1 Tuesday, 9 November 2004

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 10.01 a.m.

6 JUDGE EL MAHDI: [Interpretation] Good morning, everyone. I would

7 like to ask the registrar to call the case first.

8 THE REGISTRAR: Good morning, Your Honours. This is case number

9 IT-96-23/2-PT, the Prosecutor versus Radovan Stankovic.

10 JUDGE EL MAHDI: [Interpretation] Thank you.

11 Now I would like to have the appearances, please, starting with

12 the Prosecution.

13 MR. WUBBEN: Good morning, Your Honour. My name is Jan Wubben,

14 senior trial attorney for the Prosecution, together with co-counsel Manoj

15 Sachdeva, and our case manager, Djurdja Mirkovic.

16 JUDGE EL MAHDI: [Interpretation] Thank you very much.

17 And for the Defence.

18 MR. RADOVIC: [Interpretation] Good morning, Your Honour. I am

19 attorney-at-law Milenko Radovic, from Foca, Defence counsel for

20 Mr. Stankovic.

21 JUDGE EL MAHDI: [Interpretation] Thank you very much, Mr. Radovic.

22 Mr. Stankovic, are you able to hear me in a language you

23 understand?

24 THE ACCUSED: [Interpretation] Yes, Mr. El Mahdi, I can hear you.

25 Despite the fact that my hearing isn't the best, but it is obvious that

1 you do not wish to hear me. This is why I sincerely hope that you will

2 not be able to cut me off at today's conference as was done on two

3 previous occasions. And I hope --

4 JUDGE EL MAHDI: [Interpretation] Mr. Stankovic, listen.

5 Mr. Stankovic -- Mr. Stankovic, you have to listen to me when I talk.

6 This is the golden rule that applies here. And a Judge will never let

7 such disorder happen in a courtroom. There is a rule that we have to --

8 all of us to follow. If -- listen to me. Listen to me. Listen to me.

9 THE ACCUSED: [Interpretation] Do not deny me my right to speak

10 pursuant to Rule 65 --

11 JUDGE EL MAHDI: [Interpretation] Listen to me. You will have the

12 opportunity, but when I ask you a question, you have to answer that

13 question. I'm asking you whether you -- listen to me. You hear me in a

14 language you understand and the only answer you can give is yes or no,

15 Mr. Stankovic. We are not going to start like this, because you're

16 behaving in a very provocative manner, and I am here to fulfil my role to

17 serve justice.

18 Now at least I find that you can hear me in a language you

19 understand.

20 THE ACCUSED: [Interpretation] I'm not here to provide yes or no

21 answers to your questions. You asked me and I gave you an answer.

22 JUDGE EL MAHDI: [Interpretation] Mr. Stankovic, no.

23 THE ACCUSED: [Interpretation] This is exactly what happened on two

24 previous Status Conferences. You left the courtroom refusing to hear me

25 out.

1 JUDGE EL MAHDI: [Interpretation] Mr. Stankovic, Mr. Stankovic,

2 that's enough.

3 THE ACCUSED: [Interpretation] -- to take opportunity to use my

4 right pursuant to Rule 65 and I hope that you will grant me ten minutes of

5 your valuable time today to allow me to say what I have on my mind.

6 JUDGE EL MAHDI: [Interpretation] That's enough. That's enough,

7 Mr. Stankovic.

8 I have to remind you that I will not tolerate some comments. I am

9 not here to be lectured. I have to lecture you here.

10 During the last Status Conference, I asked the Defence to give me

11 their position about a specific matter, the following matter: It was the

12 matter of alibi, of the alibi. I have received a brief that was drawn up,

13 as far as I understand, by Mr. Stankovic himself. It was filed with the

14 Registrar on the 10th of September. In that brief, he states that -- or

15 rather, there is a contradiction in the Rules of the Tribunal, there is a

16 contradiction between Rule 65 ter and Rule 67.

17 I would like to point out to the parties the following: I would

18 like to draw their attention to the French language of Rule 67 of the

19 Rules of Procedure and Evidence. If we look at the English version of

20 Rule 67, we read, in English: [In English] "The Defence shall notify the

21 Prosecutor of its intent to offer the defence of alibi, in which case the

22 notification shall specify the places or places at which the accused

23 claims to have been present," et cetera.

24 [Interpretation] Whereas if we look at the Rule in French, it

25 says: "The Defence informs the Prosecutor that it is in its intention to

1 invoke, that it intends to invoke." And it's not exactly the equivalent

2 of the language in English. "The Defence shall notify." There is a

3 difference.

4 Furthermore, if we look at the Rule itself in English, we read the

5 following, and I quote: [In English] "The defence of alibi in which case

6 the notification shall specify," et cetera.

7 [Interpretation] In French, when we look at the language of the

8 Rule, we find that it's different, because we read the following: "The

9 defence of alibi, with an indication of the location or specific locations

10 where the accused says that he was at the time of the alleged crime."

11 So I would like to draw the attention of the parties to this

12 difference in the language between the French Rule and the English Rule.

13 When we look at the English Rule, it has a mandatory quality that derives

14 from the use of the verb "shall" in the Rule, whereas if we look at the

15 French Rule, we don't find that element of that quality in the Rule as it

16 is in French.

17 However, the Prosecutor still has to be in a position to present

18 his case. We are faced with a situation where the Defence tells us:

19 Well, I reserve the possibility of setting out my defence of alibi when

20 the time comes to do so. Whereas the Prosecution is saying: Well, in

21 order to be able to prepare my case properly, I need to know what is the

22 nature of the defence of alibi.

23 I believe that the solution is quite clear-cut. If we think back

24 of what is to be found in the pre-trial briefs submitted by Defence

25 counsel and by Mr. Stankovic himself, then we will see that very clearly

1 this alibi consists in the following: During 90 per cent of the time

2 making up the time period in question, or the relevant time period,

3 Mr. Stankovic says that he was at the front, he was fighting.

4 Furthermore, the Defence says, and Mr. Stankovic asserts, that he went to

5 the house, to the house we all know about, he went to that house twice,

6 and he went there on a mission, in order to solve a number of

7 security-related problems.

8 Therefore, I imagine that his defence of alibi is based on a

9 number of elements, not necessarily on witnesses but maybe on producing a

10 military logs or administrative logs that could show that indeed he had

11 been assigned one or several missions during the relevant period, as well

12 as the missions he had to conduct at the house we all know about, we are

13 all familiar with.

14 At this stage, I believe that the Defence, if it does not have the

15 material necessary to support the defence of alibi, I believe that the

16 Defence has the right not to go further to reveal the information before

17 the beginning of the trial, before the beginning of the Prosecution case,

18 or as soon as the information becomes available to the Defence.

19 So that was for the defence of alibi.

20 Now let me move on to another issue. The briefs that were

21 submitted and that set out or reveal information that is considered to be

22 protected information, i.e., the identity of some witnesses or of some

23 victims. This is a very serious matter, and I must say about this matter

24 that the Registry has done its work perfectly because the Registry has

25 filed these briefs confidentially, although the briefs had been submitted

1 confidentially, so as to limit the potential damage. And I would like to

2 ask Mr. Radovic to make sure that when briefs are submitted by the

3 Defence, these briefs should comply with the protective measures that are

4 in place.

5 Now I'm turning to the Prosecution. If I understand correctly,

6 you have completed -- you have your list of witnesses. Is it a final list

7 of witnesses? Have you been able to make an estimate of the time

8 necessary to hear each witness, in order to be able to assess -- to give

9 an assessment of the presentation of your case?

10 MR. WUBBEN: Well, Your Honour, we have not prepared this issue,

11 as we are now in the stage of filing and proceeding on the 11 bis-ing of

12 the case, so at the very moment I can't confirm to you whether or not it's

13 a final list. I know we have the list, and we are of course still aiming

14 for better witnesses, and to that extent, we have also to deal with this

15 11 bis motion we filed. In the meanwhile, we rather focus on the outcome

16 of the 11 bis to still be decided by the Trial Chamber. Then, further go

17 into the scheduling of witnesses or the number of witnesses. If Your

18 Honour wants a notification in that regard, we are willing, of course, to

19 file that as soon as possible.

20 JUDGE EL MAHDI: [Interpretation] Yes. Thank you very much. But I

21 believe that I am in charge of the preparation of this case before this

22 Tribunal, and it is my duty to move ahead in the preparation of the case

23 until we receive a different order, a different instruction. I can't wait

24 for your motion to be decided upon, your 11 bis motion to be decided upon.

25 This does not concern me. It's not within my competence. Therefore, I

1 hope that you will be able to submit information about this matter. If

2 you have that information now.

3 MR. WUBBEN: I have that information now. We project 13

4 witnesses, and in total, 50 hours. But if you ask me: Is this your final

5 number of witnesses? It may be some three more added to it. We don't

6 know at this very stage.

7 JUDGE EL MAHDI: [Interpretation] Well, if you say 13 witnesses, if

8 I understand properly, there will -- it's minus two or plus two. Well,

9 it's around 15 witnesses.

10 MR. WUBBEN: Yes.

11 JUDGE EL MAHDI: [Interpretation] And as for the number of hours,

12 it's 50 hours. Is that it, 50 hours?

13 MR. WUBBEN: Yes. It's 50 hours, and I refer, of course, to our

14 pre-trial brief and annexes.

15 JUDGE EL MAHDI: [Interpretation] Yes. Yes. I just wanted to make

16 sure that I understood properly. Thank you very much.

17 Now I'm turning to the Defence. Mr. Radovic, is there any issue

18 you would like to raise?

19 MR. RADOVIC: [Interpretation] Your Honour, on the 21st of

20 September, 2004, the Prosecution submitted a motion pursuant to Rule

21 11 bis to have the indictment against Mr. Stankovic referred to Bosnia and

22 Herzegovina, to the state court there, to the court for war crimes. In

23 view of that, I would like to state the following:

24 The Defence does not wish to go into details when denying the

25 allegations of the Prosecution. We will do that in our written

1 submissions. However, it is our duty to state here that, in our view,

2 this motion represents the violation of the basic principles contained in

3 the Statute of this Tribunal.

4 Pursuant to Article 21(4)(c) of the Statute, the accused has a

5 right to have a fair trial without any delay, without unnecessary delay.

6 So far, the Defence has stated, on a number of occasions, that we

7 were prepared for the trial. We stated this six months ago. If the

8 motion of the Prosecution were to be granted, if this case indeed is

9 referred to the state court in Bosnia and Herzegovina, and this Court was

10 established at a much later date, after Mr. Stankovic surrendered to the

11 authorities and was brought here to the Detention Unit of the UN, this

12 would constitute a violation of the constitution of Republika Srpska,

13 which has been recognised as an entity and its right to have its

14 constitutional order has been recognised as well.

15 The constitution of Republika Srpska bans the extradition of its

16 citizens to other states where they are to stand trial. This motion was

17 submitted to the state court of Bosnia and Herzegovina, which is a sort of

18 an international court, because among their composition, they are two

19 international judges and one judge from Bosnia and Herzegovina.

20 In a sovereign state such as Bosnia and Herzegovina, foreigners

21 cannot serve as judges. Such a court, the way it was established, and as

22 I've already stated, represents some kind of an international court, which

23 was not established by the United Nations or at a diplomatic conference,

24 which is the only proper way to establish international courts.

25 Therefore, such a court would have no competence to put

1 Mr. Stankovic on trial. In accordance with Article 9 of the Statute, the

2 parallel jurisdiction is given to national courts, so that if the Chamber

3 grants this motion to refer the case against Mr. Stankovic to national

4 courts in Bosnia and Herzegovina, the only competent court to mount a

5 trial against Mr. Stankovic would be the court with subject matter

6 jurisdiction in Republika Srpska, which would be the district court in

7 Trebinje.

8 The district court in Trebinje has subject matter jurisdiction and

9 is competent to conduct a trial against Mr. Stankovic, especially bearing

10 in mind that the acts and conduct of Mr. Stankovic, pursuant to the

11 indictment of this Tribunal, were carried out in the territory of the

12 former municipality Miljevina, which is currently called the local commune

13 of Miljevina, and this is located in the territory which falls under the

14 jurisdiction of the district court in Trebinje in Republika Srpska.

15 Pursuant to the Law on Criminal Procedure in force in Bosnia and

16 Herzegovina in the Federation of Bosnia and Herzegovina and in

17 Republika Srpska, the court which is located in the territory where the

18 crime was committed has territorial jurisdiction over the case. In view

19 of the fact that Mr. Stankovic is charged with committing crimes in the

20 territory of Miljevina, in order to mount a trial against him, the only

21 court with proper competence is the court of Republika Srpska, and as I've

22 already stated, the district court in Trebinje.

23 Rule 11 bis sets forth that, in certain cases, the case may be

24 referred also to the authorities of the government on the territory of

25 which the crime was committed. And under subparagraph 2, it says that it

1 can also be referred to the country in which the accused was arrested, and

2 under subparagraph 3, it says to the country having jurisdiction and being

3 willing and adequately prepared to accept such a case.

4 All of these prerequisites indicate that in order to put

5 Mr. Stankovic on trial in Bosnia and Herzegovina, the only court with

6 proper competencies and jurisdiction would be the district court in

7 Trebinje in Republika Srpska. Here are the reasons for that:

8 It is on the territory of this court that the crimes were

9 allegedly committed, on the territory of this court Mr. Stankovic

10 surrendered himself. This court is located in Bosnia and Herzegovina as a

11 state in the entity of Republika Srpska. And this is an entity which

12 would take upon itself to organise a trial against Mr. Stankovic.

13 What represents an impediment for the Tribunal to rule to send

14 this case for further action to the national court in Bosnia and

15 Herzegovina, to the court for war crimes, is the fact that Mr. Stankovic

16 has spent the last two and a half years in the Detention Unit of this

17 court, pursuant to the request of the Tribunal, that we have reached quite

18 a substantial phase in this case, that pre-trial briefs have been filed

19 and we are ready for trial. We are waiting for the trial for the

20 scheduled. And the trial before this Tribunal would take no more than two

21 months.

22 If this case is referred to the authorities in Bosnia and

23 Herzegovina, Mr. Stankovic would wait for his trial for another seven to

24 eight months, at a minimum. Because not all regulations are in place, the

25 regulations which relate to the case before the state court of Bosnia and

1 Herzegovina, with the war crimes court. As far as I know, there are no

2 conditions, even at a minimum level, to keep an accused in detention, and

3 not even all judges have been elected.

4 In view of the fact that the accused has a right to trial without

5 any delay, the Defence hereby requests the Chamber to schedule a trial, to

6 commence a trial, one phase of which has already been completed. Any

7 other ruling would represent violation of Mr. Stankovic's right to have a

8 fair trial, which is a right that he, as an accused, has.

9 If we do schedule a trial at today's Status Conference, the

10 Defence will continue to comply with all of its obligations stated in the

11 Rules of Procedure and Evidence. Otherwise, Defence requests that you,

12 Your Honour, as Pre-Trial Judge, suspend all of your previous rulings

13 until the ruling pursuant to the 11 bis request of the Prosecution is

14 handed down.

15 The Defence points out that Rules regulating the procedure, in

16 accordance with the current laws in Bosnia and Herzegovina, in the

17 Federation of Bosnia and Herzegovina, and in Republika Srpska are not

18 identical to the Rules of Procedure and Evidence here at this Tribunal.

19 Therefore, Defence does not wish to file motions that have not been

20 regulated by national laws, because that would further complicate

21 Mr. Stankovic's position before national courts.

22 The legal regulations of Bosnia and Herzegovina, among others, do

23 not mandate that the Defence has to inform the Prosecution of its

24 intention to use the defence of alibi before the Prosecution starts with

25 its case. Therefore, the Defence has not submitted its written motion to

1 the Chamber until now, stating that we intend to use the defence of alibi,

2 where we would indicate the locations where the Defence claims that

3 Mr. Stankovic was at the time when the crimes he's charged with were

4 allegedly committed.

5 We would also indicate names and addresses of witnesses and any

6 other information we intend to use to support the defence of alibi of

7 Mr. Stankovic as provided by Rule 67(ii)(a).

8 Should you need any further clarification, I'm ready to provide

9 it, Your Honour. Thank you.

10 JUDGE EL MAHDI: [Interpretation] Thank you very much, Mr. Radovic.

11 I would like to say the following: First, I'm the Pre-Trial Judge

12 in this case, and I'm doing this, I'm doing my job, until further notice.

13 You mentioned the issue of the possible referral of the case to another

14 jurisdiction, to another national jurisdiction, pursuant to Rule 11 bis of

15 the Rules of Procedure and Evidence. A Chamber was set up within the

16 Tribunal to rule on the motion submitted for that purpose, but as far as

17 I'm concerned, until further notice, that is to say, until a ruling has

18 been handed down about this motion, I am pursuing my work as a Pre-Trial

19 Judge in this case before this Tribunal. That is why I have made a point

20 of explaining very clearly what I understand from your briefs, from your

21 brief, first of all, of the 21st of June, as well as from the three other

22 briefs submitted by Mr. Stankovic himself on the 15th of July, on the 4th

23 of August, and on the 10th of September.

24 I have been able to understand the nature of your defence case, of

25 your defence of alibi. I've been able to understand what it's all about.

1 And I would like to repeat it, but you can correct me if I'm wrong. What

2 you say is that during 90 per cent of the relevant period of time, Mr.

3 Stankovic was not on the scene; he was fighting at the front, on the front

4 line; and he only went twice, on a mission, in front of the house we are

5 all familiar with. Therefore, I do not see where the problem is when it

6 comes to the defence of alibi.

7 Similarly, I don't see any point in delaying the advancement of

8 the case before this Tribunal. If the case is ready for trial, then I

9 will draw up my report accordingly and fulfil my mission and my duties,

10 regardless of any other motion that do not seem relevant to me. Because

11 I'm not supposed to know anything about these other motions, because these

12 motions are under consideration by a special Trial Chamber, a Trial

13 Chamber that was set up to rule on these motions. Therefore, we do not

14 need to have any more information from you. You said that you were ready

15 to start the trial. I believe that you fully answered the Prosecution by

16 submitting four briefs, one you submitted yourself and three briefs that

17 were drawn up and submitted by Mr. Stankovic himself.

18 However, I'd like to draw your attention to one point. Normally,

19 any accused who is presumed innocent until proven guilty has the

20 possibility of defending himself. But if an accused has Defence counsel,

21 then this should be -- everything should be channelled through the Defence

22 counsel. Because I found out that in the briefs, there was information

23 that could contravene protective measures that had been granted to

24 witnesses and victims. When I saw that, then I asked myself the question

25 whether you were aware of that, whether you had had the opportunity to

1 read these briefs before they were submitted. I was informed by the

2 Senior Legal Officer, who organised a conference with you yesterday, I was

3 informed, therefore, by him that you were not aware of these briefs before

4 they were submitted and filed by the Registry.

5 I would like this to be an exception to the rule, to have been an

6 exception to the rule, and I would like everything, all submissions, to be

7 channelled through you. In one of the briefs, Mr. Stankovic said that he

8 wanted to take the floor and to speak for ten minutes. I am in favour of

9 granting him that time; however, I would like to stress the following for

10 him: To draw his attention to a sentence from his brief dated 10th of

11 September, 2004, the following sentence. I quote in English: [In

12 English] "You cannot force me to confess to something that I personally

13 have not done." End of quote.

14 [Interpretation] I'm surprised, to say the least. I'm surprised

15 to see that something like this could be written to a Judge, furthermore,

16 an international Judge, a professional Judge, a Judge who took an oath,

17 who took the oath to accomplish his duty in full impartiality. Therefore,

18 I believe that this was a slip of the tongue on your part and that you

19 never intentionally or never -- anyone would intentionally write this

20 sentence to a Tribunal.

21 This being said, Mr. Stankovic, you have the floor for ten

22 minutes. I'm all ears.

23 THE ACCUSED: [Interpretation] Mr. El Mahdi, when I address you, I

24 address everyone, including yourself, the Prosecution, and the Registry.

25 You all represent an institution, as far as I'm concerned.

1 Furthermore, I wish to say something concerning the lies and

2 fabrications of Muslim intelligence service AID and their witnesses. As

3 far as they're concerned, I don't care whether I will be tried by this

4 perverse Tribunal in The Hague or by the Dzamahirija courts in Bosnia and

5 Herzegovina. I don't care, because my conscious is clear.

6 One is certain, which is that I will use facts to defend myself

7 from your fabrications and lies, which are based on false testimonies of

8 witnesses used by Prosecution. They have no valid evidence. They just

9 bring here 50, 60 women, Muslims, who testify here about something that

10 actually never took place. But let's leave that aside. Let's leave that

11 for the trial. You can do what you like. But here at stake is my own

12 honour, the honour of my family, the honour of my people, and I will

13 defend it to the end. I'm very proud that by birth I am a Serb, an

14 Orthodox believer. This is a great honour. You cannot imagine what a

15 great honour it is. Had you had any facts that you could use at the

16 trial, you would have started this trial. But, however, I've been waiting

17 here for three years for the trial to start. You mostly prosecute Serbs;

18 then you have a small fraction of Croats and Muslims that you put on

19 trial; and then perhaps some Albanians, just as a spice. You use them to

20 spice your proceedings here. Now that was not enough for you, and you're

21 sending me back to Bosnia to be prosecuted by Ustasha and Dzamahirija

22 courts. You accused me falsely for four crimes, and I will prove my

23 innocence.

24 I've been in prison here for three years without knowing what the

25 charges against me are. You yourself, Mr. El Mahdi, stated on one of the

1 previous conferences that you did not know what the charges against me

2 were. During this entire period, the Prosecution unfolded several

3 scenarios, fabrications, all under direction of your bosses, NATO, the

4 United States, in order to conceal crimes committed against Yugoslavia by

5 NATO and the international community, starting from 1991. NATO and

6 America destroyed Yugoslavia. Yugoslavia, prior to that, was European

7 Union, a model of a European Union country. Now you are lecturing us as

8 to how we enter those international integrations, NATO and so on. We had

9 European Union even before the European Union was established, and our

10 country was a mini European Union. Although you depicted me in the media

11 as the greatest war criminal and you prepared a verdict against me in

12 advance, despite of all that, I will prove contrary.

13 The principle that everybody is the innocent until proven guilty

14 does not hold here. You act completely contrary to that principle. You

15 hold me guilty and the charges of the Prosecution are considered to be

16 proven in advance. We will not provide the information you require

17 pursuant to Rule 67. We will provide it pursuant to Rule 65. So after

18 the Prosecution has completed its case and before the Defence commences

19 its case, this is when we will supply this information.

20 Various things were done to me until now. However, none of that

21 worked, because my dignity, the dignity of my family, the dignity of

22 Serbian people, will never be for sale and has never been for sale. This

23 is something that I count on, that is considered sacred for me. I'm a

24 Serb, and I'm very proud that I have given a contribution in the fight of

25 Serbian people against Ustasha and Mujahedin paramilitary formations. Now

1 that you have seen what you have done, and when you refuse to acknowledge

2 that all of these accusations were false, you have decided to send me to

3 Bosnia and Herzegovina, to that Dzamahirija Mujahedin system that will put

4 me on trial. They have no right to put anyone on trial, let alone me,

5 until they resolve the issue of the Serbs that were expelled, at least

6 from Sarajevo, over 10.000 Serbs were liquidated in Sarajevo alone, and

7 you wish to put me on trial in Sarajevo.

8 These people, civilians, Serbs, were expelled from their

9 apartments in Sarajevo, and over 10.000 Serbs in Sarajevo were killed so

10 that others could get their apartments. And on top of that, you wish to

11 put me on trial in former barracks, Viktor Bubanj. This was a camp, an

12 internment camp for Serbs, where thousands and thousands of Serb civilians

13 from Sarajevo were killed. And you turned that notorious camp into a

14 court where, once again, Serbs would be put on trial. So you turn a camp

15 for Serbs into a court for Serbs, and this is how you conceal the crimes

16 that Mujahedin committed against Serbian people. This is indeed a

17 cynicism.

18 You, Mr. El Mahdi, should be aware of the fact that I cannot give

19 you any compliments here, because you are not keeping me in detention for

20 three years because of compliments. You have kept me for three years here

21 without knowing yourself or telling anyone else what were the charges

22 against me.

23 That's all I have to say. Thank you for today's kindness.

24 JUDGE EL MAHDI: [Interpretation] Thank you, Mr. Stankovic.

25 I should like to draw your attention to the fact that it's not

1 possible to compliment a Tribunal. This goes against any ethical

2 principle. In the same way that you cannot criticise a Tribunal, in the

3 same way, you cannot express compliments or extend compliments to a

4 Tribunal.

5 Now this being said, I have to repeat what I said at the

6 beginning. I am here to make sure that the preparation of the trial be

7 accomplished properly, in the best possible conditions. I understand from

8 the Prosecution that they are ready for trial. They are ready -- the

9 Prosecution is ready to start the trial, with, of course, the caveat of

10 the motion submitted by the Prosecution under Rule 11 bis of the Rules of

11 Procedure and Evidence.

12 I've also noted that the Defence believes it is ready to start the

13 trial. Based on what I said about the defence of alibi, I believe that

14 there is no problem regarding that matter. If there is indeed a

15 contradiction between the two versions of the Rules, the French and the

16 English version, that both have the same power within the Tribunal, then I

17 will accept, I will go for the version of the Rules that is in favour of

18 the Defence. And if we take the Rule in French, then the Defence can --

19 the Defence is allowed not to notify immediately the fact that all details

20 pertaining to the defence of alibi. Although according to me, it's

21 obvious that the Defence explained and set out very clearly the defence of

22 the alibi in question. And I repeat once again: It's the fact that

23 Mr. Stankovic was not on the scene during 90 per cent of the time in

24 question, and that when he went to the house, he went to the front of the

25 house only, as part of the mission.

1 This being said, I believe that we've completed the preparation of

2 the case. I'm sorry, Mr. Wubben. You wanted to take the floor? Please

3 go ahead.

4 MR. WUBBEN: Yes, Your Honour. It was not my purpose to interrupt

5 you, but it was my purpose to clarify the position of the Prosecution in

6 regard to your statement.

7 JUDGE EL MAHDI: [In English] Okay. Go ahead, please.

8 MR. WUBBEN: Your Honour, indeed, the Prosecution agreed that we

9 are trial ready, with caveat of the 11 bis. But I would like to add

10 another caveat to it, as it had been raised today. But first the caveat

11 of the motion for 11 bis-ing. If this means that in the belief of Your

12 Honour, it is so that you, as a Pre-Trial Judge, have separate power, and

13 it is as such enshrined in the Rules of Procedure and Evidence, then,

14 related to that caveat, I have a request to you from the Prosecution team

15 to see to it, in accordance with Rule 65 ter, that there is no undue

16 delay, and I refer to 65 ter, under (B), meaning not an undue delay

17 whenever it comes to preparing for trial, but whenever it comes to the

18 fact that two Trial Chambers are now in charge of various aspects of this

19 case. Whenever two Trial Chambers are operating in a separate, isolated

20 way, without communicating or without a shared policy, then it will be

21 counter-productive and there might be a delay that will in a disadvantage

22 of a quick proceeding of the case. In that regard, with all respects to

23 the powers and the fact that I acknowledge that you are the Pre-Trial

24 Judge, at the same time, I ask you, in your position as Pre-Trial Judge,

25 to set up communication in order to support a shared policy with a

1 deciding in the case in such a manner that there will be either a deferral

2 or a proceeding in an expeditious way, in an expeditious manner.

3 Second caveat, Your Honour, is the aspect of the national laws and

4 regulations by Bosnia and Herzegovina in respect to the laws of the Rules

5 of Procedure and Evidence and the Statute. It's the opinion of the

6 Prosecution that Article 9 of the Statute and Rule 89 of the Rules of

7 Procedure and Evidence confirms that this Tribunal is independent and has

8 primacy over national court and also is not bound by international laws,

9 meaning that whenever there is a motion based upon 11 bis, that simple

10 filing of such a motion doesn't change those Articles, the principle that

11 it is the Statute and the Rules of Procedure and Evidence that rules this

12 Court, and not being bound by any national proceedings, predicaments or

13 principles as referred to by the Defence counsel, meaning also that the

14 Prosecution believe that Article 67 should be met, and for the time being,

15 I take it that whenever an alibi defence has been argued, then it should

16 be fully argued in accordance with the Rules. Even if national laws point

17 out in another direction, it should be so that an alibi argumentation

18 should meet the specifications as confirmed in Rule 67, under (A), sub --

19 the first one, under the paragraph of the defence of alibi, referring to

20 the place or places at which the accused claimed to have been present, and

21 also the times of the alleged crime, and also the names and addresses of

22 witnesses and other evidence upon which the accused intends to rely to

23 establish the alibi.

24 Those conditions have not been met, in my opinion. That's why I

25 bring this now to your attention that it is the Prosecution's belief that,

1 first, before we proceed further, those conditions should be met and

2 should be implemented in clarification or a motion by the Defence counsel.

3 So we have here two caveats by the Prosecution. Thank you, Your

4 Honour.

5 JUDGE EL MAHDI: [Interpretation] Thank you very much. I will be

6 in a position to answer very quickly, by saying the following: I make a

7 clear distinction between bringing justice and the administration of

8 justice. What I mean by that is that my duty is to fulfil the preparation

9 of the case, to complete the preparation of the case. You know as well as

10 I do that the Pre-Trial Judge, once the pre-trial preparation is over, has

11 to prepare a report that is submitted to the Presiding Judge of the Trial

12 Chamber, who then informs the President of the Tribunal of the fact. Here

13 we are talking about the administration of justice. And this has nothing

14 to do with serving justice, because the Pre-Trial Judge has a judicial

15 function that is not charged with the administration of justice itself,

16 for example, the politics of the Tribunal, the creation of -- the setting

17 up of the Trial Chamber to rule on the 11 bis motion, for example.

18 So here we are talking about two different areas that are

19 distinct. My duty is to make sure that the preparation of the case goes

20 ahead properly. Then the administration of justice will decide what to do

21 with the report that I've submitted. If the case is ready for trial, why

22 not try it here, here in the Tribunal? But it's not -- I have nothing to

23 do with that. I have nothing to do with the administration of justice. I

24 am -- I cannot wait for decisions, decisions that might be taken next

25 week, next month, or next year. No one knows. You submitted a motion,

1 but are you able to tell me when the ruling will be handed down? No, you

2 can't. Therefore, we are dealing here with matters that are -- do not

3 necessarily relate to one another. Therefore, I am here to fulfil my

4 duty, I'm here to draw up my report. If we all agree that the case is

5 ready for trial, then I'm supposed to draw up a report under the Rules of

6 Procedure and Evidence and to submit it to the Tribunal, who will then

7 make a decision. My duty is to make sure that the case is prepared

8 properly.

9 You said you had two caveats, first of all, there is this

10 Rule 11 bis motion. The second point you had, if I understand correctly,

11 has to do with Rule 67. And you tell us that the Defence said that it

12 intended to invoke a defence of alibi, and what you tell us is that the

13 Defence has not complied with the dispositions of Rule 67.

14 The Defence says that the -- there is no obligation under the

15 Rule. I mentioned the defence of alibi myself. I said that --

16 THE INTERPRETER: Interpreter's correction.

17 JUDGE EL MAHDI: [Interpretation] The Defence said that it told you

18 where the accused was during that period of time and then you're in a

19 position to make the necessary verifications. The reason why the Rule is

20 drawn up the way it is is that the Prosecutor should not be left in the

21 dark, because it's not acceptable for the Prosecutor to prepare its case

22 and then for the accused to come and say: Well, I was not in the country.

23 I was in hospital. I was being operated upon, et cetera.

24 So the idea, the objective of the Rule is not to have the -- for

25 the Prosecution not to be completely taken by surprise. But I think I

1 explained the situation quite clearly. I believe that we can interpret

2 the Rule in a slightly different manner, by saying: Yes, there is an

3 obligation, but it is not necessarily automatic, i.e., when you invoke the

4 defence of alibi, you do not have to immediately give the names of the

5 witnesses, their addresses, and all relevant details mentioned in the

6 Rule. And I'm saying that based on the French wording of the Rule 67 that

7 says that the Defence notifies the Prosecutor, provides that information.

8 I don't think that we can say that the Defence is trying to take

9 the Prosecution by surprise, because the Defence has already interred the

10 nature of the defence of alibi, because the Defence has said that

11 Mr. Stankovic was not on the scene of the crimes; he was at the front; he

12 was fighting; and that he never entered the house; and that when he went

13 there, he was on a mission.

14 So this is already the beginning of some information about the

15 defence of alibi, and at this stage of the proceedings, in my opinion,

16 that's enough. I do not mean to say that if a date is set for the

17 beginning of the trial and if the Prosecution is set to present its case,

18 then -- I'm not saying then it would -- then it would probably be

19 appropriate for the Defence to disclose any other information about that

20 matter. But I believe that the time has not come to demand from the

21 Defence that they reveal all the information, and I don't think that this

22 will prejudice the Prosecution. I do not think they will be prejudiced if

23 they wait for a date to be set for the beginning of the trial before a

24 Trial Chamber of the Tribunal.

25 This was just a brief reply to your comments. Would you like to

1 answer or to make any comments? I'm quite ready to listen to you.

2 MR. WUBBEN: No, thank you, Your Honour. But we will take it into

3 consideration. Thank you.

4 JUDGE EL MAHDI: [Interpretation] Thank you very much. Thanks.

5 Mr. Radovic, you've listened to what I had to say. You've

6 listened to the comments made by the Prosecution. Would you like to

7 answer?

8 MR. RADOVIC: [Interpretation] Yes, Your Honour.

9 The Defence maintains its position. You yourself have explained

10 that. We believe that at this stage of the pre-trial proceedings, we do

11 not have to submit any further motions detailing the defence of alibi of

12 Mr. Stankovic.

13 Another factor contributing to us not submitting that motion is

14 something that I've already talked about. I would like to reiterate

15 something else now.

16 As I've said, from the moment when the Prosecution submitted its

17 request pursuant to Rule 11 bis to have the case referred to a court in

18 Bosnia and Herzegovina, I will refrain myself from taking any measures

19 that might have negative repercussions on the proceedings that might take

20 place against Mr. Stankovic in the war crimes court in Bosnia and

21 Herzegovina. I will continue complying with all other obligations I have

22 here before this Tribunal, as I have appeared here at a Status Conference

23 today. In all other instances where I believe that Mr. Stankovic's right

24 to a fair trial might be jeopardised, I will take action.

25 Now, I have a question relating to the defence of Mr. Stankovic,

1 which is this: What is going to happen if the case against Mr. Stankovic

2 is referred to Bosnia and Herzegovina? Will Mr. Stankovic be in a

3 position to make me accountable for the fact that I did not take action

4 here, which is not compulsory action before the courts in Bosnia and

5 Herzegovina, if these actions have an impact on his defence? In my

6 opinion, there is a certain legal void in this issue, because this is a

7 matter that has not been regulated by any Rule of the Rules of Procedure

8 and Evidence, especially not Rule 11 bis.

9 What represents another problem for me is further disclosure of

10 evidence. In view of the fact that parliamentary council and other

11 chamber [as interpreted] in Bosnia and Herzegovina have not yet adopted

12 all the laws that will regulate proceedings before the war crimes court in

13 Bosnia and Herzegovina, I would like to know what weight will be accorded

14 to the evidence gathered here at this Tribunal, because this might have

15 repercussions on my obligation to continue with the disclosure of evidence

16 to the Prosecution.

17 Thank you.

18 JUDGE EL MAHDI: [Interpretation] Thank you, Mr. Radovic.

19 So if I understand correctly, you are not opposed against

20 completing the pre-trial stage, and I also understand that you want this

21 case to be heard in this Tribunal.

22 The last word goes to Mr. Stankovic. I will ask him to tell me if

23 he has any complaints about his state of health. Mr. Stankovic, if you

24 want us to go into private session, we can do so, and -- for you to be

25 able to talk freely about that.

1 THE ACCUSED: [Interpretation] There is no need for that. But

2 prior to that, I would like to make a correction so that we avoid any

3 misunderstanding. Just a minute ago, when you spoke about my motion and

4 quoted from it, you said that I did not spend 90 per cent of the time on

5 the scene. This is not what I said or wrote. Because the scene is the

6 house, the house in question, and that's not what I said. I said that I

7 did not spend 90 per cent of my time in Miljevina.

8 JUDGE EL MAHDI: [Interpretation] Everyone understands properly,

9 and I also stated that you only went to the house, and you never entered

10 the house, but you only went to the house twice. That's clear enough,

11 isn't it? Okay. You can go ahead.

12 THE ACCUSED: [Interpretation] Yes. But you also stated that I did

13 not spend 90 per cent of the time on the scene.

14 JUDGE EL MAHDI: [Interpretation] No. When I'm talking about the

15 scene, it's not the house.

16 THE ACCUSED: [Interpretation] Yes. All right. We understand each

17 other now.

18 Now I would like to say something else concerning the alibi. I

19 cannot comprehend the Prosecution. They want to force us --

20 JUDGE EL MAHDI: [Interpretation] Listen. Listen, Mr. Stankovic.

21 I don't have any problems with that issue. I've made a decision. So

22 there's no need to revisit the issue again. So would you like to inform

23 me about -- sorry?

24 THE ACCUSED: [Interpretation] -- concerning my health?

25 JUDGE EL MAHDI: [Interpretation] Yes.

1 THE ACCUSED: [Interpretation] You see, you are slowly and slyly

2 destroying my health here. You have kept me here detained for three years

3 without telling me what the charges are or when the trial would commence.

4 That means that I need to spend some 20 years here under investigation; in

5 the meantime, they are changing the indictment, bringing in new witnesses,

6 taking out old witnesses. This is something I cannot comprehend.

7 JUDGE EL MAHDI: [Interpretation] Well. Well, well. So you do not

8 have anything specific to say about that matter.

9 Before concluding today's hearing, I would like to ask Mr. Radovic

10 to make sure that any correspondence that is sent should comply with

11 protective measures. And in the same vein, I would like to once again

12 compliment and pay tribute to the Registry that reacted very appropriately

13 and that made sure that no harm came from the infraction of protective

14 measures.

15 This being said, I think we've come to the end of this Status

16 Conference. The hearing stands adjourned.

17 --- Whereupon the Status Conference adjourned at

18 11.23 a.m.

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