1 Monday, 24
2 [Open session]
3 [The accused entered court]
4 [Status Conference]
5 --- Upon commencing at 3.04 p.m.
6 THE REGISTRAR: Good afternoon Your Honours,
7 IT-95-08-PT, the Prosecutor versus Dragan Kolundzija and
8 Damir Dosen.
9 JUDGE MAY: Let us have the appearances.
10 MR. NIEMANN: My name is Niemann and I appear
11 with my colleague Mr. Keegan and Mr. Kapila Waidaratne
12 for the Prosecutor.
13 JUDGE MAY: For the Defence.
14 MR. VUCICEVIC: Your honours, Dusan Vucicevic
15 on behalf of Dragan Kolundzija.
16 MR. PETROVIC: Your Honours, my name is
17 Vladimir Petrovic. I am an attorney at law from Zagreb
18 and I appear for Damir Dosen.
19 JUDGE MAY: This hearing is listed as a
20 Status Conference, but also for the hearing of various
21 motions. There are, firstly, motions relating to the
22 indictment from both accused and motions in relation to
23 the evidence from both Prosecution and Defence.
24 Now, the position is this, as I hope you have
25 been informed. Judge Robinson is not here. He is away
1 for urgent personal reasons, and therefore we are not
2 in the position of making any orders in his absence.
3 However, it is possible to hear argument from counsel,
4 which the judge can then read and take part in the
5 deliberations and the making of orders.
6 I must say that in the two weeks that we have
7 been in this position, we have dealt with several
8 matters in this way. However, before making any
9 decision, we will hear the submissions, if any, of
10 counsel, of our hearing these matters in the
11 absence of Judge Robinson.
12 Any objection, so far as the Prosecution is
14 MR. NIEMANN: No objection, Your Honour.
15 JUDGE MAY: As far as the Defence are
17 MR. VUCICEVIC: No objections, Your Honour.
18 MR. PETROVIC: No objections, Your Honour.
19 JUDGE MAY: Very well. We will begin with
20 the motions in relation to the indictment. As I say,
21 we will merely hear the arguments today. There will be
22 no orders until the Trial Chamber is fully
23 constituted. There are two motions relating to the
24 indictment, and the form of it. It may be convenient
25 to hear them together. Mr. Vucicevic, would you wish
1 to begin?
2 MR. VUCICEVIC: Yes, Your Honour. Defence of
3 the accused, Dragan Kolundzija, respectfully submits
4 that the indictment is deficient in form and that it
5 should be dismissed. The case law of this Tribunal
6 states that primae facie case must be pleaded, and also
7 a case from the Rwanda Tribunal says that the essential
8 facts, when supported by the evidence, should result in
9 conviction. And that was a position taken by the
10 Prosecution in their response. However, the most
11 essential holding on which the Defence of Dragan
12 Kolundzija relies is the holding of this Trial Chamber
13 in Kvocka case, specifically outlining the essential
14 facts which must be supported by minimum level of
15 information, in order to sustain challenge to the form
16 of the indictment.
17 Therefore, in my oral argument I would like,
18 with particularity, to tie the lack of the specificity
19 and lack of minimum information to each and every count
20 of this indictment. Therefore, the allegations in
21 Count 1, 2 or 3 are defectively pled as far as the
22 individual criminal responsibility is concerned because
23 they merely recite language of the Statute in not --
24 they are not pleading or alleging any facts showing
25 that the accused was involved in planning, instigating
1 or in committing, or otherwise aiding and abetting, or
2 in the planning, preparation or execution of the
3 certain unlawful acts.
4 There are three separate defects of form that
5 the Prosecution has failed to plead. A, the
6 Prosecution has failed to plead that Dragan Kolundzija
7 was involved in any activities at the other detention
8 facilities in Prijedor region, such as Omarska and
9 Trnopolje. And those pleadings are evident in
10 paragraph 6 to 10.
11 B, the Prosecution has failed to plead the
12 facts establishing criminal, individual criminal
13 responsibility with regard to any other facility or
14 occurrence in Prijedor, other than Keraterm detention
16 And C, the Prosecution has failed to
17 establish any facts as to the severe beatings, torture,
18 killing, sexual assault and other forms of physical and
19 psychological abuse as evident in paragraph 21.
20 The allegations regarding liability of
21 superior officer in Counts 1, 2, and 3 are also
22 defectively pled and must be dismissed.
23 In order to sustain the indictment on form,
24 the Prosecution must plead that the accused must have
25 known or had reason to know of his subordinates'
1 criminal acts; and, two, that the accused failed to
2 take necessary and reasonable measures to prevent such
3 acts or punish his subordinates.
4 There are no less than six separate defects
5 in form in pleading the required specific facts.
6 Number one, there is a defect showing that Dragan
7 Kolundzija was present at Keraterm in his capacity as
8 chief commander at all times, where all the acts
9 alleged were present.
10 To illustrate this, the lack of specificity,
11 when Dragan Kolundzija was present at Keraterm and what
12 acts were perpetrated when he was present. It is not
13 only when the shift of which he was a commander was
14 there but also the shift that was there was at various
15 times, other times, commanded by other individuals, and
16 on other occasions Kolundzija wasn't there.
17 Number (2) there is essential defect of fact
18 pleading that Kolundzija knew of the acts before or
19 during their commission.
20 (3) that Kolundzija -- there are no facts
21 indicating that Kolundzija failed to take any steps to
22 prevent those alleged criminal acts or that he had
23 failed to punish his subordinates for those acts.
24 Moreover, there are no specific pleadings indicating
25 that he had authority to punish the subordinates for
1 those acts.
2 Counts 1, 2, and 3 are also defectively pled
3 because the terms used are vague and ambiguous and
4 don't give sufficient notice of what conduct Dragan
5 Kolundzija must defend against. For example,
6 psychological abuse as used in paragraph 21(D),
7 inhumane conditions or acts in paragraph 21(E); in
8 Count 2, outrages on personal dignity as in
9 paragraph 23 in Count 3.
10 Counts 4 and 5 accuse Kolundzija both
11 individually and as a superior authority for certain
12 unlawful acts that were allegedly committed on July 24,
13 1992. Those counts are defectively pled because they
14 fail to provide the minimum information and essential
15 acts to allege that he had individual criminal
16 responsibility, because again, they merely recite the
17 language requirements from Statute Article 7(1), and
18 they are not providing any basic facts to sustain such
19 a language.
20 Also, Counts 4 and 5 are defectively pled
21 because they have to allege sufficient facts that
22 Dragan Kolundzija had superior authority under
23 Article 7(3).
24 The Prosecutor has specifically failed to
25 inform the defendant and furnish essential facts that
1 Kolundzija had knowledge before shooting took place on
2 7/24/92. Also, there is a failure to allege that
3 Dragan Kolundzija had authority over Serb forces. And
4 with all due respect, I have to point out that in the
5 amended indictment, the "Serb forces" term has been
6 used to substitute term "soldiers" in the first
7 indictment. That is a very vague term. It's not used
8 in either military professional terminology in any of
9 the languages used in the former Yugoslavia.
10 Therefore, it is indefinite and unclear.
11 Also the Prosecutor has failed to allege the
12 facts that Dragan Kolundzija had any authorities over
13 any other camps besides Keraterm, and there is no
14 specificity delineating any of his responsibilities,
15 which would -- conveniently, omissions were made to
16 picture him as the part of a persecution that allegedly
17 has occurred in the Prijedor area. But there is no
18 specific facts indicating that he was at all part of
19 the alleged persecution, while there are numerous
20 statements, essential facts indicating that Dragan
21 Kolundzija was not.
22 And with all due respect, I have to bring up
23 the point that the Statute and the cases so far
24 indicate that essential facts must be pledged. And in
25 order to sustain the form of the indictment, the
1 information presented is firmly grounded on the facts.
2 What the Prosecutor is arguing in their response, that
3 those are merely issues of fact and should be resolved
4 at trial.
5 However, I will give you an analogy.
6 Prosecutor is saying that there is the tip of an
7 iceberg floating on the ocean, when indeed he knows
8 there is no iceberg under the surface. This might be
9 the reason why this indictment is so defective, unlike
10 any indictment that has been submitted before this
11 Tribunal in the past.
12 In the submission of my learned colleague,
13 counsel for accused Dosen, there was quite a few
14 examples of the language of specificity used by the
15 Prosecution in the other indictment, and I would
16 respectfully ask this Trial Chamber to compare the
17 specificities in other indictments with this one,
18 because we have arrived to the point on which this
19 Trial Chamber has commented in Kvocka case by saying,
20 Your Honours, there might be a case where the level of
21 the information must fall -- may fall below the
22 minimum. Indeed, that case is before you, Your
23 Honours, today.
24 JUDGE MAY: What do you say about the
25 attachment which is attached to the schedule,
1 Attachment A, in which much more detail is given?
2 MR. VUCICEVIC: Your Honours, that was a
3 last-minute effort to save a defective indictment.
4 However, it's too little and inappropriate.
5 In paragraph 17 and 19 in their response,
6 Prosecutor is basically attempting to say, "We are
7 submitting the attachment." That attachment was
8 originally, as we pointed out, submitted to the
9 proposed amendment of the indictment that was pending
10 before you and then it was withdrawn. And this is
11 nothing but a laundry list of all alleged crimes -- and
12 I do I apologise for the term but it might seem that
13 way -- of all the crimes that occurred in Keraterm
14 throughout its existence.
15 It fails severely, because it does not at all
16 specify which of those victims were allegedly murdered
17 or tortured on Kolundzija's watch. And it could happen
18 that most of those people were or all of those people,
19 I respectfully submit, suffered during the times that
20 Kolundzija was not in that authority. That's why that
21 list is not proper. There is enough information in the
22 disclosed statements.
23 To prepare the indictment -- to attempt to
24 prepare the indictment to meet the specificity of
25 information. However, Your Honours, I respectfully
1 submit there has been five years since this indictment
2 was brought and confirmed, there were numerous
3 statements of the witnesses which basically do not meet
4 the standard, and this indictment cannot be formed to
5 satisfy the basic charge against Dragan Kolundzija.
6 I'm more concerned about another point
7 because in reading the statements of the Prosecutor's
8 witnesses. I have reason to believe that there are
9 statements, yet undisclosed, that exculpatory, and we
10 haven't got any of them.
11 JUDGE MAY: That's a separate point. Now,
12 we've got your pleadings, Mr. Vucicevic, your
13 submissions, both the original motion and your reply to
14 the Prosecutor's submissions. Is there anything more
15 you want to say to us?
16 MR. VUCICEVIC: With all due respect, we ask
17 that this indictment should be dismissed with
18 prejudice, because there is no sufficient information
19 in the essential facts upon which the accused could be
20 tied up to the alleged acts committed. Most
21 particularly in your holding in Kvocka, the Prosecutor
22 has not met the standard or at least showing the line
23 of other authorities that were concurrently present.
24 There is not a single fact indicating that
25 Kolundzija is responsible for nothing else than that
1 event of the night of July 24th. And on that one,
2 there is a failure to provide that he had -- what were
3 the other lines of authority, as you said.
4 So the whole indictment must be dismissed,
5 and it's up to you, Your Honour, by evaluating the
6 facts. And that is completely another issue that I
7 have decided not to go into the merits, but now under
8 the Rule 72 the disclosed facts should be evaluated. I
9 leave that upon the wisdom of this Trial Chamber.
10 Thank you, Your Honours.
11 JUDGE MAY: Thank you. Mr. Petrovic.
12 MR. PETROVIC: [Interpretation] First of all,
13 with regard to this matter, I wish to say that the
14 Defence of the Damir Dosen abides by what has been has
15 been submitted in writing; that is to say, on the
16 15th of December last year, as well as the response
17 that was filed on the 15th of January this year. That
18 is to say, there are no new points that we wish to make
19 in relation to what it already says in writing. So I
20 would like the Trial Chamber to consider what is in
21 these submission that have already been made.
22 There is just one fact that I wish to point
23 out. In the opinion of the Defence of Damir Dosen, the
24 indictment, as it stands, considerably lags behind the
25 usual form and practice and already attained standards
1 in indictments before this Tribunal. So there are
2 quite a few facts that are lacking. The way in which
3 crimes were committed, the time, the place of
4 commission of the offence, all of this is lacking. All
5 of this is missing. That makes the preparation of the
6 defence in this case considerably more difficult. How
7 can one prepare the defence if one does not precisely
8 and exactly know where -- how the accused is being
10 There is another very essential point. The
11 accused, as he thought of what was going on and thought
12 of what he is being charged with, what is actually
13 being held against him? That he killed someone? That
14 he mistreated someone? That he did what? These are
15 grave problems that the accused has to face. At this
16 point in time, in view of the content of the
17 indictment, he does not know what he's up against.
18 So for all these reasons -- and I don't want
19 to go into all of what I already presented in my
20 motions -- the indictment is deficient, imprecise, and
21 it requires a substantive and comprehensive amendment.
22 Also, it is important to delineate the
23 responsibility of the accused in view of Articles 7(3)
24 and 7(1) of the Statute. The accused has to know
25 exactly what he's being held responsible for, whether
1 he was involved in the planning, aiding, and abetting
2 of certain crimes that are punishable according to the
3 Statute of this Tribunal, and when he is responsible
4 for crimes that were allegedly committed by others as
5 the Prosecutor is claiming; that is to say, persons who
6 were in his shift.
7 Of course, during the trial, because this is
8 not the right time or place to do this, the Defence is
9 going to show that Dosen was not a shift commander, nor
10 was he responsible for what other persons, who worked
11 with him, did in terms of the security of the Keraterm
13 A different matter is Attachment A. We got
14 that in the Prosecutor's response to our preliminary
15 motion, and I imagine that the Trial Chamber would be
16 interested in hearing more about this particular
18 JUDGE MAY: Yes. I'm sorry, Mr. Petrovic, if
19 you would like to go on.
20 MR. PETROVIC: [Interpretation] So this
21 attachment that we got, as we said in our response of
22 the 17th of January this year, the legal nature of this
23 document is not quite clear to the Defence. It says
24 that this is a document that will assist the Defence.
25 In the cases that were quoted in our response, that is
1 to say the case of Krnojelac, the case of Kvocka, and
2 others, the status of the same document of this nature,
3 which consists of this table of what the accused is
4 being charged with, it says, clearly, that this is --
5 this document is part of the indictment. And it went
6 through a procedure that is customary for amending the
7 indictment; that is to say, the Chamber instructed the
8 parties involved to do so, that is to say, to have the
9 indictment amended.
10 And this differs from what we were given by
11 the Prosecutor, along with their response to another
13 Also, if one only glances at this document,
14 one can see that it is quite contradictory. It creates
15 quite a bit of confusion. In terms of this already
16 imprecise indictment, we try to specify some examples.
17 For example, when it says co-perpetrator, when it gives
18 Damir Dosen's name, what does that mean? Does that
19 mean that he committed this crime by himself or, when
20 there is no other name in the column co-perpetrators,
21 does that mean he is the only one who is being held
22 responsible? These are all the things that are
23 imprecise. And especially in relation to what Damir
24 Dosen relates to, that is counts 4 to 7 of the
1 In the introductory part of Article 25 of the
2 indictment, it says that this happened on the 25th of
3 June, 1992. If one only glances at this document that
4 we are speaking of, that is to say, Attachment A, that
5 is attached to the Prosecutor's response to our
6 preliminary motion, one can see that this concerns
7 events that happened in July, in August, at different
8 points in time, and also killings are mentioned that
9 are not mentioned at all in the indictment itself.
10 Does that mean that in this way the
11 indictment is being expanded, amended? Is the
12 Prosecutor, through this informal document, trying to
13 amend the indictment? Because there is no mention of
14 this in the amended indictment.
15 I also want to add one more thing, that a
16 precise and adequate indictment would considerably --
17 would make it much easier to expedite the trial
18 itself. We wouldn't have to bring in so many
19 witnesses. If it were clearly stated in the indictment
20 what my client is being charged with, then, when we
21 come to the point when the Defence case starts, we will
22 be in a position to precisely say what we have to
23 prove, whereas now the Defence has to prove everything,
24 in relation to every day of Keraterm's existence.
25 If we knew exactly what this referred to,
1 when, how, et cetera, then we would expedite the trial
2 itself. Because we know, unfortunately, for how long
3 the -- our clients will have to wait to have this Trial
4 Chamber start with their trial. But once the trial
5 starts, we would like it to be as speedy and as
6 efficient as possible, not to mention the fact that
7 this would save resources for the Tribunal itself and
8 for everyone concerned. And, on the other hand, there
9 are matters that Damir Dosen was not involved in at
11 There is quite a bit of time left until the
12 trial begins, unfortunately, if we have been made
13 adequately aware of the schedule of this Trial
14 Chamber. So the Prosecutor has enough time and
15 resources to specify this, so that the indictment would
16 truly be directed at what it is believed that the
17 accused Damir Dosen committed.
18 Thank you for your attention.
19 JUDGE MAY: Thank you. Mr. Niemann, just two
20 matters which you can help us with. At the moment, as
21 I understand it, there are two separate indictments now
22 against these two accused. I think those are the most
23 -- the latest documents which we have.
24 MR. NIEMANN: Yes, Your Honour.
25 JUDGE MAY: Is it proposed that there should
1 be -- they should be joined in due course into one
3 MR. NIEMANN: Yes, one document. It is
4 proposed that there be one document that covers both
5 accused contained within the confines of one document.
6 In fact, Your Honours, you are aware that the -- I
7 think you are aware that the indictment has been
8 joined, so it's not a matter that we'll be making an
9 application for joinder, because joinder -- that's how
10 the indictment was presented to the Confirming Judge.
11 The Confirming Judge entertained an
12 application on our part to issue individual documents,
13 pending arrests of persons, because that happens
14 sporadically and doesn't happen in one event. But we
15 have the intention of filing one document to cover both
17 Now, whether we do it now, Your Honour, or
18 whether we do it at another stage, it's a matter of
19 convenience for the Chamber. Our position is that we
20 could do it now, without difficulty, but it may be
21 preferable to wait to an event -- to a time closer to
22 trial, because it's not going to affect in any way --
23 in any significant way the presentation of the
24 indictment. It may be better to do it closer to trial
25 because if these accused are to be joined by any other
1 accused from the Keraterm camp, that will necessitate
2 filing yet another document to include that third or
3 fourth person, if that should happen to trial.
4 But if it's a matter of convenience for us to
5 do it now, we can, if that would assist Your Honours.
6 JUDGE MAY: It may assist. It may be easier
7 to deal with the matter closer to trial, for the
8 reasons you've mentioned.
9 The other point I want to ask you is about
10 Attachment A. The point is made as to what the status
11 of this document is. As I take it, it's a document
12 which is put forward to assist the Defence in the
13 preparation of their case and to assist the Trial
15 Is there any reason why it shouldn't form
16 part of an indictment, if the Trial Chamber was of a
17 mind to so order? We haven't yet decided the matter,
18 of course, but we need to consider all possible
20 MR. NIEMANN: There is no reason at all, Your
21 Honour, why Your Honours couldn't so order, if that was
22 an appropriate course for Your Honours to take. But
23 perhaps I might just cover that point a bit. The
24 complaint by both Defence counsel in this case really
25 is a complaint of lack of particulars. They frame
1 their motion in the form of an attack upon the
2 indictment, and a suggestion that the indictment should
3 plead more of the evidence. In our submission, Your
4 Honours, that is not the purpose of the indictment, and
5 the indictment itself doesn't have to prove the case.
6 The evidence proves the case, and whatever
7 the allegations contained in the indictment, will not
8 prove the case. If one examines their complaint,
9 really what they are saying is the indictment isn't
10 giving us a sufficient directory to the type of
11 evidence that's going to be relied upon, and we find it
12 deficient because we don't have that directory. Well,
13 Attachment A achieves that directory, Your Honour. It
14 gives them that directory. It tells them the details
15 that they say are deficient, and it tells them where to
16 go to find it, in terms of the particular statements.
17 It gives them the people involved, other perpetrators
18 involved, and it gives them further particularity with
19 relation to the dates and places.
20 We have no particular objection, if this was
21 to be ordered to be attached to the indictment, but
22 what we would say is this, Your Honours, that it's not
23 the purpose of the indictment to put in this level of
24 particularity, and to some extent put in this
25 evidence. That's not the purpose of an indictment.
1 But if Your Honours felt that it was more
2 convenient to do so, then we certainly raise no
3 objection to that.
4 Your Honours, in the Kvocka case, it was an
5 attachment of this sort which we submit remedied the
6 situation in terms of lack of particulars, which the
7 Defence complained of in that case.
8 There was just one other matter I was going
9 to raise, if I may. I don't want to traverse all the
10 issues, it's been done in our submissions. We think
11 they are sufficient for the purposes. If we can assist
12 you in any other matters, we will, and be pleased to.
13 But the reference, Your Honours, to the other camps,
14 Omarska and Trnopolje, has been raised by the Defence
15 in a way which is suggesting that we haven't provided
16 specific particulars in relation to these accused
17 involved in those camps. That, Your Honour, denies the
18 very nature of the charges. The charges that have to
19 be established are that it's a widespread and
20 systematic attack, and the allegations are that this
21 happened in the Prijedor municipality. And so the
22 indictment, in our submission, would not be complete if
23 it didn't provide some reference to the widespread and
24 systematic nature of the offence.
25 And so, Your Honours, that is the reason why
1 it's included there. And to suggest that somehow the
2 indictment should be dismissed because it contains a
3 vital allegation relating to widespread and systematic,
4 Your Honours, in our submission, fails to recognise the
5 nature of the offences that are charged here.
6 JUDGE MAY: Thank you. If the Defence want
7 to respond in a few words, they can, but make it a few,
9 MR. VUCICEVIC: Yes, Your Honour. Thank you
10 for the opportunity. What Prosecution is inviting this
11 Trial Chamber to do is to give them a carte blanche to
12 write, basically, the language of the Statute without
13 any essential facts to support it. That hasn't been
14 the case.
15 And just recently I have read your decision
16 in the Kupreskic case, and I could not escape the
17 opportunity to look in some of those counts of
18 indictment, where the Prosecutor with specificity tied
19 up each and every defendant with particular acts.
20 Looking here, counts 2 to 9, murder and inhumane acts
21 and cruel treatment. And there is 3 or 4 or 5 names of
22 the victims and perpetrators, the statements of the
23 witnesses indicating that they have seen those acts
25 In the indictment of Dragan Kolundzija, the
1 Prosecutor not a single time indicated that the victim
2 X, Y, Z was either murdered or tortured while Dragan
3 Kolundzija was on the shift. This is the difference.
4 The Prosecutor is trying to change the goal
5 post in the game. And this is not a game. This is a
6 serious legal proceedings, that the whole world is
7 looking at us. And the standards that you have set in
8 Kvocka, it's a time now to be enforced. There must be
9 a minimum of information based on the facts. It's a
10 language of the Statute, and Prosecutor must be asked
11 to get those facts, or we respectfully ask you to
12 dismiss the indictment.
13 JUDGE MAY: Mr. Petrovic, if you want to add
15 MR. PETROVIC: [Interpretation] Just briefly.
16 I had expected to get an answer regarding the legal
17 nature of the documents. That was the first thing.
18 And the second, if that is part of the indictment, what
19 is the legal remedy left to the Defence in terms of
20 investigating and preparing a Defence, because this
21 part of the indictment is full of contradictions and
22 vague points. And this is what I am interested in.
23 This is what I would like to find an answer to in some
24 way or another. Thank you.
25 JUDGE BENNOUNA: [Interpretation] Mr. Niemann,
1 we have the indictment here, and also we have this
2 Attachment A that you handed over, and that is where
3 there is a list of victims and perpetrators. That is
4 to say, that if we look at this table, there are two
5 columns in this annex. The problem that the Office of
6 the Prosecutor has to face is the following. Perhaps
7 you could clarify this for us. If we look at this
8 annex, you mention a number of crimes that were
9 committed in camps and, on the other hand, you also
10 mention charges that are brought against the accused
12 Then you particularly refer to Articles 7(1)
13 and 7(3) of the Statute, and then you give a few
14 elements of the accused themselves. I'm not asking you
15 now to disclose all the evidence you have, but we would
16 kindly ask you to explain to us what is the
17 inter-relationship with the indictment itself; that is
18 to say, how does this relate to the indictment? What
19 is the nexus between the attachment and indictment?
20 What guided you in this effort? What guided you in
21 this effort? Why did you mention all these charges?
22 Of course, there is a presumption of
23 innocence. However, what is the nexus between the list
24 of the crimes allegedly committed by the accused and
25 the legal basis for all of this?
1 Could you now give us more details about what
2 guided you in this effort; that is to say, why you made
3 this nexus between the crimes allegedly committed by
4 the accused and the legal qualification involved.
5 MR. NIEMANN: Yes, Your Honour. Your
6 Honours, the way we approach the indictment in this and
7 in many other cases is to set out, in a manageable
8 form, the allegations and the crimes that the
9 Prosecution allege will be proved at trial. In doing
10 this, invariably there is a reference in the indictment
11 to some pieces of the evidence that will be ultimately
12 relied upon at trial.
13 We do not, however, seek to produce a
14 document, when we present an indictment, which is, in
15 effect, a mirror of the trial itself. If we were to do
16 that a number of difficulties would arise. The most
17 obvious ones that occur to us is that having regard to
18 the nature of oral testimony and witnesses' evidence,
19 it's possible that what we may recite in an indictment,
20 if we were to set out the whole trial in the
21 indictment, may ultimately turn out to be different
22 than to what occurs at trial. But probably the most
23 important aspect of it is that if we were to set out in
24 all the detail the whole evidence of the case, then the
25 purpose of the trial itself would be rendered
2 So what we do, Your Honours, and what our
3 philosophy has been, is to present the accused and Your
4 Honours with a document which, we agree, in some
5 respects presents a summary, an outline of the case
6 both as to the issues of law and, to some extent, as to
7 issues of fact.
8 Bearing in mind the nature of the charges
9 here, these charges are never or very, very rarely
10 dependent upon a single event. In most instances, the
11 evidence that is required to be produced in order to
12 prove these charges most often represents a
13 multiplicity of events which go to make up the charge.
14 These multiplicity of events may be multiplicity of
15 crimes committed and, in addition, they could include
16 such other matters as the nature of the crime committed
17 over a geographical region, hence the wide-spread and
18 systematic nature. Further, it may involve the actions
19 of states or authorities because that is the nature of
20 these particular crimes.
21 Having regard to the magnitude of these
22 events, we find, almost invariably in every case, we
23 are met with a motion filed by the Defence saying that
24 the indictment is deficient. Regrettably, Your
25 Honours, this is a misunderstanding of the nature of
1 the indictment. What they're really saying is there
2 are insufficient particulars; the Defence haven't been
3 given enough detail about the particular events which
4 we say go to constitute the crime charged.
5 Now, an argument that could be put is, well,
6 the supporting materials should do that and that should
7 be all that is necessary. Certainly that's all that's
8 necessary for the Confirming Judge to be satisfied of a
9 prima facie case. And at this stage of the
10 proceedings, one could successfully argue, in my
11 submission, that why should the Defence, at this time,
12 have more than what the Confirming Judge has?
13 The Prosecution is not seeking to prove its
14 case with the indictment. It's merely attempting to
15 set out the details of what it will go about to prove
16 in the course of the trial. However, in an abundance
17 of caution, with a mind to assist the Defence, because
18 we do recognise the complexity of these cases and the
19 magnitude of them, what we try and do and what we have
20 attempted to do in Attachment A is to provide, if I can
21 call it, a road map of the way the Prosecution will go
22 about the proof of the allegations contained in the
23 indictment. It's a means by which the Defence can look
24 at what we are alleging and say, "Ah, that's how
25 they're going to do."
1 And they talk about numerous inconsistencies
2 and other defects which they may say are contained in
3 the attachment. Of course, that is so. I mean, this
4 is what the Prosecution is doing. It's laying its case
5 bare at this stage of the proceedings and saying, "This
6 is what we're going to rely on to go to trial."
7 Inconsistencies and defects which may be
8 suggested on the basis of these summaries now we say
9 will either be resolved at trial, and if they're not
10 resolved at trial and still stand at the end of the
11 Prosecution case, they will be obviously to the
12 detriment of the Prosecution. But our submission, Your
13 Honours, there is no point in looking at this
14 attachment now and saying there are inconsistencies.
15 Therefore, the indictment should be dismissed and the
16 case shouldn't be heard. In our submission, that's
18 So, Your Honours, what we're trying to do
19 with this is to provide the sort of particulars that
20 the Defence claim they need to prepare themselves for
21 trial. We submit that it's inappropriate that it
22 should form part of the indictment because that's not
23 what indictments are for, in our submission. But if
24 Your Honours are disposed to join it, we're not going
25 to object to that if Your Honours feel that is a better
1 course to take. We're saying that these sort of
2 details shouldn't be included in the indictment. This
3 is merely the same sort of thing that a Prosecutor's
4 opening address does. It's an extension of the
5 supporting material that's provided to the Confirming
6 Judge. That's, Your Honours, its status.
7 JUDGE MAY: Of course, you will be obliged to
8 provide more detail and indeed set out the way in which
9 you intend to prove the case in your pre-trial brief.
10 MR. NIEMANN: Certainly, Your Honour.
11 JUDGE MAY: And while we're on that, when do
12 you anticipate having that document ready?
13 MR. NIEMANN: If I may consult my colleague.
14 [Prosecution counsel consult]
15 MR. NIEMANN: We had envisaged, Your Honour,
16 that it would be something that would no doubt be
17 ordered by Your Honours. We thought perhaps at some
18 time close to trial, but if that would assist in due
19 course. Again, it's a document of some length. It
20 will take some time to produce.
21 JUDGE MAY: I would be grateful if a start
22 could be made towards it. We are not in a position to
23 order it at the moment because we haven't finish the
24 preliminary motions, but once we've done that, I
25 anticipate we will be making a fairly short order. It
1 will assist everybody in the preparation of the trial
2 to have that document.
3 MR. NIEMANN: We will start it.
4 JUDGE MAY: Thank you.
5 MR. NIEMANN: I hope that assists Your Honour
6 and Judge Bennouna. If there is anything further I can
7 do to assist Your Honour.
8 JUDGE BENNOUNA: [Interpretation] Thank you,
9 Mr. Niemann. Judge May did ask the right questions of
10 you. In other words, we have a full picture of this
11 pre-trial brief. We would like to have the pre-trial
12 brief so we would know what the strategy of the
13 Prosecution is going to be.
14 The question that arises now is certain
15 objections are being raised; in other words, that you
16 are only mentioning the Articles of the Statute; that
17 is, 7(1) and 7(3). In other words, that you just
18 mentioned in passing the command responsibility. But
19 could you tell us how you intend to frame, both in
20 regard to Mr. Kolundzija and Mr. Dosen, how do you
21 intend to frame your case in regard to their superior
22 authority and within the chain of command?
23 Obviously you don't need to present it now,
24 but what you have presented to us so far is fairly
25 limited. You say that in the Kolundzija case you would
1 refer to the Statute, Article 7(1) and 7(3), but you
2 provide no further details in that respect. And in the
3 Kolundzija case, in paragraphs 16 and 17, you mention
4 certain things, but could you go in more detail, to
5 tell us in more detail how you envisage to present
6 evidence regarding the superior authority, and
7 specifically in Counts 1 to 3 of the indictment. Could
8 you assist us with some additional information,
9 Mr. Niemann?
10 MR. NIEMANN: Certainly, Your Honours. As I
11 say, when we present our pre-trial brief we will expand
12 on this, and during the course of the opening we'll
13 expand upon it a little further.
14 But perhaps if I can take Your Honours to
15 paragraph 23 of the indictment of the accused Dosen,
16 and 22 of the Kolundzija indictment. Paragraph 23,
17 dealing with the Dosen indictment, is a preface to
18 Counts 1, 2, and 3. And the evidence that the
19 Prosecution will bring at trial and will refer to again
20 in our pre-trial brief and will become much more
21 detailed as we go, will establish what we say there,
22 that this accused was a shift commander in the Keraterm
23 camp; that this person, this accused, had the authority
24 to alter the conditions of confinement that existed in
25 the Keraterm camp during the times he was on duty.
1 So we're saying that while he was there, he
2 could do things to affect the circumstances and
3 conditions that operated upon the detainees. He had
4 the authority to control the conduct of the guards
5 assigned to his shift and to prevent or control the
6 conduct of visitors to the camp. He had the authority
7 to grant the prisoners more freedoms and rights within
8 the camp, including access to potable water, reasonable
9 living conditions, and hygienic standards, and contact
10 with their family or friends to receive clothing,
11 hygienic supplies or food and medicine. In addition,
12 as a policeman on active duty, he had an independent
13 duty to uphold the laws in force.
14 Now, Your Honours, this is again just a
15 summary form of what the Prosecution will prove in much
16 greater detail at trial. We're not seeking to prove it
17 now. We wouldn't want to tie Your Honours with graphic
18 detail of evidence, which we may or may not use coming
19 to trial, in attempting to establish this at this point
20 as if we believed that Your Honours were going to go
21 away and retire, read the indictment, and come back
22 with your verdict. We don't believe that's what Your
23 Honours are going to do, and we don't believe, Your
24 Honours, that it assists anyone, at this point, for us
25 to do that. That's not the purpose of an indictment.
1 What we've said here must be proved. At the
2 end of the day, I'm sure Your Honours will sit down and
3 tick off the various things that we said would be
4 proved. And if they're not proved, that may or may not
5 be fatal to the Prosecution case.
6 I don't know whether that assists Your
8 JUDGE BENNOUNA: [Interpretation] You also
9 quoted paragraph 23 -- sorry, paragraph 22 with respect
10 to Mr. Kolundzija. It seems to me that what you said
11 does not really touch on Articles 7(1) and 7(3),
12 because these are legal points rather than, say,
13 anything -- whether they were in a position to know
14 anything of what was going on. In other words, you're
15 referring to these two paragraphs, 22 and 23, you say
16 that they had legal authority, that they were in
17 control of the guards, but that does not quite
18 correspond to what is stated in Article 7(1) and 7(3)
19 of the Tribunal.
20 MR. NIEMANN: Perhaps if I could just say
21 this first. The allegations that we make in paragraphs
22 22 and 23 are no more than that. They are
23 allegations. We are not seeking to prove paragraph
24 7(1) and 7(3) by these paragraphs. We will do that, we
25 undertake to do that, and we'll do it at trial. But we
1 are not seeking to prove it in the indictment.
2 We are not asking Your Honours to now find a
3 prima facie case for the Prosecution before you've
4 heard the evidence. We will ask you to do that after
5 we have tendered our evidence.
6 I'm also directed, Your Honours, to further
7 paragraphs, 16 and 17, which I won't go through and
8 read in detail, but again go to the Article 7(1) and
9 7(3) of the Statute.
10 To do it any other way, Your Honours, would
11 be to turn the whole process on its head, for the
12 Prosecution to present its whole case in the
13 indictment. There would be nothing more to do. But
14 what we say in the indictment is not the evidence.
15 It's merely the allegations.
16 JUDGE BENNOUNA: [Interpretation] Thank you,
17 Mr. Niemann.
18 JUDGE MAY: We must move on from the
19 indictment, Mr. Vucicevic. We've got several other
20 matters to deal with --
21 MR. VUCICEVIC: Your Honours, I would beg for
22 your indulgence just for 30 seconds.
23 JUDGE MAY: All right. Thirty seconds.
24 MR. VUCICEVIC: Mr. Niemann has said, in the
25 end of his responses, the Prosecutor is not asking the
1 Trial Chamber to present the primae facie case evidence
2 at this stage. Whether that was his misspoke or not,
3 but that's basically what he argued. At some point he
4 has said the wider the case is, the less information
5 the Prosecution should be allowed to permit.
6 I respectfully submit that the rights of the
7 accused and the specific language in the Statute on how
8 the indictment is framed does not permit the Trial
9 Chambers to give the latitude to the Prosecutor to
10 dispense the formalities of the indictment.
11 At another point he says, in order to give
12 you ample information, Your Honours, that would tie you
13 up with the details. When the shoe is on the other
14 foot, Your Honours, we attorneys for the Defence are
15 going to be tied up without any details. Thus, the
16 formalities that are required in the Statute bind us
17 all to do our duty. And I respectfully hope that you
18 will do yours.
19 JUDGE MAY: Yes. Let us move to the next
20 motions. There are motions in respect of various
21 protective measures. Is there anything that the
22 Prosecution want to add to those?
23 MR. KEEGAN: No, Your Honour, we have nothing
24 to add to our submissions.
25 JUDGE MAY: We have the submissions of the
1 Defence in relation to that. I'll just ask the legal
2 officer a question.
3 I was inquiring what our practice was in
4 other cases, particularly Kordic, and I am reminded
5 that we took a much more restricted view of redactions
6 and non-disclosure. As is recollected, we ordered that
7 virtually all the material be disclosed, apart from one
8 or two selected witnesses, for whom particular reasons
10 You are asking in this case for a blanket
11 order, in effect, aren't you? Mr. Keegan.
12 MR. KEEGAN: Your Honour, it would in effect
13 be a blanket request for non-disclosure at this time.
14 And the request was based on what appears to be, I
15 think, recognised that it may be some length of time
16 before we actually go to trial. Of course, consistent
17 with the practice in other cases, full disclosure would
18 be made in a reasonable time prior to trial, to allow
19 the Defence to have the opportunity to fully
21 The question for us is whether that is
22 necessary now or whether it would indeed pose, in our
23 opinion, an undue risk to the witnesses, which is not
24 necessary for the Defence to investigate at this time.
25 [Trial Chamber confers]
1 JUDGE MAY: I should have said, in relation
2 to the matters on the indictment, those motions, that
3 we'll consider them, and we shall give our order when
4 we are fully constituted. Similarly, in relation to
5 this matter, we will consider it in due course.
6 Yes. Anything anybody wants to say about
7 that? Yes, Mr. Vucicevic.
8 MR. VUCICEVIC: Your Honours, I'd like to
9 make a response to Mr. Niemann's argument on the motion
10 for the protective measures.
11 JUDGE MAY: Yes.
12 MR. VUCICEVIC: You are duly cognisant of
13 your previous practices. I have read the language in
14 your order that you issued in the previous Prosecutor's
15 motion for protective order. And you have requested
16 full disclosure with specific directions to the Defence
17 on how to protect the witnesses. And I believe the
18 experience that the Tribunal has had in disclosures, in
19 communications between witnesses and various parties,
20 has been positive.
21 The Prosecutor has indicated some isolated
22 incidents, but there was no reason that Your Honours,
23 at the time that you have considered this matter,
24 without opposition from us, because we put our trust in
25 your learned opinion and experience.
1 However, in order to change this and allow
2 redaction, blanking out of the names would mean that
3 the Defence will be precluded from applying to you,
4 Your Honours, to give us permission to look and find
5 witnesses who are scattered throughout the Europe and
6 American continent. To do this 30 days before the
7 trial would be practically impossible.
8 I sincerely submit that we will obey to your
9 orders, to the last letter of your order, and even take
10 a stricter approach. But we would like the permission,
11 on a case like this, which is insufficiently supported
12 with specific facts, to look for the witnesses and to
13 find out what they mean when they said some of those
14 facts are indeed ambiguous and controversial statements
15 the Prosecutor has.
16 In order to accommodate the Prosecutor on
17 this, would be to blindfold the justice, to tie our
18 arms, and to not allow us to present you the other side
19 of the case. Thank you.
20 JUDGE MAY: Yes.
21 MR. PETROVIC: [Interpretation] Very briefly,
22 please. I would just like to recall something. It is
23 certainly rather not necessary at all for me to remind
24 this Trial Chamber on the order to protect witnesses
25 and victims in the Kvocka case. It is unclear why --
1 what is being done now is far more restricted. Damir
2 Dosen's Defence would like to suggest an approach that
3 would be less restrictive, more selective. So perhaps
4 40-odd witnesses could be questioned. In the
5 Prosecutor's case, this is certainly insufficient.
6 Then also the accused, Damir Dosen, will be prepared,
7 within a given amount of time, to give a comprehensive
8 interview to the representatives of the OTP.
9 How can he do this, if he does not have the
10 basic information needed, the basic elements that are
11 contained in the statements that charge him with all
12 those alleged crimes? Thank you.
13 JUDGE BENNOUNA: [Interpretation]
14 Mr. Petrovic, how much time do you need before the
15 commencement of the trial, so that you would be in a
16 position to have all the elements of the evidence which
17 you need?
18 MR. PETROVIC: [Interpretation] The Defence
19 would, of course, like to have this as early as
20 possible, perhaps at this point in time to have all
21 these elements concerning all the witnesses. And we
22 are aware of the fact that this will not be possible in
23 each and every case. If the Trial Chamber accepts this
24 more restrictive approach that is propounded by the
25 Prosecutor, we would suggest that it be a 60-day time
1 frame. However, I repeat, it would mean a great deal
2 for the Defence if this could be much earlier. Thank
4 JUDGE BENNOUNA: [Interpretation] Thank you.
5 JUDGE MAY: Thank you. The final motion is a
6 motion on behalf of Mr. Kolundzija for access to
7 certain materials from another case.
8 What the Prosecution have suggested is that
9 the proper course is to go -- is to approach the Trial
10 Chamber in the other case in order to obtain materials,
11 and not in this case.
12 Now, Mr. Vucicevic, is there any reason why
13 you can't do that?
14 MR. VUCICEVIC: Your Honour, there is no
15 reason that I couldn't do it. However, this is a case
16 where Mr. Kolundzija is charged, this is the material
17 that we are going to need, and the evidence, why we are
18 going to need this material, will be presented to you
19 in -- and if needed, we can do it in the hearings in
21 They are very pertinent, because
22 Mr. Kolundzija is a victim of his service at Keraterm,
23 just as the other people who were inmates there were
24 victims. He has suffered severe mental consequences,
25 in terms of having post-traumatic stress disorder.
1 Post-traumatic stress disorder has been litigated
2 before this Trial Chamber extensively in the Furundzija
3 case, and we would like to start our presentation from
4 the point where the other expert has left it off, and
5 not to waste judicial time by going over the materials
6 and the positions and statements that were already
8 And that is the purpose that I have directed
9 this to this Trial Chamber. With due respect, that
10 Your Honour, Judge May, was a member of the other Trial
11 Chamber, I thought there could be an inter-Chamber
12 transfer of the request, with you allowing, if you
13 would like to hear the reasons for our request, because
14 we have the expert psychiatrist examine Mr. Kolundzija,
15 and we have had professional opinion that he has indeed
16 suffered from post-traumatic stress disorder, and acute
17 psychological traumatic disorder from the night of July
19 Therefore, in order to properly present that
20 aspect of the case, we would need this information.
21 JUDGE MAY: Thank you. We'll consider the
22 right approach.
23 Yes. Moving on to some general matters. The
24 first is this, to give some idea of the scope of this
25 case, as the Prosecution envisages at the moment; the
1 number of witnesses, a time estimate and that sort of
2 thing. It would be helpful for planning the case.
3 MR. NIEMANN: At this stage, Your Honours, I
4 think we are contemplating a case which would involve
5 60-plus witnesses. And bearing in mind the amount of
6 time it takes to deal with witnesses at trial, would be
7 upwards of eight weeks, the Prosecution case. But we
8 are not fully precise on that, Your Honour, because the
9 numbers may vary slightly. But that's the ambit of the
10 case, as we see it at this point.
11 JUDGE MAY: And, as far as disclosure is
12 concerned, exculpatory and any other material, is that
13 in hand?
14 MR. NIEMANN: We have complied, Your Honours,
15 with the -- obviously, the material has been disclosed
16 in accordance with the Rules. The issue of Rule 68 is
17 actively under consideration, and any matters coming up
18 in that regard are being set aside for that purpose.
19 We would envisage, in due course, Your
20 Honours, that under Rule 66(A)(ii), as we get closer to
21 trial, perhaps orders will be made in relation to
22 disclosure there. And that, of course, is
23 -- at this stage we are dependent upon the orders of
24 Your Honour concerning protective measures.
25 JUDGE MAY: Thank you. We have to fix a date
1 for the next Status Conference, and we shall do so.
2 The 22nd of May. That's a Monday. Or earlier, if so
3 ordered. It depends upon the progress of the Trial
4 Chamber. But for the moment we'll make an order for
5 the 22nd of May to comply with the Rules. If possible,
6 we shall hold, or I shall as Pre-Trial Judge, hold an
7 earlier conference. But that depends upon other work
8 in other cases.
9 Finally, the Rules require the Chamber to
10 hear any submissions which the accused or those acting
11 for them wish to raise in relation to detention or to
12 their cases.
13 Are there any such submissions on behalf of
14 the accused or by the accused, anything they'd like to
15 raise about their conditions of detention or the
17 Mr. Vucicevic?
18 MR. VUCICEVIC: Your Honour, you mentioned
19 anything about detention or the case of the accused. I
20 do not -- I would like to ask you for a clarification.
21 Does that mean also with what you have just mentioned
22 with scheduling of the pre-trial -- of the next
24 JUDGE MAY: If you want to say something
25 about that, do. What do you want to say?
1 MR. VUCICEVIC: Yes, Your Honour. We would
2 respectfully ask that the next conference be scheduled
3 on much shorter notice, if possible within the next 60
4 days, because we would like to see this case move much
5 faster so to give the meaning to the word of a speedy
6 trial as one of the rights of the defendants. And I'm
7 saying this not with any scintilla of disparagement in
8 my wording, because I know that this Trial Chamber is
9 labouring hard under the cases that are on its docket.
10 But at the same time, we have heard here today that
11 these essential facts are rather missing here, and what
12 Prosecutor has asked you, to give him a latitude and
13 proceed to a trial brief instead of having a sufficient
15 Prosecutor, he is not disclosed any --
16 JUDGE MAY: Mr. Vucicevic, let me interrupt
18 MR. VUCICEVIC: Yes, sir.
19 JUDGE MAY: I mean, these are arguments which
20 we've already heard. We hear what you say. Of course
21 it is matter of importance that these cases, all of
22 them, come to trial. You rightly refer to the other
23 cases on our docket. We are as anxious as anybody that
24 these matters do come to trial soon, and we are working
25 to that end. That's why I specifically said that if
1 it's possible to have an earlier date, we will fix one,
2 but it's necessary, at this stage, to have an outside
3 date in case circumstances prevent us having an earlier
4 conference. So we have your point on that.
5 MR. VUCICEVIC: I do thank you, Your
7 JUDGE MAY: Anything else that anybody wants
8 to raise?
9 MR. VUCICEVIC: Prosecutor -- I don't have my
10 copy of the Rules of Procedure and Evidence in front of
11 me -- but has mentioned disclosure. I would ask you to
12 set a date by which, as the Rule reads, the exculpatory
13 evidence must be disclosed as soon as practicable. And
14 if there is any exculpatory evidence to be presented
15 and disclosed to us within the next 15 days, 30 days
17 JUDGE MAY: That again is something that
18 we're going to have to consider in due course.
19 Now, is there anything that the accused want
20 to raise about anything else, other than matters that
21 have been raised, about their detention or their
22 cases? Anything, Mr. Kolundzija or Mr. Dosen, you want
23 to say? No. Thank you.
24 Very well. We'll adjourn now.
25 --- Whereupon the Status Conference
1 adjourned at 4.25 p.m., to be
2 reconvened on Monday, the 22nd day of
3 May, 2000.