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