Page 1

1 Friday, 6 May 2005

2 [Rule 77 Hearing]

3 [Open session]

4 --- Upon commencing at 9.03 a.m.

5 JUDGE ROBINSON: Will the Registrar call the case, please.

6 THE REGISTRAR: Yes, Your Honour. Good morning, Your Honours.

7 This is case number IT-02-54-R77.4, the contempt proceeding against

8 Mr. Kosta Bulatovic.

9 JUDGE ROBINSON: And the appearance.

10 MR. BOURGON: Good morning, Mr. President; good morning, Your

11 Honours. On behalf of the Respondent this morning, Stephane Bourgon,

12 counsel from Montreal, Canada, accompanied by Ms. Jesenka Residovic as

13 interpreter and legal assistant. Thank you, Mr. President.

14 JUDGE ROBINSON: And pursuant to Rule 77, this matter is being

15 prosecuted by the Chamber.

16 When the Chamber last met to consider this matter some two weeks

17 ago, we adjourned to give time to Mr. Bulatovic to consider the matter and

18 to take advice. I am now going to put the charge to Mr. Bulatovic, who

19 will respond guilty or not guilty.

20 Normally you would stand, Mr. Bulatovic, but I see that you are

21 not well, so you may sit.

22 Kosta Bulatovic, born in 1937 in the village of Dobrusa in

23 northern Metohija, is charged that on 19 and 20 April 2005, being a

24 witness before Trial Chamber III of the International Tribunal, he

25 knowingly and wilfully interfered with the administration of justice by

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1 contumaciously refusing to answer questions asked by the Prosecution

2 contrary to Rule 77(A)(i) of the Rules.

3 How do you plead to that, Mr. Bulatovic; guilty or not guilty?

4 THE RESPONDENT: [Interpretation] Not guilty.

5 JUDGE ROBINSON: Thank you. You may sit.

6 The factual foundation for the charge is set out in the transcript

7 for the 19th, pages 38591 to 38595, and on the 20th at page 38616, and

8 those pages clearly show that on both occasions it was explained to

9 Mr. Bulatovic that by refusing to answer questions put to him by the

10 Prosecutor in cross-examination, he was exposing himself to a charge of

11 contempt. On both occasions, Mr. Bulatovic declined to answer. The

12 second occasion he stated that he was maintaining his position. That's

13 the factual foundation for the case.

14 Mr. Bourgon.

15 MR. BOURGON: Thank you, Mr. President. Mr. President, with your

16 leave this morning, before the presentation of the case for the Defence of

17 Mr. Bulatovic, there are some issues that I would like to raise with the

18 Trial Chamber. The first such issue, Mr. President, is related to the

19 rescheduling order, which was issued by the Trial Chamber on the 4th of

20 May. Pursuant to this order, the Trial Chamber rescheduled the

21 proceedings against Mr. Bulatovic until this morning, and the order states

22 that this was at the request of counsel for the Respondent because of

23 difficulties in preparing to defend against the charge of contempt which

24 were engendered by the lack of certainty regarding the legal

25 representation of the Respondent.

Page 3

1 Mr. President, I'm not quite aware of the discussions which led to

2 this order being issued, and I don't want to make this situation more

3 difficult than it really is, but nevertheless, I would like to state for

4 the record that when this order was issued, I was not assigned to

5 represent Mr. Bulatovic, and I did not request this adjournment. More

6 importantly, I would like to avoid causing any prejudice to Mr. Bulatovic,

7 to the Respondent, on the basis of this alleged uncertainty concerning his

8 legal representation.

9 JUDGE ROBINSON: Let me say immediately that no prejudice, no

10 question of prejudice could arise. No question of prejudice could arise

11 at all. Nothing turns on this, Mr. Bourgon. Let us proceed.

12 MR. BOURGON: I thank you, Mr. President.

13 The next issue I would like to raise concerns the notice

14 concerning the presentation of the case for the Defence, which I filed on

15 behalf of Mr. Bulatovic yesterday, on the 5th of May. At paragraph 4 of

16 this notice, I stated that the Defence was considering whether to present

17 a preliminary motion in relation to a potential witness with whom the

18 Defence was not able to meet. First, I would like to confirm that of

19 course the words "preliminary motion" in this paragraph did not refer to a

20 preliminary motion pursuant to Rule 72, and I'm quite certain that the

21 Trial Chamber picked that up and understood that what I meant really was

22 an application which I wanted to make before the commencement of the case

23 for the Defence pursuant to Rule 73, and I apologise for this mistake.

24 Nevertheless, Mr. President, the problem encountered with this

25 potential witness is indeed very real. Without going into too many

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1 details at this time, I would simply like to say that this witness is a

2 staff member of the International Tribunal whom I was not permitted to

3 meet on the basis that this witness is immune from the legal process

4 pursuant to the United Nations Convention on the Privileges and

5 Immunities, and that only the Secretary-General of the United Nations was

6 able to consent or to waive this person's immunity and allow the person's

7 testimony.

8 Now, what is important here is that this person, this witness, had

9 a conversation with the Respondent concerning the conditions of his

10 testimony before the Trial Chamber in this case, and I am of the view that

11 this witness may offer evidence which is likely to be of assistance to the

12 Trial Chamber in adjudicating on the contempt issues against the

13 Respondent. For this reason, Mr. President, I'm still considering whether

14 to make this application, and I will get back to this issue at a later

15 stage in these proceedings.

16 JUDGE ROBINSON: You're familiar with Article 30 of the Statute.

17 MR. BOURGON: Yes, Mr. President.

18 JUDGE ROBINSON: The witness falls within what section of that

19 article? Is it paragraph 3, which relates to the staff of the Prosecutor

20 and the Registrar enjoying the privileges and immunities accorded to

21 officials of the United Nations under Articles 5 and 6 of the 1946

22 Convention?

23 MR. BOURGON: I am aware of this provision, Mr. President, and I

24 don't wish to enter into the specific topic at this time. However, there

25 is --

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1 JUDGE ROBINSON: I'm raising it because it may be that I can

2 determine the issue if I have enough information.

3 MR. BOURGON: I'm sorry, Judge, I did not hear what you said, if

4 you were addressing me. I'm not sure.

5 JUDGE BONOMY: I wasn't addressing you, Mr. Bourgon.

6 MR. BOURGON: Thank you, Your Honour. I apologise.

7 JUDGE ROBINSON: Yes. I was asking if you have -- if you have

8 information about the person, too, because if the person doesn't qualify,

9 then the issue doesn't arise at all.

10 MR. BOURGON: Mr. President, in this particular case, I was

11 contacted by a representative of the Registrar of the International

12 Tribunal, telling me that the position of the Registrar was that this

13 person was covered by this convention. Now, whether I agree or not is the

14 subject of my application if and when I make it.

15 JUDGE BONOMY: Yes. What I understand you to be saying is that

16 once we've heard the rest of the case, you may decide to seek an

17 adjournment because you want to lead another witness. Is that the

18 position?

19 MR. BOURGON: In part. In part, Your Honour, you're right, but

20 not exactly, because I need to get into my next issue, and my next issue

21 will determine whether I need to seek -- to see this witness or not. But

22 maybe there's a way to avoid having to seek an adjournment to hear this

23 witness, and that's why I'd like to get leave from the Trial Chamber to

24 get into my next issue, which I believe is a much more important issue.

25 JUDGE ROBINSON: Yes. But I'll just tell you that it is the -- in

Page 6

1 my view, it's the Court, it's the Chamber which is the final arbiter of

2 the -- of questions like this under Article 30.

3 MR. BOURGON: I understand, Your Honour. May I, with your

4 permission, proceed with the next issue, and then we can come back to this

5 one later on? I just wanted to make -- to make it clear that what I was

6 referring to when I filed my notice with respect to the presentation of

7 the case for the Defence, and provide the Trial Chamber with what I was

8 referring to.

9 JUDGE ROBINSON: Yes, proceed.

10 MR. BOURGON: Thank you, Mr. President. The next issue I'd like

11 to raise at this time, having spent some time preparing for this case, I

12 have come to the conclusion that it is necessary for me to present an oral

13 preliminary motion pursuant to Rule 72, challenging the jurisdiction of

14 the Trial Chamber to adjudicate on these contempt proceedings. And before

15 I do so, I would like to provide the Trial Chamber with my respectful

16 submissions and the rationale for making such an application at this time.

17 First, Mr. President, as the Trial Chamber will remember, on the

18 20th of April, I made an application for the Trial Chamber to request that

19 these proceedings be transferred to another Chamber, a request which was

20 denied by a majority decision.

21 On the 27th of April, I also filed a motion requesting

22 certification of this decision with a view to filing an interlocutory

23 appeal, which was also denied on the 3rd of May, 2005.

24 I note carefully, Mr. President, that in its decision denying my

25 request for certification, the Trial Chamber stated that the legal issues

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1 discussed in my application of 27 April were beyond the scope of the

2 limited proceedings against the Respondent. Accordingly, I will not

3 attempt to raise those issues de novo. However, there remains one issue

4 which I had some difficulty coming to terms with.

5 In my view, Mr. President, I respectfully submit that the Trial

6 Chamber erred in law when it decided to continue the testimony of the

7 Respondent in the absence of the accused Milosevic, and I cannot avoid the

8 conclusion that without this alleged error of law by the Trial Chamber, my

9 client would never have been the object of contempt proceedings and he

10 would not be here this morning.

11 Accordingly, Mr. President, there must be a way for my client to

12 obtain redress of this situation before the Trial Chamber proceeds with

13 the contempt charges. It then occurred to me that there were two choices,

14 or two possible options, which I then reduced to only one on the following

15 basis: The relevant question I put to myself was the following: Is it a

16 defence for the Respondent to say that he was not in contempt of Court

17 because the Trial Chamber erred in law in going ahead with his testimony

18 in the absence of the accused Milosevic? If the answer to this question

19 is yes, then redress can be obtained by the Respondent as part of the

20 contempt proceedings. If the answer to this question is no, then if this

21 is not a defence which is open to the Respondent in these proceedings,

22 then redress must be obtained elsewhere.

23 Having considered the matter and reviewed the transcript of the

24 hearing held on 20 April, and having sought the advice of other Defence

25 counsel, because I must admit I was looking for what the real answer

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1 should be, I concluded that, in my view, it was not a defence, because the

2 Trial Chamber did make a ruling on the issue, namely that it could proceed

3 with the testimony of the Respondent in the absence of the accused

4 Milosevic and that it could not review its own decision. Consequently,

5 the only way for the Respondent to seek redress of this situation before

6 the commencement of the contempt proceedings would be to challenge the

7 jurisdiction of the Trial Chamber on the following basis: One, if the

8 Trial Chamber erred, it implied that it could not proceed with the

9 testimony of the Respondent. Two, if it could not proceed with the

10 testimony of the Respondent, then its order on contempt of 20 April is

11 ultra vires of its inherent powers. And three, if the contempt order of

12 20 April is indeed ultra vires of the inherent powers of the Trial

13 Chamber, then this Trial Chamber does not have jurisdiction to proceed

14 with the contempt proceedings.

15 In light of the above, Mr. President, this is the application I

16 would like to make at this time; namely, to challenge the jurisdiction of

17 the Trial Chamber pursuant to Rule 72, a preliminary motion with the exact

18 words "preliminary motions" underlined, on the basis of an error of law.

19 With your leave, Mr. President, I would proceed to make this

20 application.

21 JUDGE BONOMY: I'm afraid I don't understand the submission.

22 You've conceded that the Trial Chamber can't review its own decision, and

23 therefore you have no redress by that route, and then you say if the Trial

24 Chamber erred, it implies it could not proceed with the testimony of the

25 Respondent; if it could not proceed with the testimony, then its order is

Page 9

1 ultra vires. That's you going back again to the question of whether the

2 decision to proceed with the testimony was correct or not. So you're back

3 to the same question again. Now, this sounds like gobbledegook to me.

4 Can you clarify it?

5 MR. BOURGON: Indeed, Your Honour. This is exactly the type of

6 questions I was playing around with not only last night but discussing

7 with other counsel.

8 JUDGE BONOMY: This is futile, Mr. Bourgon, when the issue of

9 whether or not it was right to proceed with the trial is one for the

10 Appeals Chamber, if this ever gets to the Appeals Chamber. It's beyond us

11 now to make that decision, to reverse that decision. We made it, and it's

12 over. And the question then is whether the witness was bound to answer

13 the questions put. And indeed it may even be that if we were wrong in

14 that, it may even be - I don't know the answer to this at the moment, it

15 will have to be resolved elsewhere if it arises - but it may even be that

16 even if we were wrong, he was still bound to answer the questions. That

17 that's how courts ought to be respected.

18 MR. BOURGON: If I may respond, Your Honour. There is a

19 difference, in my view, between the Respondent having to go through

20 contempt proceedings, being found either guilty or not guilty, or whether

21 the initial findings of contempt are vacated or not and then going to the

22 Appeals Chamber to seek redress of that decision, of that ruling, and the

23 Respondent seeking before, before this proceeding, whether there should

24 have been contempt proceedings in the first place.

25 Now, what you highlight, Your Honour, is exactly the point I wish

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1 to raise. I respectfully submit that the Trial Chamber did not have

2 jurisdiction to issue that order because there was an error of law in its

3 decision to continue. If, as Your Honour says, the Trial Chamber is not

4 able to continue with its -- to reverse its own decision or to review,

5 then it must go to the Appeals Chamber because it's a matter of

6 jurisdiction at this stage and not after the proceedings when a ruling has

7 been made by the Trial Chamber, because it is an issue of jurisdiction,

8 and pursuant to Rule 72, there is an appeal as of right, and that's the

9 difference.

10 Now, in my respectful submission, Mr. President --

11 JUDGE BONOMY: But at the end of the process is the appeal of

12 right. This is so we get the job done, that we don't spend all our time

13 going round in circles like this, retreading the same ground several

14 times.

15 MR. BOURGON: Your Honour, I'm sorry to come back on this issue,

16 but the -- there is a difference here, because the complete issue of these

17 proceedings, these contempt proceedings, the underlying issue, that was my

18 first submission I made when I first addressed Your Honours on the 20th of

19 April, is that there is a direct link between that decision of the Trial

20 Chamber and the contempt proceedings. If that decision is erroneous,

21 there should not be contempt proceedings. That's a way different from

22 vacating a finding of contempt after such proceedings.

23 Now, in my respectful submission, Your Honour, I believe that this

24 issue, the best way to address this, and there is ample discussion in the

25 transcript of the 19th of April, whereas all the parties in the courtroom,

Page 11

1 namely court assigned counsel, counsel for the Prosecution, and again in

2 my respectful submission the Trial Chamber, agreed that there was an issue

3 here, and the issue is: Does this decision from the Appeals Chamber allow

4 us to do this? And there was a consensus that detailed submissions would

5 be required in order to arrive at a decision.

6 I believe that the best way to proceed in such a case would be for

7 the parties in the real trial, the trial of Mr. Milosevic, to take this

8 issue, to make their detailed submissions, and after that, once the Trial

9 Chamber has ruled and made its decision, because it is very important to

10 note that the Trial Chamber decision does say that it is up to the Trial

11 Chamber to rule when the reshuffling of roles would take place, so it is a

12 decision for the Trial Chamber to make. The problem is that in this case,

13 the Trial Chamber made this decision only for this witness, and the Trial

14 Chamber said that at -- I don't have the exact line because I've only got

15 the transcript with the -- but there's a specific place in the transcript

16 where the Trial Chamber says this decision applies only to this witness.

17 So that's the issue that I'm -- that I have trouble with this morning.

18 So I respectfully propose two courses of action, the first one

19 being there's an adjournment until in the real trial, in the main trial,

20 this issue has been addressed, and then, depending on the conclusions, the

21 Trial Chamber may respectfully decide whether to continue or not with

22 these proceedings; or second option, I can do my application pursuant to

23 Rule 72, and even then there would be two options: Either the Trial

24 Chamber says it cannot rule on the motion and there's an appeal as of

25 right to the Appeals Chamber on this issue, or the Trial Chamber does rule

Page 12

1 on the motion, and in any event, if it denies the motion, there will still

2 be an appeal as of right.

3 JUDGE ROBINSON: There may be a question, Mr. Bourgon, as to

4 whether the provisions of Rule 72 applicable to an accused in relation to

5 preliminary motions would apply in a case like this.

6 MR. BOURGON: My --

7 JUDGE ROBINSON: The Rules apply mutatis mutandis, and it's

8 occurring to me that there may be a question as to whether these are the

9 kind of proceedings which are amenable to preliminary motions.

10 MR. BOURGON: In my respectful submission, Mr. President, Rule 72

11 does apply to this case and to this accused. Contempt proceedings before

12 the International Tribunals, some people have argued in the past that

13 there was no jurisdiction whatsoever for Trial Chambers to take upon -- to

14 take on contempt proceedings. This has been made clear by the Appeals

15 Chamber that contempt proceedings are part of the inherent powers of the

16 Trial Chamber, and this matter is settled.

17 The consequences of a ruling pursuant to Rule 77 can go up to

18 seven years in detention, or imprisonment, to be more precise, or to

19 100.000 euros fine. Now, these are very heavy consequences which make an

20 accused --

21 JUDGE KWON: Mr. Bourgon, sorry to interrupt you. You yourself

22 said today that you made an application for the Trial Chamber to request

23 that these proceedings be transferred to another Chamber. That request

24 was denied by this Chamber. Did that decision not deal with the

25 jurisdictional issue you are raising now?

Page 13

1 MR. BOURGON: Your Honour, I don't believe that this decision

2 dealt with the jurisdiction issue. I believe that the jurisdiction issue

3 at this stage is that what the Trial Chamber decided is that it would not

4 transfer the issue to another Chamber because there was, I believe - and

5 this is not in writing, I believe - that pursuant to the jurisprudence of

6 this Tribunal, the Trial Chamber held that there was not a reasonable

7 apprehension of bias sufficient to transfer the case and that there was no

8 doubt on the impartiality of the Chamber.

9 Now, to me, Your Honour, this is completely different from the

10 jurisdiction issue.

11 JUDGE KWON: Speaking for myself, I don't see much difference, but

12 can I clarify one thing. When you mentioned that decision, you said that

13 your request was denied by a majority decision. That is a

14 misunderstanding. It was a unanimous decision. A dissenting opinion was

15 there only as to whether to allow the adjournment or not.

16 MR. BOURGON: I thank Your Honour for these precisions.

17 Unfortunately, this is something that I did not know, and this was the

18 purpose, if the Chamber will recall it, at the end of the hearing, when

19 the decision was rendered to postpone until the 5th of May, I stood up and

20 I asked the Trial Chamber, and if I remember correctly, my exact words

21 were, "Am I to understand that this also is a decision that deals with the

22 fact that there will not be a transfer to another Chamber?" or words to

23 that effect. And my recollection was that the Trial Chamber then said,

24 "Well, sort of, and there can be preliminary motions," or something like.

25 But I don't want to bind myself into exact words, but I did raise the

Page 14

1 issue because I was very interested in knowing whether the majority

2 decision had to do only with the postponement and also the transfer to

3 another Trial Chamber or if it was only to one or two decisions, and I did

4 not know this, Your Honour. So I thank you for those precisions. And

5 with all due respect, I don't think it changes my application this

6 morning.


8 MR. BOURGON: Whether that decision, Mr. President, was a majority

9 decision or a unanimous decision, if there is a jurisdiction issue

10 pursuant to Rule 72, there is an appeal as of right to the Appeals

11 Chamber.

12 Now, that's what I would like to avoid by saying why not let the

13 main -- the parties in the main trial argue the issue of trial in absentia

14 and the scope of what can be done by the Trial Chamber on the basis of

15 what the Appeals Chamber said and then apply this to the contempt

16 proceedings rather than use the contempt proceedings to raise an issue

17 that is way beyond what is in the interest of Mr. Bulatovic but

18 nevertheless is right to raise these issues at this time.

19 JUDGE ROBINSON: We'll consider the matter.

20 [Trial Chamber confers]

21 JUDGE ROBINSON: Mr. Bourgon, the Chamber's ruling is that it's

22 not open to you to make a preliminary motion. In the circumstances of

23 this case, you're disqualified to do so by virtue of Rule 72(D), and you

24 must proceed with your case.

25 MR. BOURGON: Thank you, Mr. President. Mr. President, with all

Page 15

1 due respect, I need to ask the Trial Chamber to reconsider this decision

2 on the following basis: If we look at Rule 72(D), Mr. President, there

3 would be -- no contempt proceedings would be justified to go under Rule

4 72. And I believe that the object and purpose of Rule 72 --

5 JUDGE BONOMY: Only on -- 72(D) is confined to jurisdiction, which

6 is the point you take.

7 MR. BOURGON: Your Honour, the -- if we look at 72(D), it applies

8 to 72(A)(i), challenge jurisdiction, and also (B)(i), which takes it that

9 someone accused of contempt could never argue the issue of jurisdiction

10 before a Trial Chamber.

11 Now, I respectfully submit, Mr. President and Your Honours, that

12 barring - and I'm looking for the exact word - a person accused --

13 JUDGE ROBINSON: Mr. Bourgon. Mr. Bourgon, I'm sorry that I have

14 to interrupt you. We have given a ruling that it is not open to you in

15 the circumstances of this case to make a preliminary motion, and we have

16 cited the provision which precludes you from doing so, and I've indicated

17 that you must proceed with your case for the Respondent if you have one.

18 MR. BOURGON: Thank you, Mr. President.

19 JUDGE ROBINSON: We are not reconsidering the matter.

20 MR. BOURGON: Thank you very much, Mr. President. I will move on

21 to the case for the Defence, and I would simply ask for a brief

22 adjournment to meet with my client, and the object of this short

23 adjournment is to discuss the issue of the application concerning the

24 witness or the staff member from the Tribunal which I was not able to meet

25 and whether I need to make this application at this time or not.

Page 16

1 JUDGE ROBINSON: You have two other witnesses, don't you?

2 MR. BOURGON: I do, Mr. President.

3 JUDGE ROBINSON: Well, start with those witnesses.

4 MR. BOURGON: Well, Mr. President, with all due respect, they -- I

5 understand that the Trial Chamber in this case is both prosecuting and

6 adjudicating on the contempt proceedings, but whether I begin with my case

7 and stop later to ask for an adjournment is a decision I should be able to

8 make before I begin with my Defence.

9 JUDGE BONOMY: Can I ask you what the Defence is?

10 MR. BOURGON: Defence of mens rea, Your Honour.

11 JUDGE BONOMY: But mens rea in this case is a question of whether

12 it was done deliberately or not. If you deliberately refuse to answer a

13 question, you have the mens rea, surely.

14 MR. BOURGON: Your Honour, of course I'm not entering into the

15 argument stage of the case for the Defence, but it is a precedent before

16 this own Trial Chamber, Your Honour. There is a precedent with Witness

17 K12. And I don't know if I need to go into closed session and to discuss

18 the issue of K12, but the issue of mens rea was discussed in those

19 proceedings.

20 [Trial Chamber confers]

21 JUDGE BONOMY: It appears that you are going to have an

22 adjournment to consult with your client. May I just make one comment

23 before you do so: There is no obligation in this Tribunal for an accused

24 person or a respondent in a case like this to be the first witness if

25 evidence is to be led about the case, but you may wish to consider the

Page 17












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13 English transcripts.













Page 18

1 value that might be placed on the evidence, if Mr. Bulatovic is to give

2 evidence, depending on when he gives it in relation to obviously having

3 heard other evidence or not having heard other evidence before he gives

4 his own account.

5 JUDGE ROBINSON: We will adjourn for ten minutes. We will be back

6 at ten minutes to ten.

7 --- Break taken at 9.40 a.m.

8 --- On resuming at 9.52 a.m.

9 JUDGE ROBINSON: Mr. Bourgon.

10 MR. BOURGON: Thank you, Mr. President. In the interests of

11 justice, I will proceed immediately with my first witness, and I would

12 ask, Mr. President, that following or pursuant to your advice, that I be

13 able, after the two first witnesses, to consider my application for this

14 other witness. I don't think I will need to make this application

15 concerning this witness I was not able to meet, and I think it will be

16 sufficient enough for me to hear these two witnesses. And my first

17 witness, Mr. President, is Mr. Dragutin Milovanovic.

18 JUDGE ROBINSON: Let him be called.

19 [The witness entered court]

20 JUDGE ROBINSON: Let the witness make the declaration.

21 THE WITNESS: [Interpretation] I solemnly declare that I will speak

22 the truth, the whole truth, and nothing but the truth.

23 JUDGE ROBINSON: You may sit.


25 [Witness answered through interpreter]

Page 19

1 JUDGE ROBINSON: Yes, Mr. Bourgon.

2 MR. BOURGON: Thank you, Mr. President.

3 Examined by Mr. Bourgon:

4 Q. Good morning, sir. As you --

5 A. Good morning, Mr. Bourgon.

6 Q. -- have been informed, you've been called here this morning to

7 testify in the contempt proceedings which have been initiated against a

8 Mr. Bulatovic. For even though I have had the benefit of meeting you

9 prior to this hearing, for the benefit of the transcript, I wish to

10 introduce myself. My name is Stephane Bourgon and I am accompanied this

11 morning by Ms. Jesenka Residovic, and together we represent the

12 Respondent, Mr. Bulatovic.

13 I have a few general questions to ask you to begin with, and I

14 would like you to state your name, your age, and your place of birth for

15 the benefit of the Trial Chamber.

16 A. My name is Dragutin Milovanovic. I was born on the 24th of

17 August, 1957, in Kosovo Polje.

18 Q. And what is your occupation at the present time?

19 A. I'm an economist graduated. At the moment I am on the labour

20 exchange because I don't have a job.

21 Q. Do you know Mr. Bulatovic, the Respondent in these proceedings;

22 and, if so, since when have you known him and what is your relationship

23 with Mr. Bulatovic?

24 A. I have known Mr. Bulatovic since my childhood. We're neighbours.

25 They're just three houses between our two houses. I grew up next to

Page 20

1 Mr. Kosta Bulatovic, and our relationship throughout since I first knew

2 him are very good, we're very close, and for that reason I have come here

3 to help Mr. Bulatovic here, in view of his health situation.

4 Q. Thank you. Can you explain why you are in The Hague today and why

5 you were in The Hague last week to accompany Mr. Bulatovic?

6 A. Last time and this time as well, we have come here for

7 Mr. Bulatovic to be able to present his testimony, to tell the truth as he

8 knows it in the case against President Milosevic here. And I'm here with

9 him, once again let me repeat the reason, for the sole reason of his poor

10 health. Not only what you can see, that is to say that he needs a walking

11 stick to walk with, but he has an ailing heart as well. So he cannot

12 dress himself without help or do anything else. So I am there to help him

13 out in every way.

14 And we have come here and invested every effort to be before this

15 Tribunal and to carry out our obligation, and that is for Mr. Kosta

16 Bulatovic to tell the truth in the trial against President Milosevic.

17 Q. Thank you. And who selected you for this assignment to accompany

18 Mr. Bulatovic for his testimony in The Hague?

19 A. Kosta Bulatovic chose me.

20 Q. And considering the fact that you mention being very close to

21 Mr. Bulatovic, are you an advisor to Mr. Bulatovic?

22 A. No. No. I'm not an advisor to Mr. Bulatovic. I am his personal

23 friend, his good friend, somebody who he can be -- feel free with and act

24 freely, and I can help him with everything he needs, all his physical

25 needs and others, and that is the only reason that I agreed to come here

Page 21

1 with Mr. Bulatovic last time and this time too.

2 Q. When did you first arrive in The Hague in order to prepare for the

3 testimony of Mr. Bulatovic before this Tribunal?

4 A. We arrived in The Hague for the first time on the 11th of April.

5 It was sometime in the afternoon.

6 Q. And during the period between the 11th of April and the day that

7 Mr. Bulatovic was called to testify before this Trial Chamber, were you

8 always with Mr. Bulatovic, and what exactly did you do with Mr. Bulatovic

9 during this period?

10 A. Well, everywhere where I was able to go and where I had access and

11 was allowed to be and accompany Mr. Bulatovic, which means we were in the

12 hotel. I just wasn't with Mr. Bulatovic on two occasions that day. The

13 day we arrived in The Hague and the following day Mr. Bulatovic was taken

14 over by the Victims and Witness Unit, and they took him to the

15 Scheveningen detention centre, for -- unit, for consultation and

16 preparation with Mr. Milosevic, and I didn't have access there.

17 Q. Now, you mentioned that Mr. Bulatovic went to the detention

18 centre. What was the purpose for him to go to the detention centre, and

19 did you accompany him during those meetings?

20 A. I repeat once again, I didn't accompany him to those meetings.

21 That wasn't allowed. And the reason for his going to the Detention Unit

22 was to prepare for his testimony with Mr. Milosevic, President Milosevic;

23 that is, to make -- to agree upon how that was going to be conducted.

24 Q. [Previous translation continues] ... Bulatovic, what was discussed

25 between him and the accused Mr. Milosevic in this case?

Page 22

1 A. Well, not about the details, no. Very little about that both --

2 on both occasions, the first time and the second time. What Mr. Bulatovic

3 told me and what I was interested in hearing was that President Milosevic

4 is of good health and that in his presence, while he was with the

5 president, they took his blood pressure, and he told me that the blood

6 pressure was very good, 140 over 90, the systolic and diastolic. So we

7 were both very happy that that was the case.

8 Q. Thank you. Now, further to these meetings between Mr. Bulatovic

9 and Mr. Milosevic, did Mr. Bulatovic discuss with you his upcoming

10 testimony before this Trial Chamber; and if so, what did he tell you about

11 his testimony?

12 A. Well, we didn't discuss the details at all, either before his

13 testimony or any time. The only thing he told me, and Mr. Bulatovic kept

14 repeating this, was that he had a great desire to appear as soon as

15 possible to be able to tell the truth as he saw it and to try and help

16 President Milosevic in his Defence case.

17 Q. Can you tell us a few more information concerning the health of

18 Mr. Bulatovic, and especially the way he felt during the time preceding

19 his testimony before this Trial Chamber.

20 A. Well, I think that the Trial Chamber can assess the health

21 situation of Mr. Bulatovic itself. In 1999, Mr. Bulatovic in fact had a

22 serious traffic accident which left him an invalid, and he is unable to

23 walk without the aid of crutches, and it is very difficult for him to

24 negotiate stairs without anybody -- somebody's help.

25 However, what you can't see, what isn't visible on the outside is

Page 23

1 that Mr. Bulatovic has had several operations and that his spine has been

2 impaired, and Mr. Bulatovic has an ailing heart, as I said, so that very

3 often he feels numb in his legs and arms, and on one occasion I had to

4 give him massage on his legs and arms to help with his circulation.

5 However, Mr. Bulatovic had just one single wish, to fulfil his obligation,

6 the obligation he made before the associates of Mr. Milosevic when they

7 told him that the president had included him on his list of possible

8 witnesses. So this was a duty and an honour for him, and that's how he

9 saw it, and that's why he came here, notwithstanding his poor health, to

10 carry out that duty. He never had a dilemma in that respect.

11 Q. Now, as you probably know, Mr. Bulatovic testified during three

12 days before this Trial Chamber. Where were you during the first day of

13 his testimony?

14 A. On the first day of his testimony, I was here in the public

15 gallery, sitting behind him, behind his back, and I was able to listen to

16 his testimony. And when there was a break, I would leave the public

17 gallery and go and meet him and go into the room set aside for witnesses,

18 and that's where we would spend the break. And then when the next session

19 started, he would come into the courtroom, and I would go to the public

20 gallery again and listen to his testimony.

21 Q. And following this first day in court, did you discuss with

22 Mr. Bulatovic his testimony or did he discuss his testimony with you in

23 the evening or following this testimony?

24 A. No, we didn't discuss the details because I followed it in court.

25 What we talked about was what Mr. Bulatovic repeated all the time, and he

Page 24

1 kept asking me whether he had perhaps omitted to say something, because I,

2 together with Mr. Bulatovic, lived in Kosovo Polje and in the general area

3 of Kosovo and Metohija, and I know about the things that Mr. Bulatovic

4 testified about to a considerable extent. So he just kept asking me

5 whether I thought he had left something out that he should have said and

6 could I make any suggestions along those lines. But I said that all the

7 things he said were excellent but not enough; you could go on and on

8 saying much more.

9 JUDGE KWON: Mr. Bourgon, can I ask one thing. Do you follow the

10 witness's evidence in B/C/S?

11 MR. BOURGON: I don't, Your Honour. I follow it from a

12 transcript.

13 JUDGE KWON: But my question is because you start to ask questions

14 before -- while the translation is being continued.

15 MR. BOURGON: I apologise, Your Honour. I will wait. I thought

16 that when the transcript in English was over I could start asking my

17 questions, but I will make a longer pause. I apologise, Your Honour.

18 JUDGE KWON: Thank you.

19 JUDGE BONOMY: Can I take advantage of the interruption to make

20 one thing clear from my point of view, Mr. Bourgon. If the point of this

21 evidence is to try to establish that Mr. Bulatovic genuinely believed that

22 the right thing to do was not to answer the questions, then you're pushing

23 at an open door as far as I'm concerned. And what another person might

24 have heard from him is far less demonstrative of that than what actually

25 happened here.

Page 25

1 MR. BOURGON: I take -- I take your words, Your Honour. The

2 evidence that I intend to lead through this witness goes further than this

3 issue, and I believe, Your Honour, that we will come to the point more

4 important at this stage.

5 Q. My next question to you is that whether you were present on the

6 19th of April during the second day of the testimony of Mr. Bulatovic and

7 whether you saw what happened on at that day.

8 A. Yes.

9 Q. And following what happened in court on the 19th of April, on that

10 day, did you have a chance to discuss what happened with Mr. Bulatovic,

11 and did he tell you anything about his testimony?

12 A. I had the opportunity of talking to Mr. Bulatovic. He was

13 surprised with the extent of the lack of understanding on the part of the

14 Trial Chamber to his conduct here. Then and now, and when he was called

15 to come to The Hague before we actually came, when President Milosevic was

16 first of all deprived of his right to defend himself and when there were

17 attempts from Mr. Kay's offices or from the Tribunal to call witnesses and

18 to ask them whether they would testify without the presence of

19 Mr. Milosevic, at the time he clearly stated that he would not and that

20 all he would do was to agree to come to be a witness here in the presence

21 of Mr. Slobodan Milosevic, because he was his witness, a witness called by

22 him.

23 So that on that day, since President Milosevic did not appear in

24 court, and as he followed the trial proceedings on a regular basis and

25 that it happened on a number of occasions that Mr. Milosevic intervenes

Page 26

1 during a cross-examination and very often this has to do with

2 interpretation, which is often corrected by Mr. Milosevic, and in view of

3 the fact that President Milosevic has the right to intervene during the

4 conduct of a cross-examination, he thought that he was -- he would be

5 handicapped without Mr. Milosevic's or President Milosevic's presence, and

6 that is why he asked that President Milosevic be present in the courtroom

7 during his testimony so that his testimony could be of as high a level as

8 possible.

9 JUDGE BONOMY: Could I follow up on that answer. You've mentioned

10 something of some interest in general terms there.

11 You were told that when Mr. Kay was trying to arrange evidence,

12 the position that was presented to Mr. Bulatovic was that Mr. Milosevic

13 would not be in court. Is that correct?

14 THE WITNESS: [Interpretation] No, I didn't say that. I -- the

15 substance of what I wanted to say, of the core of the invitation --

16 JUDGE BONOMY: Just hold on. The words were "and when there were

17 attempts from Mr. Kay's offices or from the Tribunal to call witnesses and

18 to ask them whether they would testify without the presence of

19 Mr. Milosevic..." Now, do you wish to change that evidence?

20 THE WITNESS: [Interpretation] I can change the evidence. I don't

21 know the details. I don't know whether that was how it was put or not.

22 But whether he wanted to testify while being asked by Mr. Kay, and

23 Mr. Bulatovic then, and I think now, said that he was President

24 Milosevic's witness and would testify only if he was asked questions by

25 the president. Is that clearer now?

Page 27

1 JUDGE BONOMY: It's clearer, but it's also different. Thank you.


3 Q. To follow up on this, and which is my next question I wanted to

4 ask you, earlier you said in response to one of my questions that

5 Mr. Bulatovic said that he would not testify without the presence of the

6 accused. Now, I know this might be -- look like a matter of semantics,

7 but did he say whether that he would not testify or that he could not

8 testify; and if so, did he qualify those words?

9 A. Well, I would like to ask the Trial Chamber and you yourself, sir,

10 since I'm not a lawyer myself, to -- or, rather, not bring into question

11 what I say and base it on details. I'm not very good about details and

12 terminology, one term or another. But the substance is that on the

13 occasion, he said that he cannot testify. He never said he didn't wish to

14 testify. He said he could not testify without the presence of President

15 Milosevic, because he considers it to be the basic right of every

16 individual, including President Milosevic, if he is the accused, to be

17 present when his case is being tried.

18 Q. Now, the -- the night of the 19th when you discussed those issues

19 with Mr. Bulatovic, do you know whether Mr. Bulatovic had some meetings

20 with some people? If so, do you know who these people are, and did you

21 attend these meetings?

22 A. Immediately after the first day, I think in the afternoon, a lady

23 came to the hotel, I think, and a brief conversation took place. I was

24 right next to them. It was in the lobby of the hotel, and several of us

25 were present. However, it is customary when Bulatovic talks to anyone, if

Page 28

1 it has to do with his testimony, he does it on his own.

2 I was nearby. A lady came to talk, but what they talked about I

3 don't know.

4 Q. And do you know whether any other people met with Mr. Bulatovic

5 that night, and can you recall what happened and what you saw of those

6 meetings, if any?

7 A. I think that that evening, after that, the legal representative of

8 President Milosevic, Professor Rakic, came to the hotel lobby as well and

9 that he talked to Mr. Bulatovic.

10 Q. And were you privy to the conversation which took place between

11 Professor Rakic and Mr. Bulatovic, and can you say anything about what was

12 discussed between them if you were privy to that conversation?

13 A. I say once again that I did not attend the conversation. It was

14 our usual practice that Mr. Bulatovic would do this on his own.

15 What Mr. Bulatovic said to me was, and also what particularly

16 surprised him was that Mr. Rakic said to him that President Milosevic had

17 wished to come here and complete these proceedings but that he was not

18 allowed to do so.

19 Q. Did you, following this meeting -- can you tell what was the

20 attitude and the condition of Mr. Bulatovic after all these events on that

21 night.

22 A. Mr. Bulatovic, in my view, was a bit perplexed concerning all of

23 this. In his opinion, it was unnecessary. He thought then that he had

24 come here and that his role was to assist in establishing the truth and

25 that what he did was precisely aimed at this kind of assistance at

Page 29

1 establishing the truth.

2 Q. And the next morning as you prepared for the next day in court

3 when Mr. Bulatovic was called again on the 20th of April, did you have a

4 chance to discuss with Mr. Bulatovic what he intended to do on the 20th of

5 April, on that morning?

6 A. No. We came to the premises here again, and until entering the

7 courtroom, Mr. Bulatovic did not have any particular position that he

8 wished to communicate to me. He hoped that President Milosevic would

9 appear and that everything would be completed the way it had started.

10 Q. Now, were you privy and where were you during his testimony on the

11 20th of April, and did you see what happened on that day?

12 A. Where I was on the first day; that is to say, in the public

13 gallery behind Bulatovic, and I followed everything like everybody else.

14 Q. And can you tell the Trial Chamber whether after the testimony of

15 Mr. Bulatovic or after those day's events whether you had a chance to

16 discuss with Mr. Bulatovic what had happened and whether he told you

17 anything about his testimony.

18 A. I repeat once again, we did not discuss the details of his

19 testimony as I followed it and I was aware of it. He had no dilemma in

20 terms of completing his testimony. He was just perplexed because the

21 conditions had been changed in relation to the first day when he had

22 started and when he had completed the first part of his evidence in the

23 presence of Mr. Milosevic. Then Mr. Nice completed part of the

24 cross-examination too.

25 Q. Now, considering that you are somewhat close to Mr. Bulatovic, can

Page 30

1 you say whether those day's events had an impact on his physical condition

2 and his emotional condition?

3 A. It is certain that such events would affect even the healthiest of

4 people, let alone a person in Mr. Bulatovic's health condition. All of

5 this affected him, and he was rather exhausted.

6 Q. And during those -- the time you spent with him after the trial,

7 did Mr. Bulatovic express any anger towards the Tribunal or any other

8 observations in respect of his testimony that you could share with the

9 Trial Chamber this morning?

10 A. No. I can say here with full responsibility that he did not

11 display any anger, only hope. At every moment, Mr. Bulatovic had the hope

12 that it would continue the following day. He expected that the Trial

13 Chamber would understand. He thought that it was at one moment that the

14 Trial Chamber acted hastily, and he wanted to contribute to establishing

15 the truth, and he thought that this was would be taken into account, that

16 the trial would continue and that we would finish what we had come here to

17 do.

18 Q. Thank you. When were you supposed to go back to your home at that

19 time, and what happened exactly?

20 A. At the end of the second day, the service that accompanies us here

21 - and we are not allowed to move about without them anyway - they told us

22 that we would be travelling to Belgrade the following day. We prepared

23 our luggage, and we informed our families that they should be waiting for

24 us the following day as we were due to arrive in Belgrade the following

25 day.

Page 31

1 Q. Now, the Trial Chamber knows, of course, as well as you do that

2 those plans changed at that time, but can you describe how it came about

3 that those travel plans were changed.

4 A. We do not know how that came about. A lady from the Victims and

5 Witness Unit - and they accompanied us throughout our stay here, and I can

6 only give them every credit for their professionalism - this lady came in

7 the evening and said that things had changed, that we would be staying on

8 until Monday and that on Monday Mr. Bulatovic's testimony would continue,

9 that Mr. Milosevic's health had improved and that on Monday he would be

10 testifying in the presence of President Milosevic. So we called our

11 families and we said that we would be staying on for a while longer.

12 Q. [Previous translation continues] ... I apologise for the

13 interpreters. I did not see the end of the last question.

14 What you mentioned just at the end of your last answer, what I

15 would like to know is whether Mr. Bulatovic was asked whether he wanted to

16 testify or whether he was told he was going to testify on Monday.

17 A. They did not ask him whether he wanted to testify, they simply

18 informed him that he would be staying on and that as of Monday he would

19 continue his testimony in the presence of President Milosevic.

20 Q. And how did Mr. Bulatovic react to the fact that he was told that

21 he would testify on Monday?

22 A. I think that the lady who informed Mr. Bulatovic of this can

23 confirm this: Mr. Bulatovic crossed himself, which is rather

24 characteristic of him, and he said thank goodness that this would happen.

25 That is to say that he could hardly wait for it to happen.

Page 32

1 JUDGE BONOMY: In case you're concerned about the mystery,

2 Mr. Bourgon, when I learned on the Friday that arrangements were being

3 made for Mr. Bulatovic to return, and I also learned that Mr. Milosevic

4 was likely to be in court on the Monday, it was I who suggested to the

5 court liaison officer that consideration might be given to Mr. Bulatovic's

6 evidence being completed on the Monday.

7 MR. BOURGON: Thank you very much, Your Honour. I knew that there

8 had been somewhat an involvement from a liaison officer, but I did not

9 know the details as to how that came about.

10 Q. My next question is simply based on the fact and your previous

11 answers where you said that you know Mr. Bulatovic since you were a young

12 man, can you qualify how well you know Mr. Bulatovic?

13 A. I think that I know him quite well. As much as a child can know

14 his parent, or to put it in milder terms, as they say in our part of the

15 world, I know him as a nephew could know him, or a cousin. I grew up next

16 to Kosta Bulatovic. He was president of the football club where I played

17 football, and we would see each other practically every day in our house

18 or Kosta Bulatovic's house until things happened the way they did and

19 Kosta went on to Pristina. He moved there, but we still consider

20 ourselves to be family.

21 Q. My last question is as follows: You mentioned that you arrived in

22 The Hague in the company of Mr. Bulatovic on the 11th of April, and

23 according to the fact that he testified on the 25th, I take it that you

24 probably returned home either on that day or the next day, meaning that

25 you spent some 15 days in The Hague with Mr. Bulatovic.

Page 33

1 Now, my question is as follows: During all this time and

2 everything that happened, would you say that at any time Mr. Bulatovic

3 gave you the impression that it was his aim to interfere in the

4 administration or of justice and with this trial?

5 A. As I've already said, we came on the 11th and we returned on the

6 26th to Belgrade. I claim with full responsibility that throughout that

7 time and after arriving in Belgrade, Kosta Bulatovic had only one wish,

8 and that was to complete his testimony, for it to be of the highest

9 quality possible, and as he says, to pay his debt to the truth and to

10 justice. That prevailed over the past several days, too. Had it not been

11 for that, we would not have been here yesterday either in view of the

12 circumstances involved, so that people would not think that Kosta did not

13 want to come here and testify here. This time we went at our own

14 initiative over the holidays to the Dutch embassy, but there were holidays

15 and they weren't working. And then after that, we went back to the Dutch

16 embassy after the holiday and then they sent us to the ICTY office, and

17 Ms. Milenov can confirm all of that.

18 Until that moment, we had not received any information as to when

19 we were supposed to come except for what was told on that day here. Who

20 would give us visas, how we would come, on which plane, we didn't know any

21 of that. At that moment when we went there at our own initiative, this

22 young lady started the mechanism going, and she can confirm that that is

23 how we came here, how we got visas, how we booked flights. And that

24 speaks in itself that Mr. Bulatovic's only interest was to do what he had

25 come here to do, and that is to say -- to prove what was true in the

Page 34












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13 English transcripts.













Page 35

1 interest of justice, and he tried to do it in the best possible way.

2 I think that it is absurd in view of his behaviour and in view of

3 his health condition to have any thoughts of him having had any kind of

4 ill intention. He only thought what I had explained just now.

5 Q. Thank you very much, sir. I have no more questions, but the

6 Honourable Judges from this Trial Chamber may have some questions for you.

7 JUDGE ROBINSON: We have no questions of you, Mr. Milovanovic.

8 Thank you for testifying here, and you may now leave.

9 In any event, we'll now take a 20-minute break.

10 [The witness withdrew]

11 --- Recess taken at 10.35 a.m.

12 --- On resuming at 10.56 a.m.

13 JUDGE ROBINSON: Your next witness.

14 MR. BOURGON: Thank you, Mr. President. My next witness is

15 Professor Branko Rakic.

16 JUDGE ROBINSON: Let the witness be called.

17 [The witness entered court]

18 JUDGE ROBINSON: Let the witness make the declaration.

19 THE WITNESS: [Interpretation] I solemnly declare that I will speak

20 the truth, the whole truth, and nothing but the truth.

21 JUDGE ROBINSON: You may sit.


23 [Witness answered through interpreter]

24 JUDGE ROBINSON: Yes, Mr. Bourgon.

25 MR. BOURGON: Thank you, Mr. President.

Page 36

1 Examined by Mr. Bourgon:

2 Q. Good morning, Professor.

3 A. Good morning. Good morning.

4 Q. You are called this morning to testify in the proceedings against

5 the Respondent, and that is the contempt proceedings. My first question

6 would be to -- could you please state your name, your age, and your place

7 of birth.

8 A. My name is Branko Rakic. I was born in 1961 in Ivanica, Serbia.

9 At that time it was Yugoslavia, though.

10 Q. And what is your present occupation?

11 A. I teach at the law school of Belgrade University. At the same

12 time, I'm present here as legal advisor to Mr. Slobodan Milosevic.

13 Q. Now, your testimony, Professor, should be relatively focussed

14 considering that the Trial Chamber already knows that on the night of the

15 19th of April, you met with Mr. Bulatovic, and I would like you to first

16 begin by saying how and for what reason was this meeting organised on the

17 night of the 19th of April.

18 A. Well, on the 19th of April, in the afternoon, Ms. Evelyn Anoya,

19 who is the liaison officer between the Defence and the Trial Chamber,

20 called me concerned because of the overall situation since the witness

21 refused to testify under changed circumstances. She thought that the

22 witness should have greater confidence in us from the Defence team, who

23 had had contact with him before, than in others, because as far as I know,

24 another lawyer had talked to him before that. She asked me to talk to him

25 to tell him what the situation was and to see whether he would be prepared

Page 37

1 to perhaps review his decision.

2 I said that I personally was ready to do that, but there were two

3 constraints. One is the fact that the witness had already started giving

4 evidence, and I do not have the right to contact witnesses who had already

5 started giving evidence. Secondly, I had to have the consent of President

6 Milosevic. And she said that she would see with the Trial Chamber that

7 this restriction be lifted, that is to say that we could discuss only the

8 new situation, not his evidence itself. And also, she said that she would

9 get in touch with Professor -- President Milosevic so that he could call

10 me from the Detention Unit, because there is no other way for me to get in

11 touch with him, so that he would give me his consent.

12 Also, Evelyn Anoya called me and told me that I could see the

13 witness, that there would be no ban on seeing the witness altogether. Of

14 course, we could only discuss the new situation. And also, President

15 Milosevic telephoned me after that and said that he agreed to my talking

16 to Mr. Bulatovic. He also said that he had asked to come himself the

17 following day and in this way redress the situation, but he was told that

18 he would not be allowed to go in view of his continuing high blood

19 pressure.

20 So then I went to see him. I don't know exactly what time it was,

21 but I went somewhere in the early evening to talk to the witness.

22 Q. Considering, Professor, that those two constraints that you've

23 mentioned had been lifted, did you in fact meet with Mr. Bulatovic? Where

24 did the meeting take place, and can you describe and give an account of

25 what was discussed during that meeting.

Page 38

1 A. Well, we met at the hotel lobby. The Bilderberg Europa Hotel in

2 Scheveningen, where Mr. Bulatovic was staying anyway. Practically, we

3 talked on our own, but Mr. Milovanovic, who was accompanying him, was very

4 close to us, and at some of the other tables there were some other witness

5 who -- witnesses who were there before they came to court to give

6 evidence.

7 I presented the situation to him from a legal and factual point of

8 view. Actually, first of all when I approached him, he looked at me with

9 this expression, sort of what's going on? What is this? And then I tried

10 to explain to him that he was in a situation that is legally covered by

11 Rule 77 of the Rules of Procedure and Evidence, that these were actually

12 proceedings that have to do with the obstruction of justice. He reacted

13 to that. He said, "I testified. I gave evidence." His reaction was that

14 this had sort of hurt him, the very use of these words, "obstruction of

15 justice." He said, "Well, I've already testified for a while, and I

16 showed all due respect to the Trial Chamber and the Prosecutor, who was

17 unpleasant towards me. I treated him very courteously too. I came here

18 to contribute to justice rather than obstruct it." He said that he

19 believed that it is more just if he continues to testify in the presence

20 of Mr. Milosevic, because he said, "After all, Mr. Milosevic is the one

21 who called me to testify here. With all due respect to everyone else, I

22 think his presence is indispensable."

23 He also mentioned that out of all the persons sitting in the

24 courtroom, he had only conducted preparations with Mr. Milosevic. He's

25 the only person that he had talked to in advance.

Page 39

1 In hindsight now, I said two things that perhaps had an effect on

2 him. Now, I mean viewed in hindsight. At that time, it didn't cross my

3 mind.

4 One thing was that I mentioned that Mr. Milosevic, though ill,

5 wanted to come the following day. The reaction was, I think -- I mean

6 this is what I infer, I cannot say this with 100 per cent certainty --

7 Mr. Bulatovic was a bit taken aback. Like, he was ill and nevertheless

8 prepared to come to the courtroom, even though ill, in order to prevent

9 this kind of thing from happening, and it would only be fair for me not to

10 testify in his absence. He didn't say these words, but his gesticulations

11 seemed to suggest that.

12 The second thing I wish to say, in hindsight now and which perhaps

13 affected his confirming his original decision, this was just a routine

14 legal question that was put at the time, when he mentioned to me that no

15 one would be present in the courtroom who had prepared him to testify, who

16 would be questioning me, he said. And I said, "Well, Steven Kay." And he

17 said, "Well, I've never seen him. I never spoke to him. I only know him

18 from the courtroom. Do I have the right to talk to Steven Kay at all?"

19 And then I told him something which was a technical matter although

20 perhaps I should have consulted before that, and I said, "Well, you do not

21 have the right to see anyone from the Defence since you've already started

22 giving evidence." I don't know whether that perhaps affected his decision

23 and perhaps contributed to all of this now that I think about it. But his

24 attitude was, "I want to testify, but I cannot now that Milosevic is not

25 here. I don't think I'm obstructing justice. On the contrary, I want to

Page 40

1 contribute to justice. And the truth." And the truth. Perhaps the truth

2 even ranked first in terms of everything that he wanted to get across.

3 JUDGE ROBINSON: What did you gather he meant when he said he

4 cannot, he wants to testify but he cannot?

5 THE WITNESS: [Interpretation] Obviously what happened later on, as

6 far as I understand things; that he wanted to testify but that he thought

7 that he would damage President Milosevic in some way if he testified in

8 his absence, that that was the core of the matter. And that in this way

9 he would not contribute to what he had come here for, and that is the

10 truth. He believes that the truth works in favour of Mr. Milosevic and,

11 therefore, in his absence he did not wish to have anything happen that

12 would work to his detriment.


14 Q. I just have one last question, Professor, and that is as part of

15 those discussions, did the issue of interpretation and the role played by

16 Mr. Milosevic in this respect, according to the accused, was that

17 discussed with you?

18 A. Well, this description of the problems in case Mr. Milosevic is

19 absent is one of the central issues. I cannot give you all the details,

20 but I can give you the gist of it.

21 He mentioned who would now be on the side of the Defence in his

22 absence, and one of the things was, yes, that Mr. Milosevic intervened

23 from time to time in case there are any omissions in the interpretation or

24 other omissions that he can note.

25 It is a fact that not only during his testimony but in Serbia and

Page 41

1 Montenegro Mr. Milosevic's trial is viewed widely, so people know about

2 the trial and what goes on here. At least, they see it from the outside.

3 Q. Thank you, Professor. I just have one final question for you, and

4 that is did you see your role when you had this discussion with

5 Mr. Bulatovic as that of a legal advisor or whether this was not the

6 point? What exactly was your role when you went to see him?

7 A. I was not the one who set my role. I was actually asked by

8 Ms. Evelyn Anoya to try to talk to him and to put the facts to him and to

9 see whether he was ready to -- well, perhaps I was a person he would trust

10 more than a lawyer who he'd see for the first time. And I think that

11 before that he saw a lady, I think her name was Jelena Nikolic.

12 So what I said was of legal substance, too, but I don't think that

13 that really mattered. I was supposed to see what his position was and how

14 firm it was and whether he'd be willing to change it.

15 At the end, when Mr. Bulatovic was supposed to come back,

16 Ms. Anoya called me and said that she talked to Judge Bonomy and that he

17 said that these two proceedings, that is to say proceedings according to

18 Rule 77 and the proceedings against President Milosevic were two separate

19 proceedings and that therefore there was no problem in terms of the

20 testimony continuing. She mentioned Monday, and since I was there with

21 the other witnesses at the hotel, I know I saw Mr. Bulatovic. I could not

22 discuss this any further, but in the meantime, I was in contact with him,

23 talked to him. He was rather depressed, but then he felt better, much

24 better, because his feeling was that he was going back with business

25 unfinished. Despite the risk involved in this -- in these proceedings, he

Page 42

1 was greatly bolstered by the fact that he would carry out his duty to tell

2 the truth.

3 I am simply saying that what I saw after that was that he was a

4 completely different person, feeling completely different, in a different

5 mood.

6 Q. Thank you very much, Professor. I have no further questions.

7 Maybe the Honourable Judges have some questions for you.

8 JUDGE ROBINSON: No questions. Thank you, Professor Branko Rakic,

9 for testifying. You may leave.

10 THE WITNESS: [Interpretation] Thank you. Good-bye.

11 [The witness withdrew]

12 [Trial Chamber confers]

13 JUDGE ROBINSON: Yes, Mr. Bourgon.

14 MR. BOURGON: Thank you, Mr. President. Mr. President,

15 considering that -- that witness was before the Chamber on the 19th and

16 the 20th of April and that he had the chance to explain his position and

17 that he did so to a great extent, answering the questions of the Judges,

18 and that on the 25th he completed his testimony, as the Trial Chamber

19 knows, and that he also made a statement at the end, in the interests of

20 justice, for the sake of saving the precious time of this Trial Chamber,

21 Mr. Bulatovic will not testify in his own defence today and I'm ready to

22 address the Chamber and to make my final arguments when the Trial Chamber

23 is ready.

24 JUDGE ROBINSON: Please proceed.

25 MR. BOURGON: Thank you, Mr. President. I therefore confirm that

Page 43

1 the Defence rests, and I now provide the Trial Chamber with my submissions

2 concerning the contempt proceedings which have been initiated against

3 Mr. Bulatovic.

4 The first thing I would like to do, Mr. President, is to of course

5 go over the charge itself. And the charge itself was read by the Trial

6 Chamber at the beginning, and in terms of the charge, it says that on the

7 19th and the 20th of April, being a witness before Trial Chamber III, he

8 knowingly and wilfully interfered with the administration of justice by

9 contumaciously refusing to answer questions asked by the Prosecution.

10 Mr. President, there are, of course, essential elements to this

11 charge, and these essential elements include the fact that he refused to

12 answer questions asked by the Prosecution, and I think that the evidence

13 is on the record, and I will not get -- provide any arguments with respect

14 to this essential element. However, Mr. President, the other element is

15 the fact that he was a witness before Trial Chamber III is also, of

16 course, undisputed.

17 What is at issue here is whether the other essential ingredient is

18 fulfilled, and that is he knowingly and wilfully interfered with the

19 administration of justice, and by contumaciously refusing to answer

20 questions asked by the Prosecution.

21 Mr. President, the mens rea requirement under this charge, I

22 respectfully submit, is that the witness must knowingly and wilfully

23 interfere with the administration of justice. That means that there must

24 be actual knowledge from the witness that he is indeed interfering with

25 the administration of justice.

Page 44

1 In this respect, it is important to note --

2 JUDGE ROBINSON: Might it not also be inferred from the

3 circumstances?

4 MR. BOURGON: Well, my submission, Mr. President, will be that it

5 must be actual knowledge, and I will get to that and explain where -- what

6 I propose as the foundation for this requirement that it must be actual

7 knowledge that he is interfering with the administration of justice. And

8 of course not only the actual knowledge but he is -- actually wants,

9 wilfully wants to interfere with the administration of justice.

10 In this respect, I will start by looking at the issue of Witness

11 K12 before this Trial Chamber. In the issue of Witness K12, by majority

12 decision, the Trial Chamber held that "contumacious" had to be given the

13 interpretation of or the sense of perverse, and the Trial Chamber found

14 that Witness K12 or -- vacated the finding of contempt of court because it

15 was not established that the contempt in itself was contumacious in the

16 sense of being perverse.

17 The facts in this case is that Witness K12 was a witness for the

18 Prosecution. Now, what happened is that he refused to answer questions,

19 apparently for security reasons. It is not clear, but it appears from a

20 reading of that transcript that he would have refused to testify in the

21 presence of the accused, or at least that this was his motivation. The

22 proceedings were adjourned for the Prosecution until the day after, and

23 the Prosecution was invited -- sorry, the Prosecution actually invited the

24 Chamber to exercise its powers against the witness manifestly hostile and

25 who did not consider -- the Prosecution, sorry, did not consider the

Page 45

1 reason given by the witness to refuse to testify as sufficient.

2 The Trial Chamber gave a preliminary ruling of contempt on the 4th

3 of June, and adjourned the matter for 20 days. In the end, as I've

4 mentioned, it was determined that the refusal of the witness was not

5 contumacious.

6 Now, there was a dissent with this opinion, with this ruling, a

7 dissent by the Honourable Judge Kwon, who said that in his view,

8 contumacious was not an additional ingredient but was actually part of

9 Rule 77 in the sense of interference with the administration of justice

10 knowingly and wilfully. And Honourable Judge Kwon mentioned that

11 contumacious element sets a high threshold, or too high of a threshold to

12 make a finding. According to his interpretation, "knowingly, wilfully,

13 contumaciously" should be interpreted as meaning an obstinate refusal to

14 answer without a reasonable excuse. And Judge Kwon was of the view that

15 K12, by refusing to answer questions of the Prosecution for security

16 reasons, apparently, were not reasonable.

17 Now, of course I recall, Mr. President, that this was the dissent

18 and that the majority view of the Trial Chamber was that refusing to

19 testify for security reason was in fact not a contumacious.

20 Looking at the jurisprudence of this Tribunal where we found that

21 the issue of the mens rea requirement was basically explained by the

22 Appeals Chamber. I refer to the case of the Prosecutor versus Aleksovski,

23 and that is the case International Tribunal 95-14/1-AR-R77. In this case,

24 the Appeals Chamber held that to be held in contempt of the Tribunal, it

25 must be established that the Respondent acted with specific intent with

Page 46

1 the Tribunal's administration of justice. This was also established in

2 the Prosecutor versus Brdjanin.

3 JUDGE BONOMY: Sorry, Mr. Bourgon. Could you repeat that. Must

4 be established that the Respondent acted ...

5 MR. BOURGON: With specific intent to interfere with the

6 Tribunal's administration of justice.

7 JUDGE BONOMY: All right. Just the words "to interfere" were

8 missing.

9 MR. BOURGON: And this specific quote, Your Honour, comes from the

10 Prosecutor versus Brdjanin, case number International Tribunal 99-36-R77,

11 decision on motion for acquittal, on the 19th of March, 2004.

12 The Appeals Chamber has defined this specific intent as actual

13 knowledge. Illustrations of actual knowledge of contempt include the

14 following: A deliberate publication of material presenting a real risk of

15 prejudice to the fair trial of an accused where the act of publication may

16 have occurred even in ignorance of existence of the trial.

17 A second example: A deliberate publication of material with

18 knowledge of the existence of the trial and either with the specific

19 intent -- intention, sorry, of influencing its result or where that

20 material would have the effect of influencing its result.

21 Another illustration given is the publication of a witness

22 identity where protective measures have been granted to avoid such

23 disclosure, again with knowledge of the existence of those measures and

24 with the specific intention of frustrating their effect, where the

25 contempt is based not upon the violation of the order granted -- granting,

Page 47

1 sorry, protective measures but because the disclosure interfered with the

2 administration of justice.

3 JUDGE ROBINSON: The contempt in that case was the disclosure of

4 measures that had been protected.

5 MR. BOURGON: Indeed, Mr. President, and that's why, of course,

6 these are illustrations. But they do show, and they do illustrate what is

7 meant by the specific intent requirement.

8 JUDGE BONOMY: Well, the second one you gave, Brdjanin, applies

9 even in ignorance of the trial. Does it not follow from that that what

10 matters is the deliberate act of publicising the material?

11 MR. BOURGON: Well, the second example I gave Your Honour talks

12 about the specific intention of influencing its result or where the

13 material would have the effect of influencing its result.

14 JUDGE BONOMY: Even in ignorance of the existence of the trial.

15 MR. BOURGON: Well, even in the existence -- of course, that means

16 we're talking about the material presented a real risk of prejudice. So

17 all these examples highlight the specific intent in the --

18 JUDGE BONOMY: But are you understanding the point that that

19 applies even where the person publicising the material does not know that

20 there is a trial? That's surely a low standard.

21 MR. BOURGON: Your Honour, when the person does not know where

22 there is a trial but nevertheless that person, according to this

23 illustration, has published material that has a real risk of prejudice to

24 the fair trial of an accused.

25 Now, what is meant here by not knowing about the existence of the

Page 48

1 trial does not refer to the fact that we don't know a trial is going on.

2 It might be that not knowledge whether the trial is on or finished or

3 terminated or yet to begin, but the specific intent is that there's a real

4 risk and there is an awareness of that real risk.

5 Now, the fourth example or illustration given by -- in this case

6 was wilful blindness. And wilful blindness, I take it, is something that

7 the Trial Chamber is quite familiar with.

8 Now, when we look at this specific intent requirement, it is

9 important to look at what happened in this case. And in this case, you

10 have a witness who comes before the Trial Chamber, and you have ample

11 evidence that he wanted to testify, that there was no holding back on his

12 testimony, and that he started to testify, and that he treated everyone in

13 the courtroom with respect, and that he was responding to the questions.

14 Now, that is the questions of the accused Mr. Milosevic in his capacity as

15 his own counsel, some questions of the Trial Chamber, as well as the

16 questions of the Prosecution.

17 The witness, according to the information or the evidence

18 available to the Trial Chamber, has seen on TV and has experienced for

19 himself - that is on the record also - that Mr. Milosevic did interfere at

20 some places and did play a role --

21 JUDGE ROBINSON: Intervene.

22 MR. BOURGON: Intervene. Thank you very much, Mr. President.

23 Intervene to make some comments with respect to the interpretation and the

24 translation of some words, and that was of assistance to the witness.

25 Some days go by before the witness appears again before the Trial

Page 49

1 Chamber, and when the witness comes back to testify, no one has warned him

2 that Mr. Milosevic will not be there. By the time he appears in court, he

3 finds out that Mr. Milosevic is not there. For him, that creates a

4 problem, and he expresses his views that he cannot continue, and he tries

5 to explain why.

6 Now, of course, the witness is not a lawyer, and the words he may

7 have used might not have been clear to the Trial Chamber in terms of the

8 reasons he was saying that he could not testify. What is sure, however,

9 and what evidence the Trial Chamber does have is that he knew that an

10 accused has the right to be present at his trial. So for him, that's the

11 first problem.

12 The second problem is Mr. Milosevic in this case is not only the

13 accused, he is also the counsel examining the witness. So in the

14 witness's mind, I respectfully put it to you, Your Honours, that there are

15 two people missing that day. Not only is the accused missing but the

16 person conducting the examination is missing. And the witness knows that

17 after counsel for the Prosecution will be done with his cross-examination,

18 there's supposed to be questions asked of him by Mr. Milosevic, and

19 Mr. Milosevic is not there.

20 He did express the situation with Professor Rakic, and he said,

21 "Well, can I see Mr. Kay before?" And the answer was no. So he's left to

22 himself. It's not that he wants, and there is no indication whatsoever

23 that he wants to interfere with justice, but he has a problem.

24 Mr. Milosevic will not be there to correct the interpretation, that goes

25 for both the cross-examination and the re-examination, and he doesn't know

Page 50

1 who will be asking the re-examination.

2 In this respect, it is important to look at the prejudice in the

3 witness's mind that goes both to him and to the accused. It is a

4 well-known fact that when two persons in a common-law setting prepare a

5 testimony, they will discuss how questions will be asked and they will

6 discuss, sometimes even adopt, some kind of strategy, or a counsel may

7 inform, and I say may inform, the witness of his strategy. It may be that

8 -- and we don't know this, but it may be that the witness knows that

9 certain questions will be asked of him during cross-examination, and

10 therefore these questions can no longer be asked. And the witness, what

11 we know on the evidence in this case, he expressed to Professor Rakic,

12 that he's scared to damage the case of Mr. Milosevic. He came here to

13 give the truth, he came here to participate in this trial, to fulfil his

14 duty before an International Tribunal, and then he says all this has

15 changed and I may actually have the opposite effect.

16 Can we, on the basis of what happened on the 25th of April, look

17 at what actually happened during the cross-examination, because as the

18 Prosecution counsel put it to the Trial Chamber before the order of

19 contempt was issued, counsel for the Prosecution said it is time for

20 court-assigned counsel to play their role. There are videos. There is a

21 camera. There is no prejudice. And in addition, we can always recall the

22 witness later if there is a problem.

23 Well, immediately one may think if we are going to recall the

24 witness later anyway, what is the purpose of pressing on, to use the words

25 of the Prosecution, on that very day? But when we look at what happened

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Page 52

1 during the re-examination of Mr. Milosevic on Monday, the 25th of April,

2 we fully realise that court assigned counsel could not have performed that

3 re-examination in the same way that Mr. Milosevic did it. And I offer to

4 this Trial Chamber two examples.

5 The first example is the transcript of 25th April. And that was

6 on page 38696 where, re-examined by Mr. Milosevic, the issue of Siptar as

7 an offending word to Albanians is raised by Mr. Milosevic, and the

8 question is: "Did you ever hear anyone insulting Albanians when they

9 called them Siptars?" Sorry for my pronunciation if my pronunciation is

10 wrong. But then -- of course that question could have been put by

11 anyone. But then adding the fact that the following question at lines 22

12 to 25: "Do you know that in the public gallery they have different

13 channels in terms of how they can listen to different languages?" And

14 that channel 3 refers to "Shqip" or "Sip," which is the Albanian language

15 on that list of languages.

16 This kind of knowledge, despite all the research, is not the kind

17 of things that could come handily to court assigned counsel, and it shows

18 that it was important in this respect for the accused himself to continue

19 with the cross-examination.

20 The second example I wish to raise is on page 38710, and that is

21 the issue of the poem. The question put by Mr. Milosevic in

22 re-examination, where we see: "Very well. Mr. Nice asked you why you

23 react emotionally to the death of the Turkish Tzar Murat." Now, I don't

24 read all of the questions, but what is important is that on page 38711,

25 Mr. Milosevic says on this video, "You are quoting folklore here -- there.

Page 53

1 It is an epic poem that you are in fact quoting." And the Chamber even

2 put the question, "Was the journalist made aware that you were quoting

3 from this epic poem?"

4 Now this, in my view, Mr. President, shows that the Trial Chamber

5 was interested in the evidence which was attempted by the Prosecution

6 during its cross-examination by showing a small part of a video which

7 basically, to use common language, blew in his face. But would court

8 counsel have been able to know that this was the epic poem, especially at

9 this point in time?

10 Now, this is the type of discussions that may have taken place

11 between the accused and the Respondent when he informed him of what

12 questions he was going to ask. And now the witness feels that those type

13 of questions, he will not be able to correct that situation and to do

14 justice to the party who called him, and whether we agree or not with

15 whose party he came on the behalf of, it is clear from the record that

16 telling the truth for this witness was telling the truth in favour of

17 Mr. Milosevic.

18 Now, whether we like this or not, whether we agree or not, is not

19 an important question at this stage. At this stage is, did the witness

20 have a reasonable excuse for saying, "I want to testify, but I cannot

21 unless Mr. Milosevic is there. He started it, and I'll come back at any

22 time to finish it." And he did say this to the Trial Chamber.

23 And when given an opportunity to come back and to finish the

24 work --

25 JUDGE ROBINSON: If he has what you say is a reasonable excuse, in

Page 54

1 your submission he cannot have knowingly and wilfully interfered with the

2 administration of justice.

3 MR. BOURGON: This in some respect is my submission,

4 Mr. President, that the specific intent would be where the witness does

5 something and he knows that he is interfering with the administration of

6 justice. And we are not talking about a lawyer. We are talking about an

7 honest citizen. We're talking of a man, a sick man, a man who is old, and

8 a man who is, according to the evidence in these proceedings, came here to

9 do good.

10 JUDGE ROBINSON: You're also saying that if he -- if he had an

11 honest belief that what he was doing was right, he cannot have knowingly

12 and wilfully interfered with the administration of justice and his conduct

13 would not have been contumacious.

14 MR. BOURGON: Well, Your Honour, the words "honest belief" that

15 you mentioned now, I did not mention these words of "honest belief," and I

16 hesitate to go down that read. I don't want to say what is an example of

17 what could not be contumacious. I want to say that what the actual

18 conduct of the Respondent here shows that he did not have this intent. He

19 did not know, and did he not wilfully interfere in the administration of

20 justice, because, for him, he was doing good, and he thought that

21 answering these questions would damage his testimony.

22 The Trial Chamber did raise the issue what is more important. Is

23 it more important for a witness who will come and has not begun to testify

24 yet or for a witness who is in the middle of his testimony? I submit

25 respectfully, Mr. President, that the prejudice and the reasons on the

Page 55

1 witness not to answer a question are much greater when he is in the middle

2 of the testimony, because there is a change of circumstance. And what I

3 was saying a few minutes ago is as soon as he was given an opportunity to

4 come back and to finish his testimony, despite his medical condition, of

5 which you have now ample evidence, he did not hesitate a minute. He was

6 told, "You're going to testify on Monday." His reaction, "Thank God. I

7 did not want to leave with unfinished business."

8 Now, if we also look at what he said on the 25th of April just

9 before leaving, and he basically addressed the Trial Chamber with the

10 leave of the President, and he said the following: He basically said that

11 he came here as a Defence witness with the best of intention. It never

12 even occurred to him that there were any problems. In the presence of

13 Milosevic he answered all questions, and he believes that he expresses

14 respect to all of the parties. And then he says at lines 8 to 10 on page

15 38720, " the absence of ... Mr. Milosevic, therefore, in totally --

16 under totally new circumstances, I could not continue testifying.

17 "... my intention was not to obstruct or slow down in any way the

18 proceedings. On the contrary, my intention from the very beginning was

19 and remains to contribute to establishing of truth and insist in the

20 administration of justice in fair -- in a fair situation."

21 And he said, "I fulfil my obligation," and "I go home with a

22 completely clear conscience." And he said, "I would like to thank you,"

23 and on and on.

24 That is the intention, Mr. President, expressed by the witness.

25 This is what he's feeling in terms of his contribution to this trial. He

Page 56

1 did his duty, he's happy that he's given the opportunity to finish his

2 testimony, and he has a clear conscience, and he says thank you to the

3 Trial Chamber.

4 JUDGE ROBINSON: Mr. Bourgon, you referred to the Chamber's

5 decision in K12 and that the Chamber interpreted "contumaciously" as

6 meaning perversely, but you didn't develop any submissions on that.

7 MR. BOURGON: I have here the transcript of what happened in the

8 decision in Witness K12, but just to --

9 JUDGE ROBINSON: What I want to hear is how you apply that to this

10 case.

11 MR. BOURGON: Well, in my -- in my view, Mr. President, when we

12 talk about perverse and the way it was used by the Honourable Presiding

13 Judge at the time, was perverse in the sense of there was some bad

14 intention. He knew that he was doing something not only wrong objectively

15 but wrong to the justice, wrong to what he was participating in --

16 participating in. That's the meaning of "perverse," in my view.

17 And in my respectful submission, even going with the criteria

18 developed by the Honourable Judge Kwon in his dissenting opinion, having a

19 reasonable excuse, or taking the majority view of perverse, in both cases

20 the evidence in these proceedings show that this was never -- there is no

21 evidence that the witness ever wanted to have this intent of wilfully and

22 knowing -- and knowingly interfering.

23 He did say to the Trial Chamber, and that's on the record, "I'll

24 come back at any time to finish my testimony. Please allow me to do so."

25 JUDGE ROBINSON: Have you taken account of the fact that it was

Page 57

1 explained to the witness that he was obliged to testify, that safeguards

2 had been put in place to ensure that there would be no prejudice to

3 Mr. Milosevic? Mr. Milosevic would have the benefit of a video, a

4 videotape of the proceedings and the transcript, and that it would have

5 been open to Mr. Milosevic to recall the witness. What is your submission

6 in the light of all of that in relation to the question of the mens rea?

7 MR. BOURGON: Mr. President, indeed I did address that issue

8 earlier when I was speaking about how the witness felt about continuing to

9 testify and the damage he could do to the case. In fact, it's on the

10 record the Trial Chamber tried to reassure the witness. However, it's

11 important to note that the Trial Chamber, in reassuring the witness on the

12 20th, did say and -- did say that what was happening was there was a

13 number of possibilities which could take place, and I would just like to

14 quote where the Trial Chamber said -- Trial Chamber said -- sorry. When

15 informing the witness of the situation, and the Trial Chamber did inform

16 him, "You will need to be advised carefully, because if you maintain your

17 position, it must be clear that you're liable to be charged." But the

18 Trial Chamber also said, "It is also very possible that the Trial Chamber

19 will totally ignore the evidence that you have given. That is to say the

20 Chamber will attach no weight to it at all."

21 Now, that, Mr. President, is kind of a -- what was told to the

22 witness. He wasn't given basically the word, "If you don't answer, you

23 will be in contempt." You said, "You're liable to be found in contempt."

24 In my respectful submission, that was an invitation --

25 JUDGE ROBINSON: What is wrong with that? It's the correct thing

Page 58

1 to say, that you're liable to be charged with contempt.

2 MR. BOURGON: It's perfectly -- I would never say that this was

3 not proper for the Trial Chamber to say that. What I'm saying,

4 Mr. President, is what effect did these words have on a non-lawyer even

5 though he was later on to receive legal advice? Because to him it may

6 have been options: Maybe contempt, maybe it is the situation of having

7 the evidence stricken from the record. But I don't believe that these --

8 the information that was given to him make it so that he inevitably

9 understood and knew that he was interfering with the administration of

10 justice.

11 Did he understand that there was a problem? That could be, but we

12 cannot tell from the evidence on the record whether he thought that this

13 was actually a problem.

14 Now, a very important aspect that I wish to highlight is the

15 attitude of the Prosecution, because this can help us to identify whether

16 there was a wilful interference, because the Prosecution did, when it

17 invited the Trial Chamber to exercise its powers of contempt, did

18 highlight a couple of examples. For example, counsel for the Prosecution

19 said, "I wonder how come this witness comes in the courtroom this morning

20 and he knows exactly how much time I have left." Now, that was a direct

21 suggestion, or an implicit suggestion at the least, that there was some

22 understanding that the witness wanted to do something bad to the trial

23 because he must have been -- must have had some understanding or some

24 agreement with somebody else, whether the accused or another person, not

25 to answer questions. That's what the counsel for the Prosecution was

Page 59

1 saying.

2 And then counsel for the Prosecution later on referred to a second

3 example, and counsel for the Prosecution said that this was blatant

4 disregard and that this was wrong and that this was -- had to be -- had to

5 be -- I'm looking for the exact words. "... he declines to be

6 cross-examined. The evidence should be struck altogether, and it should

7 stand at naught, and he should then be dealt with forthwith for contempt.

8 Testimony be a disasterous precedent to allow witnesses to attempt to

9 control the Court like this."

10 So Mr. Nice, counsel for the Prosecution, gave examples of what

11 could be wilfully and knowingly interfering with the administration of

12 justice. The person comes here with the intent of doing something wrong

13 or stopping his testimony. Or the witness comes here and he has the

14 intent to do something or to kind of control the agenda of the Court.

15 Now, the distress of the Prosecution in this case can be

16 understood. This has been a long trial. I'm not part of the trial, but I

17 know, like most people, that this is a long trial, and the Prosecution is

18 distressed by the fact that this is what it says would be an example of

19 the accused trying to control the agenda of the Court.

20 If there was evidence of such nature, maybe, Mr. President, the

21 Court could go the way of wilfully and knowingly interfering with the

22 administration of justice. But in this case, with all the evidence we

23 have, with everything that was said by the two witnesses today, everything

24 that was said by the witness on the record, we have no evidence whatsoever

25 that there was this wilful and knowingly interfering.

Page 60

1 I'd like to refer quickly to another case before this Tribunal,

2 but for this purpose I need to go into closed session, with your leave,

3 Mr. President.

4 JUDGE ROBINSON: Closed or private?

5 MR. BOURGON: Closed session.

6 JUDGE ROBINSON: Closed session.

7 MR. BOURGON: Private session, sorry. "Huis clos partiel," sorry.

8 [Private session]

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 61











11 Page 61 redacted. Private session.















Page 62

1 (redacted)

2 (redacted)

3 [Open session]

4 JUDGE ROBINSON: I was saying, Mr. Bourgon, to my mind -- I was

5 saying that to my mind, that case doesn't help you at all because contempt

6 proceedings were not considered there. So how does it help?

7 MR. BOURGON: Well, I --

8 JUDGE ROBINSON: The issues we're considering here did not arise.

9 MR. BOURGON: In my submission, Mr. President, this is case is of

10 assistance to this Trial Chamber because there was a situation, there was

11 a witness who refused to testify, and for some reason this witness was --

12 no proceedings were instituted, in all likelihood because the excuse and

13 the reasons given by the witness were considered that it did not warrant

14 contempt proceedings.

15 JUDGE ROBINSON: You're now in the realm of speculation.

16 MR. BOURGON: In this case -- well, we have the facts,

17 Mr. President.

18 JUDGE BONOMY: Mr. Bourgon, was that witness brought before the

19 Court and asked to take the declaration and give evidence?

20 MR. BOURGON: Yes, Your Honour.

21 JUDGE BONOMY: And did he refuse at that stage in court?

22 MR. BOURGON: Yes, Your Honour.

23 JUDGE BONOMY: And was he then ordered to give evidence?

24 MR. BOURGON: Pardon me, Your Honour? I missed the last question.

25 JUDGE BONOMY: Was he then ordered to give evidence?

Page 63

1 MR. BOURGON: I have the transcript with me and I cannot confirm

2 whether he was ordered. He was asked whether he wanted to testify and he

3 said no, twice, and twice he was sent back home.

4 JUDGE BONOMY: And these questions were asked in court.

5 MR. BOURGON: In court.

6 JUDGE BONOMY: Thank you.

7 MR. BOURGON: Now, I raise this for two things: As an example of

8 a reasonable excuse, but also as to ensure that we don't adopt a double

9 standard before the International Tribunal.

10 Mr. President, I think that at this time, I will close my argument

11 by simply saying that everything you've heard, whether it is today or the

12 19th and the 20th of April, and on the 25th of April when the witness had

13 the first opportunity, accepted to complete his testimony, such a witness,

14 in my view, based on the evidence, surely did not knowingly and wilfully

15 interfere with the administration of justice.

16 What really happened that week? Was there an interference with

17 justice? Well, sure, there was a delay in the justice. But was the delay

18 caused by this witness, or was the delay caused by the fact that the

19 accused did not show up because he could not show up? I think that is a

20 very important consideration as to whether what was reason. And the Court

21 will also recall that when court assigned counsel was asked whether he

22 could proceed with the next witness, to my recollection, and I'm not sure

23 completely of what I'm saying, but the court assigned counsel was not able

24 to proceed with the next witness. The week -- that week of hearing would

25 have been lost in any event. Is this witness responsible for that down

Page 64

1 time?

2 Everyone one understands, Mr. President -- when I say everyone,

3 it's the international community understands what is going on before this

4 Trial Chamber and the pressure that is on every party in the courtroom to

5 complete a very important trial. But the evidence that you have before

6 you, is it that this witness, has he been in contempt of court by his

7 actions?

8 I wish to --

9 JUDGE ROBINSON: I'd like to say, Mr. Bourgon, that the Chamber is

10 not affected in anything that it does, in any decision that it takes in

11 the Milosevic case, by any kind of pressure.

12 MR. BOURGON: Mr. President, I apologise if this is the impression

13 of what I said. I referred to parties, and of course far from my

14 intention to say that the Trial Chamber reacted to pressures. This would

15 be absolutely inappropriate for me to even suggest that. What I say,

16 Mr. President, is that the parties in this case, and that is whether it is

17 the accused and the Prosecution, there is immense pressure as to what is

18 going on in the courtroom. And as a Defence counsel before this Tribunal,

19 I fully trust that this is not a thing that -- the Trial Chambers are not

20 under such pressure, and I really apologise if this is the impression I

21 gave the Trial Chamber.

22 I would simply like to raise a last argument, and that was taken

23 from Archbold, which I believe the Court is quite familiar with, and I

24 don't -- this is on chapter 28, 126, where we discuss the sentencing of

25 persons found in contempt, and one of the issues is someone may be found

Page 65

1 in contempt, and the suggestion that is made is that sentencing should

2 wait because that person might, in the end, fulfil his or her duty and

3 testify.

4 So I'm not highlighting this issue to tell you that there should

5 be any sentencing in this case, because I firmly believe and it is my

6 respectful submission that there was no contempt on the part of this

7 witness, but this shows that the fact that the witness came back at the

8 earliest opportunity is a sign, is a repair of this time that maybe was

9 lost in the eyes of the Trial Chamber.

10 For all these reasons, Your Honours, I respectfully submit that

11 Mr. Kosta Bulatovic did not commit contempt on the 19th and the 20th of

12 April, 2005, because he never wilfully and knowingly interfered with the

13 administration of justice. And I'm not sure what the exact language

14 should be, whether I should seek for an acquittal or, as in the case of

15 Witness K12, that the initial findings of contempt be vacated. In any

16 event, there was no contempt on behalf of Mr. Kosta Bulatovic. He has

17 shown that he is an honourable man. He has come back here for his

18 contempt proceedings. He trusts this Tribunal. He has expressed respect

19 for this Tribunal. He should be allowed to go home. And I think that

20 everyone has taken the point well on board as to what should take place,

21 what are the responsibilities of witnesses in any criminal trial.

22 Respectfully submitted, I'm grateful, Your Honours.

23 JUDGE ROBINSON: Thank you, Mr. Bourgon.

24 [Trial Chamber confers]

25 JUDGE ROBINSON: The Chamber will consider this matter and give

Page 66

1 its decision on Friday of next week, and the Respondent will be advised

2 prior to that time whether he should return.

3 We are adjourned.

4 MR. BOURGON: Thank you very much, Mr. President.

5 --- Whereupon the Rule 77 Hearing adjourned

6 at 12.14 p.m.