Tribunal Criminal Tribunal for the Former Yugoslavia

Page 15237

1 Tuesday, 15 April 2003

2 [Open session]

3 [The accused entered court]

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

5 JUDGE SCHOMBURG: Good morning. Please be seated.

6 As mentioned yesterday, we want to start today by asking the

7 parties whether or not, after having reopened the case and having now

8 immediately heard the case number, the question: Are there any additional

9 exhibits to be tendered?

10 May we first hear the case, please.

11 THE REGISTRAR: Good morning. This is Case Number IT-97-24-T, the

12 Prosecutor versus Milomir Stakic.

13 JUDGE SCHOMBURG: Thank you. And the appearances for the Defence.

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

15 Sutherland, and Ruth Karper for the Prosecution.

16 JUDGE SCHOMBURG: And for the Defence, please.

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

18 Ostojic for the Defence.

19 JUDGE SCHOMBURG: Thank you.

20 Then the first on his feet yesterday was Mr. Koumjian. What about

21 new exhibits to be tendered from your side?

22 MR. KOUMJIAN: We don't intend to tender any exhibits during the

23 closing arguments. We have no further exhibits other than -- to add to

24 the case.

25 JUDGE SCHOMBURG: So it's my understanding that you withdraw that

Page 15238

1 what you said yesterday.

2 MR. KOUMJIAN: That's correct. On reflection, I withdraw that

3 request.

4 JUDGE SCHOMBURG: May I hear the Defence.

5 MR. LUKIC: We don't have any new exhibits, Your Honour. Only we

6 saw yesterday the photocopy of Dr. Stakic's ID card, and it's photocopied

7 only on a page with a picture. And this document is probably we think

8 with OLAD, office of legal aid and detention of this Tribunal. So maybe

9 it would be wise to photocopy the cover page as well from which it is

10 obvious it is a regular ID card. So it wouldn't be a new document, only

11 cover page of the same document.

12 JUDGE SCHOMBURG: Is it contested or can we regard it as an agreed

13 fact that this what we have before us was, in fact, the ID? May I ask the

14 Prosecution.

15 MR. KOUMJIAN: It's not an issue with us. We don't contest it.

16 MR. LUKIC: Thank you. Then we do not have any further requests

17 for new documents, Your Honour.

18 JUDGE SCHOMBURG: Then this 150th day of the case, we have the

19 first of the agreed facts. Thank you.

20 But to be serious, before we then go to the Status Conference, two

21 issues: We are aware of the problem that in this Tribunal, no doubt being

22 under an adversarial system, and therefore it's for the parties to present

23 the documents, but there seems to be more and more an asymetric procedure.

24 And with some concern, also the Bench found out that it's not without

25 problem that we have Kozarski Vjesnik available for only one part of time.

Page 15239

1 Asymetric in criminal procedures, this is normally nothing very specific.

2 Normally it is mutually asymetric. Asymetric, why? Because on the

3 one-hand side, normally when there is a good contact between Defence

4 counsel and the accused, the Defence as a team knows best what happened

5 and how to get access to the one or other necessary document. They have

6 in all likelihood the best access to these documents, and without going

7 into further details, I just want to mention the word "health centre."

8 On the other hand, we see with far more concern that apparently,

9 and this is special for this Tribunal, the principle of equality of arms

10 tends to be infringed. One can't say that it's already de facto

11 infringed. I think in this case during the last year, both the Defence

12 and the Bench did whatever possible to get the necessary documents and

13 ordered the production of documents also under Rule 98. But under this

14 concrete case and the prevailing circumstances, and knowing that we

15 several times asked for the production of all the remaining Kozarski

16 Vjesnik articles available for the Prosecution, we hereby order the

17 Prosecution under Rule 98 to produce and to make an additional search in

18 the database - this is the real problem, that this database is available

19 only for one party - to conduct a new search whether or not additional

20 Kozarski Vjesnik articles, especially for the time covered by the fourth

21 amended indictment are available. And if so, we order to produce these

22 documents together with a translation no later than the 28th of April this

23 year.

24 MR. KOUMJIAN: Your Honour, may I --


Page 15240

1 MR. KOUMJIAN: Frankly, I think this creates a tremendous problem.

2 We have -- I'm not sure of the number of issues, but we have huge

3 quantities of Kozarski Vjesnik in-house. Only a small portion, to my

4 understanding, is translated. I'm not -- because I don't read the

5 language myself, I usually only read the translation. But we can see from

6 some of the photocopies that the newspaper is several or many pages long,

7 and only selective articles have ever been translated.

8 JUDGE SCHOMBURG: Until now, the understanding was that only --

9 that Kozarski Vjesnik only in part was available from the database until a

10 certain point in time.

11 MR. KOUMJIAN: Your Honour, just to clarify what we did in this

12 case, the Defence made a request to review Kozarski Vjesnik beyond what

13 had been disclosed under Rule 68 and what had been disclosed under our 65

14 ter list, and we agreed to make it available for them to come in-house and

15 review those. Frankly, it took a long time for the Defence investigators

16 to come to us and to say "We're ready to look at those articles." I

17 believe two Defence investigators came and spent two days reviewing - and

18 I just went by briefly, but they were in a room with stacks and stacks of

19 newspapers. The OTP -- I do not have -- I can get back to Your Honour

20 with a further report on exactly what is in-house because I don't have

21 those statistics and what the burden would be. But my impression from

22 seeing that stack of documents that the Defence investigators were going

23 through is that there are probably thousands of pages, at least hundreds

24 of pages of material that is not translated that probably deals with

25 things like football games, the weather, and the various events that every

Page 15241

1 local newspaper would cover.

2 JUDGE SCHOMBURG: So can you tell us exactly when it was that

3 Defence counsel or investigators had the chance and opportunity to review

4 Kozarski Vjesnik articles.

5 MR. KOUMJIAN: I can try to get the date, but as I recall, we

6 agreed to that quite early in the case, but it took a long time for the

7 Defence investigators to show up and say that they were ready to review

8 them. They spent at least two days in-house. We had to have an

9 investigator sit nearby because some of these are evidence. And they were

10 left in the room with stacks and stacks of newspapers to go through. And

11 the Defence did, I believe, identify several documents which they added to

12 their 65 ter list from that stack of documents.

13 JUDGE SCHOMBURG: Can you clarify, please, until which concrete

14 date in time you have Kozarski Vjesnik available in this premises. Could

15 this be done during the day, this day?

16 MR. KOUMJIAN: I'm sorry, the question is when did they review it?

17 JUDGE SCHOMBURG: No. Until when you have Kozarski Vjesnik

18 available? My understanding until now was that only for a limited time

19 you had the editions of Kozarski Vjesnik.

20 MR. KOUMJIAN: That is my understanding. I'll have to check.

21 It's rather complicated because the Kozarski Vjesnik came from various

22 sources, and I believe, for example, as was testified to by one of the

23 witnesses, he received his copies through a third party from the Soros

24 centre in Sarajevo. And there have been researchers from the Tribunal

25 that have gone to the Soros centre, and that's been available -- we made

Page 15242












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Page 15243

1 that clear -- that came out in evidence months ago that the Soros

2 foundation in Sarajevo has copies of Kozarski Vjesnik that we don't.

3 That, of course, would be available to the Defence equally as to us. Then

4 there were Kozarski Vjesniks that were seized. Witnesses have occasional

5 brought in, as the Court has seen, copies of Kozarski Vjesnik. So they

6 come from a wide, wide variety of sources, and I know that we had a lot of

7 trouble tracking down all the in-house copies for the Defence, and we did

8 find out at one point that some were missing. We went back and looked

9 again. We found those because they were in a different part of the

10 Tribunal. Frankly, they are being used constantly by different teams.

11 They are reviewing them.

12 So it's a huge problem. But I believe the Defence can verify that

13 their investigators spent at least two days reviewing the issues -- all

14 the issues that we identified we had in-house from the indictment period

15 and I believe going on through 1994.

16 JUDGE SCHOMBURG: May I hear the Defence on this having complained

17 yesterday about the limited access of Kozarski Vjesnik.

18 MR. LUKIC: Yes, Your Honour. I understood your questions

19 differently than my learned friend answered it. The problem is that our

20 investigators did search the issues of Kozarski Vjesnik, but only the

21 issues they were offered. I think that during this trial, we established

22 that issues from April, May, June, July, August are missing. We were

23 never given the access to these issues from the critical period. When we

24 addressed Kozarski Vjesnik, we were informed that all the issue,

25 especially the issues from this period, were taken by SFOR. Where did

Page 15244

1 they end up? We don't know.

2 JUDGE SCHOMBURG: So this was exactly my question.

3 MR. KOUMJIAN: I have different information. I wasn't personally

4 involved. But my information was that the issues from 1992 that we had

5 were given. One -- I just received a message from someone who has done

6 some of the translating and is familiar and they indicate that we do have

7 in-house 1991 through 1995, almost most of the issues, more or less

8 complete. There are approximately 10 from 1992 missing. That would be

9 ten weeks because I believe it's a weekly newspaper. But these have

10 been -- I can double check, but my understanding is that these were

11 provided to the Defence.

12 JUDGE SCHOMBURG: The Defence, please.

13 MR. LUKIC: If my learned friend could clarify which weeks are

14 missing.

15 JUDGE SCHOMBURG: I think this will be now a difficult exercise.

16 Therefore, we stay with this and would request the Prosecution to grant

17 access and to review once again the issues of Kozarski Vjesnik as the

18 Defence indicated, that there would be prejudice emanating from this

19 having not had access to the issues from April, May, June, July, and

20 August. And I think this can be resolved in this way, that those issues

21 from April, May, June, July, August are to be made available for the

22 Defence and then they may be produced in English also in case the Defence

23 or the Prosecution identifies that the one or other article is relevant

24 for our case. Because to be honest, I don't hate nothing more than

25 judging on a limited base of facts.

Page 15245

1 MR. KOUMJIAN: Just so the record is clear, we believe we have

2 provided to the Defence access to all of the articles from the -- we

3 believe we have provided to the Defence access to all of the articles from

4 the indictment period that was requested. I don't know if the Defence

5 kept a record of the issues that they reviewed. I will check to see what

6 records we have of issues that were provided. There are approximately ten

7 issues missing, as I've stated. But it's our belief, and certainly was

8 our effort, and I can confirm what records we do have by the afternoon,

9 that all the were made available to the Defence investigators who speak

10 the language, read the language, for review. In fact, they have selected

11 several of those articles which they presented during the case.

12 JUDGE SCHOMBURG: I know it's a late stage during the case, but

13 could we agree that under these exceptional circumstances, the Defence

14 would contact the OTP during the break and when these issues from April

15 through August, and if I can count correctly, it may be to a maximum 20

16 issues, then go through these issues that we have clarified this problem.

17 MR. LUKIC: Yes, Your Honour.

18 JUDGE SCHOMBURG: Does the OTP agree with this procedure?

19 MR. KOUMJIAN: Yes, and we would appreciate if the Defence kept

20 records of what they reviewed or what they say is missing, we can check

21 and see. That would be very easy to identify if they have a date that's

22 missing, we can easily check our database to see whether it is.

23 JUDGE SCHOMBURG: Right. I think the case should not conclude

24 with any problems related to prejudice to the one or other party. So I

25 expect that we hear the results immediately after the lunch break.

Page 15246

1 Then two additional points: No doubt that we had it in another

2 case just recently, there is the ongoing obligation under Rule 68 to

3 provide material until the judgement will be handed down in this case.

4 That's point number one.

5 Point number two is that we were confronted with problems in

6 several appeal cases, and there was a complaint by the group of auditors

7 that additional evidence or in a one concrete case, even a deluge of

8 additional evidence was presented under 115 during appeal only. I think

9 when we read our rules on procedure and evidence together, it's quite

10 clear that the intention is to have evidence as soon as possible available

11 for the parties. And it would be a no-go to hand down a judgement knowing

12 that additional evidence is available that would show the case in an

13 entirely different light.

14 So therefore, we yesterday came to the conclusion that we order

15 both parties to apply by motion to present additional evidence before the

16 Trial Chamber, if necessary, if urgent and if of major importance. Such

17 motion shall clarify -- shall clearly identify with precision the specific

18 finding of fact or the points addressed during the case in the Trial

19 Chamber to which the additional evidence is directed and must be served on

20 the other party and filed with the Registrar immediately, immediately, so

21 that it's available for this concrete judgement in order to avoid that an

22 appeal be based on the mere question that additional evidence was

23 available in the time during -- between the closing arguments and the

24 handing down of the judgement.

25 So of course we can't order the Defence to present evidence if

Page 15247

1 it's not in the interest of the client. That goes without saying. That's

2 a principle of the prohibition of self-incrimination. But to put it in a

3 more -- or in a less judicial way, if any of the parties should identify

4 the smoking gun or this could also happen, the peace pipe, please let us

5 know immediately that we can include these facts in our judgement. Our

6 intention is to hand down the judgement somewhere in July, in all

7 likelihood very, very close to the summer court recess. We can't promise

8 anything at this point in time because as it was emphasised by the

9 parties, that no doubt it's a difficult case, difficult related to the

10 facts and difficult related to the law.

11 We take it that those points that were not addressed during the

12 closing arguments until now and that were contained in our questionnaire,

13 or better, the guidance on issues to be addressed in final briefs and/or

14 closing arguments, that the instructions given by the Court will be

15 followed in the final briefs that we can come to better solutions and that

16 we have answers to the open questions identified until now. And we will

17 only come back to these issues in a very, very limited way today.

18 Before we necessarily have to make a short break for the purpose

19 of a Status Conference, may I ask the parties whether or not there are any

20 additional remarks to be made on procedural issues before we start the

21 rebuttal and rejoinder?

22 MR. LUKIC: We don't have anything, Your Honour.

23 MR. KOUMJIAN: No, Your Honour.

24 JUDGE SCHOMBURG: This is not the case. Then for the moment,

25 there would be nothing special. May I ask the parties, what is the

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Page 15249

1 envisaged time you would need for your rebuttal?

2 MR. KOUMJIAN: I would guess about 90 minutes.

3 JUDGE SCHOMBURG: It's premature to ask the Defence, but at this

4 point in time, what is your time estimate?

5 MR. OSTOJIC: 45 minutes, Your Honour.

6 JUDGE SCHOMBURG: Of course, with the caveat, it depends on what

7 you hear from the Prosecution.

8 Then finally that we are prepared for today's session, may I ask,

9 is there already a decision taken by Dr. Stakic whether or not he wants to

10 make use of his right to give us the last word and thereby his personal

11 impression and assessment of that what has been heard during the last

12 year, also in order to give us an additional access to the personality of

13 Dr. Stakic.

14 MR. OSTOJIC: Yes, Your Honour, Dr. Stakic would like to give a

15 short statement and address the Court at the conclusion of the rejoinder

16 and rebuttal portions of the case.

17 JUDGE SCHOMBURG: Then immediately before the case will be

18 declared closed, we'll do this.

19 Then it remains only for me to announce now a break of about 3 or

20 4 minutes. We stay tuned, or better sit by in front of the courtroom and

21 let us know when we can restart with a very brief Status Conference.

22 --- Whereupon the hearing adjourned at 10.04 a.m.,

23 to be followed by a Status Conference.