Tribunal Criminal Tribunal for the Former Yugoslavia

Page 320

1 Friday, 23 June 2000

2 [Motion Hearing]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 9.40.

6 JUDGE MAY: Yes, let the Registrar call the

7 case.

8 THE REGISTRAR: Good morning, Your Honours.

9 Case number IT-95-8-PT, the Prosecutor versus Damir

10 Dosen and Dragan Kolundzija.

11 JUDGE MAY: Let the transcript reflect that

12 the case is late in starting ten minutes because

13 counsel was not properly robed and robes had to be

14 provided. That was Mr. Vucicevic.

15 Mr. Vucicevic, you've been here long enough

16 to know that you have to have robes before you appear

17 in this Court. Would you kindly equip yourself with

18 them. You have been doing cases here, to my knowledge,

19 over two years and you should have robes. Yes, we'll

20 hear the appearances.

21 MS. HOLLIS: Good morning, Your Honours,

22 Brenda Hollis, Kapila Waidyaratne, and Daniel Saxon

23 appear on behalf of the Prosecutor.

24 MR. VUCICEVIC: Dusan Vucicevic, appearing

25 for the accused Dragan Kolundzija from Chicago,

Page 321

1 Illinois, United States. Your Honour, if I just

2 make -- address the point that you just made.

3 JUDGE MAY: No.

4 MR. VUCICEVIC: I do apologise for not having

5 had a robe. I will buy one. And I had rented a robe

6 when I was on a previous trial so therefore, you know,

7 I didn't have one available. I was borrowing one so

8 far, thank you.

9 JUDGE MAY: Yes.

10 MR. PETROVIC: [Interpretation] Your Honours,

11 I am Vladimir Petrovic, lawyer from Belgrade, appearing

12 here for Damir Dosen.

13 JUDGE MAY: This is a hearing for a series of

14 motions. First of all, a motion, motions rather, in

15 relation to the amended attachment to the indictment.

16 Secondly, a Prosecution motion for admission of

17 documentary evidence. Thirdly, a Prosecution motion

18 for judicial notice. Fourthly, a motion for severance

19 of the indictment on behalf of Mr. Kolundzija.

20 Today is set aside for oral argument in

21 relation to the motions. These arguments can be short

22 because there have been extensive written submissions

23 in relation to all the motions which we have to deal

24 with and the Court has read them. So anything said

25 today should be supplementary to what is in the written

Page 322

1 submissions, and there is not to be any repetition.

2 Now, it may be convenient to deal with the

3 matters in this way, first of all, to deal with the two

4 motions concerned with the indictment, that is, the

5 motions in relation to the attachments, and then to

6 deal with Mr. Kolundzija's motion for severance.

7 Starting, then, with the motions in relation

8 to the attachment, we have before us submissions on

9 behalf of both accused. We have the Prosecution's

10 response, and a Defence reply to that response.

11 Now, as I said, those documents set the

12 arguments out very fully, and I shall call on the

13 Defence first to see if there is anything they want to

14 add to supplement to the argument and submissions.

15 Mr. Petrovic, I think you come first on the

16 indictment now. Is there anything you'd like to add to

17 what has already been argued?

18 MR. PETROVIC: [Interpretation] Your Honours,

19 I endeavoured to explain clearly the position of Damir

20 Dosen's Defence in our submissions and to indicate what

21 I believe are omissions of the Prosecution. However,

22 while risking to repeat myself, I believe it is very

23 important what the Chamber needs to bear in mind is

24 Count 4 to 7 of the indictment; that is, in what does

25 an attachment relate to Counts 4 to 7 of the

Page 323

1 indictment? These are events as of the 25th of June or

2 around the 25th of June whereas in the counts we have

3 the events which cover the whole period of the Keraterm

4 camp.

5 It contradicts the text of the indictment so

6 will you please bear that in mind when you rule on our

7 motions regarding the contents and formatting to the

8 amendment of the indictment. I have already put

9 everything else I have to say in written form, so I do

10 not want to speak any further.

11 JUDGE MAY: Thank you, Mr. Petrovic, for

12 dealing with the matter so succinctly. So that we have

13 your arguments in mind, what you are really saying is

14 this, as I understand it, is that the amended version

15 of the attachment, in effect, amounts to an amendment

16 of the indictment and, accordingly, the Prosecution

17 should follow the amendment procedure. Is that right,

18 that's the central submission which you make?

19 MR. PETROVIC: [Interpretation] I do

20 apologise, I have to read the transcript because I

21 think the interpretation it was not adequately said

22 what you just told us.

23 Two things are basic in my submission, the

24 first thing is the manner in which the attachment was

25 incorporated in the indictment so this is something

Page 324

1 that can be done only by the Prosecutor on the basis of

2 the decision of the Chamber, this is the first thing.

3 And the second is that the attachment is much longer

4 than Counts 4 to 7 of the indictment. They cover

5 events which go far beyond Counts 4 to 7 of the amended

6 indictment. I believe it's paragraph 25 of the amended

7 indictment. That is, it covers events from the

8 beginning of June to the end of July and even early

9 August whereas paragraph 25 of the indictment says

10 clearly that the event concerned happened on or around

11 the 25th of June, 1992.

12 So I think this is a major shortcoming and

13 there are quite a number of other inconsistencies which

14 are listed in my written submission and I should like

15 to ask the Chamber to bear in mind these things when

16 considering the reply to our motions.

17 I am not sure whether I understood your

18 previous question, so if you want, will you please be

19 so kind as to repeat it, and then I'll try to be even

20 more clear.

21 JUDGE MAY: What you are saying, as I

22 understand it, is that the Prosecution should be

23 applying to amend the indictment, and therefore should

24 follow the amendment procedure, and that would allow

25 you, in due course, to put forward various motions

Page 325

1 about the amendment. I know that you also say that

2 there's a failure to clarify, and you also say there

3 are new factual allegations and also a new type of

4 responsibility is introduced. But in effect, the

5 centre of your submission is that this amounts to

6 amendment and therefore that procedure should be

7 followed. And that's what you're asking us to do, to

8 say the indictment should be amended.

9 MR. PETKOVIC: [Interpretation] Yes, indeed,

10 Your Honour. You're quite right. The procedure of

11 indictment amendment, as prescribed by the Rules, was

12 not complied with. In your decision of the 10th of

13 February, you ordered the Prosecution to incorporate

14 the attachment -- to incorporate the attachment into

15 the indictment, that the only way to do that was to

16 incorporate the amendment into the indictment, and it

17 was not done in this case.

18 JUDGE MAY: Thank you.

19 MR. PETKOVIC: [Interpretation] Thank you.

20 JUDGE MAY: Yes, Mr. Vucicevic.

21 MR. VUCICEVIC: Your Honours -- Your Honour,

22 Judge May, I adopt your nutshell summary of

23 Mr. Petrovic's argument as the essence of Kolundzija's

24 Defence opposing the amended attachment. However,

25 there is a factual setting that came up in the

Page 326

1 Prosecutor's response which needs emphasising, because

2 the Prosecutor is casually considering that the

3 attached amendment charges additional 25 murders on the

4 morning on 25th of July.

5 That fact is not contained in the amended

6 amendment -- in the amended indictment. That factual

7 setting was contained in the original indictment. That

8 factual setting has been dealt with in some of the

9 pleadings prior to the amendment; therefore, the very

10 fact that there is 25 victims that are nameless, and in

11 order to accord them due respect and dignity, we would

12 demand that the new amendment should be set. At the

13 same time, to accord justice to my client, who has not

14 been responsible for anything, in particular for this

15 act, because by Prosecution's very own witness

16 statements that have been disclosed to us early on in

17 the material which was appended to the confirmed

18 indictment, the Prosecutor's witness says that did not

19 happen on my client's shift.

20 A second point, Your Honour, is a theory of

21 the case of common conduct. And theory of the case of

22 common conduct has not been at all dealt in a manner

23 that you have requested in your order, to delineate the

24 nature of the conduct and specify the

25 responsibilities. So these two men are charged for all

Page 327

1 that happened in Keraterm. Just using sheer logic, if

2 that is correct, one of them should be discharged

3 today, because they were not on duty at all times

4 together. How could we defend against such an

5 indictment? How could we prepare?

6 Your Honours, and most importantly, the

7 amended attachment, if you take it and look at it,

8 please, contains, in the last column, named criminal

9 responsibility, delineation of responsibility. And all

10 of them refer to the Article 7(1) and (3), and none of

11 them refer to the Article 5. So if the Prosecutor had

12 followed your orders, by implication it seems that

13 indictment pursuant to the Article 5 has been

14 abandoned. Counts have been abandoned. Or when we

15 connected with our later motions for separation of

16 counts, this is exactly what we are talking. We are

17 talking of separation of counts, and count -- and any

18 responsibility pursuant to count 5 is non-existent

19 here. But I will have more about that later. Thank

20 you, Your Honours.

21 JUDGE MAY: Thank you.

22 Yes, Ms. Hollis.

23 MS. HOLLIS: Thank you, Your Honour. A few

24 very brief points.

25 Regarding the point made by counsel for

Page 328

1 accused Dosen, to the extent the counsel argues about

2 other inconsistencies in the schedule, we rely on our

3 brief and we disagree with their position. However, in

4 regard to the point that counsel makes about counts 4

5 to 7, we agree with counsel that the schedule goes

6 beyond the scope of paragraph 25, counts 4 to 7, and we

7 agree that in so doing it went beyond the scope of what

8 Your Honours ordered us to do. We do not seek to

9 amend, to enlarge the scope of counts 4 to 7, and we

10 will clarify the particulars in regard to paragraph 25

11 only. So on that point only, we do agree with counsel

12 for accused Dosen.

13 In regard to arguments made by counsel for

14 accused Kolundzija, we suggest in part those arguments

15 were arguments on the facts of the case, and this is

16 not the proper forum for that. In relation to the

17 comments regarding the schedule and the 25 July

18 murders, unless there are questions, the Prosecution

19 believes it has adequately dealt with that in the

20 submission made in writing to the Chamber.

21 In regard to the attacks on the doctrine of

22 common purpose, the Prosecution also relies on its

23 written submissions regarding those attacks. We will

24 point out to Your Honours, we believe the comments made

25 today continue to manifest a misunderstanding and a

Page 329

1 misapprehension, and confuse the crimes alleged under

2 Articles 3 and 5 with modes of liability that are set

3 forth in Articles 7(1) and 7(3). Your Honour's order

4 dealt with modes of liability under Article 7(1) and

5 7(3). Therefore, it would have been inappropriate for

6 us to put Article 5 or Article 3 in the added column.

7 So we believe again the argument made by counsel for

8 accused Mr. Kolundzija misapprehends the order and

9 misapprehends the subject matter of Article 7 compared

10 to the subject matter of Articles 3 and 5.

11 Unless there are questions, Your Honour, we

12 have no further submissions.

13 [Trial Chamber confers]

14 JUDGE BENNOUNA [Interpretation]

15 Mr. Vucicevic, I'd like to ask you the following: Do

16 you accept what the Prosecutor has just said, which is

17 a mere reading of a professional lawyer of the Statute

18 of this Tribunal? In other words, on the one hand, you

19 have the definition or characterisation of crimes, as

20 is the case in statutes in many jurisdictions, criminal

21 jurisdictions; and on the other hand, there's the type

22 of individual liability, 7(1) and 7(3), which apply to

23 any of the crimes concerned and characterised.

24 Mr. Vucicevic, did you not confuse the two

25 types of concepts: on the one hand, the

Page 330

1 characterisation of crimes, and, on the other, the

2 individual criminal liability, which are two different

3 matters? Indeed, we do have in our Statute Article 5

4 which you mentioned, Article 3 as well, Article 2,

5 which define crimes under the jurisdiction of this

6 Tribunal, and then we have the type of individual

7 criminal responsibility or liability, which are two

8 different things. This was my first question.

9 Second question. It deals with the common

10 purpose doctrine. This matter does not really concern

11 the indictment. It does not have anything to do with

12 it inasmuch as it here revolves -- or deals with

13 arguments to be adduced in relation to the crimes

14 concerned and it relates to the type of

15 characterisation that could be given when it comes to

16 arguments. Therefore, it has nothing to do either with

17 the indictment or with the list of the crimes as they

18 are. It is a matter to be determined later. Some kind

19 of a principle of criminal law which makes it possible

20 to characterise a criminal conduct. So this does not

21 have any bearing on this matter now or does not have

22 any direct bearing on the indictment as such. So these

23 were the two questions I wanted to put to you,

24 Mr. Vucicevic.

25 MR. VUCICEVIC: Your Honour, in taking your

Page 331

1 question -- first question first, I'm fully cognizant

2 on the -- of the individual culpability under the

3 Article 7(1) and (3), (1) being the direct and personal

4 acts of the accused and 7, as you indicated in your

5 order of February 10th, acts that derive, therefore

6 derivative from his command -- however, in Article 5,

7 there are two elements of crime; one is widespread

8 persecution allegedly planned and instigated by the

9 unit of a government; and second, acts of individual.

10 Then again, it could be an individual very personal and

11 the command authority to apply those crimes.

12 So that's my argument, even though the

13 Article 7 deals with the acts that are individual

14 responsibility, the element of Article 5 also contained

15 that element because the second element is widespread

16 planned by the unit of a government committed against

17 civil population during an act of war.

18 So to me, if that is a common understanding,

19 and I would accept it. However, even though as

20 enumerated the acts, the personal acts under Article

21 7(1) and 7(3) are insufficient because they are vague

22 and do not address the points that you requested in

23 your order of February 10. That's my response to your

24 question. And it's impossible to prepare a defence

25 against it. Because in particular, my client,

Page 332

1 Mr. Kolundzija it charges him for everything that

2 happened from the beginning to very end for -- from May

3 30th through September or what actually -- you know,

4 the Keraterm disband around August 6th, so it charges

5 him for everything.

6 He was -- if he was a commander of the camp,

7 then perhaps it would have been applicable, but only a

8 part of the time he was appointed as shift commander,

9 and as such, this is vague and impossible to prepare a

10 Defence. What basically that elements we -- I

11 understand the facts are for the trial, but the facts

12 have been disclosed to us and these words have been

13 given to us.

14 The facts are the essence of everything that

15 takes place here and without looking at them, we could

16 allow the Prosecutor only on extremely weak facts

17 against my case to proceed or the trial that is going

18 to be perhaps six months long and that's why looking --

19 having an eye on the facts and interpreting procedure,

20 we will arrive to the substance in justice.

21 The answer to your second question, Your

22 Honour, I -- if you would kind of clarify it because,

23 with all due respect, I did not fully understand it.

24 If you would just clarify your question a bit.

25 JUDGE BENNOUNA: [Interpretation] Well, it

Page 333

1 was a very simple question. The indictment has to

2 specify as a rule what the type of crime is, what the

3 individual criminal liability is of a given person who

4 might have committed such a crime. The doctrine of

5 common purpose, in other words, the fact that an

6 individual has participated in the commission of an act

7 together with other individuals with a common purpose

8 of criminal type; that is, a doctrine which is not

9 connected, not directly connected with the indictment.

10 It is a characterisation of a contact which can be

11 argued by either party at trial. It has no direct

12 bearing and does not derive directly from the

13 indictment. That was the nature of my question.

14 MR. VUCICEVIC: Your Honour, I agree with you

15 in part, and disagree in part. I agree with you in

16 part that the doctrine that could be argued by both

17 parties and that derives -- the implication of the

18 doctrine derives from the presentation and finding of

19 fact by the -- you respected, Honourable Judges.

20 However, when it comes to this case in

21 particular, the doctrine of common purpose sways across

22 and puts the balance of the case within the purview of

23 Article 5 that all what had happened there was a common

24 purpose and therefore responsibility while the doctrine

25 of common purpose is recognised by this Tribunal and by

Page 334

1 the appellate decision in Tadic distinguishes three

2 different varieties, modalities of the common purpose.

3 And looking at the indictment and what does

4 it charge under Article 5 and Article 7. And having

5 doctrine of common purpose some place in between, I

6 believe the doctrine of a common purpose must be or at

7 least factual situation underpinning the doctrine of

8 common purpose must be delineated in the indictment.

9 Thank you, Your Honour.

10 JUDGE MAY: Ms. Hollis, there is just one

11 matter, so that I have your concession right, this is

12 in relation to Mr. Dosen, paragraph 25 of the amended

13 indictment, and what you're saying is that you are

14 prepared to clarify that.

15 MS. HOLLIS: That's correct, Your Honour. In

16 the schedule, we went beyond that one incident and we

17 are prepared to clarify that and conform to the order

18 which would have limited us to that one instance.

19 JUDGE MAY: Yes, very well. Thank you very

20 much. We'll consider this matter and give our ruling

21 in due course.

22 The next motion is Mr. Vucicevic's in

23 relation to severance, and we have your motion,

24 Mr. Vucicevic, of the 22nd of May and we have the

25 Prosecution response of the 5th of June.

Page 335

1 Now, is there anything you would like to add

2 today?

3 MR. VUCICEVIC: Your Honours, I would just

4 like to clarify the -- our submissions because indeed

5 there is a ground for severance of counts because the

6 severance of counts would be the severance of counts

7 based on the Article 5 and based on the 7.

8 The Prosecutor had used what had happened in

9 Prijedor or what the citizens of Prijedor of ethnic

10 Serbian ethnicity have done to citizens of nonethnic to

11 bootstrap, basically, nonexistent evidence of what my

12 client had done to his inmates at Keraterm. And

13 considering the basic fairness, if there is no evidence

14 as to one count or there is very limited evidence as to

15 one count which is of -- which would preclude a long

16 and drawn out trial on another count, because indeed,

17 in count number 5, the Prosecutor must prove both

18 elements, personal acts to further and promote

19 persecution of the ethnicity. But this has to be done

20 by personal acts.

21 JUDGE MAY: So that we have it --

22 MR. VUCICEVIC: So therefore --

23 JUDGE MAY: Just a moment. So that we have

24 your submissions, you're saying that the trial should

25 take place on the events in the camp first, dealing

Page 336

1 with the personal, alleged personal responsibility of

2 your client.

3 MR. VUCICEVIC: Yes, Your Honour. That is

4 very practical.

5 JUDGE MAY: There should be a trial on that

6 and that the Trial Chamber should make a ruling, do I

7 understand this right? If there were no evidence, that

8 would bring the trial to an end without the necessity

9 of calling any evidence on the more widespread aspects

10 of the allegations.

11 MR. VUCICEVIC: Yes, Your Honour, that would

12 be, you know, our proposal to you. Because, you know,

13 looking -- because now we have a full disclosure,

14 almost a full disclosure, and what I have found there

15 and we are prepared in chambers to give you offer of

16 proof of defence evidence which is overwhelming.

17 I am personally overwhelmed what had

18 happened, and I would not want to kind of expose this

19 Chamber to unnecessary waste of time because this is --

20 this is not going to turn on what witnesses are going

21 to testify to what had happened in the city and what

22 had happened, but it's going to turn what were the acts

23 of the accused.

24 If there are no culpability, then your --

25 this is not a jury trial where we are going to say

Page 337

1 well, jury here has to understand the background. You

2 have reviewed the case. You have sat on judgements in

3 other matters concerning this occurrence of fact so

4 this would be rather expeditious.

5 Thank you, Your Honours.

6 JUDGE MAY: Mr. Petrovic, do you want to say

7 anything about this?

8 MR. PETROVIC: [Interpretation] No, Your

9 Honours. We have nothing particular to say with regard

10 to this motion, and it will be your ruling regarding

11 the motion of Mr. Kolundzija's Defence.

12 JUDGE MAY: Thank you. Ms. Hollis, is there

13 anything you want to add to your response?

14 MS. HOLLIS: Your Honour, very briefly, the

15 Prosecution again submits that counsel is

16 misapprehending the legal import of Articles that

17 charge crimes and Article 7 that discussions

18 characterisations of individual criminal

19 responsibility, that is to say, modes of liability. In

20 terms of this bifurcation that is recommended, we ask

21 Your Honours what kind of rulings would you make? You

22 can't find him guilty of anything or not guilty of

23 anything assessed under Article 5 after we hear about

24 the camps only because in order to find someone guilty

25 of any of the substantive offences under Article 5, you

Page 338

1 also have to find that common elements exist, the same

2 is true with Article 3.

3 So we suggest that there would be no savings

4 of anything to do what the accused suggests because the

5 Chamber would be in no position to make any rulings.

6 Secondly, even if, somehow, some limited

7 rulings were to be made, then we bring all the same

8 witnesses back to discuss the other elements of the

9 crimes that were charged. So we suggest that again,

10 this motion should be denied.

11 Thank you, Your Honour.

12 JUDGE MAY: Thank you.

13 JUDGE BENNOUNA: [Interpretation]

14 Mr. Vucicevic, I have, of course, read your submissions

15 and conclusions. It comes down to this: You say you

16 have to disassociate individual criminal liability of

17 your client, Mr. Kolundzija, from what you call the

18 derivative liability. So I don't know how that can be

19 translated into French, maybe indirect liability,

20 "responsibilite indirect", but the first question I

21 want to put to you is as follows: Are you not making a

22 confusion between the context of the crime and

23 responsibility? Because when there is widespread or

24 systematic attack directed against a civilian

25 population in Article 5, what we are, in fact, dealing

Page 339

1 with is the global setting, the global context which is

2 such that a person, an individual, who has committed an

3 individual act and therefore incurs individual

4 liability when it is situated in a generalised or

5 widespread attack on a civilian population is then

6 guilty of a crime against humanity and not of ordinary

7 crime.

8 So my question is: There must be some kind

9 of confusion because here we judge about the individual

10 liability of Mr. Kolundzija. We are not judging about

11 the global context. So here is my question: Are you

12 not of the view that the issue of the generalised

13 widespread and systematic attack on civilian population

14 has not already been established in the case law of

15 this Tribunal; for instance, in relation to the events

16 in Prijedor. You mentioned the Tadic case where there

17 has already been an appeal and a decision at that

18 stage. Could there not be judicial notice taken of

19 those facts? This may avoid us coming to the issue of

20 the widespread and systematic attack on civilian

21 population and if we can have such judicial notice, we

22 could save going back to all the events that have taken

23 place in Prijedor, and we could deal only with the

24 individual direct criminal liability to know whether

25 there is participation by Mr. Kolundzija or whether

Page 340

1 there is a link between Mr. Kolundzija and the events

2 in question. So this is my question.

3 MR. VUCICEVIC: Your Honour, if I were to

4 concede that the common elements of a crime, as

5 adjudicated in Tadic's, was correct, veritable and

6 just, I would be -- I would consider that I am

7 exceeding to the political expediency which is not a

8 matter for a judicial body to partake in. Neither

9 would I consider myself worthy of a counsel being in

10 front of you to suggest something like that.

11 And why am I saying this? Because Defence

12 counsel in Tadic's case, the matter that I have

13 reviewed in print and in tape entirely, has never put

14 one question in cross-examination on these matters.

15 Moreover, I have investigated these matters in a

16 previous case in detail. And there is, because Article

17 5 is asking that there is a systematic and widespread

18 attack which presumed that there was a planning for

19 such an attack. And I have found none of those

20 elements.

21 Perhaps there was -- there were allegedly

22 crimes committed, but times when, how, and how many

23 people were released from the camps and especially at

24 the beginning would not comport to those findings,

25 because if we were -- if I were to concede to something

Page 341

1 like this, I would deprive this Tribunal and I would

2 deprive the world to hear the truth.

3 However, going to the first part of your

4 question, Your Honour, is whatever had happened in

5 Prijedor concerning the common design for a systematic

6 alleged persecution would -- it's not relevant when it

7 comes to the trial of my client, because there are two

8 elements to be proven there, that he furthered that

9 persecution by his acts. If he did not further it, but

10 had resisted and --

11 JUDGE BENNOUNA [Interpretation] Sorry.

12 Excuse me for interrupting you, because we want to

13 proceed most swiftly. My question was a very simple

14 one. In order to prove that there was a link between

15 your client, Mr. Kolundzija, and the systematic and

16 widespread attack against a civilian population, we

17 must first have proven that there was such an attack,

18 that it has happened, and that there was such a

19 widespread and systematic attack on the population, and

20 only then can we move to see whether there is a link

21 between such an attack and Mr. Kolundzija.

22 So either we adduce such evidence in the one

23 and the same trial or we go from the principle that

24 there has been judicial notice as to -- to show that

25 there was such a widespread and systematic attack.

Page 342

1 That would be the starting point, and only then would

2 we see whether there was a link between your client and

3 the attack.

4 We can't go the other way around. That has

5 just been said to you. You cannot appreciate the

6 behaviour or the link between Mr. Kolundzija and

7 something that has not been established yet. That's

8 the logic about it.

9 MR. VUCICEVIC: Your Honour, I have heard

10 your opinion, but I respectfully disagree with it. And

11 I respectfully disagree because there is a burden of

12 proof on the part of the Prosecutor. The Prosecutor

13 must prove every element of crime beyond a reasonable

14 doubt. So whatever had happened in commonality in

15 Prijedor, that has to be proven by reasonable doubt,

16 just as his personal acts in furtherance must be

17 proven.

18 JUDGE BENNOUNA [Interpretation] Very well.

19 [Technical difficulty] -- of a judicial notice of those

20 facts. You are of the view that the Prosecutor must

21 adduce all evidence on all elements, must prove that

22 there was a systematic and widespread [as interpreted],

23 must have to adduce evidence as to the individual

24 criminal liability of Mr. Kolundzija. You say that the

25 Prosecutor must adduce evidence of the crime, but is it

Page 343

1 possible to disassociate the two elements by judging

2 them separately, by trying them separately?

3 MR. VUCICEVIC: Of course, Your Honour, it's

4 possible, because if Mr. Kolundzija was participating

5 in gathering the population and bringing him to

6 Keraterm, if he participated in political bodies, if he

7 participated in the military as well and the police, if

8 he volunteered for his duty, if any of those facts were

9 alleged, you would have had connection between common

10 elements and his personal activities. We only hear

11 that he was a shift commander for a certain part in

12 that. And by his acts, by the facts that were found in

13 the Prosecutor's evidence, says that he had helped many

14 and harmed none, barring the finding of fact what had

15 happened on July 24th. That's what I am driving at.

16 I'm driving at very efficient and fair. If this was a

17 jury, Your Honour, I would agree with you, but a

18 learned court like this could, you know, make a finding

19 of fact on one set of issues and then move on. Thank

20 you.

21 JUDGE MAY: Thank you, Mr. Vucicevic. We'll

22 give our ruling on this matter.

23 The next two matters concern Prosecution

24 motions, one for the admission of documentary evidence,

25 one for judicial notice.

Page 344

1 Ms. Hollis, it may be convenient to deal with

2 the admission of documentary evidence first.

3 MS. HOLLIS: Thank you, Your Honour.

4 JUDGE MAY: I should say, we've seen the

5 various submissions.

6 MS. HOLLIS: Thank you, Your Honour. We will

7 be brief on that. And my colleague, Mr. Saxon, will

8 deal with that issue, Your Honour.

9 JUDGE MAY: Yes, very well.

10 MR. SAXON: Thank you, Your Honours. Good

11 morning.

12 In this case, although the accused are

13 charged for their specific acts or omissions within the

14 Keraterm camp, the events that occurred inside the

15 Keraterm camp were inherently linked to the events that

16 were occurring outside the camp in the broader Prijedor

17 region during the relevant time period of this

18 indictment.

19 The documents offered for admission by the

20 Prosecution are relevant and probative to demonstrate

21 the existence of the common or, if you will,

22 jurisdictional elements of the crimes charged: the

23 existence of an armed conflict and the existence of a

24 widespread or systematic policy to persecute non-Serbs

25 in Prijedor in order to drive them out of that part of

Page 345

1 Bosnia during 1992.

2 In addition, the Prosecution submits that

3 these documents are relevant and probative to establish

4 the nexus.

5 THE INTERPRETER: Could the counsel please

6 slow down when reading, for the sake of the

7 interpreters. Thank you.

8 MR. SAXON: I apologise, Your Honour.

9 In addition, these documents are relevant and

10 probative to establish the nexus between the ongoing

11 armed conflict, the policy of persecution, and the

12 unlawful confinement and mistreatment of Muslims and

13 Croats in the Keraterm camp.

14 Your Honour, I think there's one document

15 that perhaps captures very well the Prosecution's

16 submissions as to relevant and probative value of the

17 entire submission. That would be document 4.25, and I

18 have made copies and brought them to the Trial Chamber

19 today. If I can ask my colleague from the registrar to

20 provide them to the Court and to Defence counsel.

21 THE INTERPRETER: Could it also be provided

22 to the interpreters, please.

23 [Trial Chamber confers]

24 MR. SAXON: Your Honours, I would be willing

25 to give my copy to the interpreter's booth.

Page 346

1 JUDGE MAY: Yes. They should have one.

2 MR. SAXON: Document 4.25 is a document from

3 July 1992, an order given by the president of the

4 Crisis Staff of Prijedor saying that all prisoners who

5 are confined in the Omarska and Keraterm camps and who

6 are expected of being involved were being involved in

7 the armed rebellion should also be dismissed from their

8 employment. Your Honour, this document, as do many

9 other documents, in the Prosecution's submission,

10 establishes that the Keraterm inmates were subjected to

11 economic persecution based on their unlawful

12 confinement in the Keraterm camp. And this unlawful

13 confinement, as other documents demonstrate, was itself

14 the product of the intent to discriminate against

15 Muslims and Croats and to cleanse the Prijedor region

16 of its non-Serb population.

17 So as you read these documents, the

18 relevance, the probative value, the indicia of

19 reliability is present on its face. These documents

20 begin to talk to each other and speak to each other.

21 And based on the Tadic decision on the Defence motion

22 on hearsay from the 5th of August, 1996, as well as a

23 decision from our Appeals Chamber in the Aleksovski

24 case from February 1999, the Prosecution would submit

25 that they're admissible at this stage of the proceeding

Page 347

1 outright.

2 Should the Trial Chamber decide that these

3 documents should not be admissible outright,

4 alternatively, the Prosecution suggests that if the

5 Defence can make, or chooses to make, specific

6 supportable challenges to the authenticity of

7 individual documents, the Defence could do so at trial,

8 and the Prosecution could be permitted to respond to

9 these challenges regarding authenticity during its

10 rebuttal case. And thus at the end of the trial, the

11 Trial Chamber could give each document the evidentiary

12 weight that the Trial Chamber feels the evidence

13 deserves.

14 JUDGE MAY: It's my recollection that we've

15 made that sort of order in other cases.

16 MR. SAXON: Yes, you have, Your Honour. On

17 the 17th of March, 1999, in case number IT-98-30, this

18 same Trial Chamber made a similar -- virtually the

19 identical resolution, based on the same documents, Your

20 Honour, a motion for the admission of literally these

21 same set of documents.

22 JUDGE MAY: That was Kvocka.

23 MR. SAXON: Yes, sir.

24 JUDGE MAY: Thank you, Mr. Saxon.

25 MR. SAXON: Thank you, Your Honour.

Page 348

1 JUDGE MAY: Mr. Petrovic, you've heard a

2 similar order, as mentioned just then by Mr. Saxon, was

3 made in another case by this Trial Chamber. Is there

4 any reason that we shouldn't make a similar order? The

5 effect of it would be -- of course, as you know,

6 hearsay is admissible in this Tribunal and has been

7 admitted in innumerable cases. Documents are, on the

8 whole, freely admitted. But clearly, if there is an

9 issue, a genuine issue as to authenticity or

10 reliability, or indeed relevance, then that is

11 something which the opposing parties should be entitled

12 to raise. So the proposed order would be to admit the

13 documents but to order that you would be at liberty to

14 challenge them on the grounds of relevance,

15 authenticity, or reliability, during the trial.

16 So as it were, the presumption is it would

17 start with the documents being admitted, but on the

18 other hand, you would have the chance, if there are

19 grounds for doing so, of challenging them.

20 MR. PETROVIC: [Interpretation] Your Honour,

21 you must have read the motion of Damir Dosen's defence

22 relative to that matter, that is, the second part of

23 that motion related to adjudicated facts, and that is

24 where we address this matter.

25 What you have said is also shown in that

Page 349

1 motion as a position of Defence. You have in mind the

2 ruling taken in the case against Kvocka and others, and

3 in a manner documents were admitted, but the Defence

4 reserved the right to, when it comes to the Defence

5 case -- Defence stage in the trial, to then challenge

6 these documents, to challenge their authenticity, and

7 present its evidence, which could then question the

8 probative value of the document that we are referring

9 to now. So the wording used in the Kvocka case with

10 regard to identical material is quite agreeable to us,

11 with, of course, this reservation.

12 Just briefly, the document which was

13 presented today, by the Prosecution today, is one of

14 the rare documents, if not the only document, which

15 establishes any kind of relationship between and link

16 between Keraterm and Damir Dosen. That is, almost all

17 the documents are documents about which the Dosen

18 accused knows absolutely nothing or speak about events

19 in which he did not participate in any way whatsoever,

20 so that he simply cannot pronounce himself on them,

21 because individuals and events described in them or

22 mentioned in them are completely unknown to him. So

23 that I should like to submit, as we did it already in

24 our motion, to apply this procedure with regard to the

25 documentary material proposed by the Prosecution.

Page 350

1 Thank you very much.

2 JUDGE MAY: Any challenge, of course, is not

3 limited to the calling of evidence. A challenge can be

4 made, and probably should be made, if there is one, by

5 way of cross-examination, if there is a relevant

6 witness who can deal with the points raised.

7 MR. PETKOVIC: [Interpretation] Yes, indeed,

8 Your Honour. Quite so.

9 JUDGE MAY: Thank you.

10 Mr. Vucicevic.

11 MR. VUCICEVIC: I will start with your -- the

12 latest comment, Judge May. Because if there is a

13 relevant witness, then the document should be

14 introduced to the relevant witness, because otherwise

15 it puts a burden of proof on the Defence to search for

16 the relevant witnesses that are more -- that are very

17 likely to know the content of the Prosecutor's

18 document.

19 That's why, in the alternative to my

20 submission, I have asked you that the Prosecutor first

21 use the witnesses as -- that are familiar with these

22 documents, to introduce them, or to use, if you decide

23 to introduce -- to allow the Pre-Trial introduction, as

24 you did in the Kvocka case, then the Prosecutor should

25 be at liberty to present the witnesses to support who

Page 351

1 could be cross-examined about the content and the

2 reliability of these documents. And on some documents

3 the Defence might be bringing the witnesses. And upon

4 the conclusion of the case, and before the closing

5 arguments, I would respectfully ask you to expunge all

6 those documents that have not been -- whose reliability

7 and weight of their evidence have not been established

8 by either direct presentation or cross-examination.

9 Therefore, we would not have 225 documents

10 which are indicating that there were political

11 decisions, for which my client knows nothing about, to

12 weigh heavily upon your decisions after the

13 Prosecutor's argument, which I surmise the Prosecutor

14 will be using all of those, you know, to present a

15 closing argument. That's why I feel there would be

16 basic prejudice. So a little bit of compromise, I

17 think that would move us within the confines of the

18 facts of this case. That is why this case is different

19 from Omarska; therefore, your ruling should be so

20 tailored. Thank you, Your Honour.

21 JUDGE MAY: Thank you.

22 JUDGE BENNOUNA [Interpretation]

23 Mr. Vucicevic, in what you have just said, there is

24 inevitably -- there are inevitably two types of

25 documents in relation with the type of crimes

Page 352

1 concerned, the two types we have just mentioned: The

2 widespread and systematic type of an attack and the

3 link between such an attack and the accused. There are

4 two types of documents. There are documents which may

5 be of a general nature as to the context in order to

6 lay the foundations of the context, the setting, and it

7 is outside the camps. The general setting in which

8 such criminal conduct was carried out. And then there

9 are documents which have a direct bearing -- a direct

10 relation to the accused, which may show his

11 responsibility directly, and that has to be confirmed

12 indeed by witnesses to be called during

13 examination-in-chief or cross-examination.

14 Do you not think that we should make such a

15 distinction? We have documents of a general nature,

16 establishing simply the setting or the context. Such

17 documents do not need witnesses to be called for direct

18 confirmation. But the authenticity of such documents,

19 of course, if there is such indication, could always be

20 challenged. So this was my question to you regarding

21 these two types of documents.

22 MR. VUCICEVIC: Your Honour, I have to answer

23 this by using the Statute. I think Article 21 of the

24 Statute guarantees the accused confrontation of the

25 evidence to be presented against him. Whether that

Page 353

1 evidence is directed on the Article 7 and the Article 5

2 is still irrelevant because he has to have opportunity

3 to cross-examine it, to challenge the weight of that

4 evidence. Not the authenticity. We have more or less

5 conceded authenticity for the purposes of pre-trial

6 admission. However, for the weight of the evidence,

7 because if we concede authenticity to be commingled

8 with the relevance and proof of the weight of that

9 evidence, if that evidence remains unchallenged on the

10 docket, then we have violated Article 21.

11 And I'm merely trying to assist this Trial

12 Chamber to separate authenticity from our right to

13 cross-examine the accuser. Even the document -- this

14 accuser against my client. Even if that's background

15 fact, how inaccurate. Somebody else did it, not him.

16 But indeed, this is a grave accusation. Within the

17 confines of sentencing, which we never think that we

18 will get to, but -- based on our evidence. But even

19 within the confines, because we have to think about

20 this. So therefore we have to be given a chance to

21 cross-examine this. And it is possible.

22 There is five years that the war has seized,

23 and motions have subsided, but there are still a few

24 that think that wars should be won in the courtroom and

25 not in the battlefield, but we can separate them and we

Page 354

1 can get the people to testify. Because it would please

2 me to the utmost, in my professional career, to bring

3 you the evidence upon which you can make a decision

4 that's worthy of this Tribunal, a decision on this case

5 and not on Tadic's case, because it was too close. I

6 will get you the evidence from the attorneys in that

7 case what kind of difficulties they had. That's why

8 that was a hollow defence.

9 [Trial Chamber confers]

10 JUDGE ROBINSON: Mr. Saxon, why should these

11 documents be admitted now and as against being admitted

12 during the case when the evidence is being presented?

13 MR. SAXON: For the purpose of expediting the

14 trial, Your Honour.

15 JUDGE ROBINSON: But that expedition is one

16 matter. The general achievement of justice is also of

17 paramount importance and this is the point which

18 Mr. Vucicevic has been making.

19 MR. SAXON: Your Honour, that's correct, Your

20 Honour. If I might respond to one of the points that

21 Mr. Vucicevic just made. Mr. Vucicevic sited Article

22 21. I believe he's referring to Article 21(E)

23 regarding the right of accused in this Tribunal to

24 cross-examine witnesses who testify against them.

25 Your Honour, it's the Prosecution's

Page 355

1 submission that there's no need to call witnesses in

2 order to have these documents admitted into evidence

3 because the relevance, probative value and the

4 reliability or if you will, authenticity is -- can be

5 seen from the face of the documents, Your Honour. So

6 we don't have, in this case, in the case of this

7 material, we don't have a confrontation problem.

8 That would be my submission, Your Honour.

9 JUDGE ROBINSON: Well, what is lost if the

10 documents are not admitted now and they are sought to

11 be adduced during the trial? I'm not clear as to what

12 is the significant gain in expedition because, in any

13 event, the Trial Chamber will have to assess the weight

14 and reliability of the evidence in the documents.

15 MR. SAXON: That's correct, Your Honour. The

16 Court's July indulgence, please.

17 Your Honour, I'm not sure if I understand

18 your specific sense of timing but again, it is without

19 trying to sound redundant, the Prosecution does not

20 intend at this time to call witnesses to lay foundation

21 for the admission of these documents.

22 JUDGE ROBINSON: Thank you.

23 JUDGE MAY: I suppose your argument would be

24 that if you are forced to call witnesses to produce

25 these 225 or whatever documents in the way which common

Page 356

1 lawyers are familiar with, a great deal of court time

2 will be taken up, possibly unnecessarily on matters

3 about which there are no dispute simply to produce

4 documents.

5 MR. SAXON: That is absolutely the

6 Prosecution's position, Your Honour.

7 JUDGE MAY: And although it's right that, of

8 course, it means that it is for the Defence to make a

9 showing as to the documents as to why they should be

10 challenged, and to that extent, it doesn't follow the

11 common law rules. But then as we have often observed,

12 we are not a common law jurisdiction.

13 Very well, we'll consider this, having heard

14 the submissions.

15 The final submissions are in relation to

16 judicial notice. Again, this is a Prosecution

17 submission. Ms. Hollis, are you going to deal with

18 it?

19 MS. HOLLIS: Yes, Your Honour.

20 JUDGE MAY: Or Mr. Saxon.

21 MS. HOLLIS: Your Honour, very briefly on our

22 motion, we have set forth our rationale in that

23 motion. We suggest that when you look at this motion,

24 you look again at the obvious which is sometimes

25 overlooked and that is Rule 94 allows an alternate

Page 357

1 means of proof, and that is proof of elements by

2 accepting facts that have been determined in other

3 proceedings.

4 There is no requirement that these facts be

5 determined at the appellate level although the majority

6 of the facts that we have provided to you are facts

7 that were set forward in the Tadic case and which were

8 adopted at the appellate level on the Tadic appellate

9 judgement. That, if you will, may give added weight to

10 the argument we make, but it is not that an appellate

11 court have ruled on the facts we are offering.

12 Rule 94 indicates that these adjudicated

13 facts may be entered to relate to matters at issue and

14 that is what we are doing. We would also ask you to

15 give particular attention to the following: The facts

16 that we are asking you to review, in particular, the

17 facts relating to the Tadic judgement adopted by the

18 Appeals Chamber relate to the same opstina during the

19 same period of time, with the same types of offences,

20 with the same theory of the case, with the same groups

21 involved. That is to say, Bosnian Serb offenders as

22 part of Bosnian Serb ethnic cleansing, and with the

23 same groups of victims, that is to say, Bosnian

24 Muslims, and Bosnian Croats predominantly.

25 In that case as well, it was noted that the

Page 358

1 camps were a part of the wider ethnic cleansing so that

2 the facts we are asking you to judicially notice are

3 directly on point in both cases.

4 Contrary to assertions by Defence counsel,

5 the Defence counsel in the a Tadic case did not accept

6 blindly the facts that were found in the Tadic case.

7 They did, through cross-examination and through putting

8 on their own evidence, contest many of the issues that

9 the Trial Chamber found, the facts that they found

10 which were later adopted by the Appeals Chamber.

11 We suggest that in at least one regard, the

12 Tadic Appeal Chamber decision is binding precedent on

13 this court. And that is to say that Tadic Appeals

14 Chamber accepted the facts found at trial in specific

15 in relation to their determination that there was an

16 international armed conflict. We have not charged

17 international armed conflict, but Articles 3 and 5 can

18 apply in either international or internal.

19 We suggest to you that the facts relating to

20 armed conflict and the existence of an armed conflict

21 have been found by the Tadic Trial Chamber in a case

22 that is sufficiently similar, that it has binding

23 effect on this Chamber unless or until one or both of

24 the accused can come forward and show why the evidence

25 in this case will be so different that this Trial

Page 359

1 Chamber should deviate from the binding precedent that

2 has been established.

3 We will also ask Your Honours to take

4 particular note of the decision that was reached in the

5 Kvocka case regarding judicial notice. We agree that

6 there were dissimilarities in that circumstance because

7 in the Kvocka case, the Defence counsel ultimately

8 agreed to 444 of the facts put forward by the

9 Prosecution. That is not the case in here.

10 However, in making its decision, the Trial

11 Chamber took note of the appeals counsel decision in

12 the Tadic case, especially paragraph 148. Paragraph

13 148 of the Tadic appeals decision is the paragraph in

14 which the Appeals Chamber accepts and relies upon the

15 facts found by the Tadic Trial Chamber.

16 The Trial Chamber in Kvocka took a

17 significant additional step which was not agreed to by

18 the parties for the accused; that is, based on the

19 judicially-noted facts, they proceeded to make findings

20 of law as to those facts and decided upon elements of

21 the offences.

22 We suggest that that rationale would apply

23 here. It is not necessary to take judicial notice only

24 when opposing counsel agree to it. You may take

25 judicial notice whether they agree or not. So we

Page 360

1 suggest it would be appropriate to take judicial notice

2 unless, and unless Defence counsel can provide you with

3 genuine ways that they intend to attack the evidence

4 relied upon by the Tadic Appeals Chamber and the

5 Celebici Trial Chamber or to show their own evidence to

6 show that those facts are no longer trustworthy facts

7 for this Tribunal to consider.

8 Until such a thing is done, we suggest the

9 better course of action would be to take judicial

10 notice of the facts that we have put forward.

11 Your Honours, if there are no questions,

12 those are the comments the Prosecution would make on

13 this motion.

14 JUDGE MAY: So what you suggest, Ms. Hollis,

15 is that we should, as it were, take provisional

16 judicial notice. We should say that while it's open to

17 the Defence to bring forward evidence or submissions in

18 relation to matters, in the absence of such

19 submissions, we would take judicial notice of the fact

20 and of the law.

21 MS. HOLLIS: Conditional judicial notice I'm

22 not sure about, Your Honour.

23 JUDGE MAY: I mean either you take judicial

24 notice or you don't. If you leave open the

25 possibility, which seems to me sensible, that the

Page 361

1 Defence should have the ability to challenge some

2 matter which you've judicially noticed, effectively you

3 are not taking judicial notice, you're saying, well, we

4 will take judicial notice unless. That's why I coined

5 the expression provisional judicial notice.

6 MS. HOLLIS: Yes, Your Honour, and I

7 certainly understand the concept you are promoting.

8 The Prosecution would suggest that in relation to that

9 concept, which we believe is a valid appellate concept

10 in that an appellate decision stands unless something

11 comes up that would materially undermine it.

12 We would suggest that perhaps with regard to

13 the impact of the timing of the trial and the calling

14 of witnesses, that perhaps the way it should be handled

15 is that by way of what is anticipated in Article 65

16 ter, and that is that perhaps the timing of that

17 portion of the Defence's, if you will, pre-trial brief

18 would be brought forward so that before the beginning

19 of the Prosecution's case, Your Honours would be and

20 the Prosecution would be provided with the Defence's

21 position as to how it would go about undermining these

22 facts and these elements, by what means and what ways,

23 which facts it would attack.

24 So that before we put on our evidence, Your

25 Honours would be able to determine if it appears likely

Page 362

1 that such an attack would be successful. And the

2 reason the Prosecution suggests that is that all of the

3 witnesses we call will have some evidence that is

4 relevant to these broader elements, if you will, to

5 these common or jurisdictional elements.

6 If we wait until the close of our case to

7 know whether we have to deal with them or not, we and

8 this Trial Chamber could be faced with recalling all of

9 these witnesses to put forward this evidence. If it

10 appears likely that the challenge the Defence would

11 make would have enough merit that you would go forward

12 with it and would thus not take judicial notice, if we

13 know that before we call our witnesses, we will elicit

14 that evidence when they are here the first time and we

15 won't have to recall them.

16 So for that reason, perhaps if the 65 ter

17 mechanism were used, Your Honours would be in a better

18 position to make a more definitive ruling on judicial

19 notice before the Prosecution commences its case. But

20 certainly, Your Honour, we are in agreement with you

21 when you say that, really, you'd have to look at what

22 showing was made to make a final decision on it. When

23 that showing should be made is the issue, I guess, that

24 the Prosecution is raising.

25 JUDGE MAY: Thank you.

Page 363

1 Mr. Petrovic.

2 MR. PETROVIC: [Interpretation] Your Honour,

3 here we have a case which I believe, should we follow

4 the course of action proposed by the Prosecution, it

5 would mean that before any evidence is brought before

6 this Tribunal, that both the accused would be

7 considered guilty.

8 When considering adjudicated facts, we have

9 several issues. There are points that need to be

10 established completely in regard of Articles 3 and 5.

11 There is a point which characterises the nature of the

12 investigation centre in Keraterm which would complete

13 and wrap up everything that concerns these two accused

14 before any evidence is brought before this Trial

15 Chamber, and that is contrary to all the rules of this

16 Tribunal.

17 We have tried to work with the Prosecution

18 and we have tried to reach some agreements with the

19 Prosecution. We can accept certain of the facts, but

20 there are a number of them that are unacceptable for

21 us. Most -- what is most unacceptable to us is the

22 fact that most of these adjudicated facts are to be

23 drawn from the Tadic case which are dated both

24 historically and legally speaking when you review the

25 entire case in its -- there was very little

Page 364

1 cross-examination regarding the facts that relate to

2 the adjudicated facts was almost nonexistent.

3 Also, the accused have to be guaranteed the

4 right to present their own evidence and that the Trial

5 Chamber weighs the relevance of the -- all the evidence

6 presented.

7 In the Kvocka case, there were some

8 adjudicated facts but they were based on the agreement

9 of the parties. There was no forcing of these

10 adjudicated facts on the Defence. We need to review

11 the -- all the facts based on the Articles 3 and 5

12 before any facts can be adjudicated.

13 The order of the presentation of evidence has

14 been -- the order of the presentation of evidence has

15 been established, and I think that both sides need to

16 present their side, and it will be the -- up to the

17 Trial Chamber to then rule even though there are a

18 number of adjudicated facts -- there are a number of

19 points that are to be adjudicated from the Tadic case.

20 We have a case that has not been finished,

21 that has not been adjudicated per se, so we cannot

22 proceed with the adjudicated facts based on that trial

23 and that is another thing that I believe the Trial

24 Chamber should take into consideration when ruling.

25 Thank you.

Page 365

1 JUDGE MAY: Mr. Vucicevic.

2 MR. VUCICEVIC: Your Honours, I adopt in its

3 entirety argument by my esteemed colleague Petrovic.

4 In starting, I would just like to make a few remarks.

5 The Prosecutor is arguing because most of these

6 paragraphs have been found in the appellate decision in

7 Tadic's case, that they are somehow -- they have a

8 higher legal importance and value. Indeed, even though

9 you have stressed this is not a common law court, but

10 Appeals Chamber does not have a purview of fact

11 finding; therefore, you, your learned Judges are

12 sitting in judgement of the facts.

13 Secondly, it has been the mark of the

14 Prosecution that there was a cross-examination of the

15 examination of the facts. I have just spoken two weeks

16 ago when I met Mr. Kostic, who was assistant attorney

17 in Tadic's case, who has assured me that he will give

18 me an affidavit indicating that there was, indeed, a

19 plan not to contest any of these by the lead counsel in

20 that case. So if necessary, prior to your ruling, I

21 shall submit you such an affidavit.

22 And number three, the Prosecutor, it seems,

23 you know, it's everything, you know, possible, and

24 decent when the shoe is on the other foot. The counsel

25 is -- for the Prosecution is offering and inviting us

Page 366

1 to give you an offer of proof on the element of Count 5

2 which I have suggested in my motion for severance to be

3 given later. However, it was very silent when I

4 offered to present you an offer of proof on the Count

5 7.

6 And when I mentioned something here, when I

7 mention decency. Before the jury, we argue a common

8 sense. But some 45 years ago when it came to the

9 matter of expediency, a very famous man, Prescott Bush,

10 told a prosecutor United States Senate, "Do you have a

11 decency, senator?" When we here, when everything else

12 goes aside, have to adhere to that decency because

13 that's what the justice is relying on. And argument

14 was lacking it. Thank you.

15 JUDGE BENNOUNA: [Interpretation] Ms. Hollis,

16 could you clarify one point for me, regarding paragraph

17 148? You mentioned it and you insisted on the

18 paragraph in the appellate proceedings on the merits in

19 the Tadic case. You said we had to refer to paragraph

20 148 because the latter of the Appeals Chamber takes

21 judicial notice of facts as found by the Trial

22 Chamber. You say that based on that, we could take up

23 those facts and regard them as ours in our Trial

24 Chamber in this case Kolundzija, Dosen.

25 Are you not making a confusion between the

Page 367

1 relationship between a Trial Chamber and an Appeals

2 Chamber in one and the same case, and the Trial Chamber

3 in one case and a Trial Chamber in another?

4 Indeed, I do not have paragraph 148 in front

5 of me, but the Appeals Chamber is not supposed to try

6 the facts as found by the Trial Chamber unless there is

7 an error of fact upon which the attention of the

8 Appeals Chamber is drawn. This is not the same for a

9 Trial Chamber, because when you think of the

10 relationship between a Trial Chamber and an Appeals

11 Chamber, there you're dealing with one and the same

12 case, the same people, the same facts, the same

13 circumstances.

14 Here in our case, we have at least one thing

15 which is different, the people are not the same.

16 Individuals are not the same. And it may be that the

17 circumstances are not the same. This has to be

18 established. Therefore, you invite us to make this

19 transposition to take over some elements. Is it

20 possible? Is it not against the logics? The analogy

21 between two different things can lead to more

22 confusion.

23 MS. HOLLIS: Thank you, Your Honour. Your

24 Honour, we would suggest that what we're asking you to

25 do is the essence of Rule 94, which says that a Trial

Page 368

1 Chamber may adopt facts and other proceedings where

2 there weren't the same accused, where there weren't

3 even the same charges. So what we're asking is that

4 you do what Rule 94 allows you to do and we suggest

5 it's appropriate to do in this setting.

6 In regard to paragraph 148, the Prosecution

7 initially said that in regard to the Tadic facts, the

8 reality that the Appeals Chamber adopted and relied on

9 those facts may give more weight to the Prosecution's

10 argument, because we have not only had a Trial Chamber

11 find the facts, but indeed the Appeals Chamber has

12 reviewed those facts and has said they will rely on

13 them.

14 The other reason we specifically mention

15 paragraph 148 of that decision is that in the Kvocka

16 decision on judicial notice, the Trial Chamber takes

17 particular note of the Appeals Chamber decision, and in

18 particular of paragraph 148. Paragraph 148 indicates:

19 "The Appeals Chamber does not see any ground

20 for overturning the factual findings made in this case

21 by the Trial Chamber and relies on the facts as stated

22 in the judgement."

23 Now, perhaps the wording "does not see any

24 ground for overturning" comes back to the qualification

25 that exists for any appellate decision. An appellate

Page 369

1 decision is binding unless a substantial ground can be

2 shown as to why it would not be. And that's where we

3 turn to the issue of 65 ter and the timing of the

4 Defence's submission as to how they would go about

5 overturning that decision or undermining its

6 credibility.

7 So we don't believe that we're confusing

8 things here. We believe that the fact the Appeals

9 Chamber did rely on those facts does give more weight

10 to our argument, and that our argument is that this

11 Trial Chamber should use Rule 94 to accept what other

12 Chambers, either trial or Appeals, have found in this

13 case, because they are relevant to the same

14 circumstances.

15 In regard to the second part of your

16 question, Your Honour, that we have different people

17 and perhaps the circumstances are different: If you

18 will review carefully the facts that we are asking you

19 to take judicial notice of, our purpose for those facts

20 is to use those facts to prove the common elements or

21 the jurisdictional elements; not what these particular

22 accused did or did not do in the camps, but rather the

23 jurisdictional or common elements. And indeed you

24 can't find someone guilty here in this Tribunal unless

25 you are satisfied that not only the underlying

Page 370

1 substantive elements of the individual crimes are

2 proven, but that the common elements are proven.

3 That's what makes these crimes crimes within our

4 jurisdiction and not domestic crimes of murder or

5 torture or rape.

6 So that by finding the facts, we're asking

7 you to judicially notice. You are not finding these

8 accused guilty, because we have not proven the other

9 elements that we need to prove. But we suggest to you

10 that a Trial Chamber can judicially notice facts and

11 then upon those facts make findings as to legal

12 elements. But because of the type of elements we're

13 asking you to consider and the type of facts, it would

14 not be a finding of guilty, because the other elements

15 of the underlying substantive offences have not yet

16 been addressed or proven.

17 And in regard to the point that was made that

18 perhaps you're being asked to make a finding before any

19 evidence is brought, the evidence on which we're

20 relying are the facts we are asking you to judicially

21 notice, and those facts are before you.

22 MR. ROBINSON: If I understand you correctly,

23 you are asking us to judicially notice them

24 conditionally, until a showing is made.

25 MS. HOLLIS: What we are asking you is to

Page 371

1 judicially notice them. What we are accepting is that

2 if the opposing party is able to make a showing that

3 would undermine those facts, then it would be

4 appropriate not to judicially notice them. And taking

5 that point --

6 JUDGE MAY: You would consider it; that's

7 what you're really saying.

8 MS. HOLLIS: Correct, Your Honour. Or if a

9 showing is made in advance of the trial, then an

10 initial decision could be made. Any decisions made

11 pre-trial, of course, are always subject to

12 reconsideration, and if evidence at trial turns out to

13 dispute what has already been accepted. So we

14 acknowledge that it may be necessary to do some type of

15 provisional or conditional notice. We suggest that it

16 need not be done until the Defence is able to show you

17 the way in which they would undermine the facts that

18 are to be noticed, and we think 65 ter is a good

19 vehicle for that, 65 ter, part F.

20 [Trial Chamber confers]

21 JUDGE MAY: Very well. Thank you very much.

22 We're not at school. If counsel has got a

23 point, then they can make it, but I think we've

24 finished the debate on judicial notice. We've heard

25 both sides.

Page 372

1 Is there anything else that anybody wants to

2 raise? I'm not encouraging you, because it's time for

3 the break.

4 MR. PETKOVIC: [Interpretation] Your Honour,

5 if you believe that the previous topic is concluded,

6 then no, but if it's still open to further submissions,

7 then I have a couple of points to make.

8 [Trial Chamber confers]

9 JUDGE MAY: All right. Two minutes.

10 MR. PETKOVIC: [Interpretation] Thank you,

11 Your Honour. What the Prosecution is arguing of the

12 common elements is precisely what the -- and the

13 intent -- is precisely what the defence of Dosen is.

14 If such common elements existed in Prijedor, he has

15 nothing to do with it, and that is precisely the crux

16 of our argument. But for us to be expected to present

17 such evidence before the trial is contrary to the whole

18 proceedings here, and we only ask to be given the right

19 time and the opportunity to present such evidence.

20 Thank you.

21 MR. VUCICEVIC: The invitation that the

22 Prosecutor has given to you to admit this conditionally

23 first would deprive us of-- would shift the burden of

24 proof tremendously. We would not have the witness --

25 we could not cross-examine the witnesses that the

Page 373

1 Prosecutor otherwise would have brought in, and would

2 put us in the position to prove and to disprove at the

3 same time.

4 This is not a decent invitation to you, Your

5 Honour. If you have to live with the decision of

6 making judicial notice on, as it is, decision is yours,

7 but do not accept it conditionally. But I will submit

8 you the affidavit indicating there was no defence.

9 Vujin has talked to me throughout the

10 appellate process and said that he had withheld facts

11 throughout and part appeal contained new facts. This

12 was -- that was the trial that had a lot of errors, but

13 errors which came to -- into the judgement and on the

14 facts that are so vital to my client. That's why I

15 respectfully ask you not to take the notice.

16 One more point, Your Honour, if you may.

17 After the recess I would have some comments in the

18 closed session, unrelated to this.

19 JUDGE MAY: This is a hearing which is purely

20 for hearing a motion, and I do not -- we don't propose

21 to sit beyond this break. Now, if you've got any

22 matters that you feel should be dealt with, they should

23 be dealt with by the Pre-Trial Judge or a matter which

24 you can put into writing.

25 As far as the affidavit is concerned, we

Page 374

1 don't think that such an affidavit about the Tadic

2 trial would assist us, and we will deal with the matter

3 on those that are before us.

4 [Trial Chamber confers]

5 JUDGE MAY: Mr. Vucicevic, we'll go into

6 closed session now and we'll hear what it is you've got

7 to say briefly.

8 [Private session]

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22 --- Whereupon the hearing adjourned

23 at 11.25 p.m.

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