Tribunal Criminal Tribunal for the Former Yugoslavia

Page 52

1 Thursday, 6 March 2003

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 10.02 a.m.

6 JUDGE EL MAHDI: [Interpretation] Good morning to you one and all.

7 The Status Conference will commence.

8 Madam Registrar, do we have to state the case again, call out the

9 case number again? Yes. Go ahead then, please.

10 THE REGISTRAR: Case number IT-96-23/2-PT, the Prosecutor versus

11 Radovan Stankovic.

12 JUDGE EL MAHDI: [Interpretation] Thank you. In light of the

13 position taken by Mr. Stankovic during the second initial appearance, I

14 would like to limit this Status Conference to inquire of Mr. Stankovic as

15 to his state of health.

16 So could you tell me, please, what your general state of health is

17 like. How do you feel? Do you have anything to impart, anything that you

18 would like to have given you, anything you would like to obtain? Is your

19 state of health good?

20 Yes, I can hear you. Go ahead, please.

21 THE ACCUSED: [Interpretation] As a detainee, I can say that I feel

22 relatively well, but I would have a remark to make pursuant to your own

23 Rule, Rule 83, about wearing a flak jacket. This irritates me, the

24 wearing of this flak jacket, and according to your Rule, Rule 83, flak

25 jackets are not a means of limiting and restricting freedom, instruments

Page 53

1 of restraint. They are not a means which prevent an accused from

2 self-injury, injury to others, or to prevent serious damage to property,

3 but this is a secondary matter for me personally, but I should like to

4 request that in my particular case, this instrument of restraint or,

5 rather, the flak jacket not be placed on me.

6 JUDGE EL MAHDI: [Interpretation] Yes. Thank you. Might I just

7 state at this point that pursuant to the Rules, the wearing of a flak

8 jacket is obligatory, in your own interests first and foremost. But what

9 I could do is to ask whether the possibility exists, to inquire whether a

10 flak jacket could be sought which would be lighter and which would not

11 constrain your movements.

12 Do you have any back pain as a result of wearing it or do you

13 suffer from anything of that nature, any illness of any kind?

14 THE ACCUSED: [Interpretation] No. Well, I don't know. Maybe I

15 do, but I don't know about it.

16 JUDGE EL MAHDI: [Interpretation] All right. Very well. That's

17 all to the good.

18 THE ACCUSED: [Interpretation] May I just say something?

19 JUDGE EL MAHDI: [Interpretation] Yes. Go ahead.

20 THE ACCUSED: [Interpretation] You think that you are protecting

21 the accused by placing a flak jacket on him. Under the present

22 circumstances, killings can only be conducted by professionals, and

23 professionals never shoot at the body of a victim, but they target the

24 head or neck. Therefore, I consider that the wearing of a flak jacket is

25 only a provocation.

Page 54

1 JUDGE EL MAHDI: [Interpretation] Yes. Thank you.

2 THE ACCUSED: [Interpretation] And I don't think there's any sense

3 in wearing a flak jacket.

4 JUDGE EL MAHDI: [Interpretation] I understand that you're a

5 professional, but what I would like to assert is that pursuant to the

6 rules applied here, it is compulsory to wear these instruments of

7 restraint. All that I can do is to see whether there is any possibility

8 of you being furnished with a lighter flak jacket which would not weigh

9 heavily on you or cause any unpleasantness when wearing it.

10 I should also like to say, Mr. Stankovic, that in the eyes of the

11 law, you are innocent, and that is a point which I would like and which I

12 shall be insisting upon conveying to you. I would like to convey that

13 idea to you. And nobody can violate that presumption of innocence.

14 Having said that, I would like to inform you that the indictment

15 has conducted -- the Prosecution has conducted -- yes, Mr. Stankovic.

16 THE ACCUSED: [Interpretation] The problem here is that everything

17 is turned upside down here. Instead of proving my alleged guilt here,

18 what you're doing here is -- or, rather, the Prosecution has brought me in

19 a position here in which I have to prove my innocence, so that the witness

20 of the Prosecution is attributed more value than all my evidence, proof

21 and witnesses. I will bring in 300 witnesses to contest and challenge all

22 those alleged accusations that have been made against me and the charges

23 brought against me.

24 JUDGE EL MAHDI: [Interpretation] Mr. Stankovic, be quite certain

25 and assured that before this Tribunal, you are considered innocent until

Page 55

1 you are proved otherwise. Everything that was contained in the indictment

2 are allegations, and they will have to be proved. Without proof, quite

3 evident proof, clear proof, you are innocent. But this is not the time to

4 enter into the details, and I do ask you to remember that. So it is

5 within this Status Conference -- wait just a minute. I have to interrupt

6 you. You have not even entered a plea yet concerning the charges and

7 counts against you, so the entire procedure is pending, in a way, if I can

8 put it that way, until you enter a plea. So everything is set forward to

9 a period of 30 days. You have 30 days to reflect upon the matter, to

10 think about it, to read and reread the indictment itself, and then we

11 shall hold another initial appearance at which time you will be given the

12 possibility --

13 THE ACCUSED: [Interpretation] May I say just two things, two

14 sentences. One sentence is linked to the flak jacket. Tell me where it

15 says in your rules that the wearing of a flak jacket is obligatory.

16 That's one point.

17 And secondly, in Rule 96, you state the following: "In cases of

18 sexual assault, no corroboration of the victim's testimony shall be

19 required."

20 That means that if any woman were to state, "You raped me," then

21 nobody, not even God, can refute that. That's what it says here. That's

22 how I understand the reading of this Rule. And there is no justice there.

23 There cannot be any, if that's true.

24 So you have placed me in a position in which I am to prove my

25 innocence, but I am unable to do so because you have your Rules and you

Page 56

1 adhere to those Rules, and they have nothing to do with justice. I don't

2 mean you personally, I mean this institution of the NATO pact and the New

3 World Order, because this is an institution of the NATO pact and the New

4 World Order. This is a political Tribunal.

5 JUDGE EL MAHDI: [Interpretation] One moment. You're pleading in a

6 marvelous way, but I have to put you right, to correct you. This is not

7 an institution of NATO. I have to say that. It is an institution set up

8 by a Security Council Resolution which represents -- no. Just a minute.

9 I'm talking. You have had enough time to explain your positions. No. I

10 will not allow you to speak further. [In English] No. No.

11 THE INTERPRETER: Microphone, please.

12 JUDGE EL MAHDI: [Interpretation] We're not going to dwell on that

13 subject. It seems to me that you have not been properly informed about

14 how matters stand. So what I would like to tell you at this point -- no.

15 Please.

16 THE ACCUSED: [No interpretation]

17 JUDGE EL MAHDI: [Interpretation] Just a moment. No. Your

18 microphone has been cut off. Please cut off Mr. Stankovic's microphone.

19 Please, sir.

20 First of all, you have declined to enter a plea with respect to

21 the charges and counts against you and read out to you, so the procedure

22 is as follows: We have suspended procedure until you have had time to

23 reflect, and that within the space of 30 days. I would also like to

24 inform you that the Prosecutor has made a request for the application of

25 Article 94(B), I believe, in a motion that was filed in February, and you

Page 57

1 will have to respond in the space of 14 days following the Rule, as set

2 out in Article 126 bis, unless I'm mistaken. But as you have not entered

3 a plea today as to guilty or not guilty, the time will only start running

4 once you have, in fact, presented your opinion and entered a plea of

5 guilty or not guilty with respect to the charges and counts in the

6 indictment.

7 I should now like to hear the parties. Do they have any matters

8 to raise before we close this Status Conference? And I turn to the

9 Prosecution first. Any matters outstanding?

10 MR. WUBBEN: No. Thank you, Your Honour.

11 JUDGE EL MAHDI: [Interpretation] Thank you. Thank you very much.

12 The Defence, would you like to raise any issues?

13 MR. RADOVIC: [Interpretation] Your Honour, after the first Status

14 Conference, Mr. Stankovic and I reached some -- differed in agreement with

15 respect to the organisation of his Defence case and with respect to

16 setting up a Defence team. The secretariat and you personally have been

17 informed thereof. We have informed the Registry. And I as Defence

18 counsel am the sole person having the right to choose my Defence team and

19 determine the concept of our defence case.

20 In 2002, I informed the Registry of the Tribunal, on the 20th of

21 December, that I withdraw my power of attorney to Mr. Stankovic, and Mr.

22 Stankovic did the same, informing me personally and the Registry on the

23 6th of February, 2002. However, as Defence counsel, adhering to my

24 professional obligations and ethics and the rules determined by the

25 Tribunal, even after that, or rather, ever since December, I still carried

Page 58

1 out all my duties as Defence counsel so that Mr. Stankovic would not be at

2 a disadvantage in any way in his defence, because it was my duty to do so

3 in keeping with the provisions and rules governing Defence counsel, and I

4 am thinking here of Article 20(A) in particular, the appointment of

5 Defence counsel.

6 I have studied all the documents that I received from the

7 Prosecution, and I sent in a motion with my comments and objections to the

8 first indictment, and the decision made by the Tribunal that a second

9 amended indictment be submitted, which is a decision, in fact, on the

10 first indictment that I objected to on the form of the indictment and the

11 motion tabled by the Defence thereof.

12 Yesterday, I received a response when I reached The Hague. It

13 seems that there was an attempt on the 28th of February, in the afternoon,

14 to send me this by fax, but all I received was the first four pages, and

15 that is a problem that I should like to highlight in particular.

16 As you know, I live in Foca, Srbinje, all the time. That is my

17 permanent residence. The registry has my fax number but it also has my

18 e-mail address, so I would have expected them to send the documents to

19 both those addresses, both by fax, to fax them to me, but also to send

20 them by electronic mail, especially decisions to which I, as Defence

21 counsel, have the right to respond and seek legal remedy.

22 In the future, I should like to request that you bear all this in

23 mind.

24 I should also like to mention that, as Defence counsel, I still

25 went about my work of collecting and amassing possible evidence and proof

Page 59

1 despite the fact that I was dismissed, although I was not officially

2 relieved of my duties as Defence counsel. And yesterday I informed Mr.

3 Stankovic in part of the results and progress I had made in my

4 investigations.

5 The Registry sent me a letter, Ms. Monica Martinez was the

6 signatory, and informed me that talks had been held with Mr. Stankovic,

7 that they had had an interview with Mr. Stankovic, and that he said he was

8 ready for us to meet again and to assume a final position vis-a-vis future

9 cooperation between ourselves.

10 As I have already stated, yesterday in the Detention Unit, I

11 talked to Mr. Stankovic myself, and I think there is goodwill on his part

12 to accept my Defence case concept. So after the Status Conference that

13 we're holding here today, I shall be having another meeting with Mr.

14 Stankovic to reach a definite decision and agreement as to whether I will

15 continue to be his Defence counsel in this case.

16 I am conscious of the fact that time is passing, but you must have

17 some understanding for me too, because sometimes we have some unexpected

18 problems and conflicting situations that arise, relations that arise

19 between Defence counsel and the accused. I should like to inform you that

20 the Defence has so far always done its best, and if I do reach an

21 agreement with Mr. Stankovic to continue our cooperation in this case -

22 and I think that we shall be able to reach an agreement on that score -

23 then the Defence will do everything in its power, one the team has been

24 completed in the short space of time, we will invest even greater efforts

25 in order to ensure the timely preparation of Mr. Stankovic's defence, to

Page 60

1 prepare the defence case as best as possible in the shortest space of

2 time.

3 At all events, the Defence has been given a 30-day deadline, and

4 it will send in a motion concerning the second amended indictment as well,

5 with our observations.

6 I should like now to refer to some of the facts that have been put

7 forward by the Prosecution according to Rule 94(B), and this should make

8 it unchallenged between the parties, that is to say the Defence, in the

9 shortest possible space of time, inform the accused of the facts, and once

10 we receive a translation of those facts, we will be in a position to

11 discuss matters with the Prosecution and to file a motion in writing

12 setting out our views, because quite obviously the Defence feels that

13 those facts are now unacceptable as they stand to the Defence team,

14 regardless of the fact that the Prosecution refers to certain positions

15 and judicial notice of adjudicated facts taken in other trials.

16 It is the right of each and every accused to challenge adjudicated

17 facts of this type, especially if we assume the position that the

18 procedure which led up to judicial notice of adjudicated facts, and

19 especially in the proceedings against the Foca group of accused persons,

20 not sufficient attention was paid to establishing those facts. Otherwise,

21 as to the facts proposed and the stipulations made and proposed by the

22 Prosecution, I have already informed my distinguished colleague

23 Mr. Ryneveld that in December, when we had our first meeting, I was ready

24 to discuss those facts. But as there was a certain divergence of views

25 already at that time with respect to the concepts for our Defence case -

Page 61

1 that is to say between myself and Mr. Stankovic - we didn't see eye-to-eye

2 on all points, without his opinion and agreement, I did not wish to enter

3 discussions of that kind. I did not wish to discuss the facts, given

4 those positions, because that would go against the Rules of Procedure and

5 his rights in particular. Thank you.

6 JUDGE EL MAHDI: [Interpretation] Thank you very much. I am sure

7 your goodwill is there, but I hope that you will be able to clarify

8 matters, to clarify the situation that exists between you yourself and

9 Mr. Stankovic as soon as possible. Would you please let us know, because

10 it is an important matter. It is important that Mr. Stankovic has

11 alongside him a Defence counsel and team which would be able to work

12 together with him and ensure a better presentation of his point of view

13 with respect to the charges and counts brought against him.

14 I have been informed that you will be having a meeting with a

15 representative from the Registry in a short while, and I would like to ask

16 you to inform them of the results of your meetings both with Mr. Stankovic

17 and with the OTP to clarify the delicate question of Defence counsel for

18 the accused.

19 I would also like to say that I hope you continue to have close

20 contacts with Mr. Harhoff, our legal officer in chief, who is at your

21 disposal and who will be happy to speed up the procedure.

22 Once again, I should like to thank you all. I think that you have

23 raised the matter with respect to Rule 94(B) and the Prosecutor's motion

24 concerning the application of Rule 94(B). You will have enough time,

25 because the time starts running only after we have held the next initial

Page 62

1 appearance, which is to say within 30 days. So you'll have time to

2 discuss matters with Mr. Stankovic, to be able to see things clearer, and

3 to pronounce yourselves in the matter.

4 Unless any of the parties would like to raise any other matters at

5 this point, and I think that we've seen to everything, I close the

6 meeting.

7 THE ACCUSED: [Interpretation] Mr. Mahdi.

8 JUDGE EL MAHDI: [Interpretation] Yes.

9 THE ACCUSED: [Interpretation] You have not given me an answer:

10 According to what Rule am I obliged to wear a flak jacket?

11 JUDGE EL MAHDI: [Interpretation] The registrar can be of

12 assistance to us here.

13 [Trial Chamber and registrar confer]

14 JUDGE EL MAHDI: [Interpretation] That's a very good question, and

15 in answer to it, I can say that it is a rule, it appears, implemented by

16 the Dutch police, and the Dutch police regulations require this measure.

17 I have just been informed of that by the registrar. The only thing I can

18 tell you here and now that is that I'll do my best.

19 THE ACCUSED: [Interpretation] But you say this is an international

20 court.

21 JUDGE EL MAHDI: [Interpretation] Just a moment, please.

22 THE ACCUSED: [Interpretation] I do apologise.

23 JUDGE EL MAHDI: [Interpretation] I would like to state that there

24 is an order that must be respected in this court, in this room. It is I

25 alone who am able to give you the floor, the right to speak. So people

Page 63

1 cannot speak when they feel like it. The Judge has to give the floor to

2 them. I would like that to be clear once and for all.

3 Having said that --

4 THE ACCUSED: [Interpretation] I'm sorry. I apologise.

5 JUDGE EL MAHDI: [Interpretation] Very well. Thank you. Accepted.

6 It is a rule applied by the Dutch police, as I was saying. There is an

7 agreement reached between the international organisation and the host

8 country, and that is this particular country that we're in. And the

9 country has its rules and its responsibilities.

10 All that I can do and all that is within my power to do is to seek

11 a means, if possible, of having you wear a lighter flak jacket. As far as

12 I know, all the heads of state wear this type of clothing, so I am sure

13 that it's a very sophisticated material that is used. But as I said, I

14 shall do my best to meet your request and lighten your load with respect

15 to wearing a flak jacket.

16 THE ACCUSED: [Interpretation] May I say something?

17 JUDGE EL MAHDI: [Interpretation] Yes. Go ahead.

18 THE ACCUSED: [Interpretation] I wore that kind of equipment for

19 ten years. I do have experience with flak jackets, and I can assume what

20 you're going to do now. You'll probably bring in a new rule to stipulate

21 the compulsory wearing of a flak jacket, because you don't -- the rule

22 does not explicitly state this, the compulsory wearing of a flak jacket.

23 I'm sure that you're going to enact a new rule --

24 JUDGE EL MAHDI: [Interpretation] Mr. Stankovic, we don't need to

25 institute a new rule if we already have a rule that is applicable. So

Page 64

1 you're wrong there. And please believe me when I say that it is in the

2 interests of the person concerned. But let us not enter into a debate

3 which could last for hours.

4 And you say that you are accustomed to wearing a flak jacket.

5 Don't interrupt me, please. You said that you were accustomed to wearing

6 flak jackets over a period of years. That's all the better for you.

7 The only thing that I would like to draw your attention to once

8 and for all, and the matter is closed now, is that it is to protect the

9 person in question that requirements stipulate that flak jackets should be

10 worn. And the Dutch authorities feel obliged and responsible for the

11 security of the entire institution, which means including the Judges

12 themselves. So everybody comes under the security system of the

13 Netherlands. You too.

14 THE ACCUSED: [Interpretation] Just one moment, please. So you're

15 now mixing up the competencies of the United Nations and the competencies

16 of the state of Holland. And as far as the flak jacket is concerned, if

17 you give me a flak jacket of 100 kilos, I will be able to bear it, but the

18 problem is that every time I wear it, I have to buy a new suit because

19 those flak jackets are dirty, and all kinds -- they're thrown about every

20 which way, you can't get into a car or get out of a car. We need

21 stretchers. I would need to be taken into a car on a stretcher and

22 brought out the same way. So that's why I'm bringing this matter up.

23 It's not practical.

24 JUDGE EL MAHDI: [Interpretation] Very well. I have understood you

25 fully. If there are no other outstanding matters, I adjourn the meeting.

Page 65

1 Thank you.

2 --- Whereupon the Status Conference adjourned

3 at 10.37 a.m.