Tribunal Criminal Tribunal for the Former Yugoslavia

Page 47

 1                          Monday, 15 January 2007

 2                          [11 bis motion hearing]

 3                          [Open session]

 4                          [The accused entered court]

 5                          --- Upon commencing at 9.49 a.m.

 6            JUDGE ORIE:  Good morning to everyone.  Madam Registrar, will you

 7    please call the case?

 8            THE REGISTRAR:  Good morning, Your Honours.  This is case,

 9    IT-05-88/1-PT, the Prosecutor versus Milorad Trbic.

10            JUDGE ORIE:  Thank you, madam registrar.  First the Chamber

11    apologises for the late start, but that's due to the fact that a

12    confidential filing of last Friday reached us only 20 minutes ago, and

13    there the Chamber considered it wiser to first get an impression of what

14    was written in the French language.

15            Before we continue, could we have the appearances?  Prosecution,

16    first.

17            MS. SOMERS:  Good morning, Your Honours, counsel.  Susan Somers

18    for the Prosecution.  To my immediate right, Janet Stewart, case manager;

19    to my left, Mr. Aleksandar Kontic; behind me to my right, Mr. Kweku

20    Vanderpuye; and to my left behind me, Mr. Peter McCloskey, senior trial

21    attorney.

22            JUDGE AGIUS:  Thank you.  For the Defence.

23            THE INTERPRETER:  Microphone, please.

24            MR. PILETTA-ZANIN: [Interpretation] Good morning, Mr. President,

25    good morning, Your Honours.  Mr. Piletta-Zanin on behalf of the Defence.

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 1            JUDGE AGIUS:  Mr. Trbic, I would just like to verify whether you

 2    can hear me in a language you understand.

 3            THE ACCUSED: [Interpretation] Yes, Your Honour, I can hear it.

 4            JUDGE ORIE:  Thank you.  Then I turn, because we are in a video

 5    link with Sarajevo, I turn to those present in Sarajevo to introduce

 6    themselves.

 7            Could I have the appearances on behalf of the government of Bosnia

 8    and Herzegovina?

 9            MS. POPADIC: [Interpretation] Good morning from Sarajevo.  The

10    delegation of Bosnia and Herzegovina is grateful to the Referral Chamber

11    of the ICTY for enabling us to participate in this hearing via videolink.

12            JUDGE ORIE:  Could I ask for the assistance of the technicians for

13    the following reason.  The volume of the words spoken in Sarajevo are such

14    that I failed to understand the translation.

15            Yes, I see.  I could have done it myself.  May I invite you to

16    reintroduce yourself in Sarajevo.

17            MS. POPADIC:  [Interpretation] Good morning from Sarajevo.  On

18    behalf of the delegation of Bosnia and Herzegovina we would like to thank

19    the Referral Chamber of the ICTY for enabling us to participate in this

20    hearing via videolink.

21            The delegation of Bosnia and Herzegovina comprises to my right,

22    Ms. Natasa Vukovic, registry office for section I and II of the court of

23    Bosnia and Herzegovina.  To my left is Mr. Emir Neradin, registry office

24    for section I and II for Bosnia and Herzegovina.  Mr. Kwai Hong Ip

25    representing the Prosecutor's office of Bosnia and Herzegovina.  My name

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 1    is Milana Popadic, Ministry of Justice of Bosnia and Herzegovina.

 2    Although Mr. Ibro Bulic was announced, he was unable it attend, and he

 3    also works for the Prosecution's office of Bosnia and Herzegovina.

 4            JUDGE ORIE:  Thank you, Ms. Popovic.  I suggest to the parties

 5    that we proceed in the following way:  I first give an opportunity to both

 6    Prosecution and Defence and the government of Bosnia and Herzegovina to

 7    make any submissions in addition to what has already been submitted in

 8    writing.  I also draw the attention of the parties and the government of

 9    Bosnia and Herzegovina to the fact that some of the written submissions

10    were filed confidentially, which might cause a need to go into private

11    session or closed session.  Whenever there is any need to do so, please

12    inform me and we will proceed upon the basis of a decision of such a

13    request.

14            Ms. Somers, may -- before I invite you to make any further

15    submissions, have you received the latest Defence filing, the confidential

16    filing of last Friday that was filed at three minutes past 4.00?

17            MS. SOMERS:  Yes, Your Honours, we received it, we haven't

18    received any form of translation so as to be able to discuss it amongst

19    ourselves.  But those of us who read some French have gone through it, but

20    I cannot say it has been studied as we would have like to have done.

21            JUDGE ORIE:  Yes, Ms. Popadic, may I ask you, whether you received

22    this last filing in the French language, which is of course one of the

23    official languages of this Tribunal.

24            MS. POPADIC:  [Interpretation] I have just seen the filing for the

25    first time now.  I had no occasion to see it earlier, and I don't think

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 1    that any members of our delegation saw it earlier.

 2            JUDGE ORIE:  Yes.  Perhaps the best way of proceeding is that I

 3    give an opportunity to the parties and the government to give any further

 4    submissions, and that we would then have a break and in this break that

 5    the parties and the representatives of the government would have the

 6    opportunity to consider the submissions made and include then also to more

 7    thoroughly study the submissions made by the Defence.  I've read them in

 8    French, and I think as a matter of fact that we could proceed at this

 9    moment on the basis of just some general information without knowing all

10    the details.  Ms. Somers, do you have any idea on how much time you would

11    need to address the Chamber with any additional submissions?

12            MS. SOMERS:  First, thank you very much for allowing us to have

13    additional submissions.  We would request, as we have done in the past and

14    has been permitted, to reserve until all the other parties or invitees

15    have given their submissions.  We stand, of course, on what we have

16    submitted but I'm sure there will be comment afterward.

17            JUDGE ORIE:  Yes.

18                          [Trial Chamber confers]

19            JUDGE ORIE:  Before I give an opportunity to the Defence to make

20    any additional submissions, the Chamber would like to turn into closed

21    session.  Yes, private session might do as well.

22                          [Private session]

23   (redacted)

24   (redacted)

25   (redacted)

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11 Pages 51-55 redacted. Private session.















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 6                          [Open session]

 7            THE REGISTRAR:  Your Honours, we're in open session.

 8            THE ACCUSED: [Interpretation] Your Honour, may I complete what I

 9    intended to say and clarify something?

10            JUDGE ORIE:  Yes, as a matter of fact I interrupted you because I

11    thought there might be some misunderstanding.  If there is anything you

12    would like to deal with confidentially, if it is about health or if it is

13    about the other issue I raised, which certainly is something that would

14    require a closed session or a private session, but let me first confer.

15                          [Trial Chamber confers]

16            JUDGE ORIE:  Mr. Trbic, we'll give you an opportunity to continue,

17    and whenever there would be any need to go into private session, please

18    address me and then we will decide.  Please continue.

19            THE ACCUSED: [Interpretation] Thank you, Your Honour.  When

20    speaking of the written submissions I was referring to the material of the

21    1st of June.  I didn't even know about this motion of Friday or the one of

22    the 14th of June.  I wish to point out, Your Honours, that I never saw

23    this submission, and that it was done without my knowledge.  I don't know

24    why confidential motions are filed without my knowing about them.  Also, I

25    wish to say that my only communication with my counsel was by way of

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 1    telegram with completely unclear contents, and visits of half an hour or

 2    40 minutes.  I have all these telegrams here, and from them my attitude to

 3    11 bis is quite clear.  You may see them, Your Honours.  I was very

 4    surprised by the threats made to me about the threats to my personal

 5    security.  These are letters I received on the 6th of November and 21st of

 6    November, and it was also confirmed to me orally during the visit of the

 7    23rd of November.  He is probably doing this based on information he has

 8    or in order to intimidate me, but I refuse to accept any kind of

 9    intimidation or blackmail.  All this shows what kind of legal assistance I

10    am getting from my counsel.  I have all the evidence before me, and it is

11    available for your inspection.

12            Your Honours, the crucial point I wish to draw attention to are

13    the threats concerning my fitness to stand trial and my mental health.  I

14    wish to say that I am in good health, and that I am able to follow any

15    proceedings before any court against me.  So there is no justification in

16    linking this with my case.  Doctors are superficial, in my case.  Please

17    refer my case under 11 bis.  Let me be tried there, if I am guilty.  Thank

18    you for your understanding and your patience.

19            JUDGE ORIE:  Thank you, Mr. Trbic.

20                          [Trial Chamber confers]

21                          [Trial Chamber and legal officer confer]

22            JUDGE ORIE:  I do understand that although the submissions of the

23    18th of May and the 1st of June were not ex parte but were confidential,

24    that they were not communicated to the representatives of the government

25    of Bosnia and Herzegovina, and the Chamber instructs the Registry at this

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 1    moment to communicate these filings as well to the representatives of

 2    Bosnia and Herzegovina, still being confidential filings, but that the

 3    representatives should be aware of the content of it.

 4            Therefore, at this moment, we have three series of documents.  The

 5    first the May/June submissions by the Registry to be communicated to

 6    Bosnia and Herzegovina.  Second category is the request and the response

 7    by the Registry for further submissions of November 2006 to be

 8    communicated to the parties and to the representatives of the government

 9    of Bosnia and Herzegovina.  And finally, the submission filed on Friday,

10    the 12th of January by counsel to -- well, it is available already to the

11    parties, but they should try to get acquainted with the context -- content

12    of this submission written in French as soon as possible.

13            Could I just ask Ms. Somers, how much time would you consider you

14    would need to make yourself acquainted with this material?

15            MS. SOMERS:  Your Honour, I have reviewed the French language

16    filing of my learned counsel opposite, but I have not had a chance to

17    study the submissions.  Yes, I would be grateful for that.  And perhaps --

18            JUDGE ORIE:  Yes, until 11. Of course I gave a short summary of

19    it, but of course I fully understand that you would like to read it and

20    not rely on any summary provided by the Chamber.  Until 11.00, would that

21    do?

22            MS. SOMERS:  Yes, thank you, Your Honour.  I would be grateful for

23    that.

24            MR. PILETTA-ZANIN: [Interpretation] Yes, Mr. President, I'm very

25    sorry, but I am supposed to be in Geneva, I am being expected there and

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 1    French is one of official languages in this Tribunal.  In other words,

 2    Mr. Trbic said "yes" three times, maybe rightly or wrongly, but I am

 3    driving back to Geneva, I would like not to have to drive all night

 4    because simply somebody can't read one of the official languages of the

 5    Tribunal.  It's very strange.  You were kind enough to convey to me a

 6    decision dated 24th November 2006.  I was given this in English.  Can I

 7    ask for a French version of it?  That would be very helpful.  Failing

 8    this, well, that would be just another case of having no translation; that

 9    wouldn't be a problem.  But 11.00, that's a long time to read a few

10    pages. I am quite willing to translate them to the Prosecution if they

11    want to.

12            JUDGE ORIE:  Nevertheless you're asking for a French version at

13    the same time you are offering a French-English translation to the

14    Prosecution.  Mr. Piletta-Zanin, it is not the first time we meet each

15    other.  I am aware that you are mastering of the English language is such

16    that even without a French version of this document you would be well in a

17    position to be acquainted with the content and just as you expect from the

18    Prosecution to be able to read a French document, one of the official

19    languages, isn't it true that when you are able to read and to speak

20    English, that you could work on the basis of an English document?

21            MR. PILETTA-ZANIN: [Interpretation] Of course, Mr. President, and

22    you are aware of it.  This is a question of principle.  It is not up to

23    me, maybe there is in my staff people who are only French speaking and

24    that's not the problem, and you know that very well.  You too are quite

25    master of the French language, and that's fine.  But simply everybody has

Page 60

 1    to take into account everybody else's interest.  I came by car this time

 2    and, for once, I would like the Prosecution to be kind enough not to waste

 3    time uselessly.

 4            JUDGE ORIE:  Okay.  Mr. Piletta-Zanin, I take it you --

 5                          [Trial Chamber confers]

 6            JUDGE ORIE:  We will shorten the time a bit, but not until after

 7    I've asked Sarajevo, because they still have to be -- the documents still

 8    have to be communicated to Sarajevo, which might take a bit more time than

 9    communication here in The Hague.

10            MS. SOMERS:  Your Honour, may I just let the Chamber -- referral

11    bench be aware, it is not the French language issue that requires for us

12    the chance to study it, it is simply the Registry documents.  We are well

13    able to go through the French submission.  Thank you.

14            JUDGE ORIE:  Yes.  Madam Registrar, could you give us any

15    impression on how much time it would take to communicate the relevant

16    documents to Sarajevo?

17                          [Trial Chamber and registrar confer]

18            JUDGE ORIE:  Yes.  Then we will adjourn until -- on the basis of

19    the understanding that most of the documents have been already

20    communicated to Sarajevo, we will adjourn until 10 minutes to 11.00 and

21    then we'll hear from the parties whether they are sufficiently prepared.

22    We stand adjourned.

23                           --- Break taken at 10.27 a.m.

24                           --- On resuming at 10.55 a.m.

25            JUDGE ORIE:  Before we continue, the Chamber would like to go into

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 1    private session for perhaps another couple of minutes.

 2                          [Private session]

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11 Pages 62-65 redacted. Private session.















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25                          [Open session]

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 1            THE REGISTRAR:  Your Honours, we're in open session.

 2            JUDGE ORIE:  Thank you, Madam Registrar.

 3            Mr. Piletta-Zanin, I would like to give you an opportunity first,

 4    since the Prosecution has asked the Chamber to consider it a practical way

 5    of proceeding whether you would like to make any additional submissions in

 6    addition to what you have submitted already in writing to the Chamber in

 7    respect of the 11 bis request.

 8            MR. PILETTA-ZANIN: [Interpretation] Your Honour, you know how fond

 9    I am of principles.  Before I can answer, maybe we should have asked the

10    representatives of the government whether they've been able to have access

11    in a language they understand to my filings of yesterday.  Because if they

12    have had access to these filings, we would gain a lot of time.  If it's

13    not the case, then I would make a brief summary that would be translated

14    for everyone including those who do not master the French language

15    perfectly.  And then we would move quicker.

16            JUDGE ORIE:  During the break the Chamber has considered the

17    importance of the representatives of the government to be fully informed

18    because much of your submission is a reference to what the government

19    submitted itself.  So therefore it doesn't give much new information.  And

20    the point which is not of extreme relevance for the government is that

21    Mr. Trbic himself would like to be referred as soon as possible, and I

22    mentioned that before.  So you may proceed at this moment, but I will

23    certainly ask at a later stage the government whether they had an

24    opportunity to read your submission.

25            Please proceed.

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 1            MR. PILETTA-ZANIN: [Interpretation] Thank you, Your Honour.  I'm

 2    going to be rather brief.

 3            The problem we are faced with is not the person of Mr. Trbic when

 4    you consider his quality as a subject of law, as a subject of law who

 5    might be transferred.  Because everybody here agrees that Mr. Trbic was

 6    not a member and is not a member of the group called the most senior

 7    leaders.  And if you consider his rank, because he was not even an

 8    officer, he was under the orders of a lieutenant.  And if you also look at

 9    the facts, that his acts, his participation, his effective participation,

10    according to the text usually applied here, obviously Mr. Trbic is a

11    subject of law who can be transferred, and he has repeatedly asked to be

12    transferred.

13            As counsel I have taken note of the position of the government,

14    including in the Popovic case, because right from the beginning Mr. Trbic

15    requested this case not to be severed, he wanted to take part right from

16    the beginning.  Personally I asked for the case to be suspended.  But I

17    take note of the fact that the ad hoc commission, that the government and

18    the government itself believe that this case, because of the very nature

19    of the crime involved, this case is not -- cannot be referred,

20    transferred.

21            We have a situation where the crime itself, the genocide and the

22    joint criminal enterprise, have not been resolved by any authority, by any

23    referral bench in this Tribunal.  Undeniably genocide is such a grave

24    crime that the question now has been posed, and obviously the answer

25    cannot be an easy one.  However, it is also obvious when you read the

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 1    latest report of Mr. -- of the president of the Tribunal, Mr. Pocar, it is

 2    obvious that the Tribunal will close by the year 2010, and the best things

 3    in life have to have an end at some point, everybody will go home then.

 4    But we are not certain, we cannot be certain when we look at the calender,

 5    that the Tribunal will have the means, will have -- will lead the

 6    necessary policy to try this man, although he should have been tried with

 7    other people, but that's the remit of the Prosecution.  So the question

 8    that is being asked is a practical question.  It's not a legal question.

 9    What are we going to do with this man when you consider one of the most

10    fundamental principles, which is not only that of a fair trial but that of

11    the expeditious trial.  Because according to my information -- I repeat,

12    according to my information, apparently he could not be tried here before

13    two -- two years, two years, that's 2008 if there is no delay, maybe 2009.

14      Is that a not normal situation?  It is up to you to give an answer to

15    that question.

16            Furthermore, if -- if, and I insist on the word "if" because

17    Mr. Trbic has always said he is in perfectly good mental health.  But

18    if -- if we were in a situation where an accused was not fully fit

19    mentally speaking, then as far as I understand in Bosnia and Herzegovina

20    and in Sarajevo, there is no organisation, there is no institution that is

21    able to deal with such a matter.  I was also given to understand that

22    there is no will to have someone who is prosecuted for genocide being made

23    to work for -- being made to do community work.

24            In both cases we -- because this case was disjoined -- or severed

25    from the Popovic case, we are placed today in an impossible situation.  If

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 1    you grant the referral that is being requested by Mr. Trbic and, as his

 2    lawyer, I cannot do anything else, then you will go against the

 3    jurisprudence because of the gravity of the crime involved.  If you decide

 4    against the referral, then there will be very few solutions available.

 5            As a result, and as I have said before as Defence counsel, I

 6    cannot -- I can only -- as a lawyer I can only refer you to the

 7    application of the principles that govern the referral of a case when you

 8    are dealing with two matters, the first being the genocide and the second

 9    being the fact that this genocide is alleged to have been committed as

10    part of a general criminal enterprise.  Obviously I cannot rule on that

11    myself, as otherwise technically speaking Mr. Trbic is an acceptable

12    candidate for a referral.  If you look at his place in the structure

13    involved and if you look at his participation in the crime, but let me add

14    that he has always denied and rejected the charges brought against him.

15    Therefore, the position is very clear.

16            JUDGE ORIE:  If you allow me to interrupt you.  First of all, most

17    what you said is not in addition to your written submission, but repeats

18    your written submissions.  I now see that since you are revisiting the

19    genocide and joint criminal enterprise and participation in the joint

20    criminal enterprise, that it is not only in your written submission, you

21    dealt with it at an earlier stage of your submission today, and now you

22    are revisiting that matter.  So there are three times.  Could you please

23    wind up and come to a conclusion?

24            MR. PILETTA-ZANIN: [Interpretation] Yes, but I was -- I was -- I

25    just concluded.

Page 71

 1            JUDGE ORIE:  Thank you, Mr. Piletta-Zanin.

 2            Then I would like to turn to you, Ms. Popadic.  First of all, did

 3    you have an opportunity to -- to read, and if not personally, to have

 4    explained what is found in the submissions I referred to earlier, that is

 5    May, June, November, and last Friday, the 12th of January submission by

 6    Mr. Piletta-Zanin?

 7            MS. POPADIC: [Interpretation] Thank you.  During the break we

 8    received all three of these submissions.  The ones from May and June we

 9    studied in detail and the one that was filed on Friday we only had the

10    contents of it briefly explained to us so that the delegation of Bosnia

11    and Herzegovina, after becoming acquainted with these filings, remains by

12    its written reply submitted in our earlier filing.  If necessary today we

13    can provide additional clarifications or additional responses to some

14    other questions.  And if we are unable to answer any of the questions

15    today, given the filings we received during the break, we reserve the

16    right to provide written answers at a later stage.

17            Once again, I would like to emphasise that in view of the

18    government of Bosnia and Herzegovina, this particular case would not be

19    suitable for referral to the authorities of Bosnia and Herzegovina for two

20    reasons.  The first being the criteria of the gravity of the crime which

21    is not in compliance with the provisions of Rule 11 bis of the Rules of

22    Evidence and Procedure, and its implementation so far.  The second reason

23    is this:  If the accused became mentally ill following the commission of a

24    crime or if the crime was committed when the accused was of unsound mind

25    or was temporarily insane, that would be another reason.

Page 72

 1            When it comes to the first reason the position of the government

 2    of Bosnia and Herzegovina is such that the crimes that this particular

 3    accused is being charged with fall into the category of the most grave

 4    crimes.  We heard that the Defence shares this view, and in our opinion

 5    this does not comply with the criteria envisaged in Rule 11 bis.

 6            MS. SOMERS:  Excuse me, Your Honour, I apologise for interrupting

 7    our colleagues in BiH, but we request that this be in open session, as

 8    opposed to closed session, if we're still in closed.  I'm not clear.  Are

 9    we in open?

10            JUDGE ORIE:  As far as I am aware, we are -- we are in open

11    session.

12            MS. SOMERS:  If you can confirm that, thank you very much.

13            JUDGE ORIE:  Yes.

14            Ms. Popadic, the Prosecution wanted to verify whether we are in

15    open session.  May I invite you to continue.

16            MS. POPADIC:  Thank you.  Since this case has been severed from

17    the Popovic et al case, we believe that it needs to be assessed in

18    comparison with the case from which it was severed.  The Popovic case in

19    the pre-trial stage -- or, rather, the Popovic case is in the trial stage

20    now, and this accused stands accused for the same facts as those in the

21    indictment in the Popovic case.  The government of Bosnia and Herzegovina

22    believes that the crimes that this accused stands indicted for in the

23    confirmed indictment taken within their legal qualification from the

24    indictment do not fall in the category of crimes under Rule 11 bis and, as

25    such, they make this case inappropriate for referral under Rule 11 bis.

Page 73

 1            Furthermore, when it comes to the responsibility of the accused,

 2    the government of Bosnia and Herzegovina believes that this particular

 3    case could be referred to the authorities of Bosnia and Herzegovina

 4    because this particular accused does not fall in the category of the

 5    perpetrators at the highest levels who are most responsible for crimes

 6    falling under the jurisdiction of the ICTY.  We saw that the Defence

 7    shares this view.

 8            As for the second reason, which goes against the possibility of

 9    referring this case, is the mental health of the accused.  The government

10    of Bosnia and Herzegovina believes that if the accused suffers from a

11    mental illness or rather started suffering from a mental illness after the

12    crime was committed or started suffering in the course of the trial, the

13    courts of Bosnia and Herzegovina in both of these instances would refer

14    this case to the competent social work or social services centre, in which

15    case the court of Bosnia and Herzegovina would no longer have the

16    jurisdiction over this case, and the competent social services within the

17    relevant entity would gain the jurisdiction over this case.

18            The social services centre, as it stands now, are faced with a

19    situation where there is -- where there are significant difficulties with

20    medical facilities and their resources.  We do have adequate mental

21    facilities in Bosnia and Herzegovina, we do have some, but they do not

22    have all the necessary resources in order to deal with these cases.  The

23    government of Bosnia and Herzegovina thus believes that this particular

24    case is not suitable for referral to the authorities of Bosnia and

25    Herzegovina under Rule 11 bis.  Thank you.

Page 74

 1            JUDGE ORIE:  Thank you, Ms. Popadic.

 2            Ms. Somers.

 3            MS. SOMERS:  Your Honour, this case is not complicated.  Any

 4    complications that have been brought or allegedly brought before this

 5    Referral Bench are creations based on speculation and I must say

 6    contradictory positions to former submissions both by BiH and failure to

 7    look at the correct state of the jurisprudence.  First, working backward,

 8    the issue of mental health is at best speculative.  It has been raised in

 9    a way that has not forced any formal hearing.  The issues which have been

10    considered essential for assessment of capacities, based on the Strugar

11    decision, to the extent the accused was willing to undertake them in

12    examination are addressed, and I would draw Your Honour's attention to

13    those.  I think they're very telling.  The observations which were relied

14    on also in the Strugar decision by the demeanour of the accused in

15    proceedings, I think, are also very telling.  So although none of us

16    professes to have the ability to be a mental health worker, we are

17    suggesting that there is really no issue but speculative matters that have

18    spun out of control and have now become used as a basis for effectively

19    shirking responsibility that any national system would have to undertake

20    if it were to conduct trials seriously in the criminal law.

21            What we are hearing is that should a -- an accused before a state

22    court judge, find himself in a state of unfitness, even after commencement

23    of trial, that that would paralyse the system.  This is highly unlikely in

24    light of the international standards that have been accorded or the

25    recognition of having international standards that have been accorded to

Page 75

 1    the state court.  We remind -- which I'm sure we don't need to remind, the

 2    Bench is well aware that the Detention Unit has been certified as meeting

 3    international standards in BiH.  So all of this suggests that either there

 4    is some problem that was not dealt with, or that it may be inconvenient,

 5    but we take our accused as we find them in all systems, whether the

 6    incapacity, which is not in any way, not only not confirmed, but has not

 7    gone beyond the level of mere speculation, were to eventualise, or before

 8    a trial, before a referral, or during the course of trial.

 9            Secondly, and perhaps importantly, I will avoid at this moment the

10    issue of -- issues that have to go into private session, but the documents

11    that we read over the course of the break in no way change the position.

12    In fact, speculative.  The Chamber heard from the accused on the issues,

13    and there was nothing of any concrete nature.  If the Referral Bench

14    wishes to hear from any other member of the Prosecution as to these

15    issues, they are present and can certainly offer input rather than have

16    counsel speak for his feeling about what the Prosecution may or may not

17    hold as its position.

18            Importantly, the level of the accused all agree is proper.

19    Defence, the accused, and the Prosecution agree that the case should go to

20    BH.  BH's assertion now, as to the arguments of gravity are simply

21    disingenuous.  BH is trying cases now concerning the Srebrenica material,

22    the counts, the allegations in Srebrenica, and I would find it very

23    difficult to accept that should we have never, in the Tribunal, should

24    this institution never have asserted its primacy, that the Bosnians are

25    now saying that they would not have undertaken to try genocide cases,

Page 76

 1    given that genocide has been a crime on its books, even dating back to the

 2    socialist codes and currently is a crime.  In fact, they are trying

 3    Srebrenica cases now.  The jurisprudence in no way bars a referral.  If

 4    one were to look at even at the language of, let's say, a Dragomir

 5    Milosevic denial, that does not say that you have to have both, it talks

 6    about a balance.  And in fact, Ademi Norac involved a brigadier and a

 7    colonel.  The balance that is struck by examining the totality, not in

 8    isolation, but the totality of what is before the Bench in the indictment

 9    governs.  The actual Security Council resolutions do not talk -- 1503 and

10    1534 do not address severity they address all -- indicted before this

11    Tribunal are by definition serious violations of international and

12    humanitarian law and, yes, they include genocide and, yes, Bosnia can

13    avail itself equally well Krstic adjudicated facts and find itself not at

14    all disadvantaged.

15            The actual addressed points are the level of the accused, mid --

16    I'm sorry, intermediate to lower level.  In fact, I remind this Chamber of

17    its very well reasoned decision in Mejakic, which was a joint criminal

18    enterprise indictment which represents one of the most horrific crimes

19    ever to have taken place, a series of crimes ever to have taken place in

20    the territory of Bosnia and Herzegovina, or anywhere for that matter, and

21    that case is being tried in the state court of Bosnia-Herzegovina.  In

22    fact, it involved enormous numbers of human beings, it involved a period

23    of time, and it also involved what was a joint criminal enterprise, and

24    that has been no bar.

25            In this instance, given, as the Chamber -- as the Bench will look

Page 77

 1    at all factors, the level which we agree is appropriate, and the -- I'm

 2    sorry, the -- yes, the level which is appropriate and the gravity which

 3    Bosnia itself undertakes to try, there can be no question but that it can

 4    and should be sent down.

 5            Again, there is absolutely no basis for giving this case any more

 6    concern than any other case where there are issues raised.  For example,

 7    in the extreme, on mental health issues, that is something Bosnia will

 8    have to deal with if it expects to be a player in the international

 9    community and it has so far demonstrated it can.  It is on notice that it

10    must do what it has to do.  Again, it is unlikely that in connection with

11    this accused that will arise, from on things we've seen.  But should it,

12    in order for it to be considered seriously for referrals, it will have to

13    comport with all international standards.  It is simply inconceivable that

14    a sovereign system would rule out not just the possibility but given a

15    sovereign system in a formerly war-torn area, the possibility of any

16    incapacity, particularly one resulting allegedly from any mental issues in

17    its scheme.

18            Excuse me just a minute, Your Honour.

19            We are not in agreement with the submission of the Registrar to

20    the extent that there can be confirmation of the level of general

21    protection, then it may be appropriate for further discussions.  But in no

22    institution is there an absolute guarantee -- in no institution is there

23    an absolute guarantee of security, even in this one.  In no institution is

24    there a guarantee of a person retaining his or her balance at all times.

25    I do draw the attention of the Chamber, by the way -- to the Referral

Page 78

 1    Bench, excuse me, to various pronouncements by the very well established

 2    psychiatrist in the Strugar case, Dr. Matthews, depression being a natural

 3    expectation of custody.

 4            In terms of issues, should -- now this may -- this may or may not

 5    be appropriate for closed or private session.  I think in an abundance of

 6    caution I would ask that we do go into private session.

 7            JUDGE ORIE:  Madam Registrar, the Chamber would like to go into

 8    private session.

 9                          [Private session]

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 79

 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                          [Open session]

14            THE REGISTRAR:  Your Honours, we're in open session.

15            MS. SOMERS:  In summary, by virtue of the mandate that we have to

16    conclude the work of the Tribunal, and by virtue of what has already been

17    undertaken by the court in BH indicating that it can and essentially, if

18    referred, will try this case.  Its level of comfort or not in maybe the

19    amount of work that has to be done is not a determining factor.  All of us

20    face that, whether it is here or there.  Certainly their work is easier by

21    virtue of having the other cases to rely on.  The ability of the system to

22    adapt itself to a speedy trial system is very favourable.  Mr. Rosovic

23    also opted to go to Bosnia and Herzegovina because he wanted a speedy

24    trial.  It is certainly not an unusual approach to take and it is to be

25    commended when all other things are equal.  In our position all other

Page 80

 1    things are equal when there is nothing unusual that has been raised in

 2    this case that should bar referral, including the gravity.

 3            As time progresses toward our conclusion, it is clear, unless

 4    Bosnia is saying it is not prepared to handle genocide cases or any

 5    allegations, then that has to be dealt with by its own sovereign

 6    structures and their responsibility to their people to tell them that they

 7    are not prepared to do that.

 8            At this point, we feel that we have made well the case for

 9    referral, that should there be any further questions that the Bench might

10    wish to put to my colleagues, we are prepared to answer them.  And we

11    thank you and urge that the case be referred.

12            JUDGE ORIE:  Thank you, Ms. Somers.

13                          [Trial Chamber confers]

14            JUDGE ORIE:  Judge Kwon has a comment.

15            JUDGE KWON:  A brief question, Ms. Somers.  My question is related

16    to the severance of Mr. Trbic which is pending before the Appeals Chamber.

17    Do you think or argue that referral can be ordered irrespective of the

18    outcome of the Appeals Chamber's decision?

19            MS. SOMERS:  If I may take a moment to speak with Mr. McCloskey as

20    to the status of that.  Thank you.

21                          [Prosecution counsel confer]

22            MS. SOMERS:  I appreciate it, I was trying to get up to speed on

23    what the status is.  It is unclear why, quite frankly an issue of

24    severance is taking so long.  So it would be prudent to resolve it so that

25    we that this is, in fact, the indictment.  But a request, certainly 11 bis

Page 81

 1    matters are fast-track appeals matters and perhaps because it has such a

 2    close link to 11 bis, it may be a matter that the bureau may find wishes

 3    to ask for resolution.  It would seem wise, and certainly helpful for

 4    clarity, so that all know exactly what indictment we are proceeding on, to

 5    have it done.  But again, that is a matter sadly outside of our hands.

 6    We -- but we would urge any remedy that may be available through --

 7    through Your Honours.

 8            JUDGE KWON:  What I wanted to hear from you is that as a matter of

 9    law that whether referral can be ordered without severance at all.

10            Mr. McCloskey.

11            MR. McCLOSKEY:  Thank you, Judge Kwon.  That is, I think, a legal

12    issue that we're not -- we don't know.  The -- me reaction would be that

13    we should wait.  That if the work of the appellate chamber is to be viewed

14    as serious, we should wait.  Though the practical situation, as we -- as

15    you and I both know, the case that it -- that he would be sent back to

16    has -- has put on so much evidence that it would be hard to imagine a --

17    in a practical sense, a rejoinder of that case.  So I think legally we

18    don't know the answer to your question, but I would think common sense

19    tells us we shouldn't do anything until the appeals is through.

20            JUDGE KWON:  The practical problems is that the Appeals Chamber's

21    procedures are suspended pending the competency issue.

22            MS. SOMERS:  May I address that, Your Honour?  That -- that should

23    not have been a basis, in my submission, for suspending any provision.

24    Competency can certainly move forward.  Appeals can go; competency may or

25    may not, particularly where 11 bis is concerned.  It does not have the

Page 82

 1    impact of preventing a referral.  So if the bench has not been

 2    sufficiently concerned to -- and I don't mean this Bench, if the Trial

 3    Chamber has not felt the need to resolve the issue immediately of

 4    competency, which is a matter of hearing, of course this Chamber, under 11

 5    bis H is fully empowered to hear the issue of competency, as it can hear

 6    any matter before a Trial Chamber, should that really be what is at issue.

 7    It should not -- again so many things become interrelated where if they

 8    would just be dealt with in order, it would be helpful, but the competency

 9    per se should not affect the issue of severance, and competency does not

10    affect the issue of referral.

11            JUDGE KWON:  Thank you.

12            JUDGE ORIE:  If I may put a follow-up question there.  What if the

13    severance issue had never been raised?  I mean, 11 bis request was prior

14    to the severance request, isn't it?

15            MR. McCLOSKEY:  No, Mr. President, I believe it was first severed

16    and then 11 bis.

17            JUDGE ORIE:  We'll check that.  I thought it was the other way

18    around.

19            MR. McCLOSKEY:  Yeah, it always helps to check, but I'm -- I'm --

20    well, I see --

21            JUDGE ORIE:  It seems that Mr. Piletta-Zanin will assist us in

22    finding answers to the question.

23            MR. PILETTA-ZANIN: [Interpretation] Yes, Mr. President, in

24    relation to this answer, it is in my request that it was severed because I

25    said then there can be no talk of a referral without a prior severance.

Page 83

 1    So that was the chronology, indeed.

 2            JUDGE ORIE:  So my chronology was the right one.

 3            MS. SOMERS:  Your Honour, may I also remind you that for example

 4    in situations -- not in this case, but in a general situation where a plea

 5    is involved, one can have a plea agreement with -- even though an accused

 6    is part of a greater group of accused, and then a severance would

 7    certainly be appropriate at the time the cases are severed.

 8            In this instance, the timing - and I am grateful to my colleague

 9    for clarifying that - should not be a bar, and in fact if the Chamber

10    wants to have anything examined it would certainly request -- I think it

11    would probably be the most appropriate inquiry as to if it believes it

12    should move forward with the Appeals Chamber to so make the request I

13    mentioned earlier.

14            JUDGE ORIE:  We are not suggesting anything at the moment, but

15    from what I understand, the request dates from the 4th of May of this year

16    [sic], whereas the severance motion of the OTP was of the 16th of June and

17    the severance was I think decided on the 26th of June.

18            What you said, Mr. Piletta-Zanin, I leave that open at this moment

19    who specifically asked for the severance, whether it was the Prosecution

20    or the Defence.  But at least it seems to be clear that a referral request

21    was there, but there was no mentioning anything -- no mention at all about

22    severance.

23            MS. SOMERS:  It might be tidier, but I don't know that it's

24    legally necessary.

25            JUDGE ORIE:  That's at least -- then -- yes, Mr. Piletta-Zanin.

Page 84

 1            MR. PILETTA-ZANIN: [Interpretation] Mr. President, do you allow me

 2    to say a few words, because I did not --

 3            JUDGE ORIE:  I have in mind to complete the questions of the bench

 4    and then to give a new round, five to six minutes, to make any additional

 5    submissions the parties would like to make, also in relation to the

 6    questions posed by the Bench.

 7            I would like to briefly address you, Ms. Popadic, on the following

 8    issue:  You said that if an accused turns out to be mentally ill, that he

 9    would then be within the jurisdiction of the social care authorities.

10    Which suggests that they would not be within the jurisdiction of the state

11    court anymore.  I think that's what you said.  Isn't it true that if

12    someone recovers from a mental illness that he would then return into the

13    jurisdiction of the state court, so for purposes of trial he would always

14    be in the jurisdiction of the -- under the jurisdiction of the state

15    court?

16            MS. POPADIC: [Interpretation] If there is any doubt or if there

17    is -- if there are grounds to suspect that an accused cannot participate

18    in a trial because of mental illness, forensic medical opinion will be

19    sought.  If it is established by forensic medical examination that the

20    accused became mentally ill after the commission of the crime, and that he

21    therefore cannot follow the proceedings, the court will interrupt the

22    proceedings and will refer the accused to the appropriate social welfare

23    authorities according to his place of residence.

24            When the accused's mental health improves to such an extent that

25    he is fit to take part in criminal proceedings, the criminal proceedings

Page 85

 1    will continue.  During the time when the proceedings are interrupted,

 2    during this suspended proceedings, the mentally-ill accused is provided

 3    with health care under the law under the protection of mentally ill people

 4    in the Republika Srpska or under the law of the protection mentally

 5    disturbed persons under the protection of the Federation of

 6    Bosnia-Herzegovina.  These laws provide for the measure of forcible

 7    detention and forcible commission to a mental health institution, and the

 8    competent entity court can issue these measures in non-trial proceedings

 9    if the person's health, life, or safety are at risk, or if the health or

10    life or safety of others is at risk.  The time during which the mentally

11    ill person is detained cannot be longer than one year in the Federation of

12    Bosnia-Herzegovina or six months in the Republika  Srpska.

13            During the time when health care is being provided, the health

14    care institution will regularly submit reports to the court and the time

15    limit can be extended by the court in its decision pursuant to a motion by

16    the health care institution.  There is another situation.  If the accused

17    committed a crime in a state of reduced competency, the court may hand

18    down the security measure of mandatory psychiatric treatment along with

19    some other legal sanction.

20            I wish to mention that at present in Bosnia and Herzegovina there

21    are no properly equipped health institutions able to implement the

22    measures of forcible detention and commission to a health care institution

23    or a mental institution in cases where the person represents a serious

24    threat to his own life, health, or safety, or the life, health, and safety

25    of others.  Efforts, however, are being made to resolve this issue.  In

Page 86

 1    the past year the government issued a decision to form a unit to implement

 2    a project to this effect, funds have been set aside, steps have been taken

 3    to solve this problem.

 4            JUDGE ORIE:  Thank you for that answer, Ms. Popadic.  So if I

 5    understand you well, finally, for purposes of trial, the jurisdiction

 6    would always be under the state court, although meanwhile an accused may

 7    be in detention somewhere else.

 8            What -- you may have noticed that the Prosecution has -- may have

 9    just -- perhaps I will just finish my question and then invite you to

10    answer it.  You may have noted that the Prosecution expressed its -- it

11    was surprised that no facilities would be there.  I would like to ask you,

12    the situation where an accused becomes mentally ill and has to be detained

13    because he may create a risk for himself or for others, is not unique for

14    any ICTY case, is it.  So therefore is it -- when do you think that the

15    matter will be resolved and how are you dealing at this moment with

16    similar cases?

17            MS. POPADIC: [Interpretation] There are medical facilities in

18    Bosnia and Herzegovina, to which such persons are admitted; however, those

19    institutions are not properly equipped.  And that is the reason why, in

20    July 2006, the government of Bosnia and Herzegovina issued a decision to

21    form a unit which will then implement the project of renovation of the

22    psychiatric clinic Podromanija Sokolac.  We have undertaken serious steps

23    in that regard and there are expectations that there is going to solve

24    this issue once and for all.  The issue of the persons who have to be

25    detained pursuant to the court decision on those grounds.

Page 87

 1            JUDGE ORIE:  Is there any expectation in terms of time as when

 2    this facility will be available?

 3            MS. POPADIC: [Interpretation] I think that I really couldn't give

 4    you a -- specific dead-lines here.  We are aware of the gravity of the

 5    issue, and the government is currently undertaking all necessary steps in

 6    order to resolve the issue as soon as possible.

 7            JUDGE ORIE:  Thank you for that answer.

 8            Then, Ms. Somers, I have one, and that will be my last question.

 9    One question for you.  You referred -- you expressed some concern or some

10    big surprise that if no Tribunal would have been there that you could not

11    accept that Bosnia and Herzegovina would not have undertaken to try

12    genocide cases.  Is that, in your view, perfectly fair to the government

13    of Bosnia and Herzegovina, because since there is a Tribunal and since

14    there is a Rule 11 bis, the question is not whether Bosnia and Herzegovina

15    would have undertaken any genocide cases if there would have been no

16    Tribunal, but that the government of Bosnia and Herzegovina will give its

17    view on how to interpret Rule 11 bis, Rule 11 bis with -- together with

18    the Security Council resolutions, makes a destination between cases

19    including genocide cases, which preferably should be heard by this

20    Tribunal or could be referred to the states of the former Yugoslavia.

21            MS. SOMERS:  Your Honour, I do not think that Rule 11 bis or any

22    of the resolutions underlying Rule 11 bis say that.  Rule 11 bis and the

23    resolutions that have given it power, are urging that cases and certainly

24    there could be hundreds of persons like the accused who participate in the

25    crimes that go into the cases that are tried here.  We are trying the

Page 88

 1    highest level of people here.  And while we have the life in us, we will

 2    do that.  But this is exactly the kind of situation that will be faced

 3    over and over again in the future, and in fact they have -- Bosnia has

 4    undermined its own position, it has undertaken the Kravica warehouse

 5    cases, where they have thousands of persons murdered.  The fact that it is

 6    part of their criminal law indicates that they can.  And I have not

 7    studied the history of criminal Prosecutions in Bosnia, but if it is on

 8    the books, it must have been at some point invoked and it should not be

 9    selectively rejected for inconvenience. In fact, this is a very make or

10    break threshold issue now for the future of referrals.  After all, this

11    institution is not indicting anymore.

12            What also strikes me, if Your Honour will allow me to piggyback on

13    to this, is since my learned friend opposite has indicated the situation

14    that would arise should, let's say for the sake of argument, the severance

15    were not granted it would be putting everyone back at square zero because

16    it would be years, if at all, and perhaps the issue of --

17            JUDGE ORIE:  That's a different issue, it's not related to my

18    question.

19            MS. SOMERS:  I'm sorry.  I just wanted to raise the fact that you

20    had asked me earlier about the issue of the pending motion for

21    severance -- or self advance issue in the appeals.  Because counsel has

22    indicated a relative -- I would say statement of agreement, perhaps -- and

23    this is of course within counsel's providence -- province, but perhaps

24    they are considering a withdrawal of the appeal if the position is exactly

25    what he represents the position to be, which in our view would be a wise

Page 89

 1    move, it would end up effectively moving the case forward, there would be

 2    nothing gained by the appeal being heard at this point in time, I will

 3    agree assuming that the bench accepts that the gravity is well within what

 4    can be tried and what is contemplated, the level at this point, and again

 5    the balances, if Your Honours review your own excellent jurisprudence, you

 6    will see there is nothing to prevent it.  You don't have to have perfect

 7    balance of both, but things are not looked at in isolation.  So I'm sorry,

 8    I did piggyback on that, and I apologise, but I hope that helps a little

 9    bit.

10            JUDGE ORIE:  I would like to give an opportunity to the

11    representative of the government of Bosnia and Herzegovina and the parties

12    to make final submissions each to stay within five minutes' time.

13            JUDGE KWON:  Before that, can I hear the answer raised by

14    Ms. Somers from Mr. Piletta-Zanin because that was the very question I was

15    about to put to you.  If your position, as you submitted in your final

16    submission, your position -- the position of yours and your client is to

17    favour the referral as quickly as possible, then would it not be only

18    natural for you to withdraw the appeal in relation to the severance

19    decision?

20            MR. PILETTA-ZANIN: [Interpretation] Thank you, Your Honour, for

21    asking the question.  First of all, I do not wish to answer because it's a

22    matter of principle, because the question is put by somebody of whom I

23    know not whether she is the author and accomplice to the denunciation

24    concerning my client.  So I would like to put the question to the

25    Prosecution who is at the basis of the situation causing problem and

Page 90

 1    threat.  I want to know whom I'm talking to, and then I would gladly

 2    answer the question.

 3            What I have never ceased saying, to be brief, is that we should

 4    have staying or suspension in the first order.  The first staying depends

 5    on others and that is the answer to be given as to the mental state.  Why

 6    do I give you this answer?  Because this is the answer that will condition

 7    the quality on the merits I will receive -- of instructions given by my

 8    client.  I think you follow me.  The question put to me is a treacherous

 9    one, and I cannot give you an answer, given to my obligation.  I can only

10    answer when I have a very clean answer as to the mental state.  Then I can

11    answer all the questions you may have, and I would gladly have an answer

12    to my question:  Who gave to the media the name of Mr. Trbic.

13            JUDGE KWON:  Thank you.  I think that's the farthest we can get.

14            JUDGE ORIE:  Then for the final submissions.

15                          [Trial Chamber confers]

16            JUDGE ORIE:  For the final submissions, not taking more than five

17    minutes each, I'd like to invite Ms. Somers, you to first address the

18    Referral Bench.  If there is nothing in addition to be said, you don't

19    have to fill the five minutes.

20            MS. SOMERS:  The Prosecution has requested of this Bench is to

21    refer the indictment to BH.  Based on its being a jurisdiction which is

22    able to handle the matter, and that ability has been emphasised repeatedly

23    in other cases involving referral.  And it is our sincere hope that its

24    abilities will continue along those veins.

25            The -- there is no issue about level, it is agreed between the

Page 91

 1    parties certainly and with Bosnia that it is appropriate.  Again, only

 2    should the Chamber wish to go back into its own jurisprudence and to look

 3    carefully into what is in the Security Council resolutions, the Chamber

 4    can rest comfortably knowing that Bosnia has undertaken very serious cases

 5    that even if not qualifying the crimes as genocide, is taking those facts

 6    which are also tried here and presumably will very ably handle them.

 7    There is simply no reason that it cannot do so with this accused today.

 8            The issue of fitness is at best speculative, and it is, based on

 9    what we have heard today from BH, evident that BH, if for any accused in

10    its system should this matter arise in the -- certainly in the war crimes

11    domain, it will have to find some resolution, even if a permanent one is

12    not found, it will have to use its mighty powers to find some resolution

13    in that no one can guarantee the permanent fitness of any person who is

14    charged.

15            There has been no evidence and certainly no indication from what

16    has been undertaken by forensic individuals that there is an issue.

17    Again, repeating, and not overly repeating, but today's interaction

18    between Your Honours and the accused confirm the suggestions that were --

19    the conclusions that were drawn in the report.  The Registry intervention

20    we deem not founded, and should there be concerns along this line, this is

21    part of the criminal system.  That is simply the way it is.  And every

22    jurisdiction, including this one, has to find a way to deal with it.

23    There is no suggestion that BH cannot -- in fact, it's not clear at all, I

24    don't think it has even suggested in its responses that it cannot be dealt

25    with.  Again, for the reasons gone into private session, it is a

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 1    non-issue.  We are hopeful that the procedural quagmire that we find

 2    ourselves in with the delay of what may or may not be a valid appeal, and

 3    again whether or in the competency were at issue has no impact on whether

 4    an indictment should be referred.  The framework, the laws, the

 5    provisions, which is the Chamber, this Bench required in Kovacevic, the

 6    provisions are in the law, it is now up to the sovereign state to find a

 7    way of implementing them and I am sure that it will do so if the need were

 8    ever to arise, but it is certainly not evident at all anything we have

 9    seen, heard or read that need arises in this case.

10            Again, there should be no obstacle in ordering a referral of this

11    case to Bosnia and Herzegovina.  Thank you.

12            JUDGE ORIE:  Thank you, Ms. Somers.

13            I'd now like to give an opportunity to you, Ms. Popadic, to give

14    any further submissions in the next five minutes.

15            MS. POPADIC: [No interpretation]

16            JUDGE ORIE:  I do not receive translation.

17            THE INTERPRETER:  The interpreter cannot hear the link from

18    Sarajevo at the moment.  The link is back.

19            MS. POPADIC: [Interpretation] Thank you.  The government of Bosnia

20    and Herzegovina has closely followed the debate today.  We remain faithful

21    to our response filed in the written form.  And we also stand by

22    everything that we have said today.  I want to emphasise that the view of

23    the government, as formulated in its written submission and today in oral

24    submission, pertains only to this particular case.  It does not in any way

25    affect the readiness of Bosnia and Herzegovina to prosecute war crimes.

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 1            However, if this bench decides to refer this case, if this Chamber

 2    decides to refer this case to the authorities of Bosnia and Herzegovina,

 3    and if it is established that the accused is fit to stand trial, the state

 4    court of Bosnia and Herzegovina is fully equipped to provide fair and

 5    expeditious trial in Bosnia and Herzegovina.  Thank you.

 6            JUDGE ORIE:  Thank you, Ms. Popadic.

 7            Mr. Piletta-Zanin.  Your time for final submissions.

 8            MR. PILETTA-ZANIN: [Interpretation] Very briefly, I will need less

 9    than five minutes.

10            The Defence counsel clearly stated that within the remit of his

11    mandate that he was to follow the instructions given by his client.

12    Therefore, he will have to further the request for referral, unlike what

13    the Prosecution said.  The lawyer that I am cannot claim that it is

14    possible to refer cases of genocide without further analysis.  I leave

15    that question open as a man of law.  I just underline that this seemed to

16    be a very grave claim and as a lawyer and as a Defence counsel I must

17    state one thing, which is of interest in the observations of the Registry.

18    If there are threats today, possibly those that I mentioned to my

19    communications for information to my client, if the threats come -- and I

20    might have to ask for a closed session.  Or ...

21            JUDGE ORIE:  At this moment?  Yes, private session, I think, will

22    do.  Madam Registrar.

23            MR. PILETTA-ZANIN: [Interpretation] That's fine, Mr. President.

24                          [Private session]

25   (redacted)

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11 Pages 94-95 redacted. Private session.















Page 96

 1   (redacted)

 2   (redacted)

 3                          [Open session]

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

 5            JUDGE ORIE:  Mr. Trbic, the Referral Bench would like to give you

 6    an opportunity, if there is any need to do so, to make any additional

 7    submission.  Your position is perfectly clear to the Chamber, but if

 8    anything was said which causes you to make any further remarks, you have

 9    an opportunity to do so.

10            THE ACCUSED: [Interpretation] Yes.  Thank you, Your Honour.  I

11    have some very brief matters to add.  I don't know whether you received

12    the summary from the last Status Conference on the 24th of November, which

13    dealt with my health condition.  I myself did not receive the minutes or

14    the transcript from that Status Conference, but let me reiterate what I

15    said back then.  That I am fully capable, that I am completely healthy to

16    follow any proceedings and that it is absolutely not necessary to raise

17    this issue again.  I have had five interviews so far, and as far as I'm

18    concerned this question has been resolved.  But I see that it's being

19    raised again and again, so let me repeat that there are no grounds

20    whatsoever to raise the issue of my ability to follow the trial.  I am

21    fully healthy and able to follow the proceedings.  Thank you.

22            JUDGE ORIE:  Thank you, Mr. Trbic.  Then I have a few final

23    matters.

24            First of all, the Chamber would like to hear from the parties

25    whether there would be any objection against disclosing to Trial Chamber

Page 97

 1    II the full transcript of today's hearing because there -- a few things

 2    have been said which might be relevant for a decision on competence.

 3            Yes, Mr. Piletta-Zanin?

 4            MR. PILETTA-ZANIN: [Interpretation] No objection, Your Honour.

 5            MS. SOMERS:  We see no issue, Your Honour.

 6            JUDGE ORIE:  Yes.  The Chamber will then consider to lift the

 7    confidentiality, but only in respect of Trial Chamber II of the whole of

 8    the transcript today.

 9            Then we -- the Chamber has noticed --

10            MS. SOMERS:  I'm sorry, Your Honour, but this is only as to

11    Chamber, this is not as to other counsel in the Chamber.

12            JUDGE ORIE:  Only to the Chamber.

13            MS. SOMERS:  Thank you.

14            JUDGE ORIE:  Yes, because other accused are not involved in any

15    way.  So just for -- for the bench.  Then the Chamber can imagine that

16    there would be a need to make further submissions, although it might well

17    be that such need does not exist.  If the Registry would like to give any

18    follow-up to further developments in relation to what has been submitted

19    in the 30th of November submission, the Registry will have an opportunity

20    to do so until this Friday.  Because, in the 30th of November submission,

21    some further approaches and some further processes are announced, if this

22    results in anything the Chamber would like to receive the submissions by

23    this Friday.

24            MS. SOMERS:  That would not be not a -- an ex parte matter, it

25    would be --

Page 98

 1            JUDGE ORIE:  No, it would be confidential to the parties.  And of

 2    course we will -- we do not know whether there is any need to do so, but

 3    we will look at the content of it, whether there is a need to give any

 4    further opportunity to the parties to comment on that.

 5            Then as far as the representative of Bosnia and Herzegovina is

 6    concerned, Ms. Popadic, if you feel that you have not had sufficient time

 7    to study the submissions made by Mr. Piletta-Zanin of Friday, the 12th of

 8    January, the French ones, then if at all you want to make further

 9    submissions on that, you have an opportunity to do so until this Friday.

10            This then concludes this -- this 11 bis hearing.

11            Yes, Mr. Piletta-Zanin.

12            MR. PILETTA-ZANIN: [Interpretation] Your Honour, a suggestion or

13    an idea.  You suggested that the Registrar -- or the Registry might do

14    something.  Could we also ask under these circumstances, could we also ask

15    the Registry to tell us about the situation in terms -- what happens when

16    a detainee is set free after having spent some time in detention?

17            JUDGE ORIE:  What do you mean by what happens then?  Whether

18    he'll -- he will be compensated, whether he'll be free to -- I mean what

19    terms?

20            MR. PILETTA-ZANIN: [Interpretation] No, according to the law that

21    prevailed before in Bosnia and Herzegovina, the code of procedure at the

22    time, a detainee would be automatically set free after a certain period of

23    time before the judgement, so I would like to have some clarification on

24    that point.

25            JUDGE ORIE:  We will consider whether we will invite the Registrar

Page 99

 1    to make any such submissions -- or the representatives of the -- of the

 2    government of Bosnia and Herzegovina.  And if spontaneously you would like

 3    to make any further submissions on that, you are invited to do this also

 4    by this Friday.

 5            Now this concludes this 11 bis referral hearing.  We stand

 6    adjourned.

 7                           --- Whereupon the hearing adjourned at 12.30 p.m.