Tribunal Criminal Tribunal for the Former Yugoslavia

Page 184

1 Monday, 27th September, 1999

2 [Motion Hearing]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.58 p.m.

6 JUDGE MAY: If the Registrar would call the

7 case, please.

8 THE REGISTRAR: Case number IT-95-8,

9 IT-95-30.

10 JUDGE MAY: The appearances, please?

11 MR. NIEMANN: If Your Honours please. My

12 name is Niemann. I appear with my colleagues

13 Mr. Keegan, Mr. Waidyaratne, Ms. Reynders, the case

14 manager, and Mr. Saxon sitting down.

15 JUDGE MAY: For the Defence?

16 MR. SIMIC: [Interpretation] Good afternoon,

17 Your Honours, Mr. President. Krstan Simic, attorney

18 from Banja Luka, on behalf of Mr. Miroslav Kvocka.

19 MR. NIKOLIC: [Interpretation] Good afternoon,

20 Your Honours. Attorney Zarko Nikolic with Jelena

21 Nikolic, legal assistant, for Milojica Kos.

22 MR. FILA: [Interpretation] Your Honours, I'm

23 Toma Fila and, alongside Mr. Petrovic, I represent

24 Mr. Mladjo Radic.

25 MR. TOSIC: [Interpretation] Your Honours, I

Page 185

1 am attorney Simo Tosic from Banja Luka. I represent

2 Mr. Zoran Zigic.

3 JUDGE MAY: Mr. Niemann, the counsel for the

4 accused Mr. Kolundzija is not present.

5 MR. NIEMANN: Yes, Your Honour.

6 JUDGE MAY: Have you any information as to

7 his absence?

8 MR. NIEMANN: Not at all, Your Honour. We

9 have heard nothing.

10 JUDGE MAY: Mr. Kolundzija, will you stand

11 up, please? Your counsel is Mr. Vucicevic. Do you

12 know why he is not here today?

13 THE ACCUSED KOLUNDZIJA: [Interpretation] I

14 don't know, Your Honours.

15 JUDGE MAY: It's certainly not your fault

16 that he is not here. He should be here. We don't

17 propose to hold the hearing as far as the others are

18 concerned up.

19 What we shall do is this: We shall put back

20 your further appearance until tomorrow so that you can

21 be represented before you enter your plea or when you

22 enter your plea to the new indictment. We've the

23 written submissions of your counsel, but he has

24 absented himself when he should be here. We're not

25 going to put the rest of the hearing back.

Page 186

1 So we will hear the other matters. You can

2 remain. Of course, you won't be asked to take part or

3 anything of that sort, but you can hear what happens.

4 If you would like to take a seat.

5 JUDGE MAY: Mr. Niemann, if I may address

6 you, please.

7 MR. NIEMANN: Yes, Your Honour.

8 JUDGE MAY: The further appearance of

9 Mr. Kolundzija will be tomorrow at 2.15.

10 MR. NIEMANN: If Your Honours please.

11 JUDGE MAY: And on that occasion, we shall

12 expect an explanation from counsel as to why he wasn't

13 here today and to show cause why he shouldn't be

14 reported to the Registrar for not being present today.

15 MR. NIEMANN: Yes, Your Honour.

16 JUDGE MAY: The matters which we have to deal

17 with are the matter, first of all, of joinder of the

18 two indictments. There are then some objections to the

19 amended indictment. Finally, there is the issue of

20 depositions and the current status of those issues.

21 I propose that we take those items

22 separately. We have until half past four this

23 afternoon to deal with them, and of course at the end,

24 we will have a Status Conference to decide whether we

25 are to deal with any other matters which have to be

Page 187

1 dealt with.

2 MR. NIEMANN: If Your Honours please.

3 JUDGE MAY: Beginning with the issue of

4 joinder, we have your motion of the 22nd of July, a

5 response on behalf of Mr. Kvocka, we have a response on

6 behalf of Mr. Kolundzija, and the issue arises, of

7 course, under Rules 48 and 49. Put in a very shorthand

8 way, the issue firstly is, of course, whether the

9 incidents as alleged amount to or could be considered

10 as part of the same transaction and whether a joint

11 trial would promote judicial economy and make it easier

12 for the witnesses. Of course, there is the issue that

13 Mr. Zigic is charged in both.

14 We have, as I say, the written submissions.

15 Is there anything that you would like to add?

16 MR. NIEMANN: If Your Honours please. I had

17 prepared some submissions for Your Honours but in very

18 small compass because I would rely very much on our

19 written submissions in this regard. But there are a

20 number of -- a few points that I could make.

21 Particularly, I thought it may assist the

22 Chamber if I was to take you to the recent decision of

23 the Appeals Chamber in the Tadic case, where something

24 is said of the notion of common design and purpose

25 which may assist Your Honours in this matter. But

Page 188

1 apart from that, Your Honours, I would rely much upon

2 my written submissions.

3 Your Honours, the issue of joinder and

4 severance, as Your Honours know, has already been

5 decided by you in the Zigic joinder, and I don't need

6 to take Your Honours to what you've said in that, other

7 than to say to Your Honours that in that case, in your

8 decision, you looked at the question of the position in

9 Prijedor and whether joinder was appropriate there.

10 Your Honours, the two indictments of Zigic

11 and Kolundzija, I would say that that part of the

12 Kvocka indictment and Kolundzija indictment could be

13 looked at together, and one would see that there's a

14 great deal of similarity and, in fact, in a lot of

15 instances, it's precisely the same wording.

16 I'd just point to the fact, Your Honours,

17 that a comparison of the Kolundzija indictment and the

18 Kvocka indictment will show that, for example,

19 paragraphs 1, 2, 5, and 15 are identical; 3, 6, 7, and

20 14, the same evidence would be relied upon. Counts 1

21 to 3, the persecution count in the Kvocka indictment is

22 the same as the one in Kolundzija in relation to the

23 Keraterm camp, and Counts 4 and 5 of the Kolundzija

24 indictment are the same as Counts 6 and 7, paragraph D

25 of the Kvocka indictment.

Page 189

1 I just point to these similarities, Your

2 Honours, to demonstrate, I think, that the evidence

3 that would be relied upon would certainly, just on the

4 wording of the indictment if nothing else, be the

5 same.

6 In my submission, Your Honour, in addressing

7 that point of whether or not it would be efficient,

8 certainly the evidence would be presented. In one

9 case, it would have to be presented again, and that

10 would have the consequence of the impact upon witnesses

11 and so forth, as well as judicial economy.

12 I might just refer Your Honours, without

13 reading it, to paragraph 15 of both indictments, just

14 to direct Your Honours to the point of the fact that it

15 relates to the widespread and systematic attack in the

16 Prijedor municipality. I draw Your Honours' attention

17 to that because, in my submission, Your Honours, that

18 leads in, Your Honours, to the question of this

19 particular jurisdiction and the types of trials that

20 come to this jurisdiction.

21 It's my submission that a joint trial in this

22 jurisdiction should be more the norm rather than the

23 exception, and in support of that submission, I rely on

24 the fact that almost all of the criminal acts that Your

25 Honours will encounter in this jurisdiction would, in

Page 190

1 part, rely on common design or purpose on behalf of

2 some third party, such as a state or a de facto state,

3 and, accordingly, the very nature of the crimes

4 necessitate the participation of more than one

5 individual.

6 I just refer to that, Your Honours, because I

7 think it's instructive when one looks at what the

8 Appeals Chamber said in the Tadic case.

9 Very quickly, Your Honours, in the Tadic

10 case, paragraph 175, page 77 of the majority judgement,

11 Their Honours refer to what the Prosecution said in

12 this regard about the common purpose doctrine and the

13 fact that the Prosecution had maintained that a central

14 aspect of the attack was a policy to rid the region, in

15 this case, the Prijedor region, same region, of the

16 non-Serb population.

17 Now, Your Honours, in paragraph 191, on page

18 82, in relation to this, the Appeals Chamber said, and

19 again I rely on this in support of my submission of

20 joint trials being the norm rather than the exception,

21 Their Honours said:

22 "The above interpretation is not only

23 dictated by the object and purpose of the Statute but

24 is also warranted by the very nature of many

25 international crimes which are committed most commonly

Page 191

1 in wartime situations. Most of the time, these crimes

2 do not result from the criminal propensity of single

3 individuals but constitute manifestations of collective

4 criminality. The crimes are often carried out by

5 groups of individuals acting in pursuance of a common

6 design. The participation and contribution of the

7 members of the group is often vital in facilitating the

8 commission of the offence in question. It follows that

9 the moral gravity of such participation is often no

10 less or, indeed, no different."

11 Their Honours then go on in paragraph 193

12 again to reinforce this and say:

13 "This interpretation, based on the Statute

14 and the inherent characteristics of many crimes

15 perpetrated in wartime, warrants the conclusion that

16 international criminal responsibility embraces actions

17 perpetrated by a collectivity of persons in furtherance

18 of a common design."

19 Your Honours, the Appeals Chamber then goes

20 on to make reference to a number of the World War II

21 war crimes cases and expands upon a definition of

22 common purpose and so forth, which I won't go to now

23 but will elaborate upon in my opening address.

24 They then say, and this is the part that I

25 particularly wish to direct Your Honours' attention to,

Page 192

1 in paragraph 232, in the last part of that paragraph on

2 page 107, Their Honours say:

3 "The only inference to be drawn is that the

4 Appellant had the intention to further the criminal

5 purpose to rid the Prijedor region of the non-Serb

6 population by committing inhumane acts against them.

7 The non-Serbs might be killed in the affecting of the

8 common aim was, in consequence of the present case,

9 foreseeable."

10 Now, Your Honours, Tadic was not a case where

11 the issue of joinder was raised -- or the issue of

12 severance was raised. It wasn't that situation at

13 all. The reason why I think it's very helpful is that

14 it talks about this common design. It speaks of this

15 crime being committed pursuant to a design and that

16 criminality committed by more than one person is

17 inevitable as a consequence of the nature of these

18 crimes.

19 I refer to that, Your Honours, in support of

20 the submission as to why we say that joinder in the

21 circumstances is entirely appropriate. I also rely on

22 it in terms of the definition of "transaction" as it

23 appears in the definition provisions, Rule 2 of the

24 Rules.

25 I won't take Your Honours to the issue of

Page 193

1 delay, other than to say that delay is inevitable if

2 there is a severance. Whether it be that one trial

3 simply follows another -- and in this jurisdiction one

4 can't assume that that will happen because there are

5 lots of other people who would be justifiably making

6 claims upon the Tribunal's time in terms of hearing,

7 and so those other people may well have a better claim

8 to a hearing being brought ahead of somebody who, for

9 whatever reason, say they want a separate trial; so

10 there's many arguments to say that somebody who does

11 persuade Your Honours to give them a separate trial

12 might be put at the very bottom of the list -- but even

13 if that didn't happen, in our submission, Your Honours,

14 it also would be a delay because simply one trial would

15 have to follow the other.

16 As Your Honours have seen in the

17 Blaskic/Kordic experience, these can be quite extensive

18 delays. I'm not suggesting it would be the same here,

19 but nevertheless there would be a significant delay

20 when one splits these trials.

21 In our submission, Your Honours, the delay

22 issue itself is a matter of relevant considerations for

23 Your Honours to take account of.

24 Very briefly, those are the matters that I

25 wanted to touch upon, unless there are any matters that

Page 194

1 I can assist Your Honours with on that.

2 JUDGE MAY: Thank you. Is there anything

3 which Defence counsel would like to add?

4 Yes, Mr. Simic.

5 MR. SIMIC: [Interpretation] Your Honours, the

6 Defence considered all the reasons mentioned by my

7 learned colleague Niemann with due attention, but in

8 our motions, I have to point out that we have offered

9 the position that we are against this because the

10 conditions and circumstances surrounding these trials

11 do not warrant it.

12 We agree that Rule 48 should be considered

13 crucial here, and we believe that Rule 69 does not

14 apply here. Our position is that these are different

15 criminal acts issuing from the same transaction, and we

16 have this in the case of Mr. Kvocka and the others, and

17 these criminal acts have been joined into a single

18 indictment.

19 We are against this joinder because we

20 believe that the criminal acts do not issue from the

21 same transaction. The Keraterm camp was completely

22 different and separate from the Omarska camp, and the

23 accused from the Omarska camp did not even know that

24 the Keraterm camp existed. Mr. Kvocka saw

25 Mr. Kolundzija for the first time when he was brought

Page 195

1 to the detention unit, and vice versa. So in that

2 sense, they are two completely separate facts.

3 Mr. Niemann has referred to the Tadic case.

4 We believe that this is a completely different case and

5 the basis is completely different, and the trial and

6 the Appeals Chamber have ruled according to a different

7 set of circumstances.

8 We would also like to point out that there is

9 a problem here, that is, a thesis was offered about

10 collective guilt. The Prosecution has offered that

11 almost all members of the Serbian population have taken

12 part in the persecution, and we believe that this is a

13 very dangerous thesis and that it can do a lot of

14 harm. I do not say that there have not been many

15 instances of criminal acts in this area of Prijedor,

16 but this is far from being a collective persecution of

17 one ethnic group by another. So we believe that there

18 is no basis for this collective transaction.

19 I also want to point out another point, which

20 is the accused's right for a speedy trial. We believe

21 that this is in Rule 6.1. We believe that it is in the

22 U.S. Declaration of Human Rights, I think that it is in

23 their point 8, and it speaks of the similar rights.

24 In the last Status Conference, we all took

25 the position -- both the Prosecution and the Defence

Page 196

1 said that they were ready to proceed to trial. Now, by

2 joining an additional accused, we are now running

3 counter to this pledge, and we believe that this also

4 should be considered and given proper weight when

5 deciding whether there will be a joinder or not.

6 Also if we are to pursue this logic to its

7 end, should there be another arrest regarding Omarska,

8 or even Keraterm, and we know that there are additional

9 accused in that case, we believe that this would be

10 going ad infinitum because in January or February, we

11 may be again raising the issue of joinder, should there

12 be additional arrests.

13 As far as the judicial economy is concerned,

14 this is another matter. Mr. Kvocka and the other

15 accused have the right to a speedy trial, and we submit

16 that waiting for Mr. Kolundzija and his Defence to

17 prepare themselves is inconsistent with the speediness

18 of trial. There will be additional time and additional

19 means involved, and we believe that, therefore, we need

20 to proceed with this trial of the four accused and that

21 Mr. Kolundzija should be tried separately and perhaps

22 joined with some additional accused, should they be

23 apprehended.

24 So we believe that the conditions of Rule 48

25 have not been met. Except for the fact that all these

Page 197

1 acts were committed in the area of Prijedor, we believe

2 that it is limited to those who have been accused so

3 far and not to the rest of the members of the Serbian

4 ethnic group.

5 Thank you.

6 JUDGE MAY: Mr. Simic, you used the term "we"

7 in your submissions. Were you speaking on behalf of

8 other Defence counsel, or was it merely a forensic

9 expression?

10 MR. SIMIC: [Interpretation] It was collective

11 in the sense of representing the accused Kvocka.

12 JUDGE MAY: There's one matter which I want

13 to raise about this which is with Mr. Tosic. If we

14 were to refuse the motion, the logic would be, wouldn't

15 it, that Mr. Zigic would be severed from the indictment

16 to this extent, that the counts relating to Keraterm,

17 as far as he's concerned, would have to be tried

18 separately, wouldn't they? That would be the logic of

19 it.

20 MR. TOSIC: [Interpretation] Your Honours,

21 with respect to the joinder of the indictments, the

22 Defence of Mr. Zigic is against the joinder and seconds

23 my learned colleague Simic and Kvocka's defence

24 position.

25 I want to point out that my client has

Page 198

1 voluntarily surrendered. He believed that there would

2 be an expeditious trial, and a long period of time has

3 already elapsed, so that he is in a position now that

4 if the Kolundzija case is joined, we will then continue

5 with this process of waiting.

6 Our position is to ask that the case of

7 Kolundzija not be joined in with my client's case.

8 Thank you.

9 JUDGE MAY: Yes. Does anybody else want to

10 say anything briefly, please?

11 MR. NIKOLIC: [Interpretation] Your Honours,

12 I'll be very brief.

13 With respect to the motion of 17 June, 1999

14 for the joinder, the Defence responded by their motion

15 of the 2nd of July, and we abide by this position.

16 With regard to the comments made by my

17 learned colleague, Niemann, they were general remarks.

18 We believe the general parts and what was said about

19 the Tadic case will have their own weight, but what

20 will be the issue here is the command responsibility of

21 the accused. The main argument against the joinder is

22 that Mr. Kos was arrested and first pled on the 2nd of

23 June and pled in December, and Mr. Kolundzija has pled

24 only this year.

25 It is certain that this will certainly delay

Page 199

1 the proceedings, but I would like to offer that we

2 perhaps discuss your proposal and then try to reach a

3 decision with respect to your proposal with respect to

4 the accused Zigic.

5 JUDGE MAY: There's no proposal. It's merely

6 the logic of finding one way or the other.

7 MR. NIKOLIC: [Interpretation] It was a

8 suggestion.

9 JUDGE MAY: Yes, Mr. Fila.

10 MR. FILA: [Interpretation] Your Honours, I

11 will be very brief.

12 I will reiterate the position of 24 June, the

13 motion, and I will just say that what Mr. Neimann has

14 said has its weight, but everything also has to have a

15 limit. Having accepted Mr. Niemann's comments

16 regarding the general circumstances and general

17 allegations, everything can be subsumed under those

18 general allegations in Prijedor, Sarajevo, and

19 everywhere else, and we have to draw the line

20 somewhere.

21 Other possibilities are possible. Let's say

22 that the accused, Zigic, be severed and then joined

23 with Kolundzija, for instance, have Omarska separately

24 and Keraterm separately, and you will still have the

25 general allegations which will dovetail.

Page 200

1 I would just like to remind Mr. Niemann of an

2 interesting suggestion which he offered at the

3 beginning of our trial, when he said that certain

4 segments of the judgement which can be agreed on be

5 stipulated, and those were the -- I had expected that

6 he would propose that these portions be stipulated and

7 that we would then just proceed to determining

8 individual responsibilities. Otherwise, we will just

9 keep going on and on.

10 Knowing Mr. Vucicevic to the extent that we

11 know him, we know that this will take a while. He has

12 to be given deadlines for his preliminary motions and

13 so on. Perhaps it would be wiser to sever Zigic and

14 join him with Kolundzija. In this case, we would have

15 a clean -- just the Omarska and Keraterm cases.

16 JUDGE MAY: Just in support of that, of

17 course, Mr. Fila, it must be said that originally there

18 were two indictments: There was a Keraterm indictment,

19 as I understand, and there was an Omarska indictment.

20 So there were two to start with.

21 One of the things one has to look at in these

22 sort of cases is that circumstances change, and the

23 Court has to look at matters in the light of the

24 present circumstances as opposed to what might have

25 been the circumstances before.

Page 201

1 Thank you very much.

2 JUDGE BENNOUNA: [Interpretation] Mr. Tosic,

3 in connection with the question that has been raised by

4 the President on the accused Zigic, who was in fact in

5 Keraterm, but the problem is that we would like to know

6 the position of the Zigic Defence because, according to

7 the indictments, both camps concern him.

8 We have just heard the opinion of Mr. Fila on

9 this issue. Could we hear from the Zigic Defence

10 counsel? What is his view regarding the joinder or

11 not, in view of the fact that the accused Zigic is

12 affected by both camps? The indictments refer to both

13 Omarska and Keraterm, though he was in Keraterm

14 basically.

15 MR. TOSIC: [Interpretation] Your Honours, you

16 have already ruled once on the joinder of the trial of

17 my client with the trials of the others, with the

18 exception of Kolundzija. Our position remains that the

19 Kolundzija trial should be separate; otherwise, we

20 would come in a position where, as my colleague Fila

21 has said, we would have to wait for a long time for the

22 Kolundzija Defence to be ready, so that our position

23 remains that we remain part of this trial, rather, that

24 we should not be joined with the Kolundzija trial.

25 JUDGE MAY: What would happen -- what might

Page 202

1 happen is that the indictments are severed into a

2 Keraterm indictment and Omarska indictment, as the

3 indictments originally were. The effect of that would

4 be that Mr. Zigic was on both, that the Omarska

5 indictment -- the Keraterm counts would be taken out of

6 the Omarska indictment and put into a new Keraterm or

7 an old Keraterm indictment. Do you see? The effect of

8 it would be that your client would face two trials, and

9 it's really on that aspect of the case that the Chamber

10 would wish to hear your views. Alternatively, the

11 Omarska trial would have to hear a whole lot of

12 evidence about Keraterm in order to try your client on

13 those matters, and then hear the same evidence again in

14 the case of Kolundzija.

15 MR. TOSIC: [Interpretation] Your Honours, as

16 I already said, you ruled once on the joinder of the

17 trials, and it is our view that we would not agree to

18 the severance, so a separate trial would be conducted

19 for Kolundzija and a separate one for the others. So

20 our position remains that we should have a trial

21 separate from Kolundzija in the interest of judicial

22 economy and a speedy and expeditious trial.

23 Thank you.

24 JUDGE MAY: Mr. Niemann, on that final point,

25 I don't know if the Prosecution would like to say

Page 203

1 anything. Would that be the logic? If we were to

2 separate Mr. Kolundzija and the Keraterm counts that

3 he's on, or not to allow joinder, rather, would the

4 logic be that there should be a separate Keraterm

5 indictment, as there was?

6 MR. NIEMANN: I imagine that would happen,

7 but the difficulty is in hearing the Omarska case,

8 there are certain aspects of the Keraterm evidence that

9 would come into it on the basis of the way the

10 indictment is drafted, and that's why I particularly

11 took Your Honours to paragraph 15, which speaks of --

12 and what the Appeals Chamber has upheld in the Tadic

13 case, which is the persecution being on a Prijedor-wide

14 basis.

15 The logic, in my respectful submission, is

16 that not much would be saved by trying to draw this,

17 what we would call, artificial distinction between

18 Keraterm and Omarska. It's an artificial distinction

19 because the persecution covers both and both are

20 intertwined with each other. So there would be pieces

21 of evidence at least in relation to Keraterm that you

22 would hear in Omarska, bearing in mind, Your Honours,

23 that Mr. Zigic is charged with offences that occurred

24 in Omarska. So you would hear that evidence as well.

25 In terms of efficiency and economy, in our

Page 204

1 submission, the only way that that can be achieved is

2 by hearing the Keraterm and Omarska cases together

3 because, inevitably, there will be evidence of that.

4 Indeed, if Your Honours look at the

5 indictment, it not only speaks of the Keraterm and

6 Omarska camps, but it also speaks of Trnopolje, which

7 is part of the overall persecution. That is why I

8 particularly took Your Honour to what the Appeals

9 Chamber said in Tadic, because it directly supports our

10 position on that.

11 I hope that assists, Your Honours.

12 JUDGE MAY: Thank you. Very well. We will

13 consider this matter and we will rule upon it in due

14 course.

15 Let us turn to the next matter, which is the

16 subject of motions, and it concerns the amended

17 indictment in the Kvocka case in which all the accused

18 have submitted motions and the Prosecution have

19 responded.

20 Now, does anybody want to add anything to

21 what's already been submitted on paper in relation to

22 those matters? Very well.

23 The final substantial matter is the question

24 of depositions, a matter which was raised by the Court

25 and in which there has been assistance by the parties,

Page 205

1 for which the Court is grateful, although it may be

2 that the circumstances are rather different than the

3 time when the matter was raised.

4 The agreement of the parties, as I understand

5 it, is that they would agree to some seven Prosecution

6 witnesses and five possible Prosecution witnesses being

7 the subject of depositions. The agreement extends to

8 something over 50 Defence witnesses, as I understand

9 it. Of course, if it were possible to take depositions

10 from those witnesses, that would lead to a very

11 considerable saving of public time and money.

12 The legal position is altered by the decision

13 of the Appeals Chamber in Kupreskic of the 15th of

14 July, and it's on that matter which I have invited

15 submissions.

16 Just reminding everyone of what the Appeals

17 Chamber said, the majority said that "Rule 71," and

18 this is paragraph 19, "must be construed strictly in

19 accordance with its original purpose, providing an

20 exception to the general rule for direct evidence to be

21 furnished, and any relaxation must require the consent

22 of the accused."

23 "It is clearly envisioned," they say in the

24 next paragraph, "that taking of deposition is to be

25 effected away from The Hague only in cases where

Page 206

1 witnesses, because of exceptional circumstances, are

2 unable to appear physically before the Trial Chamber."

3 This case, of course, of Kupreskic involved

4 the illness of one of the Judges, and the two remaining

5 Judges are going on to hear evidence. It was a case in

6 which the accused did not consent to the course which

7 was taken, but that is what the Appeals Chamber said,

8 although there was a separate opinion from Judge Hunt

9 at paragraphs 25 to 28, who pointed out there was

10 nothing in the Rule to limit the use of the depositions

11 in the way that the majority said. That is the legal

12 position at the moment.

13 There is also the question of

14 practicalities. If we were to consider, and it is a

15 matter which is not at all decided, but were we to

16 consider it possible to have depositions taken, there

17 is the practical matter of how this could be arranged.

18 So that is the current situation.

19 Mr. Niemann.

20 MR. NIEMANN: If Your Honours please. Your

21 Honours, in respect of the decision that you directed

22 us to in Kupreskic, might I say that we would proceed

23 on the basis that agreement has been reached between

24 the parties. Now, I'm not attempting to speak for them

25 as of today, but certainly at a point in time when we

Page 207

1 filed our motion, that was certainly the case. So in

2 terms of the strict interpretation of the provision as

3 such, we would say that in any event we come within the

4 relaxation which would be permissible.

5 In terms of whether or not exceptional

6 circumstances exist in any event, it's our submission

7 that having regard to the fact that these trials could

8 proceed more expeditiously, albeit more likely in the

9 Defence case than the Prosecution case, having regard

10 to the present circumstances, then in our submission,

11 that is an exceptional circumstance having regard to

12 the position at the moment. We say that it's not a

13 case of whether or not the Trial Chamber can hear the

14 situation -- hear the witness, which was the situation

15 in the Kupreskic case to which Your Honours referred us

16 to; it's a case of the trials being expedited in terms

17 of their length and the hearing, and we say that under

18 the current circumstances, that is an exceptional

19 circumstance in any event.

20 So there's two prongs to what we say:

21 Firstly, we say we have consent, so we are entitled to

22 a less rigid application of the Rule as it may have

23 been interpreted by the Appeals Chamber; secondly, we

24 say that there are exceptional circumstances in any

25 event.

Page 208

1 Our submission, Your Honour, is that if this

2 would facilitate a more expeditious proceeding and

3 hearing of the matter, then that is an appropriate

4 course to take, and they are exceptional circumstances

5 in the situation.

6 As has been pointed out to me by Mr. Keegan,

7 Your Honours, it may not have been an exceptional

8 circumstance, when the Rules were drafted, to take

9 steps to expedite the hearings, but as was pointed out

10 by His Honour Judge Hunt in his separate opinion, the

11 way matters are now at the moment, with the trial load

12 of the Trial Chambers, any steps to reduce the length

13 of these trials and to bring them on at a faster rate,

14 or to permit the hearings more expeditiously, is, in

15 his opinion, an exceptional circumstance.

16 I found nothing in the decision of the

17 majority that -- I should say, of the other Judges of

18 the Appeals Chambers that would dissent from that.

19 In our submission, Your Honours, there is

20 nothing in the decision of Kupreskic that would prevent

21 us from proceeding further, with this way of hearing

22 evidence by deposition. Much, of course, would depend

23 on whether or not there is to be a trial date set, and

24 if a trial date were set, then presumably that would

25 overcome that.

Page 209

1 If I may, the Prosecution is ready for trial,

2 not withstanding that it was suggested, I think, by the

3 Defence earlier that if Mr. Kolundzija was joined, then

4 somehow or other that would slow us down. It won't.

5 We're ready for trial now, irrespective of whether

6 Mr. Kolundzija is joined or not.

7 That's our position, Your Honour.

8 JUDGE ROBINSON: Mr. Niemann.

9 MR. NIEMANN: Yes, Your Honour.

10 JUDGE ROBINSON: I understand you to be

11 saying that in the present situation, there is always

12 an exceptional circumstance. I'd like to give some

13 thought to that.

14 Secondly, I would like to ask that if we were

15 to order depositions to be taken, as a practical

16 matter, how would you see it being effected?

17 MR. NIEMANN: I would see it being effected,

18 Your Honours, by a presiding officer being appointed

19 and going to the particular region where the witnesses

20 are and to proceed to take their evidence by way of

21 deposition, which would be recorded by video camera, I

22 should mention.

23 We did set out some of the things that would

24 be required in our motion, but that would be a matter

25 which would need to be discussed perhaps further. It

Page 210

1 is something that I believe could be achieved and

2 achieved reasonably quickly.

3 JUDGE ROBINSON: Who would qualify to be a

4 presiding officer?

5 MR. NIEMANN: There's nothing in the Rules

6 that set that out, Your Honour, but it seems to me that

7 it could be either a Judge of the Chambers, if there

8 was such a Judge available. It wouldn't need be a

9 Judge of this Chamber. Alternatively, it could be a

10 legal officer. We wouldn't be asking, if it was a

11 legal officer, to rule on questions of admissibility

12 and so forth. We would ask that they be preserved and

13 brought back to Your Honours and decided at the time.

14 But it seems to me that a legal officer from either the

15 Chambers or the Registry may be able to perform that

16 task.

17 JUDGE ROBINSON: Thank you.

18 JUDGE MAY: Yes, Mr. Fila.

19 MR. FILA: [Interpretation] Your Honours,

20 without taking too much of your time, may I speak on

21 behalf of all Defence counsel?

22 There was something that we agreed upon at

23 the outset, and I see no reason that I could offer

24 against the arguments offered by Mr. Niemann and

25 Mr. Keegan. So we fully support what Mr. Niemann has

Page 211

1 said, as we consider them to be positive arguments.

2 Nevertheless, there is one thing that we are

3 forgetting. If a joinder occurs with Mr. Kolundzija,

4 there will be another Defence counsel who would have to

5 agree with this. I am a little concerned about that.

6 On the other hand, we also have to bear in

7 mind that we have to go through the whole procedure.

8 Believe me, it doesn't matter whether it will be a

9 legal officer, presiding officer, or a Judge. What is

10 important is that it should be expeditious and that we

11 respect the rule that we have agreed upon that these

12 should be witnesses about the background and possibly

13 about sentencing. We would not necessarily burden the

14 trial with witnesses that do not directly affect the

15 accused. Those are the criteria that we agreed upon.

16 The more expeditiously we do this, the better

17 it will be for all of us, but we have to have the

18 approval of Defence counsel for Kolundzija in the event

19 of a joinder, which will further slow things down.

20 This is something that we may have omitted to point out

21 in the course of this hearing, because the key argument

22 of the decision of the Appeals Chamber was the

23 dissenting opinion of one of the Defence counsel, so we

24 need to have his consent.

25 The four of us agree with everything that

Page 212

1 Mr. Niemann and Mr. Keegan have suggested, and we will

2 certainly not appeal against it. Whether it is a legal

3 officer, a presiding officer, or a Judge, the Defence

4 agrees we have every faith in your choice.

5 Thank you, Your Honour.

6 --- Whereupon the Motion Hearing

7 adjourned at 4.03 p.m., to be followed

8 by a Status Conference


















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