Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Tuesday, 9 June 2009

 2                           [Status Conference]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 2.29 p.m.

 6             JUDGE HARHOFF:  Thank you very much, Mr. Registrar.  And welcome

 7     to everyone in and around the courtroom.

 8             But may I first ask the Registrar to announce the case.

 9             THE REGISTRAR:  Good afternoon, Your Honours.  Good afternoon to

10     everyone in and around the courtroom.  This is case number IT-08-91-PT,

11     the Prosecutor versus Stojan Zupljanin and Mico Stanisic.

12             JUDGE HARHOFF:  Thank you very much, Mr. Registrar, and welcome

13     also to the two accused.  I have not had the chance to present myself.

14     This is the first time we meet.  My name is Fred Harhoff.  I'm the

15     Pre-Trial Judge in this case.

16             Mr. Zupljanin, you're standing up.  Is there anything you want to

17     say?

18             THE ACCUSED ZUPLJANIN: [Interpretation] Yes, Mr. Harhoff, I would

19     like to say something.

20             In view of the fact that I submitted a request on the 12th of

21     May, referring to my Defence, and I see that Mr. Visnjic is still here

22     today, I would appreciate it if we could resolve this issue right now at

23     the beginning.  I don't know how familiar you are with the entire case.

24     If you would like me to present all the facts, I can do it now, or I can

25     do it a little later.  However, I do have to stress that this is a major

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 1     problem, and I would really appreciate it if we could resolve this before

 2     we go on so that we can continue without any burden.

 3             JUDGE HARHOFF:  Thank you, Mr. Zupljanin.  And both of you, you

 4     may sit down.

 5             Mr. Zupljanin, I am perfectly aware of your situation and of your

 6     request, and I'm well familiar with the case.  I had planned to address

 7     the issue of your counsel towards the end of this status conference

 8     because I assumed that we would have to discuss this ex parte; that is to

 9     say, that I think that it would be appropriate not to discuss issues of

10     counsel in the presence of the Prosecution.

11             Now, if we were to go into a session ex parte, we would have to

12     have a break because the tapes would need to be changed.  That's why I

13     thought we should start the meeting and then have all the stuff dealt

14     with, and when we had done that, then we could have the break, change the

15     tapes, move into an ex parte session, and then address your counsel

16     issues.

17             Now, if you are willing to discuss these matters in the presence

18     of the Prosecution, then I don't mind.  Then we can address them right

19     now, head on, but that will then be in the presence of the Prosecution.

20     So if you prefer not to have the Prosecution present when we discuss your

21     counsel issue, and there's also an issue in relation to Mr. Stanisic and

22     his counsel, then we will have to wait towards the end.  If you don't

23     mind the Prosecution being here, then we can do it right now.  The choice

24     is yours.

25             THE ACCUSED ZUPLJANIN: [Interpretation] Mr. Harhoff, I have no

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 1     problem with our status conference starting as you had planned, but I

 2     am -- I do appreciate it, that you did put this on your agenda for today.

 3     Whether it would be discussed earlier or later does not really matter, so

 4     we can proceed with the status conference and then the latter part we can

 5     resume with this issue.

 6             JUDGE HARHOFF:  Thank you very much.  So we will proceed as

 7     planned, that is to say as soon as we have exhausted the other issues on

 8     the agenda, then we will have a short break and move into ex parte

 9     session.

10             May I ask for the appearances of counsel for the Prosecution.

11             MS. KORNER:  Good afternoon, Your Honour.  Joanna Korner,

12     Thomas Hannis, assisted by case manager Crispian Smith for the

13     Prosecution.

14             JUDGE HARHOFF:  Thank you very much, Ms. Korner.

15             And for the Stanisic team?

16             MR. ZECEVIC:  Slobodan Zecevic for Stanisic Defence team,

17     Your Honour.

18             JUDGE HARHOFF:  Thank you very much, Mr. Zecevic.  And welcome to

19     you as well.

20             And for the Zupljanin Defence?

21             MR. VISNJIC:  Tomislav Visnjic and Brent Hicks.

22             JUDGE HARHOFF:  Thank you to both of you, and I look forward to

23     the discussion later on.

24             Now, I have on my agenda basically four points which I would like

25     you to take note of.  The first point is the plan or the vision that the

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 1     Trial Chamber will have about the devolvement of the trial.  That is to

 2     say, I wish to discuss with you and with the Prosecution the Court's

 3     visions of how we should get around this and get about this trial, how we

 4     should deal with it once it starts.  That's the first issue.

 5             The second issue is the issue of your health, gentlemen.

 6             The third issue is the issue of other matters, and there I

 7     particularly think of the motion that was made by Mr. Zupljanin for

 8     provisional release, but there may other matters aside this issue, but

 9     that's one of the issues I wish to raise.

10             And then, finally, the fourth point is the point of counsel,

11     which we will then have at the ex parte session.

12             If this is agreeable to all the parties, then we should move on.

13     Is any party wishing to address further issues?

14             You're all nodding your heads.  I take it that this will then

15     exhaust the points on the agenda for today, so let me then move on to the

16     first issue.

17             In my view, we should concentrate this trial to the points that

18     include the alleged responsibility of the two accused; that is to say

19     that the Court should not occupy itself with the crime bases, that is to

20     say, should not deal extensively with whether or not the crimes actually

21     occurred, because the commission of the crimes has already been

22     established in a number of other cases, so in my view it is fruitless and

23     unnecessary to call again evidence before this Court to prove the

24     commission of the crimes.  However, this Court will hear evidence not

25     about whether the crimes were committed, but about who committed them.

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 1     So I want to focus this trial exclusively on the link that may connect

 2     you, according to the indictment, with the crimes.

 3             Is that understood?  Very well.

 4             This leads me to making a few observations in relation to the

 5     indictment.

 6             First of all, we see that the indictment charges you with

 7     basically four different crimes; namely, first, murder and extermination;

 8     secondly, torture and cruel treatment; thirdly, deportation and unlawful

 9     transfer; fourth and finally, persecution.  And the indictment charges

10     you with these crimes in basically two different forms.  The first form

11     is the joint criminal enterprise.  This means that the Prosecution

12     alleges that the two of you were members of a joint criminal enterprise,

13     the purpose of which was to remove non-Serb residents from large areas of

14     the territory of Bosnia and Herzegovina.  And through this joint criminal

15     enterprise that, apart from the two of you, also included Karadzic and

16     others, Krajisnik, Madam Ploszic, Nikola Koljevic, Velibor Ostojic, Ratko

17     Mladic and others.  So the Prosecution alleges that there was a joint

18     criminal enterprise between all of you for the purpose of removing

19     non-Serb population, and that you agreed or understood that some crimes

20     would be committed in the course of that criminal enterprise.  That is

21     the understanding of the Prosecution.

22             I'm not saying that this is shared by the Court.  I'm just

23     explaining to you what the Prosecution's views are.

24             And further on, still as part of the joint criminal enterprise,

25     and further to the crimes which you understood would be committed, other

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 1     crimes were also committed which you could have foreseen.  This is, in

 2     technical terms, what is normally understood as the third form of JCE.

 3     So the crimes originally foreseen are what we call the first form of the

 4     joint criminal enterprise, and the crimes that were later on added are

 5     then covered by what we call the third form of JCE.

 6             Now, if the Prosecution fails to prove the joint criminal

 7     enterprise in either of the two forms, the Prosecution's fall-back

 8     position is what I would term as normal commission; that is to say that

 9     you are then, in the absence of a joint criminal enterprise, at least to

10     be held responsible under Article 7(1) of the Statute, which provides for

11     individual criminal responsibility for ordering, and instigating, and

12     aiding and abetting, and so on.  And short of that, the Prosecution's

13     second position is that if you cannot be held responsible for the direct

14     commission, then at least you will be held responsible for the crimes by

15     virtue of the command responsibility that you exerted over the forces

16     over whom you were in control.  That is the case as it looks in the eyes

17     of the Prosecution.

18             Now, if we then look briefly at the joint criminal enterprise, it

19     is clear from the jurisprudence of this Tribunal that the Prosecution is

20     required to distinguish between those crimes which were originally

21     foreseen and those crimes which came on later.  And the Prosecution is

22     furthermore required to indicate clearly just when and how you were

23     brought on notice about the commission of those further crimes.  And if

24     the Prosecution is unable to do so, then those crimes will not be charged

25     as part of the joint criminal enterprise.

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 1             For that purpose, I'm addressing myself to the Prosecution now,

 2     asking them, asking them to indicate to the Chamber and to the Defence

 3     which of the four crimes you allege were part of the original joint

 4     criminal enterprise and which crimes came on later in the development,

 5     and to tell the Defence and also the Chamber just how and when the two

 6     accused were brought on notice of the commission of those further crimes.

 7             If this is a reasonable depiction of the case, as it stands now,

 8     the issue then is:  How do we deal with the incidents?  My view is that

 9     if the two of you would consider accepting that these crimes were

10     committed - not by whom, but just the mere commission, nothing else -

11     then we could focus on whether or not you had anything to do with those

12     crimes.  And the Trial Chamber would then be in a position to simply

13     state that the crimes were committed, either by virtue of your acceptance

14     of this or by reference to the fact that these crimes have already been

15     established in several other cases before this Tribunal and have been

16     adjudicated not only by the Trial Chamber, but also by the

17     Appeals Chamber.  So there seems to be solid evidence that the crimes

18     were committed, and I'm asking the two defendants on this occasion to

19     tell me - not now - whether you are able to go along with this so that we

20     don't have to fight about whether the crimes were committed.  Let's

21     assume that this was done, as already adjudicated by others, and let's

22     focus exclusively on ...

23             Having said this, I would like also to say that I have scheduled

24     a second status conference for Friday.  At this time, I think it's

25     scheduled for 2.15 in the afternoon.  We are trying to see if we can move

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 1     up to the morning, but it seems all three courtrooms are occupied Friday

 2     morning, so we may not be able to move to the morning session.  But we

 3     shall meet again Friday afternoon, and at that occasion I would like to

 4     have your observations on the questions that I am putting to you.

 5             Now, to get back to the incidents, as far as the Chamber has been

 6     able to establish so far, the evidence seems to show that -- but this

 7     remains for the Trial Chamber and ultimately for the evidence to be

 8     adduced at trial to show, but at this preliminary moment it seems as if

 9     there is evidence to show that in some instances the police force were

10     involved in the commission of the crimes, but that is what we're going to

11     discuss.  What I'm saying here is that there seems to be evidence that

12     police forces were included.

13             In other incidents, the evidence is more unclear.  Other

14     incidents have evidence that seemed to show that police staff may have

15     been involved, but this is not conclusive from the evidence as it stands

16     right now.  So the Prosecution, I'm sure, will bring evidence during

17     trial to show that also in these instances, forces under your command

18     were involved, and then you, of course, will be expected to provide

19     evidence to the contrary.  That's the course of any trial.

20             And, finally, there seems to be a small group of incidents in

21     which the degree of participation, if any, of police forces under your

22     command appears to be somewhat uncertain, and so here is maybe an

23     opportunity for the Prosecution to review its material, and if there is

24     an incident or couple of incidents in which really the participation of

25     police forces seems to be utterly unclear, then my invitation to the

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 1     Prosecution would be to simply remove those incidents from the

 2     indictment.  And I will be getting back to you on Friday, Ms. Korner, to

 3     ask you what your position is on -- you don't have to answer now.

 4             So this is the way in which at least this Judge sees the case at

 5     this moment, and so I'll leave it to the parties now to consider these

 6     issues, and then we will resume the discussion on Friday for further

 7     deliberation.

 8             This is what I had to say about the plan of the trial, the plan

 9     for the trial, how -- what we are going to deal with at trial.

10             We have just yesterday received the pre-trial brief from the

11     Prosecution.  We are waiting for the Defence teams to give us their

12     pre-trial briefs in three weeks from now, and then we will have the

13     pre-trial conference, as scheduled, on Tuesday, the 21st of June, in

14     which we will be able to take a position on, among other things, the

15     number of witnesses that we will invite the Prosecution to call, and

16     perhaps the number of incidents that we will wish to hear evidence about,

17     and also the number of hours that the Prosecution will be given to

18     present its case.

19             You may have seen already in the briefs that the Prosecution is

20     for, I think it is, 285 hours to present its case, and we will see if

21     there's any ground for reducing this number.  But all that will be done

22     at the pre-trial conference.

23             Then I think both parties will need time to adjust and to

24     consolidate their positions, and so we have decided that the trial is

25     then going to start on Monday, the 31st of August.  This will provide

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 1     both Defence teams some time from now on until the first week of

 2     September or the last day of August, as it is, to drum up their witnesses

 3     and to prepare for trial.

 4             So Monday, the 31st of August, we will hear the Prosecution's

 5     opening statement, for a day or two, maybe, and then immediately after

 6     that we will hear the first witness that's being called by the

 7     Prosecution.

 8             Anything to add to the planning before we move on to the issue of

 9     health?

10             MS. KORNER:  Your Honour, just two matters.  First -- [B/C/S on

11     English channel]

12             JUDGE HARHOFF:  I'm hearing B/C/S, which is very nice, but --

13             MS. KORNER:  I always wanted to speak the language.

14             JUDGE HARHOFF:  Yes, so did I.

15             MS. KORNER:  Your Honour said the 21st of June for the pre-trial

16     conference.  I think you meant the 21st of July.

17             JUDGE HARHOFF:  How embarrassing, indeed.  21st of July, it is.

18     Sorry.

19             MS. KORNER:  Yes.  And simply this, Your Honour:  Our

20     understanding is Your Honour would like, on Friday, the answer to the

21     question in respect of the crimes within the joint criminal enterprise

22     and the other matters that you referred to within that subheading, as it

23     were.  In respect of the crimes on the indictment, our understanding was

24     that Your Honour wasn't expecting an immediate answer on Friday.  Is that

25     right?

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 1             JUDGE HARHOFF:  Maybe I was unclear, and I apologise for that.

 2     On Friday, I wish to hear you out on your position as to whether you

 3     think there will be any room for reducing your witnesses on the incidents

 4     where the -- where the police representation appears to be dubitable.

 5             MS. KORNER:  Right.  In other words -- no.  What I'm really

 6     getting at, does Your Honour want chapter and verse of if we are prepared

 7     to drop incidents, which incidents it will be and which witnesses it will

 8     effect?

 9             JUDGE HARHOFF:  It would be helpful.  I'm not requiring you to

10     give any final answer, but in all frankness and openness owed to the

11     Defence, if you're able on Friday to say, Well, we're considering

12     actually dropping this or that incidents, but we'll have a closer look.

13     But, you know, going along with my suggestion, it looks as if this might

14     be a possibility.  That is very useful information to the Defence, and

15     that's what I want you to give to them.

16             If, on the other hand, you say, No, you know, we are fully booked

17     and we have ample evidence on everything, and we are standing where we

18     are standing and will not move, then that is also information that is

19     crucial for the Defence to know.  But I'm inviting you to consider some

20     degree of flexibility, to weed out, so to say, incidents where there's

21     just perhaps not full foolproof evidence, and to consider which incidents

22     might possibly be taken out on that account.

23             We'll get back to -- but I will not be asking you about any final

24     position on Friday.  You will still have time to think about it.  But

25     what I would like to have is to -- whether there's any opening there.

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 1             MS. KORNER:  Your Honour, I understand.  Thank you very much.

 2             JUDGE HARHOFF:  Mr. Zecevic.

 3             MR. ZECEVIC:  Your Honours, everything is clear for us.  So I

 4     hope we will be able to give some answers on Friday.  Thank you.

 5             JUDGE HARHOFF:  Thank you very much.  And I would encourage you

 6     to stay in contact with your client, Mr. Stanisic, in the course of the

 7     next couple of days.

 8             MR. ZECEVIC:  That goes without saying, Your Honour, of course.

 9             JUDGE HARHOFF:  Mr. Visnjic, I'm aware of your position, but I

10     would like to hear your comments, nevertheless.

11             MR. VISNJIC: [Interpretation] Your Honour, what I would like to

12     say has nothing to do with my representation in this case.  I would

13     rather like to talk about the facts that anybody who will be representing

14     Mr. Zupljanin has to face.

15             Earlier today, at the 65 ter conference, we drew your attention

16     to the fact that the Prosecution, since this morning, has introduced 28

17     new witnesses.  I have a piece of additional information now.  600 new

18     documents have been introduced, of which 450 are completely new and have

19     not been yet disclosed to us.

20             Bearing in mind the fact that there are some unresolved issues

21     pursuant to Rule 66 and that the Defence Zupljanin has not been disclosed

22     evidence from any other cases.  And since the Prosecution is expecting us

23     to make -- to receive some decisions pursuant to Rule 70 from some

24     states, I am facing you with all these facts, and, on the other hand, I'm

25     asking for the Prosecution to tell us when we should be able to expect

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 1     their answers as to whether any procedures were launched pursuant to

 2     Rule 70 with regard to some documents that we are still missing, as well

 3     as access to the evidence from some of the other cases that we requested.

 4     And I believe that the Registry is one of the parties in these

 5     proceedings.  Therefore, I would kindly ask to be provided some

 6     information as to when all of this will be made available to us.  Bearing

 7     in mind the complexity of the issues, I believe that an answer given to

 8     us on Friday would be satisfactory.

 9             JUDGE HARHOFF:  Thank you, Mr. Visnjic.  I was just going to

10     propose myself that these are perhaps questions that we could get back to

11     on Friday, so I urge the Prosecution to have answers ready for

12     Mr. Visnjic.

13             Anything else on this issue and from Mr. Zecevic -- Mr. Zupljanin

14     and Mr. Stanisic?  You're all right?

15             Then we will move on to the next issue, your health, gentlemen.

16     May I ask you if you have any observations to make in relation to your

17     health or the conditions of the detention?

18             Mr. Stanisic.

19             THE ACCUSED STANISIC: [Interpretation] Thank you.

20             My health condition, for the time being, is satisfactory.  I

21     don't have any problems.  I would not raise any issues at the moment,

22     since we have been scheduled another status conference on Friday, and

23     then I will be ready to talk.  So much from me at this moment.

24             JUDGE HARHOFF:  Thank you, Mr. Stanisic, and I'm glad to see that

25     you are in good health.  In fact, coming to our age of life, you really

Page 34

 1     come to appreciate how much health matters.

 2             Mr. Zupljanin, are you also in good shape?

 3             THE ACCUSED ZUPLJANIN: [Interpretation] Mr. Harhoff, thank you

 4     for asking me about my health.  I would like to be able to tell you that

 5     I'm having a swell time in the Detention Unit.  Unfortunately, nobody has

 6     ever had a swell time in a detention unit, and I'm not an exception.

 7     However, God willing, I will be healthy or God will take my life from me

 8     when he decides to do so.  For the time being, however, thank God I am in

 9     good health, and I sincerely hope that that will remain the case.

10             Thank you very much.

11             JUDGE HARHOFF:  Thanks, Mr. Zupljanin.

12             And, finally, other matters.  I mentioned the last point before

13     we move into the ex parte session.

14             You have filed a motion for provisional release, and I have

15     consulted with the Trial Chamber, and the Trial Chamber's decision is

16     that we will deny your request.  A written decision will follow in the

17     course of this week, but the main reason is that you escaped justice for

18     a number of years, and that poses a flight risk, despite the fact that

19     the authorities may have offered some sort of guarantees.  So this is to

20     announce to you that your motion for provisional release will be denied.

21             As for Mr. Stanisic, the position of the Trial Chamber is that

22     unless we, on Friday, decide to schedule further status conferences in

23     the very near future, you'll be allowed to return on your provisional

24     release by Friday afternoon or Saturday morning, basically, but you will

25     be re-released as soon as the next status conference is over.  And I'll

Page 35

 1     notify the Registry accordingly.

 2             This concludes the general part of this meeting.  I'd now like to

 3     suggest that we take a short break.  And the audio-visual services have

 4     done whatever they can, and I'm very grateful to them, for promising that

 5     they'll be able to change the tapes in ten minutes, so we'll have a

 6     ten-minute break and resume at quarter past 3.00.

 7             MS. KORNER:  Your Honour, may I just mention one matter in

 8     relation to the matters that Your Honours now are going to deal with,

 9     representation by Defence counsel.

10             They clearly are not matters of which the Prosecution are

11     entitled to or wish to be present at.  However, what, perhaps, we would

12     ask is that if there is a resolution of the issue, we are informed as

13     soon as possible.  At the moment, we've been kept very much in the dark,

14     except for what Mr. Zupljanin himself has said in court, as to what the

15     resolution is, so that we may engage in --

16             JUDGE HARHOFF:  It goes without saying.

17             MS. KORNER:  Thank you very much.

18             JUDGE HARHOFF:  And may I say to the audience, when we go into

19     ex parte session, it will also be closed, so this is the end of the

20     public session.

21             We'll adjourn for ten minutes.

22                           --- Whereupon the Status Conference is concluded at

23                           3.08 p.m., to be followed by an Ex Parte Hearing.