1 Monday, 18 September 2006

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.01 a.m.

5 JUDGE BONOMY: Well, good morning, everyone.

6 Mr. O'Sullivan, there is an application before us for additional

7 protective measures in relation to the next witness. Are counsel for the

8 accused in a position to deal with this application now?

9 MR. O'SULLIVAN: We have no objection.

10 JUDGE BONOMY: No objection.

11 Now, Mr. Stamp.

12 MR. STAMP: Good morning, Your Honour.

13 JUDGE BONOMY: There's an application to extend the protective

14 measures for this witness which I just want to be clear about -- on which

15 I want to be clear about one thing. An application was made in July when

16 you would expect any problems that had been experienced would have been

17 resolved. And here we have an application made today which is going to

18 cost the loss of another half-hour of time, if it's granted, because we

19 will have to adjourn while the arrangement is put in place. It's another

20 example of the disturbance of the schedule, which is caused by Prosecution

21 proofing at the last minute. And we are becoming increasingly anxious

22 that something's going to have to be done about this to prevent these

23 situations from arising at the last minute. The disturbance to the

24 schedule is caused, first of all, by the delivery of information late to

25 the Defence; and secondly, by giving rise to the need for loss of time

1 while technical arrangements are put in place.

2 Now, is there nothing that can be done to carry out this proofing

3 exercise at an earlier stage?

4 MR. STAMP: The -- what can be done, generally speaking, is to

5 bring the witnesses earlier, which would involve significant additional

6 resource outlays or, as is done in this case, to go to the witness, which

7 again involves significant outlays if it had to be done in respect of

8 every witness. We -- there's nothing else I could suggest. We do try and

9 we could try even more when it comes to protective measures to contact the

10 witnesses by telephone or by some other means, by officers in the field,

11 to get clear information. But there are just occasions which are

12 sometimes inescapable when we hear the information at the last minute, as

13 in this case.

14 JUDGE BONOMY: Well, that's a useful suggestion, that contact

15 should be made by telephone earlier. The one other thing -- the two are

16 related but the thing I really want to be clear about is why this problem

17 didn't emerge in July.

18 MR. STAMP: Yes, in July he did not mention and he was not

19 asked -- well, the --

20 JUDGE BONOMY: Well, just --

21 MR. STAMP: The situation is a developing situation --

22 JUDGE BONOMY: Well, just hold on a second.

23 We'll go into private session for this because I want to discuss

24 the previous protective measures.

25 [Private session]

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22 [Open session]

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

24 JUDGE BONOMY: I simply confirm, so that there's no doubt as far

25 as the public is concerned, that the application for additional protective

1 measures has been granted and the witness will give evidence with his

2 voice also distorted.

3 So we shall adjourn and resume at ten minutes to 10.00.

4 --- Recess taken at 9.30 a.m.

5 --- On resuming at 9.53 a.m.

6 JUDGE BONOMY: Now, with the indulgence of the interpreters, we

7 will now sit until 11.30, have a half-hour break, and then we'll sit from

8 12.00 to 1.45, so that way we will recoup some of the time that's been

9 lost this morning.

10 Mr. Stamp, the next witness is K-82?

11 MR. STAMP: K-82, yes.

12 WITNESS: WITNESS K-82

13 [Witness answered through interpreter]

14 [Witness appeared via videolink]

15 Examination by Mr. Stamp:

16 Q. Good morning. K-82, can you hear me --

17 JUDGE BONOMY: Well, just a second, I'll deal with the declaration

18 first of all.

19 MR. STAMP: Very well, Your Honour. Complete the --

20 JUDGE BONOMY: I think the witness does not have the -- yeah.

21 Sir, can you hear me?

22 [Microphone not activated]

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

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

25 MR. STAMP: He just took the solemn declaration. I think he was

1 prompted by the registrar there.

2 JUDGE BONOMY: Please be seated.

3 Now, Mr. Stamp, help me, how is the sound transmitted? Is it

4 through one of these open telephone call --

5 MR. STAMP: I think it's by way of a conference call machine

6 there.

7 JUDGE BONOMY: Yeah, I'm surprised he doesn't have earphones, but

8 they're not required.

9 [Trial Chamber and registrar confer]

10 JUDGE BONOMY: Well, Witness K-82, you're about to be asked

11 questions by a number of counsel, first of all representing the

12 Prosecution and then representing the various accused here. They will be

13 asking questions to either add to or explain or even challenge evidence

14 which we already have before us. The Judges already have copies of a

15 fairly detailed statement that you've given, and the important thing is

16 that in answering questions today you pay close attention to the question

17 that's being asked and deal with the particular issue that's raised in the

18 question. There's no point in repeating what we already have before us in

19 your statement. So please listen carefully to each question and give an

20 answer confined to the point that the question relates to. And the first

21 person to question you will be for the Prosecution, Mr. Stamp.

22 Mr. Stamp.

23 MR. STAMP: Thank you very much, Your Honour.

24 Q. Good morning again, K-82, and in the course of your testimony

25 we'll refer to you as "K-82." Can you hear me?

1 A. Yes, I can.

2 Q. I'd like first to show you a document, and I want you to look at

3 it, read it, and say whether or not the document describes you personally.

4 Do not read it aloud.

5 MR. STAMP: Could the witness be shown P2302?

6 THE WITNESS: [Interpretation] K-82.

7 JUDGE BONOMY: I must hear everything that's going on. It's not

8 appropriate to switch off the sound. Now, what was going on there?

9 MR. STAMP:

10 Q. Witness K-82, you see that document in front of you?

11 A. Yes, I do.

12 Q. Does --

13 A. Yes, I see the document.

14 MR. ACKERMAN: Your Honour, I'd really like to know what the

15 registrar was telling the witness.

16 JUDGE BONOMY: Indeed, so would I. What was happening there? I

17 can't hear anything that's happening. I can hear the witness when he --

18 when he's translated, but I can't hear what the registrar is saying.

19 THE REGISTRAR: [In Sarajevo] -- loud, therefore I just closed it.

20 Can you hear me, Your Honour?

21 MR. STAMP: While we're waiting, Your Honour, could I hand a copy

22 of Exhibit 2302 so that we can --

23 JUDGE BONOMY: Yes, you can hand a copy to the --

24 MR. STAMP: And I believe the Defence already has copies of this

25 document. It's a pseudonym sheet and it's in e-court.

1 Can I proceed?

2 JUDGE BONOMY: Well, I'm still waiting for the explanation from

3 the registrar as to what was going on in the court, in the room.

4 Why can't she speak to us?

5 MR. STAMP: Madam Registrar, could you just speak using the same

6 system that the witness just spoke through to tell us what happened at the

7 point when you first showed him the pseudonym sheet?

8 THE REGISTRAR: [In Sarajevo] Can you hear me now?

9 JUDGE BONOMY: I can't hear that.

10 THE REGISTRAR: [In Sarajevo] Can you hear me, Your Honour?

11 JUDGE BONOMY: Yes, now I can.

12 THE REGISTRAR: [In Sarajevo] Your Honour, sorry, but the witness

13 was about to read it aloud; therefore, I just -- I closed it in order not

14 to make him read it out loud. That's the only reason.

15 JUDGE BONOMY: All right. Thank you very much.

16 THE REGISTRAR: [In Sarajevo] You're welcome, Your Honour.

17 JUDGE BONOMY: Carry on, Mr. Stamp, please.

18 MR. STAMP:

19 Q. K-82, does that document contain accurate personal information

20 about yourself?

21 A. Yes.

22 Q. Thank you.

23 MR. STAMP: Could the witness be shown P2315, which is his

24 statement dated the 14th of September, 2006.

25 Q. K-82, on the 14th of September, 2006, did you give a statement to

1 the Prosecution or to officers of the OTP?

2 A. Yes.

3 Q. And is that a copy of it in front of you there?

4 A. Yes.

5 Q. And that statement you gave, was it read over to you at the

6 time?

7 A. Yes, it was read back to me.

8 Q. And is the statement true and accurate -- is it a true and

9 accurate reflection of the evidence you would give? In other words, if

10 you're asked questions about the matters stated therein now, would your

11 answers remain the same?

12 A. Yes. This statement I gave was read back to me and it is correct.

13 The statement I have before me, as far as I can see, is in English, so ...

14 Q. On the English copy that you have in front of you, do you see

15 where you have signed to it?

16 A. Yes.

17 Q. Now, in that statement --

18 JUDGE BONOMY: Well, what's -- what is the witness telling us?

19 That he remembers it being read to him and that was accurate; is that the

20 evidence?

21 MR. STAMP: Yes, Your Honour.

22 JUDGE BONOMY: And he doesn't have before him a B/C/S version?

23 MR. STAMP: He should. The --

24 JUDGE BONOMY: Well, would it not be better to have him read one

25 over before today to make sure that the B/C/S was a correct account? Has

1 that been done?

2 MR. STAMP:

3 Q. Witness, do you see, along with the English version, a copy of the

4 statement in B/C/S, in Serbian language?

5 A. Yes, I do.

6 Q. Have you had an opportunity of reading that statement?

7 A. Yes. This statement was read back to me by the interpreter once I

8 had given it.

9 Q. That is an English statement was translated and read over to you.

10 Is that correct?

11 A. Yes.

12 Q. And you signed that statement, acknowledging the accuracy of it?

13 A. Yes.

14 Q. Now, the statement describes primarily the activities of your

15 military unit in Kosovo in 1999. Attached to the statement did you also

16 mark three maps showing the places where your unit was involved in the

17 various activities that you describe in your statement?

18 A. Yes, I did.

19 Q. Witness K-82, I'd like you to remember that we have your statement

20 so I'm only going to refer to some parts of it and just ask a couple

21 questions for clarification.

22 MR. IVETIC: I'm sorry, Your Honour, but if the statement is being

23 tendered I do have to make one short objection with respect to the portion

24 contained in paragraph 31 which references the PJP which was not

25 previously disclosed or contained in either of the six -- the witness

1 notification, the prior statement, or in the extensive Milosevic

2 testimony. There was no reference to any testimony relating to the PJP,

3 so if the Prosecutor is going to lead any evidence on that I would be

4 objecting to that portion. Thank you.

5 JUDGE BONOMY: Well, he has led evidence by presenting the

6 statement. Are you objecting to the references within the written

7 paragraph 31?

8 MR. IVETIC: Yes, Your Honour, that's why I rise now rather than

9 waiting for him to elicit live testimony in this regard. Because I

10 understand the statement is being tendered pursuant to Rule 89(F) and I

11 view the matters alleged at paragraph 31 to be improper based on the

12 grounds that I've stated, limited to the PJP aspect, Your Honour, since

13 that's the only part that I saw that was not previously disclosed or in

14 the notification which -- to the contrary, the notification identifies

15 that there were three companies of soldiers and that there were no -- I

16 mean, it doesn't state that there were PJP present at all. So that's all

17 I have to say.

18 JUDGE BONOMY: There's also reference in that paragraph to MUP

19 reports, but they were disclosed to you, were they?

20 MR. IVETIC: The MUP reports were in on e-court since last week,

21 the first reference to PJP was in this statement which we received Friday

22 evening. I don't know when the MUP reports exactly were disclosed, but I

23 believe the reports themselves were disclosed previously; I just don't

24 know whether they were linked to this particular witness. But I was aware

25 of them, so I'm less concerned with them and more concerned with any

1 testimony to be led with regard to the PJP which was not evident anywhere

2 and will of course increase the questioning that I will do, which was

3 going to be very limited based on the previous I have had hand and was

4 previously given notice of.

5 JUDGE BONOMY: Thank you.

6 Mr. Stamp, on that point.

7 MR. STAMP: Your Honour, the reference to the PJP is in fact an

8 elaboration and a clarification of his previous given evidence and

9 statements in respect to the movement of the bodies.

10 JUDGE BONOMY: What did he say before -- or who did he say before

11 was responsible for moving them?

12 MR. STAMP: I don't believe he identified the persons before. He

13 says was responsible for the bodies, but this is a situation where he says

14 he merely believes or thought it must have been the PJP.

15 JUDGE BONOMY: Are you leading any oral evidence from him on this

16 paragraph?

17 MR. STAMP: Do you mean do I need to ask on what basis did he

18 think or say it was the PJP? Your Honour, I would submit that the real

19 issue is an issue of notice. And while it is ideal that in a summary or

20 in previous testimony every single item that a witness may say upon

21 elaboration is clearly notified. It is, nevertheless, possible that on

22 later testimony there might be an elaboration in which there are asked

23 slight --

24 JUDGE BONOMY: Well, there's a difference between an elaboration

25 and a mentioning of an organisation for the first time. Mr. Ivetic's

1 point is that he's got no notice -- until recently, that it's being

2 suggested that the PJP were involved. And the way it's presented here, if

3 we were to give this any credence at all, would suggest that the PJP were

4 working in collaboration with the VJ in this operation. Now, that's a

5 pretty significant matter, in my opinion, in this trial. And do you see

6 it differently?

7 MR. STAMP: No, I think it is significant, which is to some degree

8 why I will ask one question about it --

9 JUDGE BONOMY: And it's bringing in the PJP in his evidence for

10 the first time.

11 MR. STAMP: That -- that, Your Honour, is something I would

12 prefer to address more -- with more precision if I was given a little bit

13 more time. I think it's something that could wait until after the break.

14 But could I ask one moment to consult --

15 JUDGE BONOMY: Not at the moment, no, let us consider that.

16 [Prosecution counsel confer]

17 [Trial Chamber confers]

18 JUDGE BONOMY: We take the view that this is a -- is not an

19 elaboration of previous evidence, but this is a new account of events. As

20 it stands, we would find it very difficult to give much weight to this, as

21 suggesting that the PJP were involved, and we are not prepared to allow

22 you to elaborate upon it since the Defence for the sixth accused are not

23 in a position prior to cross-examining the witness to investigate the

24 circumstances of the PJP at that time to conduct an adequate

25 cross-examination. And therefore, we will exclude from consideration any

1 reference to the PJP referred to in paragraph 31.

2 MR. STAMP:

3 Q. Witness, in -- Witness K-82, in paragraph 11 of your statement you

4 told us about an operation that your unit was involved in, in the village

5 of Trnje in the latter part of March 1999, and you said that around 80 --

6 I'm sorry, this is paragraph 10, 80 to 100 soldiers were involved in this

7 operation and that you arrived on a hill overlooking the village and

8 sometime earlier that morning Captain Gavrilovic, the battalion commander,

9 gave an order to the sergeants, sergeants who were in charge of some

10 platoons of your unit. Can you recall what the order was?

11 A. Yes, I can. He turned to the sergeants and he asked whether

12 companies were ready for action. They answered positively. After that,

13 he turned towards the village and pointed at it with his hand, and he

14 said: "There is no one to be left there." And once the sergeants

15 understood what he said, they turned back to their companies, they

16 assembled, and they headed off towards the village. The first two

17 companies were led by Kozlina and Nedeljkovic, whereas Fejzic remained on

18 the hill with his company.

19 JUDGE BONOMY: Mr. Stamp.

20 MR. STAMP: Yes.

21 JUDGE BONOMY: Can -- I should have had you tell us which

22 paragraphs of the indictment this statement relates to. This particular

23 incident is in which paragraph?

24 MR. STAMP: This is not a scheduled incident in the sense that it

25 is not narrated in any of the paragraphs of the indictment. But evidence

1 relates to paragraphs --

2 JUDGE BONOMY: Sorry, this is a very specific event you're talking

3 about. It's not in the indictment and it's in March 1999? Is that --

4 MR. STAMP: It is, yeah.

5 JUDGE BONOMY: Why is it not in the indictment?

6 MR. STAMP: I asked a similar question and there were at times

7 past opportunities when the indictment was being amended to include it.

8 The evidence, I am told, came to attention sometime after the indictment

9 was proffered, sometime -- just about the close of the Kosovo part in the

10 Milosevic trial. And the opportunities to amend it, although they

11 existed, there were different or varying considerations. And it was

12 thought that the indictment, having made allegations or allegations to

13 matters and events that occurred in Kosovo leading to the movement of the

14 population, not all incidents that came to our attention in the course of

15 preparing the case needed to be included in the indictment.

16 JUDGE BONOMY: So why do you include any then? I mean, what is

17 the rationale of an indictment? Is it not supposed to set out the

18 detailed events that are going to be the subject of evidence, particularly

19 the ones between January and June 1989 [sic]?

20 MR. STAMP: Indeed it is. The specific incidents in the

21 indictment is paragraphs 72 and 75 are illustrations of a general course

22 of conduct, a widespread and systematic course of conduct carried out by

23 the force of FRY and Serbia at that period. Now, the indictment was

24 proffered I think in 1999.

25 JUDGE BONOMY: But it was a --

1 MR. STAMP: And various incidents have come to our attention after

2 that. The Prosecution would be in a position to have to make a decision.

3 Do we take out an incident and add one or do we add more illustrations?

4 And it might well reach a point when the indictment would be overloaded

5 with illustrations.

6 JUDGE BONOMY: Of course --

7 MR. STAMP: So I think the decision was made earlier -- it was a

8 judgement call that was made earlier.

9 JUDGE BONOMY: Well, I now do not understand what this indictment

10 actually tells us. It just tells us about the incidents you think you

11 should specify and it doesn't tell us about the other ones, no matter how

12 specific they are, if you've decided not to specify them. Is that how I

13 have to read the indictment?

14 MR. STAMP: Your Honour, the indictment does in many paragraphs

15 refer to the general widespread and systematic course of conduct similar

16 or descriptive of this particular incident.

17 JUDGE BONOMY: But surely that is a conclusion that we are invited

18 to reach, having made particular findings on the specific crimes set out

19 in individual paragraphs of the indictment.

20 MR. STAMP: Indeed it is.

21 JUDGE BONOMY: Yeah. So you would expect this one that you're now

22 dealing with to be a paragraph in the indictment, among many others, from

23 which we would draw the conclusion if we found them established that the

24 conduct was widespread and systematic. But instead you're telling me:

25 There might be an endless number of incidents of significance that aren't

1 mentioned in here. And because you've talked of conduct being widespread

2 and systematic, that entitles you to lead evidence about anything that

3 happened in Kosovo at any time within the time period?

4 MR. STAMP: No, no, Your Honour.

5 JUDGE BONOMY: Right. Okay. Well, tell me where I've

6 misunderstood then.

7 MR. STAMP: The indictment charges widespread and systematic

8 conduct against Kosovar Albanians by the forces of the FRY. Various

9 paragraphs of the indictment tell us quite clearly what that conduct

10 amounted to. Specific illustrations are given in the indictment; them

11 being illustrations, they can only be of limited number. The indictment

12 having been proffered other, shall I say, outstanding illustrations of the

13 conduct pleaded in the indictment may come to the attention of the

14 Prosecution. And those specific instances come under the general

15 pleadings in the indictment in respect to conduct throughout Kosovo which

16 led to the population movement. So the issue really is whether or not the

17 Prosecution must plead every single incident specifically. I would submit

18 not. But it does not mean that everything that happened in Kosovo becomes

19 provable.

20 JUDGE BONOMY: Well, tell me something would not -- you wouldn't

21 be able to lead evidence about. Give me an example.

22 MR. STAMP: Crimes -- crimes committed by persons not being part

23 of the force of the FRY or Serbia as charged.

24 JUDGE BONOMY: All right. I accept that.

25 MR. STAMP: Not --

1 JUDGE BONOMY: Assuming it was something done by the army, tell me

2 something that you would not be able to --

3 MR. STAMP: Crimes committed in such a manner that they do not

4 indicate or that it is not of reasonable inference that they were intended

5 to create a climate of fear and to expel the population. These crimes

6 clearly fall within the ambit of the general crime described in the

7 indictment, the burning of the houses while the population was expelled,

8 the killing of the people in public, the shooting at people, at crowds of

9 people when they descended into the town, the random murder, but

10 particularly the destruction of the people's houses. These are the types

11 of crimes that were generally described in the indictment.

12 JUDGE BONOMY: Are there other events in here that are not in this

13 statement that are not mentioned in the indictment.

14 MR. STAMP: I'm afraid I don't --

15 JUDGE BONOMY: Or is it only this particular event? Are there

16 other events in this witness's statement not referred to in the

17 indictment?

18 MR. STAMP: Yes, Your Honour, not specifically referred in the

19 indictment.

20 JUDGE BONOMY: And which are they?

21 MR. STAMP: There is an incident at Ljubizda.

22 JUDGE BONOMY: Paragraph?

23 MR. STAMP: That's paragraph 5 in December 1998. That is more

24 relevant to the background. There is an incident at Jeskovo in February

25 1999 related to the background of the events we are discussing.

1 JUDGE BONOMY: Yes, paragraph 5. Which others?

2 MR. STAMP: The second incident I mentioned is paragraph 6.

3 JUDGE BONOMY: Yeah.

4 MR. STAMP: There is an incident at the village of Mamusa in

5 paragraph 27, and Rogovo in paragraph 34. All of these are offences

6 referable to Prizren or the municipality of Prizren where we charge

7 persecution and the relevant indictment paragraphs --

8 JUDGE BONOMY: And if you were to take this to its logical

9 conclusion, accused could be convicted on the basis of this evidence alone

10 in this court, even though no mention is made in the indictment of the

11 events in these various paragraphs?

12 MR. STAMP: They --

13 JUDGE BONOMY: That's what you would say, that you could be

14 convicted here on an indictment that doesn't even mention the things that

15 you're convicted of?

16 MR. STAMP: I would not submit at this point that you could be

17 convicted of this alone.

18 JUDGE BONOMY: Why not?

19 MR. STAMP: The Prosecution's case --

20 JUDGE BONOMY: Why could there not be a murder conviction arising

21 out of the events in this statement alone, events that aren't mentioned in

22 the indictment?

23 MR. STAMP: No, in a general sense there could be a conviction,

24 but in respect to the indictment for the court, not. I would, without

25 having had the opportunity to fully advise myself, I would submit that

1 these allegations, if proven, in conjunction with the specific

2 illustrations set out in the indictment would be sufficient or could --

3 JUDGE BONOMY: No, let's assume there's an acquittal of all the

4 others that are specified in the indictment. You could be convicted on

5 the strength of these ones alone?

6 MR. STAMP: That is a submission which I probably would like to

7 make if I advise myself fully on it.

8 JUDGE BONOMY: Mr. Ackerman.

9 MR. ACKERMAN: I should tell Your Honour that I discussed the very

10 issue you're talking about with some of my colleagues yesterday because I

11 noticed that no incident this person describes is contained in the

12 indictment. And it was my understanding that there was a previous witness

13 that testified here before I came who testified about an incident not

14 contained in the indictment, and his testimony was permitted because it

15 went to the issue of widespread and systematic but that the specific

16 incident itself could not be the basis of any conviction. That was my

17 understanding, even though I didn't go read the ruling Your Honour made at

18 that point.

19 I now hear the Prosecutor saying that even though we've not been

20 given indictment notice of these events, that it's his position that you

21 could convict us based upon these events and I think that's a bit

22 startling on the jurisprudence in this Tribunal. And if that's the basis

23 on which it's being offered, then I should strongly object to it.

24 JUDGE BONOMY: Well, we are going to adjourn to consider this.

25 K-82, I greatly regret that we've got involved in a legal argument

1 while hearing your evidence, but it's a matter of some importance and the

2 Trial Chamber will need to take some time to consider how it's going to

3 address this issue. It may be that some further submissions are required

4 before we can make any determination of it, but we need to at least give

5 it some preliminary consideration. Regrettably we were not given this

6 statement. I don't know why, but we didn't have it until this morning and

7 therefore everything has happened rather quickly. So we will alert you

8 when you're ready to resume.

9 --- Recess taken at 10.33 a.m.

10 --- On resuming at 12.01 p.m.

11 JUDGE BONOMY: Well, thank you for your patience. The first thing

12 I ought to make clear is that -- well, sorry, Mr. Stamp, do you have

13 something to say?

14 MR. STAMP: I was wondering if I could bring to the attention of

15 the Court one or two submissions particularly in respect to --

16 JUDGE BONOMY: Yeah, you'll have an opportunity in a moment. The

17 first thing I want to do is make it clear that we will not require the

18 witness for the rest of today. So there is no point in the witness

19 remaining in the room where the broadcast is coming from. He should be

20 available tomorrow, but whether we need him depends on what we decide.

21 [The witness stands down]

22 [Trial Chamber and registrar confer]

23 JUDGE BONOMY: Now, second piece of clarification that's initially

24 required is whether we can conduct this debate now in open session. I do

25 want to feel free to refer to the localities that are the subject of the

1 debate. Does that present any problem? I don't think it does because the

2 evidence was going to be heard. So it would appear to me there's no

3 reason why we shouldn't be in open session.

4 I hear no one disagreeing with that, so we shall conduct the

5 proceedings now in open session.

6 [Trial Chamber confers]

7 JUDGE BONOMY: Now, Mr. Stamp, I would like you to clarify certain

8 things to help us understand where you say the indictment allows this

9 evidence to be led. If you take, first of all, paragraph 11 was the --

10 was the paragraph that you were dealing with first of all. And that leads

11 on to other paragraphs which describe events in more detail. Now, how do

12 you say that that evidence could be said to be relevant to the indictment?

13 MR. STAMP: Paragraph 11 is a paragraph in which we have a senior

14 officer of the VJ giving an order which we would later submit whether he

15 had something now as an order which can be interpreted to the one -- to

16 the troops to go into the town and commit crimes. The following

17 paragraphs in the indictment -- in the statement describe these crimes,

18 the burning and destruction of houses and other property, the

19 indiscriminate shooting, the murder of civilians, and generally the

20 creation of a climate of fear which caused the civilians to flee the town.

21 These facts are specifically relevant to paragraphs -- I think it's 23 to

22 32 of the indictment. In fact, paragraph 5, paragraph 25, dealing with

23 expulsion -- and the -- now the --

24 JUDGE BONOMY: Now, that -- these paragraphs are an overview of

25 the joint criminal enterprise.

1 MR. STAMP: That is the heading, but the paragraph -- these

2 paragraphs describe the conduct -- the conduct of the force of the FRY who

3 carried out the aims and purposes of the joint criminal enterprise.

4 Paragraph 25, expulsion; paragraph 26, the destruction and burning;

5 paragraph 27, violence and threats against civilian population; paragraph

6 30, looting --

7 JUDGE BONOMY: This is a general narrative of the joint criminal

8 enterprise. That's the heading and that, I assume, is what it's meant to

9 be.

10 MR. STAMP: It is a narrative of the conduct of the force of the

11 FRY and Serbia.

12 JUDGE BONOMY: As part of?

13 MR. STAMP: As part of the effecting of the joint criminal

14 enterprise.

15 JUDGE BONOMY: Yeah. Yes?

16 MR. STAMP: It -- when you look at that evidence in conjunction

17 with two of the exhibits towards the documents exhibited in this

18 statement, you will see that those documents show that the forces of the

19 FRY and Serbia in this particular case with particular -- with --

20 particular to the VJ were engaged in an operation in that area. I should

21 not just say the VJ but the brigade that this witness was a member of.

22 That is the 549 Motorised Brigade. 24th, 25th, 26th, 27th of March in the

23 areas of Orahovac, Suva Reka, Mala Krusa, Bela Crkva, and also Trnje.

24 Inside witnesses are difficult to get, so we have no --

25 JUDGE BONOMY: That's a separate matter entirely. Whether it's

1 difficult to get or not has absolutely nothing to do with whether what he

2 says is relevant to the indictment. The fact that you have someone in a

3 hot seat in a court who can tell you something that sounds like a crime

4 doesn't mean it fits in the indictment. Let's concentrate on the argument

5 how the evidence is relevant to the indictment. Now, which municipality

6 is Trnovo in, for example -- sorry, Trnje I should say.

7 MR. STAMP: Prizren municipality.

8 JUDGE BONOMY: Prizren. Now, we've got events in Prizren in

9 counts 1 and 2 I think.

10 MR. STAMP: Counts --

11 JUDGE BONOMY: Paragraph 72.

12 MR. STAMP: Paragraph 72, paragraph 75 I think.

13 JUDGE BONOMY: Well, I don't think you'll find it in 75, which is

14 the murder paragraph. We don't have any murders in Prizren, I don't

15 think. But please correct me if I'm wrong. I know it's sometimes very

16 difficult to follow everything that's averred.

17 MR. STAMP: No, we do not.

18 JUDGE BONOMY: So how do we get these killings into this

19 indictment?

20 MR. STAMP: The -- which is precisely what I was getting to --

21 JUDGE BONOMY: All right.

22 MR. STAMP: -- when I referred to him being an insider witness. We

23 have no insiders for specifically Velika Krusa, Mala Krusa, Suva Reka,

24 maybe one in respect to Suva Reka, but not a witness to the killings. We

25 have a document which shows that these offences of the 25th, 24th, 26th --

1 well, I should say the 23rd to the 28th of March in that -- in the brigade

2 area of responsibility were committed by his unit of that brigade in a

3 particular area. So it identifies brigade members of being involved in

4 that type of conduct. The murders at Velika Krusa, Mala Krusa, and other

5 areas -- or Orahovac, if I have the pronunciation right, are in the area

6 of responsibility of which this soldier as a member or this ex-soldier as

7 a member. So his testimony touches directly on the course of conduct, the

8 pattern of conduct, of the brigade whose area of operation involved

9 those -- that particular part of Kosovo. So it assists to identify

10 participants in the crimes mentioned in paragraphs 32, 24 to 32, 72, and

11 75 in particular.

12 JUDGE BONOMY: Sorry, paragraph -- these are the -- are these

13 paragraphs of the indictment you're mentioning?

14 MR. STAMP: Yes, Your Honour.

15 JUDGE BONOMY: You have lost me here, I must say. This witness is

16 going to talk of events in Velika Krusa, Mala Krusa, Suva Reka?

17 MR. STAMP: No, no, he will not speak of those events, but his

18 brigade --

19 JUDGE BONOMY: Then, how does that -- how does the fact that he

20 can speak to events in another municipality impact on behaviour in these

21 ones?

22 MR. STAMP: He speaks of events in which his brigade, the brigade

23 that he is a member of, participated in. These events signify or these

24 are events from which the Court, the trier of fact, can make inferences,

25 A, not only in terms of the widespread and systematic element of the

1 offences with which he is charged -- or with which the accused are

2 charged, but also in respect of the conduct of that brigade.

3 JUDGE BONOMY: So if it commits murder in one municipality, it

4 must inevitably be committing murder somewhere else?

5 MR. STAMP: Not inevitably, Your Honour. The Prosecution --

6 JUDGE BONOMY: Well, is it not traditionally the case in criminal

7 law that you don't infer that a person will murder in one place because

8 he's committed a murder somewhere else? We actually expect evidence.

9 MR. STAMP: We're speaking about an organisation here,

10 Your Honour, not a person. We are speaking about the brigade of which

11 this accused is a member of. We're saying that the evidence shows what

12 the brigade -- the conduct of the brigade in general in its area of

13 responsibility and the command apparatus in respect of punishing persons

14 or not -- who would not participate in that -- in the crimes that are

15 charged in the indictment. I had indicated that there were a couple

16 precedents that I wished to refer the Court to. One which is on point

17 with what I was just describing is from the Kupreskic --

18 JUDGE BONOMY: Just before you go to that, are you therefore

19 saying you would not in this case seek a conviction for murder in Trnje,

20 that would never happen; all you would do is seek to invite the Chamber to

21 draw an inference about behaviour in municipalities where charges do exist

22 in the indictment from the way in which this brigade behaved in Trnje and

23 the other places that we may yet come on to in this discussion?

24 MR. STAMP: Yes, Your Honour, we would not submit and we do not

25 submit that a conviction for these particular villages would be

1 appropriate. However, the evidence in respect to these particular

2 villages, for a variety of reasons, can support a conviction on those

3 offences which involve the widespread and systematic nature of the

4 charges.

5 JUDGE BONOMY: Well, that's a very vague answer, if I may say so,

6 because it can mean two separate things. Are you saying that the crimes

7 on which you will seek convictions are limited to the specific ones set

8 out in the subparagraphs of, for example, paragraph 72?

9 MR. STAMP: Yes, Your Honour.

10 JUDGE BONOMY: So that when you re-incorporate these general

11 allegations in the various paragraphs you've been referring to earlier in

12 the indictment, you re-incorporate them at paragraph 71. There you

13 re-incorporate paragraphs 60 to 69. You will not seek convictions in

14 respect of these particular -- of any crimes based on the generality of

15 the allegations in these paragraphs.

16 MR. STAMP: That is correct, Your Honour.

17 JUDGE BONOMY: Well, that does clarify something about which we

18 have been extremely concerned for some time and it leaves an outstanding

19 matter which I don't think we need to deal with at this particular stage.

20 Now, you were going to go on to authority.

21 MR. STAMP: I pause here to indicate that the authorities on the

22 matter seem to me to be to manifold and seem to aim in one direction.

23 When it comes to authorities I suggest, and it was just a suggestion, that

24 perhaps the Court might well benefit from written submissions perhaps

25 delivered today, later on today, since we are sitting in the afternoon

1 tomorrow. However, without having the authorities here I could cite some

2 of them quickly.

3 JUDGE BONOMY: Yeah.

4 MR. STAMP: The first is from the Kupreskic appeals decision. And

5 the -- I'm sorry, I don't yet have the paragraph number for the passage I

6 wish to quote which reads: "The Appeals Chamber, however, finds that

7 Witness DD's testimony concerning Josipovic's presence at Ahmic house may

8 still be considered as corroborating evidence for the determination of

9 Josipovic's involvement in the offence that was set out in the Amended

10 Indictment, that is the attack on Musafer Puscul's house. Support for

11 this position can be found in Rule 93 of the Rules, which allows for the

12 admission of evidence of a consistent pattern of conduct relevant to

13 serious violations of international humanitarian law in the interests of

14 justice. Similarly, under the so-called principle of 'similar fact

15 evidence,' courts in England and Wales, Australia, and the United States

16 admit evidence of crimes of wrongful acts committed by the defendant other

17 than those charged in the indictment, if the other crimes are introduced

18 to demonstrate a special knowledge, opportunity, or identification of the

19 defendant that would make it more likely that he committed the instant

20 crime as well."

21 This is from the Kupreskic Appeals Chamber decision, and it's

22 paragraph 321 I am told. The Strugar decision of the 22nd of January,

23 19 -- 22nd of January, 2002 on the Defence's objection to the Prosecution

24 opening statement concerning admissibility of evidence was to the effect

25 that courts will generally admit evidence of acts of the accused other

1 than those charged in the indictment, provided that this evidence is used

2 to prove an issue relevant to the charge, such as motive, opportunity,

3 intent, preparation, plan, or knowledge. And this decision was also

4 quoted in the -- I think all of them were approved -- these decisions were

5 approved in the aforementioned Strugar case where it was also said - and

6 this is the penultimate reference I will make - it was also said at

7 paragraph 323, considering that a review of the practice in national

8 jurisdictions shows that: "Courts will generally admit evidence of acts

9 of the accused other than those charged in the indictment, provided that

10 this evidence is used to prove an issue relevant to the charges, such as

11 motive, opportunity, intent, preparation, plan, or knowledge." And it

12 made specific reference to the federal rules of evidence for United States

13 courts.

14 The -- another decision which I would like to comment on, and it's

15 a last citation I will make, and that's the decision in the -- that's a

16 judgement in the Galic case delivered on the 5th of December, 2003, at

17 paragraph 186. I think it's paragraph 185 to 191 which would be relevant,

18 and that -- those paragraphs are under the general rubric evaluation of

19 evidence. In the -- in paragraphs 186 to 188 they refer to what were in

20 that case called a -- scheduled incidents, which for these purposes are

21 the same as those incidents which we specifically describe in paragraphs

22 72 and 75 of this incident. In the Galic indictment the difference is

23 that they put them in schedules to the indictment. They were called

24 scheduled sniping incidents and scheduled shelling incidents. In that

25 case the Prosecution led evidence to prove a variety of matters including

1 the widespread and systematic nature of the offence and in reference to

2 those non-scheduled offences or in reference to the evidence of those

3 non-scheduled evidence the Trial Chamber said at paragraph 189: "At the

4 same time, the Trial Chamber has given no less attention to evidence of

5 non-scheduled sniping and shelling incidents as well as to evidence of

6 other aspects of the situation in Sarajevo. The scheduled incidents have

7 thus been considered by the Trial Chamber within a more general

8 evidentiary context, reflecting how the greater number of witnesses in the

9 case understood them and explained them. Witnesses' -- witness evidence

10 together with documentary evidence has been chosen, combined, and arranged

11 with the Trial Chamber in accordance with its relevance, the credibility

12 of its source, and its probative value, with due regard to the fact that

13 the present Indictment alleges unlawful conduct and responsibility for

14 such conduct going beyond what is referred to in the scheduled incidents."

15 Those are the words that I'd like to emphasise. The Prosecution's

16 case here, as is clear I think, goes beyond the incidents charged within

17 the indictment. Those are the authorities. I think I could deal with

18 them more carefully and with more precise citations if we were permitted

19 time to furnish a written submission. The -- I don't know if Your Honour

20 wants to restrict my response now to that part, the incidents at Trnovo --

21 Trnje, because there are other areas of this witness's statement which are

22 relevant to the allegations in the indictment, including relation to 7(3),

23 that is Article 7(3) within this corps -- within this -- the Pristina

24 Corps, the brigade in question that this soldier was a member of, soldiers

25 who refused to participate were threatened. That course of conduct is

1 relevant to the Court's consideration, it is my respectful submission, of

2 7(3) issues.

3 JUDGE BONOMY: I don't dispute that it would be relevant to 7(3)

4 issues. My question is: Is it relevant to the indictment? That's what

5 you have to concentrate on. All of your evidence is relevant in a general

6 sense, it's relevant to events in Kosovo. The question for us is whether

7 it's relevant to this indictment.

8 MR. STAMP: The -- in respect to the 7(3) aspect, for example, the

9 evidence of the burying of the bodies, for example, goes to a variety of

10 passages in the indictment, where it is alleged that instead of taking

11 corrective action to prevent or punish these crimes, systems were put in

12 place for the concealment of the evidence, for the concealment of the

13 bodies. So when this witness refers to his brigade being involved in

14 that, that evidence is relevant to the various parts of the indictment

15 dealing with concealment of bodies.

16 JUDGE BONOMY: Can you give me an example where there's a

17 reference to concealment of bodies in the indictment?

18 MR. STAMP: Paragraph 41(g) and the same allegation is made I

19 think in pretty much the same formula with the same formula in respect to

20 the other accused. That paragraph I just mentioned, which was to the

21 accused General Ojdanic. It's used in respect to other accused in

22 paragraphs 46(e), to the accused Sainovic.

23 JUDGE BONOMY: Is there then an averment to the steps that were

24 taken to conceal bodies?

25 MR. STAMP: I'm sorry, I'm not ...

1 The evidence speaks to a system in place for the concealment of

2 bodies and the -- the indictment -- the averments in the indictment refer

3 to the planning for the concealment of bodies.

4 JUDGE BONOMY: Well, I'm asking you where we see that one of the

5 things that was planned was the concealment of bodies. It's a simple

6 thing to state in an indictment.

7 MR. STAMP: There is reference that in respect to Suva Reka, that

8 is 75(d), paragraph 75(d).

9 [Prosecution counsel confer]

10 JUDGE BONOMY: See, I thought that was what the purpose of the

11 indictment was, so that you could set out examples like this as the ones

12 that evidence would be led about and we would all know where we stood,

13 what we were supposed to be judging. That's a perfectly sensible averment

14 there, and no doubt you will try by evidence to link it with paragraph

15 41(g). But it still remains unclear to me at the moment why that simple

16 course wasn't followed and these specific events were not included in the

17 appropriate paragraphs of 72 and 75 so that we know exactly what it is we

18 are to return verdicts on. But at least in relation to 72 you've told

19 me -- and I assume the same applies to 75 - that you would not seek

20 verdicts of the commission of crimes in relation to the events that are

21 pled here -- in relation to the events that are not pled in the

22 indictment.

23 Now, I was going to ask you, Mr. Stamp, about paragraph 5, how it

24 fits into the indictment.

25 MR. STAMP: I believe that the issue as to the admissibility of

1 evidence in respect to 1998 was decided by this Court before, so I don't

2 want to say anything that might not be consistent with the weight of that

3 because -- I would say this, that there is -- that in this case, as in any

4 other case, the background, the development of the events, the leading up

5 to the precise charges which are before the Court may be important to the

6 Court in deciding issues that joint criminal enterprise and the

7 participants, issues like motive, issues like intent. The evidence in

8 paragraph 5 relates to matters specifically discussed in the indictment in

9 respect to 1998 and in the pre-trial brief as well --

10 JUDGE BONOMY: This particular --

11 MR. STAMP: Not this particular piece --

12 JUDGE BONOMY: This particular operation?

13 MR. STAMP: Not the particular operation.

14 JUDGE BONOMY: Well, that's why -- see, we were actually -- we

15 went through an amendment process in which we had to consider whether it

16 was reasonable for you to lead evidence about 1998, and you specified a

17 number of events. And in light of that and our overall assessment of the

18 relevance of that, we decided to allow amendment, and it's surprising you

19 don't include all the ones that you want to lead evidence about at the

20 stage you're amending the indictment. And therefore, I -- I'm surprised

21 that we come across one here that's not mentioned there. And its

22 relevance you say is what?

23 MR. STAMP: The situation as it developed to Racak in January, the

24 Rambouillet meetings in February, and eventually the NATO -- the action by

25 NATO and most of the offences charged in the indictment between February

1 and June 1999 are relevant matters of joint criminal enterprise when it

2 begun, who the participants were, relevant to the motive which we charge

3 in the indictment or the intent or purpose of joint criminal enterprise.

4 It shows that they -- that notwithstanding the ostensible or averred

5 comportment by the force of the FRY, that is that they comported with the

6 agreement with the OSCE in respect to the use of force in 1998. It shows

7 that they did not. It shows that there was a course of conduct which

8 predated the specific period in the indictment and which led to and

9 culminated in the incidents that we are specifically engaged with here in

10 the indictment.

11 THE INTERPRETER: Interpreter's note, there's too much background

12 noise typing and we're having difficulties. Thank you.

13 JUDGE BONOMY: Sorry, I don't understand what you've just said. I

14 understand -- a course of conduct indicating the development of a joint

15 criminal enterprise or at least evidence indicating that the accused were

16 aware of what was happening and either were responsible for organising and

17 planning it or otherwise for executing it. But I understood that in

18 paragraph 95 you had set out the events that you would actually lead

19 evidence about to show this, 94 and 95, in fact.

20 MR. STAMP: Again, Your Honour, these are specific references to

21 specific incidents as pled and I still respectfully submit that the

22 formula used in these two paragraphs indicate that these are not

23 exclusively the incidents that relate to those occurrences in 1998, that

24 the case goes well beyond those specifically cited incidents.

25 JUDGE BONOMY: Now, the other paragraph -- paragraph 6 was one,

1 how does that manage to escape the indictment?

2 MR. STAMP: As I indicated, Your Honour, there are -- it is not

3 possible to put in the indictment specific incidents. All important

4 matters that the Prosecution intends to lead evidence about --

5 JUDGE BONOMY: That's a frightening proposition because we don't

6 have time for that trial, Mr. Stamp. We have time for this trial that's

7 down here. Are you telling me that the number of other events that you

8 will lead evidence about exceeds the number that are specified in the

9 indictment at present?

10 MR. STAMP: Yes, Your Honour.

11 JUDGE BONOMY: I mean exceed -- you may have, I don't know, you

12 may have 30 or 40 incidents referred to. Are you going to tell me that

13 you're going to be leading evidence about more -- another 50, say, on top

14 of that?

15 MR. STAMP: I wouldn't go so far as to say 50, but insofar as

16 evidence of an event is relevant to the various matters at issue in the

17 court, then it is our submission that it is admissible. I don't want to

18 go as far as to say that it can be controlled by the various provisions of

19 the Rules which entitle the court to control the amount of evidence. But

20 in terms of the issue of admissibility, once it is relevant to the live

21 issues -- relevant and probative to the live issues, it is our submission

22 that even if it is not a specifically pleaded event, then it's admissible.

23 The concern, of course, which is expressed by the Court is that then

24 the -- there would be no control over the length of the trial and what the

25 trial covers, but there are other provisions in the Rules.

1 JUDGE BONOMY: But this particular one you referred to says: "I

2 think 25 to 30 people were killed in that operation and he saw the bodies

3 of those people. Now, that doesn't warrant a mention in the indictment.

4 So no one's being prosecuted -- no one here's being prosecuted for that

5 event. The Prosecution have chosen not to prosecute that event. Is that

6 the position.

7 And Ms. Moeller laughs, but I'd like to know the answer to that.

8 Has the Prosecution decided: We do not seek a conviction for that

9 particular killing? Because the story we constantly hear in general terms

10 from the Prosecution is they must fill an indictment with specific

11 allegations of crimes because the people of Kosovo expect that these

12 crimes will be recognised in the judgements of the Tribunal. But here you

13 tell me now that you don't even mention an incident in the indictment, you

14 don't prosecute on the basis that you will seek a conviction for it, but

15 you now want to bring it in, in some other basis. Now, I think that these

16 comments are inconsistent with each other.

17 MR. STAMP: There's a balance that we have to draw as Prosecutors.

18 I think --

19 JUDGE BONOMY: You know, at this moment, I don't actually think

20 you've thought about it as Prosecutors. That's the impression I'm

21 getting, that it's something you've decided latterly to bring in. When

22 you were doing the amendment process, at the moment my impression is you

23 didn't think of this. Now, convince me I'm wrong.

24 MR. STAMP: The -- there have been more than one amendment

25 processes. The evidence came to the attention of the Prosecution in 2002,

1 in the middle of that year, three years also after the -- this indictment

2 was proffered. When such incidents are brought to the attention of

3 Prosecution, there is at that stage a decision to be made. The

4 Prosecution has always submitted that we try in the indictments to have

5 illustrations with the specific events, but it is impossible for us to put

6 in the indictment every single event.

7 JUDGE BONOMY: I accept that. But it's for you to choose which

8 ones to put in, is it not?

9 MR. STAMP: Yes, yes.

10 JUDGE BONOMY: And to prosecute for them. And hard decisions have

11 to be taken. You can't prosecute for everything, but you can't surely

12 come along later and say: Well, we made that decision but now we're going

13 to bring it in by the backdoor.

14 MR. STAMP: We -- the backdoor, I'm not sure if that is entirely

15 the course we are adopting. We would lead in respect to the incidents,

16 scheduled incidents, we would lead as much as we can with certainly a

17 significant amount of evidence on these incidents, on what occurred to the

18 persons. We have quite a number of witnesses who prove, it is our

19 submission, these incidents. Here we have a witness who describes other

20 incidents which could be scheduled if it is admitted. But should we add

21 another incident to the -- the many -- the dozens of incidents already on

22 the indictment, that's a call that was made and the call was that we would

23 go according -- and this is what I've been told, that we'd go according to

24 what the law provided -- our interpretation of the law. And that it is

25 relevant to prove a variety of matters, in particular the organisation and

1 conduct of the brigade which -- whose area of operation was where many of

2 the incidents in the indictment were committed.

3 JUDGE BONOMY: Sorry, the -- whose area of operation --

4 MR. STAMP: Included --

5 JUDGE BONOMY: You don't even mention this brigade in the

6 indictment, do you?

7 MR. STAMP: I don't think brigades are specifically mentioned in

8 the indictment.

9 JUDGE BONOMY: We called several times for specification of the

10 units involved in the various operations, tried to get you to identify

11 them over a long period of time. And I think they're identified in

12 general terms, but I don't think you referred to specific brigade -- a

13 specific brigade carrying out this operation -- or operations in

14 particular areas.

15 MR. STAMP: I am confident --

16 JUDGE BONOMY: I'm learning a great deal today, Mr. Stamp, that

17 causes me great concern about the future of this case. I'm -- I just --

18 MR. STAMP: The --

19 JUDGE BONOMY: I can't believe something you said earlier and I

20 just want to verify it. Are you saying that you are going to attempt to

21 lead evidence about incidents not referred to -- crime bases not referred

22 to in the indictment which may together exceed the number of crime bases

23 that are already referred to in the indictment?

24 MR. STAMP: It is not the intention of the Prosecution to lead

25 evidence of incidents that exceed the number already in the indictment.

1 JUDGE BONOMY: Well, I thought you said earlier that you did, and

2 I've obviously misunderstood or somebody's misunderstood somebody there.

3 MR. STAMP: If I did, I apologise, which is probably it's --

4 JUDGE BONOMY: Well, I'm trying to identify how many more of these

5 are likely to come across.

6 MR. STAMP: The evidence as it stands now, I could address that

7 specifically given an opportunity to address some of these issues in

8 writing. And I do understand the concern of the Court about how do you

9 maintain control of a trial. And I say this not to encourage the Court to

10 use those provisions to maintain control as to the size of a trial.

11 However --

12 JUDGE BONOMY: Well, going back --

13 MR. STAMP: The real issue here is an issue of admissibility, if

14 the question is put simply, is the extent to which nonscheduled incidents

15 are relevant, are relevant and probative.

16 JUDGE BONOMY: Going back then to the specific, what is it you say

17 paragraph 6 goes to? Is it the same sort of thing or is there something

18 else?

19 MR. STAMP: The -- it goes to what I previously outlined in

20 respect to the course of conduct of the force of the FRY.

21 JUDGE BONOMY: And that --

22 MR. STAMP: Contrary to claims they were acting in accordance with

23 international agreements.

24 JUDGE BONOMY: And is that the same as 27 and 34?

25 MR. STAMP: I think these are paragraphs that relate to matters

1 that again go to show the widespread and systematic nature of the

2 campaign, as alleged in the indictment in various places. The events

3 referred to in paragraphs 27 and 34 -- 27, to be specific, would be a

4 paragraph that is relevant to paragraph 99 of the indictment and also

5 paragraph 30 -- 30 and 26, 26 which deals with destruction of the property

6 of Kosovar Albanians in a general sense, looting, and robbery in paragraph

7 30 of the indictment.

8 JUDGE BONOMY: Yeah, the way I read these averments of joint

9 criminal enterprise was as a general statement narrative of events which

10 were then specified in paragraphs 72 and 75 in particular. I didn't read

11 them initially certainly as carte blanche to lead evidence of anything

12 that happened in Kosovo that might be described as deportation or murder.

13 MR. STAMP: And the Prosecution is not submitting that,

14 Your Honour. We submit that the -- this evidence not only is evidence of

15 the widespread and systematic pattern that we claim in the indictment, but

16 it shows -- it's evidence from what the Court can make reasonable

17 inferences as to the perpetrators, reasonable inference to the system in

18 place for planning, reasonable inferences as to the system or lack of

19 system for prevention of a crime or punishment of perpetrators, reasonable

20 inferences in respect to how the organisation -- not individually, the

21 organisation that the accused commanded, treated dissident persons,

22 persons who committed crimes, reasonable inference about how the

23 organisation attempted to conceal the evidence in respect to these crimes.

24 So it does touch upon an event which is not in the indictment, and

25 certainly I suspect if we included it in the indictment or attempted to

1 add it to the indictment, we might well have been -- the Defence, I'm

2 sure, might well have objected strenuously to another specific count on

3 which they could be convicted.

4 JUDGE BONOMY: Well, I'll have to re-read what was said at the

5 time of the amendment, but my recollection was that you couldn't be more

6 specific about what various groups of the army were doing, and now I find

7 it quite frightening to hear that in 2002 you were aware of this

8 systematic way of behaviour of a particular brigade and it's never

9 featured in the indictment to alert us, the Trial Bench, if no one else,

10 to how you were actually going to present your case.

11 Now, anything else to be submitted?

12 MR. STAMP: No, Your Honour, I have no further submissions.

13 JUDGE BONOMY: Thank you.

14 MR. STAMP: Although I would ask that you consider the suggestion

15 I made in respect to written submissions.

16 JUDGE BONOMY: As far as your running order of witnesses is

17 concerned, will you have another witness available tomorrow?

18 MR. STAMP: That is unlikely. We did -- and we are making --

19 taking steps to ensure that there is always somebody waiting, but at this

20 point in time we don't have anyone waiting.

21 JUDGE BONOMY: Wednesday, will there be other witnesses?

22 MR. STAMP: Wednesday I think we will have witnesses available.

23 JUDGE BONOMY: Thank you.

24 Mr. O'Sullivan, do you wish to submit anything on this?

25 MR. O'SULLIVAN: Well, I think my submissions would be limited to

1 submissions on behalf of Mr. Milutinovic. My colleagues may want to

2 supplement after I'm through.

3 There is -- I'm sure the Chamber is anxious to resolve this

4 matter, as we are, but there is some important case law that was cited by

5 the Prosecution and I invite the Bench to review the Kupreskic Appeals

6 Chamber decision, that's the leading jurisprudence on indictments and

7 defects in an indictment, notice, and the corollary issue of relevance at

8 trial. And we say that the core issue here is in fact the indictment as

9 the charging instrument which puts us on notice on the case we must meet,

10 with the corollary of relevance of the evidence at trial. Now, we have

11 examples here of the -- as it was pointed out in your exchange with

12 Mr. Stamp that the general narrative of our indictment is specified by the

13 five counts, and the five counts are what has put us on notice. And that

14 is the relevant -- those are the relevant matters on which -- and only on

15 which evidence can be led.

16 I must take issue with the Prosecution because they cannot be

17 heard to say that since the first Milosevic and other indictment of 1999

18 and the severance to the first Milutinovic joint indictment and then the

19 Pavkovic joint indictment of 2003 and then our joinder indictment of this

20 year that they have not been aware of other relevant matters which could

21 have been charged and that is the fundamental flaw, we say, in their

22 submission.

23 As well, I would like the Chamber to look at the Strugar and Galic

24 indictments and the case law referred to by my learned friend. In Strugar

25 in particular that case deals with the acts of an accused other than those

1 charged against him. It's the acts of the accused. In our indictment,

2 our clients are charged with commission through participation in a JCE,

3 not as the perpetrators of offences. Strugar is different. It's

4 distinguishable on that ground.

5 Now, I will repeat that the Kupreskic jurisprudence, which I

6 cannot at this moment off the top of my head go into in great detail, but

7 it is the leading jurisprudence on indictments and this is the very issue

8 of notice, both through the indictment and the pre-trial brief, of which

9 we've had two in this case, before joinder and after joinder, has put us

10 on notice to the case we must meet. And this is not being fulfilled and

11 it leads to an issue of the fundamental fairness of this trial. Those are

12 the matters I wish to state at this moment.

13 JUDGE BONOMY: Thank you, Mr. O'Sullivan.

14 MR. SEPENUK: May I add to that, Your Honour?

15 JUDGE BONOMY: Yeah, Mr. Sepenuk, yes.

16 MR. SEPENUK: Just following on with what Mr. O'Sullivan said,

17 let's just assume for the moment that Mr. Stamp is correct, whatever

18 written submissions he submits to you satisfies you that the evidence has

19 the probative value Mr. Stamp says it has, meaning it can be introduced on

20 motive, intent, that kind of thing. But again basically Rule 89(D)

21 provides: "A Chamber may exclude evidence if its probative value

22 substantially outweighed by the need to ensure a fair trial."

23 And I'd just like to second what Mr. O'Sullivan said that fair

24 trial considerations I think here outweigh the admissibility of that

25 evidence -- I shouldn't say "the admissibility" but allow the Court not to

1 hear that evidence if you make that determination that even if it did have

2 probative value, the need to ensure a fair trial here is paramount.

3 I'm mentioning one other thing, Your Honour, which is 73 bis which

4 I'm far from an expert on. But under 73 bis obviously the Court can

5 eventually fix the number of crime sites and reduce the number of counts

6 charged in the indictment. And the Court has already done this with

7 respect to three of the crime sites alleged. Now, that only refers -- 73

8 bis (D) only refers literally to counts charged in the indictment and a

9 number of crime sites or incidents in the indictment. Now, I would think

10 that a fortiori for a stronger reason the Court would have the discretion

11 to reduce the burden of the number of incidents in this case to the --

12 with respect to non-charged incidents. And that's -- I think it's

13 subsumed, non-charged incidents are subsumed within the rationale of 73

14 bis (D).

15 Now, again, this is my off the cuff non-researched interpretation

16 reached five minutes ago after listening to these arguments. But I really

17 think it makes sense and I think that Your Honours could also refuse --

18 even if you decide that the evidence has the probative value Mr. Stamp

19 says it has, that aside from the 89 -- Rule 89 reference, you could also

20 just try exclusion of this evidence under the rationale of 73 bis.

21 JUDGE BONOMY: You might also suggest that 73 bis (D) is quite

22 difficult to apply if you don't actually know the number of crime sites or

23 incidents that are within the indictment. In other words, if you don't

24 know the hidden depths of the indictment, you can't use the rule at all.

25 MR. SEPENUK: The only problem of that, Your Honour, is I didn't

1 think of it and I think you're absolutely right.

2 JUDGE BONOMY: No, we've already looked at this in our earlier

3 deliberations this morning. Thank you.

4 Mr. Ackerman.

5 MR. ACKERMAN: Your Honour, I may have a little bit different tact

6 than you've heard, and I hope the Chamber understands that what I'm saying

7 to you now is really coming off the top of my head and I haven't had a

8 chance to --

9 JUDGE BONOMY: Sorry, can I just interrupt you?

10 MR. ACKERMAN: Yes.

11 JUDGE BONOMY: There was another comment I wanted to make to

12 Mr. Sepenuk which I forgot there for the moment.

13 The problem with the fair trial point may be that you have had

14 notice of the material that's behind this; generally speaking, it's

15 contained in the disclosed material. So the fair trial point is confined,

16 I think, to the question whether the particular events have to be included

17 in the indictment. And the answer the Prosecution have given, since we

18 came back in at 12.00 is that they do not seek a conviction based on that

19 material alone, and therefore would suggest that it's not something that

20 needs to be included in the indictment. I'm just trying to articulate the

21 response to you. I'm not expressing a view to you one way or another. Is

22 there anything else you want to say on that?

23 MR. SEPENUK: No, I think that's a very fair comment, Your Honour,

24 and maybe I'm -- from the point of view from someone who's only been on

25 the case since mid-May, I've been assiduously preparing with respect to

1 what is charged. That's a difficult enough burden in this case.

2 JUDGE BONOMY: So have we. I hope -- or maybe that, maybe that's

3 a mistake in trying to concentrate on what's actually specified in the

4 indictment.

5 MR. SEPENUK: Well, it's --

6 JUDGE BONOMY: Even from the point of view of working out how

7 you're going to write a judgement in a case like this, you tend to look at

8 the chapters that are identified in the indictment.

9 MR. SEPENUK: And I think that that -- hopefully that's another

10 factor that the Court will consider in -- ultimately in rendering its

11 decision.

12 JUDGE BONOMY: Thank you.

13 Sorry, Mr. Ackerman, for interrupting.

14 MR. ACKERMAN: No problem. I was just -- I was trying to suggest

15 that what I say to you today is coming pretty much off the top of my head

16 and if I had more time to reflect I might be a little more helpful.

17 I think we must be careful that we don't mix apples and oranges

18 together here. And I characterise the apple as being the indictment. The

19 indictment is that document which provides us notice of the offences which

20 we are required to meet and the offences upon which we are potentially to

21 be convicted if the Prosecution proves its case beyond a reasonable doubt.

22 And I think what Mr. Stamp said earlier today indicates that the

23 Prosecution agrees with the proposition that I stated earlier, that the --

24 the potential for conviction must remain within the four corners of the

25 indictment itself, that the Prosecution can't bring -- during the course

1 of the trial bring in a new incident and ask you to convict on it if it's

2 not an incident that's contained within the indictment. So the indictment

3 I would characterise as the apple that we need to be concerned about and

4 that the Prosecution's evidence in terms of what can be used to convict

5 these defendants must be that which is contained within the four corners

6 of the indictment, that which is suggested by the indictment.

7 The oranges on the other hand -- and it seems to me the

8 Prosecution is trying to implicate some law that comes from domestic

9 jurisdictions which would permit the proof of what we call, in America at

10 least, extraneous crimes and in many domestic jurisdictions you can bring

11 in evidence of these extraneous offences to the extent that they go to

12 things like proof of intent, proof of membership in a conspiracy, things

13 of that nature. And it's important to understand that that law arises out

14 of primarily situations where there is a person charged with one murder or

15 one drug offence or one discrete offence. And so these extraneous

16 offences may help the trier of fact in dealing with issues like intent and

17 things like that as an extraneous matter. It can have nothing to do --

18 the person cannot convicted of any of this evidence but it can assist the

19 Chamber.

20 It seems to me that that doesn't apply here, in an indictment that

21 is as broad-based as this one where there is an opportunity contained

22 within the four corners of this indictment for the Prosecution to show all

23 of these extraneous things, the course of conduct, widespread and

24 systematic, the intent, the things which could in a very limited kind of

25 indictment maybe provide the basis for some extraneous evidence.

1 The question it seems really comes down to just one thing: How

2 much time does this Chamber want to spend listening to evidence that is

3 not contained in the indictment? And will it be helpful to you? If the

4 Prosecution can't prove their case within the four corners of such a

5 broad-based indictment, I can't imagine us listening here for days

6 listening to evidence that is not contained within the indictment is going

7 to be of much assistance. As a lot of people pointed out here today, the

8 Prosecution had an awful lot of time to decide exactly what it was they

9 wanted to put within the four corners of the indictment and it seems that

10 it might make sense just in terms of judicial economy that they be

11 restricted to that. Thank you

12 JUDGE BONOMY: Thank you.

13 Does anyone else wish to make any submission on the matter? Thank

14 you.

15 [Trial Chamber confers]

16 JUDGE BONOMY: We are going to adjourn to deliberate further on

17 this. I don't know that we'll have an answer to the question by a quarter

18 to 2.00, but if we do have an answer fairly soon we'll relay it to the

19 parties so that arrangements can be made for tomorrow. And once you've

20 had a chance to consider the position, in any event we will relay a

21 message to you what will actually happen tomorrow. Meanwhile, we'll

22 adjourn.

23 --- Whereupon the hearing adjourned at 1.24 p.m.,

24 to be reconvened on Tuesday, the 19th day of

25 September, 2006, at 2.15 p.m.