1. 1 Monday, 11 May 1998

    2 (In open session)

    3 (The accused entered court)

    4 --- Upon commencing at 10.05 a.m.

    5 JUDGE MAY: Yes. Let the registrar call the

    6 list.

    7 THE REGISTRAR: Good morning, Your Honour.

    8 Case number IT-95-4-PT, The Prosecutor versus Kvocka,

    9 Radic, and Zigic; case number IT-95-8-PT, The

    10 Prosecutor versus Zigic; case number IT-97-24-PT, The

    11 Prosecutor versus Milan Kovacevic.

    12 JUDGE MAY: The appearances, please.

    13 MS. HOLLIS: Good morning, Your Honours. I

    14 am Brenda Hollis, and I along, with my colleagues,

    15 Michael Keegan and Ann Sutherland, appear on behalf of

    16 The Prosecutor.

    17 JUDGE MAY: Yes. For the defence?

    18 MR. VUCICEVIC: Good morning, Your Honours.

    19 Dusan Vucicevic, together with Professor D'Amato, on

    20 behalf of Dr. Kovacevic.

    21 MR. TOSIC: Defence counsel Tosic appear on

    22 behalf of the accused Zoran Zigic.

    23 MR. GUBERINA: Your Honours, lawyer Veljko

    24 Guberina, Belgrade, appearing as Defence counsel for

    25 the accused Mladen Radic.

  2. 1 MS. GRAHOVAC: Your Honour, I am for the

    2 defence on Mr. Kvocka, replacement.

    3 JUDGE MAY: Your name, please?

    4 MS. GRAHOVAC: Slavica Grahovac.

    5 JUDGE MAY: Now, can the defendants all hear

    6 in a language which they understand? Can you hear?

    7 Very well. Now, these cases are being listed

    8 together for this reason: The case of Milan Kovacevic

    9 was due to be tried today, but the Prosecutor, as those

    10 in the case will know, applied to amend the indictment,

    11 and that motion was refused by the Trial Chamber.

    12 Against that decision the Prosecutor has appealed, and

    13 the Appeal Chamber hasss not yet decided the appeal.

    14 So the position is this, that the trial of

    15 Mr. Kovacevic cannot start today and, indeed, cannot

    16 start until the Appeals Chamber has determined the

    17 appeal.

    18 Meanwhile, the other three accused have

    19 appeared before another Trial Chamber, and the

    20 Prosecutor now applies for the joinder of these cases

    21 or, rather, the concurrent presentation of evidence, as

    22 it is put, and that motion is listed for hearing today

    23 together with a number of motions in the case of Milan

    24 Kovacevic.

    25 It is obviously convenient to hear the motion

  3. 1 for joinder first, and that we will turn to now.

    2 Ms. Grahovac, I wonder if I could address you

    3 on behalf of the Defence counsel? The position is

    4 this, that the Defence in your cases have not yet, as

    5 we understood it, received any of the material; is that

    6 right? Is that right? Perhaps you could confirm it so

    7 we can have it on the record?

    8 MR. GUBERINA: On behalf of the accused

    9 Radic, it was already on the 1st of May that we raised

    10 an objection and we sent it in written form to Your

    11 Honours, to the Trial Chamber, and we adhere to that

    12 strictly because we would find ourselves in an

    13 extremely unfavourable situation, and this is our

    14 right; and in the name of honour and conscience, me, as

    15 Defence counsel who has been Defence counsel for 45

    16 years, working in crimes of the highest degree, and in

    17 view of the fact that we are before a high institution,

    18 an eminent institution, that the world is looking up to

    19 and expecting decisions to be brought which shall form

    20 in the future judicial practice for all the lawyers of

    21 this world, in view of all this and in view of our

    22 professional ethics, we have to ask the Trial Chamber

    23 that we be provided, in order to be able to acquaint

    24 ourselves with it, the complete material, both in terms

    25 of the indictment of Mr. Radic, also the material which

  4. 1 has to do with the indictment of Dr. Kovacevic, who has

    2 suddenly, I, as counsel, have to be in a position to be

    3 able to prepare myself to reply to the indictment, and

    4 it was very suddenly that we were informed about this

    5 joinder.

    6 So, Your Honours, in view of the fact that I

    7 neither have the complete material in regard of my --

    8 of the accused that I'm defending and that we only have

    9 half of the file -- of course, we have been promised to

    10 get it -- and in terms of the material which charges

    11 Dr. Kovacevic, we have no knowledge whatsoever why he

    12 is being incriminated and what he is being charged with

    13 in respect of which my Defendant would be implicated,

    14 and we fail to see any link between that and the

    15 indictment of Dr. Kovacevic.

    16 That is why I wish to hear, on the basis of

    17 what argument and on the basis of what facts stemming

    18 from the material which was used in the process against

    19 Dr. Kovacevic, on the basis of what was the disposition

    20 arrived at that this should be linked with the trial of

    21 my Defendant, the accused that I'm defending.

    22 So, please, Your Honours, given my 73 years

    23 of age and my 45 years of experience as Defence counsel

    24 and also a member of the Amnesty International in

    25 London for 24 years and a champion of the abolition of

  5. 1 the death sentence, I would like you to provide me with

    2 a satisfactory answer.

    3 Thank you.

    4 JUDGE MAY: Mr. Guberina, we have, of course,

    5 received your motion, and we have considered it. We

    6 understand fully your position and, I should say, the

    7 position of other Defence counsel who have not received

    8 the material.

    9 Could you switch the microphone off, please?

    10 The position is that you have not had all the

    11 material; therefore, you say, naturally enough, that

    12 you are not in a position to respond to a motion about

    13 the conduct of the case until you have had all the

    14 material and the indictment, and that position we fully

    15 understand. Nonetheless, we have decided to list the

    16 matter today for this reason: that we want to hear

    17 argument upon it.

    18 In the case of Mr. Kovacevic, this is a

    19 matter which must be resolved quickly in order that his

    20 trial can begin, and this is an opportunity, the Trial

    21 Chamber feels, for these matters to be aired in public

    22 and for at least a preliminary view to be taken upon

    23 them.

    24 We have very much in mind the position which

    25 you mention. We have in mind your motion, and we shall

  6. 1 not make any orders in respect of those accused who

    2 have not had the material until they have had it and

    3 counsel have had the opportunity to address us upon it.

    4 So that means this, that we will hear the

    5 matter. If it can be resolved by agreement, it will

    6 be. If it is rejected, it will be. If, on the other

    7 hand, we are minded to make orders which would concern

    8 your clients and upon which you wish to address us when

    9 you have had the material, then we will have that in

    10 mind and no orders will be made until such time as you

    11 have had the material.

    12 So at the moment, this is a preliminary

    13 hearing for us to at least understand what the motion

    14 is all about, and it may indicate a preliminary view

    15 or, if we can, make a final ruling.

    16 So you can rest assured we have your motion

    17 and your position in mind.

    18 With that, if I can turn next to the

    19 Prosecution. Ms. Hollis or Mr. Keegan, whoever is

    20 dealing with this more appropriately.

    21 This motion clearly raises important issues

    22 which have not been raised, I think I'm right in

    23 saying, before this Tribunal before. They concern

    24 the joinder of indictments and the concurrent hearing

    25 of evidence. And, of course, we have to have in mind

  7. 1 that they must be decided against this background: On

    2 the one hand, the Trial Chamber is required by Article

    3 20 of our Statute to secure a fair and expeditious

    4 trial for the accused. On the other, we must have

    5 regard to the protection of witnesses and victims. So,

    6 accordingly, we have to strike a balance of interests

    7 in deciding this matter.

    8 But let me, at the outset, say this, that in

    9 national jurisdictions, this is a matter, which it may

    10 be, can be sorted out between counsel, that it is a

    11 matter which is very much for discussion, the order of

    12 evidence, the way it is given, that sort of thing; and

    13 so if there is anything to be gained by discussion

    14 between counsel, time is available for it, and I would

    15 like to make that point as far as all counsel are

    16 concerned.

    17 We have this courtroom today and tomorrow

    18 and, indeed, for the rest of the week, it may be, so if

    19 there is anything to be done by way of agreement in

    20 order to resolve the problem, we, as a Trial Chamber,

    21 would encourage it.

    22 And perhaps, Mr. Keegan, I could begin by

    23 asking if there has been any discussion between

    24 counsel, discussion which you feel you can mention to

    25 the Trial Chamber -- of course, there is no need to

  8. 1 mention something you don't want to -- but if there has

    2 been any discussion which you think might be of

    3 assistance to us, perhaps you would let us know. We

    4 notice, for instance, that Mr. D'Amato has made a

    5 suggestion about the way in which the case can be

    6 presented. It doesn't clearly follow your motion, but

    7 it is a possible compromise.

    8 MR. KEEGAN: Yes, Your Honour. There have

    9 not been any discussions with counsel on this issue,

    10 and with respect to Mr. D'Amato's suggestion, we don't

    11 feel that that addresses the central issue here, which

    12 is the protection for the witnesses and victims --

    13 JUDGE MAY: Well, I will hear you in a

    14 moment. The position is this, that we will

    15 certainly -- we will hear argument about it now. There

    16 will be the usual break, and it may be that time can

    17 usefully be spent during the break between counsel to

    18 discuss this matter, and if any round table discussion

    19 or anything of that sort could assist to resolve it,

    20 then you will have the time necessary.

    21 But before I hear you, Mr. Keegan, let me

    22 just make sure that I have got it right in my own mind

    23 what it is you are asking for because it seems that the

    24 Prosecution seek orders on three matters: First of

    25 all, you are asking for the case against all four

  9. 1 accused be heard by the same Trial Chamber, and that,

    2 presumably, is under Rule 54, which gives us power to

    3 make such orders as may be necessary for the purposes

    4 of the conduct of the trial.

    5 Next, as I understand it, that in the case of

    6 the three most recently arrived accused, that is,

    7 Messrs. Radic, Kvocka, and Zigic, you are asking that

    8 the two indictments against them be tried together, and

    9 that will require a consideration of Rule 48 which

    10 allows persons accused of the same or different crimes

    11 committed in the same transaction to be jointly charged

    12 and tried.

    13 Thirdly, you are asking that the evidence

    14 against all four should be presented concurrently; and

    15 in that connection, there will be a need to consider

    16 Article 20 of the Statute which I have mentioned and

    17 Rule 75(A) which permits us to order appropriate measures

    18 for the protection of witnesses, provided that they are

    19 consistent with the rights of the accused.

    20 Presumably, the decision on the first two

    21 matters, that is, concerning the joint trial of all

    22 four and the joinder of the indictments, that the

    23 decision on those two matters really depends on our

    24 decision on the third matter, that is, in relation to

    25 the concurrent presentation of the evidence, because if

  10. 1 we are against you on the third, the first matter falls

    2 and won't have to be considered in any event, and the

    3 second matter, that is, about the joinder of the

    4 indictments, that would be for the Trial Chamber who

    5 dealt with the trial of those three accused.

    6 Is that a right analysis of the motion?

    7 MR. KEEGAN: That's right, except to the

    8 extent that with respect to your first point, strictly

    9 speaking, we are not requesting that they necessarily

    10 be heard by the same Trial Chamber. In a concurrent

    11 presentation of evidence, theoretically and technically

    12 it's possible to have two Chambers hearing the evidence

    13 concurrently. So that, as a technical matter, is

    14 not --

    15 JUDGE MAY: I thought that was what was in

    16 your motion, and I merely copied it out.

    17 MR. KEEGAN: But the first matter, Sir, was

    18 we decide as a matter of practicality to try to have

    19 all the accused assigned to the same Trial Chamber to

    20 facilitate that, but as a technical matter, if the

    21 decision was that concurrent presentation of evidence

    22 was appropriate but yet it was difficult to have the

    23 same Chamber hear all of the cases, it would be

    24 technically possible to have two Chambers hearing the

    25 same evidence. That's our only point.

  11. 1 JUDGE MAY: Very well.

    2 MR. KEEGAN: As a practical matter, I think

    3 you're probably correct, but I'm not so sure it's

    4 technically required.

    5 JUDGE MAY: Just help us with this before we

    6 go into the argument: Mr. Guberina suggested that some

    7 of the material had been served on Defence counsel in

    8 those three cases.

    9 MR. KEEGAN: Yes, sir.

    10 JUDGE MAY: Can you help us as to how much

    11 and what your position is?

    12 MR. KEEGAN: I could. On the 5th of May,

    13 part of the supporting materials, that is, the

    14 statement of facts, the extracts of evidence relating

    15 to the individual accused, were hand-delivered by

    16 members of the OTP to the Defence team for Radic and

    17 Kvocka, and then on the 5th of May -- excuse me, the

    18 7th of May, the supporting material, including

    19 statements related to the individual accused, were

    20 delivered to Mr. Tosic for the accused Zigic and the

    21 remainder of the statements to counsel for Kvocka. The

    22 remainder of the statements were also conveyed by

    23 courier to Belgrade to Mr. Guberina's office on the 7th

    24 of May. So from the OTP's perspective, we believe that

    25 all the supporting material has now been conveyed to

  12. 1 all of the counsel.

    2 JUDGE MAY: Can I turn to defence counsel.

    3 MR. TOSIC: Your Honours, what has been said

    4 by the Prosecution in respect of that, neither myself

    5 nor my defendant, Zoran Zigic, have received in our

    6 native tongue -- I left Banja Luka, actually material

    7 arrived the following day in the English language, so

    8 it was not of use to me. As regards the segment of my

    9 colleague, Guberina and I wholly subscribe to his

    10 opinion as regards the joinder in this particular

    11 case. Thank you.

    12 JUDGE MAY: Mr. Guberina, what have you

    13 received?

    14 MR. GUBERINA: It is with particular

    15 pleasure, Your Honour, that I can say that on the 5th

    16 of May, when I was to see the Defendant for the first

    17 time, indeed we did receive at 15 to 9 on the 15th of

    18 May a part of the material, and I should like to thank

    19 our colleague, I believe her name is Ann, I should like

    20 to thank her very much, because when we asked her about

    21 the material the day before she told us, "Please, you

    22 will have to wait a bit" as she was taken a bit by

    23 surprise and as I myself was taken by surprise because

    24 that had been some twenty days after the indictment had

    25 been served on us without having received any

  13. 1 supporting material then our colleague Ann asked where

    2 we were so that she could contact us that very evening

    3 by telephone and give us a part of the material on the

    4 next day.

    5 So that part of the material which we have

    6 received is this. That is it. We also said that for

    7 the purposes of the defence, please send it to us also

    8 in the English language; we will have it translated.

    9 And we did so. It is here. But we have no

    10 possibility -- we really cannot accept the fact that

    11 the Defendant has not received this because we want to

    12 go through it together with him once the complete

    13 material has been made available. We, of course,

    14 signed the receipt of that part of the material on the

    15 day that we received.

    16 Now, if anything has arrived in the meantime,

    17 and I can see that the OTP is referring to material

    18 dated the 7th of May, I cannot say at this particular

    19 point in time whether I can accept it because I am not

    20 sure whether it has indeed arrived. If it has, I will

    21 be most grateful and we will certainly acquaint

    22 ourselves with the substance of the material, but this

    23 will not detract from nor change our principal

    24 attitude, which is that we will ask the Trial Chamber

    25 that we be given a certain period of time, which we

  14. 1 need in order to familiarise ourselves with the

    2 material in full and discuss it with the Defendants so

    3 as to be able to address this court and say that we do

    4 indeed appear as Defence counsel. Thank you.

    5 JUDGE MAY: Ms. Grahovac, can you assist on

    6 this?

    7 MS. GRAHOVAC: Yes. Concerning our client,

    8 Mr. Kvocka, our position remains that the proceedings

    9 for all the accused should be separate and our position

    10 is negative on the joinder of the proceedings for

    11 Messrs. Kovacevic and Zigic in question. And I think,

    12 Your Honour, that you have received our preliminary

    13 motion as well.

    14 JUDGE MAY: I'm not sure we have. I don't

    15 know that we've received anything.

    16 MS. GRAHOVAC: Dated the 7th of May.

    17 JUDGE MAY: Yes, I'm told it has been filed.

    18 It hasn't reached me. But can you help us? I should

    19 have asked you this before. Where is Mr. Simic? He is

    20 Defence counsel, isn't he?

    21 MS. GRAHOVAC: I am replacement.

    22 JUDGE MAY: I know you're standing in and

    23 we're very grateful to you for doing it.

    24 MS. GRAHOVAC: I think he was prevented to

    25 come, but next time, I think that he'll come.

  15. 1 JUDGE MAY: Perhaps you would like to make,

    2 if you can, make some inquiries as to where he is.

    3 MS. GRAHOVAC: Yes, I will.

    4 JUDGE MAY: During the day, and perhaps you

    5 could tell us.

    6 MS. GRAHOVAC: Yes, I will.

    7 JUDGE MAY: Because he should be here.

    8 MS. GRAHOVAC: I hope so.

    9 JUDGE MAY: Thank you.

    10 MR. KEEGAN: Your Honour, if I might further

    11 clarify on this issue of the disclosure? At the

    12 initial appearance of Kvocka and Radic as well as at

    13 the initial appearance of Zigic, the temporary counsel

    14 assigned at that time, who were counsel appearing in

    15 other cases before the Tribunal, on the record,

    16 requested that they not receive, that they not be given

    17 the supporting materials, and that rather that the

    18 office of the Prosecutor wait until permanent counsel

    19 or counsel of choice were assigned and that they

    20 arrived at The Hague to see their clients and that they

    21 then be given the supporting material, and that is why

    22 the delay has been up until this point because we have

    23 been waiting to get full answers on assignment of

    24 counsel. Unfortunately, we received Mr. Guberina's

    25 request on the same day that he arrived here, which

  16. 1 accounts for the surprise he attributed to

    2 Ms. Sutherland, because we only received the request

    3 itself and then he was here on the same day. But it's

    4 our understanding that I believe much of the material

    5 has been translated now into Serbo-Croatian, although

    6 not the statements themselves, but the other supporting

    7 material, the extracts and the other material. I will

    8 have to verify that, however. But as you know, the

    9 translation resources are a bit scarce, and it's our

    10 understanding that some, but not all, may have already

    11 been translated, and if so we will endeavour to provide

    12 that today or tomorrow.

    13 JUDGE MAY: What I think we may ask you to

    14 do, Mr. Keegan, is to find out, so we have a final

    15 updated position today sometime, as to what has been

    16 delivered and in what language and what, if anything,

    17 is outstanding.

    18 MR. KEEGAN: We know that all of the material

    19 has been sent, Your Honour. Whether it passed counsel

    20 in transit, but it has all been sent in the English

    21 language, and the Serbo-Croatian language we have been

    22 awaiting, and it may at this stage be done or in part,

    23 and we will verify that before the close of business

    24 today.

    25 JUDGE MAY: Yes. We will hear your argument,

  17. 1 Mr. Keegan.

    2 MR. KEEGAN: Thank you, Your Honour.

    3 As Your Honour correctly pointed out in your

    4 summary of the issues and as we raised in our motion,

    5 the principal Article involved here is Article 20 of

    6 the Statute which sets out the objective for trials

    7 before this Tribunal, that is a fair -- that the

    8 accused be given a fair and expeditious trial.

    9 In conducting that trial, Article 20 points

    10 to two principles, and that is full respect for the

    11 rights of the accused and due regard for the protection

    12 of victims and witnesses. By "protection," we submit,

    13 the Statute intends that term to encompass far more

    14 than physical security of the witnesses but also means

    15 their physical and mental well-being. The inclusion of

    16 the principle for the protection of victims and

    17 witnesses in Article 20, and in particular in Article

    18 22, indicates the importance that must be given to the

    19 protection of victims and witnesses. The only

    20 limitation on the measures that may be taken by a Trial

    21 Chamber is where such steps may be in conflict with the

    22 rights of an accused to a fair trial.

    23 Article 22 of the Statute and Rule 75 of the

    24 Rules of Procedure and Evidence further define the

    25 mandate of the Trial Chamber to order appropriate

  18. 1 measures for the privacy and protection of witnesses.

    2 That mandate includes the method or manner in which

    3 testimony is given, and control of the questioning of

    4 the witnesses.

    5 In considering these issues, it must be noted

    6 that the principle of a fair trial does not equate to

    7 nor mean a perfect trial, nor does it mean a trial

    8 conducted in accordance with an accused's wishes or

    9 preferences; rather, it means a trial that accords the

    10 accused the rights set forth in Article 21 of the

    11 Statute. Provided those rights are accounted for in

    12 full equality, the other aspects of the trial process

    13 are within the discretion of the Trial Chamber, and in

    14 determining those trial processes, the Trial Chamber

    15 must give effect to the principles of Article 22 in

    16 Rule 75.

    17 As indicated in our motion, the joinder of

    18 the three accused, Kvocka, Radic, and Zigic, and the

    19 concurrent presentation of evidence against those three

    20 and the accused Kovacevic, is clearly warranted in

    21 light of the necessary protection for the victims and

    22 witnesses, for effective judicial economy and the

    23 interests of an expeditious trial for all of the

    24 accused.

    25 With respect to the topic of the protection

  19. 1 of victims and witnesses. As described above, this

    2 issue concerns questions of both physical security as

    3 well as mental and physical well-being. The act of

    4 testifying, indeed the very determination to testify,

    5 and the necessary preparation that goes into that

    6 decision, are and can be traumatic events for all

    7 witnesses, for some severely so. To have to recount

    8 the horrors that these people witnessed or survived as

    9 direct victims is extremely difficult, as testified to

    10 by many of the witnesses in the Tadic case during

    11 cross-examination on the issue of media exposure. Many

    12 of the witnesses do everything they can to avoid having

    13 to think about the past, let alone be directly

    14 confronted by it, or to have to recount it in public.

    15 It is also true that there is not an

    16 unlimited supply of witnesses or victims that are

    17 willing to cooperate with or testify before this

    18 tribunal despite our best efforts and intentions, nor

    19 is it the case that the office of the Prosecutor has

    20 the ability to identify and locate all potential

    21 witnesses in a case. Accordingly, the witnesses who

    22 are identified and are willing to cooperate are indeed

    23 precious, and whatever efforts can be taken, consistent

    24 with the rights of the accused, must be taken.

    25 The impact of a lack of security for

  20. 1 witnesses or even the perception of a lack of security

    2 can have significant consequences on the right of the

    3 international community to a fair trial. As has

    4 already been seen in other cases before this Tribunal,

    5 where security of information about witnesses has been

    6 breached for reasons totally unrelated to necessary

    7 investigation, witnesses have changed their minds and

    8 been unwilling to come forward and testify. We would,

    9 of course, point to the confidential annex which was

    10 submitted with our motion, Your Honour.

    11 Because the charges against all four of these

    12 accused flow from the same basic facts and events which

    13 occurred in the Prijedor municipality in 1992, the

    14 cases all involve the very same witnesses. This group

    15 of witnesses were utilised in the investigation process

    16 and their evidence was the basis for all three of the

    17 subject indictments. To require them to testify twice

    18 or possibly three times would pose a significant risk

    19 to their security and well-being, a risk which is

    20 neither justified nor required by a full respect for

    21 the rights of these accused.

    22 With respect to effective judicial economy,

    23 we believe this issue clearly speaks for itself. The

    24 limited availability of courtrooms at the Tribunal and

    25 the limited staff for all three organs of the Tribunal

  21. 1 strongly argue for the conduct of one trial instead of

    2 two or three.

    3 Having to conduct two or possibly three

    4 trials that recount the exact same areas of evidence

    5 unnecessarily detract from the ability of the Office of

    6 the Prosecutor to conduct other investigations and

    7 trials, of the Trial Chambers to hear other cases which

    8 are already pending, and of the registry to be able to

    9 support both organs or to provide assistance to other

    10 Defence counsel and other accused.

    11 With respect to the issue of the right of an

    12 accused to an expeditious trial, it goes without saying

    13 that the principles and rights in Articles 20 and 21

    14 apply to all accused equally. In a situation such as

    15 we have here present, we submit that the right of an

    16 expeditious trial is relative as to each accused and

    17 conditional on a determination of what would be the

    18 greater good; that is, what would best protect the

    19 interests and rights of the larger group of accused. A

    20 joinder and concurrent presentation of evidence would

    21 result in a fair and expeditious trial for all four

    22 accused.

    23 While it is true it might result in some

    24 amount of delay for the accused Kovacevic, the amount

    25 of which, of course, is unknown, given that we have no

  22. 1 trial date at this present time, such a delay would not

    2 violate the standard of Article 21 of a trial without

    3 undue delay. Such a determination, with respect to a

    4 joinder and concurrent presentation, would be in accord

    5 with the precedents we have already considered in the

    6 Kovacevic case with respect to the issue of pre-trial

    7 detention, when we considered the standards under

    8 Article 14 of the ICCPR, the International Covenant on

    9 Civil and Political Rights, as well as the European

    10 Convention on Human Rights. A further delay in this

    11 case, in order to effect a fair and expeditious trial

    12 for all four accused, would not violate the standard of

    13 "undue" delay, and we believe that is the key.

    14 The indictments related to all four accused

    15 establish themselves, the factual basis for this

    16 request for joinder and concurrent presentation of

    17 evidence. It is clear from a reading of the four

    18 corners of the indictments that the charges all flow

    19 from the very same events that were committed in the

    20 Prijedor municipality in 1992. Moreover, the accused

    21 Kvocka, Radic, and Zigic, are among the individuals

    22 subordinate to the accused Kovacevic, and their

    23 particular acts and crimes form part of the basis of

    24 his responsibility under Article 73 for the conduct of

    25 the camps. The joinder of Kvocka, Radic, and Zigic is

  23. 1 in full accord with Rule 48 as referenced by Your

    2 Honour earlier. First off, they are charged with

    3 crimes in the same indictment related to the Omarska

    4 camp. And second, the joinder of the indictment which

    5 charges the accused Zigic with crimes in the Keraterm

    6 camp falls within the parameters of persons charged

    7 with different crimes committed in the course of the

    8 same transaction. That transaction being the ethnic

    9 cleansing of the Bosnian Muslim and Bosnian Croat

    10 population in Prijedor municipality in 1992.

    11 The joinder of the three, including the

    12 Keraterm indictment against Zigic, would also be in

    13 accord with the principles discussed above with respect

    14 to Article 14 of the ICCPR and Article 6 of the

    15 European convention and, of course, with the Articles

    16 20 and 21 of this Tribunal Statute, and it is within

    17 the authority of the Trial Chamber under rule 54 to

    18 issue such orders as are necessary for the conduct of

    19 the trial.

    20 Further, as mentioned in our motion, the

    21 evidence regarding Keraterm would be relevant to

    22 establish the legal element of Article 5 charges that a

    23 widespread or systematic attack was committed against a

    24 civilian population in terms of considering the charges

    25 in the Omarska indictment against the accused Kvocka

  24. 1 and Radic.

    2 And finally, as mentioned in our motion, all

    3 of the evidence with respect to those three accused,

    4 that is, Kvocka, Radic, and Zigic, all the evidence

    5 would be relevant for consideration against the accused

    6 Kovacevic on the charge of complicity and genocide and

    7 therefore forms the basis for the concurrent

    8 presentation of evidence request.

    9 Thank you, Your Honour.

    10 JUDGE MAY: Perhaps you can, before you sit

    11 down, help us with this, Mr. Keegan: First of all, the

    12 word "transaction" in Rule 48 is defined in Rule 2

    13 as "a number of acts or omissions, whether occurring as

    14 one event or a number of events, at the same or

    15 different locations, and being part of a common scheme,

    16 strategy or plan," and you would point, would you, to

    17 the ethnic cleansing as part of a common scheme,

    18 strategy or plan?

    19 MR. KEEGAN: Yes, sir, as a shorthand term,

    20 you know, which has been commonly accepted for the

    21 events which occurred, it would translate -- if we want

    22 to put it in terms directly, to the last point I made

    23 about the Article 5 charges. There is a requirement

    24 for the Article 5 charges, of course, that the crimes

    25 were committed as part of a widespread or systematic

  25. 1 attack against a civilian population. All of the acts

    2 which occurred in the Prijedor municipality in 1992

    3 with respect to what's generally referred to as the

    4 ethnic cleansing, that is, the attacks on the villages

    5 or areas inhabited by Bosnian Muslims or Bosnian

    6 Croats, the roundup of the population, the

    7 transportation to the camps, the crimes committed in

    8 the camps, as well as the unlawful transfer or

    9 deportation of the majority of the population, we

    10 argue, yes, is all part of that widespread or

    11 systematic attack, that being, if you will, a common

    12 plan or scheme, a transaction. Yes, sir.

    13 JUDGE MAY: And turning to the

    14 practicalities, I think you said in your motion that

    15 there were 25 witnesses who you were proposing to call

    16 in the case of Dr. Kovacevic; is that right?

    17 MR. KEEGAN: Those were the -- yes, sir, the

    18 25 which we had firmly identified we intended to call

    19 in accord distance with your instructions. There will

    20 be additional witnesses.

    21 JUDGE MAY: Just dealing with that aspect of

    22 it. And the 25, I think you also said in the motion,

    23 were also to be called in the case of the other three

    24 or the cases of the other three; is that correct?

    25 MR. KEEGAN: That's correct, Sir. And with

  26. 1 respect to some of those witnesses, they are, in fact,

    2 direct victims of the three accused, one or more of the

    3 three accused.

    4 JUDGE MAY: So we have a position where there

    5 are 25 witnesses, at least, who are common to both

    6 trials?

    7 MR. KEEGAN: Yes, sir.

    8 JUDGE MAY: But there are additional

    9 witnesses.

    10 MR. KEEGAN: They would also be common. As I

    11 indicated in my argument, Your Honour, the pool of

    12 witnesses which we have available to us were the

    13 witnesses who were -- formed the basis of the

    14 investigation and who almost all would be relevant --

    15 would be called for both trials because it's the same

    16 pool which form the basis for the indictments, the

    17 individual indictments. There have, of course, been

    18 additional witnesses since '95, so I'm not going to

    19 stand here and say that all the witnesses we called

    20 were witnesses that were utilised in the -- in drafting

    21 those '95 indictments, but their development has been

    22 part of the continuing investigation and they would

    23 certainly be called to substantiate those indictments

    24 now, even though they weren't available to us at the

    25 time we drafted the indictments. But they will

  27. 1 certainly be called now.

    2 JUDGE MAY: Just to give us some idea, in the

    3 case, first of all, Mr. Kovacevic, how many witnesses

    4 are we talking about?

    5 MR. KEEGAN: As we've indicated all along,

    6 Your Honour, it is our firm desire to limit the number

    7 of witnesses to 50 or less, and we intend to maintain

    8 that now, if at all possible.

    9 JUDGE MAY: And in the case of the other

    10 three or the cases of the other three accused?

    11 MR. KEEGAN: It would be hard to -- if I

    12 could have just one moment, Your Honour?

    13 Your Honour, we, of course, would -- it's our

    14 intention to limit the number of witnesses to the

    15 amount necessary for the establishment of our case, and

    16 I am hesitant to give you a firm number at this time

    17 for any of the cases. Obviously, we're still pending

    18 the issue of the amended indictment in Kovacevic which

    19 would affect, presumably, could affect the number of

    20 witnesses, and with respect to the other three, since

    21 the preparation of those cases in the sense of for

    22 trial is still in its development, I'm hesitant to give

    23 you a firm number, but certainly not a large number.

    24 JUDGE MAY: Turning to the practicalities of

    25 the situation, as I said earlier, the case of Milan

  28. 1 Kovacevic was supposed to be heard today.

    2 MR. KEEGAN: Yes, Your Honour.

    3 JUDGE MAY: But because there is an

    4 interlocutory appeal still outstanding, we have not

    5 been able to start. But I take it that you are ready

    6 for trial in that case.

    7 MR. KEEGAN: We are, Your Honour.

    8 JUDGE MAY: In the case of the other three,

    9 what is your state of readiness?

    10 MR. KEEGAN: If the concurrent presentation

    11 were granted, Your Honour, we would be ready for those

    12 trials I think in fairly short order because, as I

    13 indicated, it would be the -- the core would be the

    14 exact same witnesses and what we would do now is look

    15 at what witnesses might be necessary to add onto this

    16 core group to facilitate all three indictments, that

    17 is, the two cases against the three accused and against

    18 Kovacevic. So I'm a bit hesitant, but I would

    19 certainly suggest, by July we could be prepared to

    20 proceed on all of the cases, as I believe we indicated

    21 in our motion that we thought we could be prepared by

    22 then.

    23 JUDGE MAY: Well now, turning to the trials

    24 themselves, how do you foresee the trials being held?

    25 There won't necessarily have to be openings in all the

  29. 1 cases, both cases or all the cases, because as I

    2 understand it, you are not asking for the joinder of

    3 the indictments against the three and also

    4 Mr. Kovacevic, you are asking for concurrent

    5 presentation of evidence.

    6 MR. KEEGAN: That's correct, Your Honour.

    7 JUDGE MAY: Have you ever come across

    8 anything like that before?

    9 MR. KEEGAN: I myself have not personally

    10 participated in such a trial, but I am aware of them

    11 occurring and have been -- in offices I've been with

    12 have conducted them.

    13 JUDGE MAY: In what circumstances?

    14 MR. KEEGAN: They were drug distribution

    15 rings who overlapped, Your Honour, and so because there

    16 was a core group of -- again, a core group of witnesses

    17 against both groups involved in the drug distribution

    18 process and because of the witness protection issues,

    19 in fact, they simply brought all the accused together,

    20 conducted the presentation, that aspect of the evidence

    21 concurrently.

    22 JUDGE MAY: These were trials by jury?

    23 MR. KEEGAN: No, Your Honour. In both -- for

    24 those cases, they were judge alone trials.

    25 JUDGE MAY: And so what happened was this,

  30. 1 was it, that the cases were opened separately,

    2 progressed in the normal way, but at the same time --

    3 but then when it came to the common witnesses, the two

    4 cases were joined, as it were?

    5 MR. KEEGAN: Yes, Your Honour. In that case,

    6 much like this case, the vast majority of the evidence

    7 was common. The Prosecution would do a common opening,

    8 a joint opening, if you will, one opening address

    9 related to all the accused with respect to describing

    10 the evidence, and then proceed with the case.

    11 Now, certainly it is possible that the

    12 concurrent presentation could be limited to only those

    13 witnesses related to all of the accused. It's also

    14 possible, of course, to allow just the complete

    15 presentation of the evidence against all the accused

    16 from the Prosecution's side, the Court considering the

    17 evidence as necessary against the accused, and the

    18 Defence being involved only to the extent the evidence

    19 is relevant to their accused. At that point, once we

    20 proceed to the Defence case, as we indicated in our

    21 motion, it is possible, of course, at the request of

    22 the Defence and if the Chamber felt necessary, to allow

    23 separate presentation of Defence evidence. But we

    24 believe that the entire Prosecution case could be heard

    25 concurrently and, of course, it would be up to the

  31. 1 Judges to determine which evidence was relevant to the

    2 particular accused because certainly there will be some

    3 evidence that may be relevant to the authority of the

    4 accused Kovacevic which is not necessarily relevant,

    5 although it might be in certain aspects, to the other

    6 accused.

    7 So we would argue that the full Prosecution

    8 case should be heard concurrently and allow the Judges

    9 to make the determinations of which evidence would be

    10 relevant to a particular accused.

    11 JUDGE MAY: That in effect would be a joinder

    12 of the indictment, at least for the Prosecution case.

    13 MR. KEEGAN: Your Honour, I even hate to

    14 qualify it, in practical terms as a joinder of the

    15 indictments because I don't believe it is. There are

    16 certain aspects of the evidence which would not be

    17 necessary and, of course, while all of the factual

    18 presentation is common to all the accused, certainly

    19 the qualification of that evidence in terms of the

    20 particular charges is not the same, and so it is not a

    21 complete joinder. And I would refrain from even, as a

    22 practical matter, trying to categorise it as such.

    23 JUDGE MAY: The suggestion made by

    24 Mr. D'Amato, as you know, is that there should be a

    25 simultaneous hearing to this extent, that the cases

  32. 1 would be heard side by side, one in the morning, one in

    2 the afternoon, as it were, so the witness would only be

    3 required or the relevant witnesses would only be

    4 required to come once, although they would have to give

    5 evidence twice.

    6 Now, while there may be practical

    7 difficulties about arranging that, it would secure, of

    8 course, that there were separate trials and that there

    9 were not a joinder in any way, and it therefore has

    10 that attraction.

    11 From what you have said earlier, I gather you

    12 oppose that.

    13 MR. KEEGAN: Yes, Your Honour. The point of

    14 the bifurcated trial as it was referred to by defence,

    15 does nothing to address the concerns for the witnesses

    16 which are the central issues here that we are looking

    17 at and then considering in light of the rights of the

    18 accused to a fair and expeditious trial. The question

    19 from the Prosecution's perspective is, that if the

    20 concurrent presentation of the evidence is not itself

    21 violative of the accused's right to a fair trial, which

    22 we don't believe it is, then to that extent, once that

    23 determination is reached, in every measure which is

    24 necessary for the protection of the witnesses, that

    25 being not only their physical security, of course, but

  33. 1 their physical and mental well-being, must be taken

    2 under Article 22 and Rule 75. The problem with the

    3 suggestion by the Defence is, it does nothing to

    4 address the concerns of having a witness having to go

    5 through full examination on two separate occasions,

    6 whether it's possibly in the same day or, more likely

    7 in many cases, on different days, even if they are

    8 subsequent days. It still involves the witnesses

    9 having to give their direct testimony twice, be subject

    10 to cross-examination twice, to questions from the

    11 judges twice. So it does nothing to address the

    12 difficulties, the mental difficulties that witnesses

    13 have and the traumatic experience that they go through,

    14 many of them, in having to give evidence.

    15 And I can also foresee, Your Honour -- I'm

    16 sorry --

    17 JUDGE MAY: I see that, of course they would

    18 have to give evidence twice and go through the evidence

    19 in chief twice. It wouldn't add to the

    20 cross-examination. They would have that in any event.

    21 They would have however many Defence counsel were going

    22 to cross-examine. But I see that they would have to

    23 give evidence in chief twice.

    24 But as against that, it would address some of

    25 the other concerns about the security of witnesses,

  34. 1 their having to travel here on more than one occasion,

    2 the delays between the various hearings, all that I see

    3 as putting pressure on the witnesses and putting

    4 pressures on their security. That aspect of the case

    5 would be addressed, would it not?

    6 MR. KEEGAN: Presumably, Your Honour. I

    7 would suggest, though, as I mentioned earlier in my

    8 argument, under Article 22 and Rule 75, of course, this

    9 Trial Chamber has the right to not only modify the

    10 conditions or the manner in which a witness gives

    11 testimony but also to control the questioning of the

    12 witnesses. We don't believe that it is necessarily the

    13 case that all Defence counsel would have to

    14 cross-examine a potential witness, nor perhaps would

    15 they even want to. So we don't think that that is

    16 necessarily the case. Certainly, if it's to the point

    17 where the questions are merely repetitive and bordering

    18 on the issue of harassment, then certainly the Trial

    19 Chamber would be able to tailor the scope of the

    20 cross-examination. I hesitate because I'm also very

    21 concerned about crossing over into the issue of

    22 testimony here, but I would suggest that the experience

    23 of this Tribunal clearly indicates that the trauma

    24 suffered by many of these witnesses after giving

    25 testimony might, in fact, prevent them from retaking

  35. 1 the stand, particularly on the same day and even in

    2 subsequent days. I think the records and the

    3 experience in the trials to date speak for that.

    4 As to, I think, the experience of our cases

    5 here so far would also indicate that despite the best

    6 intentions of the Defence to continue with witnesses on

    7 the same day or perhaps next day, I think experience

    8 would indicate that probably would not happen often,

    9 particularly when you have transcripts which are

    10 readily available. You know, it's often the case where

    11 counsel would want to get the transcript of the

    12 witness's prior testimony before questioning them in

    13 the subsequent hearing on the matter. Whether that

    14 could happen in the same day or not, I don't know if

    15 it's possible. I think it would put a huge strain on

    16 the reporting system certainly, and then in that case

    17 might occasion delays of one or two -- certainly the

    18 more days that the witnesses stay in the Hague, the

    19 greater risk they are here being discovered and

    20 exposed, the longer they're away from home, the

    21 noticeable absence has the effect of affecting the

    22 potential security risk, many of them come from small

    23 towns or villages and it's readily apparent when

    24 they're gone for a long period of time. Whether

    25 they're coming from Bosnia-Herzegovina or other areas in

  36. 1 the former Yugoslavia or even as refugees, given the

    2 status of refugees, any time they travel, it's a

    3 noticeable event.

    4 So we believe that, in fact, it doesn't

    5 necessarily address the security risks and concerns.

    6 And we do not believe that it would proceed as smoothly

    7 as the Defence suggests given our experience here to

    8 date, and we believe again the fundamental question is

    9 whether the current -- concurrent presentation of

    10 evidence would violate any of the requirements of

    11 Article 21 which are the requirements for the accused

    12 for a fair trial, and again, Your Honour, we believe

    13 the answer on that particular question is "No." So if

    14 the focus is Article 21 and the accused's rights, we do

    15 not need to discuss now deviations on what would be the

    16 maximum concerns for witness security and protection,

    17 that we focus on the rights of the accused and consider

    18 whether just concurrent presentation would violate

    19 that.

    20 JUDGE MAY: As far as any delay is concerned

    21 from counsel wanting to see the transcript of any

    22 testimony which was given in an earlier trial, that

    23 would seem to me to be totally unnecessary. If they

    24 wanted to, they could attend the hearing of the witness

    25 and take a note of it, and they could then

  37. 1 cross-examine from that. So that side of it I don't

    2 see as a problem.

    3 The issue which is raised by the Defence, by

    4 Mr. D'Amato, is the potential prejudice which may be

    5 involved, and that's why I suggested this was, in

    6 effect, a joinder of the indictment. The potential

    7 prejudice which may occur from defendants having

    8 different interests to serve in the conduct of their

    9 defence. Of course, if you have a joint indictment,

    10 then there can be no argument about that; that is the

    11 way the trial is conducted. But if you have separate

    12 indictments and then try and present the evidence

    13 together, there is a risk, isn't there, that the

    14 Defence will sustain prejudice from the

    15 cross-examination which one or other Defence counsel

    16 may engage in, that they may have an interest which is

    17 completely contrary to the interest of the other

    18 Defence counsel, and the example, of course, was given

    19 in Mr. D'Amato's motion or response.

    20 MR. KEEGAN: Yes, Your Honour, but as we

    21 indicated in our reply, the trial process as a search

    22 for the truth is going to define the facts regardless

    23 of the interests of a particular accused. To the

    24 extent that the same witnesses are testifying and are

    25 giving the exact same evidence against the individual

  38. 1 accused, whether it's in one trial or three, the same

    2 facts presumably are established and found by the Trial

    3 Chamber.

    4 So to the specific example of the armed

    5 conflict in Prijedor, whether the Defence for the

    6 accused Kovacevic would want to argue that an armed

    7 conflict establishes -- relates to a motive as to why

    8 there were attacks against the Bosnian Muslim and

    9 Bosnian Croat population, that's an issue, as we

    10 indicated, that we don't think is a particularly viable

    11 option to begin with since the motive is irrelevant to

    12 the issue of the genocidal intent.

    13 So we think that the trial process, because

    14 in this the circumstances as we indicated, you have the

    15 same evidence being put forth to the Trial Chamber

    16 against all of these accused, it really matters not

    17 what particular legal strategies they may adopt in

    18 terms of arguing against the indictment against their

    19 accused. At the end of the day, the same amount or the

    20 same category, qualification or quality of evidence, is

    21 going to be adduced before this Trial Chamber.

    22 Certainly in the first trial. The problem is, from the

    23 Prosecution's perspective, having to conduct two or

    24 three trials may, in fact, deny the international

    25 community and the Office of the Prosecutor the

  39. 1 opportunity to present a fair trial for the

    2 international community because we may not have those

    3 witnesses if we have to conduct two or three trials

    4 because they may not be willing to testify again. And

    5 that is the essential point.

    6 JUDGE MAY: The point is not an idle one,

    7 because if you have a joint indictment then, of course,

    8 the Defence can't complain if they use different

    9 strategies and damage one another. But if the

    10 indictment isn't joined, normally of course, the other

    11 Defence counsel aren't there, and the Defendant then,

    12 as it were, has a trial on his own, without suffering

    13 the risk of damage of cross-examination from another

    14 Defence counsel. This is the point that Mr. D'Amato

    15 makes.

    16 Now, as I say, if you have a joint

    17 indictment, then the problem doesn't arise at all, and

    18 no complaint can be made. But if the indictment isn't

    19 joined, in the normal course of events, the trials

    20 would be totally separate, and so a defendant would not

    21 have that disadvantage.

    22 Now, the procedure which you're suggesting of

    23 trying the cases together, would, it seems to me --

    24 this is, of course, subject to argument -- but it seems

    25 to me to run the risk which Mr. D'Amato raises in his

  40. 1 motion.

    2 MR. KEEGAN: Your Honour, what I -- what we

    3 believe is that if you were to follow the argument that

    4 if these were joined indictments, the joinder, the

    5 prejudice to the -- because the prejudice is still

    6 going to be there to the individual accused. They may

    7 want to argue different theories for the defence. So

    8 if you take that as the first premise, that the

    9 prejudice exists whether it's an official joinder or

    10 not, if you then say that if there was a technical

    11 joinder, the fact of the technical joinder would

    12 outweigh the potential prejudice to the accused such

    13 that the joint trial would occur, it is our position

    14 that then you really are only making the same

    15 determination for the concurrent presentation of

    16 evidence, you simply aren't using a technical legal

    17 determination, you're using the question of an analysis

    18 of the fundamental rights.

    19 And so we suggest that if you could find that

    20 if these indictments were technically joined, that

    21 would overcome the prejudice given the interests of

    22 witness security and protection and that the potential

    23 prejudice to the accused does not outweigh those

    24 interests as well as the other interests of judicial

    25 economy which we mentioned, then we believe you can

  41. 1 find the same -- reach the same determination without

    2 that technical joinder by simply going through the same

    3 analysis, that it's the same basic evidence, the same

    4 pool of witnesses, the same documents, et cetera, would

    5 be presented for all of these cases to a large extent.

    6 That that evidence is going to lay before the Trial

    7 Chamber a certain set of facts which the Trial Chamber

    8 will then determine the guilt of the accused. That is

    9 not going to change whether it's a technical joinder or

    10 not. And the potential variations in Defence strategy

    11 won't change whether there's a technical joinder or

    12 not. So we believe that that technical joinder is not

    13 necessary to reach the appropriate determination that

    14 the concerns for witness protection and safety as well

    15 as the other concerns for judicial economy outweigh

    16 possible prejudice to the accused by virtue of

    17 potential arguments they'd want to make because we

    18 must, of course, remember that from the Defence side,

    19 this is all purely hypothetical at this point. They,

    20 of course, are not required to put on any evidence at

    21 all, nor advance any theory. They're not required to

    22 cross-examine any witnesses, if they don't wish to. So

    23 we do not know and cannot say for certain what their

    24 defences will be or they intend them to be at this

    25 time. And given that framework, in light of the known

  42. 1 parameters of what the Prosecution must prove in its

    2 case with its evidence, we believe that the same

    3 determination can be reached.

    4 JUDGE MAY: Thank you, Mr. Keegan. Unless

    5 there is anything else you wanted to say ...

    6 MR. KEEGAN: No.

    7 JUDGE MAY: Yes, Mr. D'Amato, we will hear

    8 from you.

    9 MR. D'AMATO: Thank you, Your Honour.

    10 May I begin just with a point of order?

    11 Mr. Keegan referred to a reply. We have not received

    12 any reply. Did he write a reply?

    13 JUDGE MAY: Have you got a copy of that?

    14 MR. D'AMATO: Mr. Keegan, if you have written

    15 a reply, this is the second time in two appearances

    16 here that I am getting it --

    17 JUDGE MAY: Well, Mr. D'Amato, through the

    18 Bench, please.

    19 MR. D'AMATO: Your Honour, we looked in our

    20 box this morning. There was no reply. I didn't get it

    21 by fax. And this is the second time that I'm getting

    22 it the instant I'm getting up to give an oral

    23 argument. It's a little unfair.

    24 JUDGE MAY: Well, you should have a copy. No

    25 doubt you would like some time to look at it. We can

  43. 1 take the break rather early if it is more convenient.

    2 MR. D'AMATO: I can proceed with my argument,

    3 and if there is anything that is left over by virtue of

    4 the reply, and if you give me a little more time later,

    5 I could --

    6 JUDGE MAY: We will have to adjourn at half

    7 past eleven, so make a start, Mr. D'Amato.

    8 MR. D'AMATO: Okay. I would like to make a

    9 start without the benefit of the wonderful reply that

    10 awaits me.

    11 I would like to address Mr. Keegan's remarks

    12 starting from the end and working back to the beginning

    13 because I think those are the ones that are freshest on

    14 our minds.

    15 When he says it's all hypothetical at this

    16 stage, we don't know what the Defence will do, that's

    17 of course true, but Rule 82B says "in order to avoid a

    18 conflict of interest that might" -- "might cause

    19 serious prejudice to an accused," the word "might" is

    20 an invitation for us to look at this stage, pre-trial,

    21 to see whether these hypothetical situations could

    22 arise.

    23 So I don't think it's fair to say that just

    24 because we're talking about hypotheticals, that there's

    25 something wrong about that. We must talk about

  44. 1 hypotheticals if we're trying to assess the probability

    2 of a conflict of interest that causes serious

    3 prejudice.

    4 With respect to Your Honour's point about a

    5 joint indictment would cause no problems, let me say

    6 this: Let's suppose, first, that Dr. Kovacevic was

    7 indicted for 15 counts of genocide and all the others

    8 that the Prosecution would like to add and his trial

    9 were all by itself. Well, of course, there would arise

    10 those prejudices that we're talking about. He would

    11 have to determine what his theory would be when it

    12 comes to genocide versus, say, crimes against humanity,

    13 and there would be a difficulty. But that difficulty

    14 would be under our control. The attorneys for the

    15 Defence would be able to make a strategic decision

    16 which way, which theory to go, given the fact that he's

    17 being charged with these incompatible crimes. But

    18 that's fair.

    19 What would be unfair would be to join our

    20 trial with other Defendants whose sole interest is

    21 incompatible with ours. So that when Your Honour made

    22 the suggestion that there would be no problem if there

    23 were a joint indictment, with all respect, if there

    24 were a joint indictment, I would have to move for a

    25 separation of trials given the incompatibility of

  45. 1 genocide with crimes against humanity. The proof is

    2 entirely different, as I tried to point out in my

    3 brief.

    4 So that the problem is not solved by assuming

    5 that it's only a technicality that there be a joint

    6 indictment; as a matter of fact, if there were a joint

    7 indictment, we would have to move for separate trials

    8 and we'd be having the exact same argument we're having

    9 now; that is, are these two crimes compatible? Is it

    10 fair to pit one set of Defendants against another on

    11 factual issues, on basic factual issues of the trial?

    12 And I want to get to that in a minute, but I just

    13 wanted to make that point about the joint indictment,

    14 that it's not a technicality but it would result in the

    15 same problem.

    16 The point that was raised just before that

    17 with respect to my suggestion about a bifurcated trial,

    18 Mr. Keegan raised a number of issues of the trauma on

    19 witnesses who might have to speak twice in the same

    20 day, et cetera. That may be. There may be problems

    21 with that. I only made a suggestion. It's the

    22 Prosecution's motion here, and I only came back with a

    23 suggestion that, admittedly, is not 100 percent

    24 perfect, it can't solve every problem, but it is put

    25 forward in the spirit of trying to help with respect to

  46. 1 the witnesses, as Your Honour pointed out. They still

    2 only have to make one trip here and not two.

    3 I think that Mr. Keegan is asking for a

    4 muddle. The trial that he envisages would be a

    5 disaster. There would be conflicting evidence

    6 throughout and Defence teams arguing against each

    7 other.

    8 This is evident from what he said in response

    9 to Your Honour's question about what a transaction is.

    10 It was very interesting when you asked him the

    11 definition of a transaction. His response was: It's

    12 all part of the Article 5 crimes. That's fine. But

    13 we're being charged with Article 4. The genocide is

    14 not -- he never mentioned the problem of genocide with

    15 respect to transactions.

    16 Our position is that Dr. Kovacevic is being

    17 accused of genocide; that's quite different from the

    18 ethnic cleansing that Mr. Keegan is talking about, or

    19 at least it could be quite different. Ethnic cleansing

    20 could be accomplished without destruction, in whole or

    21 in part, of a minority group. It could be

    22 accomplished, for example, by deportation, which is, as

    23 Mr. Keegan acknowledges, an Article 5 crime.

    24 But the transaction -- let's not get muddled

    25 with respect to what a transaction is, because once we

  47. 1 are clear about that, it's pretty clear that it

    2 doesn't -- it's not something that would link our trial

    3 with that of the other Defendants.

    4 Mr. Keegan asserts that the linkage between

    5 Dr. Kovacevic and the other three Defendants has to do

    6 with the fact that they are subordinate to him, and

    7 therefore, the evidence of their crimes reflects back

    8 on Dr. Kovacevic. Your Honour, that's a bald

    9 assertion. There's not an iota of proof about that.

    10 There's nothing in the indictment that brings up the

    11 names of these other Defendants in connection with

    12 Dr. Kovacevic. It is just an assertion. If we

    13 disprove it at trial, then it would be incredibly

    14 prejudicial at the trial for us to be hearing all the

    15 evidence against the other three Defendants when we

    16 have shown that there isn't a link. It will still

    17 create a psychological barrier for the Court to see

    18 Dr. Kovacevic's case clearly.

    19 Now, if there were a link, then there might

    20 be something to the argument that has been made. But

    21 it is a sheer assertion. He doesn't establish a link

    22 by simply asserting it, and that's all he's done. And

    23 without that assertion, there's no link at all.

    24 My main point, though, after these

    25 preliminaries, is that let's assume Mr. Keegan's

  48. 1 arguments are 100 percent persuasive with respect to

    2 the need for protecting witnesses, the need for this

    3 Tribunal to get on with its business, the limited funds

    4 at its disposal, the interests of justice. One hundred

    5 percent conceded. Nevertheless, we're facing here a

    6 textbook case of conflict that will cause serious

    7 prejudice.

    8 It is impossible to have a fair trial if

    9 situations arise where one Defence lawyer is trying to

    10 establish an evidentiary fact and the other Defence

    11 lawyer is trying to disprove that same fact. I'm not

    12 talking about culpability, I'm not talking about one

    13 Defence attorney saying, "Well, my client didn't do

    14 it," I'm talking about the basic fact. And the

    15 suggestion I gave in my brief -- which I know the other

    16 Defendants haven't heard yet -- suppose there is a Serb

    17 who is taken to one of these camps near Prijedor. In

    18 fact, Witness P might be an example of such a person,

    19 although he wasn't taken to the camp, but reading his

    20 statement, here is a Serb who is sympathetic, perhaps,

    21 with the other side. This Serb is taken to the

    22 concentration camp and interrogated. Why? Because

    23 they want to know whether he's loyal to the Serb

    24 cause or whether he's loyal to the opposition. That

    25 was one of the reasons to have a detention camp, is to

  49. 1 sort people out.

    2 Let's assume that this Serb detainee dies

    3 in the prison, in the camp, and the defendants are

    4 accused of murder. They will, of course, try to argue

    5 that the Serb -- the victim was not killed by them nor

    6 by any other guard but perhaps died at the hands of his

    7 fellow prisoners. In other words, an alibi excuse that

    8 would suggest, "Yes, he died in the camp, but not at

    9 our hands, he died at the hands of his fellow prisoners

    10 who, for whatever reason, murdered him." That would be

    11 a fair alibi defence for them to assert.

    12 But what would Dr. Kovacevic want to argue?

    13 Strangely enough, because he's being accused of

    14 genocide, Dr. Kovacevic would want to argue that these

    15 Defendants, in fact, murdered this victim. They would

    16 argue the absolute opposite of what the other

    17 Defendants are arguing because Dr. Kovacevic wants to

    18 show that people were killed in the detention camps not

    19 because of their ethnicity or racial or national

    20 background because they were opponents of the Serb

    21 forces, and this Serb who was killed is proof that it

    22 was not a genocidal campaign at all but it was a civil

    23 war sorting-out kind of campaign.

    24 So we would have the crazy, the absolutely

    25 unjust situation at a trial where the Prosecution could

  50. 1 sit back and smile and watch the Defendants tear each

    2 other apart. Two sets of lawyers arguing whether this

    3 person did it or didn't do it, whether the other person

    4 did or didn't, and it would be a farce, and I think

    5 that is an overwhelming textbook example of why there

    6 would be serious prejudice at a trial like this when

    7 you're trying to mix genocide in with crimes that are

    8 incompatible with it, that are evidentiarily

    9 incompatible; and therefore, no matter how much

    10 deference we give to the Prosecution's arguments about

    11 fairness to witnesses and everything, the Rule 82B is

    12 very clear: In order to avoid a conflict of interest

    13 that might cause serious prejudice to an accused, what

    14 could they have in mind that would be a better example

    15 of Article 82B than the case I just gave you that will

    16 inevitably come up in this trial, not just once but

    17 many, many times. Every time the other Defendants want

    18 to prove that there was no armed conflict, we would

    19 want to prove that there was. There would be a clash

    20 at every stage of the argument. We'd want to prove

    21 that there was armed conflict so that there was no

    22 overriding genocidal intent but, rather, was a civil

    23 war intent. They're going to want to prove that there

    24 was no armed conflict because they want to prove --

    25 because they're being charged with war crimes and

  51. 1 violations of the Geneva Convention.

    2 So all the way throughout the trial there

    3 would be an example of what Rule 82B is trying to

    4 avoid, and therefore I think that no matter -- it would

    5 be very good to try to solve the problems of the

    6 witness protection, but this way would ensure the

    7 unfairness of the trial to our client and, undoubtedly,

    8 to the other clients.

    9 Finally, one little word about expeditious

    10 trial. Even though Mr. Keegan is ready to proceed with

    11 a trial against everyone, the Defendants in the other

    12 cases would probably ask for 60 days to prepare.

    13 That's their right. And therefore, Dr. Kovacevic's

    14 trial would be postponed for two months more. He has

    15 been in jail a long time now, and it is his turn to

    16 come to trial and not to wait an additional two months

    17 for the trial to start. That's one reason I think the

    18 bifurcated motion makes a little sense. We could

    19 proceed with that without any of these joint witnesses,

    20 and maybe the happy conclusion would be that there

    21 would be no need to continue on with the trial if the

    22 Prosecution fails to prove that Dr. Kovacevic had the

    23 requisite intent to participate or to be complicitous

    24 in a genocidal plan.

    25 I see that I maybe just got under the wire,

  52. 1 and with the possible reservation of possibly

    2 addressing anything that's in the reply brief that

    3 hasn't been covered, we rest our case.

    4 JUDGE MAY: There will be a break of 30

    5 minutes now. Any remaining Defence counsel who would

    6 like to make any submissions, we will hear them then.

    7 Just one moment while I consider something

    8 with my colleagues.

    9 Mr. Keegan, we have just considered the

    10 position generally. We can't, clearly, make any

    11 binding ruling or anything like at the moment because

    12 we haven't heard your reply, we haven't heard all the

    13 arguments, and we need to do that. But it may be that

    14 you would like to consider further -- we have heard

    15 your position about it, I know -- but it may be you

    16 would like to consider further Mr. D'Amato's suggestion

    17 as a way of proceeding.

    18 We do have in mind the problems which the

    19 witnesses have before this Tribunal, we do have in mind

    20 our duty towards their protection and security, and

    21 clearly they are matters which have to be at the

    22 forefront of any consideration. But as I said at the

    23 outset, we have to balance that against the rights of

    24 the accused to a fair trial.

    25 Now, it would seem to me that it might be

  53. 1 possible by agreement to reach some sort of compromise

    2 which would allow those interests to be properly

    3 balanced and also to secure as expeditious trials as we

    4 possibly can, given the shortage of time.

    5 For that reason, I am going to allow an

    6 adjournment of 40 minutes in the hope that during that

    7 time it may be possible for counsel to have a word

    8 together to see whether some agreement can be reached

    9 on these matters. If you would like more time, then

    10 send a message, and you will have it.

    11 MR. KEEGAN: Yes, Your Honour.

    12 JUDGE MAY: Thank you. But for the moment,

    13 ten past eleven.

    14 --- Recess taken at 11.31 a.m.

    15 --- Resumed at 12.15 p.m.

    16 JUDGE MAY: Mr. D'Amato, have you had the

    17 opportunity of seeing the other submission by the

    18 Prosecution, the reply? Have you had the opportunity

    19 of seeing that now?

    20 MR. D'AMATO: Yes, Your Honour, I have. I

    21 perhaps would have changed the emphasis or tone of what

    22 I said, but I don't see anything to add at this point.

    23 JUDGE MAY: I take it that useful discussions

    24 have taken place during the adjournment?

    25 MR. D'AMATO: Useful in the sense that we

  54. 1 have realised the gap, the chasm that separates us.

    2 JUDGE MAY: Remaining Defence counsel, I know

    3 the position which you have adopted so far, and

    4 particularly what you say about not having received any

    5 or sufficient material. But if there is anything you

    6 want to say about these matters, I will hear you now.

    7 Yes, Mr. Guberina, is there anything you

    8 would like to say?

    9 MR. GUBERINA: Your Honour, we thank you for

    10 the possibility that you have given us, if need be,

    11 from the standpoint of the Defence, to say something.

    12 However, having heard the proceedings so far, I would

    13 like to say only that I do not wish to use my

    14 opportunity because I don't wish to disturb you and I

    15 remain by the motion that we submitted, and that would

    16 be it for today. Thank you.

    17 JUDGE MAY: Does anybody else want to say

    18 anything?

    19 MR. TOSIC: Your Honours, as the Defence of

    20 the accused Zoran Zigic, I agree with the stance of my

    21 colleagues as far as the procedure; however, as a

    22 long-term former prosecutor, I would have certain

    23 comments concerning the stand of the Prosecution about

    24 the motion for joinder.

    25 Taking into account the Prosecution and their

  55. 1 aims, I feel that the reasons cited were not argumented

    2 [sic] for several reasons. As far as the stance of the

    3 Prosecution regarding the traumatic experience of the

    4 witnesses, we have a question that should there be a

    5 possibility for the witnesses in separate proceedings

    6 to come out with their testimony, we feel that this

    7 would be favourable to the Prosecution in view of the

    8 fact that the witnesses could remember all of the

    9 circumstances and all the questions that they are

    10 supposed to respond to.

    11 Furthermore, the claim cannot be accepted

    12 that these are the same witnesses because, looking at

    13 both the indictments, it is obvious that this is a

    14 detention centre, Keraterm and Omarska are two of them,

    15 and the incriminated acts, so our defendants are not

    16 the same for both camps so that we cannot talk about

    17 the fact that the same witnesses are therefore all of

    18 the accused.

    19 As far as the economy of the Prosecution in

    20 the name of truth and justice, we feel that the space

    21 and lack of personnel cannot be a reason for conducting

    22 one trial which, as far as the joinder of the

    23 indictments, the representative of the Prosecution has

    24 said that in order to have one trial and not to have a

    25 joinder of the indictment, I think that this would be a

  56. 1 unique example in International Court because you

    2 cannot have one proceeding without joinder of the

    3 indictments.

    4 As far as the witnesses which would be heard

    5 in this one trial, there is a question of whether, in

    6 such a process, situation, we would be in the position

    7 to have the statements of the witnesses, in view of the

    8 stance of the Defence, could in some way be beneficial

    9 to the Prosecution in order to expand the indictment to

    10 other acts as well as to other persons.

    11 That is all.

    12 JUDGE MAY: Thank you.

    13 MS. GRAHOVAC: Yes, Your Honour, as for the

    14 Defence of Mr. Kvocka, the opposition is negative. We

    15 are against the joinder of proceedings and cases.

    16 Thank you.

    17 JUDGE MAY: Mr. Keegan, is there anything you

    18 would like to say in response?

    19 MR. KEEGAN: Yes, thank you, Your Honour.

    20 With respect to the citation to Rule 82, as

    21 one of the reasons -- or the primary reason, standard,

    22 which the Defence asserts would require a determination

    23 against a concurrent presentation, Mr. D'Amato

    24 indicated that it's a determination that -- their

    25 interests that might cause serious prejudice. We, of

  57. 1 course, would focus on the phrase "serious prejudice."

    2 And then, once again, in considering whether a

    3 concurrent presentation would violate the accused's

    4 right to a fair trial and in looking at Rule 82, in

    5 fact one can read that even if there was some

    6 prejudice, that is not a sufficient basis to deny the

    7 concurrent presentation of evidence but, rather, would

    8 have to rise to the level of serious prejudice against

    9 the accused because, again, the right to a fair trial

    10 applies to both parties, not just to the accused, and

    11 that the interests of the protection of the victims and

    12 witnesses, which is also a mandate for these Trial

    13 Chambers, does have an effect on that issue or the

    14 question of what is a fair trial and what kind of

    15 prejudice would be sufficient to negate the otherwise

    16 requirement to consider witness issues.

    17 Now, with respect to the issue of the

    18 transaction, and Mr. D'Amato referred to my analogy to

    19 Article 5, that was simply in terms of trying to put it

    20 in context of charges. Of course, the definition, as

    21 cited by Your Honour, quite clearly indicates it's not

    22 relegated directly to any particular charge or form of

    23 charge, nor is it related to any particular crime;

    24 rather, the argument of the related transaction here,

    25 as I indicated, is that the concurrent events in

  58. 1 Prijedor during 1992 itself forms a transaction which I

    2 tried to then break down or categorise under the rubric

    3 of "ethnic cleansing," as it's commonly referred to, or

    4 made the analogy to the issue of a widespread or

    5 systematic attack which, of course, is an element under

    6 Article 5.

    7 But, in point of fact, it's not solely

    8 related to Article 5, and, of course, the same

    9 transaction of facts, which is the issue here in the

    10 concurrent presentation of evidence, that is, the

    11 presentation of facts, that same transaction of facts

    12 could be relevant to or is relevant to charges under

    13 Articles 2, 3, 4 and 5.

    14 Rule 48 supports that argument in that in its

    15 terminology where it discusses that individuals charged

    16 with same or different crimes in the course of the same

    17 transaction, obviously recognising that again the same

    18 facts can make one liable for more than one type of

    19 crime.

    20 With respect to the link of the other three

    21 accused, Kvocka, Radic, and Zigic to Kovacevic,

    22 Mr. D'Amato indicates that's a mere assertion. Well,

    23 in fact, when one reviews the indictments, the

    24 indictments themselves clearly indicate why they would

    25 fall within the personnel who were subordinate to the

  59. 1 accused Kovacevic and therefore form part of the basis,

    2 their acts forming part of the basis for his

    3 responsibility under Article 7(3), and more

    4 particularly when one reads the supporting materials or

    5 statements that accompany the indictments and those

    6 three accused are prominently mentioned, it makes it

    7 very clear how they relate.

    8 Mr. D'Amato tries to chalk up the problem

    9 with respect to concurrent presentation of evidence to

    10 incompatible crimes. Well, the issue here is not the

    11 crimes, it's the facts which would be presented in that

    12 evidence, and the whole point of the motion is that the

    13 facts to be presented to this Trial Chamber would be

    14 the same for all of the accused. The application of

    15 those facts to the law may differ or vary as a result

    16 of the particular charges, but it's the basic

    17 underlying facts which are the issue here, and those

    18 facts will be the same.

    19 As we indicated in our response to the

    20 Defence motion for bifurcated trial which was filed on

    21 the 7th of May, we indicated that the main problem with

    22 the Defence suggestion is that the Defence suggestion

    23 is based on a fundamental misperception of the

    24 indictment against Kovacevic.

    25 The Defence, in paragraph 10 of their motion,

  60. 1 asserts that the accused Kovacevic is not charged with

    2 participating in or even witnessing any of the alleged

    3 atrocities in the camps, instead the accused is charged

    4 with participating in an alleged plan that was intended

    5 to bring about the physical destruction of detainees in

    6 the camps on account of their membership in Muslim or

    7 Croat groups. That as far as Dr. Kovacevic is

    8 concerned, his alleged participation in the plan

    9 occurred, if at all, entirely outside the boundaries of

    10 the detention camps.

    11 They then posit in paragraph 11 that if the

    12 Prosecution fails to prove that the accused was

    13 criminally implicated in an alleged plan or conspiracy

    14 to commit genocide, then the accused would stand

    15 acquitted.

    16 These assertions are a gross misapprehension

    17 of the indictment against Kovacevic. In determining

    18 the scope of the charge, the indictment must be red in

    19 toto, and that indictment does not limit the accused's

    20 culpability or planning, nor is he, of course, charged

    21 with conspiracy and genocide. Further, while it's true

    22 that we would not have to prove the accused witnessed

    23 atrocities in the camps in order to prove his guilt,

    24 the indictment does not exclude the possibility of such

    25 evidence as relevant to prove his guilt.

  61. 1 Finally, the Defence completely ignores the

    2 reality that the accused is charged both with

    3 individual criminal responsibility pursuant to Article

    4 7(1) and 7(3); and, of course, under 7(3) it would be

    5 the very acts committed in the camps by the accused

    6 such as Radic, Kvocka and Zigic that would form the

    7 basis for his liability for complicity.

    8 The relief requested by the Defence for

    9 Kovacevic ignores the relationship between the criminal

    10 conduct which is the subject of the indictments against

    11 the other three accused and the charge against this

    12 accused Kovacevic.

    13 The charge against Kovacevic indicates that

    14 between April '92 and January '93, Milan Kovacevic did,

    15 by his acts and omissions, commit the offence, and so

    16 therefore, it's that framework within which the other

    17 paragraphs of the indictment must be read, and it's

    18 clear then that from the language of the indictment,

    19 his responsibility for the crimes charged flows from

    20 the totality of his acts or omissions during that

    21 period, that is, 30 April of '92 until 31 December,

    22 '92. That would include, of course, any acts or

    23 omissions related to the conduct in the camps

    24 themselves, not simply acts prior to the establishment

    25 of the camps.

  62. 1 I've already addressed the issue of the

    2 Defence's lack of appreciation of the individual

    3 criminal responsibility under Article 7(3) and what

    4 that would entail in terms of proof.

    5 As I raised earlier, the central point is

    6 that the concurrent presentation of evidence relates

    7 only to the Prosecution case, and the question here

    8 really is the presentation of the facts of the

    9 Prosecution case against all of the accused, and it is

    10 those facts which are common to all four and which can,

    11 by their common basis, form the proof of responsibility

    12 under all of the articles of the Statute.

    13 There is, of course, also the issue related

    14 to -- we must, of course, proceed under the current

    15 indictment, but obviously if the Appeals Chamber

    16 decides, for example, in favour of the Prosecution,

    17 certainly that would dramatically change the whole

    18 position of the Defence or the support for its argument

    19 of a bifurcated trial because then you would, in fact,

    20 have violation of the exact same articles for the

    21 accused, and one would wonder would the accused then

    22 ask to separate the charges in the indictment, of

    23 Kovacevic himself in that case, because of this alleged

    24 incompatibility? And we raise that point just to

    25 establish, in fact, that this argument of

  63. 1 incompatibility is a purely hypothetical one and one

    2 which has no basis in actual presentation of facts

    3 within a courtroom for determination of individual

    4 responsibility for crimes.

    5 Thank you, Your Honour.

    6 JUDGE MAY: In ruling on this motion, we bear

    7 in mind, first, that we have a duty towards the

    8 protection and security of witnesses, but as I said at

    9 the outset, we also have a duty to secure a fair trial

    10 for all the accused.

    11 We have come to the conclusion that the

    12 course which is proposed in the motion is one which

    13 would be so prejudicial to the accused that a fair

    14 trial of all of them would not be possible.

    15 We also have in mind that, in the case of

    16 Dr. Kovacevic, an expeditious trial must be held, and

    17 were this motion to be allowed, it would hold up

    18 matters further.

    19 For those reasons, and for further reasons

    20 which will be given subsequently in writing, the motion

    21 put forward by the Prosecution is rejected to this

    22 extent: That the motion which calls for the case

    23 against all four accused to be heard together by the

    24 same Trial Chamber is rejected.

    25 The motion for the concurrent presentation of

  64. 1 evidence against all four is also rejected.

    2 The motion which calls for the two

    3 indictments against Messrs. Zigic, Radic and Kvocka to

    4 be tried together is adjourned. It is a matter for the

    5 Trial Chamber which tries those Defendants to determine

    6 and not for us.

    7 The motion, if it is one, by the Defence, for

    8 what is being called a "bifurcated trial," is not a

    9 matter on which we shall rule. If the parties wish to

    10 consider the matter further, they can do so, and it can

    11 be re-presented, but at the moment, there will be no

    12 ruling upon it.

    13 For those reasons, as I say, this motion is

    14 rejected.

    15 That concludes the proceedings as far as the

    16 three more recently accused are concerned.

    17 This afternoon we shall proceed to hear a

    18 number of motions in the case of Milan Kovacevic. It

    19 may be of assistance to counsel in that case if we

    20 indicate the order in which we propose to hear those

    21 motions.

    22 We will begin by hearing the motion for the

    23 protection of victims and witnesses. We shall then

    24 deal with the motion in relation to the investigator.

    25 We shall deal next with the Defence motion concerning a

  65. 1 code for the Prosecutor. We will then turn to deal

    2 with evidential matters and we will deal with the

    3 Prosecutor's request in relation to judicial notice and

    4 deal, finally, for the motion in relation to pre-trial

    5 admission.

    6 We will then have a status conference in

    7 closed session.

    8 Now, it may well be that we shall not be able

    9 to deal with all those matters this afternoon. We will

    10 continue tomorrow morning if that is the case.

    11 We shall adjourn for an hour and a half. I

    12 will say at ten past two.

    13 --- Whereupon proceedings adjourned

    14 at 12.37 p.m.












2.13 p.m. hearing