Sebire's analysis and his thorough and objective review that in

22 May 1992, 112 Bosnian Muslims and Croats were killed. Three attacks, a

23 criminal plan, a plan to destroy the Croats and the Muslims, and they kill

24 only 112 in a critical month where the Prosecution claims was a pretext.

25 You know what I think this graph is, I think this graph is a fraud, and I

Page 15188












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Page 15189












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Page 15190

1 think this graph is a pretext to an argument that the Office of the

2 Prosecution had at one point. Their argument at one time was "let's see

3 if we could fit all the crimes during the period of time that the Crisis

4 Staff was in existence." May 20th through July 24th, 1992. That's why

5 Nicolas Sebire assists the Prosecution and says "that's easy. We have the

6 sophistication, we have the knowledge, the lack of integrity, and we will

7 put all of the deaths or most of the deaths within those three months. So

8 we will shift all the blame on the Crisis Staff." The OTP states with

9 confidence that from Mr. Sebire's report and his database of 900 or so

10 deaths "we see that the crimes escalated, reached their peak in July, but

11 May, June, July, and August, and then last for August, the reason that

12 that happened is the visit of the journalists. When the eyes of the world

13 focussed on Prijedor, the genocide could no longer be carried out." Is

14 Mr. Sebire really a witness that the Court should give any weight to? Is

15 he credible based on this graph that they rely on so convincingly and with

16 such confidence in their closing argument?

17 What Mr. Sebire forgot to do was to check and see if their

18 strategy and tactics changed. What Mr. Sebire forgot to do was to read

19 the fourth amended indictment. Let's take a look at August. I know I'm

20 not a mathematician or a statitician or perhaps I can't read very well,

21 but I think I can decipher the facts that Mr. Sebire and the Office of the

22 Prosecution are simply distorting the facts before this Tribunal. August

23 of 1992. What's their position? It all depends what you read. It's a

24 moving target. If you read the fourth amended complaint, on August 5th,

25 1992, 120 Bosnian Muslim and Croats were liquidated and killed. 120.

Page 15191

1 They have alleged it. They have even said it in their closing argument.

2 Let's look at what Mr. Sebire says in his graph which was purportedly

3 objective. He says 108. I've never studied addition by subtraction, but

4 Sebire certainly should have known by reviewing the fourth amended

5 indictment that something is wrong with his graph. Something is wrong.

6 What's wrong with it is this graph was a graph that was used in another

7 case, I suggest, that seems to indicate "let's put all the crimes during

8 the period that the Crisis Staff was in existence."

9 Is it true what the Office of the Prosecution suggests when they

10 tell us about this exhibit S281-3, that: "The reason that there was fewer

11 crimes and killings in August was because of the visit of the

12 journalists. When the eyes of the world focussed on Prijedor, the

13 genocide could no longer be carried out." 120 on August 5th, 1992. We

14 can say that it's a small amount, and if we have a margin of error, which

15 Dr. Tabeau doesn't understand, but I'm confident that most of us do. If

16 we have a margin of error, it's close, 120, 108. How credible is his

17 report when in the indictment the Prosecution says that 200 Bosnian

18 Muslims and Croats were executed at Mount Vlasic, their graves exhumed

19 with the participation and assistance of Mr. Sebire. Is there any doubt

20 that unforeseen -- unforeseeable criminal act happened on August 20th,

21 1992? How does Mr. Sebire come up with the analysis after reading the

22 fourth amended complaint, indictment, participating in the exhumation,

23 reviewing the evidence in this case? How does he come up with the 108?

24 His evidence in whole is not credible. Their charts and their

25 graphs in whole should be rejected and dismissed. None of the evidence

Page 15192

1 offered by their experts in my view are deemed reliable. But all it was

2 was a sophisticated, computer-generated support for the Office of the

3 Prosecution and their "whenever and whatever" theory of the case.

4 The Defence has tried with some restraint to present a balanced

5 approach, to present evidence that is indeed objective, evidence that

6 indeed comes close to the truth, to the best of the recollection of the

7 individuals who live there. The Prosecution makes some argument about the

8 late Dr. Eso Sadikovic and how if he were given an opportunity to speak at

9 one of the detention centres in August of 1995, how the world would have

10 known what was going on. Needless to say -- 1992, sorry, obviously. I

11 want to get to another subject that covers 1995, so I'm ahead of myself.

12 When he mentions the late Dr. Sadikovic, he mentions that he's a

13 good man, he mentions that he's an honest man, that he's a peacemaker. He

14 mentions also somewhat shockingly that he's married to a Serb. What

15 difference does it make? What difference did it make? Is it true that

16 they're now striking at our emotional strings and at our hearts? When the

17 Defence brought what we considered a balanced view of Muslims, of Croats,

18 of Serbs, of other non-Muslims and non-Serbs to testify, one of their

19 first, and I must say consistent questions, who are you married to? Who

20 is your brother-in-law? Do you have any Serb blood in your family? Is

21 that in an attempt to increase the weight that should be given that

22 witness? Or is that a subtle attempt to signal the Court "he's part Serb,

23 dismiss his testimony as a whole"? Yet, on the other hand, when the late

24 Dr. Sadikovic is discussed, it's a badge of honour to say that he was

25 married to a Serb. What they're trying to do, as I stated this morning,

Page 15193

1 is to have a double standard. Their graphs are inappropriate, should be

2 rejected. Their arguments when honestly and objectively analysed, such as

3 as in most genocides, the first thing is to disarm, are truly, truly

4 inappropriate and do not have any basis in either law or fact.

5 We talked a little bit about their evidence and what they're

6 relying on and how they have weaved the fact that Dr. Stakic in 1991

7 became vice-president. Forget about that he spoke of peace. In January

8 of 1992 when the parallel government was established, forget about that it

9 was public, ignore the fact that he spoke about peace at that time as

10 well. Don't allow yourself to know or learn that on May 9th, Dr. Stakic

11 spoke of peace publicly, openly, consistently. One week later on May

12 16th, he did the same in a public forum. They don't even address our

13 evidence. D99, if that can be placed on the ELMO. They talk about some

14 link between Dr. Stakic and the police because their case has been --

15 excuse me. If you can just hold on. Their case has been rendered or has

16 been reduced simply to blaming everything on the police and simply trying

17 to use broad baseless unfounded arguments to connect and establish a link

18 between the police and Dr. Stakic.

19 Why do they go painstakingly through Kozarski Vjesnik to find even

20 the slightest negative quote that Dr. Stakic may have made. Why don't

21 they fulfill their duty and obligation and say, We will put forth to the

22 Court the truth and show the Court if other purported coconspirators in

23 this joint criminal enterprise, if they said something to exonerate

24 Dr. Stakic during their interviews and the civilian authorities. That's

25 not their mandate. That's not their job. Their job is to convict at all

Page 15194

1 costs. Their experts prove that. Their graphs prove it. Their arguments

2 certainly prove it.

3 Kozarski Vjesnik, the 9th of April, 1993, an interview with Simo

4 Drljaca, if it can be please placed on the ELMO, first the first page that

5 we can that. It's marked as D99. The Court will remember the argument

6 that was raised by the Office of the Prosecution. It's outside the time

7 period of the indictment. It's irrelevant. They used that argument

8 consistently when there's any evidence to exonerate Dr. Stakic. Page 2 of

9 that article clearly states within one year, not two years later like some

10 interviews we heard Dr. Stakic gave, within a year of the tragic events in

11 the spring and summer of 1992 in Prijedor, Simo Drljaca states

12 unequivocally, and it's in the last paragraph, second sentence -- third

13 sentence: "After the takeover of authority, however, the new people did

14 not understand the real role of the police. The attempt to transform the

15 police into a council body which would execute orders given by the council

16 civilian authorities was unacceptable and misunderstandings arose."

17 Simo Drljaca April 1993 states that the civilian authorities

18 wanted to obtain some sort of relationship so that the police would

19 execute their orders, but he says "it was unacceptable because" and the

20 only reasonable inference we can draw from that comment is that there was

21 no one who was superior to Simo Drljaca in Prijedor in 1992. How could

22 they reconcile this? Did other witnesses perhaps talk or share with us

23 misunderstandings that arose between Mr. Drljaca and the civilian

24 authorities? Ignore it. It doesn't fit their case. Ignore it because if

25 you accept that evidence which is verified by Mr. Drljaca himself, then it

Page 15195












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Page 15196

1 would create a reasonable doubt, and the Prosecution would fail in meeting

2 their burden of proof.

3 How can we reconcile these issues, the only honest way and the

4 only objective way to reconcile them is in favour of Dr. Stakic. The only

5 reasonable inference from the evidence is that Dr. Stakic is innocent.

6 The only reasonable inference from the circumstantial evidence that even

7 the Prosecution brings forth is that Dr. Stakic should be acquitted. The

8 only reasonable inference is that Dr. Stakic was at no time a participant

9 in a purported joint criminal enterprise. At no time did Dr. Stakic

10 possess or have any criminal mens rea or intent against the Bosnian

11 Muslims or Croats in Prijedor.

12 Let's take it one step further: Let's assume that the Office of

13 the Prosecution has a duty and an obligation to put forth evidence in an

14 honest, objective, and truthful manner. Why not give this statement that

15 Drljaca gave to the military expert? Let's see what he would think about

16 it or opine about it. Why not get their in-house personnel, their police

17 officers who do a masterful job of search and seizures and following the

18 rules of chain of command, why not have them interpret or opine what that

19 statement means? The presumption of innocence is with Dr. Stakic. The

20 inference as to their lack of presentation of police experts and lack of

21 presentation that anyone evaluates or analyses these documents, the

22 inference is that Dr. Stakic is not liable for any of these crimes, is not

23 culpable for the atrocity that happened in Prijedor.

24 We can go one step further in a logical manner and say we looked

25 at the evidence as to what type of person Mr. Drljaca was. We brought

Page 15197

1 evidence in connection with that; the Office of the Prosecution didn't.

2 It never argued Mr. Drljaca was a man who followed authority, respected

3 authority, knew when not to cross the line with any authority, civilian,

4 military, or police. What happened in 1997? What happened to Mr. Drljaca

5 in 1997 is consistent with Mr. Drljaca's unfortunate character,

6 personality, and reputation. When he was shot and killed, he again did

7 not stop for the authorities. He did not in 1997. He certainly in 1992

8 would never have allowed himself, as he so says, to fall under or to be

9 subordinate to the civilian authorities in Prijedor. The inference clear

10 as day is that there is no link between the police and Dr. Stakic, between

11 the police and the political civilian authorities. However, if we're

12 blinded by emotional tactics, blinded by someone pulling at our heart

13 strings, we will ignore all that evidence. We will certainly not view

14 that evidence objectively and pursuant to the law.

15 Now we're discussing Mr. Drljaca, and if the Court remembers, on

16 the 23rd of March, 2003, there was another brief exchange between the

17 parties. And the Defence sought to present to the Court their 65 ter

18 number 584, which discusses and is a document from 1994. The Prosecution

19 in its fairness, in reaching its mandate, they object and they state:

20 "It's not relevant. The indictment -- it's not relevant to the

21 indictment. It's a 1994 document." The Court unfortunately stated:

22 "After deliberations, dismissed as not relevant."

23 How is the fact that the Office of the Prosecution can sit here

24 and tell us last Friday that Simo Drljaca was brought back to Prijedor

25 hand in hand with Dr. Stakic in 1996 when the evidence that the Defence is

Page 15198

1 trying to prove and in fact established that in 1994, Simo Drljaca was

2 already placed in and was the chief of police in Prijedor, two years

3 before Dr. Stakic returned? But according to Ms. Sutherland, when she

4 shares with the Court, she says it's not relevant to the indictment. It's

5 a 1994 document. I would think that if it's not relevant, they should

6 stand on that position. I was rather surprised to have them now discuss

7 that bringing in 1996 purportedly Mr. Drljaca with Dr. Stakic back in the

8 municipality of Prijedor is an element or a factor that this Court should

9 consider. Double standard? Of course not.

10 It's okay if they talk about 1996. Talk about it honestly. Tell

11 the Court honestly when Mr. Drljaca became the police chief in the

12 Prijedor Municipality. Don't cloud the issues. Don't muddy the waters.

13 It's unfair, it results in a travesty of justice. It honestly shocks the

14 conscience when you review arguments such as those made by the Office of

15 the Prosecutor, when they're restrained from discussing Dr. Stakic's

16 brother, when they're restrained from a baseless and unfounded allegation

17 of flight, and yet in a subtle way, less than one month ago, they say that

18 the document that shows Simo Drljaca was the police chief in Prijedor in

19 1994, it's not relevant to the indictment, but then they come into Court

20 and they tell us that they came hand in hand.

21 As the late Professor Cehajic said and as Dr. Stakic always

22 maintained, the truth will come out and justice will prevail so long as we

23 analyse critically and objectively each of the arguments, each of the

24 allegations and assertions made by the Office of the Prosecution. We

25 cannot and most respectfully to the citizens of Prijedor, particularly

Page 15199

1 those victims who are Bosniaks and Croats, but we cannot view this case

2 from the end result and to try to show justification and to shift blame

3 for the atrocities that they have suffered and continue to suffer. We

4 cannot allow the justice system to be the avenue in which blame unjustly

5 and unfairly would be shifted to an individual. Certainly the witnesses

6 that we heard, listened to, discussed, not one of them, including the

7 honourable Dr. Minka Cehajic, who was extremely, extremely passionate when

8 she testified, one of the persons who we would expect as a reason to

9 blame, a reason to find guilt with others, her husband being the past --

10 the predecessor of Dr. Stakic, the president of the Municipal Assembly,

11 she could have easily said if she believed in her heart that Dr. Stakic

12 was guilty, she would have and she could have. But she didn't. Why? Why

13 didn't Dr. Minka Cehajic say that Dr. Stakic is responsible? Why didn't

14 Dr. Minka Cehajic say that Dr. Stakic should be given a life sentence for

15 the crimes that occurred in the Prijedor Municipality? Is it because she

16 knew Dr. Stakic? Knew him well? Liked Dr. Stakic? Liked him well? Of

17 course not. The only reasonable inference we can draw from her testimony

18 is that being a well-educated, a well-informed individual, knowing that

19 her husband, her late husband, Professor Muhamed Cehajic, held the same

20 position as Dr. Stakic, she knew and knows today that Dr. Stakic at that

21 time was indeed powerless and had no authority over the sporadic, random,

22 and uncontrollable criminal acts and killings that occurred.

23 We obviously thank all the witnesses who participated in this

24 trial. We know it was very difficult for them, and we know that they

25 continue to suffer. Our deepest sympathies go out to them as they have

Page 15200

1 from the outset. We acknowledge and appreciate the courage that they have

2 and had to participate in what they deem to be in which I still believe is

3 a fair and just system, despite the Office of the Prosecution's tactics.

4 Now, the Office of the Prosecution decides in a subtle way, of

5 course, that it's not enough because we don't have enough evidence, so we

6 must continue to muddy the waters. And let's pull out some quotes from

7 Dr. Stakic that he talks about the jihad, that he talked about Islam and

8 how that is offensive and how that is wrong and how that in some manner

9 equates to criminality. But what the Office of the Prosecution doesn't

10 want to focus on, when were those comments made? Do we have any evidence

11 that Dr. Stakic made those comments before or during the period of the

12 indictment? What we do have and what this Court can take judicial notice

13 of are two, at least two, public indictments against Sefer Halilovic and

14 Mehmed Alagic under IT-01-48 and IT-01-47. Why is that significant?

15 Well, in the OTP's indictment, although they find the mention of jihad

16 repulsive and criminal, they state: "The mujahedin who principally came

17 from Islam, from Islamic countries, began to arrive in Bosnia and

18 Herzegovina sometime during the middle of 1992." The Office of the

19 Prosecution continues to state: "They were prepared, the mujahedin who

20 came from the Islamic countries in 1992, they were prepared to conduct a

21 `jihad' or `holy war' against the enemies of Bosnia and Herzegovina and

22 Muslims."

23 The Office of the Prosecution makes that allegation against the

24 Muslims. If it's mentioned by a Serb, it is criminal. The Office of the

25 Prosecution does have a double standard. The fact that in 1994 and

Page 15201












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Page 15202

1 sometime later, Dr. Stakic made what would be considered impolite, wrong,

2 inaccurate comments should not have even been allowed in this case, should

3 not have been permitted to be brought forth if we have a fair system and

4 if, according to the Prosecution on the 23rd of March, 2003, it's

5 irrelevant because it's outside the period of the indictment. It's 1994.

6 The fact that evidence that the Defence would like to put forth regarding

7 Simo Drljaca in 1994 is not relevant. It becomes relevant when

8 bald-faced, unfounded allegations are made relating to 1996. It becomes

9 relevant when they're given the opportunity unilaterally to discuss

10 interviews of Dr. Stakic of 1994. They talk about jihad and the holy

11 war. They mention it in their public pleadings. What expert were we able

12 to convince or to help us understand whether there were paramilitary units

13 in Bosnia and Herzegovina and in Prijedor in mid-1992? Every time we

14 mentioned the Green Berets or the Patriotic League or other paramilitary

15 formations such as Ramsay's group, we were confined, restricted, and asked

16 to move on.

17 The Office of the Prosecution in their attempt to be objective

18 calls their experts and, as I've stated earlier, only haphazardly give

19 them documents to review. What about D12? Probably everybody's thinking

20 "what about it?" D12 I think is an important document. It's a document

21 that the Office of the Prosecution always had, continued to have in their

22 possession, but refused intentionally to give it to their experts, their

23 military expert, their police experts, their computer experts, or any of

24 the multiple in-house consultants that they have at their fingertips. Why

25 is D12 so important?

Page 15203

1 If the assistance of the Court the usher may be permitted to place

2 the document on the ELMO. It is a military report that was compiled on

3 the 17th of November, 1993. It's a military report of some significance

4 because it shows and helps us understand the conflict as it may have

5 existed, but that's something that we don't necessarily want because it

6 might detract from the theory, from the goal, from the mandate of the

7 Office of the Prosecution. And that is they're looking for a conviction

8 at all costs. I would think that if I were to hire a military expert or

9 use one in-house, I would tell him to be cautious of this document and to

10 somehow in their creative way come up with an argument to distort, as they

11 have the other evidence, or to dismiss the factual basis within that

12 document. It is an enormously lengthy document prepared with an

13 incredible amount of detail. In fact, when given the opportunity, there

14 is no doubt that the Office of the Prosecution knows in their hearts that

15 this document is fair and is honest. They themselves on page 2 of that

16 document, if I may, on the top portion of that document, the Court will

17 see is a note from an employee from the Office of the Prosecution. That

18 note, after someone reviewed the document, tells us in essence "the

19 statement seems unbiased" on the fourth line down, "and is equally

20 critical of Muslims and Serbs." In the possession of the Office of the

21 Prosecution, they have evidence that their own staff, their own personnel,

22 conclude that it's unbiased, critical of both, yet do they ever give it to

23 any of their experts? Yes, they should, if their mandate was to have a

24 fair trial, if their mandate was to show the Court what the truth was.

25 Instead, they recreate evidence, manipulate facts, and distort the

Page 15204

1 reality before this Court. What is the inference we should obtain or draw

2 from the fact that this document was never utilised by any of their

3 experts? Another mistake. Another omission. We know this Court has been

4 enormously generous with both sides in giving us ample opportunity to

5 present evidence. In fact, when it came to the prosecutorial experts,

6 they were given numerous occasions to recreate, redraft many of their

7 computer-generated data, graphs, and figures. Why wouldn't their expert,

8 why wouldn't the Office of the Prosecution, knowing what the mandate is of

9 this Tribunal, simply give this document in excess of 300 pages to their

10 expert and tell him "review it" -- strike that, in excess of 220 pages,

11 "review this document, D12, how would it impact your testimony, how would

12 it change any of your opinions?" We know what the answer is, but pacify

13 us, indulge us. The answer that Mr. Brown and every one of those experts

14 would give is that it doesn't affect my opinion. It wouldn't change my

15 analysis. It simply is a non sequitur. But then we can judge -- the

16 Court can judge and assess in reality what weight to give those experts,

17 what weight to give the credibility of the statements that they offer

18 here. Why wouldn't the Office of the Prosecution contact their expert and

19 say, "Here's an exhibit you haven't reviewed. Let's do the right thing.

20 Let's do the honest thing. Let's have you review it, and we'll make an

21 application to this Court that you reviewed it and would like to submit a

22 supplemental opinion and report."

23 Thank you.

24 Next topic -- would we like a break? Yes, thank you, Your Honour.

25 JUDGE SCHOMBURG: The trial stays adjourned until 5 minutes to

Page 15205

1 4.00.

2 --- Recess taken at 3.35 p.m.

3 --- On resuming at 4.03 p.m.

4 JUDGE SCHOMBURG: Please be seated.

5 Mr. Ostojic, you have all the time of the world, but may I ask

6 you, can you conclude within the next 60 minutes?

7 MR. OSTOJIC: Yes, Your Honour, I will.


9 MR. OSTOJIC: May I proceed, Your Honour? Thank you.

10 Your Honour, we're discussing briefly the allegation that there's

11 a link between the police and Dr. Stakic in this case, and the Office of

12 the Prosecution's theory has quite frankly and in essence been reduced to

13 simply that allegation. And it's Simo Drljaca and the crimes by the

14 police officers in the Municipality of Prijedor that should be somehow

15 attached to Dr. Stakic. The only way that the Office of the Prosecution

16 can meet their burden of proof beyond a reasonable doubt is if they ignore

17 the evidence of the witnesses that the Defence called and the witnesses

18 that the Court called. Those witnesses discussed at length what

19 influence, what authority, what instructions political civilian leaders

20 can give to the police. Both the Defence witnesses as well as the

21 witnesses called by the Court unequivocally, uniformally, and unanimously

22 stated that the civilian political authorities could not and did not in

23 the municipality of the Prijedor in the spring and summer of 1992 control,

24 instruct, order, direct the police.

25 The Office of the Prosecution in their tireless efforts to meet

Page 15206

1 their mandate shows us Exhibit S107A, and they purport in their oral

2 argument that it's a document prepared by Mr. Simo Drljaca on the 31st of

3 May, 1992, where he states in the first paragraph, and with the Court's

4 permission and the usher's assistance, we may place it on the ELMO, I'll

5 begin reading and I'm sure we can all catch up: "With a view to the

6 speedy and efficient establishment of peace on the territory of Prijedor

7 Municipality and in accordance with the decision of the Crisis Staff, I

8 hereby order the following" in the first paragraph. My colleague and

9 learned friend Mr. Lukic spent some time with witnesses trying to

10 establish how could someone who writes this letter, if given authority,

11 why would he do so in a singular form and say "I hereby order" as opposed

12 to "we hereby order." The interesting thing about this document, Your

13 Honour, is that the Office of the Prosecution relies heavily on this

14 document to show that there was some connection between the police and the

15 civilian political authorities. But once again, not surprising, the

16 Office of the Prosecution in a broad manner fails and ignores to discuss

17 the document in its totality completely and thoroughly. Instead, they

18 highlight the first paragraph, but refuse and otherwise ignore to review

19 what Mr. Drljaca writes on paragraph 15 of this critical document of

20 theirs. They talk to you briefly about the issues of knowledge, effective

21 control, substantial participation, but they do not mention in their

22 objective and honest efforts paragraph 15 of Document S107A.

23 Paragraph 15, Mr. Drljaca again in the singular states: "I most

24 strictly prohibit giving any information whatsoever concerning the

25 functioning of this collection centre." He continues to say: "All

Page 15207












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13 English transcripts.













Page 15208

1 official documents shall be kept at the collection centre and may be taken

2 out or destroyed only with the permission of the chief of the Prijedor

3 public security station."

4 We can break this document and these sentences down to see what

5 the inferences should be, what the honest and objective, reasonable,

6 logical inferences must be. Does Simo Drljaca here provide any

7 information to the civilian political authorities regarding the atrocities

8 that were occurring at the camps? Of course not. The inference is and

9 the only reasonable inference by virtue of the OTP's document is that it

10 was prohibited and restricted from telling anyone or discussing with

11 anyone the activities in these, as they call them on the third line

12 "collection centres."

13 Does Simo Drljaca in this paragraph 15 of Document 107A state that

14 the documents shall be kept at the Municipal Assembly building? No. To

15 be kept under his control at the "collection centres." Mr. Simo Drljaca

16 says who can take out the documents and who must obtain permission to take

17 out those documents. Can we infer that the civilian political leaders are

18 able to take out documents from this collection centre, detention

19 facility, camp? Or was there truly no one superior to Simo Drljaca in

20 Prijedor in the spring and summer of 1992 which gave him the absolute

21 right to say that only he can authorise it and that only he can decide who

22 can get any such information? Is the reasonable inference that there is a

23 link between the police and the civilian municipal authorities as a result

24 of S107A, or is it honestly fair when you look at this document to state

25 that paragraph 15 simply exonerates the civilian municipal authorities --

Page 15209

1 and it's clear that any knowledge alleged by the Office of the Prosecution

2 is baseless unless they reconcile reasonably, logically the provisions of

3 paragraph 15 as quoted by Mr. Drljaca on the 31st of May, 1992.

4 The Office of the Prosecution does not address many of critical

5 issues necessary in order to obtain a conviction. Thank you. They do

6 from time to time, as I've stated on several occasions, touch our

7 emotional hearts by talking about the magnitude of killings, by discussing

8 some rather tragic and horrific experiences that occurred in Prijedor.

9 Once again, it's my position that their documents and their arguments are

10 completely and wholeheartedly distorted. When they discuss an issue of

11 such sensitivity as the killing of 200 men at Mount Vlasic, do they

12 address the Court's concern as to whether these killings were natural and

13 foreseeable? Of course not. They argue under the cloth of magnitude of

14 killings that everything was foreseeable and natural.

15 When they talk about the intervention platoon and the request to

16 form an intervention platoon, did they provide any evidence that the

17 intervention platoon was actually formed pursuant to the request? Do they

18 share with the Court that on June 17th, 1992, the task of the request to

19 form an intervention platoon was not, as they allege, to kill innocent

20 Muslims and Croats in Prijedor, the task, the hope was to reduce the level

21 of crime, looting, and theft that was occurring in the municipality. The

22 order, the request of June 17th, 1992, that the intervention platoon be

23 formed clearly and unequivocally states: "The basic task of preventing

24 theft and other criminal activity on the municipal territory."

25 What is the inference? The inference, if you have an

Page 15210

1 extraordinary imagination, as we know the Prosecution does, that with most

2 genocides, the first thing you do is disarm. This, too, according to them

3 is an element that if you form or request that a form to prevent theft and

4 to prevent criminal activity is merely yet another element of a criminal

5 plan, of a joint criminal enterprise that manifested itself over two

6 months after the request to be formed, so from June 17th through August

7 20th, their theory is that it's that intervention platoon. What they

8 don't give to the Court, what they refuse to give to the Court, what they

9 refuse to give to their experts are the military daily reports which show

10 unequivocally and without doubt that there were numerous groups,

11 individuals who were committing sporadic, random, and uncontrollable acts

12 of violence within the municipality. Not within some common design, not

13 within some joint criminal enterprise, not within a criminal plan.

14 Individuals without any rationale, without any dignity were performing the

15 killings in the Prijedor Municipality. It's convenient for the Office of

16 the Prosecution to twist and to manipulate the facts so that they can

17 distort the truth. However, they should reconcile for us, and I'd like to

18 hear their creative argument, how is it that when you issue a request

19 asking that an intervention platoon be tasked to prevent theft and

20 criminal activity, how does that in any logical or reasonable manner

21 transform itself into being a directive to kill, a directive to commit

22 massacre, a directive to commit atrocities?

23 The Prosecution is persistent in muddying the waters. The next

24 claim in their oral argument, the uniforms are an enormously big issue.

25 Let's show a picture of Dr. Stakic in a uniform. That should strike the

Page 15211

1 Trial Chamber in a negative manner. That should be held against

2 Dr. Stakic. That in and of itself, according to their imagination, is a

3 criminal act. What they don't do is give the Court the honest assessment

4 of that fact. They don't share with the Court the honest view of things

5 as they existed in Prijedor in 1992. If we may have S42, with the Court's

6 permission and the usher's assistance, on the ELMO. S432.

7 While they're putting that on the ELMO, the Office of the

8 Prosecution --

9 JUDGE SCHOMBURG: May I ask you once again, please slow down a

10 little bit. I like the French language very much, but unfortunately, it's

11 a little bit longer than the English one. So therefore, thank you.

12 MR. OSTOJIC: Thank you, Your Honour. I apologise.

13 Now, the Office of the Prosecution in their clever attempts to

14 highlight some of the evidence told us that the Crisis Staff ordered

15 uniforms. Crisis Staff ordered uniforms. I'm requesting that this Court

16 examine every word that the Office of the Prosecution alleges, every

17 sentence is distorted. All the evidence that they bring forth is

18 distorted. Here we have a document, S432, despite what the Office of the

19 Prosecution says, Crisis Staff ordered uniforms. Second paragraph of that

20 document clearly states "the Prijedor Municipal Assembly acquired a

21 certain quantity of material for sewing flags and green camouflage

22 uniforms," et cetera. Not the Crisis Staff. What importance does that

23 make? What distinction? Does that distinction make any difference in our

24 case? It does when you review in its totality the credibility of that

25 which the Office of the Prosecution is offering. It matters a lot when

Page 15212

1 they misstate purposefully and misconstrue and distort facts in order to

2 cloud the issues, to meet their mandate and goal of a conviction.

3 Also, I'm being reminded that the document references, as I

4 stopped reading it, green camouflage uniforms according to delivery notes

5 227/92 of 3 May 1992. Clearly, from the evidence that they saw, that they

6 produced, the Crisis Staff was not in existence on the 3rd of May. They

7 want it to be. They need it to be. But they have no proof.

8 The inference, however, and how I view their analysis and attempt

9 to sway this Court does not end here. The distinction is small to say

10 that the Office of the Prosecution is unfair on one hand to suggest that

11 the Crisis Staff ordered uniforms, but in fact it was the Municipal

12 Assembly. However, I believe it's their duty and obligation to share with

13 the Court and to analyse with the Court if not the Defence evidence and

14 the Court's evidence, at least be honest enough with the evidence that

15 they put forth. With respect to uniforms, a young man by the man of

16 Mevludin Sejmenovic testified, he testified over a long period of time.

17 He testified both in direct and cross-examination. He testified that when

18 he was at one of the camps, the journalists were asked who came on the 5th

19 of August if they wanted to interview him. They refused. They did not

20 want to talk to politicians. So he was not interviewed by the British and

21 American press. But we'll analyse that in our briefs in greater detail.

22 Uniforms, does Mr. Sejmenovic address the issue of uniforms? I

23 believe he does. In his testimony, specifically on pages 4.857 ending on

24 page 4.858, he states, on line 20, 4.857: "Q. Okay, before the takeover,

25 when you saw Dr. Stakic in the Assembly or elsewhere, was he wearing --

Page 15213












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Page 15214

1 did he ever wear a uniform?" Answer by Mr. Sejmenovic, the OTP witness

2 who testified in several cases: "Not usually, no. But I think I did see

3 him in uniform once, but I can't confirm that absolutely because most of

4 the deputies at the last meeting did wear uniforms. We didn't like

5 wearing uniforms, but they said it was wartime and they had been mobilised

6 and that was quite usual."

7 You see, Mr. Sejmenovic as a deputy before April 30th, 1992,

8 acknowledges, admits that he, too, was required to wear a uniform. He,

9 too, wore a uniform and was in attendance at a meeting where uniforms were

10 being worn, green camouflage and the like.

11 It is simply wrong and distorted not to review Mr. Sejmenovic's

12 comments about uniforms in light of their allegation that the uniform is

13 part of a criminal plan, the wearing of a uniform is part of this joint

14 criminal enterprise. The inference from what Mr. Sejmenovic suggests is

15 plain and obvious; the uniform did not and does not matter. It's only a

16 further attempt by the Prosecution, because they weren't given the

17 opportunity to talk about Dr. Stakic's brother, they were not given an

18 opportunity to talk about issues of flight, that they can further cloud

19 and muddy the issues.

20 Next issue, if I may, agenda. The Office of the Prosecution

21 expense an enormous time talking about agenda, how important it is. Did

22 they forget the Court called a witness, that the Court ask Mr. Slavko

23 Budimir about agendas, how they were set, who set them, what the

24 discussions were? Of course they forget. Not intentionally. It was

25 simply an omission, just like with their experts when they omitted to

Page 15215

1 review the totality of the evidence before they present an argument. Just

2 like when we make an argument that as in most genocides, disarming people

3 is the first step to genocide. It was an honest omission. Review the

4 testimony of Mr. Budimir in its totality, and we'll find what weight and

5 credibility the argument that Dr. Stakic may or may not have set the

6 agenda is truly worth being called a criminal plan or an element to

7 satisfy criminal conduct.

8 I must say that I have been somewhat critical of the purported

9 in-house experts by the Office of the Prosecution. We fought very hard

10 and argued very vigorously that a search and seizure of Dr. Stakic after

11 his arrest without a proper chain of custody is a violation of all

12 fundamental rights. We lost, unfortunately, on that issue. If we can

13 have, with the Court's permission, the exhibit that was utilised Friday

14 which had Dr. Stakic's ID card and purportedly, as my learned friend said,

15 his membership card to the SDS. I can't recall the number, and I

16 apologise to the Court. S235-12.

17 Thank you. Now, Your Honour, I've made some rather strong

18 statements, but I think I've backed them up when I say that they distort

19 the evidence and they don't put forth the truth and don't tell the Court

20 what a reasonable inference should be based upon the totality of the

21 evidence. Viewing Exhibit S235-12, if we can just pan out a little to get

22 the entirety of the document, and my objection to Mr. O'Donnell's creative

23 way of performing searches and seizures and reporting pursuant to

24 recognised chain of custody rules, this document is given to the Court to

25 suggest, as Mr. Koumjian of the Office of the Prosecutor states, in

Page 15216

1 English, American English he states, "We call this a card-carrying member

2 of the SDS, even up until the time of his arrest." This case is not about

3 the Serbs; it's about Dr. Stakic. Did they distort this evidence? That's

4 the question I would ask. Are you correct, Defence, that this is not the

5 card-carrying membership of Dr. Stakic? Was Mr. O'Donnell honest when he

6 put forth this exhibit and said that this is his membership card? Did the

7 OTP really believe that this was the membership of Dr. Stakic?

8 Ladies and gentlemen and Your Honours, I have the card that's

9 depicted on this exhibit, the original, and I would ask the usher to

10 please place it upon the ELMO. Now, Your Honour, here's how creative the

11 Office of the Prosecution is. They take the ID of Dr. Stakic, and then

12 they place the card, a card that has the words "Srpska Demokratska

13 Stranka" on it, and they want us to conclude that he's a card-carrying

14 member. Let's see if that card that they use on S235-12 is a membership

15 card. If I can, with the Court's permission, ask the usher to turn that

16 card over. A calendar? The back side of a calendar?

17 JUDGE SCHOMBURG: Sorry to interrupt. I take it that you want to

18 tender later this calendar. We have to come back to this.

19 MR. OSTOJIC: We may, Your Honour, yes. I'm not sure. But if I

20 may proceed.


22 MR. OSTOJIC: Here is a document that their investigator, a guy

23 who testified twice before this Court, twice told us documents are all

24 properly reviewed, properly sorted, properly analysed, God forbid as an

25 officer of the Court would I ever try to put something over on the Defence

Page 15217

1 or the Court. Yet, when it comes to Dr. Stakic, when it comes to meeting

2 their mandate and their goal of conviction, they put together S235-12. If

3 we can have that back on the ELMO, the actual exhibit, please. Just on

4 top of it. If you could put 235-12 right on top of that. Thank you.

5 Here's what they give us. No back side. Because they are

6 thorough, they are complete, they are honest. They don't distort facts.

7 And then they come one year later into court and say, "He's a

8 card-carrying member even to this day, to the day of his arrest." If we

9 can now just turn to the original again, the back of that document, very

10 difficult to photocopy, very difficult and time-consuming with the limited

11 amount of documents that the Office of the Prosecution produced in this

12 case, very difficult for them to have taken this document separately and

13 attached it as an exhibit, to photocopy both sides of the exhibit.

14 Instead, they again repeatedly distort the evidence.

15 Likewise, we have other cards or other evidence that they claim

16 supports, I guess, a criminal plan, a joint criminal enterprise, which

17 bear the Serbian democratic party insignia. With the Court's permission,

18 if the usher may place these three on the ELMO. This, too, is an exhibit

19 of theirs. Mistakes happen. The Prosecution perhaps made a mistake when

20 they distorted the evidence and didn't intentionally mean to mislead the

21 Court. What about this document? These documents are in evidence. The

22 Court saw these documents. This all goes to show what? Criminal intent?

23 Criminal plan? Joint criminal enterprise? Or is it to cloud the issues

24 and to throw in an ever-so-subtle fashion mud on the accused and to try to

25 dirty the complete picture of what happened in Prijedor, to, in fact, if I

Page 15218

1 may use their own words, to recreate history, their version of that

2 history. With the Court's permission, if the usher would be permitted to

3 turn the three cards on the back side.

4 Just for the Court's reference, these three documents were

5 photocopied by the Office of the Prosecution, admitted as 235-18 and 22.

6 Perhaps I need some assistance.


8 MR. OSTOJIC: 21. S235-21. Was the back side photocopied? Are

9 we giving a fair trial to the accused? Are we trying to put forth the

10 truth or are we in a subtle way clearly clouding the issues so that our

11 mandate of a conviction can be upheld? This example and the others that I

12 tried to share with the Court speaks rather clearly as to how the Court

13 should view the Office of the Prosecution, their tactics, regretfully the

14 evidence that they produce, specifically the evidence that they refuse to

15 produce when asked by the Defence.

16 The experts, including Mr. O'Donnell, who by his own words is a

17 professional, a police officer, knowing full well what a courtroom is,

18 what a trial is, knowing full well what his obligations are as a member of

19 the Prosecution team, to distort that evidence, to distort this Trial

20 Chamber, to mislead all of us is a clear sign of the confidence that they

21 have in the portrayal of reality as to what occurred in the spring and

22 summer of 1992 as it relates to Dr. Stakic. They cannot prevail if they

23 follow the law. They cannot prevail if they give us an honest and

24 objective assessment of the evidence, not a selective group of documents,

25 but a complete set of documents.

Page 15219












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13 English transcripts.













Page 15220

1 Thank you, Madam Usher.

2 To have force and validity, the inference - thank you very much -

3 cannot be purely arbitrary, unreasonable, and unnatural. The

4 circumstantial case that the Prosecution has against Dr. Stakic is

5 completely arbitrary; it's completely unreasonable, and it's completely

6 unnatural. At no time does the Office of the Prosecution address the

7 issues that the Court invited us to discuss: Natural and foreseeable,

8 substantial contribution, effective control. Can you have genocidal

9 intent be inferred from the presumption of the evidence? Imagine that. A

10 four-fold application to find a conviction for a crime of all crimes,

11 genocide.

12 Does the Prosecution address that there is absolutely no way that

13 a conviction can be held if we presume facts that in our view are suspect,

14 unsubstantiated, and then can we infer or make an inference, and it must

15 be the only reasonable inference from those presumptive facts, to reach a

16 conclusion. I respectfully submit to this Court that is not the standard,

17 that is not the law. Jurisdictions throughout the world would not, with

18 all due respect, accept that a standard which relies upon suspect evidence

19 in order for it to pass muster, there must be wide and broad presumptions

20 made in their application, and then ultimately, there must be yet another

21 subjective, unnatural, arbitrary, and unreasonable analysis to find that

22 the inference is the only reasonable inference from those facts.

23 The law is not something that the Office of the Prosecution would

24 like to discuss, because the law would find Dr. Stakic innocent of the

25 crimes alleged. The Office of the Prosecution doesn't discuss the facts

Page 15221

1 of the Room 3 massacre and how that is not a natural and foreseeable

2 event. The Court was genuine and honest with us and informed us that it

3 was having trouble with that event. Let's ignore it. Let's ignore all

4 the stuff that may help Dr. Stakic. Instead, hopefully, if we tell them

5 that as with most genocides, the first thing that happens is that you

6 disarm the victims, and maybe if we victimise this case and tell the Court

7 repeatedly that there was a horrific, a terrible tragedy that occurred,

8 multiple, multiple massacres and deaths, that they were sporadic, they

9 were uncontrollable, and they were random.

10 I, too, if I were the Prosecution and if I had an extraordinary

11 imagination would not want to address those issues. I believe in

12 circumstantial cases, which are derived from hearsay, suspect documents,

13 innuendo, would forever change the fundamental principles of law and

14 justice. We cannot, we respectfully should not, accept the Office of the

15 Prosecution's view of history, view of adversarial proceedings, and view

16 of what they deem to be the truth.

17 Justice demands more, and it demands a strict adherence to the

18 laws. It demands all of us to strictly adhere to the fundamental

19 principles of justice and the presumption of innocence. It demands that

20 we strictly apply, unfortunately to the detriment to the Office of the

21 Prosecution, the burden of proof beyond a reasonable doubt. It does not

22 at any time suggest that that burden should be shifted or that burden to

23 be reduced because of the magnitude of killings or the tragedy that

24 obviously existed in Prijedor in 1992. The Office of the Prosecution

25 fails to examine the evidence in its totality. Cumulatively, they failed

Page 15222

1 in my view to analyse that evidence in a concrete manner. I believe that

2 it is an intentional refusal to examine that evidence. Did they tell this

3 Court that in all those, when they say "as in most genocides" - and

4 thankfully they're wrong on that - did they tell this Court that there is

5 not one case and logic and common sense dictate there will never be a case

6 where a man will be charged and found guilty of genocide when he made

7 comments on the 11th of September, on the 16th of July, on the 9th of May,

8 on the 16th of May involving peace, tolerance, an attempt to reconcile, an

9 attempt to work together? The goal of Dr. Stakic was undoubtedly peace

10 based upon the evidence. There's no inference we should draw from that

11 evidence; that is a fact.

12 The inference the OTP would like to draw is the opposite. We

13 don't have presumptions and inferences on undisputed facts. The fact that

14 Dr. Stakic said "Prijedor will be an oasis of peace" on the 16th of May,

15 1992. That's an undisputed fact. No inference should be drawn from that

16 fact other than to acquit. No case in any country at any time in the

17 history of the world would ever find a gentleman like Dr. Stakic who

18 promoted peace and tolerance during a most terrible time, the spring and

19 summer of 1992, guilty of the crimes that are alleged. I do believe that

20 it is reasonable, logical, and plausible that it is difficult in light of

21 all the killings, in light of all the victims, in light of all the

22 suffering, that we do have some reservations, that we do look at this and

23 must ask the question "the poor people of Prijedor, the poor victims of

24 Prijedor."

25 I, too, feel that. However, our mandate here is not to try to

Page 15223

1 lessen the pain or to lessen that unfortunate suffering. Our mandate is

2 to analyse the facts, to analyse the documents, to analyse the testimony

3 and determine, (a), whether the Office of the Prosecution met their burden

4 of proof of beyond a reasonable doubt; and (b), whether Dr. Stakic, a man

5 who promoted peace and tolerance during the time period of this criminal

6 plan and joint criminal enterprise, should be convicted. I submit to the

7 Court that if you view the evidence as I am confident you will honestly

8 and objectively, that you will find in favour of Dr. Stakic and acquit

9 Dr. Stakic of all the crimes alleged in the fourth amended indictment.

10 Thank you, Your Honours.

11 JUDGE SCHOMBURG: Please, wait a moment. We have heard now both

12 sides, both assessments of that what we have heard during the last 149

13 days during trial, and the additional days of 65 ter meetings, taking

14 evidence in Banja Luka, taking evidence in Zagreb, elsewhere. I think it

15 would be not the correct time to start to hear the response by the

16 Prosecution, but I have no doubt the Prosecution will reply, and then we

17 will hear a response, rejoinder, by the Defence. But before we do this, I

18 think it's necessary, based on that what we heard as the concluding

19 arguments by the parties, that we reopen the admission into evidence. The

20 Trial Chamber convened during the last break and came to the following

21 conclusions: That we would invite based, as I said, on the submissions

22 given by both parties that the Defence once again tenders Document Number

23 584.

24 MR. OSTOJIC: We so tender, Your Honour.


Page 15224

1 MR. OSTOJIC: We will tender that.

2 JUDGE SCHOMBURG: Thank you. Are there any objections based on

3 the contributions by the Prosecution to this document?

4 MR. KOUMJIAN: No, Your Honour, we don't object. We don't have

5 the translation yet. I don't know if that's available.

6 JUDGE SCHOMBURG: May I ask, Madam Registrar or the Defence?

7 MR. OSTOJIC: We do not have a translation of that document, Your

8 Honour.

9 JUDGE SCHOMBURG: May I ask, what about the length of this

10 document?

11 MR. OSTOJIC: It is three pages, but it is very brief. It is

12 typewritten. Each page consists of approximately eight or so lines. It's

13 merely a form of some kind reflecting dates and times and names of

14 individuals. I believe that it could be translated in a rather brief

15 time.

16 JUDGE SCHOMBURG: I think it's only fair for the preparation of

17 the parties and the Chamber that we know about the contents, and let's try

18 to read it slowly afterwards.

19 The document as such will be now admitted as previously 65 ter of

20 the Defence, number 584, admitted into evidence as D321. And my

21 understanding is that the Defence also tenders the one calendar of 2001

22 which was photocopied unfortunately together with the - I don't know - ID

23 card or -- whether it's a driver's license, I don't know. But the

24 calendar is year 2002. Is that correct? You tender this document?

25 MR. OSTOJIC: No, Your Honour. The calendar I believe if this is

Page 15225












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Page 15226

1 the document that we're referring to is from the year 2000.

2 JUDGE SCHOMBURG: Calendar from the year 2000. Objections by the

3 Prosecution?

4 MR. KOUMJIAN: Your Honour, I don't object, but this document,

5 while the photocopy has been in evidence for a long time, counsel raised

6 it and brought forward what he indicated, represented, is the original,

7 but there's no evidence. Because obviously arguments of counsel are not

8 evidence. If counsel wants to make some kind of proffer about where this

9 document came from, we'll accept it. That would become evidence, some

10 kind of stipulation, where this document has been, where it came from, and

11 that this is the same document, including the other three, that Dr. Stakic

12 had. I would just ask to be allowed, in light of that, I do think there's

13 just a couple photographs of the Keraterm camp that may be of some

14 assistance to the Court, that we be allowed to add those tomorrow morning

15 into evidence also.

16 JUDGE SCHOMBURG: There's absolutely no problem, but is it really

17 the Prosecution's argument that they don't believe that these three

18 different calendars are not the same ones as depicted on the photocopies

19 we have before us? As I indicated previously, it's extremely difficult

20 for a Court having to work with copies only, and I think this is something

21 very special in this Tribunal. Normally, the originals would have to be

22 produced. But we have to live with this. And therefore, in the moment, I

23 can't see any obstacle. Is it still your objection?

24 MR. KOUMJIAN: I have no doubt if counsel represents it, but

25 there's no evidence. I would be willing to accept a representation from

Page 15227

1 counsel as a stipulation that these are the documents that were seized

2 from and returned to Dr. Stakic, and then given to apparently eventually

3 Mr. Ostojic. If they want to so represent, I'll accept that as a

4 stipulated fact. But there's no evidence right now about it. And I would

5 like to see the documents at some time.

6 JUDGE SCHOMBURG: Of course. May I ask the usher to present

7 the -- all the four cards to the Prosecution, and then please to the

8 Bench.

9 MR. OSTOJIC: Your Honour, I don't mind testifying in this case.

10 JUDGE SCHOMBURG: No, no, no, I wouldn't allow.

11 MR. OSTOJIC: However, maybe Mr. O'Donnell can tell us that's the

12 document --

13 JUDGE SCHOMBURG: Maybe it can be resolved immediately.

14 MR. OSTOJIC: Quite frankly, these documents, these four cards,

15 were given to me this morning only after the closing argument by the

16 Office of the Prosecution by Dr. Stakic.

17 JUDGE SCHOMBURG: May I ask Madam Registrar --

18 MR. OSTOJIC: Because of the comments and the connections that

19 they are trying to attribute to those documents. We didn't review it

20 before. We didn't examine those documents before.

21 MR. KOUMJIAN: I would stipulate to those facts as represented by

22 counsel. If counsel makes that representation, I accept it.

23 Is it possible for us to, please, get a photocopy of the backs of

24 the cards sometime today.


Page 15228

1 So the calendar of the year 2000, both sides, are hereby admitted

2 into evidence as D322. And the three other calendars, of course both

3 sides depicting calendars of the year 2001, as D323-1, -2, -3.

4 And then in continuation, we are aware that a document mentioned

5 by both parties is not yet admitted into evidence, and this is Prosecution

6 65 ter number 72. This is the declaration on the proclamation of the

7 Republic of the Serbian People of Bosnia and Herzegovina dated the 9th of

8 January, 1992. It's from the Official Gazette of the Serbian People in

9 Bosnia-Herzegovina, year 1, issue number 2, Monday, 27 January 1992,

10 Sarajevo.

11 The Prosecution tenders this document?

12 MR. KOUMJIAN: Yes, Your Honour.

13 JUDGE SCHOMBURG: Objections? May I ask the usher please to show

14 the Defence this document.

15 MR. OSTOJIC: No objection, Your Honour.

16 JUDGE SCHOMBURG: Admitted into evidence as S438. And may I

17 please ask to understand all the participants that in order that we are

18 prepared for tomorrow, rejoinder and rebuttal, that Mr. Lukic could please

19 be so kind and read out the document with the 65 ter number 584 slowly

20 that we have it also in English and French available.

21 Would you please start.

22 THE INTERPRETER: Could the interpreters have the document on the

23 ELMO, please.

24 JUDGE SCHOMBURG: If it could be put on the ELMO, then it

25 facilitates the work for the interpreters.

Page 15229

1 MR. LUKIC: I'm afraid that we have only one copy.

2 JUDGE SCHOMBURG: Can you read from the ELMO.

3 MR. LUKIC: Semi-blind, yes, I can.

4 MR. KOUMJIAN: I have a copy.

5 JUDGE SCHOMBURG: Okay, then one on the ELMO and...

6 MR. LUKIC: May I begin.


8 MR. LUKIC: Thank you.

9 [Interpretation] "Republika Srpska, Ministry of the Interior,

10 administration for legal personnel affairs and affairs in connection with

11 foreigners, Banja Luka.

12 "Number 05/2-052-50. Date, 11 February 2002.

13 "Government of Republika Srpska. The Office of the government for

14 the relationship with International Criminal Tribunal for war crimes in

15 The Hague, Banja Luka.

16 "To head of office.

17 "Regarding: Your letter number 02/1-773-30/02 of 30 January

18 2002. Regarding: Simo Drljaca. Decision, sent to.

19 "Enclosed with this document, please find the requested document

20 in connection with the above number.

21 "Yours sincerely.

22 "Enclosures, number 1, decision number 6678 of 27 April, 1994.

23 "Number 2, decision number 09/3-120-3557 of 7 October 1994.

24 "Stamp: Republika Srpska, Ministry of the Interior, Banja Luka."

25 Number on stamp, 1.

Page 15230

1 "Chief of administration, Milena." I cannot read the last name.

2 It is illegible.

3 Next document.

4 "Republika Srpska, Ministry of the Interior, Sarajevo, number

5 6678.

6 "Date, 27 April 1994.

7 "Pursuant to Article 39, paragraph 1, line 7 of the law on state

8 administration (Official Gazette of the Serbian People in Bosnia and

9 Herzegovina number 4/92), hereby we issue the following decision:

10 "Simo Drljaca, an employee of the Ministry of the Interior of

11 Republika Srpska, is temporarily assigned to perform the tasks and duties

12 of the chief of the centre of public security in Prijedor as of 27 April

13 1994.

14 "Sent to."

15 Under 1: "To the aforementioned person."

16 Under 2: "To the financial services."

17 And 3: "Files."

18 Signed by "On behalf the minister of the interior, Mico Stanisic."

19 And the third document: "Republika Srpska, Ministry of the

20 Interior, Sarajevo, number 09/3-120-3557. Date, 7 October 1994.

21 "Pursuant to Article 73, paragraph 3 of the law of state

22 administration (Official Gazette of Republika Srpska number 11/94) and

23 Article 2 paragraph 1 of the law on employment in state bodies (Official

24 Gazette of Republika Srpska number 11/94) and in connection with Article 7

25 of the same law, minister of the interior of Republika Srpska hereby

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Page 15232

1 issues the following decision:

2 "Simo Drljaca is hereby assigned to perform the tasks and duties

3 of the chief of the public security station in Prijedor."

4 THE INTERPRETER: Public security centre. Interpreter's

5 correction.

6 MR. LUKIC: [Interpretation] Couple of empty lines in. "As

7 established by the regulations on the organisations of tasks and duties in

8 the Ministry of the Interior of Republika Srpska as of 5 October 1994.

9 The salary of the above employee will be decided by a special decision.

10 "Statement of reasons: Simo Drljaca, by the decision number -

11 empty space - date - empty space - year, was assigned to perform the tasks

12 and duties - empty space - in - empty space. The above-mentioned person

13 is hereby assigned to perform the tasks and duties of the chief of the

14 centre of public security in Prijedor in - empty space - as of 5 October

15 1994. With regard to the fact that all the conditions pursuant to Article

16 7 of the law on employment in the state organs have been complied with, as

17 well as all the other conditions established by the regulation on the

18 internal organisation of the Ministry of the Interior number 10/ -

19 illegible - dated 5 October 1994, and as there were no former or legal

20 impediments in this legal matter, it has been decided as in the

21 disposition of this decision.

22 "An appeal against this decision can be filed to the minister of

23 the interior of Republika Srpska within eight days from the date of the

24 receipt.

25 "Sent to."

Page 15233

1 Under 1: "The above-mentioned person."

2 Number 2: "Department for financial affairs."

3 3: "Files.

4 "Minister of the interior, Zivko Rakic."


6 MR. LUKIC: I just wanted to mention that you'll see that the last

7 document was printed on a preprinted form, so that we have some empty

8 spaces.

9 JUDGE SCHOMBURG: We are aware of this. It was already

10 mentioned. Thank you for this assistance.

11 For today, the hearing of additional evidence is hereby

12 concluded. But it was already indicated that the Prosecution wants tender

13 the one or other additional exhibit and, no doubt, the same right is for

14 the Defence. And for this reason, we just, after having had a short

15 conference on this, applying Rule 73 bis (F), Rule 73 ter (F), and

16 anticipating and applying already now Rule 115 in an analogy, we think

17 it's appropriate that if there should be additional evidence under the

18 prerequisites foreseen under Rule 115, this should not wait until appeal,

19 but the parties are invited if they have such additional evidence, they

20 should tender this evidence already tomorrow. No doubt that there is an

21 ongoing obligation for the Prosecution under Rule 68. I'll come back to

22 this later. This is now only for the purpose of tomorrow. And in a

23 slight deviation of that what I said previously, let us please start

24 tomorrow with, if necessary, additional evidence meeting the prerequisites

25 of the said rules in the beginning. Having then a Status Conference.

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Page 15236

1 Maybe it's necessary for the parties to digest what we have then as

2 additional evidence. And then start with rejoinder and rebuttal. By --

3 but I saw that the Prosecution wanted to take the floor. Mr. Koumjian,

4 please.

5 MR. KOUMJIAN: I'm sorry, Your Honour, if I gave a signal, but I'm

6 finished. The only document I anticipated was I believe there are one or

7 two photographs of Keraterm camp that might be of assistance.

8 JUDGE SCHOMBURG: I wanted to encourage the parties to review. We

9 are all aware that it was a hasty exercise to admit these about -- I think

10 there were more than 400 documents tendered by the Defence during one day

11 and one or more other omission or even mistake may have been made, and the

12 same is true for the Prosecution. So therefore both parties enjoy the

13 right, if they so want, to tender additional exhibits under the said

14 prerequisites today.

15 Anything else for today? I can't see anything. Therefore, I

16 hereby declare this hearing for today as concluded. The trial stays

17 adjourned until tomorrow, 9.30, Courtroom II.

18 --- Whereupon the hearing adjourned

19 at 5.14 p.m., to be reconvened on Tuesday,

20 the 15th day of April, 2003,

21 at 9.30 a.m.