Tribunal Criminal Tribunal for the Former Yugoslavia

Page 11295

 1                           Thursday, 7 April 2011

 2                           [Rule 98 bis]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 2.17 p.m.

 6             JUDGE ORIE:  Good afternoon to everyone after quite a long period

 7     of time.

 8             Madam Registrar, would you please call the case.

 9             THE REGISTRAR:  Good afternoon, Your Honours.  Good afternoon,

10     everyone in and around the courtroom.

11             This is the case IT-03-69-T, the Prosecutor versus Jovica

12     Stanisic and Franko Simatovic.

13             JUDGE ORIE:  Thank you, Madam Registrar.

14             This hearing is scheduled for the purpose of receiving

15     submissions under Rule 98 bis.  But before we proceed to that, I'd like

16     to put a few matters on the record which were informally dealt with.

17             On the 1st of April, the Chamber has asked the Stanisic Defence

18     to inform the Chamber whether it intended to make any Rule 98 bis

19     submissions.  We received the answer that you have decided not to make

20     any Rule 98 bis submissions, although you have -- when you confirmed that

21     you would attend this hearing, and Mr. Stanisic as well, you asked to be

22     allowed to make some brief submissions on the issue of Rule 98 bis which

23     is apparently not the same.

24             Mr. Jordash, before we proceed, how much time would you need for

25     that?

Page 11296

 1             MR. JORDASH:  It's less in the way of submissions, more in the

 2     way of a comment and an explanation concerning the way in which we'd

 3     approached the decision.

 4             JUDGE ORIE:  Okay.  How much time would you need for it?

 5             MR. JORDASH:  Two minutes, Your Honour.

 6             JUDGE ORIE:  Two minutes.  Okay.  We'll give you an opportunity

 7     to do that, two minutes.

 8             MR. JORDASH:  Thank you.

 9             JUDGE ORIE:  Then the Chamber has informed the parties as a

10     result of this decision by the Stanisic Defence about the consequences

11     for scheduling.  The decision was that the Simatovic Defence shall

12     present its Rule 98 bis submissions today, that's on Thursday, the

13     7th of April, and that the hearing scheduled for tomorrow, Friday, the

14     8th of April, will be cancelled.  The Prosecution shall address the

15     Chamber in response on Monday the 11th of April, and the Chamber expects,

16     in view of the facts that the Stanisic Defence doesn't make any

17     submissions, that your initial assessment that you would need four hours

18     could be reduced in such a way that you finish your submissions on

19     Monday, the 11th of April.

20             Then finally, the Simatovic Defence and the Prosecution shall

21     make any submissions in reply on Tuesday, the 12th of April, and the

22     Chamber does not expect that that takes the whole of the session.  It

23     will be limited in time.

24             Then other matters which are not on the record yet.  The

25     Prosecution has filed a motion to schedule a hearing immediately

Page 11297

 1     following the Rule 98 bis submissions and to conduct a limited inquiry

 2     into the legal representation of Mr. Stanisic.  We'll hear the 98 bis

 3     submissions today and next week Monday and Tuesday.  Normally for a

 4     motion to be decided, first the other party has an opportunity to respond

 5     and usually have two weeks for that.

 6             Mr. Jordash, to the extent you are aware that if you take the

 7     full two weeks, that the effects of the motion might be lost already to

 8     some extent.  I do not know, and I'm not putting any pressure upon you,

 9     whether you intend to respond in such a time-frame that you would not

10     from the beginning leave the Prosecution with an illusion as to have a

11     hearing immediately after the 98 bis hearings.  I'm not in any way at

12     this moment speculating on what the Chamber will decide or not decide,

13     but it's just I'm inquiring about the time you would consider to need for

14     a response, if you want to respond.

15             MR. JORDASH:  I can indicate now, Your Honours, that we don't

16     wish to respond and we take no position on the motion.  We are not

17     concerned one way or another with a hearing, and we leave it to

18     Your Honours' discretion.

19             JUDGE ORIE:  Does the Simatovic Defence have any wish to respond

20     to that motion?

21             MR. BAKRAC: [Interpretation] No, Your Honours, we have no

22     position regarding this.

23             JUDGE ORIE:  Thank you, Mr. Bakrac, for that answer.

24             The last thing I'd like to put on the record -- well, it's not --

25     it is on the record, as a matter of fact, because it has been officially

Page 11298

 1     filed, after the Prosecution closed its case, I think, yesterday, you

 2     asked for re-opening today on the basis of two photographs, Mr. Groome.

 3     I think the Chamber has well understood that you are not in need of any

 4     decision to be made before we hear 98 bis submissions.

 5             MR. GROOME:  That's correct, Your Honour, and we will not seek to

 6     rely on that additional evidence in any way.

 7             JUDGE ORIE:  Then we take the usual time for further dealing with

 8     that motion.

 9             Mr. Jordash, two minutes you said you would need.  Please

10     proceed.

11             MR. JORDASH:  I'm grateful.  First, may I offer our apologies to

12     the Chambers and to the parties for not indicating earlier what our

13     position would be.  We formed an opinion somewhat late in the day when I

14     had had the opportunity to look at the jurisprudence and the history of

15     Rule 98 bis and the change that came about, I think, in 2004, which we

16     understand to mean that a challenge can be made to a count, effectively,

17     but not individual charges or discrete liabilities.  We, therefore, have

18     taken the position that a challenge to a count, given the nature of this

19     indictment, would not at this stage succeed.  We thought it important,

20     however, to indicate that had the Rule indicated that charges or

21     individual liabilities could be challenged, we would certainly have much

22     to say at this stage and we would not want our position at this stage to

23     be taken to mean that we accept that there is a case to answer on most of

24     this indictment.  We take the position that many of the charges and many

25     of the liabilities would fall at this stage had the Rule been that which

Page 11299

 1     was in place in 2004, and we thought it important at this stage to make

 2     that indication and to make our position clear to the Chamber and to the

 3     parties.

 4             Thank you for the time.

 5             JUDGE ORIE:  Thank you, Mr. Jordash.  Don't worry about any

 6     inferences made on the way in which you proceed in your Defence.

 7     That's ... the Chamber does not draw any negative inferences from this

 8     step or any other decision.  It's for the Defence to decide how they

 9     think they best proceed in their Defence against the Prosecution.

10             MR. JORDASH:  Your Honour, yes.  I think perhaps I should also

11     add this:  That one of the reasons we wanted to make clear our position

12     is that we do intend, despite the jurisprudence, to make an application

13     for provisional release in a short time, and we wanted the position to be

14     clear that we don't accept that the position vis-ā-vis the evidence has

15     put Mr. Stanisic's position in relation to provisional release in such a

16     position that he ought not to be granted it.  In short, that the

17     evidence, we submit, in this case is overall weak, and particularly weak

18     in relation to many of the charges and the liabilities, and that's what

19     we will expand upon in a short while in a new application for provisional

20     release.

21             JUDGE ORIE:  We'll wait to receive that and we'll carefully read

22     and analyse it.

23             MR. JORDASH:  Thank you.

24             JUDGE ORIE:  Mr. Bakrac, is it you or is it Mr. Petrovic who will

25     go first?  Or perhaps only you.

Page 11300

 1             MR. BAKRAC: [Interpretation] Your Honours, I'm going to begin.

 2     Although I have some problems with my throat, I will try to bring it to

 3     an end.  But if that does not happen, Mr. Petrovic is here, he will

 4     continue, and I hope that we will not waste the valuable time of this

 5     Court.

 6             First of all, I would like to say good afternoon to the

 7     Trial Chamber and to everyone else in and around the courtroom.  I would

 8     like to say that we have considered the standards and the jurisprudence

 9     relating to Rule 98 bis and we partially agree with our learned friend.

10     However, we have decided that in the most part and in the concept of the

11     indictment there is no evidence that supports these standards, and we

12     would like to present our arguments in relation to 98 bis.  And with your

13     leave, I will like to begin our presentation.

14             JUDGE ORIE:  Please proceed.

15             MR. BAKRAC:  [Interpretation] Thank you, Your Honours.  With the

16     Trial Chamber's leave, the Simatovic Defence hereby orally submits its

17     motion pursuant to 98 bis Rule and requests that the Trial Chamber acquit

18     Franko Simatovic on all counts of the indictment.  Rule 98 bis stipulates

19     that upon completion of the Prosecution case, the Trial Chamber will

20     deliver an oral ruling after having heard the arguments of the parties,

21     or one party, and will deliver a judgement of acquittal on any count in

22     the indictment unless there is no evidence that can constitute a basis

23     for conviction.

24             The Defence would like to present our position about the standard

25     of presenting evidence stipulated by 98 bis Rule and which is also part

Page 11301

 1     of the case law of this Court.  The Defence of Mr. Simatovic would like

 2     to refer to an oral ruling pursuant to 98 bis Rule in the case against

 3     Mrksic IT-98-13/IT.  This decision can be found on pages 11311 through to

 4     11313 in the transcript, and it reads:

 5             "The standard that shall be applied to every count in the

 6     indictment is to show that whether the evidence presented and taken in

 7     the most favourable sense for the Prosecution are sufficient to have the

 8     Trial Chamber deliver a convincing judgement beyond any reasonable

 9     doubt."

10             The facts presented in the Prosecution case against our client,

11     the Accused Simatovic, encouraged the Defence team to present our

12     arguments pursuant to Rule 98 bis and to ask the Honourable Chamber to

13     acquit the accused on all counts of the indictment.

14             What follows is -- in this Rule, is that whether the evidence is

15     sufficient enough to constitute a basis for a judgement about a specific

16     count of the indictment does not in any way make or give an indication of

17     the final position of the Trial Chamber regarding the guilt or innocence

18     of the accused with regard to a specific count in the indictment.  The

19     reason for that is that at the time when this evidence is presented, the

20     Trial Chamber will not evaluate the credibility of the witness, the

21     strengths or the weaknesses are contradictory, or other evidence;

22     instead, the Trial Chamber should decide at this stage of the proceedings

23     whether the evidence are such that can be trusted at all.

24             Basically, the motion pursuant to 98 bis will be successful in

25     the areas where there's no evidence that support any count of the

Page 11302

 1     indictment or where the only relevant evidence is such that they cannot

 2     be trusted in any way and that cannot constitute a basis for a decision

 3     not even when they were taken in the best possible context for the

 4     Prosecution.  Therefore, the Simatovic Defence would like to emphasise

 5     that the motion pursuant to 98 bis Rule can be successful if there's no

 6     evidence that support any count of the indictment or if the relevant

 7     evidence is so inappropriate that it cannot be trusted and believed and

 8     cannot constitute a basis for a decision even if this evidence is

 9     interpreted in the best possible way to the benefit of the Prosecution.

10             The Defence of Franko Simatovic will try to show why we -- they

11     believe that the Prosecution did not prove their case against

12     Franko Simatovic and why this Honourable Chamber should render a

13     judgement of acquittal for Mr. Simatovic already at this stage of the

14     proceedings.  Although sometimes it is hard to refrain oneself from

15     evaluating the evidence, and we think that that is neither the time nor

16     the place to do such a thing, the Simatovic Defence will try to point

17     to -- out to those parts of the Prosecution case for which we believe

18     that have not been proven even if the presented evidence were to be

19     accepted without any doubts or contradictory elements which is, at the

20     same time, a criteria to be applied when weighing them at this point in

21     time pursuant to 98 bis.

22             The indictment against Franko Simatovic contains a large number

23     of allegations about his purported role in the events 1991 to 1995.  The

24     Prosecution tried to prove some of these allegations, and quite a few of

25     their submissions did not contain not a single shred of evidence, not a

Page 11303

 1     single word in witness testimonies, or any written document that would at

 2     least indirectly support and confirm what is contained in the indictment

 3     with relation to Simatovic's role.

 4             Pursuant to 98 bis Rule, the Defence will try to point to the

 5     allegations and charges in the indictment and the Prosecution brief trial

 6     that have not in any way whatsoever been proven in the course of these

 7     proceedings so far.

 8             In explaining our arguments, we would like to try and begin with

 9     the introductory part of the indictment.  Although this part of the

10     indictment contained personal details of the accused, the Defence

11     believes that only citing personal details is important for determining

12     the place and the role of the accused Simatovic in relation to the events

13     for which he has been charged.  Namely, in the indictment, in addition to

14     the date and place of birth, the Prosecution said that the accused

15     Simatovic started working in the state security department of Serbia in

16     1978 and that he worked there all the way through to 2001 doing a variety

17     of jobs.

18             They go on to say that after that the Accused Simatovic was

19     transferred to the newly-established counter-intelligence department, the

20     so-called second department, of the DB where he was a commander of a unit

21     for special DB operations.  The Defence would like to point out that

22     there is not a single evidence, valid evidence, that will confirm that

23     Franko Simatovic, and at any point in time between 1991 and 2001 when he

24     was retired, was the commander of JSO as stipulated in the indictment.

25     There is not a single document that can support this claim, nor did we

Page 11304

 1     hear from any witness that appeared before this Chamber saying that

 2     Simatovic was the commander of this unit.

 3             The Defence would like to bring to the attention of the

 4     Trial Chamber the indictment refers to the period from 1991 to 1995 and

 5     the acts committed in the territory of Croatia and Bosnia-Herzegovina.

 6     Therefore, the Defence believe that the Prosecutor should have presented

 7     evidence about the positions and the movement of the Accused Simatovic in

 8     the state security service within the relevant period.  These facts are

 9     significant and necessary in order to interpret other evidence, of course

10     with regard to the focus on the context and his position in that period.

11             It has been claimed by the Prosecution that he spent the whole of

12     1990 in Pec and in Kosovo [as interpreted] as a member of the state

13     security service.  He is being attributed a role relating to a member of

14     a joint criminal enterprise whose members were presidents of republics,

15     the chiefs, the generals, staffs, ministers, and others, and Franko

16     Simatovic at the time had a title of a senior inspector in the second

17     department of the state security administration service in Belgrade.

18     Simatovic was appointed to this post on the 8th of January, 1991.  That

19     is P2398.

20             Your Honour, I've been told that there is a mistake on page 10,

21     line 10, where it says that the Prosecution claims that Simatovic spent

22     certain time in Kosovo.  This is something that it is the Defence claim,

23     actually.  We have his personal files, and this is our position.  The

24     Prosecution did not want to analyse his movement within the service

25     because certain posts are being registered under specific code-names in

Page 11305

 1     compliance with the staffing rules, and the Prosecution did not shed any

 2     light on that.

 3             Further on, pursuant to the decision of Milan Prodanic, the chief

 4     of the 8th administration of the state security service of the

 5     Republic of Serbia, of the 14th of April, 1992, Franko Simatovic was

 6     given a salary to which a senior inspector in the state security is

 7     entitled.  That is P2407.  So in April 1992, pursuant to the decision of

 8     Milan Prodanic, the chief of the 8th administration was given a salary as

 9     a senior inspector in the state security service.  The same decision was

10     rendered for the year of 1993.  That is P2409.

11             On the 12th of May, 1993, Simatovic was appointed to the post of

12     a senior inspector.  So in May 1993, Franko Simatovic, a member of the

13     JSE [as interpreted] along with Slobodan Milosevic, Radovan Karadzic, and

14     the others, when this enterprise according to the Prosecution in their

15     pre-trial brief was already gaining momentum, he was given a position of

16     a senior inspector and received an appropriate salary in the state

17     security service.  The position of Simatovic in the hierarchy of the

18     service per se constitute a key restriction of his abilities to affect

19     the operation of the service or to affect other processes in society that

20     might be the subject of interest or engagement on the part of the state

21     security department.

22             At the time when Simatovic is being spoken about as a person who

23     played a significant role in establishing training camps in the area of

24     Kninska [as interpreted] Krajina, Franko Simatovic was the head of a

25     sector in the 2nd department of the state security administration in

Page 11306

 1     Belgrade.  That is P2403.  Therefore, in this period, between Simatovic

 2     and the minister of the interior of the Republic of Serbia, there existed

 3     three levels of -- four levels of management; namely, the chief of the

 4     second sector of the SDB administration in Belgrade, chief of the SDB

 5     administration in Belgrade, deputy chief of the security service, chief

 6     of the state security service, and only after that comes the minister of

 7     the interior.  The Defence would like to emphasise all of this and

 8     present this to the Trial Chamber because the Prosecution ascribes to

 9     Simatovic such a role and influence that actually far overreaches his

10     real position in the service.

11             A striking illustration of Simatovic's position was the fact that

12     at the time when ranks were introduced in the DB of the Republic of

13     Serbia as one of the departments that constitute the

14     Ministry of the Interior, Simatovic received the rank of lieutenant.

15     That is P2389.  So only in 1999 Simatovic was promoted to the rank of

16     captain.  And he was retired with this rank as well.  This is

17     Exhibit P2430.

18             The Defence would like to underline that the MUP of the

19     Republic of Serbia, at the time when Simatovic was afforded the rank of

20     lieutenant and later on captain, already had quite a few generals,

21     colonels, lieutenant-colonels, et cetera.  At this point and for the

22     needs of this case and of course since we heard that from many a witness,

23     we may, for example, mention Obrad Stevanovic who was a general.

24     Radovan Stojicic, Badza, who was another person frequently mentioned in

25     this case, had also the rank of general in the security department.  The

Page 11307

 1     Simatovic Defence team would like to mention all these names because all

 2     these names feature in the facts relating to this case or in witness

 3     testimonies.

 4             So if Franko Simatovic really had the role ascribed to him by the

 5     Prosecution in the very introductory part of the indictment, but also

 6     elsewhere in the indictment, then when the ranks were introduced to the

 7     security department in 1998, would certainly have deserved and be given a

 8     much higher rank, if not that of a general but probably that of a

 9     colonel.  However, Simatovic was given the rank of a lieutenant which,

10     according to the opinion of the Defence team, speaks volumes about his

11     position in the hierarchy and the role in the events relevant for the

12     indictment.

13             Finally, the Prosecution claims in the indictment that throughout

14     the whole period covered by the indictment Franko Simatovic acted upon

15     authorisation by Jovica Stanisic.  This allegation, although ambiguous

16     per se, was not supported by a single shred of evidence or any witness

17     testimony or clarified in that respect.  What does that mean that he

18     acted on the authority of Jovica Stanisic?  It's only reasonable to

19     assume that Jovica Stanisic acted on the authorisation that he got from

20     the minister of the interior and that all the officials who were below

21     the chief of the department Stanisic acted upon his authorisation, that

22     is to say, on the authorisation of the chief of the state security

23     service.

24             Whether acting upon an authorisation from one superior

25     constitutes a crime, whether acting within the service in line with the

Page 11308

 1     orders and instructions of the head also constitutes a crime in itself,

 2     we say that it doesn't.  The Defence believes that the Prosecutor did not

 3     prove that the Accused Franko Simatovic received from Jovica Stanisic any

 4     kind of unlawful, illegitimate order or that he carried out such an

 5     order.

 6             The Defence asserts that Franko Simatovic, throughout the time

 7     that is relevant to the indictment, acted only in keeping with the work

 8     orders that had come from his superiors in the service and that these

 9     work orders were fully in accordance with the authorities vested in the

10     state security service of the MUP of the Republic of Serbia and its

11     position.

12             Further on, it is the position of this Defence that the

13     Prosecutor has not presented a shred of evidence to the effect that

14     Simatovic issued any kind of order, instruction, at any point in time to

15     any person which would represent an expressions of his wilfulness or

16     acting outside his official powers.

17             As we've already said in the introduction, the indictment says

18     that Simatovic was commander of the JSO.  First of all, all the evidence

19     adduced shows that the unit called the special operations unit, the JSO,

20     was created after the period that this indictment speaks of, namely,

21     1996.  Also its first commander was Milorad Lukovic.  From the moment

22     when this unit was established, all the way up until its disbanding,

23     Franko Simatovic was never the commander of this unit.  Nowhere in the

24     indictment does the Prosecutor state that Franko Simatovic was the

25     commander of any other unit or formation that the Prosecutor calls

Page 11309

 1     special units of the DB of Serbia.  In actual fact, when the Prosecutor

 2     says special units of the DB of Serbia, they mean the unit for special

 3     purposes of the MUP of Serbia, the unit for anti-terrorist actions of the

 4     MUP of Serbia, and the JSO.

 5             The Defence would like to note that the Prosecution had the

 6     personal file of Mr. Franko Simatovic at their disposal and that it is

 7     evident and quite clear from that file that he never held the position of

 8     any -- of the commander of any special unit in the DB of the

 9     Republic of Serbia.

10             The Prosecutor also states that these special units were secretly

11     established by the DB of Serbia or with its assistance.  The Defence

12     asserts that that is absolutely untrue.  The unit for anti-terrorist

13     actions, the JSO [as interpreted], was established in August 1993 by a

14     decision of the minister of the interior of the Republic of Serbia.  The

15     unit had its own staffing --

16             Your Honours, again I'm being told that a correction should be

17     made:  The unit for anti-terrorist actions, "JATD," not "JSO," was

18     established in August 1993.  JATD.

19             The JATD, that is to say, the unit for anti-terrorist action, had

20     its own staffing.  Members of the unit received appointments made by the

21     organ in charge.  It is not true what the Prosecutor says, that this is

22     some kind of a secret unit outside the system and beyond the control of

23     appropriate organs.  All the evidence indicates that this was a unit that

24     was part of the system of the MUP of the Republic of Serbia.

25             The Prosecutor has also not proven that Franko Simatovic at any

Page 11310

 1     point in time, either formally or in fact, commanded this unit.  The

 2     Prosecutor states that in April 1991, or around that time, Simatovic

 3     helped open the training centre in Golubic, near Knin.  That is paragraph

 4     3 of the indictment.  The Defence claims that this allegation has not

 5     been proven at all.  On the contrary, the witnesses called by the

 6     Prosecution in order to support the indictment provide grounds for

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)  It is transcript page 7951.

12             The people who had received weapons from the JNA and the

13     Territorial Defence were sent to Golubic for training.  That is asserted

14     by this very same witness on page 7952.  This witness says that the

15     special unit of the MUP of Krajina was sent for training in Golubic

16     before Captain Dragan came on the 15th of May, 1991.  Transcript page

17     8004.  Another Prosecution witness, JF-039, confirms as well that Golubic

18     was opened a few months before Captain Dragan arrived in Knin.  That is

19     transcript page 7339.

20             Witness JF-031 confirms that the training at the camp in Golubic

21     was basically the same as JNA training.  The Defence would like to

22     indicate to the Honourable Trial Chamber the following transcript pages:

23     7436 through 7437.  Furthermore, this witness confirms that in Golubic,

24     even before April 1991, there was a special unit of the MUP of Krajina

25     that was stationed there headed by Dragan Karna, who was at the same time

Page 11311

 1     the commander of the camp too.  We would like to indicate to the

 2     Trial Chamber transcript page 7438.  This same witness adds that this

 3     unit was under the command of Milan Martic.  Transcript page 7440.

 4             Finally, the witness confirms that there was no unit of the SDB

 5     of Serbia in Krajina from April until September 1991.  Transcript page

 6     7442.  And also the witness states that his superior was Dragan Karna,

 7     Milan Martic, and no one else.  Transcript page 7443.  Therefore, it is

 8     clear that the Prosecution witnesses themselves refute the allegations

 9     made in the indictment that Simatovic helped (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14             In paragraph 3 of the indictment, it says that Simatovic

15     organised, supplied, and financed the training of Serb forces and was in

16     charge of that training as such.  Only from the beginning of July 1991

17     about 15.000 small arms were distributed from JNA depots.  In July 1991,

18     20.000 weapons were distributed.  In the period between August and

19     October 1991, an additional 20.000 weapons were distributed.

20     Your Honours, that is D118.

21             Witness JF-041 states that weapons were distributed to the local

22     population in mid-1991 in Knin and it originally came from JNA depots and

23     depots of the TO.  That is transcript page 7948.  Witness Miljanic, a

24     former JNA officer and, at the time real relevant for the indictment, a

25     member of the ministry of the interior of Croatia, also says that there

Page 11312

 1     were numerous depots of the JNA in that area.  We would like to draw the

 2     attention of the Honourable Trial Chamber to transcript pages 2423

 3     through 2425.

 4             Therefore, it is clear that Franko Simatovic did not affect or

 5     could not affect the arming of the population and TO units and the MUP in

 6     the area of the SAO Krajina.  Thousands of tonnes of weaponry were

 7     distributed from JNA depots and there were a significant number of them

 8     in this area.  No role of Simatovic can be called arming because all the

 9     evidence indicates that the main and dominant source of arming was the

10     JNA, that armed the local population from their own depots and those of

11     the TO, not only in Knin but throughout the SAO Krajina and later on in

12     Bosnia-Herzegovina.

13             We wish to note that the evidence in this case has proven that

14     this arming was a response to the previously-started secret arming of the

15     Croatian and Bosniak population.  As for organisation, the Defence

16     believes that the Prosecution has not adduced a single shred of evidence

17     indicating that Franko Simatovic took part in the organisation and

18     financing of the Golubic camp.  We have already pointed out that the

19     Golubic camp was organised for the training of special units of the MUP

20     of Krajina considerably before Franko Simatovic came to this area, where

21     he spent a very short period of time, as we would like to note.

22             The Defence claims that he came to this area with tasks that were

23     quite different from those presented by the Prosecutor in the indictment.

24     The Prosecutor has not proven by way of any evidence that Stanisic and

25     Simatovic determined the establishment of the camp, the time and way in

Page 11313

 1     which the training would take place, the length of the training, the type

 2     of training involved, et cetera.  So if the Prosecutor is proving --

 3     trying to prove throughout the Prosecution case that Jovica Stanisic and

 4     Franko Simatovic organised the camp in Golubic, then it was necessary for

 5     us to see or hear some evidence that would indicate any one of these

 6     elements on the basis of which the Golubic camp functioned, that is to

 7     say, how long the training would last, who would be admitted for

 8     training, how long it would last, what type of training it would be,

 9     et cetera.  If we say that somebody organised that, then we have to prove

10     it, don't we?  The Prosecutor has not adduced a shred of evidence to that

11     effect.

12             The Defence would also like to say to the Trial Chamber that in

13     paragraph 3 of the indictment there is a totally unsupported assertion

14     that Stanisic and Simatovic later in certain parts of Bosnia-Herzegovina

15     and Croatia opened additional centres for training that were financed by

16     the DB of Serbia.  There is no evidence as far as the Simatovic Defence

17     could see of the existence of such centres and what Stanisic and

18     Simatovic had to do with any such centres, if any.  There is no evidence

19     as to what kind of link exists between these centres referred to with the

20     DB of Serbia, let alone what their link is to Franko Simatovic.  There is

21     no evidence whatsoever.  And we are saying that there are no centres

22     anyway, so there's no evidence of financing such centres.

23             In paragraph 4 of the indictment, in addition to the special

24     purposes units, the anti-terrorist action units, and the unit for special

25     operations that the Defence has already spoken about, the Prosecutor

Page 11314

 1     states that the DB of Serbia, or with the assistance of the DB of Serbia,

 2     the units of the Skorpions were established, as well as the

 3     Serb Volunteer Guard, also known as Arkan's Men, and the elite unit of

 4     the Serb Volunteer Guard, Arkan's Tigers.

 5             It is quite clear that all the facts from the Prosecution case

 6     are not proof of the participation of the DB of Serbia in the

 7     establishment of these units, the Skorpions, the Serb Volunteer Guard,

 8     and Arkan's Tigers.  Also, the Defence claims that there is no proof

 9     whatsoever that these units at any point in time that is relevant to this

10     indictment were under the control of the SDB of the Republic of Serbia.

11             The Defence will first deal with the Skorpions and the evidence

12     adduced by the Prosecution to support their allegation that it was the

13     state security of Serbia or, more specifically, Jovica Stanisic and

14     Franko Simatovic established these units or assisted in their

15     establishment.  As far as the Skorpions units is concerned, a great deal

16     of evidence has been adduced before the Honourable Trial Chamber that

17     indicates that this unit was not established by the DB of Serbia or that

18     it was at any point in time under the control of this service.

19             JF-029, a Prosecution witness who was closely linked to the

20     Skorpions units and who has direct knowledge of all the facts that are

21     relevant to the establishment of the creation, status, and activities of

22     this unit, during his direct examination before the

23     Honourable Trial Chamber stated that the Skorpions were established in

24     1991 at the request of the then director of the oil industry of the

25     Krajina, Petar Golubovic, with the task of protecting the oil fields in

Page 11315

 1     Djeletovci.  This is also corroborated by a conclusion of the government

 2     of the Serb region of Slavonia, Baranja, and Western Srem, dated the 21st

 3     of January, 1992, this conclusion is a league basis for the establishment

 4     of the Skorpions.  The Defence would like to draw the attention of the

 5     Honourable Trial Chamber to D217.

 6             Witness JF-029 further on states that this unit during 1991 was

 7     within the Territorial Defence of Slavonia, Baranja, and Western Srem and

 8     that in 1992 it was under the command of the PJM of the Krajina and that

 9     in 1993 it became an integral part of the Army of the Republic of the

10     Serb Krajina.

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)  Transcript page 10049.  This witness

16     states further on that the Skorpions in 1994 took part in Operation Pauk,

17     Spider, under the command of Mile Novakovic.  Transcript page 10050

18     through 10051.

19             Witness Goran Stoparic confirms that the main task of the

20     Skorpions was securing the oil fields in Djeletovci, as well as the

21     border-line between the Republic of Serb Krajina and Croatia that ran

22     along the Bosut River.  The Defence would like to indicate to the

23     Trial Chamber the following transcript reference:  10333 through 10334.

24   (redacted)

25   (redacted)

Page 11316

 1   (redacted)

 2             JUDGE ORIE:  Mr. Groome.

 3             MR. GROOME:  Your Honour, I'm sorry to interrupt Mr. Bakrac, but

 4     could I ask that we go into private session just for a moment.

 5             JUDGE ORIE:  We move into private session.

 6                           [Private session]

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 11317

 1                           [Open session]

 2             THE REGISTRAR:  We are in open session, Your Honours.

 3             JUDGE ORIE:  Thank you, Madam Registrar.

 4             MR. BAKRAC: [Interpretation] Your Honours, I shall now say

 5     something, but I hope that I'm not going to overstep already in the first

 6     sentence.  But the mentioned witness testified saying that orders for the

 7     use of this unit came from General Loncar.  And JF-029 conveyed these

 8     orders to the unit.  Transcript page 10358 through 10360, and 10445.  So

 9     the establishment and the further work and the orders for the use of this

10     unit came from General Loncar, and it is evident and it has been clearly

11     proven that he was the commander in the area of Slavonia, Baranja, and

12     Western Srem.

13             The Skorpions never had joint actions with the Red Berets or with

14     the JSO.  That's why this is referred to in 10499 through 10501.

15     Although the Prosecutor alleges in the indictment that all the special

16     units of the DB acted together, this witness, on that transcript page,

17     denies this allegation of the Prosecution and he says that the Skorpions

18     never had any joint actions with any one of these units.

19             Stoparic confirmed that in June 1995 he was not a member of the

20     reserve force of the MUP of Serbia.  Transcript page 10373 through 10374.

21     Afterwards, he confirmed that on the 11th of August, 1995, that is to

22     say, only on the 10th of August, 1995, he joined the reserve force of the

23     MUP of the Republic of Serbia.  Which means that until the

24     11th of August, 1995, as a member of the Skorpions, he was not part

25     either of the active or reserve force of the MUP of the

Page 11318

 1     Republic of Serbia.  The transcript reference is 10374 through -- 10373

 2     through 10374.  It is clear that the Skorpions were not a unit that had

 3     anything to do with the MUP of Serbia, let alone with the DB of the

 4     Republic of Serbia.  There is a lot more evidence that we have referred

 5     to stating that this unit had nothing whatsoever to do with the state

 6     security of the Republic of Serbia.

 7             As regards Zeljko Raznjatovic, Arkan, and his Serb Volunteers

 8     Guard, as well as Arkan's Tigers, the Defence asserts that Arkan and his

 9     unit had no organisational or functional ties to the Serbian DB.

10     Witness JF-0030 stated that the JNA took over command of the TO and all

11     other formations including Arkan in Slavonia, Baranja, and

12     Western Sirmium in the month August 1991.  Transcript page 10669 and

13     10670.

14             Here the Defence wishes to refer to Witness JF-029 again.  We

15     know what his position was.  We wish to point out that his testimony is

16     important because he was one of a total of only two or three Prosecution

17     witnesses who could have had any knowledge in matters of organisation,

18     financing, and mutual ties between different military and police

19     structures in the area relevant to this indictment.

20             The Prosecution will understand, as will the Chamber, that all

21     other witnesses who were called by the Prosecution were such witnesses

22     who could speak to the key issues of organisation, financing, command and

23     control, as well as other key issues in this indictment, only based on

24     hearsay, without any immediate or direct knowledge of the relationships,

25     position, and roles of the persons tried before this Court.

Page 11319

 1             Witness JF-029, whom I've mentioned already, testified that Arkan

 2     had his own unit and that the unit in early 1991 was under TO command of

 3     the region of Slavonia, Baranja, and Western Sirmium.  Once the

 4     international forces arrived in the region, according to the Vance Plan,

 5     it fell under the command of the PJMs.  In that area, PJM units were

 6     formed in April 1992.  The PJMs were under the command of the MUP of

 7     Republika Srpska Krajina, as stated by JF-029 at transcript page 10035.

 8     Arkan's immediate commander was Bozidar Kosutic, a JNA officer.  He told

 9     you that, Your Honours, at transcript page 10036.  Finally, the witness

10     stated that as of 1993, Arkan with his unit fell under the Serb Army of

11     the Krajina in its Vukovar corps.  Transcript page 10034.

12             The same witness, JF-029, confirmed that Badza had a co-operative

13     relationship with Arkan during Arkan's stay in the region of Slavonia,

14     Baranja, and Western Sirmium.  When we say Badza, the Defence have in

15     mind Radovan Stojicic.  This can be found at transcript page 10108.  The

16     witness also asserted that while Badza, or Radovan Stojicic, was in the

17     region, Arkan implemented all of his orders.  Your Honours, it is in

18     transcript page 10109.

19             In contrast to the relationship of Badza and Arkan, the Defence

20     wishes to point out D204 and D206 where we can see that Arkan was

21     observed by the state security service.  This unambiguously indicates

22     that the Serbian Volunteers Guard and its commander were under

23     operational investigation by the state security service.  As such, they

24     could not have been a special unit of theirs, as is we can find in the

25     indictment.

Page 11320

 1             Based on the two aforementioned documents, it becomes clear that

 2     the state security service of the Republic of Serbia investigated Arkan

 3     and the Serbian Volunteers Guard as a unit which had nothing to do with

 4     it.

 5             Witness JF-015 testified that Arkan had at his disposal weapons,

 6     ammunition, and armaments of the JNA and that he made use of it in combat

 7     outside Erdut, which is transcript page 4098 to 4106.

 8             Your Honours, I am being told that we ought to have a break

 9     because of Mr. Stanisic.  I would kindly ask you for your indulgence.

10             JUDGE ORIE:  It's approximately the time where we usually have a

11     break.  Mr. Bakrac, could I briefly ask you:  The time granted to you was

12     three and a half hours, that was expected to be one day, is that --

13     you're still on track as far as time is concerned?

14             MR. BAKRAC: [Interpretation] Your Honour, I think I'll be shorter

15     than even three hours.

16             JUDGE ORIE:  Okay.  That's one thing.

17             Before we take a break, the -- it was apparent that a few

18     redactions were made today.  Since there was public in the public

19     gallery, including persons who professionally work on the proceedings of

20     this Tribunal, I would instruct anyone who wants to quote from this

21     hearing, and especially those who are professionally dealing with it, to

22     first consult the public record where it may become clear what portions

23     are redacted.  There are four redactions made.

24             Having said this, we'll take a break and resume at 4.00.

25                           --- Recess taken at 3.29 p.m.

Page 11321

 1                           --- On resuming at 4.01 p.m.

 2             JUDGE ORIE:  Mr. Bakrac, are you ready to proceed?

 3             MR. BAKRAC:  [Interpretation] Yes, Your Honour.  Thank you.

 4             Your Honour, before the break we discussed evidence proving or

 5     disproving the fact that Arkan's Tigers belonged to the Serbian SDB.  We

 6     assert that there was no link whatsoever.  Before the break, I referred

 7     to JF-015's testimony, who stated that Arkan with his group had at his

 8     disposal weapons, ammunitions, and armaments of the JNA, and that he used

 9     it in combat outside Erdut, which is at transcript page 4098 to 4106.

10             Before the break the transcript pages seemed to have been

11     incorrectly recorded.

12             The witness also never saw Arkan receiving any orders from the

13     DB.  He said as much at transcript page 4109.  I apologise.

14     Witness CO-15 confirmed that Radovan Stojicic, Badza, told him that the

15     TO in the region was supposed to follow JNA instructions, which is at

16     page 1661.  As well as that Badza himself was under JNA command.  The

17     witness confirmed that Arkan was a volunteer, that he was under TO

18     command, and that he bore the insignia of the TO.  This is at transcript

19     page 1663.

20             Witness JF-011 states that in operations Arkan with his volunteer

21     guard -- Your Honours, I apologise.  There is a mistake in the

22     transcript.  I misspoke.  The same witness, CO-15, stated that during

23     operations Arkan and the Serb Volunteer Guard were under JNA command,

24     which is at transcript page 1664.  He also stated that the commander of

25     the Novi Sad Corps, Andrija Biorcevic, sent Arkan to the parts of the

Page 11322

 1     theatre where there was combat.  It is transcript page 1714.  The witness

 2     testified that Andrija Biorcevic, commander of the Novi Sad Corps, sent

 3     Arkan and his Serb Volunteer Guard to the parts of the front lines where

 4     there was combat.  Therefore the JNA and Andrija Biorcevic of the

 5     Novi Sad Corps issued orders to Zeljko Raznjatovic, Arkan, and his

 6     Serb Volunteer Guard.

 7             Another witness who was a senior official in the region, his

 8     pseudonym is JF-034, and in order to protect his identity we won't

 9     specify his position within the government, stated that by the end of

10     1991, or until the end of 1991, the JNA controlled the TO in the region.

11     The same witness confirmed that Arkan occasionally attended government

12     sessions as well as that he was constantly in touch with Goran Hadzic,

13     the regional president.  This can be found at transcript page 5987 and

14     5988.

15             This witness who held this senior position stated that the

16     ministers in the government of the region of Slavonia, Baranja, and

17     Western Sirmium had no contacts with the Serbian DB and that he doesn't

18     know what sort of role the Serbian DB could have had in that area.  This

19     assertion is found at page 6009.

20             Furthermore, the same witness said that Arkan's influence relied

21     on the links that existed between Arkan and the JNA or, to be more

22     specific, between Arkan and General Biorcevic, commander of the Novi

23     Sad Corps.  This is at his transcript page 6084, when D78 was shown to

24     him.

25             Finally, Defence showed you D196, which is a footage from the

Page 11323

 1     period covered by the indictment, where Raznjatovic, Arkan himself

 2     confirms that he and his units were under the TO of Slavonia, Baranja,

 3     and Western Sirmium and that the TO in turn was under the armed forces of

 4     the JNA.  With his Serb Volunteer Guard, Arkan was in the territory of

 5     Republika Srpska Krajina in 1993 and he participated as part of the

 6     Army of the Serb Krajina, as testified by JF-035 at transcript page 5414.

 7     The witness stated that Arkan's unit acted in keeping with the orders of

 8     the Main Staff of the Serb army of the Krajina.  This part of the

 9     witness's statement is at transcript pages 5489 and 5490.

10             Witness Stoparic asserted that the Skorpions never carried out

11     joint operations with the JSO.  This is something that has already been

12     mentioned.  By the same token, Witness JF-048 confirmed that the JATD

13     never carried out joint operations, neither with the Skorpions -- either

14     with the Skorpions or with Arkan's units.  This is at transcript page

15     5805.

16             Regarding the territory of Bosnia-Herzegovina, the Prosecution

17     also put forth evidence which led us to the following conclusions:  First

18     and foremost, the Defence displayed D52, which shows that Arkan and his

19     Serbian Volunteer Guard arrived in Bijeljina in 1992 upon invitation of

20     the local TO.  Biljana Plavsic, who was a senior politician in

21     Republika Srpska, accompanied Arkan in Bijeljina during the operations

22     there.  Witness JF-025 secured their meeting, as can be seen in D84 and

23     at page 6285 of the transcript.  All of this clearly indicates how Arkan

24     arrived in Bijeljina with his unit and on whose invitation.

25             Witness JF-026 who was another witness who, due to his position

Page 11324

 1     at the time, was privy to events in the area of Zvornik stated that

 2     Biljana Plavsic had a meeting with Major Pejo, who was in Arkan's unit,

 3     on which occasion she demanded that Arkan be invited to Zvornik.  This is

 4     at transcript page 9744 and 9745.  The witness confirmed that the JNA

 5     participated in the take-over of Zvornik, as well as that Arkan with his

 6     unit was under JNA command in that operation.  The witness stated this at

 7     transcript page 9751 and 9752 when he was shown D158.

 8             The witness was also familiar with the arrest of Zuca from the

 9     Yellow Wasps as well as the arrest of Ulemek Legija in Zvornik, who were

10     later released upon insistence by General Jankovic who was the commander

11     of the 17th Corps of the JNA in Tuzla and Colonel Boskovic from Belgrade

12     who was a member of the military security service.  This can be found at

13     transcript page 9752 to 9754, as well as at page 9783.

14             Therefore, Arkan arrived in Zvornik following an invitation of

15     the local authorities in co-ordination with the state leadership of

16     Republika Srpska.  In that operation he acted under JNA command.  And as

17     testified by JF-026, Arkan left Zvornik following Colonel Tacic's order

18     to leave.  This can be seen at transcript page 9833.

19             Arkan arrived in the area of Sanski Most on invitation by the

20     leading people of the SDS in the area as asserted by Witness JF-010 at

21     transcript page 3809.  In October 1995, General Talic issued an order to

22     the VRS and the MUP of Republika Srpska as well as to the

23     Serb Volunteer Guard, headed by Zeljko Raznjatovic, Arkan, which is

24     something we can see in D146.  Therefore, General Talic in 1995 was a VRS

25     general who was in charge operations around Sanski Most and Banja Luka.

Page 11325

 1     The order used to issue tasks to the Serb Volunteer Guard can be found in

 2     item 2 of D146.  Between September and October of 1995, Arkan acted under

 3     the command of Republika Srpska MUP.  Clear evidence of it is a dispatch

 4     by the Ministry of the Interior of the RS, Tomo Kovac, dated the

 5     11th of October, 1995.  Arkan was ordered to carry out arrests of

 6     deserters and those who abandoned the front lines in the area of the

 7     public security centre of Prijedor.  This is something that can be seen

 8     at transcript page 3819 and 3820, as well as in Exhibits D28 and D140.

 9             Even before 1995 Arkan was active in Bosnia-Herzegovina through

10     the benevolence of the MUP of Republika Srpska, which is something that

11     can be found in D59.  In Republika Srpska, Arkan was active based on an

12     invitation which came from the most senior officials of Republika Srpska,

13     which is a conclusion that can be drawn from the letter dated the

14     16th of April, 1994, which is D29.  This can be found at transcript pages

15     3819 and 3820.

16             Here the Defence particularly likes to point out document D190 of

17     the 30th of September, 1995, where the president of the RS,

18     Radovan Karadzic, directly authorised the SJP MUP units of the RS, called

19     the Tigers, to assist the military and civilian police in bringing in all

20     deserters and run-away soldiers from the ranks of the VRS, instructing

21     that they should be handed over to their respective commands in order to

22     be sent to combat.  This is D190.  It indicates that Arkan's Tigers,

23     during the relevant period, were part of the MUP of Republika Srpska and

24     that their engagement was ordered directly by the RS president.

25             It is clear, therefore, that in this comprehensive action in

Page 11326

 1     Sanski Most which developed under General Talic's command, who was a VRS

 2     general, the RS MUP participated as well.  Following an invitation of the

 3     state leadership of the RS, Arkan and his Serb Volunteer Guard arrived in

 4     the area to be included in the RS MUP.

 5             All of the above indicates that the Prosecution did not manage to

 6     prove that the Skorpions and the Serb Volunteer Guard as well as

 7     Arkan's Tigers were formed by the DB of Serbia or with its assistance,

 8     even if all of that evidence were seen in the light most favourable to

 9     the Prosecution.

10             There is also no evidence that the Serbian DB was involved in the

11     deployment of these units at various locations in Croatia and

12     Bosnia-Herzegovina where they were subordinated to or where they acted in

13     co-operation with other Serbian forces.  The Prosecutor, in its initial

14     document, that is to say in the indictment, alleges that the accused,

15     Jovica Stanisic and Franko Simatovic, took part in the deployment of the

16     Skorpions or the Serbian Volunteer Guard and Arkan's Tigers to various

17     locations in Bosnia-Herzegovina and Croatia and that they acted there in

18     concert with other Serbian forces.

19             The Defence, through a series of evidence presented by the

20     Prosecution, demonstrated that the Prosecution did not offer any proof

21     for these allegations of theirs but that, quite the contrary, there is a

22     bulk of evidence indicating that the Skorpions, the

23     Arkan's Volunteer Guard, and Tigers went to Bosnia-Herzegovina and

24     Croatia and were deployed there on orders of all the political and state

25     officials that we named so far or the institutions that we made reference

Page 11327

 1     to.

 2             Everything that exists about the connection between the state

 3     security service of Serbia with the Skorpions, the Serbian Volunteer

 4     Guard, and the Arkan's Tigers can, in view of the Defence, only be

 5     described as evidence negligible probative value upon which no conviction

 6     can be based.  The Defence would particularly like to point out that

 7     there is no evidence about the connection and involvement of

 8     Franko Simatovic in the formation, assistance, or deployment of these

 9     units in Croatia and Bosnia-Herzegovina, which, even if interpreted in

10     the most favourable way for the Prosecution, can bring about a

11     conviction.  Everything that exists against Simatovic with regard to

12     these circumstances are testimonies of the persons who did not have any

13     direct knowledge about Simatovic's activities, his position, and his role

14     in the events at the relevant time.  Everything that we can find contrary

15     to the solid evidence that we presented to this Trial Chamber are only

16     rumours and hearsay which can only establish the connection between

17     Franko Simatovic and these units in an extremely remote way.

18             The indictment says that Stanisic and Simatovic were responsible

19     for special units of the Serbian DB and that they organised, supplied,

20     financed, and supported their participation in the operations in Croatia

21     and Bosnia-Herzegovina and that they directed this participation.  It is

22     also stated that the accused have individual criminal responsibility for

23     the crimes described in the indictment, that they he had planned these

24     acts, ordered them, committed them, and/or the planning of which, the

25     preparation of which, and/or the commission of which they aided or

Page 11328

 1     abetted in some other way.  The responsibility of Stanisic and Simatovic

 2     includes their participation as co-perpetrators in the joint criminal

 3     enterprise.

 4             The indictment also alleges that the accused have provided

 5     communication channels between key participants of the joint criminal

 6     enterprise in Belgrade in specific areas and at local level, that they

 7     organised and controlled the formation of special units of the Serbian DB

 8     and other Serbian forces, and that they organised and managed the

 9     financing, training, logistical support, and other forms of aid or

10     support for special DB units and other Serbian forces.  The

11     Simatovic Defence believes that the Prosecution failed to prove a single

12     allegation from the indictment.  The Prosecution did not present any

13     concrete evidence about the acts or omissions on the part of Simatovic in

14     the context of the allegations contained in the indictment.

15             It is not clear on the basis of what evidence that would meet the

16     standards set down by Rule 98 bis did the Prosecutor establish that

17     Franko Simatovic took part in the organising, financing, supplying, and

18     directing the units that are listed in the indictment.  The Prosecutor

19     also failed to demonstrate what was it that the Accused Simatovic omitted

20     to do which was -- which he was duty-bound to do within his powers and

21     duties contained in his purview in the service.  We already said that the

22     Prosecutor failed to demonstrate in a clear and unambiguous way the

23     movement of Simatovic within the service as well as what his rights and

24     obligations were in the period between 1991 and 1995 that he was to

25     discharge as part of his job and according to the job classification.

Page 11329

 1             Quite the contrary, the Prosecutor mainly heard witnesses who

 2     came beyond relevant structures of the state security service or the MUP

 3     of Republic of Serbia.  And what was it that he omitted to do as part of

 4     his duties and responsibilities?  Quite simply, there is nothing to that

 5     effect contained in the Prosecution case.

 6             Their witnesses came mainly from the relevant -- from outside the

 7     relevant structures of the state security service or the MUP of

 8     Republic of Serbia who had knowledge about Franko Simatovic which was

 9     mainly based on rumours or hearsay.  Unlike the witnesses who were -- who

10     had this limitation concerning their knowledge about the events because

11     they did not have access to true and relevant information about

12     Simatovic, were those individuals who held positions of importance in the

13     structure of authorities and who testified about Simatovic in the

14     following way:  For example, Witness JF-029, who we know which position

15     this witness held in the period relevant for the indictment and was

16     directly involved in all the important events in this area, testified

17     before this Honourable Chamber that he first saw Franko Simatovic after

18     the signing of the Erdut Agreement on

19     15th of November [Realtime transcript read in error "September"], 1995,

20     at a meeting that was held for the purpose of the implementation of the

21     Dayton Peace Accord and at which Franko Simatovic never took to the

22     floor.  This assertion, Your Honours, can be found at transcript page

23     10177.

24             Your Honours, I apologise, I think I said 15th of "November," not

25     15 "September" as the transcript reads, and I kindly ask this correction

Page 11330

 1     to be entered into the transcript.

 2             So a highly positioned official from this region saw

 3     Franko Simatovic in November of 1995 when peace had already been agreed

 4     and when measures were to be taken to solidify this peace.  It is

 5     impossible that Simatovic in this region played a role of an organiser, a

 6     supplier, a planner, and the manager of special units without the

 7     Prosecution witness, bearing in mind the position that he held, being

 8     aware of that.  Further on, Witness Charles Kirudja, who, at the time

 9     relevant for the indictment, was a high UN official in the area of the

10     former Yugoslavia and for a specific area in Croatia, never saw Simatovic

11     and never met him.  You can find this on page 9167.

12             Further on, Witness JF-041, another senior official at the time,

13     said that he had never seen Franko Simatovic nor did he hear of him,

14     although he testified about the events that took place in the area of the

15     Knin Krajina in the period relevant for the indictment.  You can find

16     that on page 8005.  (redacted)

17     (redacted) Your Honours, I'm not sure whether at this

18     point we should move to private session because there is a pseudonym but

19     I don't know if this is a protected witness.

20             JUDGE ORIE:  We move into private session.

21                           [Private session]

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 11331

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20                           [Open session]

21             THE REGISTRAR:  We are in open session, Your Honours.

22             MR. BAKRAC: [Interpretation] The aforementioned witness, JF-026,

23     who played a very important, if not decisive, role in the bringing of

24     Arkan's units to the area of that town, testified that he had never seen

25     Franko Simatovic and that Simatovic had no relation whatsoever to the

Page 11332

 1     events in Zvornik.  You can find that on transcript page 9756.  This

 2     Prosecution witness said that he first heard of Franko Simatovic at the

 3     time when an indictment was issued against him.  He stated that before

 4     this Honourable Chamber on transcript page 9757.

 5             With regard to organising any of the units listed in the

 6     indictment, the Prosecutor failed to present a single evidence that would

 7     indicate that Franko Simatovic undertook any organisational manners in

 8     this respect.  Furthermore, the Prosecutor failed to provide a single

 9     evidence that would demonstrate that Simatovic directed or otherwise

10     supported the units identified in the indictment.

11             The Prosecutor said that Stanisic and Simatovic held positions of

12     power that they used to issue instructions to other people to commit

13     criminal offences.  It has already been said that the Prosecutor did not

14     even make an effort to try and prove which position Franko Simatovic

15     held, what kind of rights and obligations he had within the service, how

16     and in what manner could he wield any sort of power, when and over whom.

17             For example, if the Prosecution analysed Simatovic seriously,

18     they would have established that in 1991 when he allegedly initiated the

19     enterprise that is the subject of this trial, Simatovic had the title of

20     a senior inspector, that in 1991 he was an ordinary operative in the

21     Belgrade centre of the state security service, and he was one of dozens

22     of operatives who worked at this centre.  As such, he did not have any

23     powers and he could not wield any power over anyone, least of all over

24     the units that are mentioned in the indictment.

25             The Prosecutor alleges that the accused intended for the crimes

Page 11333

 1     to be committed or that they were aware of how highly likely it was that

 2     these crimes would be committed during the implementation of the plan or

 3     an order.  The Prosecutor said that Stanisic and Simatovic took part in

 4     the joint criminal enterprise and that they shared the same intentions

 5     like other participants in this enterprise.

 6             The Prosecution did not present any evidence about the mens rea

 7     of Simatovic at the relevant time.  Simatovic is nowhere qualified -- or

 8     Simatovic is not positioned vis-ā-vis the alleged objectives of the joint

 9     criminal enterprise in any way.  No intercepts have been recorded of

10     Simatovic conversations about these circumstances.  Simatovic did not

11     attend any significant meeting with other alleged participants in the

12     joint criminal enterprise where general or specific objectives and goals

13     were discussed or where policies or strategic and tactical objectives and

14     activities of any armed formations were defined.  That means that the

15     Prosecutor failed to present a single document and evidence in order to

16     prove that Simatovic shared the same intentions allegedly demonstrated by

17     the other participants of the joint criminal enterprise and that that was

18     his mens rea at the time.

19             So they failed to prove that he had identical intentions, if

20     there were any intentions at all, demonstrated by other participants in

21     the joint criminal enterprise.

22             That is to say that Franko Simatovic was charged with committing

23     the mentioned crimes as a co-perpetrator in joint criminal enterprise

24     whose objective was the permanent and forcible removal of most non-Serbs,

25     primarily Croats, Bosnian Muslims, and Bosnian Croats, from large parts

Page 11334

 1     of the territory of Croatia and Bosnia-Herzegovina.  He did that by way

 2     of the commission of crimes persecution, killings, deportation and

 3     forcible transfers.

 4             Jurisprudence requires three basic prerequisites for a conviction

 5     for joint criminal enterprise:  First of all, there have to be several

 6     persons involved.  Secondly, there has to be a common objective that

 7     presupposes the commission of crimes.  And thirdly, what is necessitated

 8     is the participation of the accused person in the implementation of that

 9     objective.

10             The Defence points out that there is no evidence regarding a

11     joint objective.  What is of particular importance is that there is no

12     proof whatsoever that Simatovic was part of a group consisting of several

13     persons that acted with the joint purpose of furthering a common criminal

14     objective as stated in the indictment.  Finally, in order to find the

15     Accused Simatovic guilty on these charges, what is required is a

16     significant contribution to have been made by him.  The Defence claims

17     that the Prosecution did not prove by way of eliciting any evidence that

18     Simatovic did contribute to the fulfillment of such an objective.

19             With regard to mens rea for the first category, the basic

20     category of joint criminal enterprise, the Prosecutor has to show that

21     the accused wanted to have the crimes committed.  It is the view of our

22     Defence that the Prosecution did not present any evidence whatsoever with

23     regard to the mens rea of the Accused Simatovic, that is to say, in view

24     of the commission of these crimes.

25             As for the third expanded category of joint criminal enterprise,

Page 11335

 1     what is required is that the accused could have envisaged that the crimes

 2     that go outside the joint criminal purpose would truly happen.  The

 3     Defence would like to point out that there is no evidence regarding

 4     Simatovic's mens rea.  We looked into the -- this part of the Prosecution

 5     case in detail.  However, our conclusion is that there is no evidence

 6     regarding mens rea on the part of Franko Simatovic with regard to this

 7     third category of joint criminal enterprise.  We believe that there is no

 8     evidence regarding criminal intent or any evidence to the effect that

 9     Franko Simatovic either de facto or de jure had any authority, influence,

10     or power or any other kind of link to the alleged incidents from the

11     crime base.

12             Finally, Witness JF-034 states -- I do apologise, Your Honours.

13     There is a mistake in the text.  The Prosecutor states that the

14     Accused Stanisic and Simatovic participated in the conception of crimes.

15     It is unclear on the basis of which evidence the Prosecution concludes

16     that Franko Simatovic took part in any way in conceiving persecutions,

17     deportations, murders, and other inhumane acts that he is charged with in

18     the indictment.  It is unclear and unproven that there is any connection

19     between the alleged crimes and Franko Simatovic.  There's also no proof

20     that Franko Simatovic knew or was informed of any crimes that are charged

21     in the indictment.  Also, there is no evidence that the crimes that are

22     alleged were committed or ordered by persons who can be linked up with

23     the Accused Simatovic.

24             The Prosecutor alleges that Franko Simatovic is responsible for

25     crimes of persecution, murder, deportation, and forcible transfer that

Page 11336

 1     were committed in the territory of the SAO Krajina or Slavonia, Baranja,

 2     and Western Srem.  The Defence asserts that the Prosecution did not

 3     manage to establish any link whatsoever between the perpetrators of the

 4     alleged crimes and Franko Simatovic.

 5             In order to support this assertion of ours, we are going to deal

 6     with the testimony provided by certain witnesses in this courtroom.  For

 7     example, Witness JF-040 confirms that Franko Simatovic had no influence

 8     whatsoever over the Territorial Defence of the Krajina.  You can see that

 9     on transcript pages 6846 through 6848.

10             According to the words of this witness, the Territorial Defence

11     received money through the public accounting service.  And that witness

12     also states that part of the money came through commercial banks.

13     Transcript page 6855 through 6856.

14             This witness further on explains that as for the armed forces of

15     1991 in Krajina, the only ones that existed were the 9th Corps of the

16     JNA, the milicija police, and the Territorial Defence, and that no

17     Special Forces existed at all.  He adds that even if there had been some

18     Special Forces, they would have immediately been subordinated to the JNA.

19   (redacted)

20   (redacted)

21   (redacted)

22             Oh, Your Honours, I don't know, I do apologise --

23             JUDGE ORIE:  Let's -- we move for a second into private session.

24                           [Private session]

25   (redacted)

Page 11337

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17                           [Open session]

18             THE REGISTRAR:  We are in open session, Your Honours.

19             JUDGE ORIE:  Thank you, Madam Registrar.

20             Anyone in the public gallery, the reason for going into private

21     session causes me to instruct you to look at the public transcripts and

22     to verify what is non-public information and therefore also not to use

23     that.

24             Please proceed.

25             MR. BAKRAC: [Interpretation] Thank you, Your Honour.  So this

Page 11338

 1     same witness, JF-040, explicitly states that at the time relevant to this

 2     indictment and the area where he was, the MUP of Serbia provided only

 3     technical assistance to the police of the Krajina.  So this witness says

 4     not the DB of Serbia, and then he explains that the MUP of Serbia is only

 5     providing technical assistance and no other type of assistance or

 6     support.  Transcript page 6915 through 6916.

 7             The witness states that in the special unit of the MUP of

 8     Krajina -- that as for the special units of the MUP of Krajina, he

 9     doesn't know anything.  Transcript reference 6969.  And that the unit

10     that was called a special unit was an ordinary unit that had not

11     undergone any kind of special training whatsoever.  You can find that on

12     transcript page 6970 through 6971.

13             Finally, and most importantly in the view of the Defence, this

14     witness concludes that throughout his stay in the Krajina the JNA was the

15     protagonist of military operations and that the MUP was only in charge of

16     maintaining public law and order.  You can find that on transcript 6987.

17             Witness Marko Miljanic, a former officer of the JNA who in

18     May 1991 joined the MUP of Croatia, states that in May 1991 he was sent

19     by the MUP of Croatia to Skabrnja to organise the Defence.  This witness,

20     as a former JNA officer and as a direct witness of the attack against

21     Skabrnja, confirms that the attacks against the village were launched by

22     the JNA using artillery, mortars, and aircraft.  You can find that on

23     transcript page 2360 through 2361.

24             Further on, he says that the JNA kept Skabrnja under artillery

25     fire throughout the day.  Transcript page 2375.  The witness describes

Page 11339

 1     JNA tactics during the attack against Skabrnja.  In military terminology,

 2     it is well known as pliers.  That is transcript page 2386.  The witness

 3     confirmed during cross-examination that the attack against Skabrnja was

 4     carried out by the JNA only.  Transcript page 2399 through 2400.  The

 5     witness stated further on that local Serbs also participated in the

 6     crimes; they were wearing JNA uniforms though.  Transcript page 2408.

 7             This witness confirms or, rather, concludes that the operation of

 8     attack against Skabrnja required a higher level of organisation and

 9     co-ordination that only could have been provided by the JNA.  You can

10     find that on transcript page 2427.

11             Witness JF-006, who was mobilised in 1991, in August of 1991,

12     in -- was mobilised into a particular part of the Territorial Defence of

13     this area and he says that in November 1991 it was the JNA that organised

14     units in the field and that his Territorial Defence, of his area,

15     that is, established a brigade that was named after the area concerned

16     and that it consisted of three battalions consisting of approximately

17     300 men respectively.  In addition to side-arms, the brigade had six to

18     eight tanks, five or six APCs, three Howitzers, and he claims that all of

19     this weaponry was received from the JNA.  That can be found in P103,

20     page 3.

21             This witness states that a rumour spread among the soldiers to

22     the effect that an attack was being prepared against Saborsko after the

23     visit of Colonel Bulat to Colonel Trbovic, and the likelihood of an

24     attack was clearly there when the JNA sent soldiers and tanks in the

25     direction of Licka Jesenica.  You can find that in P103, page 4.  The

Page 11340

 1     witness said that Colonel Bulat was the Commander-in-Chief for all of

 2     these units.  You can find that in P103, page 5, and transcript pages

 3     2514 through 2515.

 4             Witness JF-019 confirmed that the JNA armed the local Serbs.

 5     Transcript page 5346.  Witness JF-041 states that the weapons that were

 6     distributed to the local population in mid-1991 in Knin originally came

 7     from the depots of the JNA and the TO.  You can see that on transcript

 8     page 7948.  This witness confirms, further on, that the special unit of

 9     the MUP of Krajina was under the command of the JNA and that the JNA

10     provided to this unit a certain quantity of equipment and weapons.  You

11     can also find this on transcript page 8006 through 8007.

12             Witness JF-039 testified that up until the end of July 1991

13     Franko Simatovic, better known as Frenki in the area, left Knin.

14     Transcript page 7332.  When you look at the crime base in the indictment,

15     you can see that all the crimes charged in the indictment pertaining to

16     the area of the SAO Krajina were committed in the autumn of 1991, that is

17     to say, at the time when Franko Simatovic was not even physically present

18     in the area.  Even more importantly, the ample evidence that we have

19     referred to clearly and unequivocally shows that military operations in

20     the places where crimes were committed were planned, co-ordinated, and

21     carried out under the exclusive command of the JNA.

22             The Prosecutor did not even try to prove by providing a shred of

23     evidence what kind of influence was exercised by Franko Simatovic, who at

24     the time was an operative in the Belgrade Administration of

25     State Security, what kind of influence he could have exercised over

Page 11341

 1     senior officers of the JNA.  So all the crimes committed in

 2     Kninska Krajina were committed in the autumn of 1991, primarily October

 3     and November according to Prosecution witnesses, under the direct

 4     command, planning, and co-ordination of the JNA.  Franko Simatovic, who

 5     briefly came to the area in the summer of 1991, according to the

 6     statements made by Prosecution witnesses, towards the end of August

 7     physically left the area and was no longer present there.  So the

 8     Prosecutor did not demonstrate or prove any link between Franko Simatovic

 9     and the crimes committed in Kninska Krajina that are alleged in the

10     indictment.

11             As for the area of Slavonia, Baranja, and Western Srem, the

12     Defence wishes to highlight the following:  Witness CO-15 states that the

13     Territorial Defence and volunteers were subordinated to the JNA and were

14     under its command.  You can find that in the transcript on page 1656.  He

15     also adds that in the territory of Slavonia, Baranja, and Western Srem

16     the Novi Sad Corps was present and that Radovan Stojicic, Badza, at the

17     time a member of the public security of Serbia, was commander of the

18     Territorial Defence.  You can find that on page 1658.

19             Further on, this witness confirmed that the JNA provided the TO

20     with weaponry and equipment.  This was stated on page 1659 of the

21     transcript.  And he also said that Radovan Stojicic, Badza, told him that

22     the Territorial Defence should follow the instructions of the JNA.  You

23     can find that on page 1661 of the transcript.

24             This witness confirms that Arkan was under the command of the JNA

25     and General Andrija Biorcevic in these operations.  Transcript page 1664

Page 11342

 1     and 1714.  And that Arkan's Serb Volunteer Guard had vehicles that it had

 2     received from the JNA.  Transcript page 1711.

 3             Witness C-1118 stated that the JNA armed the Serbs in his town

 4     and that the process took around two months.  This can be found at

 5     transcript page 1987.  Witness JF-015 testified that he attended a

 6     meeting between TO and police commanders and Radovan Stojicic, Badza, and

 7     his deputy Miodrag Zavisic.  At the meeting which was held in Bobota,

 8     Badza made it known that he was to be TO commander and that as of that

 9     moment the TO was in charge of all civilian and military affairs.  It is

10     P306.  The witness confirmed that at the time the conflict broke out, the

11     public and state security were separate, with two separate chains of

12     command, as can be seen at transcript pages 4083 and 4084.

13             The witness stated that he never saw and that he did not have a

14     single piece of evidence to show that Arkan and Stevicevic [phoen]

15     received their orders from the DB.  This is transcript page 4109.  Before

16     having said that, he stated that Arkan had weapons, ammunitions, and

17     trucks of the JNA.  It is at transcript page 4105.  The witness asserts

18     that all TO members were Serbs from that place.  That is transcript page

19     4118.  He also said that one of them were SDS members which assembled

20     most of the Serbs.  That is transcript page 4119.  The leading positions

21     within the TO and the Crisis Staff were held by SDS members.  That is

22     transcript page 4119.

23             The JNA units which entered Dalj arrived in the area from the

24     direction of Bogojevo and they belonged to the Novi Sad Corps.  This is

25     transcript page 4121.  The witness stated that the liberation of the area

Page 11343

 1     was carried out as a co-ordinated action of the JNA and the TO.  This is

 2     transcript page 4123.  As well as that the JNA and the

 3     Serb Volunteer Guard jointly participated in combat.  That is transcript

 4     page 4127.

 5             Witness JF-018 stated that the JNA in 1991 brought weapons to the

 6     area in trucks which was then distributed to local Serbs.  That is

 7     transcript page 4163.  Witness JF-034 testified that the Government of

 8     Slavonia, Baranja, and Western Sirmium had no contacts with the

 9     Serbian DB and that he, although he was a senior official, and you can

10     see that for yourselves, doesn't know what kind of role the Serbian DB

11     could have had in that government.  This is at transcript page 6009.

12             Based on D76, this witness concluded that the final say during

13     the relevant period of time in those areas was in the hands of the JNA.

14     It is at transcript page 6067.  He continues to confirm that in the fall

15     of 1991 the structure of the federal SUP was still in effect.  In other

16     words, it meant that the MUP of the Autonomous Province of Vojvodina was

17     independent of the Serbian MUP in Belgrade.  This is at transcript page

18     6069.

19             The witness also confirms that the JNA deployed tanks and

20     artillery in the environs of Ilok in July 1991.  After Ilok surrendered,

21     some 8.000 people were transported to Croatia on board JNA trucks.  In

22     the negotiations concerning the movement of the population, it was the

23     JNA who participated.  No one participated on behalf of the government of

24     Slavonia, Baranja, and Western Sirmium.  He also stated that the

25     remaining non-Serb population remained in their homes until the area was

Page 11344

 1     peacefully reintegrated.  Which is at transcript page 6071 through 6073.

 2             We would, here, like to re-affirm that Witness JF-029 testified

 3     that Radovan Stojicic, Badza, save for the taking over control of the TO,

 4     also conducted tasks which had to do with the establishment of police

 5     forces which were supposed to keep order and uphold law in the area and

 6     that it was his assessment that Badza held a certain sway over Arkan and

 7     that Arkan implemented Badza's orders.  This is at transcript page 10097,

 8     10108 and 10109.

 9             Contrary to this knowledge, the same witness saw Franko Simatovic

10     for the very first time in late 1995 after the Erdut Agreement was

11     signed.  Based on all the aforementioned evidence, an ambiguous

12     conclusion can be made that Zeljko Raznjatovic, Arkan, and his SDG were

13     part and parcel of the regional Territorial Defence commanded by a member

14     of the public security service of the MUP of the Republic of Serbia,

15     Radovan Stojicic, Badza, and that the TO and the SDG were commanded by

16     the JNA Novi Sad Corps and its commander, General Andrija Biorcevic,

17     during the time when all of the crimes in this territory took place that

18     are charged in the indictment.

19             The Simatovic Defence wishes to point out that the crimes which

20     took part in the region also encompassed the fall of 1991 at the time

21     when Franko Simatovic held the position we are aware of and at the time

22     when JNA influence, in terms of command and armament, took place as we

23     have described and as can be seen in the evidence.

24             This covers the alleged crimes that Franko Simatovic is charged

25     with in the territory of Croatia.  As for the crimes that

Page 11345

 1     Franko Simatovic is charged with which took place in Bosnia-Herzegovina,

 2     the Defence wishes to point out that Simatovic has no points of contact

 3     with the crimes committed in the territory of the municipality of

 4     Bijeljina and that he did not order, aid, organise, or in any other way

 5     substantially assisted and supported the expulsions or deportations of

 6     non-Serbs from that municipality.  We have already stated that it is

 7     undisputable that Biljana Plavsic as a senior politician of the RS

 8     directly invited and brought in Arkan and his Serb Volunteer Guard to the

 9     area of Bijeljina.

10             We wish to stress that earlier in this presentation we explained

11     in detail why this Defence believes that there is no link whatsoever

12     between Simatovic, Arkan, and his forces.  Here we wish to point out that

13     it is note worthy to see that Biljana Plavsic, who was a senior official

14     of the Bosnian Serbs at the time, directly contacted

15     Zeljko Raznjatovic, Arkan, inviting him to Bosnia with his unit.

16             Had the Serb Volunteer Guard been in any way related to the state

17     security service, it is clear that such an invitation should have been

18     forwarded through either the MUP or the DB of the Republic of Serbia.  As

19     regards Bosanski Samac and the crimes which were committed in the

20     territory of that municipality in April and May 1992, the evidence led

21     shows that members of the Serb Radical Party who had earlier fought in

22     the area of Eastern Slavonia arrived in Batkusa on board a military

23     helicopter.  They were immediately put under the command of the

24     Posavina Brigade.  There is no group that this group which arrived in

25     Samac in a military helicopter was a special unit of the Serbian DB as is

Page 11346

 1     alleged in the indictment.  As regards the take-over of Bosanski Samac,

 2     the 17th Corps command of the JNA informed its superior command that

 3     members of the TO and of the MUP of the Serb municipality took control of

 4     the key facilities in Samac.  They also informed that the forces of the

 5     17th JNA Corps are in Samac and that they were deployed along various

 6     positions in town.  You can see that in D124.

 7             The Defence wishes to direct the Bench's attention to D11, dated

 8     the 18th of June, 1992, that is to say, following the months of April and

 9     May when the alleged crimes took place in Bosanski Samac.  The chief of

10     the Posavina Brigade, Srecko Radovanovic, aka Debeli, turned to the

11     Serb Radical Party and the War Staff commander in Belgrade for a

12     promotion to the rank of lieutenant for three of his members.

13             I would kindly ask to of move into private session briefly, Your

14     Honours.

15             JUDGE ORIE:  We move into private session.

16                           [Private session]

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 11347

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8                           [Open session]

 9             THE REGISTRAR:  We are in open session, Your Honours.

10             JUDGE ORIE:  Thank you, Madam Registrar.

11             You say you've got 15 minutes left.  I'm looking at the

12     Stanisic Defence.  We usually have sessions of one hour and 15 minutes.

13     I could, however, imagine, and I'm not in any way pressuring, that being

14     released in 15 minutes from now and not have to return might be

15     preferable.  But I leave it entirely in the hands ... it's not favouring

16     the Chamber; it's just what is most convenient for those who have to

17     return to the UN Detention Unit.

18             MR. JORDASH:  May I have a moment, please.

19             JUDGE ORIE:  Yes.  Again, no pressure whatsoever.  We'll be glad

20     to be here and listen, after a break of half an hour, to the last

21     15 minutes.

22             And, Mr. Bakrac, if you say 15 minutes, then, of course, if we

23     would go in that direction, then it -- of course, it should be 15 minutes

24     and not more.  That should be clear.

25                           [Defence counsel and accused Stanisic confer]

Page 11348

 1             MR. JORDASH:  We can go on, Your Honour, please.

 2             JUDGE ORIE:  Yes.  Then, Mr. Bakrac, I'm looking at the clock,

 3     and now I'm going to be strict in time because ... 15 minutes.

 4             Please proceed.

 5             MR. BAKRAC:  [Interpretation] Thank you.

 6             Regarding the crimes in the municipality of Doboj, it is our view

 7     that the Prosecution did not adduce evidence or at least did not adduce

 8     evidence that a conviction could be based on even if that evidence were

 9     taken in light the most favourable for them.  Namely, they assert that

10     during the take-over of Doboj special units of the DB of Serbia

11     participated, without any proof whatsoever existing that a single

12     Serbian DB unit was assigned to the area.  One of the key witnesses of

13     the Prosecution, Edin Hadzovic described a certain local Karaga as a

14     member of a military formation -- paramilitary formation wearing

15     camouflage uniforms and red berets.  That is transcript page 2235.  He

16     went on to explain that the commander of the Red Berets went under the

17     nickname of Golub.  Since he spoke in a Montenegrin accent, he was called

18     Crnogorac, Montenegrin.  He stated that he had a noticeable scar on his

19     face and that during the lineup of the prisoners to form a human shield,

20     he wore a camouflage uniform and a red beret.  It is transcript page

21     2242.  According to his allegations, it was these volunteers and

22     paramilitary groups that reported to the garrison commander Stankovic

23     upon their arrival in Doboj who then billeted them in JNA barracks.  This

24     is transcript page 2271.

25             The witness also added that the local Serbs were in the reserve

Page 11349

 1     force of the police and army or in paramilitary formations such as

 2     Predini Vukovi, the White Eagles, and that the Red Berets comprised

 3     people from the Krajina and Banja Luka.  This can be found at transcript

 4     page 2282.

 5             When he uses the term the "Serb army," he includes all the

 6     Red Berets, military, and the police, as well as all armed Serbs.  He

 7     explained as much at transcript page 2283.

 8             Finally, when discussing the issue of the human shield, the

 9     witness confirmed that the Red Berets which used the prisoners as a human

10     shield were local Serbs, save for the Montenegrin, and that he knew

11     several of the Red Berets.  It is at transcript page 2318.

12             The witness reiterated his description of Golub, or the

13     Montenegrin, at transcript page 2343.  The Defence wish to state that the

14     witness confirmed that members of a local group called Micas also wore

15     red berets.  It is at transcript page 2344.  The Simatovic Defence

16     believe that the Prosecution attempted to suggest that the Montenegrin,

17     aka Golub, with the large scar was in fact Rajo Bozovic.  It is their

18     thesis which, in our view, caved in because we presented evidence that

19     Rajo Bozovic at the time of the alleged incident was hospitalized, having

20     previously been wounded in combat.  In document D121 we can see that

21     Bozovic was hospitalized between the 26th of June and the 23rd of July,

22     while the incidents alleged in the indictment took place on the

23     12th of July, 1992.

24             Therefore it is clear that the OTP witness stated that the crime

25     was committed by local Serbs, including members of the Micas wearing

Page 11350

 1     red berets, who had nothing to do with the Republic of Serbia and least

 2     of all with its DB.

 3             As regards Sanski Most, according to the indictment allegations,

 4     Arkan and the Serb Volunteer Guard were marked as perpetrators of the

 5     alleged crimes in the area in 1995.  The Defence would, here, like to

 6     assert that there is no link between Arkan and his unit and

 7     Franko Simatovic, as we have elaborated thus far.  The sending of Arkan,

 8     his activities, the potential crimes committed by him or his unit are in

 9     no way linked to Franko Simatovic.

10             The Prosecution did not put forth a single piece of evidence that

11     Simatovic -- to show that a Simatovic had anything to do with the events

12     surrounding Sanski Most and Arkan's role in those events.  The Prosecutor

13     charges in that Stanisic and Simatovic for having ordered the Skorpions,

14     which is indicated as a special unit of the Serbian DB, to travel from

15     their base in Djeletovci to Serb-held territory close to Sarajevo where

16     the Skorpions arrived in early July 1995 and set up camp in Trnovo at the

17     foot of Mount Treskavica near Sarajevo.

18             Earlier, the Defence made reference to the testimony of JF-029

19     who knew all the details about this unit and who in his testimony did not

20     offer a single confirmation or insinuation of Simatovic's involvement in

21     the deployment or command over this unit in the area of Treskavica.

22     Earlier it has already been pointed out the fact that there is evidence

23     that Stanisic and Simatovic had nothing to do with the formation of this

24     unit, starting from the date of its induction until the date it was

25     disbanded.  The Defence would like to draw to the attention of this

Page 11351

 1     Honourable Chamber part of the testimony of JF-029 which particularly

 2     refers to the fact of who ordered the movement and the dispatch of these

 3     units to the Trnovo front.  Witness JF-029 states that the Skorpions were

 4     sent to the Trnovo front based on the decision taken by

 5     Slavko Dokmanovic; Radovan Stojicic, Badza; Ilija Kojic; and

 6     General Dusan Loncar.  That can be found on page 10194.

 7             So this Prosecution witness gave us a list of names of people who

 8     ordered the sending of this unit to the Trnovo front, whereas the

 9     indictment says that Simatovic and Stanisic were the ones who ordered the

10     movement and the dispatch of these units to the Trnovo front.  It is

11     clear that this Prosecution witness who was close to this unit has no

12     knowledge about Simatovic's involvement in any way whatsoever in the

13     deployment of this unit to the Trnovo front, particularly that he had no

14     influence whatsoever of their activities because Witness JF-029 testified

15     that the operation at Trnovo was commanded by general of the Army of

16     Republika Srpska, Dragomir Milosevic, including the activities of the

17     Skorpions.  That can be seen on pages 10195 through to 10197 and in

18     Exhibit D212.  This witness particularly emphasised at the end that the

19     Skorpions were sent to Trnovo as a unit of the Army of the

20     Republika Srpska Krajina.  You can find this on transcript page 10197 to

21     10198.

22             Finally, speaking about Zvornik municipality, the Defence already

23     described how the Arkan's units arrived to Zvornik and at whose

24     invitation.  The Defence also presented its view about the absence of any

25     connection between Arkan and his SDG on the one side and the DB of

Page 11352

 1     Serbian on the other side.  The Defence would particularly like to

 2     underline that the Prosecution did not offer a single piece of evidence

 3     about the existence of any link and the activities of the

 4     Serbian Volunteer Guards in the area of Zvornik and the

 5     Accused Franko Simatovic.

 6             We would like to remind the Honourable Chamber that the

 7     Prosecution heard a witness who at the time when the crimes were

 8     committed in the area of Zvornik was a highly-placed official and was

 9     privy to all the details relating to the events that took place in the

10     territory of this municipality relevant for the indictment.  The

11     Witness JF-026 said that he had never heard of Franko Simatovic and that

12     he emphatically stated that Franko Simatovic had no link whatsoever with

13     the events in Zvornik.  You can find that on transcript page 9757.

14             And finally, the Defence would like to note that the Prosecution

15     failed to prove that Franko Simatovic played any role in deportations or

16     forced relocation, and they particularly failed to provide any evidence

17     that could indicate that there was an intent on the part of Simatovic to

18     have these acts committed.  The Defence believes that in the proceedings

19     conducted so far, the Prosecution failed to prove that Franko Simatovic

20     is responsible for Counts 1, 2, 3, 4, and 5 of the indictment against

21     him.

22             In view of all the reasons stated herein above, the Defence would

23     ask the Trial Chamber to acquit the Accused Franko Simatovic at this

24     stage of the proceedings with respect to all counts of the indictment

25     that contain charges against him.

Page 11353

 1             I would like to thank the Trial Chamber and everybody else in the

 2     courtroom for the patience that they displayed in listening to our

 3     presentation pursuant to Rule 98 bis.

 4             JUDGE ORIE:  Thank you, Mr. Bakrac.

 5             Mr. Groome, could you give us any indication, in view of the fact

 6     that the Stanisic Defence has decided not to make any 98 bis submissions,

 7     how much time you would need on Monday.

 8             MR. GROOME:  Your Honour, I believe we will take the entire day

 9     Monday, but we will keep it within that.

10             JUDGE ORIE:  Yes.  Then we adjourn for the day.  We will resume

11     on Monday, the 11th of April.

12             Madam Registrar, if I'm not mistaken, we are scheduled for the

13     morning hours in Courtroom II, which means that we'll resume at the

14     11th of April, 9.00 in the morning, Courtroom II.

15                           --- Whereupon the hearing adjourned at 5.30 p.m.,

16                           to be reconvened on Monday, the 11th day

17                           of April, 2011 at 9.00 a.m.