Tribunal Criminal Tribunal for the Former Yugoslavia

Page 44

1 Tuesday, 27th January 1998

2 (9.30 am)

3 JUDGE JORDA: Please be seated. Registrar,

4 have the accused brought in, please.

5 (Accused brought in)

6 JUDGE JORDA: Please be seated. I would

7 first like to ask that everybody hears me. Are the

8 interpreters all ready? Good morning to everyone.

9 Does everybody hear me? Does the Prosecutor hear me?

10 First I would ask the Prosecutors to identify

11 themselves. I see there are some new faces here, some

12 that I do know but I would like introductions in any

13 case. Please introduce the Prosecutors, Mr Harmon.

14 MR HARMON: Thank you, Mr President. Good

15 morning, your Honours, good morning, counsel. I am

16 assisted in this case, Mr President, by counsel to my

17 left Ms Susan Somers, to my right Mr Ken Scott and to

18 my far right Mr Patrick Lopez and the case manager,

19 Mr President, is Alinde Verhaag.

20 JUDGE JORDA: Thank you. I am not sure

21 I will remember all the names right away except, of

22 course, my French colleague, to whom I say good

23 morning, but I now turn to the Defence. We have the

24 Defence attorney for Mr Kordic, who is that?

25 THE INTERPRETER: Microphone, please.

Page 45

1 MR NAUMOVSKI: Good morning, I have the

2 honour to present myself before this honourable

3 Chamber. I am Mitko Naumovski, attorney at law from

4 the attorney at law company Andres & Zogovic from

5 Zagreb, Croatia. I am the Defence counsel for Mr Dario

6 Kordic.

7 Your Honour, I am kindly asking you for the

8 permission to continue with further proceedings on

9 Croatian language.

10 JUDGE JORDA: Yes, that is possible, to speak

11 in Croatian. We have a booth which can interpret into

12 that language, and you speak the language which you

13 feel you are the most comfortable with for defending

14 the interests of your colleague. Excuse me if I do not

15 pronounce your name correctly. On your right, perhaps

16 the gentleman could introduce himself as well.

17 MR KOVACIC: Good morning, your Honour, good

18 morning, colleagues. Let me present myself, my name is

19 Bozidor Kovacic, I am an attorney at law from city of

20 Rijeka in Croatia. I represent defendant Mr Mario

21 Cerkez in this case and, of course, I join the request

22 of my friend, even though I am speaking English

23 relatively passable, I would like to have that

24 opportunity to use Croatian language during the trial.

25 JUDGE JORDA: Thank you very much. That

Page 46

1 causes no problems. This morning's hearing will have

2 two parts, first there will be a public session for

3 arguments, I believe that has already been referred to,

4 that is for the request for pre-trial -- holding

5 pre-trial motions in abeyance. My colleagues, Judge

6 Riad and Judge Rodrigues have noted that what we had to

7 do first -- this was what we had to do first in order

8 to pass into a closed session to organise a status

9 conference which I am sure will be fruitful and will

10 provide concrete solutions to problems that we are

11 faced with.

12 I would now turn to Mr Harmon and remind him

13 that on behalf of the Prosecutor's office, he filed a

14 motion for holding -- to hold pre-trial motions in

15 abeyance. I would first like to ask Mr Fourmy, who is

16 the legal officer for this Chamber, to recall briefly

17 the dates, or rather the number of preliminary motions,

18 because there are a few of them, particularly the

19 dates, so that we know what we are speaking about and

20 at what point the Prosecutor's motion was filed, that

21 is the motion to hold pre-trial motions in abeyance.

22 Mr Fourmy?

23 MR FOURMY: Thank you. As you know, in the

24 case file there were several motions since October

25 1997, which first dealt with protection of victims and

Page 47

1 witnesses. Then there were several motions from the

2 Defence dealing both with the accused Dario Kordic and

3 the accused Mario Cerkez. These motions have several

4 points in common, because they say that there is a

5 defect in the form of the indictment that should not be

6 admitted, so that parts of the indictment should be

7 withdrawn which allege responsibility for not having

8 punished. To withdraw several of the counts because

9 they were not sufficiently argued as to the existence

10 of an international conflict. There were motions about

11 mens rea, inter alia command responsibility.

12 Then there was a separate document dealing

13 with withdrawal of the indictment and which concerned

14 two of the co-accused of Dario Kordic. This was the

15 end of December. We had a motion from the Defence

16 representing Mario Cerkez requesting the extension of

17 the time period for filing preliminary motions, a

18 motion which the Chamber granted, and allowed these

19 motions to be filed until 24th December 1997 --

20 23rd December, excuse me. Then about two additional

21 weeks in relation to the regular date when the time

22 period would expire, and then there was a motion from

23 the Prosecutor on 19th December 1997 for suspending the

24 review of the preliminary motions to which the Defence

25 answered on 28th December by letter and then a response

Page 48

1 from the Defence dated 14th January opposing this --

2 objecting to this request.

3 Lastly, there was the Prosecutor's reply

4 objecting to the objection of the Defence. That motion

5 for suspending the review of the preliminary motions is

6 the one which will be discussed in public this morning,

7 your Honour, as you would like to organise.

8 JUDGE JORDA: Have I made a mistake about the

9 initial appearance which is 8th October 1997 and that

10 therefore the 60 days for filing preliminary motions

11 would be concluded on 8th December? But it was

12 4th December that all of these Defence motions were

13 filed, am I right?

14 MR FOURMY: Yes, that is correct. There were

15 several days difference according to whether one refers

16 to the request filed on behalf of Dario Kordic and

17 Mario Cerkez, but these are the dates that should be

18 kept. Everything depends upon the faxing dates, that

19 is the dates that they were officially registered by

20 the Registry. Yes, in fact, it was 8th December 1997

21 and 23rd December which was the only one from Mario

22 Cerkez.

23 JUDGE JORDA: Yes, we agree then. So we

24 could say that practically speaking, so we can know

25 what we are talking about today, since the initial

Page 49

1 hearing of 8th October, the 60 day time period has

2 elapsed since the end of that period which, according

3 to its right, the Defence filed preliminary motions

4 which you have just mentioned with an extension

5 relating to Mario Cerkez and since that time, we have

6 received nothing in the case file. As regards the

7 judges, today we rendered a decision about a request

8 which is still confidential and I will not mention it.

9 That is where we are and we must keep in mind dates

10 from 19th November 1995 and the initial appearance,

11 further to the arrival of the two accused in The Hague,

12 dates from 8th December 1997, and then all of these

13 motions were filed just about at the end of the 60 day

14 period for one of the accused as well as for the other,

15 who had the time period extended, and that the

16 Prosecution then presented its request for holding

17 pre-trial motions in abeyance.

18 Having said this, having recalled this both

19 for my colleagues, who I am sure know this, but for the

20 Prosecution and Defence as well, I believe that we can

21 now give the floor to Mr Harmon. I think he will be

22 the one who will speak for the Office of the

23 Prosecutor, so that he can elaborate on his motion.

24 Mr Prosecutor, the floor is yours.

25 MR HARMON: Mr President, I will not be

Page 50

1 arguing the motion, my colleague Susan Somers will be

2 arguing the motion on behalf of the Prosecutor's

3 Office. I would just like to say, however, at the

4 outset, that when the accused made their initial

5 appearance and after their initial appearance,

6 I personally had a meeting with Mr Naumovski and

7 Mr Andres and another gentleman who was a lawyer from

8 the United States who was considering coming into the

9 case and it was after that initial appearance that

10 Mr Naumovski and I and counsel discussed the

11 possibility of suspending the filing of motions, until

12 after the indictment itself had been amended, so

13 against that backdrop, Mr President, you should be

14 aware that then motions were filed, but there were

15 preliminary discussions that lasted over an hour in

16 which we discussed the possibility of holding all

17 motions in abeyance.

18 Now, Mr President, if I may turn to my

19 colleague, Ms Somers, she will address the Chamber in

20 respect of this motion.

21 JUDGE JORDA: Proceed, please, Ms Somers.

22 MS SOMERS: Good morning, your Honours and

23 learned counsel. Just as an additional word, we were a

24 little surprised to receive the opposition to the

25 motion, given the backdrop of discussions and including

Page 51

1 some correspondence sent by Mr Harmon to which I was

2 party or privy to Mr Kovacic, indicating the very high

3 likelihood of amendment, so from the inception,

4 amendment has been in the discussion and as Mr Harmon

5 indicated, it was clearly contemplated by the parties

6 at the meeting with Mr Kendall and the two counsel for

7 Mr Kordic.

8 We did file yesterday, and I do not know if

9 the court has had an opportunity --

10 JUDGE JORDA: Just one moment please, I am

11 going to interrupt you. I do not usually interrupt,

12 but excuse me at this time. These conversations that

13 Mr Harmon has alluded to, what date was that?

14 MS SOMERS: I believe it was December.

15 JUDGE JORDA: I need the exact date because

16 we are starting with 19th December.

17 MS SOMERS: October 21st is when the meeting

18 took place between Mr Naumovski, Mr Andres and

19 Mr Kendall, as well as Mr Harmon and Mr Bowers.

20 JUDGE JORDA: 21st October, thank you.

21 MS SOMERS: In as much as we filed only

22 yesterday the response to counsel's opposition, I would

23 like to just have a chance to itemise the points in

24 that response. Because Mr Kordic and Mr Cerkez were

25 part of an original indictment with a number of

Page 52

1 co-accused, and because of the piecemeal nature of the

2 surrender, there has been quite a bit of activity in

3 trying to accommodate the number of trials that have

4 been generated out of said piecemeal surrender.

5 As of October 1997, although the case clearly

6 was in the hands of the Prosecutor, very few officers

7 were actively -- will actively investigate fugitive

8 cases and these individuals were in fact fugitives.

9 Although the point is raised that we have had the case

10 two years -- that is evident, we have had the case two

11 years, but active reinvestigation will only commence

12 upon surrender or arrest.

13 Our position is that because we have had a

14 chance to discuss in both informal and in formal

15 initial appearances matters concerning how we intend to

16 progress that there was really no problem, and that

17 there is certainly no prejudice in that the amount of

18 time which ultimately we are trying to ask the court to

19 grant us for reindictment is not excessive given the

20 very complex nature of this case. Please be on notice

21 that it is a very complex case. We anticipate multiple

22 witness repetition unfortunately, because of the

23 piecemeal way things have been handled with the

24 surrender, and we are now taking an opportunity to

25 re-evaluate and re-examine as we are mandated to do the

Page 53

1 evidence and investigative materials that we had

2 derived in 1995 and prior to that time.

3 As this court knows, and perhaps it was not

4 highlighted in the previous enumeration of events, also

5 on 19th December this honourable court granted the

6 Prosecutor's motion to withdraw indictments as to two

7 of the co-accused in this case, Mr Santic and

8 Mr Skopljak, and therefore only as of 19th December did

9 the Prosecutor's Office have a clear identifiable pool

10 of who the accused in this case would be. It would not

11 have been really known against whom we would file an

12 amended indictment and I want to emphasise this fact.

13 The court also was made aware at the time that we filed

14 the motion to withdraw, which this court granted, that

15 we would be -- we very diligently undertook a

16 reinvestigation quickly.

17 We are very mindful of the obligations for a

18 fair trial, both for the Defence and the Prosecution.

19 No one wants to prejudice either side, and we undertook

20 very deliberately and quickly to assess the character

21 and quality of the evidence, and having done so, we

22 elected to file our motion to withdraw those two

23 indictments, as well as one in another sister case, as

24 it were.

25 Therefore we have now turned our full

Page 54

1 attention, as we tried to from the outset of the

2 surrender, to these two accused and are working very

3 diligently to reassess, to check which witnesses are

4 still available who were available years ago. Some

5 will not be and, of course, new witnesses have come

6 into the picture. We have learned a considerable

7 amount since this original indictment was filed.

8 I think that the complexity of the case which will be

9 borne out over the course of time will certainly

10 indicate that we are trying to be very reasonable in

11 our approach to this motion. We saw it as essentially

12 unfair and not in the interests of either judicial or

13 legal economy to litigate twice motions which the

14 second time round may not be applicable if we amend the

15 indictment in such a way that these motions do not

16 touch the issues. Therefore it seemed natural, logical

17 and efficient, as well as fair, to wait, to hold things

18 in abeyance, as was discussed earlier.

19 I see no issue of prejudice from the

20 standpoint of preparation. The motions which were

21 submitted resemble very much other motions which have

22 been before this court in the sister case of Blaskic,

23 and many of the issues have already been decided.

24 However, because we will have potentially a different

25 approach to the indictment, it would just seem a better

Page 55

1 way to wait the limited amount of time we are

2 requesting and then proceed on a normal scheduling

3 order. There was a clear indication by Mr Kordic's

4 counsel that suspending a scheduling order would be an

5 appropriate way to handle things. We, of course,

6 agreed.

7 We never opposed the request for the

8 extension by Mr Cerkez's lawyer; to the contrary, we

9 had no problem with it whatsoever and as soon as the

10 court granted the motions to withdraw the indictments

11 on Messrs Santic and Skopljak Mr Harmon filed

12 immediately the motion to hold in abeyance, since we at

13 that point knew with whom we would be dealing. We did

14 not even wait for the Registry. Because of the

15 Christmas holiday issue, I personally faxed those

16 motions to counsel, so they would have the benefit, so

17 if that weekend were critical to Mr Cerkez's lawyer, he

18 would know and would perhaps make an appropriate

19 request to the court.

20 Therefore, under all the circumstances of our

21 dealings with opposing counsel and given the nature of

22 how these individuals came before the court and what we

23 have been able to accomplish very quickly to hone in on

24 who will be the accused, we asked this court please to

25 grant our motion to hold in abeyance once it has been

Page 56

1 determined the date for filing a new amendment. Thank

2 you very much.

3 JUDGE JORDA: Thank you, I now turn to

4 Defence counsel.

5 Mr Naumovski or Mr Kovacic, I do not know if

6 either of you wishes to say something?

7 MR NAUMOVSKI: Good morning, your Honours.

8 I would like to say this is a motion that was submitted

9 by both accused who find themselves in the same

10 situation. The explanation is in two parts. First

11 I will start and then my colleague Kovacic will go on.

12 Allow me to reply to the introductory remarks made by

13 my learned colleague just now. It is true that the

14 Defence of Dario Kordic did discuss at a single

15 occasion on 21st October 1997. During that first

16 conversation, the Defence wanted to prove that during

17 the whole proceedings, if that is made possible, we are

18 going to be as co-operative as we can, obviously

19 bearing in mind the interest of our defendant Mr Dario

20 Kordic. Our acceptance to be very co-operative, we

21 stand by it today as well and we are going to do our

22 utmost in order to achieve that. That does not mean

23 that the Defence needs to wait for a limitless amount

24 of time without having been given the indications when

25 we will be able to do something. So one thing is to

Page 57

1 say that we are going to co-operate and quite a

2 different matter not to know for how long we will have

3 to wait, and keeping our defendant waiting without him

4 knowing for how long. That is precisely why the

5 Defence asked the Prosecution to say when and if they

6 were going to amend the indictment, so that the Defence

7 could prepare for its case.

8 That is why it is surprising to us that in

9 the reply we received yesterday, surprise is expressed

10 as to our behaviour when we were so very co-operative

11 from the beginning. The Defence of Mr Kordic sticks

12 entirely to our objection to the motion about the

13 abeyance, but we have to give some additional

14 elements. From the motion filed on 19th December 1997

15 and also in the response to our response of

16 28th January 1998, and also from what we have heard

17 from our learned colleague this morning, there is one

18 conclusion that we can see, that the real need for this

19 additional time is the need to make more

20 investigations. Were it not so, then if we see the

21 separation from the cases concerning Blaskic and

22 Aleksovski and the withdrawal of the charges concerning

23 Santic and Skopljak, they would need only a few days to

24 reorganise the indictment, and also it proves to

25 another fact which is an even more important one, that

Page 58

1 is that the Prosecution is not ready to proceed to

2 trial.

3 In the response given on 6th January 1998,

4 the Prosecution ask for a deadline until 2nd March 1998

5 for the indictment to be amended. We consider that

6 such a long delay should not be granted because in that

7 case, the defendants' right to a quick trial would not

8 be permitted. We cannot stop the proceedings for the

9 moment just because of this indictment, or we cannot

10 accept such long delays.

11 In case that happened, then the Prosecutor

12 would simply give a de facto -- be given de facto

13 control over the case. It is true that the accused

14 surrendered at different times during a two year

15 period, which resulted in separate cases, but from the

16 viewpoint of the Defence of Mr Kordic, we would like to

17 point out that that very fact should not in any case

18 have negative consequences on the accused that are

19 present here.

20 Every defendant responds only for their own

21 acts, they respond individually, according to the

22 criteria of subjective guilt. Within that context, to

23 try and call for an economical proceedings is something

24 that should not be called upon. Your Honours, both

25 accused have surrendered only to the International

Page 59

1 Tribunal out of their own free will, and not to the

2 Prosecution, not only because the promises were given

3 that the trial will take place quickly, but also for

4 the regularity of the proceedings. The defendants have

5 got the right to a quick and fair trial, and that is

6 precisely what the Prosecution is opposing at the

7 moment.

8 I also have to say that the Defence cannot

9 accept at all, and I might even say that we do not

10 consider it fair, when the Prosecution states that in

11 the case Prosecution versus Blaskic that the motions

12 had been filed and that there were decisions that were

13 already made, the rulings were given according to these

14 motions, and there is obviously some similarity with

15 the motions filed in this case; activities linked to

16 rulings and decisions in a different case cannot

17 influence the position of this particular accused

18 because the case is different. That is why we consider

19 that the Tribunal should set the date for the hearing

20 about the motions filed by the Defence because it is

21 only up to the Prosecution to say whether and how they

22 are going to accept or refuse our requests.

23 That is why, your Honours, we would like to

24 propose that the Prosecution's request be not granted,

25 because it is unfounded, and that you set a date for a

Page 60

1 hearing. Thank you.

2 JUDGE JORDA: Thank you. Since your

3 colleague indicated that you would be dividing the

4 work, that you would be splitting the work, you may

5 then proceed.

6 MR KOVACIC: First I would like to say that

7 I fully join the opinion of my distinguished colleague,

8 but, however, I would like to add only a couple of

9 points, and I will try to be very brief.

10 First, what we just have heard from the

11 Prosecutor's desk this morning. I think that the

12 bottom line of that message was that the Prosecutor's

13 Office told us once again, "we are not ready to go to

14 the trial", in spite of the fact that the indictment

15 was brought on November 2nd or 5th 1995. More than two

16 years have passed, and the Prosecutor is telling us

17 again, "we are not ready to go into the trial".

18 Also the other message was that when the

19 Prosecutor decided to give up on the accused from the

20 same case in the same indictment, Santic and Skopljak,

21 they are now basically trying to capitalise on their

22 mistakes, on their errors. We all know why and based

23 on what material formerly accused Santic and Skopljak

24 were here in The Hague and suddenly they are out of the

25 case. Obviously the indictment was not ready at the

Page 61

1 time when it was brought and that is the core of the

2 problem we are today discussing.

3 I would also like to add that in all criminal

4 systems in all countries, either continental or

5 Anglo-Saxon system, there is a presumption that as soon

6 as the Prosecutor brought the indictment, he is ready

7 to go to the courtroom. It is obvious that the

8 Prosecutor should do so, because at that very moment

9 when the indictment is brought, we are entering the

10 area of the rights of the accused person, particularly

11 when we are having a case where custody or detention of

12 the defendant is obligatory.

13 So one should be very careful when bringing

14 up the indictment. One should be sure that there is at

15 least prima facie a case. However, if the Prosecutor

16 wished to amend the indictment, he can do so, he is

17 entitled to do so at each phase of the trial, in

18 pre-trial phases and during the trial; but he is not

19 entitled to ask a court to stop with the proceedings,

20 which necessarily means delay, while he is considering

21 to amend the indictment. We have been told from the

22 very beginning of this case, shortly after the

23 defendants voluntarily appeared before this court, that

24 the Prosecutor would amend the indictment. However,

25 nothing happened, and now after more than three months,

Page 62

1 almost three months, the Prosecutor is still telling

2 us, "we will amend the indictment". We will be happy

3 to see that.

4 Indeed, I would refer only to the one small

5 detail. In an effort to save time, to try to

6 co-ordinate, to try to work together, among other

7 things, I send a letter to the Prosecutor on

8 17th November. A couple of issues were discussed.

9 Among other things, I ask the Prosecutor once again

10 about amendment of the indictment. I told them that

11 there is obviously something in the process, that he

12 obviously will seek an amended indictment, and I ask

13 him, I will read that sentence:

14 "If that presumption is correct, I request

15 that amendment is done as soon as possible in order to

16 ensure that the charges are identified promptly so that

17 I may proceed with preparation of defence. It is

18 obvious that unjustifiable delay in amending the

19 indictment would cause hardship for the Defence, not to

20 mention the defendant's right to a speedy trial."

21 Soon I received an answer on November 28th,

22 where the Prosecutor once again stated and confirmed

23 his position. Shortly he said:

24 "The Prosecutor merely wishes to emphasise

25 that it is the prerogative of the Prosecutor to amend

Page 63

1 an existing indictment at either pre-trial or after the

2 trial has commenced", et cetera.

3 So I think there is no dispute on the fact

4 that the Prosecutor very well knows for a long time

5 that there is a need to amend the indictment. We

6 cannot accept that this fact influences on the position

7 of the defendants. Their basic rights in this

8 procedure is expeditious and fair trial. In this phase

9 of the trial, I mean in the pre-trial phase, the point

10 is -- the accent is on the fast, speedy trial. In this

11 phase of the trial, we can lose, Defence may lose, two,

12 months, five months, six months, eight months, ten

13 months, so each party should be very disciplined in

14 planning what to do and how to proceed, because in this

15 case we have defendants in custody and we have to act

16 accordingly.

17 For that reason, my final proposal is the

18 same as of my distinguished colleague, that the motion

19 of the Prosecutor to suspend the proceedings should be

20 denied. Thank you.

21 JUDGE JORDA: Does the Office of the

22 Prosecutor wish to add anything?

23 MS SOMERS: Yes, your Honour, thank you for

24 the opportunity. Your Honours, learned counsel, a few

25 points. First of all, I think that, and not

Page 64

1 necessarily in any type of self-serving statement, but

2 I think good faith has very much been the byword of the

3 behaviour of the Prosecutor in this entire set of

4 proceedings, and in terms of having taken no action on

5 the indictment, I would have to indicate that having

6 withdrawn the indictment as to two individuals in a

7 jointly charged instrument I think is a significant

8 advancement for this courtroom and for both sides.

9 In terms of the amount of time, again I think

10 that no one should profit by deliberate dilatory action

11 and although surrender did occur, it occurred two years

12 after a notice of the existence of the indictment. The

13 standard that has been discussed was based on Rule 47

14 which clearly contemplated at that time a much lower

15 level of proof. As the court may remember, in the

16 issue of our seeking withdrawal of the earlier

17 indictments, we conceded a prima facie case clearly was

18 there. However, to proceed to trial we need to have

19 the proper standard met and we are diligently working

20 on making sure that the evidence we have meets that

21 standard.

22 I think expeditiousness cannot exist in a

23 vacuum and in this type of case, with its complexity

24 and with its due speed with which we have proceeded

25 thus far, given all circumstances, the balance between

Page 65

1 fairness and expeditiousness must be very carefully

2 looked at and this court has always at all times done

3 so. To hurry would not necessarily mean to be fair, so

4 we ask that the court grant our motion so both sides

5 have the fairness that so properly belongs in a case

6 this complicated. Thank you very much.

7 JUDGE JORDA: I turn to my colleagues,

8 perhaps my colleague Judge Riad or Judge Rodrigues have

9 questions. I myself do have some comments that I would

10 like to make. I am going to turn to the Prosecution

11 who is making this request. The dates do not really

12 speak highly for the Prosecutor, that is the least one

13 can say, since the accused have been here since

14 October.

15 I think we have to start from legal

16 perspectives and application of the Rules which bind

17 both of us. It is true that the rights of the

18 Prosecutor are always connected with the indictment,

19 but the first question that I ask is to the

20 representative of the Prosecutor who has just spoken

21 and who has just said that the level of proof has

22 changed over the last two years in relation to the

23 indictment. If you wish to answer me you may, but the

24 judges confirmed indictments two years ago, they

25 continue to do so. I do not think there are any

Page 66

1 particular guidelines that would have been given by the

2 plenary session. It is true, according to the

3 temperaments of the different judges and depending on

4 their different legal cultures, the level of

5 presumption is rather high, I do agree. It is true

6 that those who work in continental law have a level of

7 presumption that is broader than the prima facie level

8 that one finds among legal specialists of the

9 commonwealth system. I do not know who confirmed this

10 indictment, but you do know, Ms Somers, that there are

11 not many civil lawyers in the first group of judges at

12 this Tribunal.

13 This is my first comment and I would ask that

14 you respond to that. My second comment, we are looking

15 at this problem, which is that if we were to hold in

16 abeyance the preliminary motions, you would modify or

17 amend the indictment. According to that reasoning, the

18 indictment can be amended during the trial and we agree

19 with that, but for you to ask for this abeyance it

20 means that you intend to make substantial amendments to

21 the indictment and the fact that Santic and Skopljak

22 are no longer being prosecuted -- and what has struck

23 me is that this argument has been used by both sides,

24 really does not convince me very much, because you have

25 withdrawn the Prosecution against two of the accused

Page 67

1 but nonetheless the indictment remains the same.

2 I would go even further than that. I would remind you

3 that the indictment was the same originally insofar as

4 it included Tihomir Blaskic and Aleksovski.

5 I do have to say this, because this is a

6 public hearing, that if there is an indictment that

7 should be ready, that is the one, because in the end,

8 both trials have begun, one in June and the other --

9 I turn to my colleague on my left, Judge Rodrigues, who

10 is the presiding judge of that Trial Chamber and who is

11 hearing the Aleksovski case, so I do have to say that

12 at least from the point of view of legal appearance, at

13 least from that appearance, we are getting to the

14 substance of this matter; if there is an indictment

15 that has to be ready, it is the one that involves two

16 of the co-accused whose trial has begun. Therefore the

17 argument of Skopljak is not particularly very

18 convincing.

19 My third question, Ms Somers, has to do with

20 the additional investigations. Here too we find an

21 indictment which goes back two years. Many problems

22 are common to both the trials. I know that there are

23 walls separating both of them, both the trials, and the

24 Defence has just said that, that these are different

25 defendants, they are not all the same, and I know we

Page 68

1 are talking about individual criminal responsibility

2 and you are dealing now with professional judges who

3 understand that fact very well. Nonetheless, as

4 regards the basis upon which we are working now, that

5 is the indictment, we know that the facts are the same,

6 the acts are the same. There were atrocities that were

7 committed on some of the territory of Central Bosnia.

8 As regards these three points, I would like

9 to have some comments, responses that is. The

10 fourth point has to do with the schedule. Although

11 I can understand that a significant amendment of the

12 indictment will cause further delays, I do understand

13 that, but I have two other questions which then arise.

14 What are the significant amendments to the indictment,

15 and I do not want to hide the fact from you that I am

16 beginning to worry a bit. Yesterday two of the judges

17 in this Chamber presided over an initial appearance of

18 another accused who has nothing to do with the problems

19 of Central Bosnia and we were told there would be

20 amendment to the indictment.

21 We were also told during another trial -- is

22 there a kind of tornado going through the Prosecutor's

23 Office which is changing all of the indictments? If

24 that is so, then the judges at least should know. Is

25 there a policy change and as regards our trial, I would

Page 69

1 like to know whether these are significant and

2 substantial amendments, you must have an idea by now.

3 I am not going to ask you to argue on that, Ms Somers,

4 because if the Trial Chamber accepted the amendment to

5 the indictment then you would make those amendments in

6 proper time. They would have to be significant

7 amendments. If it just has to do with defects in the

8 form of the indictment, it would be a matter of

9 responding to the Defence motion who filed a

10 preliminary motion on the defects of the form of the

11 indictment. Everything leads me to think it is not a

12 simple formal amendment to the indictment, otherwise

13 you would have responded to the preliminary motion of

14 the Defence, but that we are talking about significant

15 amendment and if that is the case, one is entitled to

16 wonder why the Office of the Prosecutor for the last

17 two years now was not able to realise that in this case

18 the date the accused would be present in this courtroom

19 significant amendments would be made to the indictment.

20 My last question, which I think is the

21 fifth , is to know why there are additional

22 investigations in a case file which should more or less

23 be prepared now. I understand that you have to locate

24 the witnesses again. In all of the cases, when the

25 witnesses come in a year or two years after the

Page 70

1 indictment, I understand that they have to be found or

2 new witnesses must be located, but now you are talking

3 about additional investigation. Are we talking about

4 something significant or not so significant? The Trial

5 Chamber wants to know this, wants to have an answer

6 before it grants or does not grant the motion to hold

7 in abeyance the pre-trial motions.

8 I do not know whether Ms Somers or Mr Harmon

9 will answer my question, but I would like one of you to

10 answer them please.

11 MS SOMERS: Thank you, your Honours. I hope

12 I have properly noted the order of things.

13 JUDGE JORDA: One moment, please. (Pause).

14 I needed to consult my colleagues. Ms Somers, would

15 you please respond to the five questions that I have

16 asked on my own behalf and on behalf of my colleagues.

17 MS SOMERS: Yes, your Honours. I think the

18 level of proof as we interpret it in Rule 47 has

19 typically contemplated additional investigation even

20 once an accused comes into custody and to bring it up

21 to the trial standard is our goal, so that we can

22 actually start. Clearly a prima facie case was set

23 forth and as we have interpreted it, it requires some

24 additional shoring up.

25 The similarity of some of the charges is

Page 71

1 another point that was raised by the court with the

2 Blaskic case, has merit. However, there are

3 substantial differences that at this point we are

4 trying to clarify as to the extent of the contemplated

5 changes. There are currently witnesses who were

6 unavailable in the past who are available now, who will

7 probably help us or will help us clarify types of lines

8 of authority that become issues in this type of case,

9 and we need -- we have needed and we continue to need

10 the time we request in order to perfect our assessment

11 of this issue.

12 I think the other point was the additional

13 investigation; I do not know it would be considered a

14 separate investigation, but it is to make sure that

15 upon which we predicated the case initially is sound

16 and that anything new that has come into our possession

17 is integrated into the indictment as we would like to

18 present to the court. I hope I have touched the

19 issues, I do not know if I jotted them down correctly.

20 If I need to answer anything more, please let me know.

21 JUDGE JORDA: Thank you for having answered.

22 If you did answer correctly, you will see it in the

23 decision we will render. Turning to the Defence, do

24 you have any additional comments you would like to make

25 in relation to this discussion between the judges and

Page 72

1 the Office of the Prosecutor. Would you like to make

2 any additional comments? Mr Kovacic?

3 MR KOVACIC: Perhaps literally only one or

4 two words, I really would not like to waste our time.

5 The point is that the Prosecutor is insisting on new

6 investigation, additional investigation. They should

7 consider a new indictment, they should consider giving

8 up this indictment. We cannot keep in detention, in

9 custody, the defendants and going for new

10 investigation. That is impossible. That is like

11 Vishinski in Soviet Union in 1923. We know there is

12 something but we do not know actually what there is.

13 Of course I am trying to emphasise the thing, but it

14 should be carefully considered, are we talking about

15 new indictment --

16 JUDGE JORDA: Excuse me, I did not authorise

17 you to -- I cannot, neither myself nor my colleagues,

18 in this International Tribunal which was created by the

19 United Nations, I cannot permit you to refer to a trial

20 which everybody knows was a trial which was not fair,

21 which was not rapid and I ask you to withdraw this

22 statement in reference to the Office of the Prosecutor.

23 MR KOVACIC: Your Honour I, of course,

24 withdraw it. That was not really my intention. My

25 intention was merely to point out that sometimes the

Page 73

1 Prosecutor does things in a different way to what is

2 expected. I am just stressing that we should be very

3 careful in how far are we going in amended indictment,

4 what are we really talking about? Thank you, your

5 Honour.

6 JUDGE JORDA: Excuse me, I had thought no one

7 wanted to say anything further.

8 MR NAUMOVSKI: With your permission, your

9 Honour, just a brief comment. I second my colleague

10 Kovacic that in essence the Prosecution, as was pointed

11 out, have to start a new investigation rather than

12 expand on an already existing one. This I gleaned from

13 a detail that emerged when you asked the small

14 question, when you asked about the changes, were there

15 any essential changes to be made. The distinguished

16 colleague who did not need to say this today, but

17 needed to point out the direction in which they would

18 go, so with this avoidance of that issue, we could

19 glean that we would know about where this indictment is

20 going, based on this investigation that is yet to

21 proceed. So this is the only further point that

22 I wanted to make, thank you.

23 JUDGE JORDA: All right, the discussion about

24 this motion is now almost completed, but I would like

25 to go forward and make a practical comment.

Page 74

1 Do you believe, Ms Somers, that you will be

2 prepared with the amendment to the indictment by what

3 date? When we look at all that has been said, when do

4 you think you will be able to present these amendments,

5 if they are granted to you by the Trial Chamber? How

6 long would it take you?

7 MS SOMERS: Your Honours, we set forth in our

8 reply yesterday that we are seeking to 2nd March.

9 JUDGE JORDA: Yes, I read that. I am saying

10 in light of what has been said right here, let me

11 remind you that this is now the end of January and that

12 since November, you have been aware that you knew you

13 were going to make a motion permitting you to make

14 substantial amendments to the indictment. I allow

15 myself to say that Mr Cerkez and Mr Kordic have been

16 here since October. Perhaps you cannot answer this

17 question right now, so you remain with your request for

18 2nd March, is that correct?

19 MS SOMERS: We would respectfully ask the

20 court to consider that date, we think it should help us

21 substantially in doing the best job we can do.

22 JUDGE JORDA: Let me once again turn to my

23 colleagues to ask them whether they have any additional

24 comments they would like to make. I believe there is

25 no reason to speak any further about the presentation

Page 75

1 of this motion. We will now take a few minute break,

2 long enough in order for us to have a closed session

3 status conference, which will allow us to settle some

4 practical questions relating to the organisation of the

5 trial.

6 (10.35 am)

7 (Hearing adjourned)