1 Friday, 16 May 2008

2 [Open session]

3 [The Accused Pavkovic not present]

4 [The accused entered court]

5 --- Upon commencing at 9.00 a.m.

6 JUDGE BONOMY: Good morning, everyone. We will continue with the

7 evidence of Professor Lukic.

8 [The witness entered court]

9 WITNESS: RADOMIR LUKIC [Resumed]

10 [Witness answered through interpreter]

11 Questioned by the Court: [Continued]

12 JUDGE BONOMY: Good morning, Professor Lukic.

13 A. Good morning.

14 JUDGE BONOMY: There were two matters from yesterday that you

15 thought you might be able to assist further with this morning. One was

16 the question whether the constitution of the Republic of Serbia dealt at

17 all with the role of the Serbian authorities in controlling the border

18 area. Are you able to help further on that?

19 A. I said yesterday that the constitution of the Federal Republic of

20 Yugoslavia placed within its jurisdiction inter alia border crossing and

21 the control of circulation of trade, services, and passenger traffic

22 across the border. The control of the circulation of goods and services

23 was carried out by a federal organisation. It was called the Federal

24 Customs Office.

25 Other passenger traffic across the border at organised border

1 crossings was controlled by the Ministries of the Interior of the two

2 member republics at the border crossings that were set up in their

3 territory.

4 JUDGE BONOMY: Are you able to identify any provision in the

5 constitution of the Republic of Serbia that deals with that?

6 A. I explained to you yesterday what the mechanism was in case any

7 of the functions that were envisaged to be performed by the federal

8 government is not done in accordance with the federal law on the

9 implementation of the constitution of the Federal Republic of Yugoslavia.

10 That meant that the regulations in place for the Socialist Federal

11 Republic of Yugoslavia that were in place and that were applicable to

12 this area were to be implemented by the relevant organs of the member

13 republics. So that was the decision that was up to the constitutional

14 legislator, who when the federal law on the implementation of the

15 constitution of the Federal Republic of Yugoslavia was passed, put in

16 place this kind of a situation in this area or this kind of a mechanism.

17 JUDGE BONOMY: Did that give the president of the FRY authority

18 over the MUP so far as it related to persons crossing the border?

19 A. What kind of authority did you have in mind?

20 JUDGE BONOMY: Command authority. In other words, the ability to

21 take decisions that would affect -- directly affect the activities of the

22 MUP to protect the integrity of Yugoslavia.

23 A. Probably on the military regulations there should have been some

24 kind of cooperation envisaged between the republics and also between the

25 military and police forces of the federal state and the respective forces

1 of the member republics.

2 JUDGE BONOMY: What you have is a federal task being carried out

3 through necessity by a republican organ in circumstances where there's a

4 threat to the security of the state because of terrorist activity and

5 unauthorised crossing of the border, and I'm wondering how

6 constitutionally that affected the relationship between the president of

7 the FRY and the MUP, and I was hoping you as a constitutional expert

8 might be able to assist us.

9 A. As for explicit provisions about that, there are none in any of

10 the constitutions, I believe, because the minister of the interior of

11 each member republic is responsible for the work of his ministry on the

12 one hand, and to the representative bodies of the member republics, and

13 on the other, the government of the member republic directs the work of

14 the Ministry of the Interior.

15 JUDGE BONOMY: Thank you. Now, the other matter that was left

16 outstanding is related to this, and that was about the -- the basis for

17 Milosevic to reach an agreement with Holbrooke about the reduction of the

18 numbers of MUP forces in Kosovo. Now, what was his constitutional

19 authority to do that?

20 A. I think, Your Honour, that I answered to a similar question you

21 asked yesterday, and in my answer I referred to the relevant articles of

22 the constitution of the Federal Republic of Yugoslavia, taking as my

23 starting point what I always have to bear in mind as a lawyer and that is

24 the fact that the Federal Republic of Yugoslavia was an entity under

25 international law as an independent and sovereign state and that there

1 are organs of international relations and that it had the authority to

2 enter treaties under international law, whereas its member republics did

3 not have those powers.

4 I referred to -- let me repeat now once again but I think that it

5 is in the transcript from the session yesterday, I think that it was the

6 same question, and in the end I said that this was possible because the

7 president of the Federal Republic of Yugoslavia represents the country in

8 the country and abroad, whereas the president of the republic as the head

9 of state, on the other hand, not only in accordance with the general

10 international law but also under the Vienna Conventions on treaty law, is

11 one of the bodies that has this contractual -- that embodies this

12 contractual power of the federal state.

13 JUDGE BONOMY: You did deal with the matter yesterday, but at the

14 end you said: "How this agreement was reached, I don't know, but I'm

15 trying to see whether it can be brought into line with constitutional

16 norms," and I thought that you were going to be more specific today.

17 It's one thing, though, for a president to represent a state in a

18 formal sense, and it's another thing for the president to be able to

19 commit the state to an agreement or a policy or whatever. Now, are you

20 saying that it was within the power of the president of the FRY, in terms

21 of the constitution, to actually reach an agreement with Holbrooke?

22 Never mind the government, prime minister, or anyone else, it was within

23 Milosevic's power?

24 A. Let me say this again. It appears to me that I have answered

25 your question now how this agreement was reached.

1 JUDGE BONOMY: You can answer that one yes or no. Are you saying

2 it was within his constitutional power, yes or no?

3 A. To enter an agreement because he represents the country, yes, he

4 did. It was within his power. A lot of things have changed under

5 international law, so there may be this idea that agreements are reached

6 by persons, not by entities. I cannot view this as a lawyer in this way,

7 but in the country where you come from, no law can be made valid unless

8 it is first approved by the Queen with her private council. First it has

9 700 members, and now there are only two secretaries, one secretary and

10 two members. So without that, no law is law in your country.

11 JUDGE BONOMY: That may be, Professor, but it's not assisting my

12 understanding of the position in Yugoslavia. I just want to be clear

13 that Milosevic could commit the government of Yugoslavia to the

14 obligations he entered into with Holbrooke. That was within his

15 constitutional power.

16 A. Such an agreement could have been entered into by the president

17 of the republic, federal prime minister and minister of foreign affairs.

18 Those are the representative organs, organs that undertake obligations

19 on behalf of the state and create rights and powers for

20 themselves.

21 JUDGE BONOMY: With the greatest of respect, you're not answering

22 my question. I want to know whether the president on his own, without

23 reference to anyone else, was capable of entering into an agreement with

24 Holbrooke in the terms in which he did committing the government of

25 Yugoslavia to that agreement. Yes or no?

1 A. Let me say this again with all due respect that I can only give

2 you the answer that I've already given and that according to my legal

3 knowledge and my legal approach I can actually give you. These are

4 hypothetical questions. If --

5 JUDGE BONOMY: What do you mean hypothetical? Milosevic did

6 enter into agreement with Holbrooke about the MUP.

7 A. You asked me a question of this kind. I hope that the

8 translation was correct. If Milosevic -- I'm quoting back to you what

9 you said. If Milosevic entered into an agreement with Holbrooke without

10 asking anyone whether he could commit the federal government to actually

11 implement this agreement, I think this is a hypothetical question and I

12 cannot answer.

13 JUDGE BONOMY: Do you know that the facts are different from

14 that? Tell us your -- tell us your understanding of the factual position

15 then, because our understanding is that he is the person on one view of

16 the evidence in the case that entered an agreement with Holbrooke.

17 A. Well, you may know that. I don't know anything about those

18 facts. I really don't know anything about those facts. It's possible

19 that you --

20 JUDGE BONOMY: Professor, I'm not prepared to enter into

21 arguments with you from the Bench. Your job here is to answer my

22 questions to the best of your ability. Now, I am putting a position to

23 you, and I want an answer to that situation, and that is that -- and the

24 question is whether Milosevic on his own had authority under the

25 constitution to enter into the Milosevic-Holbrooke Agreement and to

1 commit the government of Yugoslavia to that agreement, and I expect you

2 can answer that yes or no and then I'll follow it up with other

3 questions.

4 A. I don't know what other organs apart from the three that I

5 mentioned could enter into agreements of that kind. The president of the

6 Republic of Serbia could not do that because Serbia was merely a federal

7 unit. It did not have the contractual capacity. Under the Vienna

8 Conventions -- Convention on international treaty law the federal units

9 do not have this kind of capacity to enter into any contracts.

10 JUDGE BONOMY: Where does the president of the republic come into

11 this? I'm not asking you about that. Please do not try to divert

12 attention from the issue. The issue is a very simple one. The extent of

13 the power of the president of the FRY to enter into an agreement he

14 entered into with Holbrooke. Now, did he have power under the

15 constitution to do that? And if you're not going to answer me, then

16 we'll move on and we'll regard you as unable to answer the question.

17 A. I've answered you to the best of my ability as to the legal

18 position. Who else could have entered into such an agreement apart from

19 the head of state, the Minister of Foreign Affairs, or the federal Prime

20 Minister, because Yugoslavia at that time was seen as a single entity

21 under international law. After all, the member republics could enter

22 into international treaties in affairs that were within their purview but

23 through federal organs, to the organs of the federal state.

24 JUDGE BONOMY: I'm just looking for one of your earlier answers

25 so that I can have it retranslated.

1 I would like CLSS to provide a formal interpretation of page 5,

2 lines 16 to 20. You earlier have been translated as saying that the

3 people who could enter into such agreement were the president of the

4 federal government, the Minister of Foreign Affairs and the president of

5 the republic and that has partly contributed to this exchange. You've

6 now clarified the third person as the prime minister of the federal

7 republic.

8 A. Again this is lack of understanding.

9 JUDGE BONOMY: Just a moment. Sorry, you were saying?

10 A. This is just different terminology. I am talking about the

11 president of the federal republic of Yugoslavia.

12 JUDGE BONOMY: I don't think so. You had -- it may be a

13 mistranslation. We'll get it clarified in due course.

14 A. The second is the prime minister of the federal government, and

15 the third person is the Minister of Foreign Affairs. After all, under

16 international law and national law there is the instrument of

17 ratification, because those persons conduct talks. They do not get any

18 special authority for any such talks, but most of the treaties and

19 contracts have to be gone over and ratified at a later stage. Not all of

20 them, but for the most part yes.

21 JUDGE BONOMY: Professor, what do you know about the

22 Milosevic-Holbrooke Agreement?

23 A. I know very, very little about this agreement because I did not

24 deal with that specifically, and it was not part of my expert report.

25 All I know comes from the minutes that were submitted to me yesterday by

1 the Prosecution. I have no other knowledge of it.

2 JUDGE BONOMY: What minutes are you referring to?

3 A. The document that I was given by the Prosecution to go over it

4 during the break yesterday. That's the only document that I was given.

5 JUDGE BONOMY: Just finally on this point, what provision of the

6 FRY constitution is it that gives the president of the FRY the authority

7 to enter into such negotiation? Is it Article 77 or is it some other

8 article?

9 A. That's Article 96, paragraph 1, where it says that the president

10 of the republic shall represent the Federal Republic of Yugoslavia at

11 home and abroad.

12 JUDGE BONOMY: And that's it?

13 A. Yes. Yes. In my opinion that's it, because in our language the

14 word to represent has that meaning in constitutional law and

15 international law related to this.

16 JUDGE BONOMY: And if -- if you can then put a badge of

17 international or foreign relations on any issue, it then falls within the

18 area of responsibility of the president of the FRY.

19 A. Foreign policy is within the purview of the federal government as

20 can be seen from paragraph 1, Article 99, but international

21 representation of the Federal Republic of Yugoslavia, which includes the

22 capacity to sign treaties regardless of any other mechanism of

23 ratification or anything else of the sort is within the purview of the

24 president of the Federal Republic of Yugoslavia, of the prime minister of

25 the federal government, and the Minister of Foreign Affairs.

1 [Trial Chamber and legal officer confer]

2 JUDGE BONOMY: I can turn now to the appointment of Mr. Sainovic

3 to deal with matters affecting Kosovo.

4 What influence do you think it is appropriate for the president

5 of the FRY to have on that appointment, again within the constitution?

6 A. The only thing I know about the duties and obligations that

7 Mr. Sainovic as the federal deputy prime minister in relation to Kosovo

8 stems from yesterday's document which was given to me to read and where

9 in one place I found mention of a body which was in charge of Kosovo, or

10 tasked with the issue of Kosovo.

11 JUDGE BONOMY: You've provided the report that makes it clear

12 that the prime minister would appoint the deputy prime minister.

13 A. Yes. Yes, certainly.

14 JUDGE BONOMY: To what extent would you consider it appropriate

15 for the president to bring influence to bear on the prime minister in

16 relation to that appointment?

17 A. All organs have to cooperate among themselves to work, exchange

18 ideas. Contact between the highest constitutional authorities is not

19 prohibited.

20 JUDGE BONOMY: So would it be appropriate for the president to

21 make suggestions to the prime minister about the tasks he should assign

22 to a deputy prime minister?

23 A. Well, in any case they have to exchange opinions. Opinions are

24 also exchanged about people, but the appointment is in the hands of the

25 federal government. The predominant position of the federal prime

1 minister means that he decides what tasks a deputy prime minister will

2 carry out within the sphere of competence of the federal government.

3 JUDGE BONOMY: I understand that. There's no -- there are no

4 tricks in these questions. You and I both know there are circumstances

5 in which it's inappropriate for organs to communicate with each other.

6 For example, it's inappropriate for the government to communicate with a

7 judge in relation to his activities. So it's not a simple matter of

8 everybody must cooperate. There are constitutional provisions which

9 regulate how organs relate to one another, and within that I entirely

10 accept that there must in some circumstances be discussion and so on. I

11 just want to know what is right and what's wrong in relation to influence

12 in terms of the constitution. So let me make it more specific.

13 Is it appropriate within the constitution for the president of

14 the FRY to say to the prime minister, "I want you to appoint X, Mr. X, as

15 deputy prime minister"?

16 A. Well, you know what? It may be an issue of wording, of the way

17 this is styled, but I don't see why the president of the republic should

18 not consult with the prime minister, because they belong to the same type

19 of organ. These are organs of executive government, the executive branch

20 of government, and the largest part of the executive branch of government

21 is wielded by the government and a very small part by the president. So

22 one can conclude that the federal government is almost the exclusive

23 representative or almost the exclusive body implementing executive power.

24 So this kind of communication and cooperation is normal in our country.

25 In the USA the president of the republic is not allowed to participate in

1 any way with the two representative houses in their work.

2 JUDGE BONOMY: All right. Well, really -- I'm afraid it doesn't

3 help us, Professor, to travel to the USA on this either, or for me to

4 travel home, for that matter.

5 Let me read to you from the former Prime Minister Bulatovic's

6 book. "Milosevic's second request was to charge Nikola Sainovic, Deputy

7 prime minister, with running political activities related to obligations

8 concerning Kosovo and Metohija."

9 Now, my question's a simple one. Is it okay for the president to

10 do that?

11 A. Within the scope of communication with the federal government the

12 giving of proposals is normal. It's the federal government that

13 decides -- or, rather, the prime minister of the federal government, in

14 this case Mr. Bulatovic, is the one who decides whether he will take on

15 board this proposal or not.

16 JUDGE BONOMY: So is the answer yes, it's okay?

17 A. It's not prohibited by the constitution. This kind of

18 communication and cooperation among organs is not prohibited by the

19 constitution. Everything else is psychology, and -- well, it says here

20 request or proposal. This can -- request can be translated into the

21 Serbian language in various ways. The manner of communication among

22 organs not prescribed by legislation. There are no magic formulas

23 either, oaths and so on.

24 MR. IVETIC: For purposes of the transcript, I believe the

25 witness started --

1 JUDGE BONOMY: Just a second, Mr. Ivetic.

2 [Trial Chamber confers]

3 JUDGE BONOMY: Mr. Ivetic.

4 MR. IVETIC: From the transcript, Your Honour, page 12, line 14 I

5 believe the witness said "yes" in Serbian. If we can just have CLSS

6 check that out, at the beginning of his answer.

7 JUDGE BONOMY: Mr. Ivetic is pointing out that -- that where I

8 asked you if the answer was, yes, it's okay, you actually said, "Yes, in

9 Serbia it's not prohibited by the constitution," but I'm not asking you

10 about Serbia. I'm asking you about the FRY.

11 MR. IVETIC: He didn't say "in Serbia." In Serbian he said --

12 JUDGE BONOMY: In Serbian. I'm sorry. I'm sorry.

13 Do you know whether Milosevic and Bulatovic were members of the

14 same political party?

15 A. I don't know, but I assume they were not, because Mr. Bulatovic is

16 from Montenegro, and at that time there was no federal political party,

17 at least not in parliament in Yugoslavia.

18 JUDGE BONOMY: Do you know whether they shared the same political

19 philosophy?

20 A. I really can't say that at present. Their political thoughts and

21 philosophies is something I have not made a study of.

22 JUDGE BONOMY: These events that I've been referring to, the

23 charging of Mr. Sainovic with responsibilities for Kosovo, happened at

24 the time you were the Foreign Minister of Republika Srpska. Sorry,

25 Deputy Foreign Minister.

1 A. These events occurred at a later date. I was the Deputy Minister

2 of Foreign Affairs of Republika Srpska until early January 1998 when a

3 new government was formed and this ministry ceased to exist. All affairs

4 concerning the cooperation of Republika Srpska with international

5 organisations and other states were taken over by the prime minister

6 within the scope of Bosnia and Herzegovina, which was a single legal

7 entity at the time. So I was then no longer the deputy Minister of

8 Foreign Affairs.

9 JUDGE BONOMY: One of expressions you use in your report is

10 judicial autonomy. What do you mean which judicial autonomy of a

11 province?

12 A. This expression means that a province has its own courts and that

13 trials, as a rule, or legal proceedings end in the province and that the

14 courts of the state, whether the state is a federal unit, so it's a kind

15 of internal state or federal unit, as a rule cannot decide on the

16 judgements of the highest court or courts in an autonomous province, or

17 as is said in my language, a unit of political territorial autonomy.

18 JUDGE BONOMY: Now, the autonomous provinces had their on

19 constitutional courts as well; is that correct?

20 A. Yes. Under the constitution of 1974, the autonomous provinces

21 also had their own constitutional courts...

22 JUDGE BONOMY: And these existed until when?

23 A. They existed in formal terms until the constitution of 1990

24 entered into force.

25 JUDGE BONOMY: And were they abolished both in Kosovo and

1 Vojvodina?

2 A. In normative terms, yes, they were abolished both in Kosovo and

3 Vojvodina. Under the constitution the federal -- of Serbia under the

4 constitution of Serbia in normative legislative terms such courts exist

5 neither in the autonomous province of Kosovo nor in the autonomous

6 province of Vojvodina.

7 JUDGE BONOMY: I wonder if you could deal with that question

8 again. There's been a technical hitch in the recording of that answer.

9 I asked you whether they had their own constitutional courts and you said

10 they had under the constitution of 1974, and then there was a question

11 about the period of time that these operated. Could you deal with that

12 again.

13 A. The constitutional -- or, rather, constitutional courts do not

14 Exist in either of the two provinces under the constitution of Serbia

15 from 1990, because according to that constitution, both provinces have

16 the same legal constitutional position. In other words, in normative

17 terms there is no difference between them.

18 JUDGE BONOMY: When they -- when they did exist, did they have

19 the final say on constitutional interpretation? Was there no further

20 right of appeal beyond there?

21 A. When answering this question it's very important to bear in mind

22 what kind of constitutional issues could come up before the

23 constitutional courts of the provinces. These were only those issues

24 that concerned the constitutionality and legality -- or, rather, the

25 constitutionality of laws and the constitutionality and the legality of

1 other legal provisions, and there was a special category of legal

2 documents called general acts of self-management which were enacted in

3 the province. So those courts evaluated whether these documents and this

4 legislation was in compliance with the constitution of the province.

5 As regards the constitutionality and legality of this legislation

6 and its harmonisation with the constitution of the federal state, if

7 there was a claim that they violated that constitution, then if

8 proceedings were instituted not as an appeal or as a legal remedy in

9 relation to a decision handed down by the provincial Constitutional

10 Court, but if an issue was raised before the federal Constitutional Court

11 initially, then that court would decide on it.

12 JUDGE BONOMY: So why did these courts have to be abolished?

13 A. They had to be abolished because under the constitution of 1990

14 the highest constitutive act was not the constitution but the statute in

15 the provinces, and there are really no examples where an autonomous

16 province had its own Constitutional Court anywhere else.

17 JUDGE BONOMY: Is -- is the difference between constitution and

18 statute here a semantic difference or is there some crucial distinction

19 between the two?

20 A. Yesterday I think there was a question about that, and that was

21 that within the scope of the principles of the federal constitution of

22 1974 the provinces had competence, competence jurisdiction, which means

23 that they could decide on their organisation. Now a different kind of

24 organisation of provinces was envisaged, and the limits of that

25 organisation are represented by the constitution and laws of the Republic

1 of Serbia. So is it's not just a rhetorical difference. The difference

2 is in the general position of the province, and in my expert report and

3 in answer to the Prosecution question, I said that apart from two or

4 three major issues the republics were similar to federal units. In fact,

5 they were equal to federal units.

6 JUDGE BONOMY: But what -- what in practice was the difference in

7 the organisation of the provinces following the amendments of 1989 -- or,

8 rather, 1990?

9 A. The provinces had their representative bodies which enacted the

10 statute and decisions, but they could not pass laws as the legal

11 literature in my area calls them primordial laws because social relations

12 are primarily regulated bylaws, and the legislator decided what part of

13 normative government would be delegated to the provinces. The province

14 had its executive organ but it no longer had its Supreme Court, its

15 Constitutional Court. In other words, it did not have full judicial

16 autonomy.

17 [Trial Chamber confers]

18 JUDGE BONOMY: Your answer a moment ago is translated as saying,

19 "I said that apart from two or three major issues the republics were

20 similar to federal units." Should that be the provinces?

21 A. Provinces. That's what I said, the provinces resembled federal

22 units except into --

23 JUDGE BONOMY: Thank you. It's a translation problem. It's not

24 your responsibility.

25 It's a notorious fact of experience that when you give power in

1 any area of life to someone and you then try to take it away, it's likely

2 to cause difficulty. If you give someone a pay rise and then decide to

3 change your mind and take it off them, it's likely to create great

4 disappointment at the very least, and I think you accepted in your

5 evidence that in a number of areas the degree of autonomy that had

6 existed for the provinces was diminished as the result of the reforms at

7 the turn of this decade.

8 Why, as far as you're been able to discover, were these changes

9 made?

10 A. Of course, it's well known that what you said is so. There's an

11 old saying: God grant that you may first have something and then not

12 having if you wish someone ill. As a lawyer the main question is how an

13 autonomy comes into existence and whether it's an acquired right that

14 cannot be changed. In order to create an autonomy only the state has

15 competence, competence authority.

16 JUDGE BONOMY: Can I stop you there. I don't think that's the

17 issue, with respect. I have little doubt at the moment that you're

18 right, that it's open to -- in theory, for the body with the ultimate say

19 to make changes. That's not what I'm asking you. I'm asking you whether

20 your researches have established why this was done.

21 A. You asked me another question just about -- just when I was about

22 to enter into that. The reasons for those changes, as far as I know, lay

23 in the following: Serbia was blocked as far as enacting laws is

24 concerned under Article 300 and 301, principally Article 300 of the

25 constitution of Serbia which were laws which, as the constitutional norm

1 of the laws of Serbia stated were applied throughout the territory of the

2 republic. And furthermore, Serbia was the sole republic or federal unit

3 of the then state of existence which could not change its constitution on

4 its own. It was a truly intricate procedure.

5 So this kind of situation, constitutional situation in Serbia led

6 to a series of problems in the functioning of Serbia. And as far as I

7 know, there were some major unrests in Kosovo province, not in Vojvodina

8 province, just prior to the beginning of what was called by the Badinter

9 Commission the dissolution of Yugoslavia in which it was demanded that

10 Kosovo become a federal unit within the composition of Yugoslavia.

11 To the best of my knowledge those were the actual reasons for

12 this change in the constitution, and it was allowed to go through with

13 the changes in the SFRY constitution and the amendments dating back to

14 1988.

15 JUDGE BONOMY: And again I can understand that -- that there can

16 be deadlock and difficulty in government and that might explain

17 constitutional changes, but I think you also said that the result was

18 that there were four or five circumstances in which the actual autonomy

19 of the province was diminished. Can you tell me what these four or five

20 circumstances were?

21 A. I've already told you. First of all, the province did not have

22 its constitution or a province did not, and its organisation was

23 prescribed by the constitution of Serbia, the basic foundations, and that

24 was a code in Article 111 where it is stated which organs a province has.

25 So the province could not enact laws. The republic enacted regulations

1 for the execution of its laws, and Yugoslavia at that time had an

2 extremely difficult, complicated situation -- or, rather, system which

3 proved to be unsuccessful in implementing federal laws in federal units

4 and autonomous provinces, and similarly a catastrophically unsuccessful

5 system in enacting the laws of Serbia on the territory of the provinces.

6 Not all the laws were enacted. All laws that were applied throughout the

7 territory of the Republic of Serbia, in fact, and in the functioning of

8 each state they are extremely serious problems.

9 And finally the destiny and fate of that Yugoslavia shows the

10 contribution of such a complicated system of carrying out the laws and

11 enacting the laws and putting them into practice by one unit down to a

12 lower unit.

13 JUDGE BONOMY: There is some evidence before us of changes in the

14 arrangements for regulating contractual relations. Do you know about

15 that change?

16 A. I don't know what change you have in mind and what period of

17 time, what act, what contractual relations and so on and so forth.

18 JUDGE BONOMY: If you could look please at P858 and if we can see

19 on the screen amendment 32. You see that amendment now on the screen.

20 Can you tell me what the effect of that was, please?

21 A. Which part of the amendment are you thinking of in amendment 32?

22 JUDGE BONOMY: All of it.

23 A. There are different points.

24 JUDGE BONOMY: I would just like to know what the effect of that

25 amendment in its entirety was.

1 A. To what? Position of whom? In relation to whom?

2 JUDGE BONOMY: In relation to Kosovo. Did this -- this is an

3 amendment which holds true, as far as I can see, for the entire territory

4 of the Republic of Serbia, and it says that it regulates obligations and

5 contractual relations, determines condition for building, finance,

6 management, use of housing, the transactions involved in flats and

7 residential buildings, et cetera.

8 A. I don't have the constitution of Serbia in force at the time now,

9 and they were very long constitutions with 400-odd articles. So I don't

10 know all of them off the top of my head.

11 JUDGE BONOMY: I'm asking you because they're very difficult to

12 follow.

13 A. I'm trying to see what this regulates. Legalese at the time was

14 very complicated, the language used in law, because it had a lot of

15 elements that were not conducive to law, but that was what the times were

16 like.

17 Reading this, reading the text of this amendment, I can't

18 really -- I really can't answer your question because that is legal norm

19 enacted as a general one to be applied on the entire territory of the

20 Republic of Serbia, and I can't make any conclusions as to how it would

21 influence the position of Kosovo. And ultimately all these amendments

22 that you're showing me now were the subject of assessments by the

23 Constitutional Court of Yugoslavia, the amendments that I can't remember

24 now when the constitutional decision was passed and its number, but these

25 amendments having to do with the provinces were assessed by the

1 Constitutional Court of Yugoslavia positively, that is to say that they

2 were in conformity with the SFRY constitution.

3 JUDGE BONOMY: I'm sure they were, but it's not the issue that

4 I'm exploring, Professor.

5 A. Well, I'm giving you an answer to the best of my ability as I

6 understood your question and as far as I am able to organise my thoughts

7 in responding to that question.

8 JUDGE BONOMY: So what needs to be done, actually, is to make a

9 direct comparison with Article 299 of the previous constitution to see

10 whether it affected Kosovo at all, and it may be that it didn't. I

11 simply wanted to know if you knew the answer to that question.

12 A. In Article 299 competencies are -- and the functions of the

13 Republic of Serbia are regulated.

14 JUDGE BONOMY: If --

15 A. As far as I can remember now, let me repeat, the constitution of

16 Serbia at the time had 430 or 40-odd articles, the Vojvodina constitution

17 420, the Kosovo constitution 400-odd again, and I don't have them before

18 me here. I left them in my hotel room.

19 JUDGE BONOMY: If we move then to amendment 33, which is one that

20 is discussed in your report. It's on the next page.

21 Now, this is one that I think you do accept affected Kosovo. Is

22 that right?

23 A. Since it refers to Article 300 and in part 423, I don't have the

24 text of the constitution of Serbia in front of me, but probably in a way

25 it does because this regulates -- this amendment regulates the

1 competencies of the Republic of Serbia as applied uniformly to the entire

2 territory. But it's far too long, as you can see for yourself.

3 JUDGE BONOMY: Do you know whether these amendments altered the

4 regime for property rights in Kosovo?

5 A. I really can't answer that question.

6 JUDGE BONOMY: Well, if it did, you may be able to assist in

7 this. If it did, can you think of a reason why it was necessary to do

8 that?

9 A. I really can't. I don't have the factual knowledge for that.

10 And as I lived in Sarajevo, a different federal unit at the time, I

11 really wasn't familiar with the reasons, all the reasons for all the

12 amendments contained in this constitution.

13 JUDGE BONOMY: Thank you. Now, this may be a rather technical

14 matter but it's required, I think, for the sake of clarification. On

15 page 12 of your report, in the English version, which -- there is a

16 paragraph which begins -- in the English it's about -- it's just over

17 two-thirds of the way down: "According to the 1968 constitutional

18 amendments..." do you have that?

19 A. Yes.

20 JUDGE BONOMY: "The provinces in addition to the federation and

21 the republics were within their rights and duties made responsible for

22 the discharge of tasks and duties on their respective territories which

23 under the federal contusion fall within the exclusive rights and duties

24 of the federation."

25 Now, that seems contradictory and here contradictory but it may

1 be meant to be. Can you explain that sentence?

2 A. If you just allow me a moment to find that portion in the Serbian

3 version.

4 MR. PETROVIC: [Interpretation] It's page 17 if I might be of

5 assistance. Page 17, second paragraph in the Serbian version.

6 JUDGE BONOMY: Thank you, Mr. Petrovic.

7 THE WITNESS: [Interpretation] No, it's not contradictory. It

8 isn't contradictory.

9 JUDGE BONOMY: Now, can you explain with --

10 A. Yes, gladly.

11 JUDGE BONOMY: -- an example?

12 A. I'm not going to be able to explain with an example, but I'll

13 tell you what it is about. The system of distribution of competencies

14 under the 1974 constitution knew certain -- recognised certain

15 competencies of the federal state which -- legal competencies which

16 belonged to the exclusive competencies of the federal state because its

17 laws in those areas, the federal units, were not able to enact. So their

18 participation in legislative authority in those areas was excluded.

19 However, the very complicated system of enforcing federal laws

20 which in the vast majority were not enforced by the federal organs

21 themselves because there were just a few federal organisations organised

22 throughout the territory of Yugoslavia, the customs organisations, the

23 army and so on, very few of them, they carried out federal regulations

24 throughout the country, whereas the vast majority of the regulations were

25 enforced by the federal units themselves, which implied under certain

1 conditions, bylaws and executive provisions, so that was a complicated

2 system of division of authority for -- between the federal authorities

3 and the federal units. And with the constitution of 1968 the provinces

4 as well became -- to all intents and purposes had the authorisation of

5 carrying out federal laws, enforcing federal laws for which the federal

6 state -- from the competence of the federal state on the territory of

7 their -- of the provinces, they were responsible for that and made

8 responsible for that enforcement. So that is the meaning of it and there

9 is indeed no contradiction there.

10 JUDGE BONOMY: So can you give me an example? Bring it to life.

11 A. I really cannot do that. I can't give you an example. I know

12 the systemic solutions there, but any federal -- if you take any federal

13 law which was not enforced by federal organisations but was enforced by

14 the republics and provinces, you'd have to take that in order to conclude

15 that for enforcement of such federal laws it was the provinces who were

16 responsible for that. They were complicated formulations and complicated

17 language was used.

18 JUDGE BONOMY: I can't believe you live in such an ivory tower

19 that you don't -- you're unable to give an example of this. Your

20 inability as someone familiar with the area who lived there to give an

21 example suggests that this is theoretical and didn't exist in practice.

22 There must be something that you can think of that fell within this --

23 A. I really cannot at this point in time. Let me be very frank.

24 Nothing comes to mind from the laws at this particular time.

25 JUDGE BONOMY: Now, could you turn to page 19 of the English of

1 your report, and hopefully Mr. Petrovic will assist me again. And if you

2 look at the large paragraph in the bottom half of the English certainly

3 version, it begins "Being constituent elements of the federation ..."

4 MR. PETROVIC: [Interpretation] Your Honour, that is on page 26 of

5 the Serbian version.

6 JUDGE BONOMY: Thank you. And if you could go, Professor, to the

7 end of that paragraph, about five lines from the bottom. "On the other

8 hand even though existing within the composition of the republic, the

9 autonomous provinces were not represented as such in the republican

10 organs, although some republican organs had members by virtue of office,

11 that means that the provinces as such had greater rights in the

12 federation than in the republic.

13 Can you there give examples of a republican organ in which the

14 province was not represented dealing with an area of activity where

15 somehow or other the province by direct representation in the federation

16 achieved some additional autonomy or power?

17 And again it's very theoretical paragraph and I would like to try

18 and put meat on the skeleton.

19 A. Yes. The provinces were represented in the federal organs as

20 were -- as federal units with certain differences. The province was

21 represented in the Presidency of the Social Federal Republic of

22 Yugoslavia, for example, and in corresponding fashion, and the

23 formulations are very complicated bearing in mind national

24 representation, equal representation of the republics, provinces and so

25 on was represented in the Federal Executive Council as well as it was

1 represented in both Chambers of the SFRY Assembly. Truth to tell, the

2 number of delegates from there was about a third or a little more,

3 depending on the council, less than was the representation of the federal

4 units within the federal council and council of chambers and provinces.

5 JUDGE BONOMY: And --

6 A. Article -- that was that kind of representation. It had equal

7 legal consequences regardless of the fact that it was a little lower than

8 the equal representation of the federal units that they enjoyed.

9 JUDGE BONOMY: My question is more related to the end of your

10 paragraph where you explain that the provinces were not represented in

11 the republican organ. Can you give me examples of this?

12 A. As such they weren't represented in the republican -- represented

13 as they were in the federation in the republican ones, although my aim

14 was here to indicate the unusualness of that position. That was my

15 object, to show how far that position went beyond everything that was

16 known in constitutional law and comparative law with respect to autonomy.

17 So my aim there in that place was to show how they were represented in

18 the federal state, for example, and were not represented in the federal

19 unit and to show in a way how they were skipped over, the levels were

20 skipped over, as one of the elements, let me put it this way, of the

21 distortion of their position, how distorted their position was if we bear

22 in mind the average understanding of the concept of autonomy. Because

23 you don't get to autonomy of its own but by comparing it to other forms,

24 well-known forms of autonomy. So that was the object of my observation

25 there.

1 JUDGE BONOMY: This is just a general comment in case you want to

2 make your own comment on it, but have not -- have not the last 25 years

3 or so of history told us that there's no limit to the forms of autonomy

4 that can be granted in areas of the world and that it's rather

5 short-sighted to confine attention to one or two well-recognised formats?

6 A. Well, you could look at this problem in that way, but no autonomy

7 can be such as to jeopardise the normal functioning of the state wherein

8 it is situated.

9 JUDGE BONOMY: Yes. That's a rather different point. Can you

10 give me an example where the provinces had members by virtue of office

11 participating in republican organs?

12 A. It is stated here members by virtue of their position. That's

13 conditionally speaking, because every time the members of the federal

14 government were appointed care was taken to ensure that -- or, rather,

15 when courts, member of the courts were appointed, then care was taken to

16 ensure that people from the provinces were represented. There were no

17 explicit norms to that effect, but this was something that was taken care

18 of. That was something that was taken into account.

19 Of course the organs that are -- where people are appointed on

20 the basis of direct elections, that I'm not talking about because they're

21 representative organs.

22 JUDGE BONOMY: But you're -- the wording of your report is:

23 "Some republican organs had members by virtue of office."

24 Now, what -- give me an example of that so that I can try to

25 understand it.

1 A. It is in quotation marks in the version that I have, which means

2 that this is not the true representation such as we have when an

3 autonomous unit is represented in the federal unit, but we're talking

4 about the representation of the people from the provinces in the courts

5 of the republic and other organs in the republic. But there were no

6 norms to that effect. What I wanted to show here is that when the

7 province became an element of the federation, in a way was removed from

8 the constitutional system of Serbia. There were members of the

9 Constitutional Court, Judges of the Constitutional Court of the Supreme

10 Court, ministers, deputy ministers who were from Kosovo and Metohija and

11 from the province. That's what I meant when I wrote this. And since

12 this is in quotation marks, it means -- how should I put it? If you put

13 it in quotation marks then you're talking about some kind of a

14 para-institution or para-instrument, something that was applied in

15 practice but did not really -- was not really legislated.

16 JUDGE BONOMY: So these are people who held positions as

17 ministers, deputy ministers, judges of the Constitutional Court in

18 Serbia, in the republic --

19 A. Yes. Yes. That's what we're talking about.

20 JUDGE BONOMY: After your -- your quotation marks are then

21 expanded upon to say: "On the basis of their positions held in the

22 province."

23 Now, that's what I'm asking about. What position would a person

24 hold in the province that led to him holding a position in the republic?

25 It's your words.

1 A. I'm explaining to you why this is written here. Some of these

2 elements were present in the position of the presidents of the

3 presidencies in both provinces.

4 JUDGE BONOMY: Let's take, for example, a judge of the

5 Constitutional Court in Serbia. What position in Kosovo that he held

6 would lead to him being appointed a judge of the Constitutional Court in

7 Serbia?

8 A. There was no such position. He was not a judge of some court in

9 Kosovo and then that would mean that he was by virtue of this office a

10 judge in the court of Serbia. He was elected because the representation

11 of the provinces was something that was taken into account to make sure

12 that they were represented.

13 JUDGE BONOMY: Let's look at a government official, a minister, a

14 deputy minister. Give me an example of one who held a position in Serbia

15 because he held a particular position in Kosovo. Can you give me an

16 example of such a position leading to appointments in --

17 A. It was just with the representatives of the provinces in the

18 Presidency of Serbia. As for the rest, it was the principle whereby care

19 was taken to ensure that representatives from the province were there,

20 were present.

21 JUDGE BONOMY: All right. Now, do you know the way in which the

22 Supreme Defence Council operated?

23 A. No. No.

24 JUDGE BONOMY: Do you know its composition?

25 A. Yes, from the explicit provision in the constitution stipulating

1 that the president of the federal republic and the presidents of the two

2 republics were members.

3 JUDGE BONOMY: Can you express an opinion on the role to be

4 played by the republican presidents in the Supreme Defence Council?

5 A. I have to admit that I did not look at the Rules of Procedure

6 governing the work of that body, but --

7 JUDGE BONOMY: Let me ask you just one specific question then.

8 Have you heard the term "Supreme Command"?

9 A. In this constitutional system I never heard this term. That is a

10 term used at the times of the Communist revolution and from the

11 national -- the war of national liberation. I think it was used in the

12 previous system, but in the current constitutional system I have never

13 encountered the term "Supreme Command." And I couldn't find a body under

14 that name in any legal source.

15 JUDGE BONOMY: If I tell you that -- that General Ojdanic used

16 the expression "Supreme Command" as a current expression in relation to

17 activities in Kosovo, would you be able to tell us what the Supreme

18 Command was? Do you have any understanding of that?

19 A. Absolutely none, because General Ojdanic, with all due respect,

20 is not a drafter of the constitution or a legislator. I cannot find any

21 such body in the provisions of the federal constitutions and the

22 provisions of the law dealing with issues of defence and military.

23 JUDGE BONOMY: You could perhaps have a look at 3D728. Page 3 in

24 English.

25 You'll see the comments attributed to General Ojdanic. This is a

1 briefing of the Supreme Command Staff on the 11th of April, 1999. Does

2 that mean anything to you?

3 A. It doesn't mean anything to me in the sense of my expert report

4 as regards the legal provisions regulating defence and military issues.

5 This don't mean anything to me because there are no provisions about this

6 organ.

7 JUDGE BONOMY: We have to have a break at this stage. I have

8 very little else to ask you, but I will do that after the break. That

9 will be for half an hour. Again if you would please leave with the

10 usher. We'll see you at 11.15.

11 --- Recess taken at 10.45 a.m.

12 --- On resuming at 11.17 a.m.

13 JUDGE BONOMY: I want to return to the question of the Supreme

14 Command, Professor, and we take you first of all to page 9 of the second

15 part of your report, the part dealing with the federal structure or the

16 federal organs, and you have of a section (G), relations between the

17 Federal Cabinet, the Yugoslav army, and the supreme military council. I

18 think that should be translated Supreme Defence Council.

19 MR. PETROVIC: [Interpretation] That's at page 13 in the Serbian

20 version.

21 JUDGE BONOMY: Thank you, Mr. Petrovic.

22 In that section (G) the last paragraph deals with the Supreme

23 Defence Council. You tell us its composition and then you say, "The

24 president of the republic commands the Yugoslav army in accordance with

25 the decisions of the Supreme Defence Council."

1 What I'd like to ask you is what is the role of the republican

2 presidents in the Supreme Defence Council as you understand that

3 provision?

4 A. The presidents of the member republics are members of the Supreme

5 Defence Council. In my analysis, I didn't go beyond the legal

6 regulations concerning this issue, and that means that I analysed the law

7 on the army of Yugoslavia and the law on defence. In these provisions

8 the manner in which this organ is to work is not mentioned, and that is

9 why beyond stating that they are members of this organ, I cannot say

10 anything about the functioning of this organ because the topic of my

11 expert report was to determine the legal relations between the Supreme

12 Defence Council and the federal government.

13 My analysis indicates that there were no legal relations between

14 the two and that the federal government did not have any authority over

15 the Supreme Defence Council. That was the subject of my analysis,

16 because the whole expert report is entitled "The position of the federal

17 government within the constitutional system," and so on and so forth.

18 JUDGE BONOMY: Nevertheless, you are an expert familiar with the

19 constitutions that concern us, and what I'd now like to ask you is -- is

20 should we regard the three members of the Supreme Defence Council as

21 being of equal status?

22 A. Well, if this is a collegiate organ it means that one person is a

23 chairman or the president and the others are members. Now, as to the way

24 in which the vote was taken, that's not something I can tell you about

25 because I didn't analyse the rules of procedure. The laws that I looked

1 at do not stipulate that. The only provision that does, conditionally

2 speaking, talk about the way in which this organ worked, that's Article

3 41 of the Law on Defence that stipulates that the president of the

4 Supreme Defence Council shall take care of implementing the decisions of

5 the Supreme Defence Council. Other provisions about the way in which

6 this organ worked and which decisions were taken are not contained in

7 those laws.

8 JUDGE BONOMY: It may be we could look at Articles 40 and 41 of

9 the Law on Defence. That's P1874.

10 Is that the Law on Defence?

11 MR. ZECEVIC: Your Honour, I believe the reference should be to

12 the law on VJ.

13 MR. HANNIS: Your Honours, I think you may be looking for P985,

14 the Law on Defence. Article 41 talks about the Supreme Defence Council.

15 JUDGE BONOMY: Sorry. This -- what's on the screen is the law on

16 the VJ, is it?

17 MR. ZECEVIC: From 1991, Your Honour.

18 JUDGE BONOMY: Just -- Mr. Zecevic, what is P1874?

19 MR. ZECEVIC: 1874 is the Law on Defence of Republic of Serbia of

20 1991 which ceased to exist after some time, and after the creation of the

21 federal republic.

22 JUDGE BONOMY: Yeah, indeed. Sorry, it is my mistake. It should

23 be P985.

24 Now, if you look at Article 41, you'll see that it sets out the

25 things that the Supreme Defence Council should do and then says that the

1 president shall ensure implementation of the decisions of the Supreme

2 Defence Council, and you can take it that the President of the Supreme

3 Defence Council was the president of the FRY.

4 A. Yes. That's implied by the constitutional provision establishing

5 the composition of this organ. It's not usual for constitutional

6 provisions to be repeated in the legislation, although it often happens.

7 JUDGE BONOMY: Would you -- would you expect the members of the

8 Supreme Defence Council to have equal status in dealing with the items

9 set out in Article 41?

10 A. If equal status means the work of the organ and participation in

11 its work, of course. Decisions have to be made according to the rules of

12 procedure of this organ. So conditionally speaking, it's an equal

13 position except for what the president of this council does as someone

14 who convenes sessions, proposes the agenda, makes sure the decisions are

15 implemented and so on.

16 JUDGE BONOMY: Mr. Lukic, you're a constitutional expert. What

17 was the reason for having the presidents of the member republics as

18 members of the Supreme Defence Council?

19 A. Well, to be quite honest, I'm not familiar with the reasons. I

20 can only assume that the nature of federal relations influenced the

21 formation of this kind of Supreme Defence Council as an organ which has

22 only these powers in the system of defence.

23 JUDGE BONOMY: Well, there would appear to be two ways of

24 reaching a determination, and perhaps you'll tell me if there are others.

25 One would be by voting and therefore by majority, and the other would be

1 by consensus. Are there any other ways?

2 A. We can speak theoretically about the way decisions are made, and

3 decisions can be made in this way, but I didn't look at the rules of

4 procedure of this organ.

5 JUDGE BONOMY: You've said that already, but I want to know

6 whether there are other ways in which decisions might be reached other

7 than those two.

8 A. I doubt there can be a third way if we're talking about affairs

9 falling within the competence of this organ. Of course, in a regular

10 situation, that is.

11 JUDGE BONOMY: Yeah. But in either of these circumstances the

12 presidents of the member republics have a say in the making of the

13 decision.

14 A. I really didn't look at the rules of procedure, but I assume that

15 they participate in decision-making, because what is done by the Supreme

16 Defence Council has to be distinguished strictly from command in the

17 army, which is regulated by Articles 3, 4, and 5 and 6 of the law on the

18 army of Yugoslavia.

19 JUDGE BONOMY: Now I'd like you to have a brief look at the

20 constitution of Serbia, which is P855, and at Article 83.

21 Now, you have that in front of you. If you look at 83(4), you'll

22 see that it gives the president of the republic the power to conduct

23 foreign relations, and paragraph (5) gives them power over the army. Can

24 you explain the point of having these provisions in this constitution at

25 a time when it was part of a federation which had responsibility for

1 foreign relations and the army.

2 A. This constitution of Serbia was enacted in mid-1990, and in any

3 case, it was enacted after clear amendments were made by some federal

4 units to their constitutions in which they aspired to declare their own

5 independent states, independence and sovereignty. I assume that the

6 drafter of the Serbian constitution wanted to have a constitution in

7 which certain affairs of state, which belonged to the federal state which

8 was at that time in the process of disappearing, which would prepare

9 Serbia to become an independent and sovereign state. This constitution

10 was enacted in mid-1990, a little bit before that. In the first half of

11 1990. Whereas the contusion of the FRY was adopted in 1992, after this

12 constitution of the Republic of Serbia was adopted.

13 As I did not participate in the drafting of this constitution and

14 I didn't live in Belgrade at that time, I cannot provide any further

15 explanation, but these are my assumptions based on my knowledge of the

16 situation then prevailing in Yugoslavia and the problems in the

17 functioning of the federal state at that time, the Socialist Federative

18 Republic of Yugoslavia, that is.

19 JUDGE BONOMY: In your opinion would this give power to the

20 president to mobilise the army within Serbia?

21 A. The president of Serbia, after the adoption of the federal

22 constitution, of course not.

23 JUDGE BONOMY: No, before the adoption of the federal

24 constitution.

25 A. When this constitution was adopted Serbia did not have an army of

1 its own. It was a very difficult situation in the former Socialist

2 Federative Republic of Yugoslavia and many things were very unusual. So

3 it was hard. It was unusual to see all that.

4 JUDGE BONOMY: Now you are looking at the situation on the

5 ground, and then after the FRY constitution was adopted would this have

6 given the president of the republic power to mobilise the army? That's

7 the Republic of Serbia.

8 A. No, because the area of defence as we saw yesterday was within

9 the competence of the federal state. There was the army of Yugoslavia.

10 There was a system of defence and army which was regulated by law.

11 Serbia did not have its own army, nor did it have any legislation

12 regulating these matters governing all this, so these provisions were not

13 implemented and they did not give any powers to the president of the --

14 of Serbia because they were not in compliance with the federal

15 constitution, and as far as I know, no republican president ever issued

16 any orders of that kind because there was no one for him to issue them

17 to.

18 JUDGE BONOMY: Do you know if this provision was -- these various

19 provisions, and that's (4) and (5) and also (6) and (7) which are of a

20 similar nature -- sorry, (6) and (8), which are of a similar nature,

21 whether these were revoked once the FRY constitution was adopted?

22 A. To the best of my knowledge, no. All I know is they were not

23 implemented because the drafter of the constitution desisted from

24 implementing norms which were evidently not in compliance with the

25 federal constitution, and there were never any attempts to implement

1 these.

2 JUDGE BONOMY: Can we now look, please, and it's on the screen,

3 at Article 85. What is your understanding of the extent of the power of

4 the president in light of that article?

5 A. The president of the republic, as the norm expressly states, has

6 the constitutional right to ask the government to put forward its views.

7 These are not legal acts, just general political positions of the

8 government policy concerning some issues within its competence. Beyond

9 that, the republican government has no further obligations, and the

10 president of the republic can do nothing de jure in relation to a

11 government which would fail to present him with its views. But as the

12 organs are bound to cooperate with one another, it would be quite normal

13 for the government to put forward its views. Such norms similar to this

14 one are not unusual in comparative law. This would resemble the French

15 system of government from the fifth republic. It did not have that much

16 influence in shaping systems such as that in the constitution of the USA

17 or the one in British parliamentarianism, but it did have an influence on

18 comparative constitutional law worldwide.

19 JUDGE BONOMY: Is this is an example that might enable the

20 president to bring pressure to bear on the government, political

21 pressure?

22 A. One can assume that this norm could be used in that way if there

23 was any form of disagreement between those two state organs. However,

24 the government does not depend on the president of the republic. It

25 depends on the majority in the national assembly and only the national

1 assembly can vote -- can vote on no confidence in the manner that is

2 prescribed by the legislation in relation to the government. And that's

3 all that matters to me as a lawyer.

4 JUDGE BONOMY: We also have on the screen at the moment Article

5 83(12). If we can go back to 83. You will see a very apparently wide

6 power to conduct other affairs in accordance with the constitution.

7 Earlier when dealing with -- I think it was the question of international

8 negotiations, you made reference to there being no provision which

9 prevented the president from acting. Should 83(12) be read in that way,

10 that he is entitled to do anything as long as he is not prohibited from

11 doing so?

12 A. I spoke this morning about the constitution of the Federal

13 Republic of Yugoslavia.

14 JUDGE BONOMY: I should have made that clear. But looking at

15 this in light of what you said about the other constitution, should we

16 read 83(12) as giving him similar power to do anything that is not

17 prohibited?

18 A. In Article 83 here it says what acts, conditionally speaking, are

19 enacted by the president of the Republic of Serbia in carrying out his

20 authorities. It says he can perform other tasks in compliance with this

21 constitution.

22 In connection with this, I can only recall that the

23 Constitutional Court of Serbia once ruled on an attempt by the legislator

24 to extend the competence of the president beyond the powers enumerated in

25 the constitution. And on that occasion I think it had to do with ranks

1 or promotions in the MUP. I can't recall specifically, but it was

2 something like that. And the Constitutional Court held that the list of

3 powers of the president of Serbia is a closed list and it can contain

4 only what is stated here in the constitution and that the legislator

5 cannot expand on this list. Therefore, that the legislator overstepped

6 the boundaries of his authority.

7 I didn't expect to be asked about these details, so I don't have

8 with me now that decision and the law in question, but that was the gist

9 of the standpoint taken by the Constitutional Court of Serbia.

10 JUDGE BONOMY: Could you read the paragraph aloud to me, please,

11 paragraph 12.

12 A. "Conduct other affairs in accordance with the constitution."

13 JUDGE BONOMY: You see, it refers to other affairs.

14 A. Yes.

15 JUDGE BONOMY: Which would suggest it's not confined to Article

16 83.

17 A. Well, it does say in accordance with the constitution, and the

18 intention of the drafter of the constitution was to regulate the

19 relations of the highest constitutional bodies of government, meaning the

20 highest legislative body, the head of state and the government or cabinet

21 on the one hand and judicial power on the other hand. And such relations

22 in legal terms could not be expanded or reduced by the activity of the

23 legislator, because constitutional norms, especially when it comes to

24 competencies, cannot be understood as being open.

25 JUDGE BONOMY: Are you able to identify perhaps something else in

1 the constitution that is not in 83 that he can conduct in accordance with

2 the constitution?

3 A. Well, you see, I can't identify something, but a constitution is

4 a single legal document. Sometimes there are errors in editing and norms

5 concerning competencies can be found in more than one article of the

6 constitution, but what matters is that they are in the constitution and

7 they all have equal legal value. So if somewhere else there is mention

8 of the power of the president not listed here, there's one norm

9 regulating competency. Whether it will be technically distributed among

10 the various articles is immaterial to a lawyer. So they all together

11 make up a single norm. Nowhere in constitutional law is it recorded that

12 one norm should prohibit or impinge on another or that something should

13 be regulated with only one norm.

14 JUDGE BONOMY: When you were in Belgrade in the first half of the

15 1990s, in 1993 to 1995, do you accept that -- that President Milosevic

16 was the principal power within the Republic of Serbia? As a matter of

17 fact.

18 A. From 1993 to 1995 I practically lived in Pale and only worked in

19 Belgrade two days a week. I can go back to what I said yesterday. I

20 cannot answer questions asking me to speculate on political power and

21 influence.

22 JUDGE BONOMY: I'm asking for your own personal experience.

23 A. I really can't tell you anything about that because I'm here as

24 an expert who is to give his opinion on legal sources, the norms of legal

25 sources, their meaning and their mutual connections. If you were to call

1 me as a fact witness I might be able to testify to certain facts, but I

2 do not feel bound to answer such questions as it is because they go

3 beyond my role as an expert here.

4 JUDGE BONOMY: But your role here is not confined to that of an

5 expert. It's open to the Tribunal to ask you such questions as they

6 consider relevant to the issues before them, and your experience of life

7 at that time is relevant and therefore I ask you again to answer that

8 question.

9 A. Well, I have to repeat that from 1993 to 1995 I spent four-fifths

10 of my time at Pale and one-fifth in Belgrade and I was working, doing my

11 job, looking at legal documents. I didn't really delve into who had the

12 most influence in Serbia, whether it was Mr. Milosevic or someone else,

13 and believe me, I can't even recall all the names of people who were

14 holding certain positions in Serbia. I wasn't even a member of the

15 Socialist Party of Serbia. I was not a member of any political party in

16 Serbia. I was not participating in political life in Serbia. I had

17 other professional and personal problems, and I cannot in all honesty

18 respond to your questions.

19 JUDGE BONOMY: And as a citizen of Yugoslavia you had no interest

20 in the conflict?

21 A. At the time I was a citizen of Bosnia-Herzegovina, which was

22 legally recognised, and its unit, the Republika Srpska.

23 JUDGE BONOMY: And you had no interest in the conflict going on

24 there which it has since been established had connections with Serbia?

25 A. What conflict do you mean?

1 JUDGE BONOMY: I mean the conflict that Republika Srpska -- or

2 the ultimate Republika Srpska was involved in and the parts of Bosnia

3 claimed by Serbs and occupied by Serbs. You say you had no interest in

4 that.

5 A. If you mean the status of Republika Srpska, of course I was

6 interested in the status of Republika Srpska because I worked in one of

7 its organs of the Ministry of Foreign Affairs.

8 JUDGE BONOMY: But, for example, the conflict at that time led in

9 1995 to the commission of what's been described as genocide in

10 Srebrenica. You weren't interested in the conflict that ultimately led

11 to that?

12 A. I don't think we understand each other, Your Honour. First of

13 all you asked me about what I thought about President Milosevic and his

14 political role in Serbia, and then you went on to mention the conflict

15 without mentioning which, so I can't actually know which conflict you're

16 referring to. Then you went on to tell me that it was the conflict in

17 Bosnia-Herzegovina in which Republika Srpska was involved and then

18 ultimately you linked me up with the genocide in Srebrenica as a concept,

19 and then you asked me whether I was disinterested in that event.

20 JUDGE BONOMY: Yes.

21 A. So I don't understand what you're actually asking me in that

22 regard. If you're asking me what my attitude is to the events in

23 Srebrenica, my attitude is like any humane person --

24 JUDGE BONOMY: I'm not asking you that. You know that very well.

25 I'm going you about your interest in affairs in the former Yugoslavia

1 between 1993 and 1995, and I'm curious to know what you were interested

2 in. You just ignored any conflict that was taking place in any part of

3 Bosnia. Is that your position?

4 A. What does Milosevic have to do with that now?

5 JUDGE BONOMY: That's not my question at the moment. I'm asking

6 you, I'm trying to understand what it was in that part of the world you

7 took an interest in between 1993 and 1995, and so far I've established

8 nothing. You seem to live in a vacuum.

9 A. From 1993 to 1995? In 1993 -- or, rather, from 1993 to 1995 I

10 left Sarajevo at the end of April 1992 after an assassination attempt

11 against my family. I attended the peace conference in Brussels on the

12 29th of April, 1992, when I don't know who tried to kill my family. My

13 family went to Belgrade with the last bus. It escaped on the last bus,

14 and I return to Belgrade from Brussels to take over my family. I took my

15 family to Igalo. I spent some time there. And then I was invited by the

16 organs of Republika Srpska, I spent a short there. And then I set off to

17 take part in the peace negotiations which were being conducted at that

18 time. I took part as a legal advisor to the delegation of the Republika

19 Srpska at the negotiations in Geneva which were conducted in 1993 --

20 rather, 1992 and 1993, and the working group for Bosnia and Herzegovina,

21 a negotiating group in New York, later on there was a lot of that kind of

22 thing. I worked in the ministry of Republika Srpska sometime from -- or,

23 rather, I was at Pale more than travelling around from 1990 -- well, the

24 end of 1993 sometime, and of course I worked for the organs of Republika

25 Srpska in my professional field, and my interests were, if you're asking

1 me, that the war should finally be over so that life could get back to

2 normal if that was possible. So if that's what you're asking me, go

3 ahead, what I thought then and I'll do my best to answer to the best of

4 my recollections if that's what you're asking me about.

5 JUDGE BONOMY: It's against that background that I'm asking you

6 whether in your experience Milosevic had considerable power in Serbia and

7 was viewed as a person who had power at that time by the public in

8 general.

9 A. I do not have any experience with that. Let me repeat, I wasn't

10 living in Serbia at the time. I happened to see Mr. Milosevic two or

11 three times in my life at negotiations in Geneva and Brussels and that's

12 all the experience I have of Mr. Milosevic. Other meetings with

13 Mr. Milosevic, I did not have, so my experience with his method of work

14 is something that I actually do not possess. I have no knowledge about

15 what the structure of political decision-making was in Serbia at the

16 time, what the perception was by the public, this public or that public

17 in one way or another. I really can't say. I don't know. I had too

18 many of my own duties and obligations, family, professional, and so on to

19 be able to spend time on things like that.

20 JUDGE BONOMY: Some of the experiences of your family are such

21 that one might expect you to have a particular interest in events in the

22 region in general.

23 A. Let me repeat. I did have an interest in seeing that my family

24 survives and that my children can develop as normally as possible and to

25 take part in Republika Srpska and the events there and to bring about a

1 peaceful end. That was what I was interested in. Those were my

2 interests, and that's -- it exhausted my working potential. I don't know

3 what other interests you mean and what it was you think I should have

4 followed and formed my own conclusions about.

5 JUDGE BONOMY: Now, lastly I want to look at P1737 and Article 9.

6 This is the Law on Internal Affairs, and you'll see that it provides

7 that: "At the request of the national assembly and the president of the

8 republic," that's the Republic of Serbia, "the minister must submit a

9 report on the work of the ministry of the interior and on the security

10 situation in the republic."

11 Are you aware of any controversy surrounding the meaning of that

12 provision?

13 A. No, truly not. I did not take into account this law in my expert

14 report because it didn't have anything to do with my subjects. As for

15 the controversies in political or state life or legal life of Serbia, I

16 really don't know.

17 JUDGE BONOMY: I perhaps have made an assumption here that should

18 be clarified, but I take it you are familiar with the constitution of the

19 Republic of Serbia of 1990.

20 A. Yes, but I did not look at the law governing internal affairs

21 because it didn't have anything to do with my expert report. Your

22 Honour, you know --

23 JUDGE BONOMY: Now I can ask you this question: The view has

24 been expressed to us that that provision, Article 9, is unconstitutional.

25 What is your opinion?

1 A. I apologise, but when was this law enacted? Because I really

2 didn't analyse it.

3 JUDGE BONOMY: We can probably find out by going to the beginning

4 of it. I don't have a hard copy in my hand. Apparently we don't have

5 the beginning of it either. However, it's been presented as current.

6 THE INTERPRETER: Microphone, please.

7 JUDGE BONOMY: It's been --

8 A. It was amended in 1996 -- but the interpreter did not hear the

9 year. 1991.

10 JUDGE BONOMY: Sorry, it was amended in 1991, did you say?

11 A. No, in 1996. Yes. It was enacted in 1991. Perhaps it was

12 amended in 1991 as well and in 1999 as it said in the English.

13 JUDGE BONOMY: So what we have is the amended version of 1996.

14 Is that what you say?

15 A. Mm-hmm.

16 JUDGE BONOMY: Now, do you agree with the view expressed that it

17 is unconstitutional?

18 A. Could you please -- can we scroll down so that I can see Article

19 9 again, please?

20 JUDGE BONOMY: Certainly.

21 A. That's it. Right. Thank you.

22 THE INTERPRETER: Could we have the English as well, please,

23 thank you.

24 THE WITNESS: [Interpretation] I don't think that that is

25 unconstitutional because it's not any kind of document or act being

1 enacted because with respect to the army there would have to be a legal

2 document. This is just an obligation for mutual information which is now

3 placed into a legal form which does not upset the relationships between

4 the president of the government and the -- of the republic and the

5 government. So it could not be considered to be expanding competencies.

6 Expanding competencies would imply authorisation with respect to the

7 enactment of legal documents. That's my opinion.

8 JUDGE BONOMY: The view was expressed to us based on there being

9 no provision in the constitution obliging of the Ministry of Interior to

10 report.

11 A. In view of the role of the president according to the

12 constitution of 1990, the President of Serbia, that is, I don't think

13 that this is not in keeping with the constitution, because organs, the

14 various bodies, should cooperate amongst themselves. And after a report

15 the president has no competencies either with respect to the ministry of

16 the interior or the government because the government depends on -- in

17 existence of the national assembly and the legal character of its legal

18 documents depends on the courts.

19 JUDGE BONOMY: Thank you, Professor.

20 Now, Mr. Hannis, does anything arise out of that for you?

21 MR. HANNIS: Yes, Your Honour. There was one topic. It had to

22 do with the powers of President Milosevic vis-a-vis the MUP, and if I may

23 inquire about that.

24 JUDGE BONOMY: Certainly.

25 Further cross-examination by Mr. Hannis:

1 Q. Professor, you recall yesterday we gave you a hard copy of a

2 document to read during the break. That's our Exhibit P2166 about a

3 meeting of the operations interdepartmental staff for the suppression or

4 combatting terrorism in Kosovo and Metohija, and you -- you pointed out

5 the fact that at the end of that document there are merely some

6 conclusions reached, that there was no decision and you didn't see

7 anything in the nature of an order coming from President Milosevic, and I

8 think the gist of your comment was that therefore your view was that this

9 body was really sort of in the nature of a consultative body that the

10 president met with to address these issues. Is that fair to characterise

11 your conclusion that way?

12 A. Yes, roughly. Of course with the proviso that I based my

13 conclusion on the basis of documents, and the one I saw yesterday was --

14 I had just a very brief chance of looking at it and I did so later last

15 night. So the arguments that I put forth were properly interpreted by

16 you.

17 MR. PETROVIC: [Interpretation] Your Honour, just a moment please,

18 I have an objection to make in the way in which Mr. Hannis formulated his

19 question. I don't remember that the witness accepted that it was a

20 consultative body yesterday. I think he spoke about a consultative

21 meeting. That is my memory of witness testimony yesterday, whereas my

22 colleague Mr. Hannis on page 35, line 18, put it that he spoke about a

23 constitutive body yesterday.

24 THE INTERPRETER: Consultative body, interpreter's correction.

25 THE WITNESS: [Interpretation] Yesterday I said a meeting at which

1 consultations held. I wasn't wary enough when the Prosecutor put his

2 question but this is an opportunity for me to step up my awareness and

3 wariness. I didn't say that it was a consultative body. I said that

4 there was no such body in those organs but that it was a meeting at which

5 an exchange of information took place, at which consultations took place,

6 to refer to what I said in my answer yesterday.

7 JUDGE BONOMY: I'm sure Mr. Hannis will be content to accept all

8 of that.

9 Mr. Hannis.

10 MR. HANNIS: Thank you.

11 Q. Sir, I'd like to show you Exhibit 4D100. We'll put it on the

12 screen. I know you've not seen this before. This is a document from

13 General Pavkovic who was commander of the Pristina Corps at that time on

14 the 22nd of July, 1998. This is to his 3rd Army command, and we will

15 have the B/C/S in a moment. And he's referencing a meeting with

16 President Milosevic on the 21st of July, 1998, where he says: "An order

17 was given to implement the plan for combatting terrorist forces in

18 Kosovo ... the plan envisages the participation of the MUP and Pristina

19 Corps units in blocking Junik and Jasic villages," et cetera.

20 Now, keep that in mind. I want to show you another document,

21 4D101.

22 JUDGE BONOMY: Mr. Aleksic.

23 MR. ALEKSIC: [Interpretation] Your Honour, I have an objection

24 to the use of these two documents. I think that this line of questioning

25 that Mr. Hannis has just started goes beyond the topics you dealt with in

1 your examination. These documents have not been announced and I don't

2 think they are in any way linked to the expert report by Professor Lukic

3 and his personal knowledge which would emanate from yesterday's

4 questioning.

5 JUDGE BONOMY: Mr. Hannis.

6 MR. HANNIS: Your Honour, this -- this line of questioning arises

7 out of questions Your Honour asked the witness about the constitutional

8 powers of President Milosevic vis-a-vis the MUP. You asked questions

9 regarding what President Milosevic did in the negotiations in the October

10 agreements and about reducing the forces of the MUP in the area. You

11 asked him about the MUP and the border issues.

12 JUDGE BONOMY: And the document you're about to refer to relates

13 to both the president and the MUP, does it?

14 MR. HANNIS: It does.

15 JUDGE BONOMY: Is there something further you want to say,

16 Mr. Aleksic?

17 MR. ALEKSIC: [Interpretation] Well, I'd just like to add that

18 this is a document of the Pristina Corps, which mean communication

19 between the Pristina Corps and the 3rd Army.

20 JUDGE BONOMY: Thank you.

21 MR. HANNIS: Thank you.

22 [Trial Chamber confers]

23 MR. HANNIS: Yes. The next one is 4D101. Oh, sorry.

24 [Trial Chamber confers]

25 JUDGE BONOMY: Mr. Aleksic, it's clear to us that this does arise

1 out of the questions posed from the Bench, and the link is clear and

2 therefore we will allow these documents to be used and the questions --

3 the line of examination to be followed. Please draw to my attention any

4 particular prejudice you feel is caused to you that may require us to

5 grant some remedy, for example, an adjournment or whatever if you think

6 there is something else that needs to be investigated or for any other

7 reason.

8 Mr. Hannis.

9 MR. HANNIS: Thank you, Your Honour.

10 Q. This next document is -- thank you. This document is 4D101 which

11 is dated the 23rd of July, 1998. This is also from General Pavkovic to

12 the command of the 3rd Army. You see in the first full paragraph, it

13 says, "Implementation of the second stage of the plan to eliminate

14 terrorism in Kosovo and Metohija provides for the engagement of organs of

15 the Ministry of Internal Affairs and the necessary units of the Pristina

16 Corps".

17 Skipping down to the last sentence he's saying to his commander

18 General Samardzic: "You have been briefed on this plan as the whole

19 several times, the last time at the briefing with the president of the

20 Federal Republic of Yugoslavia on 21 July 1998 when the order was given

21 to commence implementation of the plan."

22 I'll hand you hard copies of both those documents. And then the

23 last thing I want to do is refer you to some testimony of Dusan Matkovic,

24 who testified on -- who testified for us on the 30th of August, 2007, and

25 he made reference to a meeting with General -- with President Milosevic

1 on the 20th or 21st of July, 1998. He described those attending as

2 including President Milutinovic, Mr. Sainovic, himself, Mr. Minic,

3 Mr. Andjelkovic, General Samardzic, General Dimitrijevic, General

4 Perisic, General Pavkovic from the VJ, the minister of the interior for

5 Serbia minister Stojiljkovic, some other MUP generals including

6 Djordjevic and Lukic, and he describes what was discussed at the meeting,

7 and if I can get the exact reference he tells us at page 14636 that there

8 was a proposal for a plan of anti-terrorist struggle to be adopted which

9 would consist of several stages and the proposal was made and elaborated

10 upon by General Pavkovic, and at line 24, page 14636, the question: "So

11 General Pavkovic proposed or presented this plan and did you all agree

12 upon it?" His answer was: "It was not a question of the three or four

13 of us politicians agreeing. President Milosevic said that this plan was

14 adopted and that this -- it had to be implemented, that it was the duty

15 of the army."

16 So was it within President Milosevic's constitutional powers and

17 authority to command or order that the MUP be engaged, the MUP of the

18 Republic of Serbia be engaged in anti-terrorist operations with the VJ?

19 Can you answer that? Yes or no?

20 A. No. No. Not on the basis of this time -- the time I have, the

21 speed at which I have to read this. This is all factual news to me and I

22 can't find my way around this, to be quite frank.

23 Q. Well, are you aware of anyplace in the constitution where the

24 president of the Federal Republic of Yugoslavia had the authority to

25 order or direct the engagement of Republic of Serbia MUP police to engage

1 in anti-terrorist activities, and if so, tell me where in the

2 constitution it says that.

3 A. An express provision about that doesn't exist anywhere. I cannot

4 find it specifically according to how you put it and to the best of my

5 recollections, but you can gain an impression and conclusion if you look

6 at all the documents which I'm not able to do now.

7 Q. Thank you.

8 MR. HANNIS: I have no further questions.

9 JUDGE BONOMY: Thank you, Mr. Hannis.

10 Mr. Zecevic, do you have questions?

11 MR. ZECEVIC: One question.

12 JUDGE BONOMY: Yes.

13 Further cross-examination by Mr. Zecevic:

14 Q. [Interpretation] Good morning, Professor.

15 A. Good morning.

16 Q. I know it's no simple matter for us -- for you to ad hoc assess

17 the constitutionality of provisions that you haven't actually had a

18 chance to look at, but a moment ago I'm sure you'll remember being asked

19 by His Honour is something with respect to Article 9 of the law governing

20 the internal affairs. P1737 is the document number.

21 The Judge stated that there had been testimony here that this

22 provision was unconstitutional or that might be unconstitutional since,

23 of course, the constitutionality is something that the constitutional

24 court will determine?

25 A. The constitutional court.

1 Q. I would just like to remind you of your answer regarding the

2 constitutionality of the articles contained in the law on the ranks of

3 the personnel of the Ministry of Interior of Serbia. You said that you

4 could not recall what law this pertained to, what regulations this

5 pertained to but that you thought that was the one, and you said that as

6 far as you could recall the statement of reasons supplied by the

7 Constitutional Court attached to its decision was the following: The

8 constitutional court held the view that the powers of the president of

9 Serbia were defined only by the constitution and that laws cannot expand

10 them. Is that what you said? Did I understand you correctly?

11 A. Yes. I paraphrased the decision of the constitutional court of

12 Serbia by memory. It was passed quite a long time ago and it's a long

13 time since I read it, so this is really a very vague recollection on my

14 part.

15 Q. Professor, as an expert in constitutional law you studied the

16 constitution of Serbia, but would you agree with the position taken there

17 that the powers of the President of Serbia could only be defined by the

18 constitution and could not be defined by the law?

19 A. Yes, but bearing in mind the caveat that I put in place because

20 you're asking me to make decisions after four or five minutes and

21 constitutional courts have days to deliberate. So this is the caveat

22 that I have put in place. If you have to make an -- give an answer in

23 one minute, my distinction was that legal acts that might affect the

24 position of other persons or organs cannot be passed. That is the way I

25 understood it.

1 If the president of the republic could on the basis of this

2 provision affect the mandate of the minister of the interior or if he

3 could pass any legal acts, in my view that would constitute impermissible

4 expansion of his powers. Of course that is the way I understand it, the

5 way I interpret it in the time that I was given, one or two minutes.

6 Q. Just one more claim, Professor. If I understood your position

7 properly, you considered that this provision contained in Article 9 of

8 the Law on Internal Affairs, because there were no consequences, it could

9 be considered constitutional but not on the basis of the fact that such

10 powers are not vested in the president by the constitution but by a law

11 which is not permissible. Do we agree?

12 A. My conclusion is based only on the fact that these are not powers

13 to exercise power or to enact any legal acts based on this provision. I

14 also conclude that there are no elements that would disturb the relations

15 between the president of the republic and the government of the republic.

16 That is what I have been able to come up with in the three minutes.

17 MR. ZECEVIC: [Interpretation] Just a moment, please.

18 [Defence counsel confer]

19 MR. ZECEVIC: Professor, when we read -- just a moment, please.

20 I do apologise.

21 [Defence counsel confer]

22 MR. ZECEVIC: [Interpretation] I have No further questions.

23 JUDGE BONOMY: Thank you, Mr. Zecevic.

24 Mr. Petrovic, re-examination?

25 MR. PETROVIC: [Interpretation] No, Your Honour. Thank you very

1 much.

2 JUDGE BONOMY: Professor Lukic, that completes your evidence.

3 Thank you for coming here to give evidence and to assist the Tribunal.

4 You are now free to leave the courtroom.

5 THE WITNESS: [Interpretation] Thank you.

6 [The witness withdrew]

7 JUDGE BONOMY: We can deal with certain other matters at this

8 stage.

9 Mr. Hannis, I understand you want to raise an issue relating to

10 the length of final briefs.

11 MR. HANNIS: I did, Your Honour. My understanding is pursuant to

12 the practice direction applicable that was passed, I think in 2005,

13 there's a word limitation of 60.000 words for the closing brief. Given

14 the number of accused in this case, this is one of the first larger

15 multi-defendant cases to come to this stage, we -- our best judgement is

16 that we would be asking for somewhere in the neighbourhood of 100 or

17 120.000 words. I want to bring that to your attention at the earliest

18 possible date so whatever your ruling is, we can adjust accordingly and

19 make our best efforts to comply with your requirements and try and do an

20 efficient job as well.

21 JUDGE BONOMY: Thank you. Any Defence counsel have any

22 submission to make on this topic? Mr. O'Sullivan.

23 MR. O'SULLIVAN: The only thing I would request - no objection to

24 that request - is that perhaps we could have some latitude as well. We

25 may exceed the 60.000 words, too. We're not a point of course where we

1 know how many words we'll need, but everything together, footnotes and

2 text, it's all calculated to determine the length of the brief and we

3 don't want to find ourselves caught a few thousand words short or space

4 for a few thousand words or so. We'll do our best to be concise, of

5 course, but this is a huge case with six accused, and I think our brief

6 may very well exceed what 60.000 words amounts to in pages. So we ask

7 for your indulgence there.

8 JUDGE BONOMY: Thank you.

9 Now, Mr. Fila, we gave an indication that when Mr. Djakovic gives

10 evidence that we would expect the Defence to cross-examine followed by

11 the Prosecution, and you were anxious to make submissions about that.

12 MR. FILA: [Interpretation] Let me paint it in a different way.

13 Whenever Mr. Hannis went beyond the time that was envisaged for his

14 cross-examination I did not object to it because he did a good job.

15 Well, with some exceptions when he would put -- try to put things in like

16 a body instead of a meeting and minutes instead of notes. So he did a

17 good job. That was his reward. But if the Prosecution does not call an

18 expert on constitutional law and you examine this witness for three and a

19 half hours, because the Prosecution did not do its job properly, all the

20 court witnesses that you called were called because the Prosecution did

21 not do its job properly, and now you're punishing me by making me

22 cross-examine the witness before the Prosecution. I am supposed to be

23 rewarded for proposing that this be done instead of being punished by --

24 for being forced to ask questions in this order. This would not be in

25 the spirit of justice and fairness to have the Defence ask questions

1 before the Prosecution because you know the Defence has the last word

2 before any court, and I am really glad that you admitted that I was right

3 when I insisted that a constitutional expert should be called and those

4 other witnesses. So thank you very much. I'm glad to see I have been

5 right at least in one thing.

6 JUDGE BONOMY: Mr. Hannis, do you have a position on this?

7 MR. HANNIS: Well, Your Honour, I think it's a matter clearly

8 within your discretion. In terms of judicial economy I would suggest

9 there's a possibility that if the six Defence counsel go first, given

10 some of the competing interests that I perceive to exist in this case and

11 in particular with regard to this witness, there's a chance I may not

12 have any questions left to ask after all. That's the only comment I have

13 to make. Otherwise, if you want me to go first I'll go first but then

14 that's six of them to deal with the questions I raised versus one of me

15 to deal with questions six of them raised.

16 MR. FILA: [Interpretation] If I may. The second part of my memo

17 pertains to this: We can make a deal about that and here Mr. Hannis is

18 right and I accept that, that we can do this time schedule. We can do

19 this in such a way that the Prosecution does not feel that it's been

20 prejudiced because they would be asking questions for one day and we

21 would be asking questions for three days. And if you ask questions in

22 such great detail of Djakovic as you have now, I don't think I will have

23 any questions, but if the Prosecution is bothered by that, you can set a

24 time limit for us. They had a time limit of 30 minutes and they never

25 went below two hours. So that's how it is.

1 JUDGE BONOMY: Perhaps a sweeping generalisation.

2 MR. FILA: [Interpretation] I do apologise. It was just a joke.

3 JUDGE BONOMY: There remains the issue of what's outstanding,

4 just to identify what it is, and we need to adjourn before we deal with

5 that, but we don't need to adjourn for an hour. If it's convenient to

6 parties and to the other support staff and interpreters, we can adjourn

7 more briefly and return to deal with that and that would give us, I

8 suspect is, a finish by the usual 1.45 time scale.

9 Now, before I go off to sort of finalise the agenda of what we

10 perceive as the outstanding issues, is there any other matter that you

11 wish to raise that we can deal with now?

12 Very well. We will resume at 1.15 and hopefully finish by 1.45.

13 --- Recess taken at 12.43 p.m.

14 --- On resuming at 1.23 p.m.

15 JUDGE BONOMY: The Chamber will allow the Prosecution to submit a

16 final brief of up to, if necessary, 100.000 words, and will allow the

17 Defence in each instance, if necessary, up to 70.000.

18 The order of examination of Chamber witnesses will be that the

19 Prosecutor will precede the Defence but will have an opportunity of

20 further cross-examination should the need arise out of questions posed by

21 Defence counsel.

22 The outstanding matters that we are anxious to identify to ensure

23 they're not lost sight of and are completed prior to the close of

24 evidence in this case and in accordance with orders already made are as

25 follows: The VJ rules of service, the Pavkovic Defence have now to

1 upload the 1996 version with a new exhibit number. That's to be done by

2 Wednesday, and the parties have to be -- sorry, the Chamber, the parties,

3 and CLSS should be notified immediately that's done; the sooner the

4 better.

5 6D1615, that's the law on the cooperation of Serbia and

6 Montenegro with the ICTY, there is now a translation of that document

7 available. If there is no objection from the Prosecution, that could now

8 be admitted.

9 MR. HANNIS: No objection.

10 JUDGE BONOMY: Thank you, Mr. Hannis.

11 Yesterday we ordered the Lukic Defence to upload a revised report

12 for Professor Lukic. That's 2D393. We imposed no deadline, but could

13 that be done by close of business today, Mr. Ivetic?

14 MR IVETIC: I believe that was the Sainovic Defence as it's there

15 witness.

16 JUDGE BONOMY: Oh, yes, sorry.

17 MR. PETROVIC: [Interpretation] Your Honour, this has already been

18 done this morning.

19 JUDGE BONOMY: Well, we will allow the revised report to be

20 substituted for the original.

21 Further translation issues, Mr. Hannis: 5D1114, which is an

22 order of the 58th Light Infantry Brigade command, and 5D1428, a report on

23 the activities of the Ministry of the Interior of the 27th of October

24 1998 to 25 January 1999, and 5D1459, the telephone list of the Decani

25 OUP. There are now translations for these. Do you want time to consider

1 them or can we admit them?

2 MR. HANNIS: Your Honour, can I advise your legal officer by

3 e-mail this afternoon? I just need to take a quick look.

4 JUDGE BONOMY: Yeah. We might -- if there is no objection, on

5 Monday we can make a further oral order dealing with these.

6 MR. HANNIS: Thank you.

7 JUDGE BONOMY: I remind the Lazarevic Defence that documents

8 denied in the original bar table motion because they were not translated

9 have to be submitted with translations by the 19th of May.

10 MR. BAKRAC: [Interpretation] Yes, Your Honour, and I have checked

11 recently with my associates. There are just two brief documents that

12 have yet to be translated, I think five or six pages in total, and we

13 received the promise that they would be translated by Monday, 10.00 or

14 11.00 a.m., and I think that we will be able to submit all translations

15 before the deadline.

16 JUDGE BONOMY: Thank you. Mr. Hannis, add to your list in

17 relation to translation 6D344 and 6D345.

18 The Pavkovic OTP interview, parties were discussing corrections

19 to that and a new version will have to be submitted if corrections are

20 agreed upon. What is the state of play on that one, Mr. Aleksic? Do you

21 know?

22 MR. ALEKSIC: [Interpretation] Your Honour, well, I can't assist

23 you with that. I think that my colleague Mr. Ackerman was in

24 communication with Mr. Hannis, but I don't think that there are any

25 problems. We will deal with that in the course of this day.

1 MR. HANNIS: I think I have to speak to Mr. Ackerman. I don't

2 know where we stand on that.

3 JUDGE BONOMY: Well, we need to know the position by Monday on

4 that one, Mr. Hannis.

5 MR. HANNIS: All right.

6 JUDGE BONOMY: Thank you. We've expected a revised translation

7 of P1974 from the Prosecution. That's an order relating to Cicevica.

8 MR. HANNIS: I'm advised it's been done and uploaded already,

9 Your Honour, but we haven't filed the notification. We'll do that today.

10 JUDGE BONOMY: The revised translation will be admitted and no

11 filing is required, simply an intimation now from your case manager to

12 the court officer of the ID number of the document.

13 MR. HANNIS: We'll do that. Thank you.

14 JUDGE BONOMY: Now, P2804 has to be resubmitted to CLSS. I think

15 we allowed until Monday for that.

16 MR. HANNIS: I believe it has been resubmitted to them, but --

17 yeah. I'm advised that it's due back Tuesday.

18 JUDGE BONOMY: Now, I remind the Lukic Defence that the two video

19 clips used with Zlatkovic 6D16 -- sorry, yeah, 6D1633 and 6D295

20 compilations of what was played in court have to be compiled and

21 submitted by Monday.

22 MR. IVETIC: That will -- that will be done.

23 JUDGE BONOMY: Thank you. Add to your list, Mr. Hannis, 6D1619.

24 That's a map for which there is now a translation.

25 That is described, Mr. Aleksic, as a map of Kosmac, K-o-s-m-a-c.

1 Is that an accurate expression?

2 MR. ALEKSIC: [Interpretation] Kosmac, that's correct.

3 JUDGE BONOMY: Yes. That is what it should say. Thank you.

4 6D612 which are reports from Prizren SUP, by Monday a new B/C/S

5 version of that exhibit including only the portions corresponding to the

6 pages that have been translated is to be submitted.

7 MR. IVETIC: That's already uploaded. We're just doing the

8 notification to give what pages are actually part of that --

9 JUDGE BONOMY: Well, you can give that notification directly to

10 the court officer and we will allow substitution for -- the new one for

11 the current 6D612.

12 MR. IVETIC: Thank you, Your Honour.

13 JUDGE BONOMY: The revised or amended version of the report of

14 Branimir Jokic was to be tendered by Monday as Exhibit 1D743. Whose

15 responsible for dealing with that?

16 Mr. Zecevic.

17 MR. ZECEVIC: Yes, we are. We will -- it's coming, Your Honour.

18 It will be filed by Monday.

19 JUDGE BONOMY: Now, there's a Prosecution motion to admit the

20 identity papers of the witness Sadiku, which is P3141. If there's no

21 objection to that motion, then we can deal with that here. Mr. Ivetic.

22 MR. IVETIC: We have a reply that's being filed today. Today's

23 the last day -- pardon me, a response not a reply, being filed in that.

24 There is an issue with the translation of one document. That's a minor

25 issue that CLSS should be able to handle. And then we have a further

1 submission, I believe, presenting one other further document that goes

2 along with that ought to also to be admitted wholesale. So there will

3 not be an objection to the filing -- to admission per se, just with the

4 correction of a translation issue and addressing another relevant

5 document.

6 JUDGE BONOMY: Well, we shall deal with that either in writing or

7 orally once we've had an opportunity to see it.

8 MR. IVETIC: Thank you.

9 JUDGE BONOMY: We invited the Milutinovic Defence to provide any

10 additional information that might be of assistance to the Chamber in

11 relation to the law of the army of Yugoslavia and the question of how

12 there were three paragraphs in one version and two in another.

13 MR. ZECEVIC: Yes, Your Honour. We're working on that. I think

14 the deadline was Wednesday next week.

15 JUDGE BONOMY: Yes, it is. I simply draw it to your attention.

16 MR. ZECEVIC: Thank you. It will it be filed by that time.

17 JUDGE BONOMY: It was similar -- the explanation offered was

18 similar to the one you get at the station that the train you're going for

19 is late because of the late arrival of the preceding train. We need more

20 of an explanation for that, Mr. Zecevic.

21 MR. ZECEVIC: I understand, Your Honour. We'll do our best.

22 JUDGE BONOMY: There are motions outstanding in our hands.

23 There's a motion relating to the Lukic OTP interview. There will be a

24 decision on that issued in writing shortly. It will be today or Monday.

25 There is a request from the Prosecution in relation to the witness

1 statements of a number of Lukic witnesses where the translations were not

2 entirely completed by CLSS and a decision on that will be issued shortly.

3 Mr. Ivetic, you've filed a corrigendum to your motion, your bar

4 table motion, about 6D1644, which is a reply from the Serbian authorities

5 saying that there are no original maps of specified anti-terrorist

6 actions in the military archives, and you seek to withdraw that letter.

7 Now, what is going on on this one? Because we were keen to see

8 originals if they exist. If you withdraw the letter and the paragraph of

9 your motion, that would suggest, possibly suggest, that they do exist.

10 MR. IVETIC: It's a long-standing debate I've been having with

11 the authorities and the answers that I get from them. It was my

12 understanding that what had been reported to me is not necessarily what's

13 in the -- the response that was received and since I didn't have a

14 translation of that handy I went upon what others had told me and I'm

15 told that it's not exactly as we -- as we this thought so that there

16 might have been another response later somewhat drawing back from that or

17 giving other information. So I really don't know and that's why we

18 needed to -- I could not make an affirmative affirmation at that time

19 relative to that and that's why we did the corrigendum and I think there

20 was one other document that went in erroneously that wasn't relevant that

21 also did not have a translation and I forget. I think there might even

22 have been a third and fourth document that are not related to that issue

23 but which also were erroneously included in the bar table motion.

24 JUDGE BONOMY: Have you now submitted all you intend to submit on

25 this point? Or are you --

1 MR. IVETIC: On that point, yes, that's all that I have at

2 present that I can -- that I can -- with the -- everything in the bar

3 table motion is complete with the corrigendum, and I do have, of course,

4 from -- I don't know if you want to go into it now but for the bar table

5 motion there are a couple other open points, I know, that we could go

6 into. I have been in contact with the Rule 70 provider and hope to have

7 some further information regarding those documents shortly. They were

8 working on getting the approvals for the same and we should get hopefully

9 some word on that shortly.

10 There's the issue of 6D2. As Your Honours know, we have one

11 document that was from that witness. I have not yet received a positive

12 response on the other document that the Trial Chamber sought from that

13 witness, without going into further details in open court. Essentially

14 that document has not been located by the said witness at this time.

15 And there was one dispatch of the RJB that Your Honours had

16 sought that was referenced in one document, that was 6D770. This

17 dispatch to the RJB was referenced on the 28th of February, 2008, during

18 the testimony of Mr. Dujkovic, and at that time the Trial Chamber said

19 that it would be worthwhile to try and get that document. We have now

20 received that document and I believe there's ban motion already filed

21 last night asking for admission -- or asking for the same to be admitted

22 once the translation is completed. That would be 6D1667 that's the April

23 19, 1999 dispatch, the RJB in connection with the testimony of

24 Mr. Dujkovic that the Trial Chamber had at that time directed us to try

25 and locate.

1 JUDGE BONOMY: Is that a brief document?

2 MR. IVETIC: Two pages, I think, two pages.

3 JUDGE BONOMY: Well, would you ask for it to be translated as

4 matter of urgency, please.

5 MR. IVETIC: I have, Your Honour.

6 JUDGE BONOMY: I was going to raise with you 6D2. You've dealt

7 with that. On the question we were discussing 6D1644. All I can do is

8 note what you say. In relation to police log 6D614, you have been asked

9 to explain the delay on that.

10 MR. IVETIC: That's correct, and I believe we were told to do

11 that by Monday.

12 JUDGE BONOMY: Monday.

13 MR. IVETIC: And that will be done.

14 JUDGE BONOMY: Tuesday, I think.

15 MR. IVETIC: Tuesday, that's correct, and that will be done I'm

16 working on it.

17 JUDGE BONOMY: Additional information is required of that one.

18 MR. IVETIC: Correct. I think it was transcript references for

19 the witnesses.

20 JUDGE BONOMY: Now, in general terms your bar table motion does

21 contain a number of documents which are not translated. What is the

22 position with the translations?

23 MR. IVETIC: Well, we are working trying to exert all of our

24 resources on that both through CLSS and through our -- the approved

25 in-house translator approved by the Registry for those documents that

1 CLSS cannot handle due to their -- to their constraints in terms of the

2 capacity. We are trying to get as many of those done because we believe

3 that they are essential and we're trying to get the shorter ones and the

4 more essential ones to be given priority as we have throughout the

5 proceedings. I don't have anything specific to report at this time. We

6 could give more information next week if I have the weekend to try and

7 make a few phone calls and inquiries as to where we stand. As Your

8 Honours have noted, we've been filing translations I think pretty much on

9 a daily basis as they come in, so we're trying do get as much of that

10 under control as soon as possible sooner rather than later.

11 JUDGE BONOMY: Well, we are approaching the stage where a line is

12 going to be drawn, and not a line in the sand.

13 MR. IVETIC: I appreciate that, Your Honour.

14 [Trial Chamber and legal officer confer]

15 JUDGE BONOMY: Mr. Ivetic, just finally going back to the

16 translations of the witness statements where they were not entirely

17 translated by CLSS, our understanding was that the revised translations

18 would be available by today.

19 MR. IVETIC: That, Your Honours, is a matter beyond my control.

20 That's in CLSS's hands. We did provide them both the -- everything

21 essentially, we provided them everything as they had requested.

22 JUDGE BONOMY: The day is young.

23 MR. IVETIC: Yeah.

24 JUDGE BONOMY: But there's no reason to doubt that they will be

25 available today so please do what you can to ensure that these are filed

1 all with a view to reducing the outstanding issues so far as possible.

2 MR. IVETIC: Agreed. As soon as we get any translation either

3 from CLSS or anyone else, we upload that day, so that's why we have the

4 multiple filings for admission of documents that were MFI or otherwise

5 didn't have translations. We'll do the same with these with the caveat

6 that I think with the statements we'll send courtesy copies rather than

7 waiting for a notification and going through the filing system given the

8 weekend if in fact something is brought back to us today by CLSS.

9 JUDGE BONOMY: Thank you. Now, Mr. Visnjic, you seemed to have

10 raised a matter. Do you wish to raise it in court or -- I understand

11 you've communicated with -- with the legal staff about one matter.

12 MR. VISNJIC: [Interpretation] No, Your Honour. I'll be satisfied

13 with a written response. We look upon it as a technical matter.

14 JUDGE BONOMY: Well, in the circumstances we'll look at what's

15 said first of all and give you a response either in writing or orally,

16 but it will be a fairly quick one.

17 I hope I've identified all that's outstanding. We can now --

18 MR. HANNIS: Your Honour, if I may. May I make a request to the

19 Lukic Defence team in connection with the pending bar table motion. If

20 it would be possible to get a Word copy of their document because they're

21 numerous and not all exhibits are always listed in numerical order or

22 date order. In filing my response it would be helpful to me if I could

23 have a Word document to work from if that's not a problem.

24 JUDGE BONOMY: That a problem, Mr. Ivetic?

25 MR. IVETIC: Ought not to be. I don't know what the format was.

1 Oh, it's probably submitted in .tif or .pdf. I could do that to -- I

2 would send it to everyone, I think, instead of just the Prosecution in

3 case there is anyone else that's doing a response I'll send it to all

4 parties.

5 JUDGE BONOMY: Thank you. We shall now adjourn until Monday at

6 9.00, court number III.

7 --- Whereupon the hearing adjourned at 1.47 p.m.,

8 to be reconvened on Monday, the 19th day

9 of May, 2008, at 9.00 a.m.

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25