Tribunal Criminal Tribunal for the Former Yugoslavia

Page 26870

 1                          Monday, 28 January 2008

 2                          [Open session]

 3                          [Rule 98 bis]

 4                          [The accused entered court]

 5                           --- Upon commencing at 2.15 p.m.

 6            JUDGE ANTONETTI: [Interpretation] Mr. Registrar, please call the

 7    case.

 8            THE REGISTRAR:  Good afternoon, Your Honours.  Good afternoon

 9    everyone in and around the courtroom.  This is case number IT-04-74-T, the

10    Prosecutor versus Prlic et al.  Thank you, Your Honours.

11            JUDGE ANTONETTI: [Interpretation] Thank you very much,

12    Mr. Registrar.

13            Today we are Monday, 28th of January, 2008.  I would like to greet

14    all the representatives of the Prosecution.  I see that there's a few of

15    them.  And I would like to say hello also to the Defence teams, as well as

16    to the accused.  And I see and notice that they're all present.  I would

17    also like to greet the interpreters, the usher, the registrar as well as

18    our legal officers.

19            Before this hearing according to Rule 98 bis begins, there are a

20    few decisions that the Chamber will render orally.

21            First I would like to mention to the parties that as I'm speaking

22    to you, we are registering the decision with regard to the request of

23    delays for the Prosecution case.  This decision, which is made of ten

24    pages, approximately, will be brought to your knowledge, but I would just

25    like to tell you what it is going to be about, major points that you

Page 26871

 1    raised.

 2            We have decided to modify the schedule which was initially made in

 3    this way:  The lists of witnesses and of exhibits that will have to be

 4    filed by 31st of March, 2008.  The Pre-Trial Conference is to take place

 5    on the 21st of April, 2008, and the resumption of the hearing of the

 6    Defence witnesses will start as of Monday, 5 May, 2008.  In the meantime

 7    during that period, we are going to hold two hearings, pre-trial hearings.

 8    They are already on the schedule.  On the 10th and 26th of March, 2008.

 9    So to sum is up, the resumption will take place on the 5th of May, 2008.

10            This being said, I am going to deal with other decisions regarding

11    other issues.  And now a decision regarding a translation matter.

12            On the 24th of January, 2008, the Accused Praljak filed a motion

13    to the Chamber requesting that the Chamber orders the Registry to ease the

14    translation process or to help them in the translation process.  The

15    Chamber requests that the Registrar files in writing his comments under

16    article -- Rule 33(B) of the Rules before the 11th of February, 2008, at

17    the latest.

18            Second oral decision pertaining to the raising of the private

19    session for transcripts during the hearing of the 24th of January, 2008.

20            The Chamber notes that the Prosecution ended the presentation of

21    their case at the end of the hearing of the 24th of January, 2008, while

22    the Court was still in private session.  The witness who testified that

23    day or his appearance does not justify that the transcript be under -- in

24    private session, and the Chamber decides according to Rule 81(B) that it

25    will lift the private session for the French transcript on pages 26867,

Page 26872

 1    line 17, all the way to page 26868, line 22.

 2            Third point:  This point regards the issue that took place

 3    regarding the time given to Ms. Alaburic during the cross-examination of

 4    Witness DZ last Thursday.  There was a disagreement on the time remaining

 5    for Ms. Alaburic to carry the cross-examination of the witness.

 6            After calculating the time, the registry informed the Chamber that

 7    there was in fact 13 minutes left for Ms. Alaburic, whereas the Chamber

 8    had told her that she had no time left.  The Chamber therefore notices

 9    that there was a mistake made on that issue.  The Chamber therefore would

10    like to say that it is unfortunate, but since we worked under conditions

11    which were such as we worked all very fast there was a mistake in the

12    calculation, and you still have 13 minutes left.  This is what I wanted to

13    tell Ms. Alaburic and Mr. Stewart.

14            Fourth point, oral decision relating to the request by

15    Accused Praljak to take the floor.

16            During the hearing of the 24th of January, 2008, the Defence of

17    the Accused Praljak requested the Chamber to allow the Accused Praljak to

18    take the floor in order to make his submissions on a certain number of

19    questions when it comes to oral arguments filed under Rule 98 bis of the

20    Rules.  The Chamber notes that in the meantime the Defence of the Accused

21    Praljak informed the Chamber by e-mail that it will -- they will not make

22    oral arguments according to Rule 98 bis of the Rules but that the accused

23    would nevertheless like to take the floor.

24            The Chamber reminds the Accused Praljak that the Statute and the

25    Rules are the ones making the procedure and the Rule states very precisely

Page 26873

 1    and clearly when the accused can take the floor and address the Chamber.

 2    The procedure under Rule 98 bis of the Rules pertains to acquittal

 3    requests and not to accused's statements.

 4            Since the Accused Praljak does not wish to file an acquittal

 5    request, his request to take the floor at this stage of the proceeding is

 6    rejected.  However, the Chamber recalls that an accused may make a

 7    statement under Rule 84 bis of the Rules.

 8            The Chamber notes that the Accused Praljak already made a

 9    statement under this Rule before the beginning of the Prosecution case on

10    the 27th of April, 2006.  The Chamber would nevertheless be ready to

11    authorise the Accused Praljak to take the floor once more to make a

12    statement at the time when the Defence is presenting its case.

13            So I will summarise in one word.  The Accused Praljak may not

14    intervene during the 98 bis procedure.  However, on the 5th of May, 2008,

15    when the hearing resumes, if no general acquittal took place, the

16    Accused Praljak will be able to intervene and to make his statement as a

17    complement to [Realtime transcript read in error "tomorrow"] the

18    submissions and statements that he already made on the 27th of April,

19    2006.

20            This is what the Chamber wanted to tell General Praljak.

21            Yes.  My colleague is telling me that there's a mistake at line

22    19.  I did not say tomorrow, but I said in addition to his statement that

23    he made on the 27th of April, 2006.  I do not know why the word "tomorrow"

24    figures in the transcript.

25            Yes, Ms. Alaburic.

Page 26874

 1            MS. ALABURIC: [Interpretation] Good afternoon to everyone, to the

 2    Trial Chamber and everybody else in the courtroom.  I'd like to thank you

 3    for the observation made about the time that I had at my disposal, and

 4    unfortunately due to force of circumstance I was not able to use.  I'd

 5    also like to thank your associates who contacted us on Thursday straight

 6    away after the mistake was noted and we absolutely do understand that

 7    every one of us can make a mistake, and we thank you for the explanation

 8    and even the Prosecution has the right to make mistakes, of course.  Thank

 9    you.

10            JUDGE ANTONETTI: [Interpretation] Very well.  Thank you very much,

11    Ms. Alaburic.  It is true it is quite difficult to have an absolute

12    control on time.  I would have to have a chronometer or a stopwatch and as

13    soon as somebody starts speaking I press on the button so that the time

14    stops.  But normally our registrar is Mr. Stopwatch; he is doing his best

15    but as you know he has lots to do.  He has to control what's on the

16    transcript.  He also is the one who has to take care of videos and

17    documents to be presented, and he is under a permanent pressure.  So it is

18    quite possible that at times some small mistakes can happen.  So we're all

19    very well aware of that fact, and we will try in the future to improve the

20    system.

21            Now regarding the procedure of Rule 98 bis, normally three

22    counsels will intervene, counsel for Mr. Petkovic, counsel for Mr. Coric,

23    and counsel for Mr. Pusic.

24            As I see that Ms. Alaburic already prepared her lectern, I will

25    hand the floor to her at this time, and at the end of this phase the

Page 26875

 1    Prosecution will be able to reply.

 2            Mr. Scott?

 3            MR. SCOTT:  Thank you, Your Honour, and I apologise for

 4    interrupting counsel just as she was get to go her feet or on her feet,

 5    but I think it might be an appropriate moment given what's been said in

 6    the last few minutes in terms of the time pressures and circumstances

 7    which all of us have worked over the past months.  And I just want to

 8    alert the Chamber now so that there isn't any misunderstanding later.

 9            As the Chamber will recall, there's been a great number of

10    evidentiary rulings in the past -- in the past few days.  In my experience

11    both in this Tribunal and in my prior practice in the United States, in

12    all but the very smallest cases there has always been an opportunity to --

13    for the parties, for the registry, and for others to meet to possibly

14    reconcile any -- any errors or oversights that have indeed been made and

15    as we've just seen with the issue of time, in a case of this scope and

16    magnitude and complexity it is quite easy for errors to be made by all

17    parties.  I hope no one would be offended by that.  Errors by the

18    Prosecution, errors by the Defence, errors by the registry, and indeed

19    errors by the Chamber.  It is the nature of this difficult and complicated

20    process.

21            JUDGE ANTONETTI: [Interpretation] Mr. Scott, judges do not make

22    mistakes as a general rule but if you say they make mistakes, well, there

23    is the Appeals Chamber for that.  But so far I did not -- I was not under

24    the impression that we made any mistake whatsoever.

25            MR. SCOTT:  Your Honour, last time I checked all of you were human

Page 26876

 1    and indeed judges do make mistakes, and I stand by my statement.  There

 2    are items that immediate to be addressed Your Honour.  The Prosecution has

 3    not had the time yet to look at these matters in preparing for these

 4    hearings and closing our case having presented our final witness last week

 5    and the matters that have had to be attended to in the immediate days but

 6    I do think there are a number of items, Your Honours that will have to --

 7    need to be look at further.  I think evidence should be excluded on

 8    substantive grounds, not relevant, lack of authentication, lack of

 9    foundation, what have you, but evidence should not be excluded based on

10    error or mistake.  And I think there are a number of items that the

11    Prosecution when time allows when we complete these 98 bis proceedings

12    will ask to address and I just wanted to inform the Chamber of that.

13    Thank you.

14            JUDGE ANTONETTI: [Interpretation] Very well.

15            MR. KHAN:  If it please Your Honours, a very brief comment first

16    of all with Your Honours' leave in relation to the comments put forward by

17    my learned friend Mr. Scott.  A distinction must be drawn in my respectful

18    submission between administrative errors and legal mistakes that are

19    alleged by a party.  There is no problem at all on the side of counsel for

20    Mr. Stojic, and I believe the Defence speak with one voice that if there

21    are administrative mistakes that can be dealt with without troubling

22    Your Honours with your very capable legal staff, your senior legal

23    officers and your legal officers.  If it's alleged by the Prosecution that

24    matters have been excluded in error or matters have been admitted in

25    error, well, that's a completely different kettle of fish.

Page 26877

 1            The rules are there about time for appeal.  The Prosecution's case

 2    is closed, and the Rules are self-explanatory.  I don't see how assertions

 3    of legal error can be dealt with in an informal manner.  Administrative

 4    mistakes, exhibit numbers being duplicated are very different and there

 5    would not be a problem in relation to that.

 6            Your Honour, I did say on behalf of -- we did say on behalf of

 7    Mr. Stojic last week that we were not going to make any Rule 98 bis

 8    submission.  That remains the case.  But for the record and for the

 9    information of the client, and of course for Your Honours, we do maintain

10    the not guilty plea.  We do continue to put the Prosecution to strict

11    proof as is our right on each element of each count of the indictment, and

12    we do look forward to putting forward a defence case that any matters that

13    remain opaque at this moment hopefully can be clarified in our defence

14    case.

15            Your Honour, that's the first point.  The second point refers to a

16    submission put forward very eloquently by my learned friend

17    Nicholas Stewart, Queen's Counsel, a couple of weeks back and Your Honours

18    decide that any argument regarding the scope of Rule 98 bis could be made

19    in the submissions of particular counsel.

20            Your Honour, what counsel for the co-accused, at least

21    Mr. Stewart, is going to do, and he did indicate and forewarn Your Honours

22    of his position, is that if a count -- if Your Honours find that there is

23    sufficient evidence taken at its highest, that a reasonable Tribunal could

24    convict on a count, the count could proceed but nonetheless Your Honours

25    could red-line particular paragraphs of that count.  I think that's the

Page 26878

 1    thrust of the submission that my learned friend is going to make.

 2            Your Honours, I'm not going to address you on that unless you

 3    think it helpful but in the event that Your Honours are persuaded in

 4    relation to that submission, it stands to reason and as a matter of

 5    fairness, in my respectful submission, that any paragraphs that are struck

 6    out, notwithstanding that the count remains, should benefit all accused

 7    equally.  I think that's a very logical and basic principle.

 8            Your Honour, those are my very brief comments.  I don't know if

 9    they help clarify the matters but I thought it important to put them down

10    on the record in any event.  I'm grateful.

11                          [Trial Chamber confers]

12            JUDGE ANTONETTI: [Interpretation] Yes.  Two observations.

13    Regarding the mistakes, it is obvious that administrative mistakes can be

14    corrected without any problem, as you stated, if in decision or motions

15    some confusion took place as to exhibit numbers or other.  This can, of

16    course, be corrected very easily.

17            However, if the Prosecution maintains that some legal mistakes

18    took place and requests reconsideration on those, it will, of course, be

19    looked at with a magnifying glass, because under the Rule when a decision

20    is rendered the parties have a certain number of days to present a

21    certification for appeal, and if that is not done it is over.  So I don't

22    know what the Prosecution wanted to mention.  If these are administrative

23    mistakes of course there is no problem whatsoever.  The necessary

24    corrections will be made.

25            Yes, Mr. Scott.

Page 26879

 1            MR. SCOTT:  Thank you, Your Honour.  I really didn't mean to

 2    invite a great discussion of this today.  I thought it might be helpful

 3    and proper for me simply to advise the Chamber that we had those concerns

 4    and would be seeking to address them.  I certainly did not mean to get off

 5    into these matters and derail the 98 bis proceedings today.

 6            I'm not going to at this point characterise further any particular

 7    type of error that may have been made.  I do think that there are a number

 8    that could be considered to be clerical, administrative, a result of

 9    confusion, et cetera, on all -- on potentially different sides.  And I'm

10    not alleging any bad faith nor do I think any bad faith should be directed

11    at the Prosecution.  We're all here trying to do a difficult job.  We all

12    come from different legal cultures, Your Honour, and I think in a system

13    in which there are different languages are spoken, different legal

14    concepts are used, different -- there's different legal backgrounds, that

15    sometimes there is an honest -- among other things and I'm not saying --

16    I'm just saying among other things, there is an honest misunderstanding.

17    There are honest mistakes on various sides and I don't think those kinds

18    of misunderstandings and mistakes should be the basis for the exclusion of

19    evidence for any party, Prosecution or Defence.  And I simply thought it

20    was prudent, Your Honour, and fair to the Chamber and everyone to simply

21    indicate when we have the time there are certain matters we believe do

22    need to be addressed.

23            And as I said a few moments ago, in my experience here in the last

24    ten years and in my prior experience in the United States in all but the

25    simplest cases where one might have 10 exhibits in the case there is a

Page 26880

 1    process by which these sorts of verifications and checking is done.  It

 2    was done in the Kordic case; it was done in the Tuta and Stela case; and

 3    it is standard practice in my experience.  And that is the only thing that

 4    I am raising to the Chamber's attention.  Thank you.

 5            MR. STEWART:  Your Honours, could I could I just raise one matter

 6    if --

 7            JUDGE ANTONETTI: [Interpretation] Yes, Mr. Stewart.

 8            MR. STEWART:  A slight concern, Your Honour.  It does appear that

 9    the basis on which Your Honours have rejected Mr. Praljak's application

10    seems to imply a view on the very issue which I raised a few days ago on

11    an application for preliminary issue and Your Honours expressed the view

12    that it was at least an issue to be explored on this application as to

13    whether the ambit of Rule 98 bis went beyond acquittal on an entire count;

14    and yet the thrust of your rejection -- I'm not standing here for

15    Mr. Praljak, but I'm just concerned about the implications of

16    Your Honours' decision on his application for where we stand and would

17    seek Your Honours' assurance that -- that there is no degree of

18    pre-emption and that issue does remain live.  It's actually my legal lead

19    counsel who is going to argue that particular point.

20            JUDGE ANTONETTI: [Interpretation] Very well.  Let's see what comes

21    out, but in the mind of the Trial Chamber, 98 bis is 98 bis and not

22    anything else.  So there's absolutely nothing else to say on this Rule.

23            However, if an accused wishes to intervene at this stage of the

24    procedure, he may do so under Rule 84 bis which -- 98 bis, correction,

25    which brings us to Rule 84 bis.

Page 26881

 1            JUDGE TRECHSEL:  We have been speaking of misunderstandings.  I

 2    think it's important to set two misunderstandings right here.

 3            The first one is the question of whether Mr. Praljak takes the

 4    floor or not is totally unrelated to the question of whether we examine

 5    arguments per count or even per charge.  So I see no relation there

 6    whatsoever.

 7            On the other hand, you have, Mr. Stewart, made a hint at a

 8    possibility which we said we might perhaps -- I said that perhaps it might

 9    be considered.  I was sort of expecting a more formal motion from you

10    which has not since appeared.

11            The Chamber has discussed the issue, and the Chamber has been

12    quite firm that it is not of the opinion that it has the competency,

13    according to the present law applied in this court, to decide on anything

14    else but on counts.  So it's either a count is -- leads to an acquittal or

15    not, but the Chamber will not look at single charges.  And one of the

16    reasons is rather obvious, because if we were doing that we would have to

17    expect arguments on every charge, which would by far exceed the scope of

18    the 98 bis proceedings as they are actually handled in this court.  I

19    wanted to make this clear, and I'm sorry if there has been a

20    misunderstanding.

21            MR. STEWART:  Well, Your Honour, that is --

22            JUDGE TRECHSEL:  That's not my personal opinion; that is the

23    result of discussions with the Chamber.

24            MR. STEWART:  No, I understand that, Your Honour, and when a view

25    is expressed on behalf of all three of Your Honours it's even more helpful

Page 26882

 1    than having individual views expressed by individual Judges that may or

 2    may not coincide with the views of others.  Your Honour, as far as the

 3    substance of the matter is concerned, I'm certainly not going to tread on

 4    the toes of my learned lead counsel; she is going to deal with that

 5    issue.  But I am slightly, I've used the word troubled I think twice

 6    today, I'm slightly troubled about what Your Honour said about expecting

 7    some sort of formal motion from us because without having the transcript

 8    of what happened on my application preliminary issue in front of me, I do

 9    have a distinct recollection that the upshot of it was that Your Honours

10    made it clear that it was to be open to us on this hearing to raise that

11    particular issue, which is entirely inconsistent with the notion that we

12    were to file some sort of formal motion.  And in fact, Your Honour, may I

13    simply also observe that the whole point of my application for the matter

14    to be dealt with as a preliminary issue was to give that some formality as

15    a separate discrete issue.

16            So, Your Honour, I must say with respect that if it is now

17    suggested that in some way we might have failed or our position might be

18    weakened by not filing a formal motion, then I must protest that, frankly,

19    innocently though it may be we would have been quite seriously misled by

20    the procedure indicated by the Trial Chamber.  Honestly misled, of course,

21    we do not bandy about any allegations of dishonesty or bad faith on this

22    side of the case in the Petkovic team, but that will have been the effect.

23            JUDGE ANTONETTI: [Interpretation] Very well.  We shall listen

24    carefully to what Defence counsel have to say.

25            Mrs. Alaburic, you have the floor.

Page 26883

 1            MS. ALABURIC: [Interpretation] Your Honours, the Defence of

 2    General Petkovic would like to remind the Trial Chamber that a few days

 3    ago it tabled an oral request for a special discussion to be organised

 4    with respect to the application of Rule 98 bis, because they considered

 5    that with respect to certain questions, we can decide upon this as

 6    prejudicial issues and that this would help us in setting forth the 98 bis

 7    submissions.

 8            The Court ruling was that a separate debate would not be organised

 9    but that the Petkovic Defence within its frameworks of its submission

10    pursuant to Rule 98 bis could set forth arguments and the grounds for a

11    different interpretation of the application of Rule 98 bis and possibly to

12    request that the proceedings be conducted differently than they are being

13    today.

14            Now, precisely for this reason the Defence of General Petkovic has

15    structured its submission on 92 -- 98 bis in three parts.  It has set it

16    out in three parts.  The first part will refer to the existence of current

17    case law and jurisprudence and an interpretation of Rule 98 bis, and this

18    part of the submission will be presented by me.

19            In continuation, we're going to try, depending on the Court ruling

20    on the previous issues that we're going to initiate in the introductory

21    part will be tabled according to Rule 98 bis as the text now stands with

22    an interpretation of the fact that it is possible to bring in judgements

23    of acquittal on the individual parts or counts of the indictment.

24            The third part would refer to an earlier submission of ours from

25    last year when we requested that certain forms of criminal responsibility

Page 26884

 1    be struck from the indictment and the Trial Chamber ruling was that it

 2    would make its final decision and ruling in the proceedings on Rule 98

 3    bis.

 4            Now, the second part of our submission will be presented orally by

 5    my colleague Mr. Nicholas Stewart and part 3 which relates to striking

 6    certain forms of criminal responsibilities will be expounded by myself.

 7            Let us start off by the application and interpretation of Rule 98

 8    bis in the text as it reads and exists today and this can be considered a

 9    preliminary issue.

10            With your permission, Your Honours, and with the permission of my

11    colleagues in the courtroom, I'd like to start off by making a few

12    introductory remarks on the -- on human rights and what they are based on

13    as the starting point for the application and interpretation of the laws.

14            The first basic human right which in all criminal proceedings

15    appears is the presumption of innocence.  It is the right that we have

16    heard mentioned frequently in this trial.  We all know its contents.  We

17    all know its meaning, but let me remind you of some of the basic elements

18    there.

19            We are dealing with a right that is guaranteed by Article 11 of

20    the general declaration on human rights and Article 6, paragraph 2, of the

21    European Convention on Human Rights, but also the rights guaranteed by all

22    other international contracts and covenants on human rights and freedoms

23    as well as the constitutions of all countries.  The contents of that right

24    is that a person who stands accused of a crime is considered innocent

25    until guilt has been proved in conformity with the regulations.  So

Page 26885

 1    guilt -- the burden is proof is on the Prosecution.  If the Prosecution is

 2    unable to prove guilt then the accused must be acquitted of all criminal

 3    responsibility.

 4            The continuation of the criminal proceedings, despite the fact

 5    that the Prosecution has failed to prove the accused's guilt is a

 6    violation of a basic human right which is the right of the presumption of

 7    innocence.  In other words, to acquit an accused because the Prosecutor

 8    has not managed to prove guilt is the direct consequence of the

 9    recognition and respect of human rights and the presumption of innocence

10    principle.

11            The acquittal of an accused because the Prosecutor has not proved

12    guilt also fulfils a second human right, that is to say, the right to a

13    fair trial.  The arguments a contrario, that is to say, a trial which

14    leads the accused -- brings the accused into a situation to defend himself

15    from a charge which has not been proved becomes unfair.  By continuing the

16    legal proceedings despite the fact that the Prosecutor has not managed to

17    prove the guilt of the accused, we violate the third basic human right

18    which is the right to a trial within a reasonable space of time.

19            THE INTERPRETER:  Could counsel please speak louder into the

20    microphone.  Thank you.

21            MS. ALABURIC: [Interpretation] And for that reason, the

22    presumption of innocence, the right to a fair trial and the right to a

23    trial within a set period of time, an expeditious and speedy trial, are

24    basic concerns -- let me repeat.  I'm sorry, I'm not listening to the

25    interpretation so I apologize for speeding up.

Page 26886

 1            THE INTERPRETER:  Could counsel speak louder, please, into the

 2    microphone.

 3            MS. ALABURIC: [Interpretation] Therefore, the presumption of

 4    innocence and the right to a fair trial and the right to be tried

 5    expeditiously within a given period of time is the basic concern of those

 6    creating the Rules of Procedure of a criminal trial.  But it is also the

 7    basic concern of those applying the Rules of Procedure in a criminal

 8    trial, and it is also the starting point in interpreting and applying

 9    rights.

10            If some rule of proceeding in a criminal trial or the application

11    of those rules of procedure violates basic human rights and freedoms such

12    as the presumption of innocence, the right to a fair trial, and the right

13    to an expeditious trial within a reasonable period of time, that -- it is

14    the task of every Defence counsel to indicate these violations and to

15    initiate steps to do away with this violation.  The importance of the

16    questions being put forward and with arguments through which it brings out

17    its presentation the Defence counsel contributes to the development of

18    case law and jurisprudence and law in general not only in the common law

19    countries but also in the countries of so-called continental law.

20            Trial Chambers are ready to interpret and apply the horizons of

21    these rules in different ways and extend jurisprudence, show that right is

22    not a dogma but that it is an effective means for bringing to life and

23    protecting human rights and freedoms.  This same legal norm can be

24    interpreted -- I would like to repeat the beginning of the sentence.  That

25    this same legal norm can be applied and interpreted in numerous ways.

Page 26887

 1    That it can be applied in numerous ways there are many examples and it is

 2    enough to remember the Supreme Court of the USA which for over 200 years

 3    in interpreting the same text of the constitution creates the right which

 4    is the same law which is adapted to changes in social relations and this

 5    is something that happens in other countries too.  Examples of this can be

 6    found there not only in the United States of America.

 7            I hope you won't mind me having made that extensive introduction,

 8    but I will try to bring those basic human rights in due course in line and

 9    in connection with the -- with Rule 98 bis and the way it is applied to

10    the present day.

11            Now I'd like to say a few words about Rule 98 bis itself.  This

12    Rule in the text as adopted on the 8th of December, 2004 reads as follows:

13    "At the close of the Prosecutor's case, the Trial Chamber shall by oral

14    decision and after hearing the oral submissions of the parties enter a

15    judgement of acquittal on any count if there is no evidence capable of

16    supporting a conviction."

17            The previous text of Rule 98 bis that was in force, instead of the

18    count of any count, that is use the term "criminal act" or "charge" in

19    English.  And Rule 98 bis read, and I'll read it out in English as

20    follows:  "[In English] The Trial Chamber shall order the entry of

21    judgement of acquittal if it finds that the evidence is insufficient to

22    sustain a conviction on that or those charges."

23            [Interpretation] Your Honours of the Trial Chamber, I'd like to

24    inform you that the Defence of General Petkovic is acquainted with case

25    law as it has been applied according to Rule 98 bis, that we have studied

Page 26888

 1    the decisions from the Milutinovic and other trials, Mrksic et al.,

 2    Krajisnik trial and so on, and with your permission we would like to

 3    summarise the jurisprudence or case law and then we will say that

 4    according to that case law there are eight basic premises for a judgement

 5    of acquittal to be passed, and the first is this:  If there is not -- no

 6    evidence which supports a specific count in the indictment.  Second, if

 7    there are certain -- if there is a certain amount of evidence and the

 8    Defence claims that on the basis of that proof and evidence a judgement of

 9    acquittal cannot be moved, then the decision pursuant to Rule 98 bis does

10    not depend on the question of whether the person bringing in the judgement

11    in this phase of the proceedings moved a judgement of acquittal or found

12    the accused guilty.  What is -- it is not that we are testing whether the

13    Prosecutor has proved beyond reasonable doubt the guilt of the accused.

14    The legal standard is far lower and requires an examination into whether

15    evidence and proof exists on the basis of which a reasonable trier of the

16    case would be convinced beyond reasonable doubt of the guilt of the

17    accused pursuant to a specific indictment.

18            If the reasonable trier is not convinced of the guilt of the

19    accused beyond reasonable doubt, then he must pass a judgement of

20    acquittal.

21            The third element is this:  The probative value -- if the

22    probative value of certain testimonies by witnesses or documents is not

23    tested; in other words, if the contradictions and inconsistencies of the

24    Prosecution case are not tested and investigated and the credibility of

25    the witness, reliability, and probative value of the documents presented.

Page 26889

 1            And the fourth presumption:  If the only relevant piece of

 2    evidence is so lacks credibility that it could not support the indictment

 3    even if the biggest weight could be assigned to this piece of evidence,

 4    the motion on Rule 98 bis would be granted.

 5            The fifth presumption:  A judgement of acquittal pertains to a

 6    count in the indictment and not to any specific crime or charge.

 7            Six:  If one count of an indictment covers two or more crimes, in

 8    order for a judgement of acquittal to be entered, all the presumptions

 9    regarding every crime in a single count of the indictment have to be met.

10            Seven:  The evidence relates both to the actus reus and to the

11    mens rea of each specific crime.

12            Eight:  If the indictment or a charge covers several forms of

13    criminal responsibility, it is enough that evidence exists to support the

14    conviction on just one of those forms of responsibility.

15            To sum up, I think that everybody in the courtroom would agree

16    with the following conclusion:  Rule 98 bis, as it stands now, seen in

17    light of the jurisprudence, existing jurisprudence, is a mere formality

18    and practically there is no -- it is not possible to enter a judgement of

19    acquittal at this stage of the proceedings.  It is a generally held view

20    that such practice before this Tribunal is unfair but that nothing can be

21    changed for as long as Rule 98 bis as formulated in December 2004 is

22    valid, is in force.

23            Let us go back to what was said at the beginning about basic human

24    rights.  The conclusion that a rule or a procedure is unfair motivates

25    every lawyer who respects the principle of fairness as the highest value

Page 26890

 1    of the legal theory and practice to oppose the continuation of the

 2    application of such theory and practice and to try and find a solution

 3    that would move the practice forward in the direction of justice and

 4    fairness.  So we challenge the presumptions six and eight as listed above.

 5    In other words, that all the elements have to be met for each single

 6    count, and if several forms of criminal responsibility are covered in an

 7    indictment, that it is enough to submit evidence to support the conviction

 8    on just one form.

 9            Let me now give an outline of -- of our case in light of the

10    jurisprudence in the world.

11            First of all, what is a count in an indictment?  Is it whatever is

12    designated as such by the Prosecution in the indictment, or are there any

13    objective criteria for formulating counts in the indictment?  Furthermore,

14    does the Prosecution formulate the counts of the indictment in the same

15    manner for all the accused before this Tribunal, and if this is not the

16    case, does it then discriminate against some of the accused making their

17    defence more difficult and relieving some of them of the right to a fair

18    trial?

19            I think that all of us lawyers in this courtroom will agree that

20    there are several basic rules of criminal procedure before international

21    and national courts alike.  The first rule is that the Court and the

22    parties may proceed only in accordance with the rules.  Second, the Court

23    and the parties may do so in the manner that is defined by the rules; and

24    third, whatever is not envisaged and permitted by the Rules of Procedure

25    cannot be done in the course of the proceedings.

Page 26891

 1            Are there any rules in the Rules of Procedure and Evidence of this

 2    Tribunal as to what counts in the indictment are and how they may or must

 3    be formulated?  It is uncontroversial that a single count in the

 4    indictment may cover a single incident, a single event, a single crime.

 5    This is a single incident count.  This is not controversial before this

 6    Tribunal, but is it possible for a single count in the indictment to cover

 7    several incidents, several events?  In other words, do the Rules of this

 8    Tribunal allow for multi-incident counts, counts that cover several

 9    charges within a single count?  We will try to find this out as we

10    proceed.

11            Let us first refer to the Rules of Procedure and Evidence, and let

12    us now try to analyse some of the counts in the indictment.

13            If you read the Rules of Procedure and Evidence, we will find that

14    the Rules recognise only two kinds of joinder, joinder of counts within a

15    single indictment, that is Rule 49, which reads:  "A single indictment can

16    include two or several crimes if they are committed together as part of

17    the same transaction and if the said crimes were committed by the same

18    accused."

19            This Rule undoubtedly shows that the indictment must cover a

20    single crime and exceptionally, and the criteria are defined here, several

21    crimes may be covered.

22            The second kind of joinder that is recognised by the Rules is the

23    joinder of accused as stipulated in Rule 48, which is not the focus of our

24    interest at this moment.

25            The term "joinder" is again mentioned in Rule 72(A)(iii), which

Page 26892

 1    deals with preliminary motions where it says:  "[In English] Preliminary

 2    motions being motions which seek the severance of counts joined in one

 3    indictment under Rule 49."

 4            [Interpretation] If we compare these two provisions, we will see

 5    that the term "crime" as used in Rule 49 is synonymous with the term

 6    "count" as used in Rule 72(A)(iii).  There is no mention of the

 7    possibility of having several counts, several crimes, within a single

 8    count of the indictment.  The only logical conclusion is that several

 9    crimes may be joined in a single indictment, but it is not possible to

10    join several crimes within a single count of the indictment.

11            Your Honours, let me now go back to make some parallels about the

12    concurrence of crimes and the joinder of crimes in some other countries.

13    Trials for multiple crimes is something that is called a real concurrence.

14    It is a legal institution whereby several crimes are committed in the

15    course of several acts, and the accused are tried in a single trial.

16    There is also the ideal concurrence where a single -- where several crimes

17    were committed in a single act.

18            Because of the similarities in the contents of the indictments, I

19    think it would be much more a posit for us to look to common law countries

20    when it comes to the issue of joinder of counts.  I would like to refer to

21    law -- case law in Great Britain and the United States.  And according to

22    criminal procedure rules in Great Britain, the rules that were adopted in

23    2005, the rule is that a single count in the indictment covers only one

24    incident.  Only in exceptional cases, if all the conditions that are very

25    precisely defined have been met, a single count in the indictment can

Page 26893

 1    cover several incidents.

 2            Article 14.2.2 of the British law:  "[In English] More than one

 3    incident of the commission of the events may be included in a count if

 4    those incidents taken together amount to a course of conduct having regard

 5    to the time, place, or purpose of commission."

 6            [Interpretation] The regulation entitled the consolidated Criminal

 7    Practice Direction, Chapter 4, Article 34(8) through (12), it is

 8    stipulated when it is permissible to cover two or more incidents in a

 9    single count.  And this directive stipulates quite clearly that the

10    alternatives are either to have multiple incident crimes or to have a

11    separate count, multiple incident counts, so not -- not crimes.  I have to

12    correct myself.  The alternatives are multiple incident counts or to have

13    a separate count for each incident.

14            A second example, Canada.  The Canadian Criminal Code, in

15    paragraphs 581 through 591, indicates:  "Each count in an indictment shall

16    in general apply to a single transaction and shall contain in substance a

17    statement that the accused or defendant committed an offence therein

18    specified."

19            [Interpretation] A count in the indictment that covers two or more

20    incidents is considered to be a joinder of counts.  So that's what we're

21    talking about.  And there is a very important rule in Canada.  The accused

22    has the right at every stage in the proceedings to demand a severance of

23    the count that contains several incidents if the joinder of the counts

24    made his defence more difficult or -- I will now just give you another

25    example from the USA.

Page 26894

 1            Section 585 of the Criminal Code says:  "A single indictment may

 2    be used to indict a person only of a single crime only in the following

 3    three -- except in the following three cases:  "[In English] Where several

 4    distinct indictable offences form or are part of a series of offences of

 5    the same or similar character; drugo, where several distinct indictable

 6    offences are alleged to be constituted by the same acts or omissions;

 7    trece, where several distinct indictable offences are alleged to have been

 8    done or omitted for a single purpose."

 9            [Interpretation] So the condition for the joinder -- there are

10    conditions and rules that regulate the issue of joinder.

11            What is the reason for the restrictions to the joinder of the

12    counts or charges?  It is quite clear, and let me read it out:  "[In

13    English] The restriction upon joinder of charges stems from the

14    fundamental principle that evidence of the commission of offences other

15    than the offence charged is generally inadmissible against the defendant

16    at a criminal trial.  Allowing evidence of other offences may unjustly

17    erode the presumption of innocence which underlies all criminal trials."

18            [Interpretation] To conclude, any joinder, not only of several

19    crimes within a single indictment but also of several crimes within a

20    single count of the indictment, is allowed only if the regulations

21    envisage that and in the manner that is envisaged.  The rules of this

22    Tribunal do not envisage that several crimes or charges can be subsumed

23    within the same or joined within the same count.

24            Let us now try and analyse the indictments that were drafted by

25    the Office of the Prosecutor and to compare the rights of the accused in

Page 26895

 1    light of the way in which the counts of the indictment were actually

 2    drafted.  Let us look first at the following topic:  One kind of a crime

 3    in several counts of the indictment.

 4            We all know that our indictment was drafted in such a way that

 5    every count contains a specific kind of a crime, and then it covers all

 6    the incidents that in the view of the Prosecution present the commission

 7    of this crime.

 8            If we compare our indictment with the indictments in other cases,

 9    we will see what happened, for instance, in the Dusko Tadic case.  The

10    Dusko Tadic indictment contained 34 counts.  One crime.  I will now be

11    given -- giving just the reference in the Statute so as not to waste time.

12    So crimes listed in Article 2(c) of the Statute were described in seven

13    counts; Article 3 in six counts; inhumane acts, Article 5(i) of the

14    Statute in seven counts, and so on.

15            A second example, the Kunarac and Kovac case.  Kunarac and Kovac.

16    25 counts, some more examples.  Crime of rape, Article 5(g) of the Statute

17    was contained in six counts of the indictment.  Torture, Article 3 of the

18    Statute, was covered in two counts of the indictment, and so on.

19            A third example, Hadzihasanovic and Kubura case.  The crime of

20    murder, Article 3, two counts of the indictment.  Cruel treatment,

21    Article 3, two counts of the indictment.

22            Why is this important at all, and why am I comparing those counts?

23    For the following reason:  If a single count in the indictment covers one

24    incident or just a few incidents, then the accused, in light of the

25    current case law, has -- stands a greater chance of being acquitted on

Page 26896

 1    Rule 98 bis.  The indictments that are drafted in such a way that one kind

 2    of a crime is covered in several counts of the indictment by its very

 3    nature each count contains a smaller number of incidents than would have

 4    been the case if a single count covers all the incidents of the same kind.

 5            In this case the accused, who have been charged on count --

 6    several counts of the indictment, have a greater chance of succeeding

 7    under Article -- under Rule 98 bis.  The conclusion is that the accused

 8    have been discriminated against in comparison with the other cases where

 9    not all of the incidents or crimes of the same kind are included in the

10    same count because the Prosecution decided to have several counts

11    containing -- covering crimes of the same kind.

12            It is beyond dispute that the indictment in this case, just as in

13    all other cases, could have been formulated in such a way to make sure

14    that one count of indictment pertained only to one charge, one crime.  If

15    we take the position that the Prosecution classified correctly within

16    certain paragraphs all counts, then it would mean that our indictment with

17    single incident counts would have 993 counts.

18            Now let us analyse another topic pertaining to the indictment and

19    the rights of the accused when it comes to the manner in which an

20    indictment is formulated.  This other topic pertains to the following

21    issue:  Does one count cover one indictee or a number of them?

22            In the Kordic and Cerkez case we saw that there were a total of 44

23    counts of indictment out of which 22 pertained to Kordic only, and 22 to

24    Cerkez only.

25            Why is this issue important?  If according to the existing

Page 26897

 1    jurisprudence an acquittal under Rule 98 bis can be handed down only if

 2    all the requirements for acquittal are met in relation to each crime from

 3    one count.  So if an entire count is dismissed, then we have to ask

 4    ourselves whether just one accused can be acquitted in relation to that

 5    count but that count can remain valid in relation to other accused, or can

 6    one accused be acquitted of any count only if at the same time according

 7    to the -- to Rule 98 bis all other indictees can be acquitted as well

 8    under the same count.

 9            This issue is particularly important in the context of joint

10    criminal enterprise and its application here before this Tribunal.

11            The position taken in the jurisprudence that a count of the

12    indictment which pertains to all of the accused can be dropped under

13    Rule 98 bis only if each accused can be acquitted on that charge -- under

14    that charge.  If that position were to be taken, that would mean that the

15    accused in this case are even more discriminated against than other

16    accused in whose cases the counts of indictment pertain equally to all of

17    the co-accused.  If we wanted to have separate counts of indictment in

18    relation to each -- all of the accused, then the 993 crimes that I have

19    mentioned should be multiplied by six accused, which would mean that we

20    would have an indictment with a total of 5.958 counts of the accused.

21            Now, could the Defence of General Pusic [as interpreted] please

22    forgive me for neglecting the fact that Mr. Pusic [as interpreted] is not

23    charged in relation to the crimes from Prozor in October of 1992 and

24    Gornji Vakuf in January of 1993.

25            Another issue that I wish to draw the attention of the

Page 26898

 1    Trial Chamber to are the forms of criminal responsibility.  It is a rule

 2    in the criminal procedure that due to a different actus reus and mens rea

 3    each form of perpetration is considered a different crime.  For example,

 4    issuing an order to commit a crime is one type of a crime.  Commission of

 5    that crime is another type of a crime.  Command responsibility for that

 6    same act is yet a third type of a crime.

 7            If one person is charged with the same incident due to planning,

 8    save from Article 7(1) of the Statute, and is also charged for command

 9    responsibility from Article 7(3) of the Statute, then it is clear that

10    that person is charged for two very different crimes.  Charging for the

11    same incident under several modes of responsibility and the fact that it

12    actually represents two or several crimes is something that we can see if

13    we look at the application of Rule 98 bis in Blagojevic and Jokic case.

14            The Trial Chamber in that case, in relation to counts 2 to 4 of

15    the indictment, acquitted Mr. Blagojevic with respect to his individual

16    responsibility under Article 7(1) of the Statute.  He was acquitted for

17    planning, instigating, ordering, and committing crimes, which means that

18    what he was left with is criminal responsibility under Article 7(3).  The

19    Trial Chamber also acquitted Mr. Blagojevic under counts 5 and 6 of the

20    indictment with respect to allegations about his individual responsibility

21    under Article 7(1) of the Statute for planning, instigating, and ordering

22    commission of crimes, which means that he was left with the allegation of

23    commission under Article 7(1), and commission under Article 7(3).

24            Mr. Jokic was acquitted in relation to counts 2 to 5 of the

25    indictment in terms of his individual responsibility under Article 7(1)

Page 26899

 1    for planning, instigating and ordering, and according to the indictment,

 2    he was to be held responsible under Article 7(1) for commission only.

 3            In this particular case we are dealing with the responsibility of

 4    the accused in relation to 12 different modes of criminal responsibility.

 5    The first one is planning.  The second one is instigation.  The third one

 6    is ordering.  The fourth one is commission.  The fifth one is joint

 7    criminal enterprise as an individual mode of commission.  Six is aiding

 8    and abetting in planning, preparation or commission.  Seven is aiding and

 9    abetting joint criminal enterprise.  Eight is omission to prevent.  Nine,

10    failure to punish.  Ten, co-perpetration.  Eleven, indirect perpetration.

11    And twelve, indirect co-perpetration.

12            If we were to analyse the judgement under Rule 98 bis in

13    Blagojevic, Jokic case, and if we wanted to formulate an indictment that

14    would be a single incident indictment in relation to each mode of criminal

15    responsibility, then we would, in relation to each of the accused

16    individually, we would need to multiply 993 crimes with 12 modes of

17    criminal responsibility, which would bring us to 11.916 counts of

18    indictment in relation to each of the accused, or 71.496 counts of

19    indictment in relation to all of them taken together.

20            Does such an indictment discriminate against the accused in this

21    case?  Does such an indictment aggravate their defence cases?  Those the

22    questions that we believe we would provide answers to during these

23    hearings under Rule 98 bis.

24            I see that we have additional 15 minutes of time.  I think that

25    when we resume I will conclude with our proposals.

Page 26900

 1            In light on everything that we have stated so far, the Defence of

 2    General Petkovic proposes to the Trial Chamber the following:  On the

 3    basis of Rule 54, the Trial Chamber should establish that the Rules of

 4    Procedure and Evidence do not allow for the possibility to have incidents

 5    joined within the same count of indictment, so that the indictment in

 6    which several count pertains to several incidents is formulated against

 7    the Rules, in violation of the Rules of Procedure.

 8            Second, we propose that the Trial Chamber establish that the

 9    rights of the accused may not depend on whether the Prosecutor would cover

10    with one count of indictment one or several incidents, because otherwise

11    that would mean the following:  A, that one count of indictment

12    pertains -- or, rather, if one count of indictment pertains to one

13    incident, then the accused may be acquitted under Rule 98 bis from charges

14    for that particular incident.  However, if one count of indictment

15    pertains to two incidents, then the accused may not be acquitted under

16    Rule 98 bis from charges for the first incident, because the conditions

17    were not met for him to be acquitted of the other incident within the same

18    count of indictment.

19            Our third proposal is as follows:  Make it mandatory for the

20    Prosecution to sever or separate incidents from one count of indictment

21    and to formulate counts of indictment according to incidents as

22    single-incident counts so that one count of indictment covers only one

23    single incident.

24            If this proposal should be accepted, then we suggest that hearings

25    under Rule 98 bis be conducted after this new indictment is reformulated.

Page 26901

 1            We think that this manner of formulating an indictment is too

 2    complicated -- or, rather, if you believe that this is too complicated, we

 3    alternatively propose as follows:  To allow the Prosecution not to change

 4    the indictment as it stands, to allow it to stand as a multi-incident

 5    indictment but, however, to establish that each count in this indictment

 6    is actually a multiple incident count, that each count actually represents

 7    a joinder of single-incident counts for the same crime so that the

 8    judgement under Rule 98 bis is handed down according to single incident

 9    counts which should be defined as such only within this trial -- for the

10    purposes of this trial.

11            If the Trial Chamber were to accept this proposal then the

12    following would be achieved:  All of the accused would be guaranteed the

13    same rights regardless of the indictment was formulated in such a way to

14    have one count cover one incident and or whether the indictment is

15    formulated as multiple-incident count indictment.

16            Second, what would be achieved is that the Trial Chamber would

17    introduce the rules in formulating the indictment and would prevent the

18    Prosecution from violating the Rules on Procedure and Evidence in creating

19    the content of the indictment.

20            Three, by doing so, the Trial Chamber would enable the Rule 98 bis

21    to be applied in a manner which would protect fundamental human rights and

22    freedoms, presumption of innocence, right to a fair trial, and right to a

23    trial within a reasonable space of time.

24            Four, such an application of Rule 98 bis would contribute to the

25    entire trial being expeditious because the accused, or at least some of

Page 26902

 1    them, would be acquitted of certain charges which would reduce the total

 2    time needed in order to prepare and adduce evidence within the Defence

 3    case.

 4            We believe that the esteemed Trial Chamber will find sufficient

 5    time, will, and understanding to look into our proposal and to issue a

 6    decision which would make it clear that they believe that the rights of

 7    the accused before this Tribunal are not just declaratory and that they

 8    actually protect fundamental rights.

 9            If the Trial Chamber rejects our proposal then the Defence of

10    General Petkovic [Realtime translation read in error "Perisic"] would like

11    to invoke Rule 6(D) and require that it be allowed to file a petition

12    under Rule 98 bis in accordance with the text of that provision which was

13    in force when this trial was commenced.

14            The Defence of General Petkovic would like to remind everyone that

15    according to Rule 6(D) an amended Rule shall not operate to prejudice of

16    rights of the accused or the convicted or acquitted person in any pending

17    case.

18            It is the opinion of everyone before this Court including the

19    Judges of this Court that Rule 98 bis after its amendment in December of

20    2004 became a mere formality and then the rights of the accused to have an

21    acquittal entered became significantly reduced, if not completely

22    eliminated.

23            We believe that there is no doubt that the new Rule, Rule 98 bis

24    as formulated, jeopardises the rights of the accused to be acquitted in

25    the situations when the Prosecution failed to prove their responsibility.

Page 26903

 1            This trial began some nine months before Rule 98 bis was amended.

 2    Therefore, according to Rule 6(D) the procedure under Rule 98 bis must be

 3    conducted in accordance with the Rule which was in force when this trial

 4    began.

 5            Your Honours, should you believe it necessary to rule on these

 6    issues as preliminary issues, then it would mean that we concluded with

 7    our presentation, but if you think that the Defence of General Petkovic

 8    can continue with its submissions under Rule 98 bis, then we shall

 9    continue.

10            Should you like us to continue before my colleague

11    Nicholas Stewart proceeds with explaining our case, I wish to say only the

12    following:  That the application -- or, rather, the submission of

13    General Petkovic under Rule 98 bis will be based on the following:

14    (A) that there is a possibility for the Trial Chamber to accept our

15    proposal to amend the indictment in accordance with the rules on evidence

16    and procedure which does not envisage the possibility of joining two or

17    more incidents within the same count of indictment; or, that

18    alternatively, in order to simplify the procedure, each incident within

19    the same count of indictment should be treated as a separate count.

20            The Defence of General Petkovic in that case will not challenge

21    the jurisprudence in relation to failure to assess the credibility of

22    witnesses and documentary evidence.  We will not challenge the

23    jurisprudence that an acquittal cannot be entered if the existing evidence

24    cannot support at least one counts -- or one mode of criminal

25    responsibility.

Page 26904

 1            Fourth, that joint criminal enterprise as a mode of criminal

 2    responsibility as applied here before this Tribunal affects any accused

 3    who held a high political, military, or other post, and brings it closer

 4    to the concept of strict criminal responsibility for membership in a

 5    criminal organisation.  As a result of that, the mere fact that an accused

 6    held a high position is held to contain sufficient evidence on his

 7    responsibility for commission of crime -- crimes.

 8            This is the reason why the Defence would not request that an

 9    acquittal be entered due to lack of evidence on -- on responsibility of

10    General Petkovic for modes of responsibility which have not been proven by

11    a single piece of evidence for example in relation to planning,

12    instigating, ordering, or direct personal perpetration.

13            We shall ask that an acquittal be entered if for a particular

14    crime there is no proof that all of the elements were met -- or, rather,

15    there is no evidence that all of the elements exist, and if there is no

16    evidence that such a crime occurred or took place as described in the

17    indictment.

18            I thank you, and now my colleague Mr. Stewart will take over.

19            Your Honour, if I may correct a mistake on page 28, lines 14 and

20    15.  It says General Pusic.  It should say General Petkovic.  We apologise

21    both to General Pusic and General Petkovic for not registering that

22    mistake on time.

23            MR. STEWART:  Your Honours, perhaps I might use the two or three

24    minutes that are left before the normal time when Your Honours take the

25    break just to follow the last few remarks made by Ms. Alaburic as to where

Page 26905

 1    we are now and where we go.  In effect, Ms. Alaburic has addressed the

 2    issue which we applied to be raised as a preliminary issue.

 3            One possibility, and we suggest it's actually got quite a lot to

 4    be said for it is that on that discrete issue, the Prosecution would

 5    naturally in accordance with normal fairness and procedure the Prosecution

 6    would have an opportunity to say whatever they wanted to say.  Of course I

 7    leave open the possibility that other Defence teams might also have the

 8    opportunity.  I'm in Your Honours' hands on that.  And as Ms. Alaburic has

 9    indicated, if -- if we know where we are going then on that particular

10    issue and in relation to the proposals which have been canvassed by

11    Ms. Alaburic this afternoon, then -- well, we know what to do next.  We

12    know where to go next.  We know what, if anything, to do next as far as

13    our application is concerned, because that's entirely dependent on the

14    ruling and clearly a ruling one way is going to mean that we -- well, we

15    certainly save time.  I don't want -- I want to make all submissions, of

16    course, and Ms. Alaburic and I want to make all submissions which are

17    relevant and potentially helpful to our client.  What we don't want to do,

18    though, is make absolutely futile submissions, waste our time, waste

19    General Petkovic's time, waste the Court's time if they're simply going to

20    end up as nothing at all because of the view that you take on this

21    preliminary issue.

22            So, Your Honour, I'm in Your Honours' hands, but we do suggest

23    that the sensible thing is in fact to grapple with this issue and know

24    where we are and that would be helpful to all and sundry and no doubt

25    helpful to other Defence teams as well as the Prosecution and everybody.

Page 26906

 1            JUDGE ANTONETTI: [Interpretation] Well, I will summarise at my

 2    level if -- if I've understood, because to understand you, one needs to

 3    deepen what you have already said, but I think I understood that you had a

 4    preliminary issue concerning 98 bis, presenting a preliminary point

 5    articulated according to two elements.  First element, you say that when

 6    this trial started Article 98 bis was drafted differently.  It was a

 7    regime, that it was amended during the trial, and therefore for you it is

 8    the previous text of the rule which applies, and therefore those are the

 9    charges and not the counts.

10            And the second element which you indicate is that you present a

11    theory about joinder concerning counts, indicating that the indictment is

12    in a certain way illegal because it puts at the door of the accused

13    several crimes even sometimes for the same facts or events, and this is --

14    would be contrary to the Defence rights.  You mentioned Canada,

15    United States, Great Britain, and so on.  Therefore, you are requesting

16    the Chamber to decide and rule on what should be done.

17            Now, on this preliminary issue, this will need, I think, from the

18    Prosecution a response, because you have now started a new, completely new

19    procedure which has never been attempted before about Article 98 bis, and

20    I would like Mr. Scott to tell us what he thinks about it, and the Chamber

21    indeed will deliberate to let you know what should be done about this.

22            So, Mr. Scott, please, you have the floor.  If you have

23    understood, because it is rather involved, rather complicated.

24            MR. SCOTT:  Thank you, Your Honour.  We would ask since, again, of

25    course as the Chamber knows there was no advance notice of any issue to be

Page 26907

 1    raised at these proceedings even though we asked for that, and since it

 2    is -- Excuse me.

 3            MR. STEWART:  No, I'm sorry.  That's -- no, that's extremely

 4    unfair.  The advance notice was about a week or so ago when we made the

 5    application for the preliminary issue.  It's been crystal clear that this

 6    issue was going to be raised and argued.

 7            MR. SCOTT:  There's no reason -- there's no reason for Mr. Stewart

 8    to get agitated.  The Chamber will plainly recall that some days ago the

 9    Prosecution requested to be advised of the issues that would be raised in

10    these 98 bis proceedings so that everyone, including the Prosecution and

11    the Chamber and all parties could be adequately prepared to come into the

12    courtroom.

13            This issue, counsel's correct.  There was some discussion about

14    the scope of Rule 98 bis, but the Chamber at that point was quite adamant

15    and has been adamant today that the current Rule would apply.  Now, the

16    Prosecution accepted that at face value.  So that's where we are, and

17    that's what I mean when I say, and there's no reason for Mr. Stewart to

18    become excited about that.

19            Now, this issue's now been raised.  As the Chamber just said, it's

20    a rather fundamental question attacking the entire viability of this

21    procedure, and it is time for the break, and I would ask the Chamber that

22    we take the break.  The Prosecution will discuss this among ourselves and

23    come back and make whatever further response we think we should make.

24            It had been our hope, Your Honour, just since I'm on my feet, it

25    had been our hope and anticipation that all the Defence arguments would be

Page 26908

 1    tendered at made all at once and the Prosecution would then make a

 2    response because, of course, there could be overlapping arguments, there

 3    could be interrelated arguments, and the Prosecution would rather make a

 4    response to all arguments at one time.  So that would be our first

 5    preference, is that we take all arguments first, Defence arguments by all

 6    accused and the Prosecution will make its response at that time.

 7            MR. STEWART:  Well, Your Honour, I'm not -- I'll let others judge

 8    whether the descriptions of agitated or excited apply, that seem to be

 9    very favourite words of Mr. Scott's.  I'm simply going to try to do my

10    job.  But included in doing my job is to observe that, innocently no

11    doubt, what Mr. Scott says - and I do say innocently - is in fact a

12    misrepresentation of the exchange that took place on our application for

13    preliminary issue, because it was perfectly clear that very helpful

14    intervention made by His Honour Judge Trechsel at that time, which then

15    led to a concerted view by the Trial Chamber was to the effect that, yes,

16    this particular issue, the basis of which was made very clear on our

17    application would be permitted to be canvassed on this application.

18    There's never been the slightest indication we were resiling from that.

19    The Prosecution have known for a week, or however long it is, that this

20    point about the scope of 98 bis and whether it could apply to elements

21    within a count as formulated in the indictment was absolutely clearly on

22    the table as an issue, and to suggest that in any way it's taken them by

23    surprise is simply false.

24            JUDGE ANTONETTI: [Interpretation] The Trial Chamber will take a

25    break at this point.  We will deliberate during the 20 or 30 minutes, and

Page 26909

 1    then we will tell you what is decided after the break.  Unless -- just a

 2    second, please.  Unless Mr. Scott wishes to -- to take the floor to talk

 3    about the two major points that were raised by the Defence, the

 4    applicability of 6(D) with respect to 98 bis; and the second important

 5    point, the reformatting of the indictment.

 6            MR. SCOTT:  I will take the floor, Your Honour, but I requested

 7    specifically to take it after the break, and I thought that was quite

 8    clear.  Thank you.

 9            JUDGE ANTONETTI: [Interpretation] Very well.  So we shall take a

10    break now.  The Judges will deliberate during the break.  We will listen

11    to you, and we will take another break to deliberate.  If I understood

12    correctly, Ms. Alaburic and Mr. Stewart, they would like that the Chamber

13    takes a decision, meaning that they would like the Chamber to render a

14    decision.

15                           --- Recess taken at 3.50 p.m.

16                           --- On resuming at 4.18 p.m.

17            JUDGE ANTONETTI: [Interpretation] Very well.  The hearing is

18    resumed.

19            Mr. Scott, you have the floor.

20            MR. SCOTT:  Thank you, Your Honours, and I should start by saying

21    good afternoon to you, Mr. President, and to each of the Judges, to all

22    those in and around the courtroom.

23            First, Your Honour, I -- I must note again, and I'm not saying

24    this at all and my comment is not directed to Mr. Stewart at all, and I

25    hope he will take that directly at face value.  So there's no need to

Page 26910

 1    further address the point.  My point is one of procedure and not as to

 2    Mr. Stewart or matter of personality.

 3            What has been raised this afternoon is a legal motion, a legal

 4    issue.  If such a motion had been filed by -- raised by motion according

 5    to the rules, under the rules Prosecution would have two weeks to respond

 6    in writing to such a motion, and so I note that, Your Honour.  Now, on

 7    this important legal issue, we're basically being required to respond

 8    to -- kind of off-the-cuff, as it were.

 9            Having said that, Your Honour, the Prosecution's responses would

10    be twofold.  First of all, Your Honour, much of what counsel has said on

11    this issue is really goes to a challenge to the form of the indictment

12    which under Rule 72 has to be brought prior to the time of trial.  If the

13    Chamber would like to look at Rule 72, preliminary motions being motions

14    which (i) challenge jurisdiction; or (ii) allege defects in the form of

15    the indictment; (iii) seek the severance of counts joined in one

16    indictment under Rule 49 or seek separate trials under Rule 82(B), et

17    cetera, are to be raised not later than 30 days after the disclosure of

18    the supporting material.

19            The very -- well, one -- certainly one of the reasons for that

20    rule and I think similar rules in most systems and certainly true in the

21    US federal system, is to avoid being exactly in this situation, that those

22    kinds of motions have to be made very, very early in the process to avoid

23    the waste of time and resources and energy by everyone.

24            Saying that the count -- the indictment is not properly pled,

25    saying that there are too many charges in one count, all of that is --

Page 26911

 1    goes to Rule 72, and that motion should have been filed literally,

 2    literally, years ago.  So we cannot, Your Honour, counsel -- with great

 3    respect, counsel cannot, via Rule 98 bis, move us backwards in time three

 4    years ago to a challenge to the form of indictment.  The indictment --

 5    number one.

 6            Number two, if for any reason the Chamber would be inclined to

 7    consider the form of the indictment, which we do not believe it should,

 8    with respect, then, Your Honour, I would submit -- the Prosecution would

 9    submit that the indictment in its current form is completely consistent

10    with Tribunal jurisprudence and practice, not withstanding some of the

11    examples given by counsel, and of course none of us in the courtroom, I

12    don't think, have those -- certainly we don't, have any of those other

13    indictments in front us.  But my experience and observation would be that

14    the form of indictment here, the way it is charged with multiple incidents

15    being included in a particular count is the way that indictments have been

16    brought for the past 15 years.  That doesn't necessarily mean it's the

17    only way or the best way, but that is the established practice and

18    precedent of this Tribunal, and if now this one Trial Chamber is going to

19    issue a ruling requiring that 15 years of practice be changed and the

20    jurisprudence be changed, obviously that puts everyone, including the

21    Prosecution, and for that matter, the Defence, at a substantial

22    disadvantage.

23            So that is the Rule 72 issue, and we submit that most of what

24    counsel has tendered or argued is really an attempt under Rule 72 to

25    attack the form of the indictment.  Those motions -- any such motions were

Page 26912

 1    made years ago and ruled on years ago, and under Rule 72 cannot be raised

 2    at this time.

 3            In terms of the 6(D) issue, Your Honour, we would note a couple of

 4    things.  First of all, the amended Rule 98 bis does not change the

 5    substantive standard.  The standards as -- at least some of which counsel

 6    read out.  The standard to be applied has not changed.  Therefore, there

 7    can be no prejudice from a change in the Rule based on that.  There is no

 8    prejudice flowing from the change in December 2004 since the legal

 9    standard to be applied did not change.

10            At most, what has changed is the procedure to be followed, not the

11    stand order to be applied.  And we would submit on that point, Your

12    Honour, as I think in -- I won't say all systems, but at least in a good

13    many systems, I think, and certainly in the US system, there is a

14    distinction drawn between procedural changes -- procedural legal and

15    substantive law.  Of course, you can't create ex post facto crimes and

16    charge a crime -- change in the law to charge a crime that wasn't a crime

17    before.

18            This is a purely procedural matter.  The legal standard itself has

19    not changed and, therefore, the Prosecution submits that Rule 6(D) is not

20    implicated by this.

21            Finally, Your Honour, if the Chamber were despite all of those

22    arguments inclined to apply Rule 6(D) in this case, then the Prosecution

23    would submit with great respect, it would put us in a position of indeed

24    going back to the entire previous procedure of extensive written

25    submissions, probably 3 or 400-page briefs and some weeks of preparation.

Page 26913

 1    You can't have it both ways.  If we're going back in time, if we're going

 2    to go back to the old days, then the old days have to apply, and both the

 3    Defence and the Prosecution will have to prepare its extensive, detailed

 4    submissions to that effect.  But we can't have it both ways.  We can't

 5    have -- we're going to go back the old way but then we're going to do it

 6    all on the fly standing on our feet in the courtroom.

 7            So the Chamber can decide if it wishes to do so what practice they

 8    want to follow.  But it's our submission, Your Honour, number one, this is

 9    a Rule 72 issue.  This motion could and should have been made a long time

10    ago if it goes to the form of the indictment how the offences are charged,

11    and that has long been resolved and is over -- is overdue and that right

12    has expired.

13            Number two, under Rule 6(D) we do not believe there has in fact

14    been any substantial prejudice to the Defence.  The standard to be applied

15    has not changed.  It is at most a procedural change and does not --

16    therefore, we do not believe it raises -- rises to the level of

17    substantive prejudice to the accused.  And again our third point, Your

18    Honour, in summary is if the Chamber were to accept that argument, then

19    the Prosecution ask to be -- the entire process to be rescheduled and

20    reformatted so that we return to the previous practice.  Thank you.

21            MS. ALABURIC: [Interpretation] Your Honour, with your permission,

22    I'd like the right to reply.  I consider this to be necessary with respect

23    to the first objection made by my learned friend, Mr. Scott, relating to

24    the assertion that objections to the form of the indictment should have

25    been done in preliminary submissions when it came to the form of the

Page 26914

 1    indictment pursuant to Rule 72.

 2            The Defence of General Petkovic completely agrees with Mr. Scott

 3    that it is the topic of objection to the form of the indictment, that

 4    that's what that deals with, but I'd like to remind you of the following

 5    fact:  At the point in time when the Defence teams prepared their

 6    objections to the form of the indictment, what was in force was the old

 7    Rule 98 [Realtime transcript read in error "92"] bis, and at that point in

 8    time not a single objective reason existed for the Defence to consider

 9    that by a joinder of a number of indictments in one count of the

10    indictment the right of the accused would in any way be reduced,

11    diminished.  It was only after the fact that Rule 98 bis was amended and

12    after jurisprudence and case law showed how it was to be applied could we

13    possibly have reason with the necessary explanations to object to the form

14    of the indictment, but at the time all the time limits for doing that had

15    expired.

16            Now, if --

17            JUDGE TRECHSEL:  Excuse me if I ask, because I do not understand

18    it seems.  The amended indictment is dated 16 November 2005, and the Rules

19    were changed in December 2004.  So it would seem to me that almost one

20    year after the Rules had been changed it would have been possible to refer

21    to the changed Rules.

22            MS. ALABURIC: [Interpretation] Your Honour, might I be allowed to

23    remind you that we did object to the first indictment and that it was on

24    the basis of those objections that the amended indictment was issued.  The

25    deadline for submitting objections to the indictment pursuant to Rule 72

Page 26915

 1    was the 15th of December, 2004.  So that was 2004.  And that was the day

 2    when the amended text of Rule 98 bis -- let me repeat, 92 bis, for the

 3    record, anyway, this came into force on that day, and the Defence teams

 4    had completed their submissions and tabled them to this Tribunal.  So the

 5    amended Rule 98 bis came into force after the Defence teams objected to

 6    the form of the indictment and issues of jurisdiction.

 7            So in keeping with the ruling of the Tribunal, the -- there was an

 8    amended indictment by the Prosecution, and once an indictment is amended,

 9    the Defence has the right to repeat their objections to the form only with

10    respect to the new counts, new charges, in actual fact.  So it is the

11    position of this court that in the amended indictment there were no new

12    charges.  So our additional requests for objection to the indictment were

13    rejected.

14            Therefore, I wanted to continue with my explanation.  It is

15    possible during the proceedings the Rules can be amended in such a way

16    that an element from the form of the indictment really does become a

17    factor for the Defence and that the deadlines have expired a long time

18    ago, which means that the Defence has lost its right to retroactively

19    oppose the an application of some Rule which means the elimination or

20    diminishment of an element or right.  And we therefore consider that,

21    first of all, when we tabled our objections to the form of the indictment

22    that the topic of multiple-incident count was not one that was important

23    from a single right of the accused before this Tribunal.  We launched this

24    topic on the -- at the first opportunity when it was seen that this

25    subject could be important for realising the rights of the accused, and

Page 26916

 1    that is the application of Rule 92 bis precisely -- 98 bis precisely,

 2    interpreter's correction.

 3            JUDGE ANTONETTI: [Interpretation] Very well.

 4            MS. ALABURIC: [Interpretation] Throughout it says 92 bis in the

 5    record.  I'm talking about 98 bis, 98 bis.  Thank you.

 6            JUDGE ANTONETTI: [Interpretation] Mr. Scott.

 7            MR. SCOTT:  Just to correct and state for the record and partly in

 8    response to Judge Trechsel's question, the preliminary motions were filed

 9    in this case beginning on the 15th of December, 2004, and the Rule was

10    enacted on the 8th of December, 2004.  Now, not to split -- not to split

11    hairs too much, but the Rule was in effect at the time that the

12    preliminary motions were filed.

13            MS. ALABURIC: [Interpretation] Your Honour, perhaps we're wrong in

14    the interpretation, but according to the information we have and data, the

15    Rule was amended on the 8th of December, 2004, that is true, and in

16    conformity with Rule 6(D) [Realtime transcript read in error "60"], it

17    came into effect six [as interpreted] days after it was passed.

18            MR. KOVACIC: [Interpretation] Your Honour, may I follow on to what

19    my colleague Ms. Alaburic has just said?

20            In reading Rule 6, the second part and the sentence:  "That shall

21    not -- but shall not operate to prejudice the rights of the accused or of

22    a convicted or acquitted person in any pending case."

23            For us to respond to this question that has just been raised

24    during the day as to what happened before, pending case in this specific

25    case we should know at what point in time during the proceedings and

Page 26917

 1    according to the Rules we define this moment of launching criminal

 2    proceedings.  As we know in different jurisdictions this is different.  It

 3    could be, but the Rules don't have any specific provision on this at least

 4    as far as I know, and I don't think I'm wrong.  As I said it could be the

 5    date when the indictment was confirmed, but it could also be the day when

 6    the accused appeared in court for the first time before the Trial Chamber.

 7    But both dates were during the enforcement of the old Rule 98 bis.  So

 8    we're not counting the amended indictment which came at the very end,

 9    because we in fact had three indictments, unless I'm very much mistaken.

10    The last amendment is the questionable one.  If before that we establish

11    on what day -- or, rather, what day we consider the proceedings to have

12    been launched and that the proceedings are pending, the case is pending,

13    then we cannot decide what came before and what came after.

14            We consider that it is obvious, because of the previous

15    indictment, the appearance of the accused in court that quite obviously

16    the proceedings were already under way.  That is to say, after the 4th --

17    or, rather, after the 8th of December when the new amendment came into

18    force.  And as my colleague said it came into force eight days after it

19    was published.

20            Just to not have to take the floor again I can continue now.  I

21    think Mr. Scott is claiming that there is no essential difference between

22    the new and the old Rule 98 bis.  I don't think that I should present any

23    special arguments on that score but I would like to point out three

24    details.  The old Rule gives the right proprio motu for the Trial Chamber

25    to make a judgement in this stage, whereas according to the new Rule the

Page 26918

 1    Trial Chamber cannot do that until it evokes parts of Rule 54, but not on

 2    the basis of Rule 98 bis.

 3            The second important difference is that according to the old Rule,

 4    the Defence should make their submissions in writing.  That's a big

 5    difference because we all know from our experience that if you have

 6    something done in writing it is easier to follow and more precise than

 7    oral submissions, if we take into account the speed at which the speaker

 8    is speaking, the interpretation and so on and so forth.  And further the

 9    most important and significant difference is that according to the old

10    Rule you could -- one or more offences charged in the indictment.  That

11    was necessary.

12            So in the way the technique applied by the Prosecution in defining

13    the counts of the indictment we could address the counts of the indictment

14    successfully if it was a part of the count, and in our indictment the

15    description of an event in a certain paragraph which does not exist in

16    this new Rule.  So without a doubt the differences are great and I cannot

17    agree with the position taken by the Prosecution that there are very few

18    differences or negligible differences between the old Rule 98 bis and the

19    new one.

20            MS. ALABURIC: [Interpretation] Your Honours, if I might be allowed

21    to put right two errors on page 47, line 2.  I was speaking about Rule

22    6(D) and not Rule 60, and I also said that it came into force within a

23    space of seven days and not six days.

24            And may I also present additional arguments with respect to what

25    my colleague Mr. Kovacic said in comparing the texts of the two Rule 98

Page 26919

 1    bis.  The very fact that according to the earlier text Rule 98 bis this

 2    Trial Chamber and this Tribunal was able to make judgements of acquittal

 3    and that now we have the undivided opinion that according to the text of

 4    the Rule 98 bis now that is in force it is almost impossible to enter a

 5    judgement of acquittal which underlines the difference between the two

 6    texts and without a doubt the former text of Rule 98 bis was more

 7    favourable for the accused.

 8            Thank you.

 9            JUDGE ANTONETTI: [Interpretation] Very well.  Yes, Mr. Scott.

10            MR. SCOTT:  Mr. President, very briefly.  First off, just again so

11    the record is clear, I didn't say there were no differences in the Rule.

12    I said that the legal standard had not changed and that the other aspects

13    in our view were procedural changes and did not substantively --

14    substantially prejudice the rights of the accused.  I did not say and do

15    not say now that there were no changes.

16            Secondly, and just as a point of information, and I'm just simply

17    raising the issue, Your Honour.  I don't know, as I stand here, I don't

18    know the answer.  I'm not sure whether anybody in the courtroom knows the

19    answer.  I'm not sure that it is correct to say that under the old Rule a

20    part of a count could be a unit of acquittal.  I don't know that that's

21    the case.  And the Chamber might want to research that and inquire into

22    that before making a ruling.  Thank you.

23            JUDGE ANTONETTI: [Interpretation] The Trial Chamber would like to

24    withdraw.  We shall take 20 minutes, perhaps less, and make a ruling when

25    we get back.

Page 26920

 1                           --- Break taken at 4.40 p.m.

 2                           --- On resuming at 5.31 p.m.

 3            JUDGE ANTONETTI: [Interpretation] The Trial Chamber will hand down

 4    its oral decision.  I shall read it out slowly so that the interpreters

 5    can translate it properly.

 6            Oral decision pertaining to the request presented by the

 7    Petkovic Defence.  The Petkovic Defence counsel today principally and as a

 8    preliminary submitted to the Trial Chamber the question of the

 9    interpretation and application of Rule 98 bis of the Rules of Procedure

10    and Evidence.  It holds that this Rule in its version dated the 8th of

11    December, 2004, cannot be applied in this particular case because

12    Rule 6(D) of the Rules of Procedure and Evidence provides that, and let me

13    read it out:  "An amendment shall enter into force seven days after the

14    date of issue of an official Tribunal document containing the amendment

15    but shall not operate to prejudice the rights of the accused in any

16    pending case."

17            The Prosecution responds by saying that this is a procedural rule

18    that can be instantly applied, which therefore does not substantially

19    prejudice the accused.

20            The Trial Chamber notes that this Rule, this amended 98 bis Rule

21    has already been applied on several occasions in other cases which were

22    pending at the time this Article was adopted.  The Trial Chamber, in

23    addition, feels that this Rule, i.e., a procedural Rule, can be instantly

24    applied unless it prejudices the accused.  The Trial Chamber is not

25    convinced that an irremediable prejudice is -- let me read it again.  The

Page 26921

 1    Trial Chamber is not convinced that the accused have suffered an

 2    irremediable prejudice.

 3            In this case the accused may argue that there is no element

 4    pertaining to the counts, and in addition, the accused at the time the

 5    judgement is handed down can be acquitted.

 6            The Defence counsel, moreover, submits that Rule 72 of the

 7    Rules of Procedure and Evidence did not entitle them to attack the

 8    indictment because of the date on which this Rule was adopted and because

 9    of the date of the amended indictment.

10            The Prosecution responded by saying that the Defence teams had had

11    the possibility to file preliminary motions which it didn't do on this

12    particular matter.

13            The Trial Chamber notes that the indictment could have been the

14    subject of a preliminary motion after the 15th of December, 2004.  The

15    Trial Chamber would like to say that if the Defence teams had felt that

16    the amendment of Rule 98 bis could have adverse effects as far as human

17    rights are concerned, a fair trial, expeditious trial, and the presumption

18    of innocence, in that case it should have seized the Trial Chamber as soon

19    as possible and should not have waited for the 98 bis procedure to be

20    applied.

21            Consequently, the requests filed by the Petkovic Defence team are

22    dismissed.

23            The Trial Chamber would therefore like to ask the Petkovic Defence

24    team to address paragraphs 229 and following of the indictment on those

25    counts.

Page 26922

 1            We have now handed down our decision, and I will give the floor

 2    back to the Petkovic Defence team so that it resumes its 98 bis

 3    submissions.

 4            MR. STEWART:  Perhaps I'm absorbing it as we go along, I'm trying

 5    to see whether Your Honours are making it expressly clear that the view

 6    which has been expressed in the course of today's submissions that the

 7    current Rule 98 bis does not permit us to do anything other than attack

 8    entire counts in the indictment, and that -- I'd rather understand that's

 9    the thrust of Your Honour's specific mention of paragraphs 229 and

10    following of the indictment.  Do I understand that correctly, Your Honour?

11            JUDGE ANTONETTI: [Interpretation] Exactly.

12            MR. STEWART:  I want to be crystal clear about that.  In that

13    case -- well, I have no submissions then on the part of the application

14    which Ms. Alaburic indicated was going to fall to me.  I obviously invite

15    my learned leader just to indicate then to Your Honours whether we, the

16    team, have further submissions to make.

17                          [Defence counsel confer]

18            MS. ALABURIC: [Interpretation] Your Honours, right at the

19    beginning we would like to seek leave to appeal against the decision on

20    the interpretation and application of Rule 98 bis.

21            Secondly, in accordance with your decision on our motion to strike

22    some modes of criminal responsibility that are not within the jurisdiction

23    of this Tribunal, I would like to remind you of that motion, and in

24    accordance with the decision of the Trial Chamber I would like you to rule

25    on this motion.  This motion filed by General Petkovic's Defence is as

Page 26923

 1    follows:  We would like to remind Your Honours to a pending motion filed

 2    by the Petkovic Defence in February 2007.  It was sought that the

 3    Prosecution be ordered to strike some parts of the paragraphs 218, 224,

 4    225, and 226 of the indictment where all the accused are charged with the

 5    following four modes of criminal responsibility:  Co-perpetration;

 6    indirect co-perpetration; three, indirect perpetration of all the crimes

 7    that are alleged in the indictment; and, four, aiding and abetting of the

 8    joint criminal enterprise.

 9            In its motion, the Prosecution claimed, and it claims today, that

10    in 2006 the jurisprudence of this Tribunal has established beyond any

11    doubt that those forms of criminal responsibility are not under the

12    jurisdiction of the International Criminal Tribunal, and those forms of

13    criminal responsibility are not recognised either by the Statute or by the

14    international case law.  This was explicitly confirmed in the judgements

15    and decisions by various Trial and Appeals Chambers in the cases Stakic,

16    Milutinovic, Cermak and Markac, Popovic et al.

17            On the 25th of April, 2007, this Trial Chamber ruled on this

18    motion filed by the Petkovic Defence stating that to make a decision on

19    this motion at that stage of the proceedings could disrupt the proceedings

20    and unnecessarily tax the resources of the parties and that the decision

21    would be made at an appropriate time when the Trial Chamber would rule on

22    98 bis motions before the beginning of the Defence case.  In other words,

23    the Trial Chamber postponed ruling on the Petkovic Defence motion until

24    such time when decisions are made on the 98 bis motions.

25            The Defence, let me remind you, was not allowed to appeal against

Page 26924

 1    this decision, but the Defence did file an appeal ex lege pursuant to

 2    Rule 72; it was rejected and a decision, the explanation, was that the

 3    decision of the Trial Chamber to rule on the merits of the case -- the

 4    merits of the motion filed by the Petkovic Defence before the beginning of

 5    the case would not be prejudicial to the accused and that a decision of

 6    the Appeals Chamber on the merits of the case would be ultra vires.

 7            So I conclude that in opposition to what the Trial Chamber ruled

 8    on the 24th of April, 2007, the Defence now expects the Trial Chamber to

 9    rule on the motion dated the 12th of February, 2007, motion to strike

10    portions of paragraphs 218, 224, 225, 226, in relation to those forms --

11    four forms of criminal responsibility.  The Defence believes that it would

12    be unnecessary to present any further documents in this regard, because

13    all the arguments have been made explicit in the motion filed by the

14    Petkovic Defence.  The Prosecution has had an opportunity to reply to

15    those motions, and has indeed done so.

16            Let me just note that this indictment is the only indictment that

17    is valid before this Tribunal.  This is the indictment under which the

18    accused are tried.  This is the only indictment that contains those

19    controversial forms of criminal responsibility.  We believe that this is

20    extremely important, because these modes of criminal responsibility are

21    not ascribed to the accused for just some of the offences listed in the

22    indictment but for all of the offences that are alleged there.  It would

23    be extremely unfair and contrary to Articles 20 and 21 of the Statute for

24    the Defence case to begin before this issue has been dealt with and ruled

25    on.

Page 26925

 1            The motion to strike some modes of criminal responsibility from

 2    the indictment in its motion the General Petkovic Defence invites the

 3    Trial Chamber, in accordance with Rule 54 of the Rules of Procedure and

 4    Evidence, to consider the -- whether it is possible for some of the

 5    portions of the indictment to remain, and we will move that some parts of

 6    some of the counts of the indictment be stricken from the indictment which

 7    in our belief, based on the best standards of proof applied in Article --

 8    in Rule 98 bis, can lead us to conclude that the Prosecution has failed to

 9    prove that the accused have committed those crimes.

10            And now I would like to invite my colleague Mr. Nicholas Stewart

11    to present his opinion to the -- or his views to the Trial Chamber under

12    Article 54 of the Rules of Procedure and Evidence.

13            JUDGE ANTONETTI: [Interpretation] Very well.  Two requests.

14    There's a request for certification of appeal and another request

15    pertaining to the modes of responsibility which was the subject of several

16    written submissions.

17            The Appeals Chamber had ruled that the Trial Chamber would rule on

18    this when addressing Rule 98 bis.  If I have understood you correctly,

19    Mr. Stewart is going to take the floor and address this particular issue.

20    Is that right?

21            MS. ALABURIC: [Interpretation] No, Your Honour.  We believe that

22    Rule 54 makes it possible, regardless of the existence and interpretation

23    of Rule 98 bis, to initiate an argument on the viability of those counts

24    in the indictment in light of the question whether the Prosecution has

25    managed to prove those counts or not, because we believe that Rule 54

Page 26926

 1    allows the Trial Chamber to intervene in the text of the indictment

 2    regardless of Rule 98 bis.  So we thought that we would be making

 3    submissions under Rule 98 bis now.  We would --

 4            JUDGE ANTONETTI: [Interpretation] In the decision I handed down a

 5    few minutes ago you understood that we have been seized of Rule 98 bis.

 6    We have not been seized of the indictment.  I would like this to be very

 7    clear in your mind.

 8            Now, if you wish to address legal issues that pertain to the

 9    counts in the indictment you may, but that will be part of 98 bis and not

10    of Rule 54.  So don't try to come back through the back door, because the

11    Trial Chamber has clearly indicated that it's only Rule 98 bis which we

12    have currently been seized of.  So if Mr. Stewart would like to take the

13    floor and discuss forms of responsibility, because the Trial Chamber, when

14    it hands down its oral decision in two weeks' time, will have to state

15    what it holds true, you can then of course add to your submissions, but

16    you don't have to.  It's for you to see what you wish to do.

17            MS. ALABURIC: [Interpretation] No, Your Honour.  I believe -- no,

18    Your Honour.  I think it is futile to provide any further explanations

19    regarding the four forms of criminal responsibility that we propose be

20    stricken from the indictment, because this has been explained in great

21    detail in our motions.  What we asked regarding Mr. Nicholas Stewart's

22    submissions is leave to address you on the issue of the viability of some

23    counts of the indictment, but that will be under Article 54.  If this

24    Trial Chamber considers that it is impossible to apply Rule 54 and that

25    only Rule 98 bis can be applied as it -- as it has been interpreted in the

Page 26927

 1    jurisprudence, we will not be making any submissions, but we would like to

 2    ask you in that case to be allowed to file an appeal against this second

 3    decision, too, regarding this second motion.

 4            JUDGE ANTONETTI: [Interpretation] The Trial Chamber will

 5    deliberate on your two certifications to appeal.

 6                          [Trial Chamber confers]

 7            JUDGE ANTONETTI: [Interpretation] Very well.  Now, as far as the

 8    two requests for certification are concerned, the first request pertains

 9    to the oral decision which we have handed down.  The Trial Chamber will

10    not certify the appeal.

11            As far as the decision relating to the fact that in addition to

12    Rule 98 bis Rule 54 may be invoked, the Trial Chamber has been very clear

13    on this matter and rejects certification to appeal also in this case.

14            However, as far as the forms of criminal responsibility are

15    concerned, the Trial Chamber will wait to see what the Prosecution will

16    say, and the Trial Chamber, when it hands down its oral decision, will

17    respond on the matter, but we will only respond when we will know what the

18    Prosecution has to say about it.  This is what we wish to state.

19            Mrs. Alaburic, if you'd like to take the floor again, you may.

20            MS. ALABURIC: [Interpretation] Your Honour, in view of the fact

21    that in conformity with your ruling we find that based on Rule 98 bis we

22    are really dealing with just mere formality and that we are not allowed to

23    prove anything unless we have valid evidence regarding the entirety of the

24    indictment, then according to the Rule interpreted in that way we cannot

25    enter a request for judgement of acquittal and the four challenged types

Page 26928

 1    of responsibility because the Trial Chamber has ruled that they are

 2    outside the jurisdiction of this Tribunal.

 3            THE INTERPRETER:  The Prosecution, interpreter's correction, not

 4    the Trial Chamber.

 5            JUDGE ANTONETTI: [Interpretation] Mrs. Alaburic, we didn't say

 6    that.  We said that as far as criminal responsibility is concerned, the

 7    Trial Chamber will respond when it hands down its decision orally since

 8    this issue was raised on the 12th of February, 2007.  The Appeals Chamber

 9    had then clearly stated that the Trial Chamber should rule on the matter

10    when the -- as part of 98 bis.  So we will rule on the matter as part of

11    98 bis.  This is what the Appeals Chamber had asked us to do.  This is

12    what I wanted to tell you.  But we will only take our decision once we

13    have heard what the Prosecution has to say.  For the time being, we don't

14    know.

15            If you have anything to add on the counts, you have the floor.

16    No?

17            MS. ALABURIC: [Interpretation] No, Your Honour.  I would just like

18    to repeat what I said earlier.  There seems to be a misunderstanding.

19            As for the charges in the indictment, if Rule 98 bis is

20    interpreted in such a way as we can succeed with a certification only if

21    there is evidence which relates to all the incidents in one of the counts,

22    I have to say that for each of the counts of the indictment there is at

23    least one piece of evidence so that we cannot submit the submission -- a

24    valid submission which relates to every count in the indictment.

25            With respect to the reaction of the accused, I would like to

Page 26929

 1    remind you that when we say that there is evidence and proof for each

 2    count in the indictment, that does not mean for each of the incidents in

 3    the counts in the indictment.  It doesn't mean proof and evidence for each

 4    of the accused, and we [indiscernible] dealing with evidence for which I

 5    say has -- is credible and has probative value, but it is a fact that

 6    there is just one witness or perhaps one piece of documentary evidence

 7    with -- relating to each of the counts regardless of the probative value

 8    of each of those pieces of evidence which is the legal standard for the

 9    application of Rule 98 bis.  Thank you.

10            MR. STEWART:  Your Honours, could I just raise one more point.

11    This is a genuine teamwork.  You can see we're popping up and down in

12    turn.

13            So far as what Your Honour's said about the modes of criminal

14    responsibility and the -- the February motion is concerned, the

15    Prosecution did respond to that in the formal full way.  We put in our

16    written motion.  They put in a written response.  We have made no further

17    submissions at all today on the substance of that matter.  With respect,

18    we don't really follow why the Prosecution then needs or indeed has any

19    right to respond.

20            There are two ways of doing it we suggest.  Either we stand on the

21    submissions we've made and the Prosecution stand on the submissions

22    they've made, or - and we're in Your Honours' hands on this - if there is

23    to be further submission by the Prosecution, further argument by the

24    Prosecution, then in fairness in these particular circumstances we should

25    then have the opportunity of replying to those submissions.  It's -- it's

Page 26930

 1    both or neither we suggest.

 2            JUDGE ANTONETTI: [Interpretation] Quite right.  Yes, you're quite

 3    right.

 4            So in the minds of the Judges of the Bench, there is no ambiguity.

 5    When the Prosecution will have the floor as part of the time allocated to

 6    it, either it will say, "I refer to my written submissions as regards that

 7    particular matter," and the Prosecution will say no more and the Trial

 8    Chamber will then hand down its oral decision after having scrutinised

 9    your written submissions and their written submissions, of course.  But if

10    Mr. Scott orally adds further elements, then of course you will have the

11    floor and you may respond.  That will not be an issue.

12            MR. STEWART:  Thank you, Your Honour.  That's most clear and most

13    helpful.

14            JUDGE ANTONETTI: [Interpretation] Very well.  So we still have one

15    hour, and since time is of the essence, I shall now give the floor to the

16    Defence of Coric or Pusic, unless they prefer to take the floor tomorrow.

17            MS. TOMASEGOVIC TOMIC: [Interpretation] Good afternoon,

18    Your Honours.  That's precisely what I wanted to propose to the Trial

19    Chamber.  Since I have less than an hour left now and this would break up

20    my presentation if I were to go ahead today, it would mean a great deal if

21    I could start tomorrow and complete it tomorrow, and I don't think we'd

22    lose any time that way.  Thank you.

23            JUDGE ANTONETTI: [Interpretation] Very well.

24            Yes.

25            MR. IBRISIMOVIC: [Interpretation] Thank you, Mr. President.  Now,

Page 26931

 1    when the question of time was raised, since we still have the Coric

 2    Defence and the Pusic Defence, we have already said that we won't be using

 3    a whole session.

 4            Now, it depends how long the Prosecution is going to take.  The

 5    time set was nine hours earlier on, so as the time has been reduced, we're

 6    interested in how much time the Prosecution will need for its response.

 7            JUDGE ANTONETTI: [Interpretation] Very well.  The Prosecution for

 8    the moment is not in a position to say that.  It has to wait to hear what

 9    Defence counsel of Coric have to say and yourself, and starting from there

10    we'll see, but it's clear that they are not going to use up -- am I

11    mistaken, Mr. Scott?

12            MR. SCOTT:  I think where we are at the moment, Your Honour, I

13    don't expect that the Prosecution will use anything like nine hours.  I

14    agree.

15            JUDGE ANTONETTI: [Interpretation] Therefore, the simplest way to

16    proceed is we'll see you tomorrow.  We have a hearing tomorrow afternoon.

17    Therefore, we will meet at a quarter past 2.00 tomorrow, which should

18    enable the Coric Defence to have its complete speech without having to

19    divide it between today and tomorrow.

20            So I wish you a pleasant evening, and we will all meet again

21    tomorrow afternoon.  Thank you very much.  The hearing is adjourned.

22                           --- Whereupon the hearing adjourned at 6.04 p.m.,

23                          to be reconvened on Tuesday, the 29th day

24                          of January, 2008, at 2.15 p.m.